Jul 3, 2025 Eliot Tracz
It’s rare that an article comes along with the potential to reshape how an entire area of law is litigated. This is particularly true for articles addressing discrimination against the LGBTQ community. Katie Eyer authored such a piece, which influenced the outcome in Bostock v. Clayton County. Now, Zee Scout, in her article Trans Erasure, Intersex Manipulation: The First Amendment and Other Reflections from Women in Struggle v. Bain, has written just such a work, which promises to impact how anti-trans legislation is litigated.
Scout’s article addresses the onslaught of state legislation targeting what she refers to as transgender, gender nonconforming, intersex, and queer (TGNCI) people. While the Equal Protection Clause has long been the tool of choice to advance TGNCI rights, federal courts have begun rolling back progress. This rollback, according to Scout, is premised on the “real differences” doctrine, which argues that men and women have distinct biological characteristics which in turn permit certain types of distinctions in regulation. (P. 121.) As a result, states have been able to pass legislation as based on binary differences of reproductive anatomy (which of course erases intersex people entirely).
What Scout has done is respond to these types of laws with three arguments rooted in the First Amendment. Initially, she identifies several principles underlying Free Expression jurisprudence. The truth-discovery principle, embodied by Justice Holmes concept of the “market place of ideas,” posits that the best way to ascertain truth is through the free exchange of ideas. The second principle identified by Scout is the democratic process. This principal suggests that the First Amendment protects the formation of public opinion. The final principal is autonomy, which suggests that free speech allows us to define, develop, and express ourselves as individuals.
Using these three principles as a baseline, Scout offers two compelling First Amendment based arguments. The first is that anti-TGNCI legislation is a form of viewpoint discrimination. (P. 161.) It is well established that when the government chooses to propound certain messages over others, and, in the process, suppresses viewpoints it opposes, it chills speech. Scout argues that, in the context of anti-TGNCI legislation, the state uplifts a message that bathrooms, healthcare, and sports participation should be “organized exclusively around immutable birth sex.” In the process, the message promoted by the state erases TGNCI viewpoints regarding gender identity and access to sex-separated facilities and institutions. Scout further develops, in detail, those TGNCI viewpoints and places the argument in the context of Florida’s bathroom ban. The effect is an impactful and original application of the First Amendment to anti-TGNCI laws and really any anti-LGBTQ, legislation.
Scout also offers a second novel application of the First Amendment to anti-TGNCI legislation through the application of the Compelled Speech Doctrine. It is well understood that the First Amendment prohibits the government from compelling people to choose between compliance with the law and engaging in sincere expressive speech. Indeed, this principle was at the heart of 303 Creative LLC v. Elenis, a recent case viewed as a defeat for the LGBTQ community. The Compelled Speech doctrine has been used to stifle anti-discrimination laws, so it is fitting that Scout turns it into a tool to combat anti-TGNCI legislation by pointing out that such legislation forces TGNCI people to choose between violating their beliefs and potentially endangering their personal safety, or affirming their beliefs and risking punishment under the law. The result is that it is often the case that TGNCI individuals are forced to become bearers of the State’s message.
Of course, Scout has done her due diligence and addresses a number of counter arguments. There is not space here to address them in detail, but despite some strong arguments, Scout’s application of the First Amendment holds up well. Both of her arguments are worthy of application in the courts.
Zee Scout has given us a formula for a rekindled hope for equality. To be clear, the use of the First Amendment in LGBTQ rights cases is not new. Sometimes it has been wielded as a sword to strike at anti-LGBTQ policies, while at other times is has been used as a shield to protect private interests from having to accept LGBTQ people. What Scout has done is repurpose the First Amendment in a novel, compelling manner to breathe new life into the fight for TGNCI rights. Whether you are a scholar, a litigator, or simply an interested party, this article is worth a read or two. But once you’re done reading, it’s time to think about how to apply these arguments.
Jun 5, 2025 Maneesha Deckha
Although still perched on the periphery, scholarship asking how the law can remedy human harms against animals and other nonhuman life is proliferating. A foundational question is how legal systems can embed equality and justice as values that would apply across species and not simply among humans. A corollary is how to influence more humans to support a legal system that regards animals as beings or entities whose interests matter alongside humans’.
When fashioning dramatic reform like this, we may be tempted to focus on the present as we hope for a much less anthropocentric future. But it also helps to look to the past. Jesse Arsenault and Rosemary-Claire Collard’s Crimes Against Reproduction: Domesticating Life in the Animal Trials is instructive in this regard. It helps readers understand how the earliest instances of European human-animal legal regulation centuries ago can shed light today on the need to see the legal treatment of animals and marginalized humans as entwined, and anthropocentrism as an all-species gendered equality problem.
Distilling a rich array of scholarship about laws against bestiality, infanticide, and witchcraft between the 1200 to 1700s in France, the United Kingdom, and other western European countries, Arsenault and Collard offer a compelling, if provisional, analysis of how such laws cohere as a gendered interspecies triad. The authors argue that laws against bestiality, infanticide, and witchcraft (involving small animals known in folklore as “familiars”) not only helped produce a gendered reproductive ordering of human society, but also one of animal life that set the stage for the extractive capitalist economy that devastates so many beings today, humans included.
Arsenault and Collard unpack how these laws were not simply about how humans, particularly women, should behave in matters of sex, family, and intimate life, but also about how humans should relate to animals. The latter dimension, the authors note, is often overlooked when thinking about infanticide and the witch trials or even bestiality even though the animal trials have been compared to the witch trials. Adding to this literature, but taking the trials for all three categories as their focus, Arsenault and Collard innovatively suggest how the trials set expectations for human reproduction and social reproduction of the family. The authors also show how the law fostered a gendered worldview of human extractive domestication over animal bodies and animal life rather than conditions of interspecies care.
The article is invigorating in its scholarly breadth and navigation through multiple literatures. There are so many ideas assembled about how hierarchy was normalized through the reproductive orders the trials reinforced and a richness of critical feminist and animal studies insights about the multispecies lens needed to understand them more fully. For example, Arsenault and Collard analyze the trials to show how what the law thought about the innocence of animals in the trials is suffused with gendered expectations about humans. Their unique historical legal window and focus enrich existing feminist animal studies literature demonstrating the mutually constituted nature of species and gender ideologies.
No less important is the illumination of Arsenault and Collard’s historical reading for our present planetary moment. While women enjoy formal legal equality in many countries, significant cultural and legal contestations continue to prevail regarding reproductive norms, both biological and social. And, remarkably, centuries onwards from the fifteenth-century bestiality prohibitions, animals continue as property in Europe and every other country where imperial projects amplified the common law and civil law Enlightenment worldviews of animals as commodities. As well, the legal subjectivity ascribed to animals in the trials, however performative given the overwhelmingly brutal outcome for the animals involved, has long since been eliminated.
In fact, we cannot easily dismiss the striking argument that the legal plight of animals has more or less stagnated since the time of animal trials nor the perspective that this is due to the feminization of animals, particularly the tens of billions of land and ocean-based farmed animals whose domesticated reproduction lie at the heart of our social order. Consider also that we have reinforced the civilization veneer of humane animal use through lax anti-cruelty laws even as staggering amounts of these and other animals suffer enormously in captivity. Or consider that we ascribe no legal agency to animals today despite the exponential rise of scientific knowledge regarding the thoughtfulness of so many species and the decisions and choices they make in leading their lives.
In 2025, there is no doubting the need to connect the concept of “reproductive order” to one that arrests the cycle of intensive animal reproduction at the heart of the harm-ridden global food system, a point the authors highlight in their concluding remarks. (P. 35.) With Crimes Against Reproduction, we are indeed reminded of the incompleteness and impoverished impact of our equality and justice analyses when animals and nonhuman beings are excluded. But, as the authors also hopefully note, we are also reminded that how we look at animals can change and “that there are other possible ways of relating to animal life than capital’s totalizing mastery allows” (P. 36.)
Mar 19, 2025 Ann E. Tweedy
In Flattening Breast Cancer by Removing the Breasts: Protecting a Woman’s Right to Choose Reconstruction of an Aesthetic Flat Chest After a Mastectomy, Amelia Landenberger centers the experiences of women who carry a genetic predisposition for breast cancer (namely the BRCA1 gene). The article argues that these women should have the option of aesthetic flat chest reconstruction, along with other breast reconstruction options. To vindicate this option as a legal right, Landenberger argues for a broad interpretation of the Women’s Health and Cancer Rights Act of 1998 (WHCRA). The WHCRA is an under-researched federal statute that prevents insurance companies from denying coverage for breast reconstruction after mastectomies. Landenberger maintains it should be read to require coverage for aesthetic flat chest reconstruction when preferred by a patient. Landeberger’s article contributes to the sphere of equality scholarship by centering the experiences of a little-understood group—those who carry the BRAC1 gene—and by bringing to light a little-understood problem, namely difficulty accessing aesthetic flat chest reconstruction.
Landenberger’s article is illuminating in several important respects. First, Landenberger centers the experiences of high-risk women, who are termed “previvors,” for a practical reason, namely because, when they choose mastectomies as a preventative measure, such women have a full-range of options available for reconstruction (whereas the reconstruction options of some breast cancer patients may be more limited). (Pp. 1201-02.) Nonetheless, this approach is a powerful one. Landenberger explains the astronomical risks that these previvors have of becoming afflicted with breast cancer—a 55% to 72% chance, and she further describes the liminal space that such women occupy—the space between sickness and wellness. She also relates that, for many such women, breast cancer is “not merely a hypothetical future,” but it is also “a part of their past,” as many have lost mothers, grandmothers, and/or aunts to breast cancer. (P. 1204.)
Landenberger also includes powerful testimony from previvors throughout the article. Taylor Harris, one previvor quoted in the article, describes her conflicted feelings and grief after having undergone a preventative mastectomy: “I’m looking for space, as a previvor, to mourn. A space where I can stop and consider that my scars are signs of relief but also collateral damage from a choice I made. I am fortunate and disappointed, indebted and sad.” (P. 1205.)
I am a two-time breast cancer survivor myself and therefore know a great deal (too much, in fact) about the experience of being faced with various harsh treatment options and of the challenges of going through treatment. I also have friends and colleagues who have a genetic predisposition for breast cancer. Nonetheless, Landenberger’s depiction of the experiences of previvors opened up a whole new world of experience and understanding to me.
Landenberger’s legal argument is that patients receiving breast reconstruction should be informed of the option of aesthetic flat chest reconstruction and that insurance companies should be required to cover the procedure under the WHCRA. WHCRA is light on definitions, and Landenberger creatively mines criminal law for authority that flat chests are also considered breasts and, therefore, that flat chest reconstruction should be understood as breast reconstruction for purposes of the WHCRA. Landenberger importantly explains that reconstruction is needed to achieve a flat chest. (P. 1220.) Previously, I had assumed that a flat chest would result if a patient simply opted out of reconstruction, not knowing that reconstruction is required to achieve that result and that there is this grey area relating to coverage for this procedure under the WHCRA.
Another important contribution that Landenberger’s article makes is its elucidation of the difficulties that many previvors and breast cancer patients face in accessing aesthetic flat closure. As she explains, often patients are not told it is an option and they may face pushback when they request it based on their own research. She posits that these reactions and omissions are due to many surgeons not knowing how to create such a result in some cases and, in other cases, to stereotypes about what women should look like or want, as well as paternalism. I found this aspect of the article extremely insightful. When undergoing breast cancer treatment and reconstruction myself, especially the first time, I often experienced paternalistic attitudes from doctors, which I have written about (although I was one of the lucky patients Landenberger describes who can afford to see a variety of doctors before choosing one (P. 1232), so I ultimately ended up with great doctors). Therefore, I was all too familiar with the fact that breast cancer patients frequently have difficulty having their wishes regarding treatment and reconstruction heard and acknowledged. As one doctor Landenberg quotes explains, “‘What it feels like to the woman has been a kind of blind spot in breast surgery.’” (P. 1222.) It had not occurred to me that these difficulties extend to, and even appear to be exacerbated for, women who choose aesthetic flat closure after mastectomies.
In short, the article does an excellent job of bringing several little-known issues relating to WHCRA and breast cancer treatment to the forefront.
Feb 7, 2025 Doron Dorfman
Healthcare settings have long been sites where minoritized patients have needed to fight to receive adequate quality of care. The recent debates about physicians not wearing masks in hospitals and clinics to protect immunocompromised and vulnerable patients is only the latest example of systemic failures allowing such health-related injustices to appear.
For decades, legal scholars have been discussing the promise and shortcomings of tort law as an avenue to bring about social change and promote equality. In her important and novel article Biased but Reasonable, Maytal Gilboa discusses how one avenue to address health-related injustices—using tort law, specifically medical malpractice (professional negligence)—fails Black patients.
Gilboa starts her article by discussing “diminishing stereotypes” among physicians. Those stereotypes make physicians second-guess the symptoms of minoritized patients and lead them to choose less intensive (or less effective treatment) for those patients compared to White patients. Gilboa extensively discusses one type of such diminishing stereotype attributing higher tolerance of pain to Black patients, a topic she also covered in a previous article cleverly titled The Color of Pain.
In that area, Gilboa is in conversation with other legal scholars researching racial serotypes affecting quality of care, notably Dayna Matthew Bowen, Ruqaiijah Yearby, Seema Mohaptra, Brietta Clark, Mary Crossley, and more recently Alice Abrokwa. Using critical race theory, these scholars attribute a bundle of stereotypes relating to Black people in the medical context —like that of resistance and noncompliance, incompetence in caring for oneself, and untrustworthiness—to the legacy of enslavement.
Gilboa impressively engages with significant social science research proving the existence of such racial bias in clinical decision making. Once specific study that stands out is an experiment in which physicians were randomly assigned identical medical files showing symptoms of acute coronary syndrome with a photo of either a Black or White patient. The study found disparities in the rates of recommending blood thinner medications to treat the symptoms: showing more likelihood of recommending the treatment to White over Black patients. Gilboa then analyzes how current legal structures allow for these stereotypes to flourish in healthcare settings or at least do not assist in addressing them through the litigation.
Gilboa persuasively claims that current malpractice doctrine fails to provide adequate redress for patients harmed by care affected by implicit bias, specifically diminishing stereotypes. This is because the way professional duty is structured in tort law: a plaintiff needs to show that the physician’s chosen treatment fell outside the range of professional standard of care. This standard of care is measured with reference to “ordinary prudence and real-world practice” and allows physicians to select inferior treatments for minorities (specifically Black people) based on bias – creating what Gilboa terms a “biased but reasonable” barrier for recovery.
In other words, as long as the treatment the physician chose for a Black patient is within the spectrum of what is considered widely accepted standard of care (also known as “the multiple methods of treatment doctrine”), the fact that the choice of treatment was affected by stereotypes is immaterial for establishing malpractice. Gilboa therefore calls out the standard of care as a safe harbor for biased healthcare decisions (P. 515). As a law and economics scholar, she points out how this doctrinal loophole leads to underdeterrence and creates very little incentive (at least as far as civil liability goes) for reducing racial biases among healthcare professionals, “lead[ing] to the impression that tort law tolerates, and even validates, gross inequality” (P. 517).
In terms of identifying a solution to the problem of a biased treatment being considered reasonable, Gilboa offers a clever contribution. After arguing that as a normative matter biased treatment should never be considered reasonable (Pp. 524-26), she suggests harnessing the “loss of chance doctrine” to allow Black patients who can prove they received biased treatment to be able to recover at least partial redress for their resulting injuries. The compensation such plaintiffs could receive will be calculated in proportion to the likelihood that the physician’s wrongful behavior (choosing wrong treatment based on bias) contributed to the injury.
This is a valuable solution under most circumstances: where a plaintiff cannot establish by the preponderance of the evidence (likelihood of more than 50%) a but for causation between the bias and the injury. Thus, in a situation where the plaintiff can only prove that the chance that racial bias contributed to the physician’s choice of a less intensive treatment by 30% because of bias, the plaintiff will still be able to receive compensation for the diminution in their chance of recovering from their injury the physician’s biased treatment caused. Such a solution is justified from both a corrective justice perspective as well as from a deterrence perspective.
Gilboa’s work is as excellent as it is teachable. One can easily incorporate it into a 1L class discussions to show the connection between doctrine and systemic real-world problems including DEI issues. Indeed, my own torts students have benefited greatly from Gilboa’s work over the years and I hope many more across the country will soon do too.
Jan 15, 2025 Sheila Vélez Martínez
This article, written by four distinguished Latina legal scholars, provides an analysis of the unique challenges, achievements, and potential future for Latina law professors and educators in the United States. It is framed around the 2022 Graciela Olivárez Latinas in the Legal Academy Workshop (GO LILA), which brought together 74 Latina law professors to foster community, mentorship, and strategic growth.
Much has been discussed in higher education about the impending “demographic cliff”. The consensus view is that the United States will hit a peak of around 3.5 million high-school graduates sometime near 2025. As a result, the college-age population is expected to shrink across the next five to 10 years by as much as 15 percent. Furthermore, even as high school graduation rates have increased in recent years, the percentage of graduates who choose to enroll in college right after high school has been declining. Less attention has been given to an additional demographic challenge for law schools: no matter the size, the future pool of law school applicants will differ significantly from the current one, with a much higher proportion of students of color, first-generation college students, and individuals from low-income or lower socioeconomic backgrounds.
Between 2022 and 2023, the Latinx population accounted for close to 71% of the overall growth of the United States population. Between 1990 and 2020, Latinx enrollment in postsecondary programs increased by 372%—from 782,400 to 3.7 million students. It is expected to exceed 4.3 million students by 2026, far surpassing the growth rate of any other racial-ethnic group – by over 10%. Today one in every five students enrolled in college is Hispanic. Latinas are more likely than Latino men in the same age range to have a college degree.
According to the Law School Admission Council, law school applicant numbers were up almost 40 percent in the past year. Applications from Latinx students also increased by an approximate 8.5. While higher applicant and enrollment numbers are good news for Latinx students the number of legal degrees conferred to Latinx law students remains low at 12.4 percent . Latina women in particular struggle with representation in law school and are underrepresented. Though women outnumbered men for law school enrollment in 2022, roughly 40% of lawyers in the United States are women, and of that percentage less that 2% are Latinas. According to the authors, the shortage of Latinx lawyers across the nation mirrors the scarcity of Latinx in legal academia. Latina law professors represent a mere 1.6% of the legal academy, despite decades of initiatives to promote diversity. The authors also highlight that by early 2023, only 4 of the almost 200 deans of ABA-accredited law schools are Latina women. This is consistent with the challenges Latinas face to attain other higher education senior leadership roles.
Research has demonstrated consistently that enhancing Latinx representation among faculty is essential for boosting college completion rates and showing Latino college students that academic success can pave the way for achievements both within and beyond campus. Studies indicate that diversity among both students and faculty enriches the educational experience for everyone by offering varied perspectives, fostering cultural understanding, and supporting the retention and graduation of students of color. Latino and other faculty of color also play a vital role as role models and mentors, helping students of color advance in their academic journeys.
The Graciela Olivárez Latinas in the Legal Academy (“GO LILA”) Workshop is an annual event that, since 2022, has been organized to support and mentor Latinas in the legal academy and also those that aspire to enter it, lead and succeed. The workshop name honors Graciela Olivarez, who was the first Latina law professor in the United States. At the first workshop, they found that nearly half of the 74 workshop participants were the first Latina faculty member at their respective law schools. This also often means they are the only Latina or Latinx person in a tenure-track or tenured position, highlighting the continued isolation and lack of diversity in many law schools. Is this isolation that makes spaces like the GO LILA workshop so important.
As a Latina law professor that has for years participated in efforts to support the diversification of law school faculty, it is somewhat disheartening to see that this drought of Latina law professors has persisted despite efforts over the last few decades to diversify the legal academy. For example, initiatives like Latina and Latino Critical Legal Theory (LatCrit), SALT Junior Faculty Workshop and People of Color Legal Scholarship (POC) have sought to address this disparity, but structural barriers persist. LILAs face discrimination in the form of racism, sexism, and ethnic prejudice. They report experiencing microaggressions, stereotypes, and bias against their scholarship, which is sometimes dismissed or undervalued. The authors also highlight the many scholarly contributions of LILAs and the leadership roles they often assume at their institutions, even though those roles do not necessarily translate into senior leadership roles. Despite their qualifications, LILAs often face barriers to career advancement. Biases can be based on their cultural identity or their institution’s perceived reputation, and their intellectual contributions may be undermined by prejudiced assumptions about their expertise.
The authors are committed to continuing their efforts to expand the representation of LILAs. They highlight the importance of building pipelines for more Latina scholars to enter academia and assume leadership positions. Reflecting on the journey from the first Latina law professor in the U.S. in the early 1970s to the present day, the authors note significant progress, yet they acknowledge the ongoing challenges that remain. We are indebted to them for their collective efforts to showcase the powerful contributions of LILAs while emphasizing the need for continued advocacy, mentorship, and systemic change to ensure their future success and representation in the legal academy. Their growing influence reflects the promise of a more inclusive and diverse legal professi
Dec 4, 2024 Ezra Young
Sherry F. Colb & Michael C. Dorf,
Mandating Nature’s Course, 109
Cornell L. Rev. 101 (forthcoming 2024), available at
SSRN (Sept. 14, 2023).
In the October 2024 Term, the U.S. Supreme Court is poised to decide Skrmetti v. United States. At issue is whether trans healthcare bans which civilly prohibit and criminally punish provision of care, like Tennessee’s SB1, violate the Equal Protection Clause of the Fourteenth Amendment. Oral argument will be held today, December 4, 2024.
Shery Colb and Michael Dorf’s article, Mandating Nature’s Course, forthcoming in the Cornell Law Review, is a must read for anyone following Skrmetti as well as those more broadly interested in constitutional limits over government health power.
The genius of Colb and Dorf’s article is its observation that defenders of laws which severely restrict personal liberties recast these incursions as simply prohibiting interference with nature taking its course (NTIC) (P. 109). So construed, bans on abortion, trans healthcare, and euthanasia are cast as merely prohibiting wrongful acts against nature’s will. So conceptualized, NTIC arguments effectively mask that these laws impose affirmative obligations upon individuals.
Colb and Dorf accurately note that proponents of healthcare bans do not singularly rely upon NTIC arguments in litigation. But the authors convincingly argue that NTIC arguments figure so prominently in the promotion and defense of healthcare bans that they merit deeper consideration (P. 120). Taking trans healthcare bans as one example, these NTIC arguments operate on the pretense that sex assignment at birth is natural and immutable. On that premise, bans on trans healthcare are cast as common sense and apolitical government prohibition of medical interventions which, if pursued, would interfere with NTIC (Pp. 123–26). Similar arguments are front and center in constitutional challenges to abortion (Pp. 120–23) and euthanasia bans (Pp. 126–30).
Mandating Nature’s Course makes an important contribution to literature exploring the constitutional metes and bounds of government health power. For the last century, the Supreme Court has somewhat consistently recognized that government’s abstract interest in public health does not diminish an individual patient’s liberty interests in making her own treatment decisions. However, in the context of abortion as evidenced by Dobbs and euthanasia as reflected in Glucksberg and its progeny, appeals to nature short circuit what should be straight forward constitutional analysis. Appeals to nature—even those dubiously premised on pseudoscience—obfuscate the extent to which healthcare bans infringe upon bodily autonomy. So cast, patients’ protests of healthcare bans are conceived as futile umbrage at Nature, not constitutionally significant challenges to government overreach.
In a just world, Mandating Nature’s Course should give the Supreme Court pause. The Court’s solemn responsibility is supposed to be definitively determining what the law requires. But dubious appeals to nature, like NTIC arguments, have led the Court adrift from its appropriate role in safeguarding individual constitutional rights against government incursion. Rather than seriously inquiring as to whether government may ban certain healthcare when sought by certain persons, the Court has bent over backwards to legitimate restrictions on politically and morally contested treatments at the expense of doctrinal coherence.
If nothing else, Mandating Nature’s Course helpfully shines light on a long-overlooked frame by which the Supreme Court has side-stepped its constitutional duty in challenges to healthcare bans. As Colb and Dorf conclude, once we come to understand NTIC arguments for what they are—dubiously premised on the notion that letting NTIC is preferrable to intervention—we can at the least begin the hard work of assessing whether government has the power to coerce certain medical decisions in the first place (Pp. 144–50).
Oct 31, 2024 I. India Thusi
The Thirteenth Amendment provides, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Professor Adam Davidson examines the Thirteenth Amendment’s Except Clause in his article, Administrative Enslavement.
Recent attention to the harms of mass incarceration and mass criminalization has included scrutiny of the Except Clause with many critics concerned that it permits the enslavement of incarcerated people. However, Davidson’s critique is a little different than the more common, wholesale disavowal of this clause. Davidson examines how courts have interpreted this clause, critiquing their reimagination of forced labor as merely a prison administrative matter.
Davidson argues that through the ordinary processes of developing common law and passing legislation, judges and legislatures have reinterpreted this clause to allow prison administrators to assign incarcerated people to forced labor without the formality of treating slavery as a separate form of punishment. Davidson describes this phenomenon as administrative enslavement, “a constellation of judicial and legislative choices that places the punishment of enslavement outside the scope and processes of our traditional criminal punishment structure and into the hands of prison administrators.”
This interpretive shift from “slavery as punishment” for a crime to “slavery as an administrative matter” assigned by prison officials is significant for several reasons. Punishment requires specific substantive and procedural safeguards in its administration. Punishment should be based on facts that are proven beyond a reasonable doubt. Punishment should be proportional to the crime of conviction. Punishment should be properly explained to the defendant. Punishment should be announced in open court and be based upon the specific facts of the case. This is not the case for administrative matters.
Many of the safeguards that we require for punishment are nonexistent for matters that are conceptualized as administrative rather than punishment. Accordingly, by transforming the forced labor that incarcerated people engage in into an administrative rather than punitive category, courts and legislatures prevent incarcerated people from receiving the procedural protections that we require for punishment.
This development means that when a defendant is making a choice about whether to accept a plea, they do not have full information about the nature of their incarceration before them because the enslavement they might face is not punitive, according to courts and legislatures. Defendants might not be aware that their incarceration means that they will be risking their lives to prevent fires, or that they will be spending their time manufacturing products for various corporations for pennies on the dollars of profits that the businesses garner.
Defendants might not be aware that they will be engaging in labor for sums that are substantially lower than minimum wage, and in most cases, for compensation that is much less than even a dollar an hour. Defendants might accept a plea that requires a particular term of incarceration and lack of freedom, certain fines, or restitution, and limitations on their activities as determined by required probation or parole conditions; but courts generally do not inform defendants that they might also work for their term of incarceration.
The judge generally won’t inform defendants that specific facts, found beyond a reasonable doubt, mean that forced labor is suitable punishment in their case as would be the case for other forms of punishment. In fact, it’s usually not a judge that is sentencing the defendant to prison labor as “punishment for a crime.” It is usually a prison warden or other prison official who decides that such labor is suitable. This development contradicts the very language and intent behind the Thirteenth Amendment.
Davidson’s article is notable because this aspect of how the Except Clause has been interpreted by courts and legislatures has received relatively little criticism. The transformation of enslavement from punishment to administrative relies on a legal fiction concerned more about carceral convenience and administration than the general ban on enslavement otherwise reflected in the Thirteenth Amendment. This interpretation prioritizes the orderly administration of prisons over the moral compass of a society that otherwise prohibits slavery. Moreover, Davidson “shows that our current system of prison slavery is built on the sorts of mundane processes and decisions that seem small and unimportant individually but, in the aggregate, create a regime” that facilitates enslavement. Administrative Enslavement illustrates the ways that ordinary processes of lawmaking can produce extraordinary cases of injustice that should have no place in a civilized society.
Oct 15, 2024 Erez Aloni
In Andrew Sean Greer’s Pulitzer-winning novel Less, protagonist Arthur Less embarks on a global journey to avoid his younger ex-lover Freddie’s wedding. Through his adventures, Arthur grapples with his experiences as both the younger and older partner in age-gap relationships. This fictional journey resonates with the real-world dynamics explored in Tony Silva’s sociological study Daddies of a Different Kind: Sex and Romance Between Older and Younger Adult Gay Men. Silva examines these intergenerational relationships—especially common among same-sex male couples, who are more likely to have large age gaps than other types of pairings—and delves into the construction of the “daddy” identity, a role characterized by mentorship, age, and masculinity. His research offers a nuanced analysis of daddy-younger pairings, challenging stereotypes and revealing the emotional depth and cultural significance of these partnerships.
Silva’s research is built on the narratives of 39 men who identify as daddies and 26 younger men who were in relationships with age gaps of at least ten years. Importantly, all the interviewees were adults over 21, and the study exclusively focuses on relationships between adults. This distinction is crucial in avoiding harmful stereotypes, emphasizing instead the mutual emotional enrichment these partnerships often provide. Silva’s book seeks to answer several key questions: Why are gay men more open to such connections compared to heterosexuals or lesbian and bisexual women? What does it mean to be a “daddy,” including the forms of masculinity it involves? What is the quality of these relationships, and how do financial arrangements operate within these dynamics? Along the way, Silva addresses deeper themes such as LGBTQ+ culture, politics, nonmonogamy, and the fluid boundaries between friendship and kinship within the gay community.
The term “daddy,” as Silva explains, refers to “desirable older men, although not necessarily in a sugar daddy context, among both heterosexuals and gay and bisexual men” (P. 1). The men Silva interviewed characterize daddyness as involving three main characteristics: first, age and the stability it suggests; second, a dominant and leadership-oriented personality; and third, a mentoring role (P. 33). These characteristics align with the experiences of Arthur and his ex Freddie, who describe their relationships with older men as being shaped by mentorship and the wisdom that comes with age, reflecting the dynamics Silva uncovers. Interestingly, many of Silva’s interviewees had themselves been in age-gap relationships when they were younger, mirroring Arthur Less’s journey from being the younger partner to becoming the daddy.
One of the most compelling aspects of Silva’s work is its challenge to common misconceptions about age-gap relationships. Far from being exploitative or transactional, these bonds are often emotionally rich and involve deliberate efforts to prevent financial power imbalances from defining the partnership. For example, men in both the older and younger groups actively sought to keep finances from influencing their relationships (Pp. 48-56). While the daddies on average are wealthier and may occasionally cover expenses like dinners or vacations, the younger men often insist on maintaining their financial autonomy. Further, Silva argues that daddies play a crucial role in transmitting cultural knowledge within the gay community. These intergenerational relationships help younger men navigate the complexities of gay life, such as confronting homophobia, accessing LGBTQ+ spaces, and understanding the community’s history (Chapter 4, Pp. 92-123).
The book also provides fascinating insights into the evolving nature of masculinity for gay and bisexual men. Silva reveals that many older men in these relationships report experiencing a boost in their masculinity as they age, often tied to their roles as mentors and being desired by younger men (Chapter 5, Pp. 124-140). This finding contrasts with the more common narrative of aging as a detriment to sexual desirability and highlights the positive aspects of masculinity that these men embrace. Further, Silva provides a fresh perspective on masculinity that differs from the traditional construct of “breadwinner masculinity.” In doing so, the study contributes to the idea that masculinities are not static but develop over time, shaped by relationships, mentorship, and desire. The daddy identity thus allows older men to maintain and even enhance their sense of masculinity, while younger men often find freedom from traditional masculine expectations in these relationships (Chapter 5, Pp. 124-140).
An unexpected finding in Silva’s work is that many age-gap pairings do not resemble classic romantic partnerships. Instead, they take the form of emotionally intimate friendships, friends-with-benefits arrangements, or ongoing sexual relationships. This broader understanding of relationships and kinships within the queer community expands even the concept of “families of choice,” which has long been central to LGBTQ+ life (Chapter 6, Pp. 141-174). Silva’s interviews reveal a spectrum of connections that defy easy categorization, illustrating the fluid boundaries between friendship, mentorship, and romantic involvement among gay and bisexual men. Unsurprisingly, many of the daddies Silva interviewed were in nonmonogamous long-term relationships alongside their connections with younger partners.
Silva’s research offers valuable insights for examining laws and policies concerning relationships among LGBTQ+ individuals as well as other relationships. One question that emerges for legal readers is whether and to what extent heteronormative-based laws are applicable to the LGBTQ+ community. For instance, how might laws designed to compensate for gendered contributions in heterosexual households apply to relationships between daddies and younger men, which often operate under different dynamics? Put differently, in laws that aim to compensate women for their unpaid contributions to the household, especially when children are involved, how should these laws apply in relationships with fundamentally different arrangements?
Although not discussed directly in the book, Silva’s study sheds light on the unique dynamics between gay men—encompassing norms, power, connections, and practices—which differ from those in conventional heterosexual relationships. This raises important questions about the suitability of laws, often designed with heterosexual frameworks in mind, for various aspects of relationships among gay men, such as regulations around sex work, consent, and public sex. The book also provides a stark illustration of how an aging population changes partnerships dynamics and preferences over time, suggesting a need for rethinking laws applicable to relationships among older adults.
Another intriguing aspect of Silva’s work is his exploration of why these age-gap relationships are particularly common among gay men. Rejecting the simplistic explanation of a limited dating pool (which fails to account for why similar patterns of significant age-gap relationships aren’t seen in lesbian and bi women’s relationships), Silva points to a broader trend of nontraditional pairing among gay men. This trend extends beyond age to include less assortative mating in terms of race and class. Unlike the more common practice of assortative mating—where people partner with those of similar background or status, often reinforcing social stratification by concentrating wealth and privilege—these diverse pairing patterns challenge such norms. The prevalence of age-gap relationships among gay men, therefore, represents not just a unique dating preference but potentially a more fluid and egalitarian approach to partnership formation.
In the wake of the marriage equality campaign, many—including myself—predicted that same-sex relationships would become more institutionalized and gender-conforming. This book proves that gay men remain pioneers in exploring nonconventional and egalitarian relationships, whether through a more equal division of unpaid domestic labor, less assortative mating, or nonmonogamy. The question now is how these qualities, which challenge traditional relationship structures, might be transferable to other forms of relationships or communities, encouraging more flexible and egalitarian partnerships across society.
Just as Arthur Less learns through his journey that love and connection often defy conventional categories—realizing that relationships are complex, unpredictable, and not bound by traditional norms—Daddies of a Different Kind reminds us that partnerships evolve, expand, and transcend societal expectations. Silva’s work not only illuminates the complexities of these intergenerational relationships but also challenges us to reconsider legal and social norms surrounding partnerships across all communities. Ultimately, both Greer’s novel and Silva’s study illustrate that love, mentorship, and companionship can take many forms, inspiring us to rethink which of our norms and laws truly protect the vulnerable, and which merely reinforce entrenched gendered assumptions.
Jul 22, 2024 Natsu Taylor Saito
In her very timely Imperialism and Black Dissent, Nina Farnia proposes that the jurisprudence of political speech and association is best explained not by abstract principles of constitutional law but by a context in which domestic movements intersect with the global projection of American political and military power. Using case studies from four phases of racial resistance in the United States—Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives—she disrupts the commonly accepted narrative that both First Amendment jurisprudence and the state’s targeting of particular ideologies are “colorblind” processes.
For Farnia, “[b]ecause domestic security in the United States necessarily involves the management and suppression of racialized rebellion and radical dissent, national security ideology and the First Amendment cannot be decoupled.” (P. 403, emphasis added.) What’s interesting here is not the fraught relationship between individual rights and collective security—we’ve circled that rock often enough since 9/11—but Farnia’s thoughtful and detailed discussion of the interplay of ideological and racial repression.
Received history tends to portray American communism from the 1920s through the 1950s as a movement of Euroamericans, particularly recent immigrants; one that is separate and distinct from struggles for Black liberation. This leads to the perception that the state’s unconstrained attacks on “communist” ideology and on association with groups allegedly advocating the violent overthrow of the U.S. government are not forms of racial subordination. Instead, we are assured that because struggles for racial equality focus on civil and political rights, they have been protected by the Constitution. “Remembrance,” however, “is also ‘a form of forgetting, and ‘the dominant narrative of the civil rights movement…distorts and suppresses as much as it reveals.’” (P. 428, quoting historian Jacquelyn Down Hall.) Farnia challenges the notion that Black activists have prioritized civil and political rights over economic and social justice. She contests the framing of Black radicalism solely in terms of nationalism and incorporates Black communists into a history of resistance that has consistently prioritized economic wellbeing as well as racial equality—and has been met, just as consistently, with intense violence.
Imperialism and Black Dissent illustrates that jurisprudence, too, is a form of forgetting. By including the stories of Black Marxists like Claudia Jones, Paul Robeson, and W.E.B. DuBois—prosecuted, deported, exiled, or otherwise silenced because of their opinions and associations—in the evolution of First Amendment caselaw, Farnia exposes silent spaces in commonly accepted narratives of the struggles for racial equality. Fresh insights emerge from this contextualization. Some concern the history at issue. Thus, Farnia reminds us that the Civil Rights Movement emerged in a period when there were virtually no constraints on the government’s repression of communists, or those it claimed were communists, purportedly because they advocated overthrowing the U.S. government by force and violence. Intriguingly, she argues that this contributed to civil rights leaders’ insistence that their movement be nonviolent, even in the face of intense state (and private) violence. Other insights emerge from Farnia’s examination of relevant Supreme Court cases where, for example, she argues that the assessment of First Amendment protections under equality principles initially appeared promising but ultimately meant only that “the colorblindness that emerged in”—and one might say eviscerated—“equal-protection jurisprudence came to be applied to the First Amendment.” (P. 463.)
Moving from Dr. King’s Poor People’s Campaign to the Black Panther Party’s breakfast program and the “anticapitalist and anti-imperialist demands” of the Movement for Black Lives (P. 449), Farnia turns to policies implemented by the Trump and Biden administrations. For example, she notes that, under Biden, the Justice Department has continued to prosecute some 350 racial justice advocates charged by Trump administration with violations of the 1968 Civil Obedience Act. (P. 454-55.) Her analysis yields important insights into how the tactics employed by state authorities to eliminate “foreign” threats—which are largely exempted from constitutional scrutiny—have been used to quash Black dissent. Thus, she points out how in 2017, under Trump, the FBI implemented a domestic terrorism program targeting what it termed “Black Identity Extremists,” conflating race and ideology to claim that “perceptions of police brutality” were endangering law enforcement officers. (P. 451.) And Farnia is equally clear that while the Biden Administration’s 2021 National Strategy for Countering Domestic Terrorism identifies white nationalism as a significant threat, its proposals will have a particularly strong impact on Black activists, as it expands the militarized repression of those it describes as “‘violently oppose[d to] all forms of capitalism, corporate globalization, and governing institutions.’” (P. 451.)
Taken as a whole, this piece sheds light on the intertwining of “race” and “national security,” a construction that conflates ideology and identity to allow the state to slip from one to the other, as convenient, in its quest to protect the status quo. This is the dynamic that so often renders hollow the promises of the First Amendment which, upon close examination, turn out to be almost entirely content- and context-dependent. Peppered with well-researched background facts and illustrative examples, Imperialism and Black Dissent prompts us to consider anew how to respond when First Amendment protections depend on the content of one’s speech, the ideology of one’s associates, and/or the ways one is racialized. These are questions that take on increased urgency in 2024, as students occupy college and university campuses to protest the asymmetric war in Gaza, militarized police forces are deployed to restore “order,” and it’s no longer clear what, if anything, academic freedom means.
Imperialism and Black Dissent is an ambitious project, deserving of book-length treatment. But that is the beauty of synthetic work, work that weaves disparate chunks of knowledge and perception together in ways that profoundly shift our understanding of both the parts and the whole. Farnia’s contribution feels like a gust of fresh air, prompting us to re-examine the familiar, to identify the drivers of ideological and racial repression, and to breathe new life into ideals that have, thus far, failed too many of us.
May 21, 2024 Maneesha Deckha
Equality and patent law may seem to make strange bedfellows. Convincing analyses exist though of how legal definitions related to science and innovation and patents themselves have fostered domestic inequalities as well as global health disparities. Concerns about the intra-human inequities that patent law produces are pressing ones. Still, in remaining anthropocentrically-bound by presuming that only humans can be inventors, these concerns miss the full scope of patent law’s inequality quotient. Laura A. Foster’s recent article Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life refreshingly takes up the inventive capacity of plants themselves as knowledge producers.
Foster seeks to correct her own human-focused examination of patent law’s role in elevating Western science at the expense of Indigenous knowledges in her 2017 book Reinventing Hoodia: Peoples, Plants and Patents in South Africa. With her 2023 article Plants as Inventors, Foster brings attention to plants, and patent law’s role in subordinating them, through telling stories about plants that pivot on the “binary logic of human exceptionalism” (P. 228). The article provides an engaging and instructive analysis inspired by what Foster terms “a vegetal feminist approach” (P. 229).
The first part of Foster’s thesis—“how the law draws upon and reinforces the view that humans are superior to and more worthy than other creatures and forces in nature” (P. 229)—is not new. Many animal rights scholars, for example, have already established the legal anthropocentrism which the legal liberal subject has normalized.
But Foster extends the remit of this insight into patent law by demonstrating how plants innovate and produce knowledge, situating her analysis in an intersectional understanding of patent law. She argues that human exceptionalism, harbouring “residues of colonial pasts” (P. 230), ultimately “obscures an understanding of plants as complex and lively beings that pervade the law” (P. 229). Foster draws upon recent attention to the sentient life of plants in the humanities, hoping “to shift conceptions of the liberal legal subject that undergird the law” (P. 229) and “imagine new ways of understanding and acting toward plant worlds” (P. 230).
The article compellingly shows that plants can qualify as inventors under a re-imagined patent law and in a manner equal to human groups in producing valuable knowledge and materials about and in themselves. The analysis is concise yet rich and accessible to those that know nothing about plants, patents, or feminist or postcolonial analysis, or who may have never heard the term “human exceptionalism” let alone questioned it. Foster leads the reader through helpful summary accounts of all these themes and concepts and adeptly ties them together.
She begins by noting how “legal reasoning and its conception of reason as the highest order of thought by which the truth can be determined,” along with its emphasis on “humans as rational subjects” (P. 230), sets up a human-plant binary. She provides background to how this human exceptionalism is related to intrahuman hierarchies, unpacking the gendered and racialized premises of legal protection for intellectual scientific labour and “associations of inventorship with the rational mind” (P. 231).
She then connects this colonial history to the rise of patent law and its framing of laws as “inert” and “passive” (P. 231), instead of as “creative and inventive beings” (P. 232). Foster explains the influence of the scientific method, Christianity, and taxonomic classification in creating “hierarchical understandings of life” (P. 232), and she valuably blends feminist, anti-colonial, and critical plant studies perspectives to distill the development of patent law and its importance to the growth of the British Empire and its dismissal of plants as mere economic resources. She also explains how the legal treatment of plants carried imperial and gendered significance.
Foster then moves to analyzing contemporary patent doctrine that frames plants as resources for humans. Foster discusses alternatives to this framing, evaluating recent accounts of how best to affirm “plant intelligence” and wondering whether some of these carry problematic pro-capitalist connotations. As a better option to affirm the inventive capacity of plants, she highlights accounts that emphasize that plants are aware of their surroundings and relations with others and that they change dynamically to adjust to changes in their surroundings and relations.
Foster further notes how plants “recognize plant stems, seeds, molecules, sensations and touch as ways of knowing…” (P. 238). She concludes that, resultingly, it does make sense in patent law to consider plants as inventive and creative just as humans are, whether we consider the standards of modern science or traditional Indigenous knowledge to be models for rewarding innovation.
Thoughtful accounts like Foster’s that ask us to imagine new legal possibilities for nonhuman life —here, of pluralizing our definitions of knowledge producers and intelligence — are important to help law catch up to social realities even where resistance runs deep. Some years ago the prospect of a macaque claiming copyright in selfies he took with camera equipment deliberately left in his Indonesian jungle environment resulted in a lawsuit that drew international attention. Adopting the human exceptionalist precedent to the effect that animals cannot claim copyright in their own creations, the trial court kept the monkey in the legal realm of what can be owned rather than who can be an (intellectual property) owner.
That position has still not changed. However, we do see a rising number of courts taking issue with law’s anthropocentric baseline, inspired to consider the justice claims of the nonhumans who inhabit our planet and citing from the plentiful socio-legal and other scholarship now advocating for rights for animals and rivers and generally questioning human exceptionalism and the wisdom of the paradigmatic liberal legal subject.
Similar developments for individual plants may seem a long way off. That is precisely why astute and crisply explained contributions like Foster’s are to be welcomed and read. They augment scholarly discourse that equality and justice are interspecies matters, too, and ask us to reimagine how human laws can be directed toward much more accountable interspecies relations.
Cite as: Maneesha Deckha,
Planting Equality, JOTWELL
(May 21, 2024) (reviewing Laura A. Foster,
Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life, 10
J. Narrative Culture 226 (2023)),
https://equality.jotwell.com/planting-equality/.
