Monogamy\u27s Law: Compulsory Monogamy and Polyamorous Existence

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy\u27s core institution and to express views on who should be included within it. The focus of this article is different. Like an unmannerly wedding guest, this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives

Getting It: The ADA After Thirty Years

On the thirtieth anniversary of the Americans with Disabilities Act (ADA), this essay examines the vital role that attitudes have played — and will play — in the success of this pathbreaking civil rights law. Drawing on the legacy of the late disability philosopher and bioethicist Adrienne Asch, the essay argues that the law alone cannot bring about the change that’s needed in the United States to realize the ADA’s promise. Attitudes to disability need to change. More people need to “get it” with regard to disability. The essay puts forward an updated account of what it means to get it and charts a path for shaping attitudes through law and other means in the years ahead

The Art of Access: Innovative Protests of an Inaccessible City

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites these artists address, which will inform the Essay’s study of the interplay between disability, creativity, and urban life

Integrating Accommodation

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of diverse groups of people helps to ameliorate discriminatory attitudes through contact. But integrating people with disabilities also means integrating accommodations. These accommodations affect and benefit third parties in the workplace and thus shape attitudes toward both disability and the ADA. An understanding of third-party benefits is crucial to designing and disclosing accommodations in ways that will best promote the aims of the statute and the prospects of disabled people

Aggravating Youth: Roper v Simmons and Age Discrimination

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court\u27s subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy\u27s opinion seems to turn on the insight that while age-based classifications are rational – they are a good proxy for various aspects of behavior – particular judgments based on age are not necessarily rational. To the contrary, our judgments based on age may be distorted, or even inverted, because of wrongheaded thoughts and, especially, feelings. In the context of death penalty sentencing, among others, we think we favor youth, and we think we should favor youth, but in reality we may disfavor youth. Kennedy\u27s reasoning thus suggests that, in at least this context, the law must embrace a categorical rule to align how we treat young people under law with how we think we do and should treat them. This understanding of Simmons does not establish the rightness of Kennedy\u27s opinion. But it does suggest that the opinion is supported by a stronger rationale than it fully articulates, a rationale that has implications for other areas of law involving the irrationality of apparently rational categories, such as old-age discrimination. Kennedy\u27s recognition that we may not be as rational about age as we think we are provides further justification for the Court\u27s decision the same Term in Smith v. City of Jackson that disparate impact suits are available under the Age Discrimination in Employment Act

Compulsory Sexuality

Asexuality is an emerging identity category that challenges the assumption that everyone is defined by some type of sexual attraction. Asexuals – those who report feeling no sexual attraction to others – constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject. This Article introduces asexuality to the legal literature as a category of analysis, an object of empirical study, and a phenomenon of medical science. It then offers a close examination of the growing community of self-identified asexuals. Asexual identity has revealing intersections with the more familiar categories of gender, sexual orientation, and disability, and inspires new models for understanding sexuality

Shape Stops Story

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson\u27s work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need to respect other kinds of stories. The clinical lawyering pedagogy of Jean Koh-Peters and the late Kathleen Sullivan demonstrated a parallel dialectic. Koh-Peters urged aspiring lawyers to use a storytelling approach as the best way both to empower clients – who often want their stories told in court – and to represent their interests before decision-makers who respond to compelling narratives. Sullivan, by contrast, encouraged a resistance approach to advocacy. She helped her law students see that their clients in a clinic on Advocacy for Parents and Children had been forced to reveal the private details of their lives far more than most Americans, and thus that resisting state intrusion was an important part of the advocate\u27s role. Ultimately, these perspectives – on law and identity – alert us not only to the importance of telling new stories, and of telling challenging stories, but also to the occasional, yet vital, need to stop the stories. They call our attention to the overlooked moment when identity shapes itself by resisting the demand to tell stories

Admin

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work – both managerial and secretarial – that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people – often women – who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home aspire to equal distribution of household labor, it appears that the family’s admin is more often done by women. Appreciating the unequal distribution of this work helps us to see the costs of admin for everyone. These broader costs include wasted time, lost focus, and interpersonal tension. Though the types of admin demands that people face vary by gender, class, age, and culture, admin touches everyone. The Article makes this form of labor more salient, both analytically, through an account of its features and costs, and practically, through proposals for public and private interventions. Admin is “sticky.” It frequently stays where it lands, whether with female partners of men, one member of a same-sex couple, an extended family member managing another’s affairs, or parents of some adult children of the so-called millennial generation. By demanding time and attention, admin impinges on leisure, sleep, relationships, and work. Admin warrants a range of possible regulatory responses. Government should create less admin and possibly do more kinds of admin for people. Regulatory infrastructure should protect people’s time and spur technological innovations that reduce admin. Courts should allow parties in civil suits to claim damages for lost personal time. These and other initiatives should help to make admin more salient as a legal and cultural matter and to reduce its burdens overall. Reducing admin should benefit everyone and, in turn, disproportionately benefit those who bear its greatest burdens

Compulsory Sexuality

Asexuality is an emerging identity category that challenges the common assumption that everyone is defined by some type of sexual attraction. Asexuals — those who report feeling no sexual attraction to others — constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject. This Article introduces asexuality to the legal literature as a category of analysis, an object of empirical study, and a phenomenon of medical science. It then offers a close examination of the growing community of self-identified asexuals. Asexual identity has revealing intersections with the more familiar categories of gender, sexual orientation, and disability, and inspires new models for understanding sexuality. Thinking about asexuality also sheds light on our legal system. Ours is arguably a sexual law, predicated on the assumption that sex is important. This Article uses asexuality to develop a framework for identifying the ways that law privileges sexuality. Across various fields, these interactions include legal requirements of sexual activity, special carve-outs to shield sexuality from law, legal protections from others’ sexuality, and legal protections for sexual identity. Applying this framework, the Article traces several ways that our sexual law burdens, and occasionally benefits, asexuals. This Article concludes by closely examining asexuality’s prospects for broader inclusion into federal, state, and local antidiscrimination laws