• February 9, 2012
    Intersexuality and the Law
    Why Sex Matters
    Julie A. Greenberg

    By Julie A. Greenberg, a professor at Thomas Jefferson School of Law

    The term "intersex" evokes diverse images, typically of people who are both male and female or neither male nor female. Neither vision is accurate. The millions of people with an intersex condition, or a DSD (difference of sex development), are men and women whose sex chromosomes, gonads, or sex anatomy do not fit clearly into the male/female binary norm. Until recently, intersex conditions were shrouded in shame and secrecy; many adults were unaware that they had been born with an intersex condition and those who did know were advised to hide the truth. Current medical protocols and societal treatment of people with a DSD are based on false stereotypes about sex, gender, sexual orientation, gender identity, and disability, which create unique challenges to framing effective legal claims and building a strong cohesive movement. (For some of my earlier work on this topic, see

    Intersexuality and the Law: Why Sex Matters examines the role that legal institutions can play in protecting the rights of people with a DSD. The first part of the book explains the sex, gender, and disability assumptions underlying the current medical protocol for the treatment of infants born with an intersex condition. Although most intersex conditions are not disabling, pose no physical risk, and require no medical intervention, infants with these conditions often are subjected to invasive cosmetic surgeries to alter their genitalia so that their bodies conform to a binary sex norm. These surgeries provide no medical benefit and have not been proven to enhance the child’s psychological well-being, but they can lead to a number of problems. They can render women incapable of experiencing an orgasm. They may also result in infection, scarring, incontinence, and other severe physical complications and emotional trauma.

    The major goal of the intersex movement is to challenge these medical practices. In addition, the intersex movement is also concerned that people with an intersex condition whose gender identity does not match the sex assigned to them at birth will face the same legal obstacles confronting transgender people. Sometimes, government authorities refuse to recognize their self-identified gender as their legal sex for purposes of marriage, identity documents, and appropriate housing and restroom use.

  • February 2, 2012
    Richard Thompson Ford
    Rights Gone Wrong
    How Law Corrupts the Struggle for Equality

    By Richard Thompson Ford, George E. Osborne Professor of Law at Stanford University

    Since the 1960s, the ideas developed during the civil rights movement have dominated American thinking about social justice. Courts and governmental agencies enforce legal prohibitions against discrimination; private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: we aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.

    When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. For instance, in the context of race, they stem from segregation — a legacy of past racism but not by and large the result of ongoing discrimination — and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. In my new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, I show that civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.

    Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard over 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.

  • January 26, 2012
    Corporations Are Not People
    Why They Have More Rights Than You Do and What You Can Do About It
    Jeffrey D. Clements

    By Jeffrey D. Clements, the co-founder and general counsel of Free Speech for People and founder of Clements Law Office, LLC. Clements is author of the new book Corporations Are Not People, which explores the disastrous impact of the Citizens United opinion on democracy and proposes a constitutional amendment to restore government to the people.

    As the nation increasingly embraces the constitutional amendment solution to Citizens United v. FEC, a new proposition regarding so-called “corporate personhood” is emerging. It’s a proposition, which the notorious Citizens United decision actually had nothing to do with.

    Last week, for example, my friend Kent Greenfield cast a skeptical eye, in an op-ed for The Washington Post, on the “anti-corporate activists” who support a constitutional amendment to reverse Citizens United. (My own view competed the next day in a Boston Globe op-edwith Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)

    As an initial matter, no one should assume that the 79 percent of Americans who favor a constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1,000 business leaders have called for a constitutional Amendment, as have legal scholars, lawyers, former state attorneys general, serving attorneys generals, dozens of cities and town representative bodies and millions of Americans.

    The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.

    Professor Greenfield argues that the Supreme Court in Citizens United got “the result” wrong but at least it asked “the right question.”  No, the Court got the result wrong because the Court asked the wrong question. The actual question before the Court in Citizens United should have been the question posed by a challenge to the corporate regulation component of the federal Bipartisan Campaign Reform Act (BCRA) – Can Congress create different election spending rules for human beings than for corporations?

  • January 19, 2012
    Creation without Restraint
    Promoting Liberty and Rivalry in Innovation
    Christina Bohannan and Herbert Hovenkamp

    By Christina Bohannan and Herbert Hovenkamp, law professors at The University of Iowa College of Law

    Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of high technology markets. Interconnection requirements, technological compatibility requirements, standard setting, and the relationship between durable products and aftermarket parts and supplies all involve interconnection, or “tying.” But views about the practice tend toward two extremes. Some see tying as inherently anticompetitive, while others view it as unexceptionally benign. In fact, bundling products or technologies is essential in high technology markets and most of it is socially beneficial, but some possibilities of abuse nevertheless remain. 

    Identifying good substantive legal rules for facilitating innovation is often very difficult. Two generations ago antitrust law addressed problems of complexity by shifting the focus to harm. The courts reasoned that they could often avoid unmanageable substantive doctrine by considering whether the plaintiff had suffered the appropriate kind of injury. Plaintiffs who are injured by more rather than less competition should be denied a remedy. In the case of patent and copyright law, the appropriate question is whether an infringer’s conduct served to undermine the right holder’s incentive to innovate, with incentives measured from before the innovation occurred. Some IP infringements do no harm to the incentive to innovate; others actually make the right more rather than less valuable. In these situations relief should be denied without inquiry into the merits of the infringement case.

    Patent and copyright law are both in crisis today – major problems include overissuance, overly broad and ambiguously defined protections, and rules that permit both patentees and copyright holders to make broad claims on unforeseen innovations that lie in the future. The result has been that many patents are valueless, while others have very considerable value precisely because they enclose ideas or technologies that rightfully belong in the public domain. Patent law could be greatly improved if inventions were tied to real, nonobvious technology actually in the patentee’s possession at the time its application was filed, and if patentees were obliged to give comprehensible and timely notice of their inventions. Copyright law would be greatly improved by an aggressive theory of harm that reduces the scope of the derivative works right and increases the scope of fair use. In Eldred the Supreme Court suggested that the First Amendment should not be an important copyright infringement defense because the Constitution’s IP clause and the initial copyright act were passed “close in time,” leading to an inference that Congress must have considered these concerns. But the original copyright act bears little resemblance to the expansive coverage granted by the current Act, passed almost two centuries later.

  • January 5, 2012
    The Odd Clauses
    Understanding the Constitution Through Ten of Its Most Curious Provisions
    Jay Wexler

    By Jay Wexler, a law professor at Boston University School of Law.

    When I first sat down to write The Odd Clauses — my new book about ten of the Constitution’s lesser known but still-pretty-important provisions — probably the hardest question I faced was which clauses to include. This, in turn, forced me to confront the question of what makes an odd clause odd? Are the oddest clauses those that nobody has ever heard of? Those that are historically anachronistic? Those that seem to deal with topics — post roads, perhaps? — that seem somehow beneath the dignity of a constitution?

    In the end, after many late-night boozy breathless conversations about the meaning of constitutional oddness (not really), I decided that, for me, what makes a clause odd is its specificity. The clauses that I find oddly compelling are those — like the Incompatibility Clause, which prohibits members of Congress from simultaneously holding executive office, or the Letters of Marque Clause, which gives Congress the power to authorize private ships to fight pirates on the government’s behalf  —that perform or illustrate key constitutional functions or values (separation of powers, for instance, or allocating power over foreign affairs) in very specific, and therefore (to me, anyway), quirky and odd ways.

    Under this definition, the Recess Appointments Clause of Article II, Section 2 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”) qualifies as odd, and I therefore included it as the subject of Chapter Three of my book (illustrating presidential powers). But at the same time, I realized that in many other ways the clause is not all that odd — people have generally heard about it, and it’s played an important role historically — and so it was no surprise that of all the clauses I discuss in the book, the Recess Appointments Clause is the first to make front page news. (By contrast, the notion that Senator Scott Brown might be violating the Incompatibility Clause by remaining in the National Guard has made front page news only in my own head.)

    For the past month or so, speculation ran rampant as to whether President Obama would use his recess appointment power to appoint Richard Cordray as the first head of the newly created Consumer Financial Protection Bureau. Republicans refused to confirm Cordray unless major changes to the law creating the new agency that are unappealing to the President were implemented, and so a recess appointment had been the President’s only option. To stop the President from taking this step, Republican senators decided to hold pro-forma sessions every three days since leaving for the holidays (Democrats, incidentally, did a similar thing at the end of the Bush Administration), relying on past governmental pronouncements that in order to qualify as a “recess,” the Senate must be on break for at least three days. 

    Originally, some speculated that President Obama might appoint Cordray during the imaginary moment on January 3 when the previous session of Congress ended and the new one began, following the example of Teddy Roosevelt, who pulled such a maneuver (to much criticism) back in 1903. Instead, Obama waited until January 4, when he exercised his more typical recess appointment power to install Cordray as the head of the new agency without Senate approval, on the theory that the Republicans’ pro-forma sessions do not render what otherwise would be a recess a recess, for purposes of the Constitution.

    Republicans are, of course, up in arms, threatening to challenge the President’s exercise of power in court. It is likely that a court — maybe even the Supreme Court — will one day weigh in on whether the President exceeded his power under the Recess Appointments Clause. Do pro-forma meetings count as real Senate sessions?