Reframing (and Reclaiming) Pregnancy and Abortion

Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013).

In recent years, anti-abortion advocates have argued that abortion harms not only a developing fetus, it also harms the woman who chooses to terminate her pregnancy. These arguments, which Reva Siegel has termed “woman-protective anti-abortion argumentation,” have made their way into abortion jurisprudence.1  In the 2007 case Carhart v. Gonzales,  a majority of the Supreme Court characterized abortion as “a difficult and painful moral decision” that may cause women profound psychological, physical, and emotional harm.2

In response to these arguments and the judicial decisions that entrench them as truths, pro-choice advocates have sought to recast abortion in a more positive light. Katha Pollit’s recent book, Pro: Reclaiming Abortion Rights, seeks to strip abortion of its stigma by reframing it as a common part of a woman’s reproductive life—one that may have positive implications for the woman, her family, and society. Similar themes have surfaced in popular culture. In the 2014 movie Obvious Child, Donna, a struggling twenty-something, becomes pregnant after a one-night stand and decides to have an abortion. Donna’s decision is utterly devoid of the usual angst and drama that attends television and film depictions of similar scenarios. Indeed, she is matter-of-fact about the decision, never contemplating the possibility of raising the child herself or giving it up for adoption. More radically, Donna is no worse for the wear after her abortion. Indeed, she is pleased with her decision, confident that it was the right choice for her.

Amidst these popular efforts to recast abortion in a more positive light comes Khiara Bridges’s excellent article, When Pregnancy is an Injury: Rape, Law, and Culture. In the piece, Bridges considers criminal sexual assault statutes that characterize a pregnancy that results from rape as an injury—beyond the rape itself—to the victim. As Bridges observes, these criminal statutes are notable not simply because they identify those circumstances in which the crime of rape is aggravated and subject to heightened penalties; but because they construct pregnancy as an injury to women. As Bridges explains, the construction of pregnancy as an injury “runs counter to positive constructions of pregnancy within culture.” But it is not just that these criminal statutes disrupt the conventional narrative of pregnancy as a beautiful and blessed experience; by reframing pregnancy as an injury, the criminal sexual assault statutes also provide us with an opportunity to reconceive abortion as “a healing modality, serving to heal a woman of her injury.”

There is much to admire about this article. Unlike much of reproductive rights scholarship, which often focuses on doctrinal developments in the law, the article takes an anthropological approach, documenting the interaction between law and culture in constructing the ways in which we understand pregnancy and abortion. In so doing, the article yields trenchant insights about the role that law may play in shaping our cultural understandings of abortion and pregnancy and vice versa. For example, in discussing the range of sexual assault statutes that provide for heightened penalties when a rape results in pregnancy, Bridges makes clear that the statutes are “somewhat exceptional because . . . [they] reflect subversive understandings of pregnancy” that are at odds with prevailing cultural and legal views, which celebrate pregnancy as a good thing for women, even in circumstances where pregnancy is unwanted and unplanned.

To underscore this point, Bridges canvasses a range of legal contexts where pregnancy, despite its risks and challenges, is almost always figured as a good thing. Consider cases of wrongful pregnancy or wrongful conception, where parents sue after a provider’s negligence results in an unwanted pregnancy. In these cases, courts do not “recognize that a woman who bears a pregnancy only because of the negligent provision of contraceptives or a negligently performed abortion or sterilization—that is, a woman who bears an unwanted pregnancy—experiences that pregnancy as an injury.” Instead, the injury that courts do recognize is the denial of one’s reproductive rights and the economic costs associated with pregnancy. Through this selective recognition, Bridges argues, law subtly asserts that “pregnancy itself is a good thing.” That is, even as it shifts the “monetary costs associated with pregnancy,” law stubbornly insists on framing pregnancy as a benefit to women. Certainly, it is a benefit that “may result in some burdens . . . . [b]ut it is not an injury.”

To be sure, there are contexts where pregnancy is framed more ambivalently or even negatively—the pregnancies of women on public assistance and the pregnancies of women employees, come to mind. But even in these contexts, the negative framing does not render a more accurate account of women’s experiences of pregnancy. In these contexts, Bridges explains, the injury of pregnancy is not an injury to the woman, but rather an injury to the body politic—the public or public resources. In this way, even these negative treatments of pregnancy underscore the larger cultural message that pregnancy is a positive experience for women.

And because pregnancy is framed as a positive experience, abortion is necessarily framed as a negative experience. It is the quintessential injury—one that not only harms the fetus, but also injures the woman herself. In this way, Bridges argues, law helps to shape a cultural narrative in which a woman’s interest in abortion is stigmatized and delegitimized.

On this account, the sexual assault statutes’s view of pregnancy as an injury is not just subversive in the way it reframes pregnancy; it also undermines the prevailing view of abortion. In stark contrast to Gonzales v. Carhart, where abortion is presented as a danger from which women must be protected, the reframing of pregnancy as an injury allows abortion to be recast as a means of healing the injury of pregnancy. In this regard, pregnancy as an injury has the radical potential to shift the nature of abortion discourse. If abortion is recast as a healing modality, then the procedure itself—and the woman’s desire for it—is not a much-regretted choice that causes profound anxiety and despair, but rather, is a legitimate choice that may be positively experienced. In this way, refocusing our discourse to accurately reflect the bitter and the sweet of pregnancy allows law to better understand and reflect women’s interest in, and experiences of, abortion.

But what is perhaps most interesting about this article is that it makes clear that the reframing of pregnancy and abortion that it champions is not necessarily new. As Bridges explains, early pro-choice advocacy explicitly characterized unwanted pregnancy as an injury and abortion as a means of healing that injury. However, as anti-abortion advocacy shifted from emphasizing abortion’s harm to the fetus toward emphasizing the perceived harms of abortion for women, this earlier understanding of pregnancy and abortion fell out of favor—and out of our collective memory. By unearthing this lost view of pregnancy in (of all places) sexual assault statutes, Bridges makes clear that these arguments were once a vibrant part of pro-choice advocacy—and that they could be once again.

  1. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694 (2008). []
  2. 550 U.S. 124, 128 (2007). []
Cite as: Melissa Murray, Reframing (and Reclaiming) Pregnancy and Abortion, JOTWELL (May 22, 2015) (reviewing Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013)),

Restructuring Family Law

Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.

In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families.

In contrast, when the law regulates the family intentionally, it often does so in what Huntington characterizes as a “reactive” mode. Families encounter the law when they are in crisis—for example, at divorce, or when a shared parenting arrangement has broken down, or when family bonds have been eroded by violence. The state then enters to solve—or, at least, adjudicate—the problem, and then disappears once a resolution appears to have been achieved. But by then this intervention may be too little, too late. Family relationships have become adversarial, and a litigation model of dispute resolution only exacerbates the breakdown in trust and communication that the family is already experiencing.

Huntington proposes a radically different model, one in which the state’s aim is not to intervene in crisis, but instead to assist families in flourishing from their inceptions to their breakdowns to their repair. Unlike traditional family law, under Huntington’s model the state might be purposefully involved in a family’s life during many phases of its existence. Huntington draws on positive psychology, a field that studies the conditions that lead to human flourishing, rather than focusing on disease and dysfunction. If we can figure out what makes families flourish, she argues, we can craft state interventions that support families rather than working to undermine them.

The proposals that Huntington develops using this model are varied and paradigm-shifting. Some of her interventions would happen early in the family formation process. She would, for example, involve the state in assisting new parents. Rather than waiting for an individual to fail (by, for example, committing child abuse or neglect) and then intervening to terminate the parent’s rights, the state would instead proactively assist a new parent, especially those most at risk of committing abuse or neglect, by providing education and hands-on assistance early in the child’s life. Just as a good diet and exercise can prevent long-term medical problems down the road, so can early intervention prevent family crisis. As a real-world example of this type of program, Huntington describes the Nurse-Family Partnership, a program now serving first-time mothers and their infants in forty-three states. The program provides at-risk mothers with in-home visits beginning in pregnancy and lasting through the first two years of the child’s life, parenting skills training, and counseling to assist mothers with educational and career planning.

Huntington also advocates for other methods of state involvement with an eye to fostering family strength. She is a particular fan of the “New Urbanism,” an architectural and planning movement that encourages the building of new communities, and revitalization of older ones, so that housing, schools, shopping, and parks are all located within a short walk of each other. Huntington calls this “shrinking the home, work and school triangle,” and the effects on families can be very positive. Walking outdoors leads to friendships with neighbors, which in turn leads to networks that can provide shared child care arrangements, support during difficult times, and increased neighborhood safety. Huntington also takes on the current impediments to the formation of long-term relationships, especially in poor communities, including the high incarceration rates of African-American men and marriage penalties built into means-tested government programs. Access to free contraception and education, she argues, can also help women to delay childrearing until they have found a stable partner. Finally, legal recognition of a broader range of families than the traditional nuclear family would lead to greater stability for those families.

Not all of Huntington’s proposals focus on early intervention. Instead, some of the reforms she espouses are aimed at changing the way the state intervenes when a family is in crisis. Huntington observes that the current system assumes a conflict and resolution, but that most divorce and custody disputes do not match this model. Again drawing on psychological research, she argues that the law circumvents a key step in the cycle of intimacy, which includes a period of guilt followed by repair. Courts focus more on assigning blame and creating a “clean break” to relationships. This emphasis can disrupt the natural cycle of repair and prevent a former couple from becoming effective co-parents. In any divorce or break-up where children are involved, the relationship between the parents does not actually end. Instead, it must be transformed into something new. Huntington urges that we pay more attention to the relationships that will continue to persist after legal action ends and to encourage the divorce and custody dispute process to be less adversarial, through reforms in family law teaching, legal practice, and the adoption of new approaches to dispute resolution, such as the collaborative lawyering movement.

Huntington recognizes that a primary objection to her proposals may be that it puts too much faith in the state at the expense of family autonomy. She counters this objection with the observation that the state already pervasively regulates families. The question, she argues, is not whether the state will be involved in family life—we can’t escape that—but instead how. Her goal is to “redirect the pervasive state so that it encourages strong, stable, positive relationships within the family.” Getting there will require extraordinary efforts on many fronts. Huntington’s book gives us the roadmap for how to begin.

Cite as: Kerry Abrams, Restructuring Family Law, JOTWELL (April 20, 2015) (reviewing Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014)),

Can the Supportive State be Non-intrusive?

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

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

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

Most of Bach’s article is aimed at deepening our understanding of the institutional realities of poor women’s lives. In furtherance of this goal, Bach identifies a phenomenon she calls “regulatory intersectionality,” which refers to the interlocking nature of state’s social welfare apparatus and its criminal justice process. These systems, she argues, act in concert. “[I]nformation that is deemed to indicate non-compliant and/or deviant conduct travels from the original social welfare system into other even more punitive systems,” where it functions “to impose ever-heightening penalties on the families that seek assistance.” (P. 337). The result is a network of hyperregulation that is highly targeted by class, race, and place.3

The examples Bach uses to establish the phenomenon of regulatory intersectionality are familiar ones—mandatory drug testing of pregnant women and referrals of women who test positive to the criminal justice system; child protection interventions that systematically penalize minority families for their poverty; and welfare conditions (including more drug testing) that invade the privacy rights and security of these same families. In each of these regulatory areas, she argues, the problem is not simply that a state committed to the principles of free market economics, autonomy and self-reliance wrong-headedly ignores dependency and vulnerability, but also that the state’s interventions typically expose women to “more and more . . . punishment and social control.” (P. 368).

Is it too much to expect a state to be both supportive and non-intrusive? Bach concludes that it is possible, and that if privileged women put themselves in the shoes of the poorest, most vulnerable women, it would be “not so difficult after all” to imagine what form that support should take. (P. 379). This imagining leads to Bach to favor programs that are more universal in scope, like the Earned Income Tax Credit, as well as “more privacy protections and higher bars on surveillance and monitoring,” “higher walls between support system and punishment systems,” and “significant caution in the face of calls for coordination and collaboration.” (P. 376).

Bach’s article is an important heads-up to family law reformers who view a more supportive state as the route to greater equity for women and families. Indeed, the challenge Bach poses is so daunting that it is not clear that the solutions she herself offers are sufficiently robust to address it. What this article reminds us, however, is that without greater sensitivity to the damage a “supportive state” can wreak, efforts in the name of the supportive state may end up doing more harm than good.

  1. See, e.g., Martha Fineman, The Autonomy Myth: A Theory of Dependency (2004); Maxine Eichner, The Supportive State: Families, Government and American’s Political Ideals (2010); Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014). []
  2. See, e.g., Dorothy Roberts, Welfare Reform and Economic Freedom: Low-Income Mothers’ Decision About Work At Home and in the Marketplace, 44 Santa Clara L. Rev. 1029 (2004); Shattered Bonds: The Color of Child Welfare (2002); Kaaryn Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (2011); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009). []
  3. Bach at 335-6, quoting Frank Rudy Cooper, Hyper-Incarceration as a Multidimensional Attack: Replying to Angela Harris Through the Wire, 37 Wash. U. J.L. & Pol’y 67, 68-69 (2011). []
Cite as: Katharine Bartlett, Can the Supportive State be Non-intrusive?, JOTWELL (March 24, 2015) (reviewing Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014)),

The Limited Vision of Neoliberal Family Law

Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN.

The problem of economic inequality has become a staple of news, social media, and public commentary particularly since the aftermath of 2008 financial crisis. The growing gap between the one percent and the rest provided an issue around which public protests such as the Occupy movement could be organized. And while addressing the many effects of inequality is complicated in its particulars, the need for redistribution as a central legal and policy value has been evident to critical scholars. Redistribution in the form of better social safety nets, a more progressive taxation scheme, and the closing of loopholes all have become more commonplace policy prescriptions, although legislation on these issues has been slow to materialize. Family law scholars and activists have also suggested that reforming policies to ensure more support to families, such as paid family leave and assistance with child care, would also have beneficial effects for working parents and the country’s economic bottom line.1 Even as the United States lags behind all other industrial nations and many developing ones in providing these supports, legislating changes aimed at providing resources that “make family life possible” has been remarkably difficult. The question that lingers is why?

Anne Alstott’s essay, Neoliberalism in in U.S. Family Law, offers an answer. Alstott argues that neoliberalism, which she defines broadly as a commitment to free markets and laissez-faire economics coupled with a commitment to negative liberty and a minimal state, makes it nearly impossible to claim any positive rights and distribution of resources from the government. She explores the pervasiveness of neoliberalism in three areas of family law –federal constitutional law, state family law, and federal and state welfare law — deftly drawing connections among these discrete doctrinal fields to advance her central argument:

The entrenched neoliberalism of family law is frustrating for many reasons, not least because it blocks sustained consideration of a more appealing liberalism. Negative liberty, as important as it is, is insufficient for justice. We can imagine—indeed, other countries have adopted—constitutional interpretations that convey positive rights. We can also imagine—and again, other countries have enacted—law that looks beyond the minimalist task of settling private disputes and instead aims to correct market distributions and promote a family life open to all. (P. 26).

In other words, the law continues to maintain the view that families are best served with minimal regulation from the government and that private ordering or free market resource allocation is preferable to government-imposed redistribution. These two pillars of neoliberalism are reflected in the legal decisions and enactments that frame the family in the United States.

Part II of Alstott’s essay explores the minimal state and negative liberty in federal constitutional family law. She juxtaposes the numerous decisions that sound in negative liberty, which prevent the government from intruding upon familial privacy (Loving, Griswold, Roe v. Wade, and Lawrence), infringing parental rights (Meyers and Pierce), and allow it to deny any duty to protect vunerable individuals within families (DeShaney) with decisions denying rights to resources. She argues that while negative rights like privacy receive strict scrutiny, positive rights and distributive policies like welfare and taxation receive only rational basis review, nearly immunizing them from constitutional challenge. For instance, examining the welfare cases, Alstott demonstrates that there is no positive right to state support. The state can cap welfare benefits without regard to family size (Dandridge v. Williams), refuse to provide public housing or adequate schooling, and limit the amount of time a recipient can receive public assistance. Moreover, the state can deny benefits to children because of the actions of their parents. Even a landmark victory for welfare recipients such as Goldberg v. Kelly only guarantees a procedural right to be heard before the termination of welfare benefits—it does not assure a right to substantive benefits. Viewing the jurisprudence of negative liberty and welfare rights in tandem, Alstott argues that there is an “asymmetric pattern of federal constitutional protections for family life.” (P. 29). In other words, these two lines of decisions harmonize in such a way that even though one has a right to family, one has no right to the resources required to sustain that family. Indeed, there is no right to the resources needed “to marry, to divorce, or even to remain alive….” (P. 29).

Unfortunately, the family fares no better at the subconstitutional level. In Part III of the essay, Alstott demonstrates how state family law privileges private ordering by reinforcing market outcomes and forcing families to bear the costs of reproducing society and the next generation of Americans. Further, between spouses, the state has come to demand private negotiation and ordering as marriage has evolved from a status to contract. With the advent of no-fault divorce and legislation encouraging divorcing couples to reach agreement on matters of property, support and child custody, the state continues to place the onus on achieving justice at dissolution on private, supposedly bargained-for, settlements. While there are limits to what can be negotiated—for instance, a parent cannot bargain away a child’s right to support—on most other issues that arise in divorce settlements, the courts rubber-stamp agreements without much inquiry into the ultimate fairness or justice of the outcomes.

Alstott raises a number of critical questions that are prompted by the state’s preference for private ordering. As an initial matter, she challenges the pervasive assumption that most families have resources that can be allocated through negotiation. As she explains, most families have few material resources and struggle to support themselves, particularly in economically perilous times. At dissolution, with the loss of economies of scale, these difficulties are compounded. If spouses strike poor bargains for support, or are unable to secure any support because of poverty, they are left to shift for themselves and to subsist on inadequate government support. Even in these dire circumstances, neoliberal assumptions regarding individual choice and agency result in the forced internalization of consequences. The state requires parents who cannot afford to support their children to bear most of the costs of their poor choices or bad luck. Women who trade away support in order to gain child custody are left to support their children the best they can with minimal state intervention or assistance. Poverty becomes an individual moral failing that must be borne by the responsible party.

This depressing outlook makes clear that the family, rather than the state, has become the main institution responsible for the welfare of citizens. As Alstott points out, “welfare programs in the United States provide only minimal and grudging resources for family life.” (P. 38). No resources are constitutionally mandated and those that are provided come with erosions of privacy and increasingly onerous requirements like mandatory drug testing, employment, and lack of a criminal record. Poverty alleviation programs have been eroded over time and continue to reinforce the neoliberal vision of individual merit and industriousness as the best way out of difficult circumstances. Moreover, unemployment benefits and Social Security rewards those who have had on-the-books employment, thereby precluding from their ambit some of the most vulnerable people in our society. The recently enacted Affordable Care Act (ACA) continues this trend by balancing neoliberal ideas with expanding access for the poor. The ACA provides health care benefits to middle class workers “by relying on private-market insurance providers.” Those who are unemployed or otherwise ineligible for coverage through their employers are provided with government subsidies that allow them to purchase insurance coverage privately. In this way, although the program expands health care coverage, the provision of health care is secured through privatization, rather than the expansion of the public safety net. Likewise, public education, perhaps the cornerstone of what might be called a “welfare state,” has been critiqued for being unequal, increasingly racially divided, and inadequate.

Alstott argues that negative liberty, the free market, and the minimal state have not insured the wellbeing of families. In the absence of positive constitutional rights to state support, families are left to divide market earnings and courts are left to adjudicate claims among individuals in the family. The law will not “aim to correct market distributions and promote a family life open to all”. (P. 26). Without the space for a more expansive vision of the state’s role in the family and adequate provision of support for those who are economically underprivileged, the forced internalization of the costs of reproducing the next generation, the care of elders, and shifting of welfare functions to the family will result in continued increases in inequality and social stratification.2 Alstott’s critique is a welcome addition to a body of literature generated by material feminists and progressives outlining the inadequacies of negative liberty, formal equality, and the erosion of the welfare state. Critical race feminists have further argued that the lack of state support for families disproportionately impacts racial minorities and that inequality is widening along racial lines. Here, Alstott’s approach analyzes family and welfare jurisprudence and legislative developments in tandem to draw connections that reveal how the two fields maintain neoliberalism and prevent progressive attempts at redistribution. In so doing, she offers a valuable corrective to the isolated analyses that currently prevail. Elaborating the argument to include analysis of the structural impediments that minorities confront would complete the unfortunately dismal picture.



  1. See e.g., Anne L. Alstott, Private Tragedies? Family Law as Social Insurance, 4 Harv. L. & Pol’y Rev. 3 (2009). []
  2. See e.g., Bruce Western et al., Inequality Among American Families with Children, 1975-2005, available at []
Cite as: Cyra Choudhury, The Limited Vision of Neoliberal Family Law, JOTWELL (February 18, 2015) (reviewing Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN),

Rhetoric and Clarity

James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int'l J. Jur. Fam. 239 (2013).

In “Misused Concepts and Misguided Questions,” Jim Dwyer is working within an important tradition of thinkers (going back at least to George Orwell’s famous essay, “Politics and the English Language”) who correct the sloppy arguments, rhetoric, and terminology the rest of us make, to bring us collectively towards clearer moral and policy arguments. There is also more local and recent precedent for this effort. In his critique of the misleading rhetoric of “government intervention,” Dwyer rightly notes (p. 239 n. 2) that he is making essentially the same point that Frances Olsen made in her famous 1985 article “The Myth of State Intervention in the Family,” 18 U. Mich. J. L. Reform 835 (1985). Family law scholarship can certainly use more of the sort of critique that Olsen and Dwyer bring.

Dwyer’s point (like Olsen’s earlier) is that it is wrong and misleading to view the policy choices relating to the regulation of families as being between “government intervention” and “non-intervention.” Government intervention in the family is inevitable, if only to set the baseline rights and duties of the individuals. Especially when one considers the prerogatives spouses have to one another, and the powers parents have over their children, it is hard to discern what “non-intervention” could mean. No government presence at all would entail a sort of Hobbesian world, the war of all against all. Instead, all interactions are regulated and constrained by basic rules creating criminal and civil sanctions for assault, fraud, robbery, rape, murder, etc. No one is suggesting that these “interventions” be removed.

Further, in our society, spouses have duties of support, certain property rights relating to one another’s property during marriage (especially in community property states), and rights and duties regarding property and alimony (spousal support) at divorce. These are rules put in place by the legal system above and beyond the baseline rules that govern property rights between strangers. A couple could try to mimic some of these effects through private agreement, but this generally can be done only imperfectly, and, of course, it must be noted that state enforcement of private agreements is itself a form of government intervention. The rules that give spouses rights and duties inter se that other people do not have in relation to one another, and that give parents rights and duties in relation with their children that other people do not have in relation to those children, are all in a sense government “interventions” – the only question is whether they are good rules relative to possible alternatives.

Some commentators and advocates would respond that while the distinction between “intervention” and “non-intervention” is inaccurate (and thus unhelpful), one should distinguish situations where the state is “merely” supporting existing social norms and those where it is “intervening” to change existing norms and practices. The argument would be that some family forms and spousal and parental prerogatives are “natural,” while others are imposed by a meddling government. The difficulty with that argument, as Dwyer points out, is that there is no consensus about what rights and duties family members should have, so government action will never be “merely supportive” for everyone; for at least some individuals (and some couples), the legal rules will be coercive “interventions.” Also, the fact that parental rights to control children in particular ways (including in relation to medical care, education, religious upbringing, discipline, etc.) is normal and accepted does not entail that it is not in need of justification. (Dwyer argues that while the state is justified in protecting “non-autonomous persons” like children, this limited justification would not support the current wide prerogatives parents have in decisions regarding children.)

A final point Dwyer makes is that the rhetoric of “autonomy” and “privacy” in family law arguments is frequently misplaced, especially when the subject is parental rights. Autonomy is about a person’s control over the choices affecting that person’s life; the concept is inapt when the question is the control one party (a parent) has over the choices or actions of another person (a child). Also, while American family law routinely refers to government deference to choices within a family as “family privacy,” it is not actually a matter of privacy in any normal sense of that term. Dwyer’s reasonable concern is that too often the policy analysis surrounding family matters – especially regarding what powers parents should have over their children – is being done by the positive connotations of terms like “autonomy” and “privacy” when those terms are, at best, misleading descriptions of the arguments being offered.

Cite as: Brian Bix, Rhetoric and Clarity, JOTWELL (January 19, 2015) (reviewing James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int'l J. Jur. Fam. 239 (2013)),

The Oppression of Analogy

Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014).

In 2008, America elected its first black president. In the same election, a slim majority of Californians voted to enact Proposition 8, a ballot initiative that amended the California constitution to prohibit legal recognition of same-sex marriages. Almost immediately, the election of the nation’s first black president and the enactment of Proposition 8 were linked in the media coverage of these two events and in the popular imagination. Black voters, it was argued, turned out in droves to support Barack Obama; and these same voters cast votes to deny gay men and lesbians the right to marry. According to the conventional wisdom, a group that historically struggled against prejudice and oppression had furthered the oppression of another minority group.

In his recent article, Marriage Equality Post-Racialism, Russell Robinson takes on this stock narrative of the 2008 election, and in so doing, launches a broader discussion of the racial discourse and politics of the marriage equality movement. As other scholars have done, Robinson relies on empirical evidence to dispute the claim that black voters were solely responsible for Proposition 8’s enactment. Critically, however, Robinson goes beyond merely setting the empirical record straight to offer astute observations about the intersection of race and sexuality, and the role of race in the effort to secure marriage equality for LGBT persons.

In particular, Robinson surfaces a shift in the discourse surrounding the marriage equality movement. After the enactment of Proposition 8, gay rights activists and pundits argued that black support for Proposition 8 constituted a betrayal of the gay community—a community that, like the black community, was engaged in a struggle for core civil rights. According to Robinson, this “black betrayal hypothesis” relies on analogies between the black civil rights movement and the LGBT rights movement. Indeed, it rests on the view that the black people and LGBT people have a common legacy of shared struggle against similar forces of discrimination and oppression. And as Robinson documents in painstaking detail, part of the strategy to secure marriage equality has emphasized these shared connections between the struggle for racial equality and the gay rights struggle in order secure the right to marry for same-sex couples.

To be clear, Robinson does not dispute that homophobia and racism share common elements. However, his fundamental argument is that such analogies, and the discursive shifts they undergird, are ultimately unproductive. Arguing that “gay is the new black,” Robinson maintains, elides important distinctions in the histories of each group and their respective struggles for civil rights. Further, the comparison suggests that the struggle for black civil rights has been successfully concluded and that the marriage equality is the last civil rights frontier to be conquered. And most troublingly to Robinson’s mind, the effort to analogize the LGBT rights struggle to the black civil rights struggle overlooks those individuals who belong to both groups.

In documenting the dangers of analogy (and the discursive moves it underwrites), Robinson offers three key insights. First, he disputes the claim that African Americans “pos[e] a unique threat to marriage equality” because of rampant homophobia in the black community. According to Robinson, one of the most troubling aspects of the gay-black analogy and the “black betrayal hypothesis” is that they mark African Americans as hyper-homophobic (and indeed, pathological in their homophobia), while discounting the degree to which other demographic groups, such as the religious or the elderly, may also hold homophobic views. Moreover, the emphasis on homophobia among blacks occludes the fact that “there remains a significant amount of old-fashioned racism in the gay community.” In making this observation, Robinson goes beyond the descriptive to make a normative claim—“holding minorities to a higher standard in terms of supporting other minority groups effectively makes prejudiced majority group members less blameworthy.” Such charges, he posits, divert much-needed attention from “the shared social obligation to promote equality.”

Robinson’s second insight concerns the use of race in marriage equality litigation. Relying on the briefs and other papers filed in various legal challenges to opposite-sex-only marriage regimes, Robinson documents the way in which race figures prominently in marriage equality advocacy. For example, in an effort to secure suspect class status (and the more rigorous judicial scrutiny that such status requires) marriage equality advocates frequently argue that gay men and lesbians are less politically powerful than African Americans. Such claims, Robinson contends, result in an unfortunate “oppression Olympics,” pitting blacks against LGBT persons and overlooking the degree to which both groups remain marginalized in the political process. This “oppression Olympics” relies on a postracial narrative that posits blacks as “doing ‘quite well,’ while [lesbians and gays struggle] to achieve parity.” This narrative, in Robinson’s view, is inattentive—indeed, indifferent—to “contemporary black struggles with mass incarceration, homelessness, unemployment, and health disparities, such as HIV/AIDS.” Instead, as the claims are framed in marriage equality briefs, the “central measure of progress is the right to marriage. Because “blacks can marry, and gay people cannot,” blacks have progressed further and enjoyed more political capital than their gay and lesbian counterparts. In this sense, marital, rather than material realities frame the understanding of equality.

The intense focus on marriage equality as the lynchpin of the LGBT rights struggle informs Robinson’s third claim: that the effort to secure marriage equality (and the analogies and discourse that support the effort) reflects a bid for formal equality for gay men and women. According to Robinson, marriage equality advocates “tend to endorse” a notion of equality that “simply requires law on its face to treat people without regard to sexual orientation.” While this kind of equality is attractive in principle, Robinson argues that it is deeply impoverished, and would do little to benefit the most marginalized in the LGBT community, including those LGBT persons who also identify as racial minorities. To this end, Robinson contends that the marriage equality movement’s embrace of formal equality is myopic and “short-sighted.” As he notes, “[m]arginalized members of the LGBT community, including people of color and those who are socioeconomically disadvantaged, are least likely to find a marriage license sufficient” to combat the enduring effects of homophobia and racism that they encounter in their daily lives. Instead of focusing exclusively on expanding the right to marry, the LGBT rights movement should be more attentive to other structural remedies that would address these issues.

There is much to recommend this article. Robinson is among the best of a cohort of legal scholars that take an intersectional approach to contemporary legal problems. In this regard, Marriage Equality Postracialism is a much-needed intervention that focuses on this critical issue from multiple perspectives.

In drawing attention to the tensions between race and sexual orientation that have come to the fore in the marriage equality effort, Robinson is sure to draw objections, if not outrage. Indeed, his depiction of the prevailing marriage equality discourse and its likely consequences is at once sobering and discomfiting. Nevertheless, Robinson surfaces important issues about the intersection of race, class, and sexual orientation, and initiates a long-overdue conversation regarding how social movements rely on and build upon the work of other movements in pressing for their own claims.

As importantly, Robinson complicates the prevailing discourse of marriage as the end-all-be-all of rights claims. Certainly, marriage equality will address inequities that plague the lives of some LGBT people, but, as Robinson observes, it will not solve the broader range of institutional and systemic inequalities that persist in the lives of those gays and lesbians who experience multiple forms of discrimination and marginalization.

In short, Robinson has crafted a disquieting vision of a contemporary social movement that is swiftly approaching the successful conclusion of its mission to secure marriage equality. As it reaches that conclusion, Robinson’s article provides a much-needed opportunity to take stock of this success, and to ask, whether, in all cases, the ends justify the means.

Cite as: Melissa Murray, The Oppression of Analogy, JOTWELL (December 8, 2014) (reviewing Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014)),

Representing Child Migrants (in the Midst of Our Border Crisis)

Some of the summer’s biggest news headlines focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States.1 The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process.

Within this contemporary context, Shani King’s Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, provides a fresh perspective on the issue. King argues that three constellations of international and regional human rights standards—children’s rights, immigrants’ rights, and the right to civil counsel—should be interpreted together to provide the right to free legal counsel for unaccompanied minors in immigration proceedings. King offers an extremely helpful collection of international and regional standards on these rights, as well as comparative examples from countries that provide representation to unaccompanied minors facing immigration proceedings. Congress, he concludes, should likewise enact legislation guaranteeing legal representation to unaccompanied minors. King’s article is thought-provoking and practically useful, and it can serve as a source of persuasive international authority to support recent proposals and lawsuits calling for constitutional due process rights of unaccompanied minors.

King begins with a helpful review of the standard law and policy arguments in favor of appointing free legal counsel to unaccompanied minors: the vulnerability of unaccompanied minors as they navigate an unfamiliar and arduous legal process; the complexity of immigration law; and the significantly increased likelihood for immigrants, especially minors, with lawyers to win their cases over those who represent themselves. Few academics, however, have argued that unaccompanied minors have the right to free legal counsel, and constitutional challenges along these lines have failed. (N.B.: the ACLU recently filed a new lawsuit challenging the federal government’s failure to provide minors with legal representation in deportation hearings).2 The closest the federal government has come to fulfilling this right, King offers, is a contract with the Vera Institute of Justice to manage the Unaccompanied Children Program, which provides legal assistance to unaccompanied minors and has increased the percentage of children who receive free legal assistance in immigration proceedings from ten percent in 2003 to fifty percent in 2011.3

Although King does not advert to the principal human rights instruments that are binding upon the United States (the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the American Declaration on the Rights and Duties of Man), he does undertake a thoughtful exploration of various international and regional standards that support free legal representation to children in other international law contexts. King thoughtfully combs through human rights treaties, case law, and “soft law” from the United Nations treaty monitoring bodies, and the European, Inter-American, and African human rights systems. He describes how international bodies have explicitly applied both the international “best interests of the child” standard (which, interestingly, was modeled after the U.S. “best interests” standard) and the right to family unity in the context of unaccompanied minors, and makes a compelling argument for why proceedings for unaccompanied minors “may well present the most compelling scenario for free civil counsel.” (366).

The Article makes an especially valuable contribution when it surveys the laws of various countries that provide free representation to unaccompanied minors. Some countries, such as Finland, Norway, Sweden, Switzerland, and the Netherlands, appoint attorneys and personal representatives/guardians for unaccompanied minors. Other countries, including Austria, the Netherlands, Finland, Canada, the United Kingdom, France, Denmark, Australia, and New Zealand, provide children the right to free representation—legal, personal, or both—only after preliminary processing takes place, and some of these countries provide this right only to children seeking asylum. In contrast, the United States and Uganda provide children the right to counsel only at the minor’s expense. King maps these foreign laws and practices onto international human rights standards and analyzes their shortcomings, such as exceptions to the right to free representation, the appointment of non-lawyer legal representatives, and delays resulting in crucial interviews occurring without representation.

King concludes by recommending a model for Congress that guarantees “the appointment of an attorney, who gives the child a voice, before any interviews by border patrol agents or immigration officials, [and] who is specially trained in immigration law and in representing children. For those children who cannot express their own interests, the government should also appoint a personal representative, or guardian, who can guide the attorneys.” (376). The guardian must be the exception rather than the rule, he wisely insists, because the lawyer’s role is to represent the client’s best interests, and two many cooks could unnecessarily complicate matters.

Alone and Unrepresented is brimming with international standards and comparative examples that make a compelling case for the right to free counsel for unaccompanied minors in the U.S. Indeed, advocates are now making that case in the international arena. Last month, a coalition of human rights and immigrants’ rights advocates appeared at a hearing before the Inter-American Commission on Human Rights on the “Human Rights Situation of Migrant and Refugee Children and Families in the United States” and argued that the United States is committing human rights violations by, inter alia, failing to provide migrant children with legal representation. The hearing came on the heels of a site visit by the Commission to the southern U.S. border to evaluate U.S. compliance with international human rights obligations. The Commission’s preliminary findings identified several troubling human rights violations. King’s thoughtful analysis is reflected in these developments in the international arena, and marks an important example of human rights praxis.




  1. Haeyoun Park, Q. and A.: Children at the Border, Aug. 7, 2014 (updated), available at []
  2. See ACLU Press Release, J.E.F.M. v. Holder, Aug. 1, 2014, available at []
  3. For detailed data on unaccompanied children in immigration court, see Transactional Records Access Clearinghouse (TRAC) at Syracuse University, New Data on Unaccompanied Children in Immigration Court, July 15, 2014, available at []
Cite as: Caroline Bettinger-Lopez, Representing Child Migrants (in the Midst of Our Border Crisis), JOTWELL (November 6, 2014) (reviewing Shani M. King, Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, 50 Harv. J. Legis. 331 (2013)),

A New and Different Way of Looking at Family-Based Immigration Policy

Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013).

In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.

Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety.

As a first step, Abrams explains that family connections are the dominant means—to an overwhelming degree—by which immigrants enter the United States. She calculates that about eighty percent of green card recipients in 2011 were family members of U.S. citizens or legal permanent residents. This group includes not only those individuals who belong to explicitly family-based classes of admission, but also relatives of employment-based immigrants, diversity-lottery winners, refugees, and asylum-seekers. Abrams’ statistical analysis makes clear that “family-ness” is so central to U.S. immigration policy that it is worth examining the concept directly, rather than only through the lenses of human rights and market forces.

As a second step, Abrams very helpfully situates her project within the context of Congress’ approach (or maybe more accurately lack thereof) to family-based immigration throughout the nineteenth and twentieth centuries. Her historical survey is complicated by somewhat incoherent statutory development and a sparse legislative history that reveals little about how Congress eventually shifted from a quota regime to the preference-based system that we know today. As Abrams notes, early American notions of family-based immigration were rooted in the tacit gender-role assumptions that also underpin coverture, with a husband’s citizenship status and domicile determining his wife’s. Driving home this point, she references the Expatriation Act of 1907, under which a woman actually forfeited her U.S. citizenship by marrying an “alien,” on the ground that she took on his domicile and nationality upon marriage.

Against this backdrop, Abrams examines the role and evolution of early family-based immigration rules in the context of the national-origins quota system that developed during the 1920s. She traces how, at first, preference categories reflected the long-standing assumptions about determinative powers wielded by male heads of households, but then gradually coalesced into a structure that privileged an immigrant’s nuclear family (the members of which were not subject to the quota). Although preference categories were expanded during the early 1950s to encompass certain extended family relationships, these more distant relations were still subject to quota restrictions, limiting the impact of these facially pro-family-immigration reforms. National quotas so dominated early immigration policy that Abrams surmises (in the absence of a clear legislative record) that family preference categories were an afterthought rather than a calculated effort at policymaking.

The repeal of the quota regime in 1964 was a watershed moment in the history of family-based immigration, and the Hart-Cellar Act serves as the foundation for our current immigration system. Abrams explores how ostensibly pro-family immigration policies in this context might have been motivated by unrelated, ulterior motives. She explores how the Hart Cellar Act’s new family preference categories may have served as a subtle means of preserving the quota regime rather than encouraging family-based immigration. That is, many in Congress may have presumed that those nationalities that had contributed most to the inflow of immigrants under the old quota regime would disproportionately serve as sponsors of relatives under the new preference system, helping to maintain the status quo. However, if such social engineering were the goal, Congress’s approach backfired. As Abrams puts it: “Recent immigrants from, say, China had a great incentive to sponsor their family members. A sixth-generation American whose ancestors came from England had no family in England left to sponsor.” Abrams’ historical analysis suggests that pro-family immigration policy rationales likely played a very limited role in the development of U.S. immigration law—notwithstanding the fact that family-based immigration now dominates. Even when Congress has engaged explicitly in family-definition it has done so mostly to perpetuate traditionalist views of family life (traditional gender roles, privileging the nuclear family) or to disguise unsavory efforts at social engineering (national quotas).

In the rest of the article, Abrams steps into this vast legislative void and describes three broad categories of policy rationales that might justify family-based immigration: integration, labor and social engineering. In a more progressive take on the pro-family ideas underlying coverture, Abrams proposes that family-based immigration might hasten and strengthen integration into American society by enhancing stability and aligning individual self-interest with the interests of the nation as a whole. Such integration might then, she suggests, encourage interaction with and contribution to the broader society. However, Abrams is careful to acknowledge that the family’s role in an individual’s integration might depend heavily on the circumstances. Family life could offer a comfort level that makes integration with the larger community a more natural process, but too much comfort could easily lead to insularity.

Employment-based immigration has a family component (whenever close family members accompany those with employer sponsorship). But Abrams points out that the opposite is also true: Family-based immigration typically has a labor component. Even those who have not been granted entry to the United States on the basis of skills that are particularly desirable to major domestic employers are still likely to participate in the labor force in some way once here. In the labor context, Abrams suggests that family ties might, in the end, lead to greater on-the-job stability and success for newcomers: “Although employment-based immigration (including unauthorized migration for a particular job) often results from immigration networks, family-sponsored immigration provides a surer base for the new immigrant to operate from than a friendship or employment network.” For instance, a U.S. resident or citizen wishing to sponsor a close relative might have more intimate knowledge than an employer regarding her suitability for immigration, and the affidavit of support requirement creates a significant incentive for careful decision-making and active participation in the process of social integration.

Once here, non-employment-based immigrants, Abrams suggests, might also fill a need for less skilled labor (child care, housework, manual labor, etc.), either on behalf of a sponsor or in the context of a private, informal employment arrangements for which employer sponsorship is less likely to be available. Abrams also points to the disproportionate use of family-based immigration by women who might be more likely to participate in some sectors of the informal economy. Family-based immigration may therefore serve as a “proxy” for unskilled laborers needed to satisfy demand that is not being met through labor-based immigration.

Perhaps the most interesting—but, potentially, the most troubling—pro-family policy rationale that Abrams proposes involves legislative social engineering. She proceeds from the oft-asserted claim that state law dominates the regulation of key family institutions—marriage and divorce, procreation, child care and custody—and that immigration policy may afford Congress a means of acting “obliquely” to further pro-federal policy in these areas. Along those lines, diminished federal judicial scrutiny in the immigration context may lead Congress to view this as particularly fertile ground for unfettered policymaking. For example, Congress might seek to “subtly encourage some kinds of families over others….” Family-based immigration policies—depending on how “family” is defined—could express a preference for married couples based on an assumption that these relationships might tend to be more stable or are likely to help the nation compensate for a declining domestic birthrate. Again in this context, Abrams views family-based immigration as a possible proxy by which women can be targeted to compensate for male-dominated labor-based immigration: “Given that women disproportionately use family categories to immigrate, and for all the reasons discussed above that family-sponsored immigration may provide a more flexible labor force, we might want to maximize this kind of immigration so that there will be a large, young, female population of potential care workers for the elderly.”

Although her proposed framework is a comprehensive one, Abrams is not suggesting that it supplant the traditional rights/labor dichotomy. She acknowledges, for instance, that the moral heft of rights-based rationales might, in the end, force lawmakers to follow a particular course, notwithstanding competing pro-family or pro-labor interests. She also concedes that the three broad policy aims she describes—integration, labor and social engineering—might themselves conflict with each other in any given context. But all policy frameworks have their unique limitations. Abrams’ article has the potential to play an important role in exposing certain policy motivations that might not be made explicit in the legislative history or in family-based immigration scholarship.

In the end, where Abrams’ family-based framework leads depends on the assumptions one makes about the nature of family-ness. In the hands of a proponent of maximizing employment-based immigration or someone holding a very traditionalist notion of family, the framework could be used to justify an approach to family-definition that would no doubt outrage a proponent of a rights-based, functional approach to family. Conversely, starting from a functional approach to family, the framework would point the way to a completely open immigration policy without quotas or preferences of any kind—an outcome that might horrify many in favor of pure, employment-based immigration.

At the same time, those on each side of the family/labor divide can employ the framework in a manner that critiques the other side’s approach, exposing possible shortcomings or, at least, casting them in a clearer light. This may be the context in which this new and different way of looking at family-based immigration may yield the greatest benefits.

Cite as: Shani King, A New and Different Way of Looking at Family-Based Immigration Policy, JOTWELL (October 7, 2014) (reviewing Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013)),

A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying

Andrew Gilden, Cyberbullying and the Innocence Narrative, 48 Harv. Civ. R.-Civ. L L. Rev. 357 (2013).

As Andrew Gilden reports in this revealing article, bullying and especially cyberbullying reforms are becoming institutionalized. Prosecutors respond to media coverage of teens bullied into suicide with creative prosecutions. State and federal law require secondary and primary schools to single out bullying for swift and severe punishment and have set up special bureaucratic processes to surveille bullying, report it up the chain of command, and publicly rank schools by the numbers they generate in the process. Schools are also required to teach kids the evils of bullying. Because internet use is often blamed as a medium for “cyberbullying,” a big segment of the antibullying campaign is focused on controlling teens’ access to sexual content on line. This includes Congressional efforts to immunize ISPs for restricting access to obscene material on-line and to enhance parents’ ability to filter their children’s access to that material. Cyberbullying overlaps in many policy efforts with sexual predator scares to promote the closure and blockage of sexually-oriented chat rooms and other fora in which teens could get in over their heads.

Preventing and punishing bullying has become an important LGBT priority. From the media storm over the suicide of Tyler Clementi to President Obama and Kim Kardashian reaching out to gay kids on Dan Savage’s “It Gets Better” website, pro-gay advocacy has played a key role in generating social and political support for anti-bullying reforms. The logic of their efforts seem obvious: gays are victims of bullying precisely for their sexuality, so controlling this phenomenon will be good for them.

Gilden bravely calls our attention to the downsides of these reforms. He writes as an advocate of “gay teens” and argues that social-control efforts targeting teenage bullying have costs, not just benefits, for LGBT youth. His basic argument is that securing and enforcing these reforms depend on an “innocence narrative” in which bullying victims are social and especially sexual innocents whose salvation lies in the hands of adult protectors – and that this narrative leaves out too much. It omits the active sexuality of LGBT youth and their need to find ways to express it as they mature; it leaves out the healthy and life-affirming nonvirtual and internet venues where they join in what Gilden calls “sexual communities” – groups formed specifically to explore sexual identity and make nonnormative lives livable – and it leaves out the possibility that some “bullies” are less destructive than the victim/savior pattern requires and may even be LGBT youth themselves. To give you a taste, here is Gilden’s take on Savage’s almost universally acclaimed “It Gets Better” message: gay teens should “sit on their hands and wait for adolescence to run its course[.]” What if, as well or instead, we tried to “appreciate their desires and capacities to make things better now”? (394).

Gilden’s introit to his topic is the Tyler Clementi case. Clementi was a brand-new freshman at Rutgers University when his roommate Dahrun Ravi set up a webcam in their shared room and broadcast video of Clementi having sex with another young man. Clementi committed suicide within days of these episodes. The standard understanding of this story, Gilden argues, exemplifies the innocence narrative. He collects media and blog posts to show how, almost instantly, Clementi was portrayed as an inoffensive and closeted sexual neophyte thrown against his will into a maelstrom of public shame about his sexuality by a relentless and inhuman attacker. LGBT advocates promptly attributed his suicide to bullying, which they linked to the disproportionately high rate of suicide among LGBT youth. The legal response was highly punitive. Ravi was convicted of invasion of privacy and other crimes (although not, as some gay advocates urged, murder), in a trial which Gilden analyzes closely to show us, yet again, the centrality of the innocence narrative to the crime-and-punishment understanding of anti-gay bullying. And he shows how the Clementi case prompted the New Jersey legislature to require schools to treat student/student bullying as a serious offense.

From careful culling of trial testimony and press accounts, Gilden shows how this version omitted some elements that disrupt the innocence narrative. Clementi was not closeted; he was out to his family and many others. Nor was he a sexual neophyte. His sexual partner in the video was a 30-year-old man he found on a gay male hookup site and had sex with in three encounters over one week. It was also not clear that Clementi experienced himself as a sexual innocent destroyed by an on-line outing, or that he thought that the internet is a site of sheer danger for gay teens like himself. Before the notorious Ravi webcam episode, Clementi had posted sexually explicit videos of himself on an adult website, and after learning about Ravi’s videos Clementi discussed them ruefully and sometimes even humorously on line among a web community of young gay men to which he was a regular contributor. Moreover, Clementi he had been diagnosed with depression and had made harddrive files with anguished filenames well before the webcam episode, suggesting a more complex psychological history than the innocence narrative can accommodate. Gilden portrays Clementi as a young man struggling to come to terms with sexuality and life.

To be sure, Gilden downplays some of the signals that Clementi thought he had been victimized and sought both relief and redress. He did ask his RA to arrange a room-assignment change and to ensure Ravi’s punishment. Clementi’s family has a suicide note that never had to be disclosed because the prosecution’s case did not turn on the cause of his death, so we may never know what it would tell us. But Gilden does not claim that bullying doesn’t happen, that predators don’t scan the cyberhorizon for young victims, or that Ravi’s videotapes were not, as Clementi described them to his RA, “wildly inappropriate.” Instead, he argues that the innocence narrative was projected onto Clementi, producing distortions that have policy implications.

First, the internet was not all bad for Clementi: he used it to explore his sexuality and to find a sexual community where he could seek moral support and ponder what to do about Ravi’s broadcasts. Second, Clementi was a sexual agent, not purely a passive victim, and that agency meant that he was engaged with both the pleasure and the danger of active sexual life. And third, Clementi’s careful management of his outness and his privacy was an elaborate process of “boundary management”: it was not closetedness and virginal timidity but this exploration that Ravi’s violated with his broadcasts. On each of these points, Gilden brings ethnographic and other sources to help show that Clementi was by no means unique in any of these ways — that many gay teens are a lot like him.

Would our new anti-bullying establishment look different if gay teens’ sexual agency had mattered, along with their victimization, in its construction? Though he does not try to answer that question, Gilden deserves credit for putting it squarely on the table.

Cite as: Janet Halley, A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying, JOTWELL (September 5, 2014) (reviewing Andrew Gilden, Cyberbullying and the Innocence Narrative, 48 Harv. Civ. R.-Civ. L L. Rev. 357 (2013)),

Recognition Without Consent

Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276 (2014).

Relationship recognition has been at the center of reform efforts in family law for the last two decades. Scholars and advocates alike have focused intently on the need to provide recognition and support for a variety of relationships that the law has traditionally ignored. These include the relationships of not only same-sex couples, but also of cohabiting couples, nonmonogamous groupings, and friends. The reform proposals have assumed that legal recognition brings with it economic benefits.

In a fascinating new article, Erez Aloni questions this assumption by highlighting the interplay between two considerations: first, it is sometimes the case that nonrecognition of relationships can have financial benefits for their members; second, the state sometimes recognizes relationships in the absence of a request by either party—what Aloni labels “purely ascriptive recognition”—for the limited purpose of determining eligibility for particular benefits. In most cases of purely ascriptive recognition, if the combined income exceeds a certain amount, then the individuals become ineligible for the benefit in question. When the two considerations are brought together, we are left with forms of legal recognition that cause financial harm.

Aloni begins by exploring different examples of purely ascriptive recognition, including the termination of alimony upon the recipient’s cohabitation and the federal government’s determination of family income for purposes of who is eligible to benefit from means-tested programs such as Supplemental Security Income, Medicaid, and financial aid for higher education. In all of these cases, the state’s recognition of relationships causes financial harm. It has been all too easy, Aloni rightly points out, to miss the link between recognition and harm given that family law reform proposals have been so consistently based on the need to expand the types of relationships that the state legally recognizes.

Aloni makes several important observations about the link between recognition and financial harm. First, it is unfair when the government recognizes relationships in ways that deprive their members of economic benefits while refusing to recognize the same relationships in other contexts in which recognition would confer benefits. This recognition asymmetry is unjust. It is one thing to contend that certain kinds of relationships do not merit recognition; it is another matter altogether for the government to recognize relationships only for the purpose of saving itself or third parties money.

Second, policies grounded in involuntary recognition often have a disparate impact on vulnerable populations like the poor, the elderly, and the disabled. The reasons for the disparate impact are two-fold. These groups are less likely to be married, and thus to enjoy the large number of state-provided benefits that accompany that status. At the same time, these groups are more likely to be in need of the assistance provided by means-tested programs.

Third, involuntary recognition regimes that deprive individuals of benefits are particularly salient to individuals, such as those who cohabit after divorce and who depend on welfare programs, whom society has traditionally viewed as morally suspect. Lastly, there is a largely unrecognized tension between the cultural benefits that accompany recognition and the distributive injustice that can result from that recognition. There are important trade-offs to consider between, on the one hand, the cultural benefits to cohabiting partners, for example, who might automatically qualify, under some proposals, for having their relationships legally recognized after living together for a certain period of time and the financial harms that might accompany that recognition.

At the end of the day, Aloni grapples with a problem that family law scholars have not been sufficiently cognizant of: the problem of over-recognition. The field has been so focused on the harms caused by the lack of recognition, that many scholars have assumed that recognition is an unmitigated good. Aloni in this article compellingly invites us to think otherwise.

Cite as: Carlos Ball, Recognition Without Consent, JOTWELL (July 25, 2014) (reviewing Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276 (2014)),