Libby S. Adler

A short essay on the baring of breasts

Libby Adler — Sat, 28 Jan 2012 08:25:15 PST

This brief essay strings together case law, literary material and pop culture all on the subject of women baring their breasts. By changing the angle on each incidence of breast baring, it demonstrates how the act of baring is amenable to multiple readings, all of which can be returned to enrich a relevant legal analysis.

T: appending transgender equal rights to gay, lesbian and bisexual equal rights

Libby Adler — Sat, 28 Jan 2012 08:25:14 PST

Advocates for transgender constituencies are making crucial choices right now about what kind of reformist tracks to lay for themselves. The appending of “T” to “LGB” suggests the likelihood of following in the steps of the mainstream advocates for the sexuality constituencies, one characterized by a quest for formal equality based on an assumed identity. This paper urges that transgender advocates consider fully the costs of this course before charging headlong in a direction that might at first hold obvious appeal. Such a course has had under-recognized costs for the sexuality-based constituencies and costs for transgender constituencies are already beginning to accrue. Assertions of equal rights are already inciting assertions of competing rights by anti-trans forces, just as they have in the gay and lesbian context. Moreover, even legal victories on behalf of identity groups taken as a given can have undesirable effects, such as the defining of identity categories in such a way as to cause divisiveness under a previously large umbrella.

Finally, equal rights work, as the same-sex marriage campaign illustrates rather extravagantly, has the potential to produce myopia to reformist possibilities that do not occur in an equality register. Some advocates have been pursuing a redistributive agenda on behalf of persons living on the gender margins, digging deeply into bureaucratic regimes that subtly distribute benefits, safety and other crucial resources. This paper advocates careful consideration of those kinds of less reflexive options.

An essay on the production of youth prostitution

Libby Adler — Sat, 28 Jan 2012 08:25:11 PST

Youth prostitution is more multidimensional than one might guess from its most typical depictions. This essay is designed to raise the profile of some of its less prominent aspects – aspects which are not unknown exactly, but which are under-recognized and generally ignored in the context of legal analysis. Many of the most challenging dimensions of youth prostitution are eclipsed by an ideology which fails to grapple with the complexity of youth agency and the consequent position of youth in law. The result is that some kids are left inadequately served and others are utterly unknowable. My principal aim in this essay is to illuminate some gaps in the prevailing conception of youth prostitution and bring some different tools to bear on youth prostitution as a legal problem. The essay will view the matter from an angle not of criminal law in which offenders must be identified but of private law in which economic choices are made against identifiable background conditions.

The gay agenda

Libby Adler — Fri, 27 Jan 2012 10:49:42 PST

The Gay Agenda argues that the current gay rights agenda has been overly determined by the culture war and calls for a deliberate step outside of culture war discourse in order to see law reform possibilities that have largely been obscured. When anti-gay forces speak in terms of traditional family values, the paper observes, pro-gay rejoinders tend to come in the form of rights claims accompanied by rhetorical efforts to depict the gay family as morally indistinct from an idealized version of the heterosexual family (i.e., monogamous, bourgeois, and more about love than sex). These dual strategies of rights - especially equality - and normalization have serious costs that have gone under-recognized by the architects of the contemporary gay rights movement. Much of the paper is dedicated to illuminating those costs. The remainder of the paper proposes concrete possibilities for reconstructing a law reform agenda. This part draws on the insights of American Legal Realism, Critical Legal Theory and Queer Theory, which have something real and valuable to offer the gay rights movement - if what participants in that movement want is to combat sexual moralism and to ameliorate the full range of hardships faced by persons associated with marginal sexual or gender identities or practices. The proposed agenda described in this part is less consumed with achieving formal equality between gay and straight people and more interested in using law to create the best possible conditions against which a broad array of people can make choices about how to organize their erotic and domestic lives.

Federalism and family

Libby Adler — Fri, 27 Jan 2012 07:41:22 PST

This article takes up the axiomatic place of family law under federalism. Family is often depicted as belonging squarely in the state law domain, reflecting its nature as a matter of moral deliberation, rather than of, say, commerce or constitutional rights. This article demonstrates, however, that family law is a matter of federal law in an endless number of substantive areas, from immigration and taxation to privacy in the marital bedroom and the relative rights of putative and presumed fathers. It asks how the innumerable exceptions to the rule about family law’s place under federalism come to be rationalized. The answer, the article argues, has to do with the fact that the state-federal divide with respect to family maps onto the private-public divide that has long vexed feminists. The constant creation of exceptions to the general rule that family law is state law serve to preserve family’s allegedly moral character and obscure individualist dimensions of family.

Gay rights and lefts: rights critique and distributive analysis for real law reform

Libby Adler — Thu, 26 Jan 2012 07:04:22 PST

For the last decade and more, the law reform agenda on behalf of sexual minorities in the United States has been dominated by the same-sex marriage campaign and, to a lesser extent, the repeal of Don’t Ask/Don’t Tell. Gay rights advocates for both equality-seeking efforts, while locked in battle with culture warriors from the right, also have been subject to protest and criticism from the left for their powerful normalizing impulses and identitarian rights-orientation. Gay rights advocates nonetheless have persevered in their quest for equality, scarcely acknowledging the criticism from queer and other non-mainstreaming or dissident voices, perhaps unable to imagine what their law reform agenda would look like if they took the criticism seriously. The opening paper for this symposium will attempt to help law reformers imagine just that, by proposing a critical approach to agenda-setting for the benefit of persons marginalized by some facet of their sexuality and/or gender. The method begins with rights critique, reviewing some of the debate among different strands of critically-inclined leftists (crits, race crits, fem crits) over the promise and perils, and utility and disutility, of rights argumentation, reconsidering these insights in the advent of gay and trans law reform movements, as well as queer theory, and extracting the most pertinent blend of critical tools from these traditions. It will then turn not to reconstruction, in the sense of elaborating a new theory of emancipation, but to distributive analysis, making manifest the stakes of possible reform strategies — revealing not only their possible emancipatory promise, but also their costs, even for those constituencies with which gay rights advocates are concerned. The method will conclude in a decisionist posture, driving toward commitment to concrete law reform tasks — not because they promise total equality or emancipation in some other mode or are cost-free — but because we are willing to accept their costs as the price of the benefits we hope they will bring, eyes wide open to the fact that we cannot be sure.

Rage and critique: one Jewish girl’s story

Libby Adler — Wed, 25 Jan 2012 10:41:37 PST

This essay recounts an experience of researching, writing and teaching about restitution for the corporate use of slaves during the Third Reich. It is a tale of integration of deeply invested moral outrage and detached critical legal analysis.

California's Holocaust Victim Insurance Relief Act and American preemption doctrine

Libby Adler — Tue, 17 Jan 2012 07:03:14 PST

This article discusses the 2003 decision of the United States Supreme Court American Insurance Association v. Garamendi in which five members of the Court, led by Justice Souter, found that California's Holocaust Victim Insurance Relief Act of 1999 (HVIRA) "interferes with the National Government's conduct of foreign relations" and is therefore preempted. The article explains HVIRA and situates it in the larger context of contemporary efforts at restitution for wrongs associated with the Holocaust. It argues that the Court purported to find a conflict between federal and state law, but that the federal “law” with which state law “conflicted” was no law at all, but rather a federal preference for diplomacy to redress European corporate misdeeds rather than tougher remedial avenues that could wind up in a judicial forum. Justice Souter and the majority, the article argues, claim to have engaged in a chaste assessment of whether two laws conflict, but a close reading reveals the Court’s own policy preference for diplomacy and a distinct unease with California’s creation of favorable legal conditions for Holocaust victims and their heirs.

The future of sodomy

Libby Adler — Fri, 13 Jan 2012 06:08:28 PST

This article is based on a talk given at the plenary session on Lawrence v. Texas at the 2003 Lavender Law Conference held at Fordham Law School. It takes its cue from Justice Holmes that law is about prediction, and scours Lawrence for indications about sodomy’s future. Specifically, what in Lawrence might benefit sex? What in Lawrence might confirm or disrupt hetero- and homosexual identities? This article celebrates Lawrence as a victory, but cautions against ignoring a handful of danger signs for sexual practices and categories.

Just the facts: the perils of expert testimony and findings of fact in gay rights litigation

Libby Adler — Thu, 12 Jan 2012 08:02:46 PST

Judge Vaughn Walker made eighty separate factual findings in Perry v. Schwarzenegger, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs called experts who testified that gay people are virtually indistinguishable from straight people, arguing that “like things should be treated alike.” The plaintiffs also called witnesses, however, who depicted gay people as a discrete class, defined by a coherent and consistent set of distinguishing traits. Plaintiffs used expert testimony to demonstrate that gay people have a higher prevalence of depression, substance abuse and suicidality due to the stress of anti-gay discrimination. Plaintiffs also called experts, however, to substantiate the psychological fitness of gay people to maintain stable and satisfying relationships and raise well-adjusted children. The paper shows how pro-gay litigators and a sympathetic judge relied on contradictory images of gay people and imports a key insight from queer theory to illuminate the peril of such an unstable representation: None of these “facts” is logically tethered to the pro-gay cause. The paper also argues that expertise has a history of performing a depoliticizing function in law, one that can help to legitimate counter-majoritarian action. Rights perform a similar function. Both are to be distinguished sharply from politics, which is ordinarily reserved for legislative arenas. To justify a judicial intrusion into a state marriage law requires a discourse of neutrality, which both scientific expertise and constitutional rights argumentation provide. The two discourses converge in Perry to powerful legitimating effect, but they leave us with a highly unstable, internally riven gay subject. The importation of queer insights into legal analysis, especially insights regarding the chronic instability of the gay subject, can help us to understand the likely recurrent consequences of a law reform strategy focused on “equal rights,” especially in judicial settings, which elicit discourses such as expertise and rights precisely because they aspire to neutral legal correctness.