Estate Planning with Shaq and Strom: Teaching Post-Mortem Intimacy Audits

This Article highlights the importance of using both popular culture references and fictional show characters as mediums for teaching courses on Trusts and Estates. Utilizing post-mortem intimacy audits, specifically through pop culture pedagogical hypotheticals and case studies, Professor Davis highlights the importance of understanding doctrines within Trusts and Estates Law. Focusing on the examples of Shaquille O’Neal and Strom Thurmond, this Article highlights three important lessons for students: the fragility of estate planning, the effects of individual estate planning on groups’ broader wealth and political equality, and the role of private law in distributing legal rights and political equality

Erotic Entitlements Part I: A Reply to Sex Therapy in the Age of Viagra: Money Can’t Buy Me Love

An Essay is presented in response to Susan Stiritz and Susan Appleton\u27s essay Sex Therapy in the Age of Viagra: Money Can\u27t Buy Me Love. The author states that the paper of Stiritz and Appleton refers to the dangerous power of viagra and charges it for having a dominative power rather than producing an equal interpersonal mutuality. He adds that the paper laid an increasing weakness on women\u27s reproductive rights against their respect for the dominance of male\u27s sexual pleasure

Slavery and the Roots of Sexual Harassment

In recent years, feminist scholars and activists have demonstrated the ways that U.S. slavery functioned as a system of gender supremacy. It entailed the dominance of men over women as well as whites over blacks. Adding the gender lens has shed immense light on the ways that sex, law, and power operated in the racially supremacist enslaving South. In recent years, this literature has emphasized the ways that slavery\u27s sexual and racial subordination converged around the bodies of enslaved black women. One project within this literature characterizes slavery as a sexual political economy to make explicit the connections between its markets, labor structure, and sexual exploitation. It designates slavery a sexual economy to foreground slavery\u27s gender hierarchies and mechanisms of subordination as well as to show how slavery offered early illustrations of the social construction and fluidity of gender and the false dichotomy between public and private relations. Taking those insights to their logical conclusion, this essay frames enslaved women\u27s sexual coercion through their roles as captive workers to cast the institution of slavery in a new light: as an early and particularly virulent strain of institutionalized sexual harassment. In the process, it shows how we gain better purchase on sexual harassment when we look at antecedents in U.S. slavery. Conceiving slavery as sexual harassment sheds light on how slave law was labor law, plantations were workplaces, and enslaved women\u27s resistance constituted gender activism. Critically, such a framework also recovers the sexual dimension of both slavery and sexual harassment. Casting slavery in this way hopefully yields a richer and more nuanced understanding not only of slavery, but of feminist history, theory, and contemporary activism

Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality

Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as intimacy liberty, particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social norms. It argues that the gay marriage analogy, invoked on both the left and the right, is a red herring, a distraction from the real challenge polygamy raises for law - how plural marriage transforms the conventional marital dyad and whether law is up to regulating marital multiplicity. Both of the gay analogies, the slippery slope invocation and the alternative lifestyles defense, distract us from the fact that polygamy’s distinctive feature lies not in the spouses’ gender (as is the case for same-sex couples marriage) but rather in its departures from the two-person marital model. Polygamy’s defining feature, marital multiplicity, generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior, some of which we have seen played out in distressing fashion in recent high-profile conflicts. Hence, this paper approaches polygamy as a problem of bargaining, cooperation, strategic behavior, and, forgive the pun, the problems it engenders. No one, including others who have considered polygamy from a bargaining perspective such as Gary Becker and Richard Posner, has confronted polygamy as a regulatory matter, instead assuming it is merely dyadic marriage multiplied. Is the law up to regulating marital multiplicity? This Essay contends that, in contemplating the design of a plural marriage regime, we are not starting from scratch. While conventional family law, with its assumptions of the marital dyad, may not be up to the task, other legal regimes have addressed polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes. In particular, commercial partnership law has addressed precisely these concerns through a robust set of off-the-rack rules. The Essay contrasts polygamy with aspects of partnership law to derive a set of default rules that might accommodate polygamy’s marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The point is not to use partnership law as a map, but rather to make the point that there are already conceptual models for what might be thought of as plural marital associations

Bad Girls of Art and Law: Abjection, Power, and Sexuality Exceptionalism in (Kara Walker’s) Art and (Janet Halley’s) Law

This paper seeks to make some connections between legal theorist Janet Halley and contemporary artist Kara Walker. It compares their recent oeuvre to show how both reject understandings of the interplay of sex, power, and subordination proffered by conventional justice projects - specifically civil rights’ and feminism’s articulations of bodily violence and violation as key modes of racial and gender injury and subordination. Neither of these two is the first to dispute such accounts of injury and identity; yet, what distinguishes them is that both attempt to ground their theoretical and aesthetic indictments in the notion of abjection, or the liberatory potential of suffering, degradation, and shame, particularly in sexual contexts. Both seek in abjection an alternative conception of bodies and power, one not rooted in civil rights’ and feminism’s first principles of equality, anti-subordination, and what Halley calls minoritizing impulses. This Essay disputes abjection as a conceptual grounding for Walker and Halley’s political and theoretical indictments. Abjection is classically associated with Julia Kristeva’s work in psychoanalysis, but gained political traction in queer theorist Leo Bersani’s call for a subversive sex-based queer identity. I contend that Halley’s theoretical invocation of Bersani’s abjection is misplaced, and that Walker’s aesthetic claims fall victim to similar misreadings. In fact, the Essay argues that the theoretical innovations of both versions of abjection lie in their engagements with power and identity, their interplay with loss, longing, and belonging in Kristeva’s classic iteration and with injury, rebellion, and politics in Bersani’s subversive one. In particular, Bersani’s notion of subversive abjection is hopelessly embedded in the very sorts of justice projects, identitarian claims, regulatory discourses, and material economies of bodies and power that Walker and Halley disavow. And, as I’ll show, feminism’s regulatory discourse of consent looms large in Bersani’s call for a sex-based queer identity. While their aesthetic and academic invocations of abjection are fascinating and provocative, the Essay concludes that neither Kristeva’s psychoanalytic turn nor Bersani’s political one endorses Halley and Walker’s embrace of dematerialized economies of bodies and disavowals of anti-subordination projects. The paper argues that Halley in particular has fallen prey to what might be thought of as a sort of sexuality exceptionalism, a deeply essentialist, almost Freudian, notion of sex as sacred, repressed, distinct from other bodily pleasures, and, because she views it as in need of liberation, exempt from regulation. (This is all the more odd given Halley’s queer commitments, including her professed skepticism of the power feminists attribute to sex.) In addition, reading Walker and Halley together poses some tough questions for Halley about some of the conceptual limits of her claims. The Essay concludes that Walker and Halley have joined the anti-identitarian zeitgeist in a peculiar way: rooting their disavowal projects in abjection, while fascinating, even more deeply embeds them in what they are trying to escape, investigations of material economies of injury, identity, and power. And, importantly for Halley, may undermine her professed goal of liberating shameful sex, instead leaving her susceptible to what I’ll characterize as sexuality exceptionalism

Film Review: Gran Torino and Star Trek

Race has long been a central object of political reflection. The salience of racial difference remains hotly debated, figuring in both utopian and dystopian visions of America’s political future. If race is a primary configuration of difference and inequality in the nation, then intimacy between the races is often construed as either a bellwether of equality and political utopia or a re-inscribing of political dominance, typically represented as sexual predation by men against women. Quite expectedly, these political fantasies and fears are often played out at the multiplex, and we can see them in stark relief in two recent films that seem to have nothing in common, Clint Eastwood’s highly acclaimed but Oscar-snubbed Gran Torino and last summer’s high-octane blockbuster, Star Trek. This film review explores how both films render conventional (white) masculinity as in crisis, threatened by alternative masculine forms. In both films this crisis of masculinity translates into a political one that threatens the values and viability of the community. In both, a carefully negotiated interracial intimacy redeems masculinity, and, in the process, the political future. While interracial intimacy is often configured as heterosexual coupling, in both films, women of color expedite interracial intimacy, but the meaningful and redemptive intimacy is homo-social, between men

Erotic Entitlements Part I: A Reply to Sex Therapy in the Age of Viagra: “Money Can\u27t Buy Me Love”

An Essay is presented in response to Susan Stiritz and Susan Appleton\u27s essay “Sex Therapy in the Age of Viagra: Money Can\u27t Buy Me Love.” The author states that the paper of Stiritz and Appleton refers to the dangerous power of viagra and charges it for having a dominative power rather than producing an equal interpersonal mutuality. He adds that the paper laid an increasing weakness on women\u27s reproductive rights against their respect for the dominance of male\u27s sexual pleasure

Identity Notes Part II: Redeeming the Body Politic

These remarks were given in April 1996 at the First Annual LatCrit Conference, co-sponsored by California Western Law School and the Harvard Latino Law Review. ... Political corpus, body politic, body of law, corporate law, body of evidence, body of knowledge, the footnote. ... While the body of Christ has not been used explicitly to order secular American law and political theory, a multi-dimensional analysis of his body in Western political theory would have to include its use at a critical historic moment as an organizing metaphor for the racial order of the United States and the consolidation of the national identity as white. ... Reclamation of the national identity as historically always diverse, documentation of the denial of citizenship to groups of color, and the rectification of the consequences of this, through both active and benign means, open the possibility of true redemption of the American character, and a vision of the participation of multiple bodies necessary for a serious democracy. ... Thus, in charting racial paradigms, I have focused on two bodies -- the American political corpus or body politic and that of Christ. ... Rather than searching to create a monolithic paradigm of Latinos and the Law, LatCrit Theory should conceptualize a series of platforms, assumptions, and paradigm shifts and linkages, again at times contradictory, that will not only enrich our understanding of Latinos/as, but will also enhance our larger understanding about law and race in America

Foreword-Symposium: Straightening it Out: Joan William on Unbending Gender

As most men and women acknowledge, gender is a battleground. Most of us are fairly clear on biological sex: who bears children, who ejaculates sperm, even whose (big) hands might open a stuck jar and whose (smaller ones) could pull that cufflink out of the garbage disposal. What remains less clear is how social gender roles flow from this: Does lactation result in eighteen years of primary caregiving? Should the chemical realities of testosterone shape the law governing sexual assault? 3 Should the dynamics of heterosexual relationships mirror the physics of heterosexual intercourse (penetration equals power)? Does the reality of the menstrual cycle mean that women shouldn’t engage in public life? Of course I am being somewhat flip in choosing examples that have long since been resolved by most thinking people in our culture, but we all, young and old, white and non-white, queer and straight, know that gender is serious and contested business requiring a gentle touch