ACOSTA On Law and Gender and Punishment

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CONCEPTUALIZING THE LAW FROM A GENDER PERSPECTIVE:

CONCEPTIONS REGARDING VICTIM AND ACCUSED
GLADYS AcoSTAVARGAs*
I. INTRODUCTION ................................................................................ HI. CRITERIA FOR SELECTION IN CRIMINAL LAW ................................. Ill. THE INTERMEDIATION BETWEEN ACCUSED AND VICTIM IS IN THE HANDS OF THE STATE .................................................................. IV. WOMEN AS VICTIMS: CRIMES AGAINST SEXUAL LIBERTY .............. V. PROPOSALS FOR DEVELO NG A CRTCAL PERSPECTE OFTBE CRIMINAL LAW AS TO THE RELATIONSHIP BETWEEN ACCUSED AND VICTIM IN CRIMES AGAINST THE SEXUAL LIBERTY OF WOMEN ...........
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I. INTRODUCTION
Although operating in different legal systems, feminist legal critics in Latin America and the United States share a common concern regarding criminal law which should be brought into the classroom, as criminal law expresses much of the symbolic and coercive force of the law. The following ideas are inspired by the legal methodology for gender analysis developed by Alda Facio' and by the efforts of women attorneys and activists who have sought for decades to democratize the law from the starting point of a profound respect for human rights. To speak of victims and the accused places us at the center of criminal law. Classic doctrine does not distinguish between men and women with respect to their place in criminal procedure. The assumption of non-distinction derives from the centrality of the principle of equality before the law as the basis ofjustice. However, in practice, criminal law is laden with important gender-based* Instituto Latinoamericano de Servicios Legales Altemativos (ILSA)
1. ALDA FAcio MoN' o, CuANDo EL G.NmRo SUENA CAMBIOS TRAE (UNA METODOLOGA
PARAELANk.ISISDEGNEODELFEN6MENOLEGAL) (2nd ed. 1996).
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connotations, many of which stem from its most basic conceptions of criminal law, while the most important ones are imported from the social order. The ideas presented in this essay are inspired by experiences and analyses of a specific type of relationship-that established between the accused and the victim in the context of proceedings in which the sexual liberty or integrity of women is treated. In such crimes, women are for the most part positioned as victims and men are in the role of the accused; the opposite situation is an exception to which we will allude below. We will move from this specific field to more general hypotheses regarding criminal law. To understand the substantial, as well as subtle, nature of the distinctions made by criminal law between women and men in their status as victim and accused, one must take a few steps outside the logic of criminal law. Legal sociology is very helpful in addressing the polemic. The concepts used in this debate are derived from the intellectual issues regarding the law posed by feminist theory, which has often been incorporated into legal sociology. Much of the research on criminal practice has had recourse to the methodology of legal sociology, inspired by feminist theory. This "contact with reality" has made clear the limitations of the law when it comes to responding to social issues that stem from the systematic discrimination that affects the lives of women. In the opinion of Carol Smart,2 the encounter between feminist theory and the law has faced numerous problems. I will summarize some of the problems she raises. The first is the explicit or implicit rejection of theoretical analysis as a method of studying the law. This point focuses on the greater or lesser importance attributed in the law school classrooms to conceptual discussion, especially when there is a predominant belief that the students need to know, first and foremost, the "black letter law." The second problem is the direct resistance to feminist theory in law school classrooms. In the eyes of many, the law is inherendyjust, and therefore the problem of discrimination has already been resolved. Smart identifies this as a "liberal" position. The third problem is that certain positions within feminism see theoretical work as a masculine activity, and steer away from such discussion, focusing their concerns on the practical and the concrete. These problems will continue to arise in the relationship between law and feminist theory. It should be noted that the rejection of theoretical analysis, due either to devotion to the letter of the law or to a pragmatic radicalism, leads to
2. Carol Smart, La Mujer del DicuisoJm (Elena Larrauri ed., 1994).
o, in MjEREs, DERHO PENAL YCPJM!NOLOGlA
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an impasse in the process of learning that should be avoided in the academic training of law students. From the standpoint of feminist theory of legal sociology, other challenges are presented. One of these challenges relates to the various conceptions of the law. It is important to bear in mind developments regarding the "alternative use of the law," or the production of what has been called "alternative law." In my years at the Latin American Institute for Alternative Legal Services (ILSA), I have had the opportunity to meet many critical legal studies theoreticians and activists who moved between both of those fields! In some way, as we approach the end of the 20th century, we feminist attorneys are also facing the challenge of "using" and/or "transforming" the law by introducing new theoretical perspectives that originate in the historical, social, and personal experience of women, who had hitherto been confined to the domestic comer of society, with voices muddled by male authority in the public and private spheres. Following Smart's interesting logic, it would appear that the arrival of feminism to the law in a more or less organized fashion (many women became attorneys and discovered that they could play a role in advancing the status of women in their work as attorneys), has turned the law into a "field of struggle" and not just an "instrument of struggle." I believe that one could read in these expressions the difference between those who seek "to make alternative use of the law" and those who set out to produce an "alternative law." In practice, neither of these positions is to be found in pure form, and many feminists who find themselves in the field of law are fostering initiatives in all possible settings. Some arejurists, others litigate, still others have entered thejudiciary or state office, while others teach law or work with the law in interdisciplinary fields.
3. Both movements are of interest for constructing the notion of genderjustice. In Latin America, a major movement is under way that calls into question the operation of the legal system. This movement postulates that the state is not the only lawmaker. The notions of "legal pluralism," "alternative law," and "alternative use of the law" have won followers in the region, because they respond to the aspirations of broad popular sectors that find little understanding of their needs in state policies. These concepts are part of a "critical theory of the law" that seeks to elaborate a legal discourse with the objective of social transformation (Wolkmer 1994). In addition, one finds the arguments of a different origin, taken up by diverse women's groups inspired by feminist theory. The articulation of these arguments has brought pressure to bear on the state for the purpose of gaining access to certain legal products to solve immediate problems that cannot await the transformation of the justice system as a whole. Many of the tasks taken on by legal services have been aimed atserving the urgent demand forjustice put forth by women. The tension between the two points of view is inevitable, for the critical legal studies theorists have focused more on the overall economic aspects of exploitation, from an all-encompassing perspective. They have paid less attention to critiques that call into question the oppression and subordination pointed out by women, which do not always directly correspond to economic exploitation. Gladys Acosta Vargas, DERECHOS HUMANOS DE LA MUJER: PERSPECTIVES de Una Luz aliFinalTunekLa ,justida Genero, in
NACIONALE EINTERNAcIONALES (RebeccaJ. Cooked., 1997). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 321 1998-1999
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We have undertaken to study the law as such, discovering its

inconsistencies and internal weaknesses, but also gauging the power of legal reasoning. The goal is to determine whether the law can be pushed forward within its own potential, or whether a transformation is required on such a scale that the lawwould cease to be what it is today. Evidently, our view is from a perspective external to the law. In our opinion, the law as a dosed system does not have the capacity to resolve the social problems that arise in women's experiences. The law has been constructed by "others." In other words, the law has been constructed by men from Western culture interested in maintaining the order they themselves have created.4 However, it is inadequate to say that it is male per se. In the process of its development, the law has become a complex historical product and does not always act in favor of men and against women. It is more accurate to recognize that the law has a gender, and that it has the capacity to create gender categories. The detailed analysis of laws, legal doctrine, legal culture, and legal practice have led us to discover the existence of contradictions between diverse interests within the law. It is, then, a question of finding the most adequate way to have an impact on all the components of the law so that we women, as well as other subjects of the law who have suffered discrimination, may find solutions to specific controversies that limit our lives. This struggle explains the presence of a significant feminist movement that seeks legal reform, despite the not very encouraging results of the socio-legal analyses that have been conducted regarding the contribution of the law in improving women's quality of life. The central debate regarding our interaction with the law is characterized by an open, unfinished perspective. The approach is also one of dialogue with reality and reaffirmation of experiences and social practices that transform. This should be transmitted to those who are beginning their legal education. There is nothing worse for the law itself than absolutism as to its content.
II. CRIERIA FOR SELECION IN CRIMINAL LAW

The starting point for a critical assessment of criminal law lies in the relationship between society and the law. The criminal system continuously selects those it will place on trial and those it will protect.
4. Latin American law has followed the steps of European Law with slight adaptations. It is essential to develop the historical perspective on the law to understand the normative tanfformations. 5. It is important to recognize that the law is only relevant in relation to the protection of specific legal interests, and that its breadth and scope should be the result of a democratic debate within each society.
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This operation is highly complex. The difficulty in attaining consistency betveen the definition of criminal conduct and the enforcement of such measures leads to a situation favorable for the proliferation of discrimination beyond that established in the law. Many Latin American criminal law experts have undertaken to analyze the role of law in society. Ifwe follow the reasoning of Eugenio Zaffaroni in his influential Criminal Law Manual of 1986, there exists an interest in developing an analytical and global view of the function of criminal law. From his point of view, Latin American legal thinking on criminal law has been inspired by foreign ideas that have been adapted to the region. These ideas include the theory of "retributionism" (the penalty as retribution based on the principle of culpability, with a strong tendency to technocratism); the theory of "danger" (those who attack the system should be given harsh treatment-ideal for dictatorships or strong-man regimes); the theory of "criminal law for the security of the citizenry" (explains problems based on the fear of communism and sees internal enemies everyvhere); and finally, "Latin American critical criminal law studies" (a new theory, including several theoreticians of "alternative law" as adherents). Each theory includes positions with respect to how legal interests should be ordered, and each theory develops its own approach to the definitions of crimes in the criminal codes, and ways of impacting them. However, it seems that "critical Latin American criminal law studies" has shown the most potential for analyzing the treatment of women, despite inevitable tensions that arise from the scant or nonexistent gender-sensitivity of many of its spokespersons.6 It is not possible to imagine a fair criminal justice system amidst 'political systems that are democratic merely in form; and this is a serious problem in Latin America. We suffer from a lack of interaction between society and the system that controls and regulates social life. This gap allows selectively coercive criminaljustice systems to develop in light of what is considered "social and political order," quite distant from what real people (women and men from different co-existing cultures) need. The priority of such a system is not to answer to human needs, but rather to maintain an "order." Criminal law is a product of society and politics and corresponds to
6. It is surprising to read Chilean treatise writerjuan Bustos Ramfrez when he refers to the definition of the crime of rape in the Spanish Criminal Code. He states that"itwould appear fair to encourage a narrow interpretation, considering the seriousness of the penalty for rape, which is the same as for homidde. Most of the situations that may arise could be left to the category of dishonest abuses (abusos deshonestos), a crime that carries at most a light prison sentence." JUAN Busros
lAMiREZ MANUAL DE DERECiHO PENAL PAKI ESPECIAL (1986). This type of relativism is found in R
much of the legal reasoning ofjudges, who are reluctant to impose severe sentences and, in effect, fosterwidespread impunity for the crime ofrape.
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the specific circumstances in each country. Nothing could be further
from the claimed "objectivity" which is sought. For example, analysis reveals that changes needed with respect to crimes that affect the lives of women only occur under certain conditions, and require welldesigned political negotiations if they are to be successful. Even then, there is always a lingering doubt as to the efficacy of the criminal law provision in question because of the way it will be distorted in practice.
III. THE INTERMEDIATION BETWEEN THE ACCUSED AND THE VICTIM IS

IN THE HANDS OF THE STATE
The most important issue to fully understand is the degree to which criminal law can adequately treat people. In this connection, I would like to note that if human rights were truly respected, women would enjoy more effective guarantees in their treatment by the criminal justice system. Yet the system has not been designed to respect human rights. Rather, it has been designed as a mechanism for conflict resolution that generally liquidates the powerless, but which offers certain negotiable privileges that are transferred into the system from the social power base available to certain individuals outside of the system. To illustrate this point, one could consider the difference between the treatment accorded a criminal offender with economic power and one who has no such power, or the treatment accorded an accused who is a member of the police or armed forces. It is also interesting to note how an indigenous person who has committed a crime is treated. In summary, accused persons are treated differently, subtly or openly, depending on their social or economic background. The same holds for women, but the panorama is different depending on who is on the other side of the dispute. In addition to racial, social, and economic privileges that affect the system, other factors come into play, such as the devaluing of what happens to women and the sexist prejudices prevalent among the decision-makers in the process. When those factors are considered, the state loses its intermediating role, and simply "tips the scale" against women.7 The case of women who have suffered sexual abuse is paradigmatic, and will continue to be the subject of concern for those of us who call for categorical respect for human rights. Treatment of such cases is
7. I share the opinion of Brazilian attorney Leila Linhares in this connection. Referring to the situation in Brazil, she states that the judiciary expresses traditional social values that discriminate against women. The results of research done by CEPIA show astonishingly little distance between commonly- held opinions (among non-lawyers) and the opinions ofjudges in this context.
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based on an extra-legal value judgment that could be called into question. The relationship between victim and accused is not based on the infraction itself, nor even on enforcement of the law, but on the idea of "social order." I would like to draw on a Peruvian example-! CASE (from thejudicial archives of Lima) Angela denounces an attempted rape by a midshipman from the Peruvian Navy. Angela's version: She took a taxi, inebriated, and practically fell asleep during the drive. The driver strayed from the route and tried to rape her. As she resisted, some persons gathered around the vehicle, and at that moment the assailant pulled out his weapon and accused her of being a terrorist. The version of the accused: He picked her up in the street because she needed help. During the drive, she threatened him to hand over the car, saying that if he refused she would set off a bomb in the car. Investigation: The police took up the investigation of the case in response to the complaint that the assailant lodged regarding her alleged status as a terrorist and reached the conclusion thatAngela was not a terrorist (there was no evidence that she had handled explosives, and nothing compromising was found in her home). The Prosecutor. The prosecutor believes that Angela's innocence with respect to the crime of terrorism had been proven, but did not engage in further scrutiny of the version of the accused. Instead, he called into question Angelas conduct, and proposed a lesser penalty for the accused than that indicated by law for attempted rape, yet gave no legal justification. The Judge: As there was no other evidence of attempted rape beyond Angelas statement, the judge found that there was no attempted rape. The injuries that Angela displayed were interpreted as resulting from her resistance when being detained by the policeman after he alleged that she was a terrorist. Resolution: Acquittal for the accused. On appeal, the Superior Prosecutor focused on attributing responsibility to Angela for having provoked the situation (she was inebriated), and relied on the opinion of a witness (a work colleague of Angelas) who stated that when she was intoxicated, she was very aggressive. The Correctional Court (the court of last resort for cases such as this one) accepted the argument of the Prosecutor and upheld the acquittal. For the authors of the book, this is a typical case of discrimination
8. ABRAmuiiSu.sVALLEjos, CoNELSoLoDICHODEiAAGRAVIADA (1995).
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against an adult woman and a display of how a policy of impunity with respect to the crime of rape operates. If we analyze it from the standpoint of the relationship between victim and accused, we see the inability of the state to provide an adequate solution to the conflict through the prosecutor and thejudges. It is especially notable that the law is deprived of much of its authority or power. Moreover, the word of the accused has no value. If we focus on the attitude of the accused (a member of the Navy), we perceive that the state is not even interested in punishing him for having mobilized the police, without cause, by accusing the victim of terrorism. At no point was it suggested that he improperly distracted the attention of the courts with a false accusation. His story was relevant, whereas the woman's word was quickly dismissed with the argument that she was inebriated. It is treated as inappropriate for a woman to become inebriated and also demand respect. To what extent do cultural and arbitrary considerations come into play in enforcing the criminal law? The case could be reevaluated based on a proper weighing of the evidence, with respect for the laws in the respective instances. The case might then present a good pedagogical device for teaching law students what not to do. Yet it does not suffice to study each element in dissociation from the others, because the important thing is to understand the interplay of numerous factors that leads to discrimination each time women enter into contact with the criminal law system.9 It would be interesting to explore ideas that have been expressed on law and the victimization of women, and also to review the bountiful, albeit recent, literature on studies of cases in which women are the accused. Anything we may say here is still hypothetical and exploratory, but it is important to begin to develop new frameworks in Latin America to allow continued study of the law with a critical perspective. If the law were merely sexist or dominated by male figures, one could 0 begin a reform process, so that it might cease to have such attributes." However, it is more complicated than that, for the law assigns social roles; gender differentiation also springs from the law. In this connection, Carol Smart has studied the genesis of the legal concept of "single mother,"'" based on the historical experience of England and the development of theories regarding the subjects of the law which took place during the 19th century. The example she presents
9. It is enlightening to read the chapter "Dentro de la ley todo," which sets forth case law on rape cases from 1930 to 1990. SILVIA CHEJTER, LAVOZTnrl.ADA.VIOLACI6NYVYERISMO (1990). 10. In Latin America, the contributions of C. Mackinnon with respect to the "objective and neutral" constructs, which undergird the male vision ofthe law, have received insufficient attention. 11. In reality, the category of "single mother" reveals the content ofwhat it means to be a "bad mother."
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demonstrates the social importance of the standards developed by the law. IV. WOMEN AS VICTIMS: CRIMES AGAINST SEXUAL LIBERTY Earlier we used an example to illustrate how the justice system, in operation, departed from the realm of the law and situated itself in the realm of social prejudice. Yet if the conceptual corpus of the crimes related to sexual liberty is analyzed, we can find elements that are most useful to the legal discussion on the relationship between the victim and the accused in critical terms. These are examples of issues relating to sexual crimes and the victim/accused relationship that form part of a democratic debate to vindicate the capacity of citizens to take "legislative initiative": Their nature as "private" crimes: This is an important aspect that is currently the subject of much debate. There are two major types of arguments. One position holds that these crimes should be "public," and therefore, the procedural impetus to investigate them should come from the state (on its own initiative) and not the party affected. Another position, from within feminism, suggests that the entire process "victimizes" the person affected, increasing suffering rather than offering mechanisms for reparation. This position considers the key problem to be the failure of the criminal procedure to attend to the person injured. This position makes dear that comprehensive measures must be developed to address this larger problem in order to argue for the classification of crimes against women as public, rather than abandoning the criminal justice system altogether. Pardon by the offended party- This element is less polemical than the previous one, for the only form of pardon that traditionally appeared in the criminal codes of Latin America was granted upon the marriage of the victim to the rapist, or to one of the rapists (in the case of a gang rape). This solution offered by the law was anachronistic and easily rejected. The most important arguments against such a legal remedy relied on the assertion that the legal interest at issue was sexual integrity, not the loss of opportunity to contract marriage resulting from the loss of one's virginity. It should be noted that the discussion of this point touches upon a major issue in criminal law-the diversity of criminal penalties. We are seeing the focus change from deprivation of liberty as an effective means of punishing and transforming conduct, to an increase in the prevalence of other types of penalties. In this context, a pardon by the offended party could be translated into economic compensation from the aggressor. In such a situation, the woman should be allowed to choose, as Elena Landaurri notes. It is
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important that the reparation be based on the decision of the person affected, so long as he or she is guaranteed the real freedom needed to make this decision. In this connection, it is necessary to make a break with criminal law policy that victimizes women, stripping them of any standing" to argue (one's word is worth nothing if not accompanied by reliable evidence) and placing the burden of proof upon them." To the contrary, it will be necessary to develop a criminal system that guarantees, from the outset, the right of victims to have all the technical assistance and support needed to be able to make their way through the criminal justice system without falling victim to new aggressions. In broader terms, the discussions of the relationship between victim and accused require the adoption of a position on what it is we are demanding of the criminal law in the name of women. If we call for equality in criminal law, in the words of Landaurri, paraphrasing MacKinnon, we run the risk that the law will be used to the detriment of women (e.g., vengeful equality). If we pressure for a criminal law of difference, we emphasize that women are different, and in need of special treatment. 5 Taking a position requires a more careful study of how criminal law treats women. We must explain why criminal law offers so much resistance to finding solutions to conduct that represents an attack on the integrity and liberty of women. In addition, we must understand why women are so distrustful of the protection afforded them through criminal law. Attacks on the sexual liberty and integrity of women have such a destabilizing effect on individuals and on society that they merit and urge us to take short-term actions with a view to achieving immediate results. Hence, the debates are focused on improving and expanding the definition of criminal conduct, making punishment minimally 6 consistent in the various criminal codes1 and facilitating the prosecution of the accused by well-trained police conscientious of their role, as well as byjudges sensitive to gender issues. In general, these are
12. For example, the restrictions in Ecuador and Bolivia on lodging criminal complaints against members of one's nuclear family. 13. This is a idely-debated point in the legal community, because the central nature of the constitutional prindple of presumption of innocence creates an obstacle to shifting the burden of proof in the case of sex crimes. 14. The empowerment of the victims is an important element in the effective transformation of the operation of criminal law. 15. Elena Landaurri, Control FormaL-..Y el Derecho Penal de las Mujeres, in MUJERES,
DERECHO PENALY CRIMINOLOGIA (1994).
16. It is important to recall the discussions on neo-criminalizing trends (increasing sentences)

and tendencies to minimize the intervention of the criminal justice system, especially in the area of
infractions known as "offenses to sexual morality," such as adultery and seduction.

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feasible goals with the appropriate strategies. As a successful example, almost all Latin American countries have signed and ratified the InterAmerican Convention on the Prevention, Punishment and Eradication of Violence Against Women, opening the way to much needed reforms of domestic laws. Yet the larger problem is the operation of the system. Even if we have a good definition of what constitutes rape, if the word of the accused is accorded more evidentiary weight than the word of the victim, we will not have advanced much.'7 The same holds when the sexual morality ofjudges is introduced into the courts, and serves as a filter for interpreting laws at every level of the judiciary, despite the absence of any provision calling for such an approach. Although we have been looking at the situation of women harmed (victims) by assailants (the accused), we must be mindful of the attitude of'judges in those cases in which the woman becomes the accused by virtue of acts of legitimate self-defense brought on by prior acts of violence. The requirements of legitimate self-defense are generally interpreted in such a manner as to bar the possibility of a defense for the woman. Focus is placed on the present existence of the assault (immediate defense), and the means of attack (proportionality of the defense). This aspect should also be studied to prevent manipulation and discrimination of the criminal justice system in relation to women. The advances in the criminal law, for the improvement of the treatment of crimes that affect women's sexual integrity and liberty, enjoy the support of progressive jurists and legislators. However, the capacity of criminal law to support respect for the human rights of women, and specifically for the right to a life free from violence, need to be evaluated in greater depth.
V. PROPOSALS FOR DEVELOPING A CRITICAL PERSPECIVE OF THE CRIMINAL LAW AS TO THE RELATIONSHIP BETWEEN ACCUSED AND VICTIM IN CRIMES AGAINST TIlE SEXUAL LIBERTY OF WOMEN
The legal system's loss of legitimacy for women who become aware of the limitations on their rights and of the impunity that prevails when they demand respect for those rights poses serious problems of societal frustration that require top priority political attention. This frustration is not limited only to the administration ofjustice. Rather, the entire political institutional system systematically treats women's demands as marginal, relegating them to "women's" spaces, with scant overall impact. The defenselessness of women, understood as their diminished
17. CONSELHO NACIONALDOSD P-ETOSDAMULHER, QUANDO AVrIIMAEMUL-E DEJULGAMENTOS DE CR1MES DEESTUPRO, ESPANCAMENTO EHOMICIDXO (1987). ANALISE
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possibilities for defense against the loss of their rights, cannot be solved by a simplistic interpretation of access to the mechanisms of the These are not just issues of legal administration of justice. representation or reforms to the procedural law. Rather, they relate to the lack of a conception of justice that incorporates sensitivity to women's loss of rights resulting from the dynamics of violence in family or affective relationships, and those losses of rights that stem from discrimination. ' The relationship between the victim and the accused is defined by the substantive level of criminal law, and therefore criminal procedure should not be treated as autonomous. The criminal law system as a whole requires major transformations, and it would be most helpful if the debates on substantive issues also had an impact on procedural law. The great transformation which is needed involves regaining equilibrium in the accused-victim relationship so that the criminal law guarantees for the protection of the accused against abuse by penal institutions do not become tools for an attack on the rights of the victims. More empirical sociological studies should be undertaken to identify the key problematic situations. The process as a public act must be highlighted, because it reflects the conscience of society in a microcosm. What transpires between women and men in the context of criminal procedure is related to what occurs in society, but it cannot be evaluated solely from the legal perspective. It is essential to develop and teach feminist theory as it relates to legal sociology, so as to grasp the influence of cultural stereotypes and to bring about changes in the mentality of the users of the legal system (litigating attorneys, professionals in law-related fields, andjudges) regarding gender justice. As a democratic debate on criminal law and its social function unfolds, immediate changes are needed in the meantime. The imbalance in the treatment afforded men and women as victim or accused has led to policies of impunity that pose serious risks to democratic governance, demanding specific measures with capacity to change this situation. There are many possibilities for immediate change. Some examples are technical assistance and support to the victim from the beginning of the process; proper judicial weighing of the evidence; greater procedural weight granted to women's testimony; and greater decision-making capacity for the victims. In general, the whole evidentiary system should be reviewed looking not only at the rights of the accused but also at the rights of the victim.
18. Vargas, supra note 3.

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We seek new ways of constructing justice in a manner consistent with human rights, close to the everyday experience of persons, and with diverse notions of conflict and reparations. This perspective, also called "law for social tolerance," is integral and assumes the challenge of serving both parties to the conflict. The process of eliminating subordination of women requires integrating justice into the rules and procedures of the legal system, and into all other institutions that impact social life." The debate is open for discussion of the various positions. One must address the close link between feminist critiques of the law and the consolidation of women as citizens with the ability to make decisions regarding the rules of society and the state. This link makes clear that the analysis as to the real nature of the legal substratum should be maintained and, at the same time, a response must be formulated to the underlying question: to what point can the legal apparatus, revealed for what it is, be used as a means or tool for women's liberation? The urgent need for a response on the issue of the relationship between victim and the accused is crucial in this regard. The legal method we use for women must be valid for everyone and should free the process from discrimination on any other basis.20 So, the goal is not simply to build a system that incorporates the voice of women, but rather to build one that allows for a democratic interrelationship that results in a form ofjustice that provides the means for reconciliation among all human beings. This is a task that calls for the development of critical awareness, and the law school classrooms to provide an especially appropriate place to carry out this task.
19. Changing institutional norms entails recognizing that there is no single way to resolve the contradictions and tensions generated by women's demands (Jelin, 1993). The effort will only be successfii ifposed as a coordinated effort, recognizing the contributions of the feminist community and of the institutional framework that seeks to give impetus to development processes in such disadvantageous conditions. 20. MERCEDESCARRERASAPROXRMCIONAIAJURISPRUDENCIAFEMINISTA (1995).
COMMENT ON THE PAPER BY GLADYS ACOSTA

MARTN D. FARRELL I. THE FAULT OF LEGAL POsrriviM ................................................... II. TBE PHILOSOPHY OF PUNISHMENT ................................................ III. CONSTLTUTIONAL PROTEMrONS .................................................. 333 334 334
I will merely mention three aspects of the paper by Gladys Acosta with which I disagree, without referring to the many arguments with which I do agree. Perhaps this will make my comment excessively critical, but I believe that polemic is academically more useful than praise, and hence the style that I have chosen. I. THE FAULT OF LEGAL POSrIVISM Many partisans of feminism blame legal positivism for the current situation women face in many countries. I do not agree at all with this assessment. Legal positivism is a theory that makes it possible to describe the law without recurring to moral concepts. If the laws that discriminate against women meet certain requirements, of course positivism will consider them provisions of law. Yet, how does this prejudice the feminist cause? Feminists know that there are legal provisions, and what they seek is to replace them by other provisions, also legal, but with a different content. After identifying a provision as law, much remains to be done. Let us suppose that the positivist identifies a provision that discriminates against women as a legal provision, or a rule of law. In addition to identifying it as a rule of law, the conservative positivist may approve of it. The liberal positivist, however, will first identify it as a rule oflaw, but will object to its content on the basis of moral reasoning. Contrary to what some imagine, positivism evaluates legal rules from a moral standpoint. What distinguishes it from natural law theory is that positivism evaluates the norm after identifying it as a legal rule.
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Perhaps what certain branches of feminism wish to attack is not legal
positivism, but ideological positivism, which holds that a rule should be obeyed simply because it is a legal rule. For the ideological positivist, moral evaluation is superfluous, but for the legal positivist this is far
from being the case. If the target is ideological positivism, any attack is
useless, since I don't know of any serious author who supports this
theory. I. THE PHILOSOPHY OF PUNISHMENT The issue of the moral justification of punishment is extremely important, and there is, of course, no agreement on the best theory of
moral justification. Though some theories may be deficient, it is not

because they are foreign to the Latin American context. All the theories forjustifying punishment claim to be universal. The problem with the retributive conception of punishment, for example, does not arise from the circumstance that Kant was not Latin American. It stems from the difficulties that theories of ethical duty have in accounting for the function of punishment. Bentham was not Latin American either, but the deterrent conception of punishment seems more convincing. The task of feminism should not be to seek justifications of the penalty that reflects the supposed idiosyncracy of some continent, but to seek the best justification of the penalty. My suggestion is to study the utilitarian conception of punishment in greater depth. III. CONsTrTUTIONAL PROTECTIONS Of course, feminists and non-feminists agree in repudiating sex crimes. The Millian principle of harm suffices to justify this condemnation for liberals. Yet liberals are also concerned with respect for constitutional guarantees, and the partisans of feminism should share this concern. Therefore, I cannot help but feel alarmed at the proposal to shift the burden of proof in sex crimes, jeopardizing the constitutional protection of the presumption of innocence. Feminists may distrust the liberal theory of Rawls and argue that justice in the distribution of resources stops at the door to one's home. Yet one should not distrust the liberalism of Mill, a firm partisan of women's rights his whole life. Taking Mill as a model, feminism and liberalism have a long way to go together, each in good company.
WOMEN'S HUMAN RIGHTS IN THE FRAMEWORK OF ARGENTINE DOMESTIC LAW: TREATMENT SINCE THE RETURN TO DEMOCRACY
MAPA TERE A FLORs
I. INTRODUCTION ........................................................ 335 II. THE CONSITUTION OF THE CITY OF BUENOS ARES ..................... 337 LI. CONCLUSION .................................................... 340
I. INTRODUCHON Argentina's return to constitutional rule on December 10, 1983 also represented its definitive incorporation into the international systems for the protection of human rights. On issues specifically relating to women, of special significance is the crucial decision that resulted in the ratification, in 1985 by Law No. 23,179, of the Convention on the Elimination of All Forms of Discrimination Against Women. This treaty, pursuant to the 1994 constitutional reform, acquired constitutional rank, along with other human rights instruments, as provided in Article 75(22) of the Constitution. The treaty thus became part of what Bidart Campos calls "the bloc of federal constitutional law."2 Several legislative measures were adopted for the implementation of this convention, due in large part to the active participation of women's groups, which represented significant progress. These include laws regarding joint custody, equal rights for children born out ofwedlock and civil marriage. The so-called "quota law," Law No. 24,012, is especially notable. This law guarantees the participation of at least thirty percent women on the lists of candidates for national
1. This issue is developed in Maria Teresa Flores, La Igualdad Real de Oportunidades,
INVESflGAR, May 1997.
2. GERMAN BIDART CAMPOS, Tomo V, La Reforma Constitudonal de 1994, in TRATADO ELnw.NTALDEDEpciosH Nos555, (1995).
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elective offices. As noted above, the constitutional reform of 1994 has been quite important The reform included important language in Article 37, incorporated into Chapter 2 of the Argentine Constitution, which is entitled "New Rights and Guarantees." Paragraph two of Article 27 states: "real equality of opportunities between men and women in access to elective office and party positions will be guaranteed by affirmative actions in the regulation of the political parties and in the electoral regime." It ties this concept to the power of Congress, established in Article 75(23) of the reformed Constitution, to "legislate and promote affirmative actions and measures that guarantee effective equal opportunity and treatment, and the full enjoyment and exercise of the rights recognized by th[e] Constitution and the international human rights treaties in force, in " particular with respect to... women .... Evidently, affirmative actions, such as those incorporated through Article 37, require that society in general become aware of the political rights of women, their responsibilities, and the need for their active participation in democratic processes. In Argentina, Law No. 24,012 replaced Article 60 of the National Electoral Code and provides: "The lists submitted shall contain at least thirty percent women candidates for the elected offices and in proportions such that there is a possibility of being elected. A list that does not meet these requirements will not be made official." Adhering to this system, several Argentine provinces have already issued similar statutory provisions, among them, Chaco, Law No. 3,747, and Mendoza, Law No. 5,888. These provisions also prescribe that the lists of candidates "must contain at least 30% women candidates for the elected offices and in proportions such that there is a possibility of being elected." The province of Santa F6 provides, by Law 10,802/92, that in any list of candidates submitted by the political parties, "at least one-third shall be women, in an interspersed or successive manner." In addition to recognizing quotas, the province of Buenos Aires, through Law No. 11,733, also guarantees at least thirty percent participation of women in government. Although in most cases the duration of the law that prescribes the "affirmative action" is undetermined, the law of Mendoza states: "The relevant provision on the percentage of women on the lists shall apply to the six elections following the promulgation of the present law." The international legal instrument, i.e., the Convention on the Elimination of All Forms of Discrimination Against Women, states that special measures of this type will cease "when the objectives of
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equality of opportunity and treatment have been achieved."' Measures such as those mentioned above are important achievements for women; however, there have been so many centuries of such harsh discrimination, in addition to the struggle of the large marginalized sectors, that the path ahead Will require all the more strength, intelligence, and solidarity. In this context, we also should recall that many women suffer dual discrimination based on gender and poverty. Evaluating the overall situation of women in our time is complex given that contradictory elements co-exist. For example, all of the work carried out and lessons learned from women's participation in the social and political movements in the Americas during the 1980s, and their importance in the processes of return to democracy, have not been translated into a greater access to decision-making positions or a real increase in political space within the government. At the present time in Argentina, although a statutory framework exists that recognizes the equality of human beings and includes antidiscriminatory principles, 4 sociocultural standards have yet to be permanently modified. Women still encounter enormous difficulties gaining access to leadership positions and continue to earn lower real wages than men. Single women supporting households have difficulty obtaining loans to purchase homes and displaced persons or refugees must deal with even greater inconveniences as they place themselves or their children in a new environment. I. THE CONSTIrUTION OF THE CiY OF BUENOS AIRES In conformity with the provisions of Article 129 of the Constitution of Argentina reformed in 1994, the city of Buenos Aires adopted its own Constitution, or Organizational Statute. This Constitution was endorsed by the city's Constituent Convention on October 1, 1996. Since the Buenos Aires Constitution is the most recent Argentine constitutional text, it is valuable to analyze whether its provisions display a gender perspective, and whether it encourages the full enjoyment of women's rights or whether, to the contrary, it fails to take a position on the issue. The preamble sets forth as the priority objective of the Constitution for the City of Buenos Aires: "... to promote human development in a democracy founded on freedom, equality,
3. A/RES/34/180, December 18, 1979, Convention on the Elimination of All Forms of Discrimination AginstWomen, Artide 4. 4. Hayde6 Birgin, Ciudadan~ayJttdd Nuevos Reasos eInstrumentpara IaAcd5n Ciudana, inMUJERESEN LOS'90 67-90. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 337 1998-1999
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solidarity, justice, and human rights, recognizing identity in plurality, in order to guarantee the dignity and further the prosperity of its inhabitants and of the women and men who wish to enjoy its
hospitality... .5
Book One of the Constitution for the City of Buenos Aires, entitled "Rights, Guarantees, and Special Policies," is developed under two titles: "Rights and Guarantees" and "Special Policies." Article 11 of the first Title provides for equality and "identical dignity" for all people, which includes "the right to be different, without tolerance for discrimination that tends to produce segregation based on or upon the pretext of race, ethnic group, gender, sexual orientation, age, religion, ideology, opinion, nationality, physical characteristics, psychological or physical condition, social, economic, or any circumstance that implies difference, exclusion, restriction or impairment." Putting aside the argument that the above does not include all possible discriminatory circumstances, the provision represents a clear advance by directly linking the concept of discrimination with any "distinction, exclusion, restriction, or reduction" of rights as required by the Convention on the Elimination of All Forms of Discrimination Against Women. The concept is reinforced by the second paragraph of Article 14, in which it is anticipated that when one is faced with "some form of discrimination," an amparo action can be filed by "any inhabitant and/or the legal counsel of the collective rights or interests." This is a remedy that the Buenos Aires Constitution makes available to anyone affected by discrimination, accepting not only submissions by affected women, but also by women's associations or organizations. This possibility, given the customary reluctance of many women to act individually in initiating court proceedings, either out of ignorance or fear, will allow defense associations to initiate legal actions. These organizations will undoubtedly be able to 6 perform a leading role in this respect. Chapter two of the second Title in Book One, entitled "Health," includes a guideline that the local legislature must follow in approving "Basic Health Law." Thus, Article 21 (4)-(5) requires that this law "promote responsible maternity and paternity," by placing "at the disposition of the people: education, methods, and services that guarantee their reproductive rights." The law must also guarantee "comprehensive attention to pregnancy, childbirth, puerperium, and
5. Constitution for the City of Buenos Aires, Imprenta del Gobiemo de ]a Ciudad de Buenos Aires, November 1996. 6. Birgin, supra note 3, at 84. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 338 1998-1999
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childhood until the firstyear of life...."

A constitutional plan that prescribes that future health regulations must guarantee "reproductive rights" is clearly a remarkable advance 7 for Argentine legislation. The third chapter of Title II, on education, establishes in Article 24 that the city of Buenos Aires assumes non-transferable responsibility for "ensuring and financing education that is public, provided by the state, non-religious, and free of charge." This education must consider "gender perspectives" and incorporate "programs on human rights and sex education issues." This inclusion of a gender perspective, auspicious from the outset, should be framed in a general context that promotes development with equality so as to adequately 'guarantee the basic right to education of females and males. The second Title of Book One includes Chapter 9, expressly dedicated to "Equality between males and females." It is structured as follows: Article 36 guarantees "in the public sphere and promotes in the private sphere the real equality of opportunities and treatment between men and women in access to and the enjoyment of all civil, political, economic, social, and cultural rights, through positive " actions .... It also mandates that the political parties are to guarantee "effective access to leadership positions and financial management .... ." It further provides that the lists of candidates to elective positions may not "include more than the seventy percent of persons of the same sex with probabilities of being elected," nor will they be able "to include three people of the same sex in a consecutive order." This article also provides that the legislature may not agree to the formation of committees or other units made up of three or more members that do not respect the foregoing quota. Article 37 recognizes "reproductive and sexual rights, free of coercion and violence, as basic human rights, especially in making responsible decisions on procreation, the number of children, and the interval between their births." It also guarantees "the equality of rights and responsibilities of women and men as progenitors," promoting "the integral protection of the family." Article 38 requires "the incorporation of the gender perspective in the design and implementation of public policies and the elaboration, with broad participation, of a plan for equality between men and women." This article formulates a complete framework of
7. ElimsCarca, S2audP1Rductiva:.LoP -ado Tambi enPoMico, inMuJERES EN LOS '90155-169. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 339 1998-1999
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objectives and actions that range from the "modification of stereotyped sociocultural patterns," to "the total integration of women into productive activities." The article also guarantees "to women supporting households, access to housing, employment, and credit," shelter of pregnant children and adolescents and "the prevention of physical violence." In addition, it requires the promotion of and "the participation of non-governmental organizations dedicated to women's issues in the design of public policies." Finally, Article 80(7), Title Three (relating to the legislative branch) of Book Two, which is titled "Government of the City," establishes among the powers of the city legislature the prerogative to legislate and to promote "affirmative action measures guaranteeing the real equality of opportunities and treatment between men and women.. ." Article 104(28), which is dedicated to the local executive branch, in Title Four of Book Two indicates as powers of the head of government the authority to adopt "measures that guarantee effective equality between men and women in all the areas, hierarchical levels, and organizations." Subsection 30 of that same article establishes the authority to organize "advisory councils to advise him on matters such as childhood, youth, human rights, and retirement age." MI[. CONCLUSION In the arduous and slow path towards broad recognition and effective observance of women's human rights in our Latin American countries, the Constitution for the City of Buenos Aires is an important step forward that will be consolidated at the end of 1997, when the local legislature is finally constituted, providing a full government to this federal district. It is a great step, for as Elisa Carri6 says, the state and the law must become instruments of change.8 The active participation of diverse social actors is also essential, since "the real force of constitutional texts is not in the letter of law," but in the routine daily life of the people, in the accessibility to mechanisms for filing complaints in case of violations of their rights, and in their capacity to surmount situations that constitute transgressions of the constitutional norms.9 We will continue the task, persuaded that by extending our rights and becoming aware of our potential, we will contribute significantly
8. Elisa Carri6,LegistadnyAdninistrad6n dejustida, in MUJERESDE LOS '90 115. 9. Gladys Acosta, LosDeahos de Is Mujfres en Las CoutitudonesPoti!as, in SOBRE PATRIARCAS, JERARCAS, PATRONESYOTRosVARONES 203 (1993). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 340 1998-1999
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to design and implement local, national, and international legal norms on this issue.
GENDER AND LAW: MEXICAN LEGISLATION ON DOMESTIC VIOLENCE

MARTA TORRES FALC6N'
I. INTRODUCTION ............................................................................... 343 11. THE ME cAN LEGAL SYFTM ........................................................ 344 III. LAW FOR THE ASSISTANCE AND PREVENTION OF INTRA-FAMILY VIOLENCE ............................................................................................ 347 IV. CRIMINAL REFORMS IN THE AREA OF INTRA- FAMILYVIOLENCE ... 351 V. CONCLUSION .................................................................................. 352
I. INTRODUCTION
The law is an instrument of the State used to organize and regulate the functioning of society. As societies become more complex, the law tends to follow a parallel course, usually at a reduced, and sometimes conspicuously slow pace relative to social events. The law's failure to keep pace with events has been frequently criticized and has been characterized as an obstacle to social change.2 In effect, the regulation of social relationships often carries with it the validation or legitimization of classist, racist, or patriarchal structures. It likewise signifies an acknowledgment of the public domain as a superior construct, one that is in fact, superimposed over the private domain. The latter point is particularly significant to an analysis of women's status, not only from the strictly legal standpoint, but also in broader social terms. The public-private dichotomy is one of feminism's longstanding concerns, precisely because beyond merely categorizing spheres of movement and activities, it assigns hierarchies of functions and tasks, and relegates women to the private
1. Researcher with the Interdisdplinary Women's Studies Program at El Colegio de Mexico. 2. EDUARDo NOVOA, ELDERECHO CoMO OBSTACULOALCAMBIO SocIAL (1983).
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domain.
The law has been used to perpetuate the subordination of women or to impose on them important identifying' characteristics. Examples abound of laws that penalize female adultery more severely and that restrict women's access to the workplace, to productive resources, and to the justice system itself, not to mention laws restricting access to procedures for reporting rape and sexual abuse. We have recently observed the other side of the coin in the enactment of legislation that condemns this structure of discrimination and establishes guidelines for arriving at appropriate solutions. The presence of feminism has been central to this process. Working from a variety of perspectives, militancy, academia, and the media, feminism has consolidated itself to a degree that has enabled it to petition the State with concrete demands and to design international strategies that have begun to bear important fruit in Latin America. This article analyzes the regulation of domestic violence in the Mexican legal system beginning with recent legislative reforms. The first section offers a general overview of the legal system and the diverse array of existing norms and principles. A second section addresses the Law for the Assistance and Prevention of Intra-family Violence for Mexico City [Ley de Asistmcia y Prevenci6n de la Violencia Intrafamiliarpara D.F.]. This law was the first on the subject to be el enacted in Mexico. The law is administrative in nature and has certain limitations, particularly in relation to the procedures it sets forth. The third section discusses reforms to the criminal code and criminal procedures that were recently approved by the House of Representatives. Finally, some conclusions are presented.
I. THE MEXICAN LEGAL SYSTEM
The structure and substance of any legal system is inherently complex and difficult to understand. Margaret Schuller proposes a model that facilitates understanding of the complexity of legal relationships based on the integration of three closely related components. The first of these is the legislative component, which includes all law, that is the totality of norms (political constitution, federal laws, local laws, codes, regulations, decrees, agreements, etc.) that sanction conduct, including both substantive and procedural areas. This
3. MARGARET SCHUI ER, PODER Y DERECiO. ESTRATEGIAS DE LAS MUJERES DEL TERCER
MuNDo
(1987).
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component thus includes the content of the law as well as the manner in which it should be applied. In relation to this point, it is important to clarify that not all laws are similar in scope; there is a precise hierarchy that places the political constitution above federal laws, which in turn are superior to the laws of each federal entity, regulations, and so forth. This hierarchy of norms is based on two criteria: the subject being regulated and the territorial reach of each law. The second component is what the author refers to as structure and includes the agencies responsible for the administration of justice. This includes the court system [juzgados, salas, tribunales, cortes] and, in general, all public offices whose function it is to apply the law. There exists a clear defined relationship between these first two components. In fact, the second depends on the first. The structure depends on the legislation. In order for these agencies to apply the law, the law must first exist. Beyond this theoretical construct, the analytical separation of the law as an abstract entity from the specific structure established for its application, facilitates an understanding of the differences, ambiguities, and even contradictions between the theoretical conception of a particular conduct and the application of the corresponding legal principle to a concrete case. Jurisprudence, which is the interpretation of the law provided by certain judicial bodies, is included in the second (structural) sphere.4 Culture is the third component. Culture encompasses the attitudes and behaviors of society toward specific norms. These attitudes may include "the conscious acceptance of these oppressive laws and practices or women's lack of understanding and awareness about legal objectives andprocedures".! This last cultural element rarely appears in law school texts, which focus instead on the weight of the law and, to a lesser degree, the administration ofjustice. Margaret Schuller's contribution, however, is essential to understanding not only the disparities between the norms and their application, but also how the personal opinions of judges and other authorities permeate judicial decisions and
4. In Mexico, the Supreme Court ofJustice and the federal appellate courts (Tribunaks C0/ adas) (both federal institutions) are the bodies that emit jurisprudence or precedents. Jurisprudence or precedent is created when five consecutive cases are resolved in the same manner. The authority of the federal appellate courts to emitjurisprudence has been widely criticized because, inter alia, it has generated a number of contradictory rules of law. Nonetheless, an analysis ofjurisprudence is very useful for understanding the positions of the judges and the arguments of defense attorneys, particularly in criminal cases that are confidential. 5. ScHULE.I, supranote 3, atS (emphasis in original).
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sentences. This understanding in turn, allows for awareness of why women do not approach these institutions and why, when they do, they almost never achieve the expected result. If this model is applied to the Mexican legal system, the first component will be found to be completely saturated. There exists an excess of norms that, far from organizing and systematizing the regulation of social life, has instead produced a genuine legislative jungle. There is a political constitution for the entire Republic, and each sub-unit of the Federation has its own constitution, although the latter cannot contradict or supersede the federal constitution. The same holds true for civil codes, civil procedure codes, criminal procedure codes, etc. This means that in all of the Republic, there are a total of 32 constitutions, 32 civil codes, 32 criminal codes and so forth. If regulations and other administrative provisions are also considered, the number of laws grows exorbitantly. For example, when Mexico City, the Federal District, enacted a law on the subject of domestic violence, several states followed suit shortly thereafter using the law adopted in the capital as a blueprint and virtually copying it. As soon as the law entered into force and bureaucratic institutions were established for its application, another initiative was introduced to legislate on domestic violence in the criminal sphere. Even in a new area such as this one, an excess of disperse norms lacking any systematic order has emerged. This proliferation of legal norms has its counterpart in the judicial structure. The sheer number of courts of first instance, appeals courts, district courts, federal appellate courts, etc. makes an analytical overview of their functions and tasks virtually impossible. It should also be noted that there exists no formal judicial career in Mexico. This means that judges and other members of the leadership of these institutions frequently change, so a large number of people are always in the training process without actually becoming specialized. With respect to the cultural component, it should be mentioned that there is a deep distrust of the authorities, judicial authorities in particular. Numerous incidents of corruption have played a significant role in public disenchantment with the administration of justice. This disenchantment is experienced perhaps more frequently by women than by men. In effect, access to the system itself, because of all its corruption and iiefficiency, is more difficult for women. This difficulty of access should be attributed in part to cost, but also to the fact that few lawyers are willing to defend women's interests, which continue to be seen as peripheral and offering little chance of success.
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The three components interact in such a way that the law is not carried out on a single plane. To the contrary, the almost perpetually conflictive relationship between the three components makes the law seem to be a human undertaking rather than an external imposition removed from social life. The law is an expression of the dominant ideology and often, given its complexity, reflects a collection of competing ideologies. Traditionally the needs of women have been ignored by the law, relegating them to the realm of the uncontemplated. This situation in and of itself, contains a measure ofviolence. We could also include in the cultural component the analyses of legislation formulated from the feminist perspective, as well as, the initiatives that have emerged from these analyses. A clear example of this process is laws on the subject of domestic violence which have been enacted in different Latin American countries. In 1994, the Inter-American Convention to Prevent, Sanction, and Eradicate Violence Against Women was signed in Belem Do Par-. Several countries in the region subsequently enacted special laws on intrafamily violence and reformed existing codes. In fact, Argentina, Bolivia, Costa Rica, Chile, El Salvador, and Peru, among others, have laws on domestic violence. The Puerto Rican law predates the Convention and was the first to be enacted in Latin America. Uruguay reformed its criminal code in order to classify intra-family violence as a crime. The situation in Mexico has varied somewhat from that in other Latin American countries. Several months before the ratification of the Belem Do Pari Convention, the House of Representatives for Mexico City approved the Law for the Assistance and Prevention of Intra-family Violence, which only has effect in the capital. Similar laws were subsequently enacted in the states of Quer~tero and Coahuila and draft legislation is pending in the states of Morelos, Colima and Nuevo Le6n, among others. Most recently, the criminal code and code of criminal procedure were reformed to classify domestic violence as a crime.
III. LAW FOR T=E ASSISTANCE AND PREVENTION OF INTRA-FAMILY
VIOLENCE
The Law for the Assistance and Prevention of Intra-Family Violence is a law that was approved by the House of Representatives for Mexico City on April 26, 1996, and entered into force on August 8, 1996. The House of Representatives is a local legislative body, meaning that it can only enact laws on certain subjects and only for Mexico City.
348
For example, it does not have the authority to reform the civil or criminal codes, since they include a federal component. The Assembly only had the authority to legislate on administrative matters and to regulate special procedures. These restrictions, clearly manifest in the law, were inevitable. The euphemisms and ambiguities, however, were not inevitable. Article 1 states that the purpose of the law is to "create rules and procedures for assistance for the prevention of intra-family violence in Mexico City." Although the emphasis is on prevention, the law itself establishes procedures, sanctions, and mechanisms for appeal which go beyond the exclusively preventive character of the law and are more inclined toward case resolution. There is no reference to aggressors and victims, but rather to "generators" and "receivers" of intra-family violence, which seems to be a euphemism that introduces ambiguity into the violent relationship, as if generation and reception were distinct, unrelated acts. For the effects of the law, the family is defined as persons united by a blood relationship, without restriction in terms of degree, by a civil relationship, marriage or by a relationship of concubinage. Common law unions are included, but they are only mentioned, not defined. This omission is unfortunate, since de facto unions do not appear at all in any other law. The law on intra-family violence is the only one that refers to these unions. By not defining them, however, their mention becomes virtually meaningless. Violence (that abstraction that someone generates and someone else receives) is defined as "a recurrent, intentional, and cyclical act aimed at dominating, subjugating, controlling, or assaulting, physically, verbally, psycho-emotionally or sexually." Herein lies the problem, which also surfaces in other Latin American laws. What should be understood by "recurrent" and "cyclical" ? These terms appear as concurrent elements and not as synonyms. Can there be a recurrent act that is not cyclical or vice versa? Moreover, is it necessary to allude to intent when sanctioning violence? Can one conceive of something being generated without previous intent? Can there be an act "aimed at dominating, subjugating, controlling or assaulting" that is not intentional but rather accidental? Even though on the surface these questions may be unnecessary and even pointless, it is very important that the law be sufficiently clear so that it may be applied appropriately and with precision. In fact, aggressors in cases of domestic violence often allege as a defense, that the injuries in question were produced as the result of
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an accident. For this reason, it would be worthwhile to preclude the possibility of this defense in the text of the law. The language must be clear and free of ambiguity. It would be more appropriate for the law to state that the intention of the generator, is irrelevant in cases of physical injury. The problem with broad definitions, which might provide quite illustrative language, arises in transferring the principle to the concrete case, where the conduct must conform precisely to the definition. How can intent be evaluated when it is something so personal and subjective? Proving the intent of an act is virtually impossible, except in cases where there is an explicit confession. Including this element in the definition is somewhat dangerous, and unnecessary. By dissecting abuse into physical, psycho-emotional, and sexual elements, the law emphasizes the fact that the acts or omissions must be "repetitive," "reiterative," and "aimed at subjugation and control" to be covered. In the case of sexual abuse, if the conduct in question can be classified as criminal, the law refers the case to the criminal code. Otherwise, abuse is defined as denying "sexual-affective needs, inducing undesired practices, and using jealousy to control, manipulate or dominate the partner." This last definition introduces an innovative element that alludes to a combination of sexual and psychological abuse not usually registered in legal proceedings. The law stipulates two procedures: conciliation and amicable settlement. Although the terms appear to be synonymous, amicable settlement in the law refers to an arbitration process. Both procedures take place in special units established to give attention to intra-family violence. These units are administrative agencies that6fall under thejurisdiction of the political delegations for Mexico City. The first option is conciliation. For this purpose, Article 20 stipulates that the "conciliator" (who is an undefined functionary of the delegation distinct from the arbitrator) will proceed to "seek compromise between the parties, exhorting them to conciliate, informing them of the consequences should the conflict persist, and offering them all possible alternatives." If there is conciliation, an agreement is signed. The agreement is obviously administrative in
6. Each state of the Republic is territorially divided into municipalities, each of which have their own political authorities. In Mexico City, this territorial unit falls within the competence of the political delegations, which are dependencies under the executive branch (of the government of Mexico City). The leaders of the political delegations are not elected by the citizens.
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nature and, consequently, cannot address issues such as the marital status of the individuals, the guardianship and custody of minor children, the separation of spouses, etc. Thus, conciliation can only mean reconciliation. Although, the parties could voluntarily agree to initiate legal divorce proceedings, which would only have legal effect upon ratification before a family courtjudge. If there is no conciliation, the procedure for amicable settlement or arbitration may or may not follow. This arbitration process is an extremely weak link in the law, because the procedure is administrative rather than legal. This means that the procedure can only be applied to persons who voluntarily submit to it. Even more, the parties must expressly request the intervention of an arbiter to settle the intra-family conflict. The arbiter, in the law's best euphemistic style, is called a friendly adjuster (amigable componedor). In practice, this term should probably be considered more a proper noun than a precise description. It is possible that he or she will be neither all that amicable, nor much of an arbitrator. If one of the parties, presumably the aggressor, does not accept arbitration by the Delegation, it cannot be imposed. The injured woman in that case will have no other options except those available under ordinary civil or criminal law. The law under discussion will then be ineffective. The arbitration procedure includes the presentation of evidence (except confessions, making the intent of the acts even more difficult to demonstrate), oral arguments and a decision. The law establishes sanctions for those who fail to appear when summoned or fail to comply with the agreement or final decision. The sanctions consist of a fine of 30 to 180 days of minimum wage and up to thirty-six hours of administrative detention. The promulgation of this law constitutes progress in the area of legal attention for abused women. Its principal attribute is that it assigns concrete responsibilities to diverse institutions of the Mexico City public administration to carry out large-scale prevention campaigns. It is an instrument of coordination and cooperation among government offices in the capital. Large gaps still remain which should be bridged with appropriate measures, efficient procedures, and genuine protection mechanisms for the victims. Paradoxically, instead of continuing forward on this road already begun, a new route was subsequently attempted in the criminal field. In December 1997, a series of reforms was approved to classify intrafamily violence as a crime.
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In November 1997, the President of Mexico endorsed a reform initiative in the area of intra-family violence the most important elements of which are the following: a) Physical or psychological violence perpetrated within the family is considered a crime punishable by six months to six years ofjail. b) It is expressly stipulated that rape is a crime that can occur in the context of a marriage. The inclusion of domestic violence in the criminal code has been strongly debated. The central issue of debate has to do with the viability and effectiveness of this measure. Are abused women going to report offenses that may send their husbands or partners to prison? Do they really want their husbands punished or do they only want an end to the violence? Moreover, is this the solution? Will temporary imprisonment be effective in stopping the violence? Besides this, the time in detention will be very short because it is a crime that is bond-eligible. In other words, even supposing that a complaint lodged by a woman is processed, that her version of events is believed7 and that the aggressor is arrested, the most likely outcome is that within three days he will be released after having paid a bond with money that could have been used for family expenses. This fact alone is enough to question the viability of the criminal option. But there is more. Arrest and detention for such a short time may even provoke further violence. Another issue worth mentioning is the inclusion of psychological violence in the definition of the crime. The term is not defined. The law simply mentions acts that "attack the psychic integrity" of another family member. Psychological violence is always present in abusive relationships. Wherever there is physical or sexual violence there is also emotional harm. The latter can also occur independently. Nonetheless, the creation of this crime is bound to cause numerous complications. Psychological violence is hard to identify, as well as to define, not to mention the difficulty of proving it. Moreover, there is a generalized belief (or prejudice) that those who inflict psychological violence are mainly women. The application of this norm could entail a risk in this sense. To summarize, domestic violence as a crime provides a clear example of the interaction between the three components in
7. In the majority of cases of complaints of injuries perpetrated by a husband or partner, the authorities question the veracity of the woman's story and, in cases where the complaint successfifly goes forward, they pressure the woman to forgive the aggressor and to avoid trial.
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Margaret Schuller's model. On the one hand, there is a norm in the criminal code (legislative component) that is broad and vague. On the other, difficulties can already be foreseen in the interpretation and application of the norm (structural component). These difficulties derive mainly from the concept of psychological violence, which contains a mix of beliefs and prejudices that continue to blame the woman (cultural component). A very ambitious idea, that seeks to respond with maximum severity to violent behaviors, may turn out to be a white elephant due to its ineffectiveness. The other important aspect of criminal law reform is the inclusion of rape, in the context of matrimony, as a crime. In the strictest sense, it was not necessary to modify the text of the law since it did not exclude marital rape. However, Supreme Court interpretations of the law had sparked indignation among different sectors of the population, particularly women's organizations. The decision was made to reform the code precisely to avoid misinterpretations. In effect, some cases of marital rape were considered by the Supreme Court to be acts in "wrongful exercise of a right," a crime with a significantly lower penalty,8 and one with bond eligibility. The problem is not so much the punishment as the way rape and the sexual relationship in marriage is conceptualized. Any sexual act should be a space in which two autonomous wills concur; to continue to talk of a husband's right and a woman's obligation is tantamount to denying her free will. In this case, the law can serve to bind interpretations to a standard of equity between spouses. Although difficulties remain in relation to reporting and proving the crime, the inclusion of marital rape in the substantive text is undeniably correct. To summarize, it could be said that criminal reforms in the area of intra-family violence show little promise due to their broad definitions and the scant effectiveness of criminal proceedings. With respect to marital rape, it is a shame that the code had to be modified in order to avoid erroneous interpretations, but in any event, that deficiency has now been corrected.
V. CONCLUSION
As in other Latin American countries, the feminist movement in Mexico has achieved a degree of consolidation that has enabled it to formulate concrete demands of the government in terms of
8. The punishment for rape is eight to fourteen years ofprison, while the punishment for wrongful exercise of a right is approximately one year. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 352 1998-1999
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responding to women who suffer from violence. Recent legislative changes in the area of domestic violence serve as an example. Despite the undeniable importance that the incorporation of this topic into the legal system represents, it is worthwhile to point out some difficulties and limitations. First, although the introductions to both the Law for the Assistance and Prevention of Intra-Family Violence and the criminal reform initiatives dearly state that the main victims of domestic violence are women, this gender perspective is diluted in the legal text. The family unit is emphasized and the individual rights of each family member, particularly the woman, are subsumed by this abstraction which in practice becomes dearly oppressive. The Law for the Assistance and Prevention of Intra-Family Violence, which is administrative in nature, is a useful instrument for conciliation processes but offers few options for resolving conflicts. The criminal reforms are so forceful in terms of the severity of sanctions and procedural rigidity that their ineffectiveness can already be predicted. It would have been more useful to impose alternative penalties, such as community service or administrative detention. An appropriate solution must begin with a series of comprehensive measures that offer legal certainty to the victims, holistic attention to the victims and the aggressors, and socially useful punishments. To accomplish this, family legislation must be thoroughly reviewed and protective measures that preserve people's physical and psychological integrity must be adopted, setting aside restrictive and oppressive abstractions derived from a romantic notion of family unity.
THE LAW: AN ART OR A SCIENCE?

ALDA FACIo
I. MY INrIATION INTO THE ART OF NOT THINKING AND THE SCIENCE
355 OF MEMORIZATION .................................................. 358 I. THE BODY OF LAW AND OTHER INJURIES TO THE BODY ................ 361 III. REVEALING THE SECRETS FORA NEW PARADIGM ..........................
362 A. Step I ...................................................
364 B. Step 2 ........................................................ 366 C. Step 3 ........................................................ 367 D . Step 4 ........................................................ 368 E. Step 5 ........................................................ 369 1. The CulturalComponent .......................................... 370 2. The Structural Component..........................................
371 3. The Formal/NormativeComponent.................................
371 F. Step 6 ........................................................
I. MYINTIATION INTO THE ART OF NOT THINKING AND THE SCIENCE OF
MEMORIZATION
I still have the notebook I used for my first exam as a law student. The course was called "Introduction to the Study of Law" and the exam consisted of a single question: "Is the law an art or a science?" I was fascinated by the question. I was convinced that, through my response, I could demonstrate not only that I had read more than the recommended texts, but also that I could develop my own ideas on the subject. I thought that I would definitely do well on the exam and I congratulated myself on my good fortune. How wrong I was! I had good reasons to trust my ability. Prior to attending law school, my studies in Modem Literature trained me to critically analyze literary texts while learning to develop my own ideas through weekly essays. This was why I was so pleased with the question. I was certain that I could synthesize the professor's lectures and the texts we had read during the first weeks of the semester, analyze them, and
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then express my own views on the law. I remember thinking that even if law courses were totally boring compared to the stimulating classes on English, Greek, and Russian literature I had taken in what already seemed like another life, at least the exams were interesting.' Although many weeks passed before our notebooks were returned to us, each day the professor began class with a monologue about how disappointed he was in us, how unprepared we were, and how hard it would be for us to learn to be good lawyers since we did not have what it took to become partners in one of the "prestigious" law firms in the country. As a matter of fact, the professor himself had not achieved this highly coveted goal-possibly because his last name was not among those that decorated the doors of those firms-but this did not stop him from believing himself to be an authority on the qualities needed to be a good professional in the legal field. Featured on his list of requirements was the ability to choose the proper tie for each occasion, the ability to behave like a gentleman at all times, membership in a country club, having a "dignified" hair cut, and a whole series of other issues that led us to understand that fellow students who were not from the "correct" social class, and all women regardless of our social class, were a priori ineligible to join the best law firms. At last the day arrived for our exams to be returned. More than six weeks had passed during which time the anxiety of each student had approached ulcer-producing proportions, not to mention gastritis, and other somatic illnesses. The professor informed us that since some students did an excellentjob on the exam, he was unable to use a curve that would improve the standing of the more mediocre exams. He obliquely led us to see the exam as a test of our intellectual ability, or lack thereof, compared to the other students, rather than simply a measure of what we had learned. I remember that despite the professor's comments, I remained fairly confident that I had done well on the exam. One can imagine my surprise when I heard my name among the worst exams. Still disbelieving, I retrieved my notebook and there was the grade. A five on a ten-point scale. It was the first time in my life I had received such a bad grade. But what I had the most difficulty believing was what the professor had written, or rather, not written, on my exam notebook. There was no explanation or comment on my synthesis of the ideas of the studied authors, only three large red Xs on the three
1. It would be interesting to investigate whether there is a direct correlation between how much students of a particular discipline or school are allowed to think and how much power they wield upon graduation.
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pages where I had developed my thesis that the law was neither a science nor an art. At the bottom of the last page there was a terse comment, also in red: "no one asked for your opinion." After crying bitterly all night, I went to find him the next day to ask for an explanation. With the authority of knowing himself to be right, he answered that although he felt that my analysis was excellent, I had to understand that a first year student could not
express opinions; she had to educate herself first. "It's a shame," he

told me, "if you had just left it at your magnificent synthesis of the studied authors, I would have given you a ten." He explained to me in a fatherly way that since it was his duty to teach me to be a "good professional," he also had to teach me to respect the unvritten rules of our profession. He reiterated to me that despite the fact that I was a woman, I could become a good lawyer, perhaps in the area of family or labor law, ifI first learned a little humility. The following five years served to reinforce what this first professor taught us: 1. You will memorize rather than make any attempt at analysis, research, or questioning. 2. You will listen passively in classes erroneously termed 2 "magisterial" [nagistrales] and will reproduce the material in exams. 3. You will study the norm without regard for social context. 4. You will read and repeat the one valid doctrine, which is the one dictated by your professor. 5. You will forget ethics and justice and you will adhere to the norm above all else. 6. You will accept the law as a science. 7. You will renounce the law as an instrument of social change. 8. You will employ reason as the only method of understanding reality. 9. You will assume a position of neutrality and you will commit yourself to objectivity. 10. You will renounce all that is personal. I gradually became aware of many other messages that made many leftist colleagues, men and women, lose their desire for justice, replacing it with their unconscious acceptance of other values. I understood that even though I had been advised from the beginning that I must wait to learn more before expressing my opinions, what
2. The dictionary defines "magistral"as that which is accomplished with mastery or skill [maestrfa]. Most classes that I attended in law school were devoid of magisterial qualities.
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was really required was a willingness to pretend not to see what was really being taught and to accept facts that were absolutely or relatively false, as truths. The truth was not that I should refrain from expressing ideas until I had more legal training in the final years of law school, but rather, I should remain silent until I had internalized the metadiscourse and values that are taught subliminally in most law schools to this day.
II. THE BODYOF LAWAND OTHER INJURIES TO THE BODY
My involvement with a feminist group most helped me to preserve Gender-based analysis helped me to my critical judgement. understand, as clearly stated by Frances Olsen,' "that Western thought is a dichotomous structure composed of two opposing, hierarchical, and sexist/sexualized poles."4 According to Olsen, if we take one of these dichotomies as an example, "that of culture/nature, which holds that the world is divided into things, facts, and behaviors placed in the cultural setting or things, facts, and behaviors placed in the natural setting," we can demonstrate that "for the patriarchal value system, not only are the things, facts, and behaviors situated in the cultural setting more important than those in the natural setting, but men are situated in the former context while women are 'relegated' to the undervalued natural setting." And, of course, by placing men in the cultural setting, they become the parameter that defines humankind. Years later I would realize that comments that I considered to be trivial or innocuous were laying the foundations for a professional identity based on mutual distrust and competition. The message was aimed at making us believe that a trial between two big companies, for example, was far more intellectually stimulating than defending families that had been evicted from a property. In this way, one could convince herself that if she chose to work at the service of the powerful, it was not for the money but rather for the challenge posed by difficult cases. Strategies like this forge in the student an From there, admiration for lawyers who win difficult cases. is only a step away. admiration for lawyers who earn lots of money
S. Unofficial translation of Frances Olsen, The Sex of Law, in THE POLiTICS OF LAW 453 (1990). 4. I must add here that a classic example of dichotomous thought was given by Professor Rocio Villanueva who countered vigorously my critique of legal education based solely on the teaching of positive law. According to her dichotomous understanding of things, my critique was not only a critique of positivism but also included the proposal to eliminate the teaching of positive law. At no time did I advocate this. My critique absolutely did not imply a return to natural law. I think that it is possible to teach positive law and think ethically.
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In most law schools, education is based on positive law because of

the dual belief that those studying law are going to become litigators, administrators of justice, or legal specialists, and that knowledge of positive law is what makes a good lawyer. This is the case even though there is no reliable research on the professional aspirations of those entering law schools nor on the supposition that the best lawyers are those with the best understanding of positive law. It is said that courses on the history, philosophy, or sociology of law, and even human rights, are peripheral to professional training and only serve to make future lawyers more well-rounded. Evaluations of Latin American law schools since the 1950s reveal that the education offered does not prepare students to litigate upon graduation. The vast majority of law schools have undergone curricular reform and have introduced new pedagogical methods as a response to negative studies. These reforms, however, have not eliminated the problems identified by the studies, such as unethical legal professionals, a view of norms outside of their original context, traditionalistic legalism, dogmatism, and the lack of a defined legal criteria.! As a result, the proposed reforms have only a tangential effect on the teaching of law. Although the discourse that identifies problems with legal education attempts to implement proposals to address them, the structural causes of the situations identified as problems by this discourse are not explored in any depth. As Humberto Pefia
Taylor said, "it is worth pointing out that, in any event, it is not enough to identify problems-as this critical discourse does-without clearly identifying the power strategy that appears to have created them as such since, from the standpoint of perpetuating that strategy, 6 they are not, in fact, problems." And what is this power strategy that would enable us to understand the structural causes of these problems? It is only from a genderbased perspective that we can discern power relationships based on the male domination of the female, as well as other relationships of domination/subordination associated with gender. Clearly the strategy is determined by the patriarchal rationality that conditions us to view and understand the world in a dichotomized,
sexist/sexualized, and hierarchical way.
5. Collection of diagnostics on legal education in Colombian, Costa Rican, Guatemalan, Ecuadorean, and Panamanian schools. ILANUD, 1991. 6. Humberto Pefia Taylor, Hacla una Transformad6nde la Peaspectiva CitcaSobre elDereho, PORTAVOZJuly, 1995, at 26.
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And why is it important to refer explicitly to the patriarchal rationality? Because if we can see that among the facts, values, and behaviors that are overvalued in our patriarchal societies are the production of objects, even weapons, that destroys nature in the name of progress, and in the control of emotions, even if through the use of carcinogenic chemicals, we realize that overvaluing the masculine not only harms women but is the root of almost all problems we are facing today. From a gender-based perspective we can see how, through an ostensibly de-politicized and neutral study of existing norms, the student is familiarized with the categories and concepts of a given law and with a method by which to identify the norms applicable to a given problem. What is taught is an overvaluation of the facts, values and behaviors associated with males. In this system, the legal field and the laws themselves are identified with a superior hierarchy - the masculine side of the duality. As Olsen 7 states, it may be that "Justice" is represented by a woman, but according to the prevailing patriarchal ideology, the Law is masculine, not feminine. The law is conceived as rational, objective, abstract, and based on principles, which is how men describe themselves; and the law cannot be irrational, subjective, contextualized, or personalized, as men say that women are. Moreover, as most of the diagnostics and the majority of people who have attended law school point out, students, both male and female, are not taught in the classroom how to practice law. What is it, then, that they are taught, and to what ends? Before answering this question, I want to say that I do not believe the answer lies in importing the legal education model used in the United States, which is currently so much in vogue. I have at least two reasons for this. The first is that the legal education in the United States only appears to have a more practical focus." And even if it did, learning to litigate should not be the central feature of a legal education. The second reason is that the professionals produced by United States law schools are not necessarily the model that people interested injustice would want to emulate. Returning to the question of what is actually taught in law school and what purpose is accomplished by this education, some might think that the problems identified by the studies are attributable to poor planning, poorly-designed curricula, lack of vision, deficient
7. Unofficial translation of Olsen, supra note 3. 8. For further reading on this subject, see Duncan Kennedy, LegalEducation as Trainingfor HierarcAy, in TmE PoLrnics OF LAi 38-58, 1990.
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pedagogy, or even lack of faculty hours since professors in Latin American countries generally cannot dedicate much time to teaching. However, although there is some truth to all of these reasons, I think that there is a pedagogy in place with precise, although inexplicit, objectives. It is a pedagogy that compels the student to (1) place subjects in a hierarchy and accord the corresponding degree of prestige to those who specialize in different branches of law; (2) maintain the erroneous belief that law is confined to the norna agendi, perpetuating the idea that law is apolitical, neutral, and objective; and (3) maintain the idea that success in this profession is due primarily to personal effort. This obscures the fact that the legal profession caters to the political authority and may even be the political authority. It is structured in such a way that only those who are willing and able to uphold the system will have power in the legal field. These objectives must be met in order to maintain patriarchal power, which is precisely one of the objectives of the law: to create, maintain, and perpetuate power relations in our societies. But of course, this cannot be stated openly because it would be impossible to sustain one of the most important myths about the law: that it is objective, neutral, and rational. I want to reiterate that this logic dichotomizes, sexualizes, and creates a hierarchy of thought. In addition, I want to emphasize this logic because this way of conceiving and understanding reality is so dominant that we have virtually lost the ability to realize that it is one way of understanding, one logic, and not the only way of understanding and the only logic. A profound reflection about the type of education actually given to future lawyers is essential to truly reform legal education. But more importantly, an honest and critical reflection about the law itself is needed. I am convinced that introducing the gender perspective into law schools would enable this reflection process to occur and, consequently, would resolve many of the problems that have been identified. III. REVEALING THE SECRETS FORA NEW PARADIGM Incorporating the gender perspective means eliminating the androcentric perspective that permeates all human activities. It is not easy to do this, however, because the very concept of gender is dynamic and multifaceted. It requires using our brains, our senses and our feelings. In Latin American culture, only the cognitive power of rationality is valued. It is more complicated still when it must be accomplished in a formal education system where methods
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of acquiring knowledge other than through reasoning are rarely taken into account. The gender perspective implies learning how to acquire knowledge a different way and the first step in this method is increased awareness. I will outline six steps that help to incorporate the gender perspective into a legal text or context, although the last five are really intellectual and rational aids to the process of becoming aware.
A. Step 1
Become aware of the female gender's subordination to the male gender in one's personal experience. Raising awareness is a subjective process of opening up to something previously unknown. It requires looking at that "something," and at ourselves, honestly, even when it hurts. Increased awareness about sexism means understanding it rationally and emotionally in addition to feeling it inside one's body, which is where gender is experienced. This is essential to understanding that the discrimination women face and the subordination of women not only affects women but dehumanizes men and is destroying the world. Consciousness-raising is also gratifying in that it expands the possibilities of vital experiences. In the classroom, a professor may select from a number of exercises developed by feminists to raise awareness about how we have internalized sexism. These exercises enable women to realize that their individual and personal experience of submission is actually a collective, political experience of oppression. It enables men to realize that many situations they accept as natural are privileges emanating from a complex system of male domination. To develop this first step, professors should encourage their male and female students to begin with their own concrete experiences in the area under discussion in order to reflect later on the collective experience and arrive at the generalizations and abstractions needed to begin to theorize. This consciousness-raising process includes the disarticulation of masculine discourse in order to rearticulate the meaning of our experience as beings actively involved in the construction or deconstruction of society. The process of becoming aware can begin in any law course whether administrative, criminal, labor, etc. It should be aimed at making students wary of all patriarchally-created and imposed structures and institutions. This wariness will raise doubts in their minds about the supposed neutrality of these institutions and facilitate their understanding of power relationships. It is only when
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power relationships are exposed that strategies can be developed to eliminate them and replace them with egalitarian relationships. Moreover, professors should promote the organization of feminist awareness groups since, as Elizabeth Schneider says, "feminist awareness groups start from personal, concrete experience and insert that experience into a theory, assigning, through this process, new meaning and form to theory based on experience and experience based on theory."9 Of course, men can embark on this process by becoming aware of their privileges, of the services they receive from women, and the "price" they pay for these services, a price women and the world also pay. The first introductory classes must foster an awareness of the law as androcentric, meaning that it is premised on the male perspective and uses the male of the species as the parameter for what is human. Therefore, "generic" laws, those that supposedly emanate from the needs of all men and women, apply to all human beings, and affect both sexes equally, are not gender neutral, but rather are derived from the male gender, male needs and interests as representative of the species as a whole. Building awareness will help the students see that women are less familiar with their rights, and that even when they are aware of them, they do not enjoy the same access to the justice system. The laws themselves are androcentric and, ultimately, have generally not reflected women's needs, potential, or characteristics. The legal problems women experience are not wholly due to the fact that legal officials and police discriminate against them when applying generic laws. They are also attributable to the laws that do not exist, to all the institutions that have not been created, and to the lack of a legal doctrine based on the perspective of women as a subordinated gender. But, most importantly, it is due to the fact that these generic laws, as with everything generic in a patriarchal society, are actually gender-specific, and that gender is male. The process of becoming aware must lead male and female students to understand that, totally contrary to what is stated in the legal field, one's sex is relevant because it determines whether one will have more or less power in a society. This means that gender must be understood as a social category because the relationships between the sexes, as with relations between classes, races, and ethnic
groups, are socially constructed, rather than natural, occurrences. And in the case of gender relations, one gender has far more power
9. Katherine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 864 (1990) (citing Elizabeth Schneider).
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and privilege than the other. This cannot be irrelevant in the legal sphere, since this is precisely the field in which power relationships are regulated. B. Step 2 This step requires deepening understanding of sexism and its manifestations-identifying and questioning aspects of legal doctrine, legal principles and fundamentals-and the investigations upon which these principles and doctrines are based, that exclude, hide, or subordinate women. It is necessary to address these issues in depth because sexism is so broad and generalized that it is manifested in many different ways. For example, Margrit Eichler 0 identifies seven ways that sexism is reproduced: (1) androcentrism, (2) over-generalization and/or overspecification, (3) insensitivity to gender, (4) the double standard, (5) gender-appropriate behavior, (6) sexual dichotomism, and (7) family-ism. Androcentrism is perhaps the most widespread of these manifestations. It occurs when a study, analysis, or research project is conducted from the masculine perspective and presents masculine experience as the central human experience and, ultimately, as the only relevant one. Research performed on the female population, when it is carried out, relates only to the needs, experiences, or concerns of the dominant male gender. Androcentrism may take two extreme forms: misogyny and gynopia. The former is total repudiation of the feminine, and the latter, the inability to perceive the feminine perspective or making the feminine experience invisible. This form of sexism is not solved by adding a chapter or article about women to a particular code or law, presenting the point of view of a token woman, or by enumerating the terrible suffering of women in a specific situation. It cannot be resolved by eliminating legal "protections" without replacing them with corrective remedies based on the true needs of women. Androcentrism, with its two extreme forms, is commonly found in university courses, and especially in law schools. These institutions introduce the white, heterosexual male-a property owner of the dominant religion, physically unfettered, and with interests and experiences comparable to the dominant population-to the legal system. When women, children, the elderly, the handicapped, the
10. MargritEichler, NONSEXIsr RESARCH METHODS (1988). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 364 1998-1999
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poor, etc. are studied, they are approached as problematic "sectors" of "general law." Sometimes these groups are not studied at all. Androcentrism can be solved by analyzing facts from the gender perspective. This means analyzing them by asking what implications or effects the fact has on each sex and on the other forms of domination and subordination. When we ask how women and men have experienced this fact, or similar ones, how they have resisted it, and what relationship exists between both experiences, perceptions ultimately emerge that take into account the needs and experiences of both sexes. Over-generalization occurs when a study that analyzes only the behavior of the masculine sex presents the results as valid for both sexes. This method has been used systematically by researchers, distorting such important disciplines as history, anthropology, sociology, medicine, criminology, etc. This form of sexism occurs, for example, when the needs of a group of male workers are analyzed and then presented as valid for the entire working class. Overspecification is the flip-side of over-generalization. It occurs when a quality, need, or interest that is universal is attributed to only one sex. This type of sexism can be resolved by specifying which sex was used as a model for the study, or adopting language that includes both sexes when both are included. It is important to emphasize that this form of sexism cannot be addressed by the use of generic terms alone. The feminine gender must also be present in the paradigm. Over-generalization is frequently found in the latest legal texts which no longer speak in masculine terms to avoid over-specification, but instead speak in generic terms-supposedly gender-inclusive language-in such a way that it is impossible to discern if there are differences between the sexes with respect to the use of a law, or the breaking of a law, etc. The premise for this practice is that men and women are equal and both are included under the gdneric term, when, in reality, the continued use of the masculine terms would have been better because the paradigm continues to be masculine. Insensitivity to gender is present when the gender variable is ignored as a socially significant or valid variable, and facts are not analyzed from a gender perspective. Insensitivity occurs in nearly all studies of the effects of specific laws or policies. In these cases the authors forget that men have been the paradigm for the human experience and androcentrism results. Insensitivity is also reflected in the failure to include the idea that the sexes have a gender and, ultimately, the effects of any act are experienced differently by each sex. If sexual roles, the value of each gender, the different use of
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time and space by each sex, the female sex's lesser power, gender structures, and androcentrism are taken into account in the creation and application of laws, etc., it is obvious that a law cannot have the same effect on both sexes. When the gender variable is not accounted for, it is impossible to identify the problems of one sex because the information is simply not there. Insensitivity frequently occurs in legislative matters when the existence of women is disregarded in the promulgation of "generic" laws. But insensitivity also occurs when laws are promulgated that take women into account or grant them a right. For example, bills that increase maternity leave without taking additional measures to avoid negatively affecting access for women to the labor market are gender-insensitive. Although the legislation grants women a muchneeded right, by failing to consider the gender structure of the labor market, it also causes women harm by impairing their access to employment. The double standard problem is similar to what many of us know as dual morality. This occurs when the same behavior, identical situation or human characteristic is valued differently for each sex, based solely on sexual dichotomism or gender-appropriate behaviors. Gender appropriate behavior is manifested by establishing appropriate behavior for each sex, as its name indicates, based on the premise that certain behaviors or human characteristics are more appropriate for one sex than for the other. Sexual dichotomism is treating each sex as diametrically opposed and without common characteristics. The double standard, sexual dichotomism, and gender-appropriate behaviors are manifestations of sexism that are closely related to the process of patriarchal socialization in which dichotomized traits are assigned to each sex. For example, women are often characterized as passive, emotional, and dependent, while men are described as aggressive, rational, and independent. Attributes are placed on a spectrum with those on the masculine side considered socially superior. Expectations of behavior for each sex are based on this duality. C. Step 3 The purpose of this step is to make women visible, but in doing so, non-paradigmatic men are also made visible. This step begins with i the premise that androcentrism is present in the conception and explanation of any human act and women must be brought to the center of the discussion of the human experience. To accomplish
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this, we must identify what concept of woman the law contemplates as "the other" in the masculine paradigm of human beings and analyze its effects on women of different sectors, races, sexual orientations, visible handicaps, ages, etc. All women are not equal. Women have varying degrees, of power because they belong to different classes, races, ethnic groups, age groups, sexual orientations, creeds, or abilities, which are privileged or disadvantaged. We cannot, therefore, be content with a genderbased analysis that does no more than inquire into the genderneutrality of a law or principle or how it affects the woman. We know that gender is a status that is defined by race, class, ability and also defines these same factors. The awareness that women are unequal among themselves leads us to ask the following questions of legal texts. Which women are excluded by the text? Which women are favored by it? How does this text affect a visibly handicapped woman, a female head of household, an indigenous woman, a widow, an adolescent, etc.? Bear in mind, there are rights accorded to some women that discriminate against other women. This is the case, for example, of the right of a married woman to use her husband's name preceded by "de." Among other things, this "right" allows for ongoing discrimination against single women. D. Step 4 In this step, we must identify the concept or stereotype of "woman" presented to society in order to find practical solutions to exclusion, to address the problems and needs of women, and to promote any image of women that does not institutionalize inequality. Many women fear legislating in favor of women because "protections" for the woman-mother, the woman-reproducer, or the woman-family have been confused with protections or laws for the woman-person. The identification of the woman person with the woman-family is precisely one of the manifestations of sexism that we discussed in Step 2: "family-ism." It may be true, although unnatural, that women are more closely tied to the family than men. However, this does not mean that a woman does not have needs as a person that differ from the needs of the family, or the needs of the man, even though they may be similar. Family and woman are not synonyms. Men and women are equally human and equally different. For this reason, it is necessary to be aware of the ideological difference between corrective measures based on the fact that women should enjoy certain legal privileges that compensate for social
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inequality because they have experienced exclusion, discrimination, and inequality, and protective measures based on the belief that women are biologically different from men and should therefore be treated as inferior beings. One must also clearly examine how the law treats real biological differences between men and women in order not to confuse the need to treat each sex differently, limiting the human rights of women because they are the biological reproducers of the human species. In other words, one must be clear about the ideological difference between legislating to "protect" a weak being and legislating in response to needs that only women feel as full-fledged members of humanity. In the first case of this second point, the legislation is androcentric because it is based on the man as the standard for humanity, while the woman is "the different one," "the other" who requires special protection (as defined by men). In the second case, legislation includes a gender-perspective because it recognizes that men and women may have different needs. Furthermore, it does not favor the needs of one sex over those of the other and does not use men's needs as the standard for human needs since it is based on the notion that women and men are equal and different. In this case, neither sex is the paradigm for humankind; rather, each is seen as one of two sexes that comprise the human species, neither of which represents the whole of humanity.
E. step 5
Teach law as a legal system or phenomefion that is much broader than the norma agendi and is comprised of three components: formalnormative, structural, and political-cultural. These components are dialectically inter-related in such a way that one component is constantly influenced, limited, or defined by the others at the same time that it influences, limits, or defines the others. This relationship occurs to such a degree that it is impossible to understand the content and effects of a specific law, legal principle, or legal doctrine without taking into account all three components. The formal-normative component of the law is synonymous with what legal scholars call the norma agendi, meaning formallypromulgated laws. The norma agendiincludes parts of constitutional law, international treaties, substantive or procedural law, decrees, regulations, and collective agreements. The structural component of the law is the content that courts, administrative offices, police, and administrative justice officials attribute to the rules and principles found in the formal-normative
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component when selecting, applying, and interpreting them. In this sense, the structural component includes unwritten laws that have not been promulgated by any legislative assembly or formally created in a negotiation process, but which are taken into account by those who administerjustice. The cultural component of law is the content that people attribute to the law through legal doctrine, customs, attitudes, traditions, and their own understanding of the law. This component includes the way people use existing laws. But, more importantly, this component has to do with the unwritten laws that the majority obey, revoked laws that continue to have effect in daily life, and unwritten laws produced by the relationship between written laws and customs. Thus, this cultural component contains unwritten laws that have not been formally promulgated, but which, besides being obeyed by the majority of people, are formally reinforced by laws in the formalnormative component In some cases, these laws are more effective than those written in society's legal codes. In this step, the analysis of the text in question must take into account the other two components. An analysis of proposed legislation, the formal-normative component, should examine its effects on the cultural and structural components. If it is a legal doctrine, the cultural component, be aware of how it has permeated the formal-normative component and how it influences the structural component. Let's say, that the class is analyzing certain articles of Code X. We will take into account all aspects of the three components in order to present an idea of the content that people and the courts attribute to this particular text. To accomplish this, ask some of the following questions, beginning with those easiest to ansver. If, after having answered only some of these questions, we find that the article is biased toward the male gender, it will not be necessary to answer all of the questions. If, however, we do not find a sexist bias at first glance then we must ask all of these questions, as well as others, in order to be totally convinced that the end result of the text will not discriminate against women. Remember, begin with the premise that sexism exists and is present in all human activities so that the task is to identify and eliminate it wherever possible. 1. The CulturalComponent The following questions are relevant to our discussion. With respect to those who drafted the law, we must ask who drafted it; how many women participated; were women or men present who were
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committed to eliminating discrimination against women; what did the male drafters of the law think about inequality between men and women; what were their objectives in wanting to change the status quo; what people or things did they want to protect; and which privileges are retained, which are modified, and which are eliminated? With respect to the legal doctrine that could serve to support or block the law the following questions should be raised: what has been written about the conduct that this law intends to regulate; what does
current legal doctrine say on the subject; and are there
contradictions between the different ideas expressed? Laws found in the cultural component which have not been formally promulgated must be scrutinized by the following questions: how do most people feel about the conduct that the law intends to regulate; how do men and women differ in this regard; do decision makers really know what women think about this conduct or is the masculine voice the only one that has been heard and registered; upon what myths is the conduct based; are there social, religious, or traditional rules that regulate this conduct; and does the proposed legislation refer to these social, religious, traditional rules?
2. The StructuralComponent
For those who are going to interpret and apply the law in question, we ask ourselves: who are they; how have they acted in the past regarding the conduct that is to be regulated; what are their attitudes toward sexism; for example, do they believe that sexism affects the way that justice is administered or do they see it as an isolated phenomenon; what procedures exist for interpreting this law; what material conditions exist for its application and enforcement; and if none exist, is this text worthwhile? With respect to women's access to the justice system, we ask ourselves: does the text of this article or law contemplate the difficulties that women face when dealing with the justice system; does it take into account how little value is placed on women's words, their difficulty expressing themselves, their reduced access to providing "overwhelming evidence," and their low self-esteem compared to men; does it take into account that women don't have the same opportunities men have to travel to population centers, approach the police, and speak as equals to public officials; and does it take into account the consequences a woman might suffer even if she is able to gain access to the justice system?
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3. The Formal/NormativeComponmt With respect to the language of the article or law, we must ask ourselves: is what is being granted truly a right; if it is a right, why is it only being granted to women; what stereotypes does this "right" reinforce; who is the model or paradigm for the subject of the rights or obligations contemplated in this law; does this law contemplate the differences between men and women and the differences between women; what other laws regulate the same or similar conducts and are there contradictions; does this law confuse women with families; and is it truly gender-neutral? F. Step 6 Make the analysis a collective process, so that not only women and enlightened men from different sectors can enrich it at the same time that they use it for popular legal education, but, more importantly, to continue building awareness. This consciousnessraising process is the step that must precede any analysis of a legal text. Without a prior understanding that women are subordinated and discriminated against because of their sex, it is impossible to embark on a process of questioning the legal system from the gender perspective. Making the analysis a collective process, with different groups of women and men who are in solidarity and aware of their privileges, will increase the chances that the text will not exclude a certain sector, group, or class of women. This step can be carried out in a formally organized workshop seminar, or informally, over a cup of coffee. It can also be accomplished by being alert to the views expressed by women belonging to groups or classes other than the group of women, or men in solidarity, who developed the original analysis. Careful attention must be paid to the issue of men who may be in solidarity. As with the law, oftentimes these men have a pro-woman attitude on the surface, while deep down they continue to see themselves as the paradigm of humankind or believe that their privileges are "natural." For example, many men proudly state that they completely "support" their female partner and are happy that she is "fulfilled" in her job, profession, or as the person she is. Nonetheless, even a cursory examination of his behavior at home reveals that this "support" does not mean that this man shoulders his share of the domestic chores or the care of the children, that he is aware of his companion's different emotional or sexual needs, or that he is truly aware of the privileges and services he receives from other
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women by virtue ofbelonging to what is considered the superior sex. Since broadening perspectives and theorizing about experiences is a consciousness-raising process, the latter is the first and final step of any feminist methodology. It is the first step for the reasons already stated. It is the final step because analyses are, in a certain sense, theories. But they are also experiences that must be articulated outside the original group in order to resume the process of collectively sharing and theorizing about these experiences so that the resulting theory can be used to reevaluate and modify past experiences.
IS LAW AN ART OR A SCIENCE?: COMMENTS ON OBJECTIVITY, FEMINISM, AND POWER

JoAN WILLIAMS
378 I. IS LAW OBJECTIVE? ............................................ 376 II. WHICH ANALYSIS OF GENDERAND POWER? ............................... 379 Ill. CONCLUSION .................................................... I begin from Aldo Facio's wonderful, awful story of writing an exam question on whether law is an art or a science, and receiving a harsh F with the comment 'WVho asked your opinion?" This story raises two important questions for Latin American lawyers committed to the perspective of gender. The first concerns whether they should make assault on objectivity an integral part of their agenda. The second concerns their analysis of gender and power. I. Is LAW OBJECTIVE? In her insightful analysis of the jurisprudence surrounding Peru's Law on Family Violence, Rocio Villanueva Flores notes that judges have been reluctant to apply that law on the grounds that it is a vague statute and does not include an adequate definition of family This explains the urgency of Alda Facio's sense that violence need to undermine the traditional notion that law is a feminists neutral, self-executing system of rules. If the goal is to challenge this vision of law, one possible resource is the so-called "indeterminacy critique" developed in critical legal studies in the United States during the 1980s. Authors such asJoseph William Singer and James Boyle argued that law is "indeterminate."
(A 1. Rodo Villanueva Flores, Notas sobre interpretaionjuridica p"ositode 14 ley 26260y la violenciafamiliar),inVIOLENCIACONTRALA MUJER: REnFXIONES DESDEELDERECHO (1996). 2. Se.Joseph William Singer, The Playerand the Cards:Nihilism and Legal Theory, 94YAxE L
J. 1,9 (1984) (stating that the law is a description of the arguments and theories that are currently used byjudges and scholars tojustify outcomes and rules). 3. SeeJames Boyle, The Politicsof Reason: CiticalLegal TheMy and Local Social Thought, 133
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Others, such as Mark Kelman deconstructed legal arguments by

"trashing" legal arguments' claims to objectivity. 4 Robert Gordon
showed how existing patterns of argumentation served to "freeze social reality" and make alternative visions seem implausible 5 This critique often focused on rights, which were attacked on the grounds that they alienated people from authentic expressions6 or that they blinded people to utopian possibilities.7 It is nice to know one does not have to reinvent the wheel, but several notes of caution are in order. First, having read both the indeterminacy literature and the Villanueva article, it seems to me that Villanueva knows most of what was said within critical legal studies in the 1980s, and that in many ways, she says it better. A second question is whether this is a battle feminists want to fight. Within American jurisprudence it proved bitter and divisive, with constant charges that the objectivity-critiquers were "nihilists" whose only interest was in trashing. The very considerable costs of this battle are heightened in Latin America for two reasons. In the United States, the indeterminacy critique drew upon a tradition already well-established within American law. The legal realists attacked the idea that law is neutral and objective in the 1920s, drawing upon a still older tradition ofjurisprudence dating to Oliver Wendell Holmes My understanding of Latin American jurisprudence remains sketchy, but my impression is that Latin American countries generally lack a tradition similar to legal realism. If this is true, a critique of objectivity will place feminists in a much more exposed position than critical legal scholars in the United States. The potential exposure is even greater for another reason. The final session of the Pan American Conference suggests that a critique of objectivity, in the Latin American context, pits feminists squarely against other progressive forces whose identities have been forged by
U. PA. L. REv. 685, 779 (1985) (arguing that the law is somewhat indeterminate shaped by
social subjectivism and structural strands). 4. See Mark Kelman, Trashing 36 STAN. L. REV. 293 (1984) (defining "trashing" as the theory which takes specific arguments in their own terms, discovers that they are "foolish" and then looks externally for some order in the internal chaos). 5. Robert W. Gordon, Unfretzing Legal Realty: CriticalApproaches to Law, 15 RA. ST. U. L. REV. 195 (1987). 6. Peter Gabel, Reification in Legal Reasoning S RES. IN L. & SOc. 25 (1980). 7. Robin West, Murdering the SpiriL Racism, Rights & Commerce, 90 MICH. L. REV. 1771 (1992). 8. See WHInIAM W. FISHER II, MORTON J. HORWITE, THOMAS REED, AMERICAN LEcAL REAUSM (1993); OliverW. Holmes, The Path of the Law, 10 HARV. L. REv. 457 (1897) (arguing that the legal system is inconsistent in its objectivity). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 374 1998-1999
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advocacy of human rights and the rule of law. Human rights advocates, who have forged their identities through fights against repression and dictatorship, generally have rested their claims for authority and legitimacy on the charge that existing authorities have violated universal norms. The language of human rights rests heavily on notions of universality of the type that the critique of objectivity targets. Thus, a feminism focused on the jurisprudential issue of whether objectivity is possible pits feminists' claims for legitimacy against those of other progressive forces in Latin America. Is this wise? It seems to me that, in a tnachisaculture, the perspective of gender is threatening enough without burdening it with this additional fight. Do any alternatives exist? Two deserve consideration. One is to argue in a pragmatist vein, stressing what law is, rather than what it is not. While law is not a neutral, self-executing system of rules, it is not totally indeterminate either.9 The processes by which language generates meaning are related less to logic than to the form of life of which the language is a part; law is part of language. ' The key point, from a pragmatist perspective, is that certainty represents a statement about the role a tenet plays in one's form of life, not a statement about some ultimate truth with which agreement of all rational beings is, or should be, automatic." Yet even this formulation presents difficulties. Although in my writings outside of feminism I am best known as a critic of objectivity, I do not carry that intellectual agenda into my writings on gender. For one thing, people often confuse objectivity critiques with the belief that nothing is true, so that one's feminist credos are quoted back as evidence of self-contradiction.12 This is silly: it mistakes a conversation on epistemology, on what truth claims mean, with a claim that truth claims are incoherent. These are technical issues, best left for conversations on philosophy. Conversations on gender
9. SeeJoan Williams, CiticalLegal Studies: The Death of Transcendence and the Rise of the New
Langdels, 62 N.Y.U. L. REV. 429, 588 (1987) (stating that both arguments are premised upon an "either/or" approach);John Stick, Can Nrhilism be Pagmatic, 100 HARV. L. REV. 332 (1986) (arguing that practical legal reasoning and process demonstrates how the indeterminate argumentfails). 10. See LUDWIG WITGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (G.E.M. Anscombe trans., 3d ed. 1968) (stating that the definition of the law is dependent upon the society over which it
governs).
Incommensurability, andJurisprudence 63 TUL L. REV. 1651 (1989) (critiquing absolutes and a

persisting focus on the way viewpoints may affect perceptions). 12. Se4 e.g., Dennis Patterson, Postmodemism/FeminismlLaw,77 CORNELLL. REV. 254 (1992) (questioning the viability of feminism during postmodern critique of reason). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 375 1998-1999
11. SeeJoan C. Williams, Sympasium: MidhaelJ Penyr's Morality, Politics, and Law: Abortion,
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are already too fraught with difficulties to allow these issues to enter
and confuse. An alternative approach is to entirely evade profound questions concerning objectivity. In the context of gender, the key problem is that even conceding that objectivity is possible, courts and legislatures fail to live up to their own stated standards of objectivity in their treatment of women. Thus, the Peruvian Law on Family Violence is not enforced on the grounds that it is too vague, whereas other equally vague laws are enforced without comment. One does not have to engage in philosophical discussions to mark this as inappropriate and unfair. From the perspective of gender, all we need to show is that current laws, and the ways they are interpreted, do not live up to their own claims to objectivity. Let human rights advocates argue that law can be neutral and objective; we may disagree, or argue that its objectivity means something much more complex and contingent than they assume. But the key point for feminists is that, bracketing the question of whether law is ever objective, the laws we object to are
not.
II. WHICH ANALYSIS OF GENDER AND POWER? My second brief comment concerns gender and power. Ten years of work in feminist jurisprudence in the United States has informed me about the relationship between gender and power. But it has also confused me, in ways that only began to clear up when I read Alda Facio's subtle and astute Cuando el Genero Suena, Cambios Trae s Feminist jurisprudence in the United States often elides the question of whether feminists need an analysis of gender and power. Catherine MacKinnon's analysis of gender as dominance has many strengths. Her theory picked up a theme that has been around since the early years of second-wave feminism, for example in the influential Desire and Power4 and has developed it into a full-blown theory of gender. MacKinnon's sustained analysis of the ways our sexuality eroticizes dominance and submission is an important and enduring contribution, and has been accompanied by movements designed to separate power from desire in the workplace (sexual harassment law), the home (domestic violence law), and in entertainment (pornography).
13. ALDAFAcIO, CUANDoELGENERoSUENACAMBIOSTRAE (1996). LIFEAND LAW 46 (Catherine Stimpson ed., 1987) [hereinafter
14. Catherine A. MacKinnon, De.ire and Power, in FEMINISM UNMODIFIED: DISCOURSE ON FEMINISM UNMODIFIED]. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 376 1998-1999
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Far more controversial is MacKinnon's claim that the linkage of power and desire is the chief engine of gender. This not only posits the controversial and divisive claim that a single engine drives the extremely complex phenomenon of a gendered world; it also glosses over the tradition of socialist feminism, which points to the structure of work and family as a key engine in the "gender factory."'5 Gender can usefully be linked both to the structure of sexuality and to the structure of work and family. This is one important way MacKinnon's analysis needs to be reassessed. The second is even more basic. MacKinnon's analysis attributes to power an on-off quality that links men with power and women with powerlessness. "[O]n the first day that matters, dominance was achieved, probably by force.' 6 This kind of talk is useful for achieving one of the key goals of feminism: women bonding in anger against men (consciousness-raising). It is far less effective at building successful coalitions for gender change. Many women are repulsed by the notion that they are men's victims. They don't feel like victims, and believe that feminists' descriptions make them sound like losers. The critiques of MacKinnon that illustrate this point are often Many men, particularly men of color called the agency critiques and working dass men, become outraged when they are described as privileged. In fact, they don't feel privileged; they feel oppressed by race, class, dictatorship, or other social forces. Working class women and women of color often agree, and point out ways that their experience of gender differs due to their different class and race contexts. The critiques that make these points are often called the
anti-essentialism critiques. ' Agency and anti-essentialism critiques often pinpoint analytical failures of MacKinnon's analysis of gender and power. But the
important point is that these analytical failures undercut the ability of MacKinnon's language to persuade a broad range of audiences.
Because of their extensive experience with gender trainings and
popular education, feminists in Latin America are developing a

15. See SARAH F. BERK, THE
GENDER FACrORY: THE APPORTIONMENT OFWORK IN AMERICAN
HOUSEHOLDS (1985); Marion Crain, Betwen Feminism and Unionism: Working Class Women, Se=
Equality, andLaborSpvedz, 82 GEO. L.J. 1903 (1994) (discussing the "hierarchy" in the home and
the workplace). 16. F .m sm UNMODMIEID, supra note 14, at 40. 17. Sat, ag., Kathryn Abrams, Sex Wars Redux Agency and Coercion in Feminist LeAL Theory, 95 COLUM. L. REv. 304 (1995) (discussing the way women view themselves and are viewed by others).
18. Se, ag., Angela P. Harris, Race andEssentialism in FeministLegal Theory, 42 STAN. L. REV.
581 (1990) (eluding to the point that gender is not the only variable in the way women are treated).
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language of gender and power with the ability to overcome the Alda Facio's drawbacks of MacKinnon's dominance feminism. analysis of stereotypes points the way. The brilliantly simple "When He Works/When She Works," which Alda Facio adopts from what appears to be a popular education bulletin, sets up two columns: He Works: He has a photo of his family on his desk. He's a solid family man, conscious of his responsibilities. He speaks with his colleagues. He must be discussing his latest deal. He's not in his office. He's meeting with the delegates. He lunches with the General Manager. Surely he's going to get a raise. She Works: She has a photo of her family on her desk. Her family will alwas come before her career. She speaks with her colleagues. She's gossiping. She's not in her office. She took off to go shopping. She lunches with the General Manager. They must be lovers. This stunningly concrete example gives a graphic picture of gender power at work, in a way that invites laughter, and in my experience, gets it, even in audiences not receptive to the gender perspective. It is an approachable way to talk that presents gender power as something that happens, quite innocently, in an everyday way to transform our societies into what MacKinnon has called "an affirmative action plan for white men."' 9 In the United States, this is useful because it graphically illustrates the limitations of our discrimination laws, which are interpreted to limit actionable discrimination to that which is conscious and intentional. It also demonstrates the limitations of an affirmative action jurisprudence that often assumes that the purpose of affirmative action is to remedy past discrimination. 2 The He Works/She Works analysis shows that much of the most damaging discrimination, far from being intentional, is not even conscious. It also shows that affirmative
19. FEbINSM UNMODIFIED, supranote14, at 36. 20. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racinm, 39 STAN. L. REV. 317 (1987) (arguing that equal protection laws should
protect against unconscious racial discrimination).

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action is important not to remedy past discrimination by people long dead, but to remedy the disadvantage created by these and other stereotypes in the present and subconscious default modes within which we all normally function. What's needed is a new metaphor that crystallizes these insights. The central metaphor of MacKinnon's dominance feminism, taken from Angelina Grimke, is of men's boot on our neck.2' This functions well as a language of bonding in anger against men, but less well as a language of persuasion. An alternative is the metaphor of gender as a force field, pulling men and women back towards conventional gender patterns, and perpetuating power differentials through destructive stereotypes that still serve today to undercut the credibility of women and bolster that of men. '
]II. CONCLUSION
In conclusion, although I remain deeply indebted to MacKinnon for her brilliant analysis of how our culture eroticizes dominance, my experiences in Latin America convince me that North American theorists have much to learn from Alda Facio and others. Their experience can help guide North American feminists as we move out of our comfortable but marginalized conversations among ourselves, and begin to engage in some popular education of our own. United States feminism began in the popular sphere, and needs to be revitalized there. I speak as a theorist committed to the continuation of theoretical discourse. But I am convinced that we must look south for a feminist experienced in talking about gender in ways capable of reaching a broad popular audience.
21. See Catherine A. MacKinnon, Feminist Discourse, Moral Values, and the Law-A Conversation, 34 BuFF. L. REV. 11 (1985) (suggesting that women's actions are controlled by
men). 22. JOAN C. WILLIAMS, RECONSTRUCTING GENDR: WORK, FAMILY, AND GENDERTALK IN THE 21" CENTURY (forthcoming 1998). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 379 1998-1999
LANGUAGE AND THE LAW

YADMA CALVO
Language is an issue that cannot be overlooked when analyzing any discipline from a gender perspective. Language, as an intermediary in our relationship with the world, enables us to form opinions as well as to express ideas. As a vehicle for sexism in our culture, language also helps perpetuate negative perceptions of women. Its influence is particularly important in the area of law since, as Augusto Bebel so aptly put it, we as women are a repressed sex and find our "corresponding position in the law of a country." Together, language and law can intensify the degradation and repression experienced by women. Based on these premises, I will examine critically the language used in laws, including the Civil Codes of Latin American countries through the middle of this century, the Political Constitution of Costa Rica, the Family Code, the Labor Code, and the Penal Code currently in force in the various countries. I have tried to isolate some of the linguistic phenomena that have repercussions in the law in order to better understand them. There are various terms that are applied to women throughout More Latin American law which carry a specific meaning. specifically, certain words that are charged with highly sexist content include the notion of virtuous feminine conduct with respect to sexuality. This can be observed in our Penal Code in which the concepts of honor, good reputation, and purity [honra, buena fama y honestidad], as applied to women, have a fundamental sexual connotation. An abortion, therefore, is penalized to a lesser degree when it is committed "to conceal the woman's dishono" (Art. 120). Moreover, a murder committed by a "mother of good reputationwho kills her child within three days of birth in order to conceal her dishono-' is categorized as "homicide with extenuating circumstances" (Article 113, subparagraph 3). In Spanish, the primary definition of the word honor is esteem and respect for ones dignity; the fourth definition listed is "modesty, purity, and decency in the woman." In the Code, dishonormeans"the loss of purity." Statutory rape [estupro]
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(punishable by a prison term of one to four years), is defined as "carnal relations with a pure woman [mujer honest=] between the ages of twelve and fifteen, even with her consent" (Penal Code art. 159) and abduction for indecent purposes [rapto impropio] is defined as the abduction for lewd purposes of a "pure woman between the ages of twelve and fifteen, with her consent." The first definition of pure is "modest and decent." "decent and decorous;" the second is Therefore, the use of terms with respect to women in the Code equates personal worth with sexual virtue, perpetuating a vision held by sixteenth and seventeenth century Spaniards. On other occasions, discrimination is manifested in asymmetrical terms representing those that acquire different meanings based on gender and which tend to be degrading in their feminine usage. mistress/concubinarian word-pair of the true is This [manceba/concubinario]which appears in the section on homicide in the Costa Rican Penal Code as a crime [delito calificado] if the couple has children and has been married "for at least two years prior to the perpetration of the act." (Art. 112). Mistress [manceba] is described in Spanish as a "woman with whom a male [uno] engages in continuous illicit commerce;" concubine [concubina] is used synonymously with "mistress" or a woman who lives or cohabitates with a man as if he were her husband. "Mancebo"' means a "youth" or of the combination man."' Therefore, "unmarried an "mistress/mancebd' and "concubine/ concubina" is "concubinarian/concubinario" defined as "he who has a concubine." In other words, these terms and their ideological underpinnings reflect a view of female sexuality that is subordinate to, and a function of, male sexuality. They imply, moreover, a moralistic conception that reinforces the idea of the illicitness of relationships and denigrates the female role through the use of asymmetrical terminology to describe such a situation. The word-pair described above is linguistically asymmetrical; in other cases, however, the law furnishes the asymmetry. This is the case with the terms adultery/concubinage as grounds for divorce. The first term applies to the woman, and the second to the man, according to Latin American Civil Codes that were in force until the Adultery is defined as "illicit carnal middle of this century. or both of the partners is married;" and intercourse, when one concubinage, by definition, implies cohabitation [convivencia]. This alone means that the law punishes more harshly the sexual conduct
1. Translator's note: Masculine form of mancebam HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 382 1998-1999
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of women. But this was compounded by appending to the term concubinage the adjectives "scandalous" and "notorious" (in Costa Rica, Nicaragua, Venezuela, Colombia, El Salvador, and Haiti). A lexical artifice, therefore, allowed the sexual conduct of women to be penalized much more severely than men. So far, the words discussed assume certain behaviors to be appropriate or reproachable. depending on gender. But there are other far more dangerous terms whose versatility leaves room for countless manipulations. These are terms which are based on the deplorable tendency to use the masculine in a universal manner and can be used indiscriminately in a broad or narrow sense. It is well known that in Spanish, as well as in English and French, masculine terms coincide with generic terms due to an ancestral identification of the human being as the male. In the broadest sense, therefore, these terms encompass all people, while in the narrow sense, they only include people (and animals) of the male sex. As Garcfa Meseguer points out, "any expression which should be generic but is formulated so as to exclude or disregard the woman is a sexist
expression."
Unfortunately, the law resorts to these kinds of expressions with great frequency. Lanjuinais' reasoning regarding the term "citizen" [ciudadano-masculine form] during the drafting of the French Constitution of 1791 clearly demonstrates this issue. He asserted that the general idea evoked by the term is that of "a member of the city, civil society, and the nation." "In current language usage," he continues, "this term is employed to designate all those belonging to the social body." In a strict interpretation, it only designates those who are called upon to exercise political rights, to vote in public assemblies, and those who can elect officials and be elected to public office. Therefore, according to Lanjuinais, "children, the mentally retarded, minors, women, and those condemned to corporal or degrading punishment, prior to their total rehabilitation, cannot be considered citizens." This malicious language can be observed not only in France during the Revolution, but also in Costa Rica during the suffragettes' struggle for the right to vote despite the existence of a law that 2 defined "Costa Rican citizens" [ciudadanoscostarricenses] as "all [todos los] natives [naturaes] of the Republic or those naturalized [naturalizados]in it." The generic terms todos, naturales, naturalizados, and costarricensesare interpreted in the narrow sense, meaning that
2. Translator's note: The italidzed words in these two paragraphs, as they appear in Spanish, denote both the masculine and generic form of the term.
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they included only males. In order to constitutionally establish women's suffrage in 1949, the term citizenship had to be redefined as "the entirety of political duties and responsibilities corresponding to Costa Ricans of both sexes." The presence of generic terms in our laws continues to produce ambiguity. The way that the interpretation of such terms functioned historically demonstrates the ongoing danger of an interpretation that excludes women. When the Political Constitution of Costa Rica establishes that "all men are free in the Republic" (Tide IV, Art. 20), or "the Accounting Office [contralorf] is directed by a Comptroller [contralor]and a deputy Comptroller" (Ch. I, art. 183), or "executive power is exercised by the President [elPresidente] of the Republic and the Government Ministers [Ministros]" (Ch. 1, art 130), the use of these terms car project a masculine image of the beneficiaries of the rights and positions described. The term "man" [hombre] as masculine/universal, or the pronoun form "he who" [el que] which is used as a substitute for the noun, are found in the wording of our laws and result in ambiguity. In our Penal Code, these terms are used interchangeably for crimes that can be committed by men or women without distinction, such as disclosure of institutional records or proceedings: "He who should divulge records or proceedings.. .," and for crimes which by definition only can be committed by males, such as sodomy and abduction for indecent purposes: "sodomy" is committed by he who has carnal relations with a minor between the ages of twelve and seventeen." He who supports himself by means of an individual practicing prostitution is engaging in "pimping" [rmfianeda]. A problem in the language of the law, derived in part from that described above, is the use of deceptive terms. Deception can occur because, in the absence of feminine terminology, and despite the fact that the terms used are supposedly inclusive, the laws, reinforced by culture, interpret such terms in ways that exclude women. The word pueblo, for instance, is defined as "a group of people in a place, region, or country." We have always been given the example of Pericles' Athens, in which el pueblo exercised sovereignty. Because only aristocratic males were admitted to the public assemblies, the reference to the pueblo in this case is misleading. Something similar occurs with the adjective universa which is defined as "that which comprises or is common to all members of a species without exception." Nonetheless, universal suffrage was referred to in our countries long before women could vote. The deceptiveness of a term can consist of a legal usage that differs
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from its common usage. This is the case with the words "protection"
and "defense." Frenchman Jean Bodin asserted in the sixteenth century that "the law defends women from all responsibilities and
trades corresponding to men, such as judgeships, candidacy for office, and other similar endeavors, not only because of their lack of prudence... but because virile actions are contrary to their sex, to
feminine modesty and puity." Although this was the sixteenth century, today the Labor Code in Costa Rica establishes an "express prohibition" against contracting female labor for physically or morally unhealthy, heavy, or dangerous jobs (Ch. 7, art. 87). It also prohibits women from working nighttime jobs "with the exception of those working as live-ins or with families, nurses, social workers, domestics, and the like, who may work as many hours as are compatible with their physical, mental, and moral well-being," and that of other [female] workers whose jobs do not extend past twelve midnight. Article 90 prohibits single women under eighteen from working, independently or for others, in a trade plied in the streets or in public places. It would seem that the law defends women from any supposed physical, mental or moral weakness; however, the law protects women from themselves. When we recall that based on the Napoleonic Civil Code the husband's obligation to protect the woman was established (art. 215) as well as her obligation to obey her "protector," we see clearly that "protect" has not had the same meaning in the legal field as the term would indicate. Another form of deceptive terminology is the confusion of the terms rights and duties [derechos y deberes]. Rights implies the ability to do or demand; duty implies obligation. When the law establishes, as it did until the second half of this century, "the right and duty" to supervise household tasks in some cases, and personally do them in others (p. 552. Guatemala, 1951, Art. 99; Peru, 1953, Art. 161), it did nothing more than tighten the noose of submission because a right that is a duty is more a duty than a right. If, for example, washing dishes had been a right, then some women might have wished to waive it; since it was a duty, women could not waive it. Finally, it is interesting to highlight the phenomenon of the improper associations of terms that help to propagate the stereotypical identification of women with the family or children. In Costa Rica, for example, there is a Center for the Development of Women and Family. Our Labor Code regulates the "work of women and minors" in the same chapter. The chapter on Rights and Social Guarantees of the Political Constitution establishes "an autonomous institution called the "National Foundation for Young Children."" [PatronatoNacional de la Infancia] for "the special protection of the
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mother and child." Since infancia is defined as "children from birth to seven years" it is apparent that including the mother under the protection of a Foundation for "young children" devalues women because even very young mothers do not give birth at that age. The brief review offered here leads us to conclude that the vocabulary used in the law can contribute to the perception of women as mentally, physically and morally weak, non-autonomous, infantile, and associated with traditional ideas of sexual virtue. It also can contribute to legal outcomes for the same phenomena that vary according to gender, and to the expedient exclusion of women. Therefore, a critical examination of language as an instrument of expression of the Law is essential to eliminating gender discrimination and encouraging more balanced perceptions of all humans.
WOMEN AND JURISPRUDENCE

MA. ELODIA ROBLES SOTOMAYOR" It is important to reflect on influence that cultural legacy and humanist influence on juridical analysis. These influences, combined with Greco-Roman thought, define the institutions that continue to describe, prescribe, and interpret the law based on a concrete methodology. Western thought emerged when the Greek culture developed the rules of logic that allow for scientific discourse. The Logos of This Parmenides laid the first foundations for knowledge. foundation was based on the canons of identity of the human being and the absence of contradiction, combined with the objective of learning the truth regarding any given object. This process required setting aside one's beliefs and opinions as paths of reflection, in order to open the doors to reason. The laws of reason demand using a clear methodology to apply principles that lead to scientific knowledge. These reflections provided a conceptual framework for Roman scholars, who first sought to delimit their identities in order to establish their being. This set up a body of rules identifying them as Roman in order to preserve the principle of unity. The logos of the Roman scholar was interpreted by religious magistrates who possessed a monopoly on juridical activity. Thus the legal profession, in its early stages, was inaccessible to most other community members because these magistrates retained power over the rules through which the norms of custom were to be applied; Roman thought gave rise to the terms ju andfas. The early Roman period was managed by a federation of noblemen
*Director of the Seminar on Philosophy of Law, UNAM. President, Association of Professors of the Philosophy of Law Section, UNAM. President of the Mexican Section for Philosophy of Law of the I.V.R. 1. In Roman law, jus meant the science or department of learning. The term was also used to refer to rights; that is, powers, privileges, faculties, or demands inherent in one person and incident upon another. 2. Fasmeantright;justice; the divine law.
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and families regulated by a monarchical and priestly authority. They
designed a system in which the interpreter established the parameters of behavior in the community, with the aim of preserving peace and order. Peace and order were defined in terms of respect for principles of organization based on noble status and the family. These principles are expressed, for example, in the law's emphasis on citizenry determined by bloodlines, which was used to protect the
origin and dignity of Roman status.
This archaic system changed when groups lacking the appropriate lineage challenged the existing law. These groups came to constitute a new class known as the common people (plebes). This placed pressure on the monarch to issue a series of legislative dispositions with the goal of harmonizing and unifying the population. As a result, for the first time, the people attended the coronation of a new king.
This signaled the transition to a second phase of Roman Law where old and new noble groups constituted a new social class. This social class still excluded the common people from otherjuridical, political, economic and social benefits through the monopoly of the upper class (patricians)on the creation, interpretation and application of the law. This system was based on a "voluntarist" theory that justified the theoretical juridical framework, in which a classist State advanced the interests of one group to the detriment of others. This framework led to a class struggle between the upper class and the commoners. The complaints of the commoners emphasized the need to satisfy the demands of their social class and to place limits on benefits that were exclusive to the upper class. This process climaxed in the creation of a body of magistrates, known as tribunes, who became the spokespersons of the common people and who were heard in the popular assembly. At this juncture, the law acquired new meaning by including the lower class, thus broadening the cultural framework that determined the meaning of the law, and thereby regulating in a normative framework the rights and interests of the commoners. These new laws were woven into the basic Roman law set forth in the Laws of the Twelve Tables. The objective of these Tables was to firmly establish the law through a written system. This system provided advance notice to the population through public dissemination, in order to avoid misapplication of the law. This new system sought to preclude discrimination by doing away with laws that favored certain sectors. This resulted in the creation of
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the civil law, which had been confined to custom and whose interpretation corresponded to the religious tribunals. The new emphasis gave rise to the secularization of the law and the possibility of developing a legal state through civil functionaries elected by the people. The deliberations of these new functionaries had an important revolutionary impact, even when, from a constitutional point of view, these laws concealed the fallacy of having no actual validity. Under the new system, women remained defenseless, as they were 3 viewed as being Capitis Diminutio with regard to 'freely defending their rights to patrimony, inheritance, filiation, etc. This negative treatment had important implications for the future development of the law as is evidenced by the roman jus dvile being used as a model for private matters and jus gentium for public and international matters. The commoner's struggle for their rights did not extend to women, which symbolizes the ideology and exposes the true intentions of the written norms. Today it is necessary to reflect on these intentions in order to find a new path toward juridical responsiveness to women's interests. Today, the terms Lex and Jus have diverse meanings. Depending on which Roman approach was adopted, different countries' legal systems developed in different ways. On our continent, for example, some countries have adopted the Anglo-Saxon tradition (first phase of Roman Law), and others adopted a Roman-Canonic tradition (second phase of Roman law). For this reason, it is important to analyze the meaning of the premises accepted and utilized by the ministers and magistrates of the judiciaries in our countries. The criteria which form the basis for arguments to establish the law in any given case are established based on these basic premises. The Roman law's written traditions, as subsequently adopted in France, serve as a reference in circumscribing the arguments that give rise tojurisprudence. This paper will attempt to demonstrate the role that doctrine plays in resolving certain conflicts where women have been marginalized under the law. This paper assumes that the lawyer is bound by the law. The law prevents a lawyer from engaging in free administration ofjustice, as he is limited by the norms established by the lawmaker. In countries with an Anglo-Saxon tradition, the judicial function
. In Roman law, a diminution, or abridgement of personality- a loss or curtailment of a man's status or aggregate or legal attributes and qualifications.
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has obtained greater breadth through the interpretive tools ofjus and mores. These are understood to be interpretative rules that establish a flexible tradition in which lawyers argue with greater freedom, invoking precedents established by past experience. It is necessary to reflect on these different legal traditions to determine the rationale behind certain problem-solving techniques. The metalanguage of these techniques has given rise to a special terminology in Mexico, through the Nomina jurs. The law is also characterized, as a result of these techniques, by an emphasis on the deductive methodological approach over the experiential. As an illustration, I will cite some examples based on the opinions and jurisprudence developed byjudicial institutions. With reference to joint property, for example, in the state ofJalisco the rules for ownership of joint property provide that the right of legal representation resides in the husband, and only in exceptional cases in the wife. Therefore, the husband is the full and exclusive legal representative of the legal unit for the purpose of protesting acts that affect marital property. The wife can only fill this role in exceptional cases: 1) with the consent of her husband, or 2) if he is absent or impeded, she may act as set forth in articles 207 and 234 of the Civil Code of the State ofJalisco. This law, enacted on January 24, 1969 by unanimous vote in the Second Chamber, reflects the Roman tradition in Mexican legislation and the force of the French Civil Code from which these criteria are based. The written legal order had greater weight than experience in writing this law, preventing a woman in this century from handling the administration of her own property even after she obtained the
right to vote.
Similarly, in September 1978, as the result of an action for the protection of a constitutionally guaranteed right (amparo), it was resolved that disputed assets that constitute joint property belong to the husband, as does the defense of those interests. The rationale for this decision was that, at the time of contracting marriage, the husband is granted the role of administrator. This role cannot be repudiated without applying the law retroactively. The woman complainant thus lacks standing to exercise a constitutional action when it affects assets belonging to joint property. Almost ten years after the first decision, and even after the constitutional reforms of 1974 which recognized the equality of women, the law continued to leave women unprotected. Even when women's assets are affected directly, if the marriage predated the constitutional reforms, she is not protected, because this would
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require applying the law retroactively. This interpretation was approved by unanimous vote in the seventh session. It contravenes article fourteen of the constitution which stipulates that no law will be applied retroactively so as to cause harm to someone, which means in "contrario sensu" that it is possible to apply a new law retroactively to someone's benefit. With respect to criminal law, the First Chamber of the Supreme Court ofJustice established that the difference in the legal definition of abduction for sexual purposes-(rapto) and kidnapping (secuestro) lies in the fact that the second is understood as the external limitation of a person's right to maneuver or move. The criminal intent or psychological element thus consists of the awareness and will of the offender to illegally deprive another of personal liberty with the purpose of asking for ransom or causing injury. If there is no aim of depriving the person of liberty, even when sexual acts are performed, the crime is considered to be that of the lesser crime of abduction (rapto) rather than kidnapping (secuestro). Meanwhile, in 1961 the same reporting judge, Manuel Rivera Silva, wrote an opinion, adopted by unanimous vote, which held that an abduction (rapto) did not occur where the accused, through physical violence, seized a woman but did not remove her from the manner in which she ordinarily conducts her life. This holding establishes that there is no abduction, even where the aggressor takes the woman to a specific place, as long as this occurs in a short time frame and on a public route, on the grounds that it cannot be argued, under these circumstances, that his actions have isolated her from her environment. The above doctrinal criteria contain contradictory arguments in that they establish that kidnapping (secuestro) is reduced to a deprivation of liberty with the aim of demanding ransom or causing injury, while the aim of abduction (rapto) is not deprivation of liberty, even when sexual acts are performed. This doctrine is contradictory, because the concept that sexual acts can be considered to cause injury and deprivation of liberty is necessary in order to perform sexual acts against a person's will. Taken together with the other opinion that establishes that there is no abduction of a woman when she is removed from her ordinary routine and taken by a public route for a short time, the vagueness in defining the levels of dangerousness can be observed, as well as how the facts can lead to a determination that a lesser crime was committed, leading to a less severe sanction. In the State of Hidalgo it was decided, on the basis of a Supreme
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Court opinion, that status as a virgin is a required element for the crime of statutory rape. The Supreme Court held that status as a
proper young lady (estatus de doncele) should be understood as the condition of virginity. Since the condition of doncellez is a requirement in Hidalgo's Criminal Code, it was held that the crime of statutory rape only exists if the element of virginity has been shown, even though the tribunal itself recognized that the term is not necessarily synonymous with virgin. Another example of the negative impact on women is seen in the aggravating factor of "advantage" in homicide cases. The case law holds that an allegation regarding the aggravating factor of advantage in the context of the superiority of physical force between men and women may only be seen as an attempt to apply a provision applicable in specific cases to a general truth. The opinion thus holds that it would be a legal aberration to include the aggravating factors in every case perpetrated by the man against a woman victim. The above examples make it clear that the Court and its members believe that, during that period considered in the first case, that even though doncelez was not the equivalent of virgin, it was more important to apply the Hidalgo Criminal Code than to take into account the affected party's appeal forjustice. Meanwhile, in the case of aggravating factors for homicide, the court unanimously held that the difference in physical strength did not apply to benefit women. With reference to support arrangements, a 1989 opinion by the federal appellate court for the sixth circuit stated that the woman manages the conjugal household and educates the children. Despite the fact that the principal of equality between men and wonlen before the law has been elevated to the constitutional level, it is understood that the woman does not have an obligation to contribute to paying household expenses, because most Mexican women dedicate themselves to household chores. This opinion was reached by unanimous vote in the eighth session of jurisprudence. The judges' opinion, although favorable to women, presumes that the woman is incompetent. With respect to patrimony, the State of Guanajuato has established that contracts for the sale of goods between spouses are valid under only two conditions: a) that the couple is married under a separation of estates system; or, b) that the woman has been legally authorized to contract with her husband. As to property acquired during marriage, a federal appellate court established legal doctrine holding, in relation to the law in the State
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of Zacatecas, that property acquired by one of the parties through donation, inheritance, bequest, or any other unpaid transfer of title or good fortune, was excluded from joint property as it was not the result of conjugal effort. In both cases, restrictions are placed on the enjoyment or on the negotiation of sales with respect to the patrimony acquired during marriage. In this manner, women continue to be regulated by cultural parameters handed down from Roman Law. With the above examples, I want to demonstrate the importance of the interpreter's role in the development of jurisprudence, which serves as an interpretative tool in the administration and application of justice. The ideological and cultural perspectives of the participants in the system play a fundamental role, along with the written law, in the administration ofjustice. It is necessary, therefore, to reexamine the jurisdictional task through critical analysis, with the aim of establishing legal definitions, that are gender-neutral. To do this, it is important to continue to collect legal materials through the use of the computer, in order to subsequently carry out the pertinent studies regarding the language used by the interpretive bodies, with the aim of understanding trends in doctrine. This will enable us to flag errors and seek new horizons for the equal treatment of women. I think that the work of universities will play an important role in the future. It is essential that programs of study include practical fieldwork combined with research on the arguments used as the basis for resolutions. The objective should be to create a new awareness that makes organic and non-organic doctrine more operative. In this sense, measures should be taken to increase student awareness of the research being carried out by researchers and professors, as well as that conducted by lawyers responsible for deciding cases and creating law. Because the Law School at the Universidad Nacional Aut6noma de Mexico is the largest academic center in Mexico, and it contains a female student population that surpasses the male population, I think that it is important to promote new frameworks for legal development at the University. The objective will be to produce better educated lawyers with a greater gender awareness. These new attorneys, upon assuming responsibilities in the institutions, will have the necessary tools to respond to their history. In this respect, the federal justice system should open its doors to women professionals. The Supreme Court of Justice of the Nation currently has only one female justice to ten males. Moreover, women
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account for no more than ten percent of judges in the federal appellate courts. At the same time, women are responsible for the greatest amount of work in mid-level positions. In terms of other spheres of women's activity, it is worthwhile to point out that indigenous women do not figure in Supreme Court doctrine. These women constitute the most excluded segment in the legal structure. They are excluded at three levels: within their own culture, in society, and in economic life. Mexico lives in the Roman stage of written law, whose rigidity does not allow it to stray from certain legal frameworks. Nonetheless, decisions on actions for protection of constitutionally guaranteed rights (amparo), provide a route toward greater flexibility which will open doors to new reflection. This reflection will show that written legal norms can coexist with other normative sources such as custom, practice, and general principles of law. Together, these various sources will make law a science and an art that responds to reality, bringing together experience and legal guiding principles to provide unity and coherence to the creation of jurisprudence in favor of women and justice.
CAUGHT BETWEEN SCYLLA AND CHARYBDIS: JAW & ECONOMICS AS A USEFUL TOOL FOR FEMINIST LEGAL THEORISTS
DARREN BUSH
I. INTRODUCTION ................................................... 396
II. THE LAW & ECONOMICS THEORY OF CONTRACT .............................. 398 A. An Overview of the Economic Theory ofContracts........................... 398 B. The Role of Unconscionabilityin Perfect Contracts........................... 403
li1. APPLICATION OF LAW & ECONOMICS TO UNCONSCONABILITY CASES ........ 407
A. A FeministDilemma in theRealm of Contracts............................. 407 B. Williams v. Walker-Thomas FurnitureCompany............................. 408 C. Jones v. Star Credit Corporation ...................................... 411 D. Carboniv.Arrospide ................................................................. 414 E. PotentialFeminist Objectionsto Law & EconomicsAndlysis ................... 417 IV. POLICY IMPLICATIONS FORIFEMINIST LEGAL THEORISTS: A CONCLUSION... 428 Feminists who are not libertarians may not like the vocabulary, methods, and assumptions of economics, but if they refuse to consider the economic consequences of policies affecting women they may end up hurting rather than helping women.' [While] conservative feminism takes a more cautious stance on issues of concern to women than radical or liberal feminism... I believe that it has much to offer women-if only a warning to consider carefully the indirect effects of policies ostensibly favoring women-and that it deserves greater voice in the feminist chorus.2
Trial Attorney, Antitrust Division, Department of'Justice. J.D., 1998, Ph.D., Economics, 1995, University of Utah. A previous version of this paper was presented at the "Feminism Confronts Economic Theory" Workshop on December 13, 1997, at Columbia University. The author would like to thank the participants of that workshop for their comments. The author would also like to thank Debora ThreedyJohn Flynn, Mark Glick, Sarah Wilhelm, and Anupam Tyagi for their insightful comments and criticism. The views expressed in this article are not purported to reflect those of the U.S. Department ofJustice or of the people who have commented on this article. 1. Richard A. Posner, ConsevativeFeminism,1989 U. CHI. LEGAL. F. 191,194. 2. Id.at217.
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I. INTRODUCIMON
The school of thought known as Economic Analysis of Law (Law & Economics) uses economic principles to determine whether a legal
outcome is efficient for society as a whole
The increasing popularity
of this movement stems from its logical neatness and its broad applicability to general legal issues.4 Judge Richard Posner, one of the founders of the Law & Economics movement, believes that feminist legal theorists can benefit from using the Law & Economics model According to Posner, the model would focus feminist attention on the long-term impact of the social policies they advocate. 6 When feminists advocate policies without scrutinizing the long-term impact, the result may place women in a worse position than if the policies had not been carried out.7 Posner assumes, however, that Law & Economics and its classical liberal prescriptions, by focusing feminist attention on relevant market indicia, will lead feminists to conclusions with which they would agree. 8 Additionally, Posner assumes that using the tools of economic analysis will lead feminists to policies that will benefit women in general. 9 This article examines whether Law & Economics can provide a starting point for feminists seeking policy guidance. Specifically, it
3. SeeANTHONYT. KRONMAN & RICHARD A. POSNER, THE ECONOMICS OF CONTRACT LAW 1

(1979) (noting that Law & Economics "may be able to tell us why people make contracts and how contract law can facilitate the operation of markets"). Economic analysis, however, is not limited to contracts. Se, eg., THE ECONOMIC FOUNDATIONS OF PROPERTY LAw vii-xi (Bruce Ackerman ed., 1975) (advocating a change in the structure ofproperty law courses to recognize the importance of economics); WHIUAM L LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OFTORT LAW (1987) (describing the underlying economic rationale of various tort concepts); Gary S. Becker, Ctime and Punishment: An Economic Approach, 76 J. Pot. ECON. 169 (1968) (advocating the use of economic principles to determine the efficient combination of resources and punishment to deter crime); see also RICHARD A. POSNER, ECONOMIC ANALVSIS OF LAW 19 (4th ed. 1992) [hereinafter ECONOMIC ANALYSIS OF LAW] (applying an economic analysis to property, tort, antitrust, constitutional, common law, and criminal law issues). 4. Economics is able to explain and predict the behavioral changes of individuals as a result of changes in the law- "Like the rabbit in Australia, economics found a vacant niche in the 'intellectual ecology' of the law and rapidly filled it." ROBERT COOTER & THOMAS ULEN, LAW& ECONOMICS 3 (2d ed. 1997). 5. Se RICHARD A. POSNER, OVERCOMING LAW 329 (1995) (discussing the connection between biology and economics and refuting radical feminists' criticisms of his theories about that connection). 6. Ikat336-37. 7. I&dat329-34 8. For Posner, "[i ] t is difficult to see why there should be any conflict" between liberalism and feminism. Id. at 329. 9. Id. at 329 (discussing how economic progress has powered the emancipation of women).
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focuses on unconscionability0 in contracts. It does so for three reasons. First, while feminists may favor the doctrine of unconscionability because it protects disempowered individuals from the throes of the market, its long term effects may render these individuals worse off than they would be without the doctrine." Second, feminists have not addressed unconscionability" or contracts to any great degree, 2 except in the analysis of surrogate motherhood,'3 marriage, 4 and employment.'5 Third, Law & Economics is strongest on those issues most closely related to exchange, and unconscionability applies to exchange transactions. Part I presents a broad overview of Law & Economics, 7 discussing
10. "Unconscionability" is a nebulous legal term. For possible definitions, see infra Part II.B. 11. SeeinfraPartIlL 12. But see Clare Dalton, An Essay in the Deconstructionof ContractDoctrine, 94 YALE LJ. 997, 1000-02 (1985) (exploring an inconsistency/indeterminacy distinction in contract law through deconstruction of public/private, objective/subjective, and forn/substance dualisms); Beverly Horsburgh, Decent andIndecentProposalsin the Law. Reflections on Openingthe ContractsDiscourse to Include Ouuide, 1 Whf. & MAUJ. WoMEN & L. 57, 61 (1994) (calling for a sweeping reform of law school curriculum to incorporate diversity); Marjorie Maguire Schultz, The Gendeied Curriculunu Of Contracts and Caree, 77 IOWA L. REV. 55, 5661 (1991) (discussing the gendered nature of law school curriculum and contract doctrine); Muriel Morisey Spence, Teaching Williams v. Walker-Thomas Furniture Co., 3 TFMP. POL & Civ. RTS. L. RE . 89, 90 (1994) (discussing how Williams reinforces stereotypes regarding women and people of color); Kellye Y. Testy, An Unlikely Resurrection,90 NW. U. L. REV. 219, 221 (1995) (arguing for inclusion of contractlaw in postmodern feminist thought). 13. See Lori Andrews, Surrogate Motherhood The Challenge for Feminists, 16 LAW MED. & HEALTH CARE 72, 73 (1988) (discussing the rationale behind banning surrogacy); Mary Becker, FourFeministTheoreticalApproaches and the DoubleBind of Sunogay, 69 CHI-KENT L. REV. 303, 304 (1993) (advocating the scrutiny of systemic conditions that give men power relative to women, including political power and economic resources). 14. See generallyNancy E. Dowd, StigmatizingSinglaParents,18 HARV. WOMEN'S L.J. 19,19-21 (1995) (discussing how the law creates and incorporates stigma in the structure of divorce); Milton C. Regan, Symposium:Divorce andFeministLegal Theoy, 82 GEO. LJ. 2119,2120-26 (1994) (including perspectives on the modernization of marital status law, divorce and property rhetoric, alimony and efficiency, and alimony and race). 15. See, &g., CATHERINE MACKINNON, FMINISM UNMODIFIED: DISCOuRsEs ON LIFE AND LAW 103 (1987) (describing the advent of sexual harassment law); Martha Chamallas, WitingAbout Sexual Harassment;A Guide to the Literature, 4 UCLA WOMEN'S LJ. 37, 37-39 (1993) (discussing the major trends in the emerging legal doctrine of sexual harassment); Vicki Schultz, Telling StoriesAbout Women and WorkJudicialInterpretationsof Sex Segregation in the Workplace in Title VI Cases RaisingtheLack ofInterestArgument, 103 HIARv. L. REV. 1749,1757 (1990) (contending that judges have the power to change the sexual composition of job classifications and to help women fight against their marginalization and segregation into low status and low payingjobs). 16. "Since buying and selling ... are quintessentially economic activities, it would seem that economics should have something useful to say to students of contract law." KRoNMN & POsNER, supranote 3, at 1. 17. This article will not criticize the Law & Economics theory perse, although others have effectively done so. See, eg., Ronald Dworkin, Is Wealth A Value?, 9J. LEGAL STUD. 191, 194-95 (1980) (disagreeing with efficiency as an ethical first principle); Duncan'Kennedy, Cost-Benefit Analysis ofEntitlementProblems:A Citique, 33 STAN. L. REv. 387,392-93 (1981) (condemning the indeterminateness of efficiency); Arthur Leff: Economic Analysis of Law: Some Realism About Nominalism, 60 VA. L. REV. 451, 451-53 (1974) (criticizing the circular reasoning of Law & HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 397 1998-1999
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contracts in general and unconscionability in particular. Part II uses Law & Economics to examine particularly (in)famous unconscionability cases to determine the socially efficient outcome. Part III questions whether these efficient outcomes would be acceptable to feminist legal theorists. Part IV provides insight as to why these outcomes would or would not be acceptable to feminists.
II. THE LAW & ECONOMICs THEORY OF CONTRACT
A. An Overview of The Economic Theory of Contracts Law & Economics looks at the world through the lens of efficiency. 8 Any rule is efficient when the "winner" can potentially compenqate the "loser" and remain better off.'9 Social wealth is maximized through the application of this principle. Resources are in the hands of those who value them the most, as determined by that person's willingness and ability to pay for them." This principle may be applied to the courts to determine efficient outcomes. In a setting where transactions are costless, any assignment a court makes as to liability is efficient.2' In realistic settings where transaction costs exist, a court must place the entitlement in the hands of the user who values it most. 2
Economics); Frank I. Michelman, Reflections on ProfessionalEducation, Legal Scholarship, and the Law-and-Economics Movement, 33 J. LEGAL EDUC. 197, 201 (1983) (criticizing the movement's
narrow focus).
18. "The existence of a market-a locus of opportunities for mutually advantageous exchanges-facilitates the allocation of the good or service in question to the use in which it is most valuable, thereby maximizing the wealth to society." KRONMAN & POSNER, supra note 3, at 2. 19. The goal of the principle is to insure that the "pie" of wealth increases, regardless of the distribution. In other words, the benefits of the transaction must exceed the costs. Posner's example illustrates this principle: [I]fA values the wood carving at $5 and B at $12, so that at a sale price of $10 (indeed at any price between $5 and $12), the transaction creates a total benefit of $7 (at a price of $10, for example, A considers himself $5 better off and B considers himself$2 better off), then it is an efficient transaction, provided that the harm (if any) done to third parties (minus any benefit to them) does not exceed $7. ECONOMIcANALYSIS OF LAW, supra note 3, at 12. Under the theory, A and B need not actually compensate any third parties as long as the benefits of the exchange exceed the costs. Id. See also John R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696, 698 (1939) (synthesizing the basic theories behind "welfare economics"); Nicholas Kaldor, Welfare Propositionsof Economicsand InterpersonalComparisons of Utility, 49 ECON.J. 549 (1939) (discussing the relevance of the status of interpersonal comparisons of utility to "welfhre economics"). 20. KRONMAN & POSNER, supranote 3, at 2. 21. SeeRonald Coase, TheProblemof Social Cost, 3J. L. & ECON. 1, 12-13 (1960) (stating that where transaction costs equal zero, bargaining will result in resources floivng to their most valued use, regardless of initial distribution). 22. "[IThe wealth-maximization principle requires the initial vesting of rights in those who are likely to value them most." Richard A. Posner, Utilitarianism, Economics, and Legal Theoy, 8J.
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To see why this occurs, we must imagine a world in which the

perfect contract exists. A perfect contract is one in which: all contingencies are accounted for and efficiently allocated between the parties; all relevant information has been communicated; each resource is with the party who values it the most; each risk is allocated to the least cost bearer, and no future gains from exchange are possible.2 The theory also assumes that individuals are rational; 24 that the contract does not result in adverse third-party effects;H and that transaction costs are zero.2 In this world of perfect contracts, a parties are better off if the contract is enforced on its strictest terms.27 The sole purpose of the common law, in this realm of the perfect contract, is to reduce transaction costs by providing efficient background rules over which the parties will no longer be forced to 28 negotiate. Absent a perfect contract, however, terms may be ambiguous or fail to account for a particular contingency that has arisen.2 In the
court's power to enforce such a contract is unnecessary because both
instance of ambiguity, a court's mission is clear-it should correct

imperfect contracts by restructuring the terms as the parties would have wanted them."' By using the model of the perfect contract,
LEGALSTUD. 103,125 (1979). 23. COoTER & ULEN, supranote 4, at 186.
24. See Paula England, The Separative Self. Androcentric Bias in Neoclkmscal Assumptions, in BEYOND ECONOMIC MAN: FEMINIST THEORY AND ECONOMICS 37, 37-38 (Marianne A. Ferber & Julie A. Nelson eds., 1993) (criticizing the rationality assumption as male-centered and thus inappropriate in market analysis). 25. COoTEt& ULEN, supranote 4, at 186-87. 26. CooT. & ULEN, supranote 4, at 187. 27. See CooTER & ULEN, supra note 4, at 187 (stating that if the parties have a perfect contract then the contract has no gaps, and thus a court is not needed to provide default
terms).
28. See ECONoMic ANALYSis OF LAW, supra note 3, at 89-91 (stating that the fundamental purpose of contract law is to deter people from behaving opportunistically). 29. See COOTER & ULEN, supra note 4, at 186-87 (noting that contracts can contain terms that require revision over time).
30. COOTER & ULEN, supra note 4, at 233. Because a party's preferences are not directly known, the judge must use "some sort of knowable, objective, behavioral 'proxy' for the unknowable, subjective quality she is obligated to promote. In the private sphere, contract fills iosly, 64TuiL L. REv. 659, 667 (1990). this proxy-type role." Robin L.West, TakingPreferenesSe' Clare Dalton is skeptical of a court's ability to determine subjective intent from objective factors:
We cannot directly know or ascertain the subjective intent of the disfavored party. Our inquiry therefore becomes indirect-we turn to objective evidence of the party's subjective intent. But in our search for objective evidence we find ourselves abandoning our initial focus, and focusing instead.., on the other party's behavior and the terms of the resulting deal... Would anyone have voluntarily agreed to that deal? Dalton, supra note 12, at 1025-26 (discussing the problem of "power" and "the power of the HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 399 1998-1999
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courts can identify the imperfections and prescribe corrective remedies for an efficient resul. t Law & Economics leads judges to two policy prescriptions in contract cases. First, the contract's terms should be strictly enforced if the promisor and promisee both wanted the contract to be enforceable when it was made 2 Second, where courts must determine an outcome because the contract is ambiguous .and disputed, they should choose terms that the parties would have wanted if the contract were complete." These principles guide the economic theory of contracts because absent compulsion or irrationality, both parties perceived themselves to be better off by entering into the contract: [The] general regime of freedom of contract can be defended from two points of view. One defense is utilitarian. So long as tort law protects the interests of strangers to the agreement, its enforcement will tend to maximize the welfare of the parties to it, and therefore the good of society as a whole. The alternative defense is on libertarian grounds. One of the first functions of the law is to guarantee to individuals a sphere of influence in which they will be able to operate, without having tojustify themselves to the state or to third parties: if one individual is entitled to do within the confines of the tort law what he pleases with what he owns, then two individuals who operate with those same constraints should have the same right with respect to their mutual affairs against the 4 rest of the world. The implications of the policy prescriptions stated above are twofold. First, courts attempting to put terms into the contract which were not agreed to (and would not have been agreed to at its
state to control private arrangements and to evaluate private power relations" in the context of duress and unconscionability). 31. See Coo ER & ULEN, supra note 4, at 191-92 (providing a table that.links the leading doctrines for regulating contracts with the marketfailure they attempt to correct). 32. COOTFR AND UL.N, supra note 4, at 167. A commentator has described the argument this way. The argument is simply that our revealed 'preferences' are generally rational... [w]e desire that which will increase our subjective well-being, and we manifest those desires in our preferences. If the judge ought to maximize well-being, and if our preferences are rational, then the judge, like any other moral actor, ought to respect our revealed preferences. They are the most reliable guide to what she is morally obligated to maximize-our subjective well-being. West, supra note 30, at 666.
33. See Gordon Tullock, The Logic of the Law, in KRONMAN & POSNER, supranote 3, at 23-25 (stating that the law also reduces transaction costs by providing background rules, thus reducing the time necessary for successful contractual negotiation). 34. Richard Epstein, Unconscionahili.:A CiticalReappraial 18 J.L. & ECON. 293, 293-94
(1975).
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formation) will reduce the efficiency of the contract. 5 Second, if no third party is injured by the contract, society is guaranteed to be better off because both parties perceived themselves as better off at the time they entered into the c6ntract's6 In addition, no one is worse off if the contract is strictly enforced according to its explicit
terms. " In contrast, contracts that evidence market failures may require a judge to substantively interfere with or possibly void the contract."
These contract imperfections may come from a variety of sources that
can be classified into individual rationality imperfections and market

imperfections! 9 The further away a contract is from being the perfect contract, the larger the mandate for a judge to interfere with
its terms and conditions
The individual rationality imperfections
come from incompetence, impossibility, or duress.4 ' In economic terms, incompetency means that the promisor does not have stable preferences and thus cannot rationally maximize his or her utility.! Duress and impossibility arise when the constraints placed upon the promisor are not imposed by either the promisor's budget or
preferences; that is, the promisor's freedom to choose is eliminated.4

35. ECONOMIcANALYsISOFLAW, supranote 3, at 85-88.
36. ECONOMIcANALYSIsOFLAW, supranote 3, at79-81. 37. COoTER& ULEN, supra note 4, at 186-87. 38. COOTER& ULEN, supranote 4, at 189. 39. COOTR & ULEN, supra note 4, at 187-93. 40. CooTrE & ULEN, supra note 4, at 186-87. 41. Economists generally have a more limited view of duress than lawyers. Economists believe that duress should be limited in definition to "promise[s] extracted by a threat to destroy." COOTE & UL.N, supra note 4, at 237. Economists distinguish between threats that attempt to extract promises that create value and threats which extract promises that destroy value. For example, the threat to walk away from a deal may induce the party to sign, and this might be perceived as duress-from a legal standpoint if the threat is from a large corporation and the recipient of the threat is a disempowered individual. From an economics point of view, are the contract, if entered into, should be enforced. "Many contracts ... offered on a take-itor-leave-it basis." ECONoMiOCANALVSLS OFLAW, supra note 3, at 114. In contrast, a thief's threat to kill a homeowner unless she signs over her house would destroy value, insofar as she is conveying value to the thief absent value-creating exchange. Even if the thief offers to exchange a yo-yo for the house, value is destroyed insofar as the homeowner prefers the house to the yo-yo and the thief lacks insuffident funds to entice the homeowner to sell. ECONOMIC ANALYSIS OFLAW, supranote 3, at 101. The law, however, makes no distinction between value-destroying threats and value-creating threats. If the party's manifestation ofassent was induced by improper threat by the other party and leaves the victim no reasonable alternative, the contract is voidable by the victim. REsTATEMENT (SEcoND) OFCONTRACTs 175(1) (1979). Third parties can also induce duress. rd.at 175(2). 42. See Coo-ran & ULEN, supra note 4, at 234-35 (explaining the defense of incompetence as a status or inability to make sound decisions for one's own best interest or efficiency). 43. Duress and impossibility destroy one party's freedom of choice, leaving the promisor in a dire constraint. CooTm & ULaN, supranote 4, at 235.
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The presence of any of these imperfections may eliminate the value
of the contract to one or both parties, and thus, enforcement may not maximize wealth.44 These performance excuses and defenses provide avenues through which courts may hold inefficient contracts
unenforceable.!
Similarly, the legal and economic environment or the parties'

circumstances may impede the formation of a perfect contract. High transaction costs created by lack of information, 47 monopoly, 8 or externalities4 9 (i.e., third-party effects) all impede the parties' ability to form a perfect contract. The law, however, provides
recourse for these market imperfections.

First, informational impediments to wealth maximization are
minimized through the contract principles of fraud, failure to disclose, frustration of purpose, and mutual mistake.5s Second, barriers created by monopoly may increase transaction costs' In unconscionability
these instances, the law provides two remedies: 1) antitrust laws,52 and 2) the common s law defenses of adhesion and procedural The third category of imperfections or externalities is not addressed under contract law, except in the case of third-party
beneficiaries.54 Since the goal of contract law is to protect the parties

44. Note that it may be efficient to enforce a contract even if impossibility is raised as an excuse, if the party raising the excuse is the least-cost avoider of an unforeseen contingency that arose. CooT & ULEN, supranote 4, at 241-42. 45. See COOTER & ULEN, supra note 4, at 234-57 (describing formation defenses and performance excuses through various examples). 46. COOTER& ULEN, supranote 4, at 187-91. 47. COOTER &ULEN, supra note 4, at 189-90. 48. CooT-R & ULEN, supranote 4, at 191-93. 49. CooTE& ULEN, supra note 4, at 188-89. 50. Note that unilateral mistake has no place in Law & Economics. If two parties are in error, the factual inquiry as to who is the least-cost avoider of the mistake may be prohibitive. Thus, rescission returns the parties to their initial endowment which may be a superior position to the flawed transaction. However, "where only one party is mistaken, it is reasonable to assume that he is in a better position than the other party to prevent his own error." Anthony T. Kronman, Mistake, Disclosure, Information, and the Law of Contracts, 7 J. LEGAL STUD. 1, 5 (1978). Similarly, the duty to read provides incentive for parties to acquire sufficient information. See infra note 196 and accompanying text. 51. See COOTEa, & UL.EN, supra note 4, at 250-51 (describing how monopoly produces inefficiencies). 52. The Sherman Act in part prohibits contracts, combinations, and conspiracies "in restraint of trade or commerce...." 15 U.S.C. 1 (1998). It also prohibits monopolization, attempts to monopolize, or conspiracies to monopolize any part of trade or commerce. Id. 2. The Clayton Act amended the Sherman Act to allow private plaintiffs who are injured by anticompetitive actions to sue the offending party. Id. 15. 53. SeeCOOTER & ULEN, supranote 4, at 251-57 (discussing monopoly). 54. See COOTER & ULEN, supra note 4, at 188 n.17 (elaborating on the duties arising to
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403
5 involved in the contract, third-party effects are not addressed. 5 The law, however, provides other remedies to third parties injured by the contract. 5 For example, parties injured by pollution caused by a contract to produce a commodity may seek recourse through a
nuisance claim.57 remedies
Environmental law, property law, and tort law
provide additional recourse for third parties.'

for negative third-party effects
Thus, other legal
protect society from
contracts that decrease social welfare!' B. The Role of Unconsdonabilityin Pefect Contracts
Unconscionability refers to a situation where 1) one party has

extreme levels of bargaining power compared to the opposing party, and 2) some ambiguous, additional element is met Since every
third parties under contracts). 55. COOTFR& ULEN, supra note 4, at 189. 56. COOTER& ULEN, supra note 4, at 189. 57. CooTER & ULEN, supra note 4, at 189. 58. COOTER & ULE, supra note 4, at 189. 59. CooTER &-ULEN, supra note 4, at 188. 60. According to the Uniform Commercial Code (U.C.C.): [t]he basic test is whether... the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.... The principle is one of the prevention of oppression and unfair surprise... and not of disturbance of allocation of risks because of superior bargaining power. U.C.C. 2-302 cmt. 1 (1978). In practice, it is probably difficult to distinguish between oppression and allocation of risks because an allocation of risk may not seem bargained for in an adhesion contract. Nevertheless, while superior bargaining power (i.e., "one-sidedness") is an insufficient, although necessary, condition for a finding of unconscionability, the additional elements are not particularly clear. Calarnad and Perillo suggest that one element might be a "lack of meaningful choice." JOHN D. CA.AMARI &JOSEPH M. PERILLO, CONTRACTS 407 (3d ed. 1987). To an economist, a lack of meaningful choice seems like a surrogate for monopoly power, but this is not clear in reading U.C.C. 2-302. Indeed, as one commentator has suggested, "if reading... [ 2-302] makes anything clear it is that reading [the] section alone makes nothing clear about 'unconscionability' except perhaps that it is pejorative." Leff, supra note 17, at 487. Similarly, Corbin's test for unconscionability looks at whether the terms are "so extreme as to appear unconscionable according to the mores and business practices of the time and place." 1 ARTHuR CoRniN, CONTRACrS 128 (1963). However, Corbin does not answer whether an industry's practices can be unconscionable even if followed as a standard business practice. The Restatement's comments suggest thatwhile "[i]nadequacy of consideration does not by itself invalidate a bargain," excessive "disparity in the values exchanged may be an important factor in a determination that a contract is unconscionable and may be sufficient ground, without more, for denying specific performance." RESTATEMENT (SECOND) OF CONTRACTS 208 cmt. c (1981). The Restatement also states that: [a] bargain is not unconscionable merely because the parties to it are unequal in bargaining position, nor even because the inequality results in an allocation of risks to the weaker party. But gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, may confirm indications that the transaction involved elements of deception or compulsion, or may show that the HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 403 1998-1999
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transaction is fraught with unequal bargaining power, it is difficult to distinguish cases where the combination of unequal bargaining power and other bargaining disparities rises to the level of unconscionability. 61 Nonetheless, where a judge finds a contract unconscionable, she may refuse to enforce the unconscionable portion or may deny enforcement of the entire contract."2 At first glance, one might be surprised that unconscionability plays no role in the above discussion of contract imperfections.s6 For economists, however, unconscionability is a valid rationale for refusing to enforce a contract only in limited instances. It hinges upon whether the unconscionability is procedural or substantive." Procedural unconscionability has a greater likelihood of withstanding Law & Economics scrutiny than substantive unconscionability. Professor Richard Epstein suggests that
weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms. Factors which may contribute to a finding of unconsdonability in the bargaining process include the following: belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract; knowledge of the stronger party that the weaker party will be unable to receive substantial benefits from the contract; knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of physical or mental infirmities, ignorance, illiteracy or inability to understand the language of the agreement, or similar factors. I&. 208 cmt. d. These factors, while less ambiguous than the U.C.C. language, are unhelpful. Why should A calculate the probability that B should fl to perform? What if B is a risk-taker and thus perceives the likelihood of success to be higher than A would calculate? Similarly, how could A possibly know which benefits B will receive from the contract? For example, if A is a millionaire, she will unlikely be able to discern what value a clock radio has to B, a person in poverty. Similarly, while the factor describing mental infirmities mirrors incompetence protection, why should A be required to discern whether B is illiterate? What if B, ashamed of his illiteracy, tells A that he fully understands the terms of the contract? Should A require B to pass a reading test? The Restatement seems to want A to act as an arms-length negotiator while simultaneously wanting A to protect B. 61. This is a result of the vagueness of the test for unconscionability. See Asifa Quraishi,
From Gasp to GambL A Prmposed Testfor Uncosscionatliy,25 U.C. DAVIS L. REV 187, 202-04 (1991)
(noting the vagueness of unconscionability standard and lack ofguidance provided in caselaw). 62. A finding ofunconscionability may void the contract, the unconscionable term, or may cause the judge to reform the contract. "Ifa contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result." RES'TATEMENT (SECOND) OF CONTRACTS 208 (1981). See also U.C.C. 2-302 (1978) (setting forth remedial steps a court may take to strike or reform an unconscionable agreement). 63. According to Cooter & Ulen, imconscionability might be applied in an efficient
fashion in cases like Wiliams v. Walher-ThonwsFurniture,Co., 198 A.2d 914 (D.C. Ct. App. 1964),
if a court required "proof that the buyer understood the add-on clause as a condition for
enforcing it." COO"a & ULEN, supranote 4, at 255. According to some commentators, such a
requirement runs contrary to the duty to read and the need to create incentives for people to try to gain as much information as possible. See infranote 190. 64. The distinction between procedural and substantive unconscid6nability can be traced to
Arthur Leff, Unconscionabilty and the Code-The Emperors New Clause, 115 U. PA. L. REV. 485, 487
(1967).
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unconscionability, if properly applied, serves the same purpose as the Statute of Frauds or the parol evidence rule.65 It enables the defendant to raise the specter of fraud or duress without meeting the specific elements for each claim.6 This reduces the cost to defendants who have been harmedf In this light, procedural unconscionability does little more than allow the courts to increase their ability to police contract law. Conversely, for Law & Economics, substantive unconscionability is indefensible.63 Procedural unconscionability, however, can be "piggybacked" upon formation issues that merit scrutiny because they tend to reduce social wealth. Substantive unconscionability has no such redeeming value." Instead, because its definition is ambiguous 70 the "unconscionability" of a particular term or contract is highly subjective. Lacking any dear rule to follow, ajudge will likely define unconscionability based on his or her personal views,7' forsaking the
65. See Epstein, supra note 34, at 302 (stating that the Statute of Frauds requires certain agreements to be in writing, while the parol evidence rule prohibits use of oral evidence to contradict terms of integrated contract). 66. Epstein, supranote 34, at 302. 67. Epstein, supranote 34, at 202. 68. "If unconscionability means that a court may nullify a contract if it considers the consideration inadequate or the terms otherwise one-sided, the basic principle of encouraging market... transactions ... is... compromised." ECONOMIc ANALYSIS OF LAW, supranote 3, at 104. However, two authors have argued that unconsdonability can be efficient. See F.H. Buckley, Three Theories ofSubstantiveFairness,19 HOPSMAL REV. 33,35 (1990) ("The imposition of substantive fairness norms may then be defended for the efficiencies they serve."); Melvin Eisenberg, The .Bargain Princpleand its Limits, 95 HARV. L. REV. 741, 748 (1982) (stating that in an imperfect market, limits on a bargained for agreement, based on the quality of that bargain, are appropriate). The position taken by Buckley and Eisenbergis contrary to standard Law and Economics thinking regardingunconscionability. SeeEpstein, supranote 34, at 294 (stating that the doctrine of unconscionability should not be used to set aside agreements whose substantive terms are found to be objectionable by courts); Posner, supranote 22, at 138 ("The economist recognizes no limitations on [freedom of contract] other than those of incapacity, fraud, duress, monopoly, and externality. Consequently he rejects usury laws, the expansive contemporary conception of unconscionability, and the prohibition of contract penalty
clauses.").
69. Seeinfranote 72. 70. Substantive unconscionabifty has no clear specific elements because its form is nebulous and open to broad interpretation. See A & M Produce Co. v. FMC Corp., 135 Cal. App.3d 473, 486-87 (1982) (stating that there is no precise definition of substantive unconscionability). Thus, unconscionability takes a form equivalent to Justice Stewart's view of pornography. SeeJacobellis v. Ohio, 378 U.S. 184, 197 (1964) ("1 shall not today attempt further to define the kinds of material to be embraced within that shorthand description and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."); see also Anthony Chase, Race Culture, and ContractLaw: From the Cottonfwed to the Courtroom, 28 CONN. L. REV. 1, 38 (1995) ("Defining unconscionability is like defining obscenity. one knows it when one sees it."). 71. See Quraishi, supra note 61, at 203 (noting that the unconscionability doctrine is criticized for the wide discretion it affords judges); G. Richard Shell, Contracts in the Modern Supree Court, 81 CAL. L. REv. 433, 496-97 (1993) (stating that doctrines such as unconscionability "givejudges discretion over private transactions").
406
preferences of the parties. Thus, a wealth-maximizing contract may be stripped of its value by the removal of a particular term or by voiding the contract.' Proponents of the unconscionability doctrine argue that the terms of a contract maximize social wealth only because the promisor is 3 forced into the contract.7 That is, unconscionability prevents transactions that are the economic equivalent of "your car or your life" bargains brought about by the monopoly power of one of the contracting parties. When one is forced into a contract, one cannot be better off merely because one has chosen to give up money rather than life.74 Therefore, unconscionability prevents inefficient wealth transfers brought about by the monopoly power of one of the parties. The argument that unconscionability is an economic mirror to duress7 without the "bad act" requirement and thus prevents s inefficient wealth transfers, masks the issue. In true duress cases, the promisor is forced to choose between two of her entitlements.., her car or herlife. Thus, the promisee receives the promisor's car, or her life, in exchange for nothing. Insofar as the promisor values both her car and her life more than the promisee does, but nonetheless gives 5 up the car, the value of the car is destroyed.7 Conversely, in "economic duress" cases, the promisor must choose between giving up an entitlement in exchange for a good or service or forgoing the good or service." Here, even in cases where a party does exercise market power, wealth is not destroyed. Consider the case where A values B's bike. Assume B's bike has no close substitutes and that A is the only person who seeks B's bike. Unconscionability proponents might argue that any contract between B and A is unconscionable because B has monopoly power over the commodity and thus can command a high price. But A has monopsony s power
72. "[When the doctrine of unconscionability is used in its substantive dimension ... it serves only to undercut the private right of contract in a manner that is apt to do more social harm than good." Epstein, supranote 34, at 315. 73. See Epstein, supra note 34, at 295 ("Duress is an improper means of obtaining... consent because it requires [one party] to abandon [one right] to protect the other'). 74. ECONOMICANALysis OFLAW, supranote 3, at 101 (stating that threat of violence retards the movement of resources to their most valuable uses). 75. This refers to the economists' definition of duress. See supranote 41 for a discussion of economists' view of duress. 76. COOTFa& ULEN, supra note 4, at 252. 77. SeeMichael L Swygert & Katherine EarleYanes, A Unied Theamy ofJusticc. The Integration ofFaimesslntoEffidenty,73 WASH. L. REV. 249,262 (1998) ("The reason these contracts strike us as 'unfair' is not because the parties were forced into them ... but because the disparity in bargaining power resulted in the stronger party receiving almost all of the [value] created by the transaction."). 78. Monopsony refers to a market in which there is a single buyer. See Roger D. Blair &
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407
because A is the sole purchaser. Many contracts in society are set in a bilateral monopoly context If a court holds the contract voidable because B offers the price of $1,000 and says "take it or leave it," a court will be eliminating the potential value created by upholding the contract. A court looking solely at the existence of bargaining power may not reach the proper result and thus reduce social wealth. Therefore, a court using unconscionability as its lens cannot determine whether a contract is wealth-maximizing. Law & Economics theorists believe unconscionabiliy to be a misapplied rule. 0 Procedural unconscionability can be used in ways consistent with wealth-maximization insofar as it reduces a party's However, substantive costs in proving duress or fraud. unconscionability leads to inefficient results because ajudge replaces the parties' preferences with his or her own. Insofar as a judge focuses on bargaining power, the judge may be led to an incorrect result that reduces social wealthY8' Might this inefficient result be advocated by feminists?
11. APPLICATION OF LAW & ECONOMICS TO UNCONScIONABnIY CASES
A. A FeministDilemma in the Realm of Contracts For feminists,8 a tension exists in unconscionability cases. If the contract is enforced, will the party claiming unconscionability be punished for her unequal bargaining power? If so, then feminists
Jeffrey L. Harrison, Antitrust Polity andMonopsony, 76 CoRNE.LL L. REv. 297, 301 (1991) (stating that monopsony 'is the demand-side analog of the monopolist who is a single seller"). 79. A bilateral monopoly occurs when the actors do not have other alternatives but to deal with each other. EcONOMIC-ANALYSIS OF LAW, supra note 3, at54. 80. See Epstein, supranote 34, at 315 (stating that unconscionability obstructs the freedom to contract). 81. Judges may not be focusing on market imperfections, but on issues of power and trust. See Daniel T. Ostas, Economics and the Law of Unconsdonability,27 J. EcoN. IssuEs 647, 652-53 (1993) (noting ajudicial concern with "personal power" or "trust" in reviewing contracts). 82. "Feminist" is defined in this article as an individual advocating policies that make women, people of color, and people in poverty better off than they are under the current legal and economic regime. The various types of feminism will not be discussed. Discussion is limited to a general analysis of arguments that might be posited by feminists addressing contract issues. For better attempts at defining feminism, see ROSEMARIE TONG, FEMINIST THOUGHT: A COMPREHENSIVE INTRODUCTON 1 (1989) ("[F]eminist theory is not one, but [Elach feminist theory or perspective attempts to describe many, theories or perspectives .... women's oppression, to explain its causes and consequences, and to prescribe strategies for women's liberation"), and Clare Dalton, Where We Stand.-Observations on the Situation ofFeminist Legal Thought, 3 BEREL.EYWOMEN'S L.. 1, 2 (1987) ("To be a Feminist... is to believe that we belong to a society... in which women are and have been subordinated by and to men, and that life would be better, certainly for women, possibly for everybody, if this were not the
case.").
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& THE LAW [Vol. 7:395
might seek to utilize the doctrine of unconscionability where low-
income groups are involved.0 This paternalism, however, is what

frustrates feminists who strive for agency for women.84 Feminists
simultaneously argue that women must be granted agency like men and that women should be protected in contracts in which they have unequal bargaining power.8s
Law & Economics might safely navigate feminists between their

Scylla and Charybdis. However, utilizing Law & Economics policies
in advocating freedom of contract for women might cost feminists the ability to speak about the initial distribution of bargaining power
for those women because Law & Economics, as a theory, is powerless
to
discuss
initial
distributions
of income.8
The
three
unconscionability cases that follow highlight these dilemmas. B. Williams v. Walker -Thomas FurnitureCompany Voiding a contract to protect a member of a disadvantaged class may make the person one is seeking to protect worse off. Williams v. Walker-Thomas FurnitureCompany7 highlights this problem. Ora Lee Williams, a single parent of seven children, was on public assistance receiving $218 a month88 For five years, she purchased various items from the Walker-Thomas furniture store in Washington, D.C. 9 These items included beds, a chest of drawers, a washing machine, and a stereo set.! She also purchased sheets, curtains, rugs, chairs, and mattresses.9' Williams signed fourteen contracts for the purchase of
83. Some commentators view unconscionability as a "policing" mechanism to ensure that disempowered consumers obtain "fair" bargains. See Frank P. Darr, Unconsdonability and Price Fairness,30 Hous. L. REv. 1819, 1820 (1994) (stating that unconscionability permits courts to intervene and modify an unfair contract); Jeffrey Harrison, Class, Personality, Contract, and Unconscionabiliy,35 WM. & MARYL. REV. 445, 452 (1994) (advocating a greater role for courts in achieving compensatoryjustice). 84. See Gillian K. Hadfield, An Expressive Theoiy of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law, 146 U. PA. L. REV. 1235, 1253 (1998) (exploring contract logic in its "predominantly agent centered form."). "The answer to the question ofwhether we should enforce a contract must, within contract logic, address the agent involved." Id. 85. See id.at 1236-37 (stating that the problem for feminist contract scholars is whether it is possible to protect women from oppressive results of entering into contracts without divesting women of agency). 86. See ECONOMIC ANALYSIS OF LAW, supra note 3, at 13 (stating that economics does not address the issue of wealth distribution). 87. 198 A.2d 914 (D.C. 1964), remanded by350 F.2d 445 (D.C. Cir. 1965). 88. 198 A.2d at916. 89. 350 F.2d at 447. 90. 198 A.2d at 915. 91. Id. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 408 1998-1999
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these items.2 These contracts were adhesion contracts93 containing a cross-collateralization or "add-on" clause.94 This clause provided that if Williams missed a payment for any of the items she purchased, the 95 store could repossess all of them until the deficiency Was paid off. Williams defaulted on her payments and Walker-Thomas repossessed all of the items!" Williams challenged the contract and asserted that there was no "meeting of the minds," and that the contracts were against public policy. 7 The District of Columbia Court of Appeals determined that Williams' consent was not obtained by fraud or misrepresentation.98 It also found no DC statute barring such practices.? Thus, the court upheld the contract.. The court was disturbed, however, by the "sharp practices" and "irresponsible business dealings" of WalkerThomas.'
92. Id.
93. Perdue v. Crocker Nat'l Bank, 702 P.2d 503, 511 (Cal. 1985) (defining adhesion contracts as "a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or rejectit) (citation omitted). 94. A cross-collateralization clause secures one purchase with all previous purchases as collateral, thus creating a security interest that continues until the customer has paid all Parity,72 OR. L.REv. Money StatusProper balances due. See Russell A. Hakes, AccordingPurchase 323,349 (1993) (discussing an add-on clause mechanism). 95. The contractprovided in part that: [t]he amount of each periodical installment payment to be made by (purchaser) to
the Company under this present lease shall be inclusive of and not in addition to the amount of each installment payment to be made by (purchaser) under such prior leases, bills or accounts; and all payments now and hereafter made by (purchaser) shall be credited pro rata on all outstanding leases, bills and accounts due the Company by (purchaser) at the time each such payment is made. Williams v. Walker-Thomas Furniture, Co., 350 F.2d 445, 447 (D.C. Cir. 1965). Note that while' the contract purported to "lease" the goods to Williams, the parties actually intended the
transaction to be a sale. SeeJean Braucher, DefiningUnfairness:Empathy andEconomic Analysis at the Federal Trade Commission, 68 B.U. L. REV. 349, 430 n.21 (1988) (stating that the court of appeals in Waher-Thomas correctly referred to the contracts as puichases which 'purported' to be leases); Michael Hunter Schwartz, Power Outrage: Amplifying the Anaysis of Power in Legal Relations (with Special Application to Unconscionabilityand Arbitration),33 WILtjAbTr L. REv. 67, 123 (1997) (noting that there is no evidence that Williams believed the transaction was anything but a sale). 96. Williams v. Walker-Thomas Furniture, Co., 198 A.2d 914,915 (D.C. 1964). 97. Id. at 98. Id. 916. 99. The court looked longingly at the Maryland Retail Installment Sales Act, art. 83 128-153 (1975) because ifitwere "in force in the District of Columbia, we could grant appellant appropriate relief." Id. Williams entered into these contracts prior to the enactment of the U.C.C. in the District of Columbia, which took place in 1963. 350 F.2dat448. 100. See 198 A.2d at 916 (stating that because Williams' assent was not obtained by fraud or misrepresentation, her allegation that there was no "meeting of the minds" mustfail). 101. The court wished that the furniture store had acted more paternalistically toward Williams by inquiring into her financial status prior to sale: "[W]ith full knowledge that HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 409 1998-1999
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[Vol. 7:395
Judge Skelly Wright, in his opinion for the D.C. Circuit, remanded the case, finding that the lower court should have applied the 2 unconscionability doctrine to this contract.11 Judge Skelly Wright made much of Williams' inability to understand the terms of the
contract:
[W]hen a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.' Both courts were concerned about the unequal bargaining power between Williams and Walker-Thomas. Each claimed that this unequal bargaining power manifested itself in the "sharp practice" of the add-on clause." 4 The add-on clause, however, may have a legitimate business purpose that increases the value of the contract to both parties, and thus, makes the transaction efficient.' Consumer goods, such as those purchased by Williams, tend to lose value at a rate faster than the rate at which they are paid off.'6 In other words, if Williams defaults on the loan, Walker-Thomas loses money, even if the goods are repossessed. To fully compensate the store, additional security is needed. 7
appellant had to feed, clothe and support both herself and seven children on this amount, appellee sold her a $514 stereo set." Id. Had Walker-Thomas Furniture consistently engaged in this practice, it would have lost all demand for its products. Thus, the court sought to have Walker-Thomas act irrationally. This would have led to an inefficient result. See supranotes 4146 and accompanying text (implying that the greater individual rationality imperfections, the larger thejudge's mandate to interfere with the contract). 102. See Williams v. Walker-Thomas Furniture, Co., 350 F.2d 445, 450 (D.C. Cir. 1965) (remanding the case for further findings on the possible unconscionability of the contracts). 103. Id. at449-50 (citations omitted). 104. Williams v. Walker-Thomas Furniture, Co., 198 A.2d 914,916 (D.C. 1964). 105. Presumably, Walker-Thomas intentionally inserted the dause into the contract for the purpose stated infranotes 96-97 and accompanying text. 106. Epstein, supranote 34, at 307. 107. Whether the store was fully compensated or under-compensated is a function of the time at which Williams defaulted. Suppose Williams defaulted after purchasing the first item. Here, the store would be under-compensated because the item lost value at a rate faster than Williams paid it off. Hypothetically, if Williams defaulted on a mythical 113th item, the store would receive full compensation. Id. Note that the store cannot be overcompensated because all excess proceeds would have to be returned to Williams. EcONOMIcANALYSIs OF LAW, supra note 3, at 116. Most states have statutes limiting the repossessor to recovery of the debt plus the cost of collection. SeeAlan Schwartz, The Enforceability of Security Interests in Consumer Goods, 26J. L. & ECON. 117 (1983) (noting that this limitation is a disincentive to the use of security as a
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SCLAAND CHARYBDIS
The add-on clause may have value to the consumer as well. Williams and other low-income consumers would be unable to make 0 the down-payment associated with traditional transactions! 8 Absent a down-payment or other collateral, the cost of the loan would increase or the consumer would not receive the loan at all. Furthermore, the consumer may be indifferent to the risks associated with the clause because of her expectation that she will not default.' 9 Thus, the add-on clause may maximize wealth by reducing transaction costs, making both parties better off. Holding the add-on clause unconscionable has consequences for both parties. For Williams, striking the add-on clause increases borrowing costs or prevents her from purchasing altogether."' For Walker-Thomas, striking the clause results in a decline in sales and profits."' The add-on clause was a fumdamental provision of the contract. Had Judge Skelly Wright asked the parties prior to breach whether the clause was important, the answer would likely have been affirmative. The provision rendered Walker-Thomas better off and Williams would be at the very least indifferent to the provision. The question arises, however, as to whether any term or condition may be so extreme that the courts should step in to prevent enforcement of the contract. The classic example, in which the purchase price of the good exceeds the retail value, will be addressed next. C. Jones v. StarCredit Corporation The most fundamental contract term is the price to be paid for the good or service. Not surprisingly, price does not escape unconscionability scrutiny. The application, however, of unconscionability to price terms should again give pause to feminists
risk reduction devise); see also infra Part III.E. 108. See Louis E. Wolcher, 'The Enchantress'and KarlPolanyi'pSocial Theny, 51 OHIO ST. LJ.
1243, 1278 (1990) ("striking down the [add-on] clause ... might make the poor people worse off in the future because they have no money for a down payment"). 109. See Williams v. Walker-Thomas Furniture, Co., 250 F.2d 445, 447 (D.C. Cir. 1965) (demonstrating that Williams had an exemplary payment record by virtue of the fact that between 1957-1962, she made payments totaling $1,400-nearly 80% of the $1,800 worth of purchases she made). 110. The add-on clause compensates the seller for the risks associated with selling to a lowincome consumer. See Harrison, supra note 83, at 499 (stating that a popular argument supporting add-on clauses is that it allows merchants to operate in high risk areas). Without the clause, the seller will not be compensated for the risk, and thus, will forsake selling to lowincome consumers. Id. 111. Harrison, supra note 83, at 499 (discussing profits for merchants in low-income areas). 112. "[N]o other provision of an agreement more intimately touches upon the question of unconscionability than does the term regarding price." Jones v. Star Credit Corp., 298 N.Y.S.2d 264,266 (Sup. Ct. 1969).
412
fraud.
JOURNAL OF GENDER, SOCIAL POLicY & THE LAW [Vol. 7:395
seeking to alter terms of contracts that lack elements of duress or Clifton Jones, a welfare recipient, purchased a home freezer for $900 from a sales representative of 'Your Shop At Home Service, Inc.1 3 The total price of the freezer with time credit charges, life insurance, property insurance, and sales tax was $1,234.80.114 Jones paid approximately $60O."s Star Credit claimed that Jones had a remaining balance of approximately $800."6 The freezer unit had a 7 maximum retail value of $300.1 The court grantedjudgment modifying the contract total to reflect $619.88, the amount already paid by Jones."' The court reasoned "9 that the disparity between the retail value of the freezer and the purchase price, which "is exorbitant on its face, carries the greatest weight.", 20 The court also relied on the fact that Jones had "very limited financial resources" and that this was "known to the sellers at the time of the sale."' Finally, the court cited Williams for the proposition that "the meaningfulness of choice essential to the making of the contract can be negated by gross inequality of bargaining power."'2 Yet, just below this reasoning was a hint at what the contract price might entail. The court stated: There is no question about the necessity and even the desirability of installment sales and the extension of credit. Indeed, there are many, including welfare recipients, who would be deprived of even the most basic conveniences without the use of these devices. Similarly, the retail merchant selling on installment or extending credit is expected to establish a pricing factor which will afford a degree of protection commensurate with the risk of selling to those who might be default prone. However, neither of these accepted premises can clothe the sale of this freezer with respectability.
11S. Id. at 264-65. 114. Id.at 265. 115. Id.
116. 117. 118. 119. it").
Id. Jones v. Star Credit Corp., 298 N.Y.S.2d 264, 266 (Sup. Ct. 1969). Id. at 264. See id at 266 (conceding that "deciding the issue is substantially easier than explaining
120. Id."Yet, a caveat is warranted lest we reduce the import of [unconscionabilityl to a mathematical ratio formula." Id at 267. 121. Id 122. Jones v. Star Credit Corp., 298 N.Y.S.2d 264,267 (Sup. C. 1969). 123. Id.
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SCLLA AND CHARYBDIS
Judge Sol M. Wachtler's opinion points out the difficulty presented in this case. Intuitively, one imagines that this case is more defensible from a paternalistic position due to the image of shady and slick salesmen taking advantage of impoverished victims. This concern clearly caused Judge Wachtler's frustration because no evidence of fraud or other process concerns were present. Yet, the unjust price implied a failure in the bargaining process. 24 Nonetheless, economics provide a justification for a seemingly unjust price differential. As with the add-on clause in Williams, the price of the freezer in Jones included a risk premium to Star Credit Corp. ' 2 Star Credit protected itself against default by Jones through the price of the product. The risk premium was necessarily higher because there was a higher risk of default for low-income customers. Judge Wachtler therefore erred by comparing the value of the freezer with the value of the freezer and the risk premium of selling the freezer on credit 126 These two commodities are incomparable, although clearly the value of the former is less than the value of the latter. If this economic rationale holds, then Jones proves easier to decide than Williams. Unlike the add-on clause in Williams, Jones certainly 2 would know the total price he paid for the freezer. 7 Efficiency demands that the courts enforce a contract which both parties entered into voluntarily. In contrast, holding the contract unenforceable creates certain economic consequences, as in Williams v. Walker-Thomas Furniture Company.Is Without the risk premium, Star Credit would be unable to protect itself against the risk of default. Thus, sales to clients like Jones would be ruled out because the risk of default would go uncompensated. Low-income customers, like Jones, would no longer be able to purchase appliances on credit. Moreover, their ability to purchase appliances would decrease unless they saved sufficient funds to pay cash or buy on layaway. At the very least, consumers like Jones would face higher prices, as sellers attempt to cover some of the
124. See Craig Horowitz, Comment, Revinng The Law of Substantive Unconsdonabily:Appying the Implied Covenant of Good FaithandFairDealing Excssively PrjicedConsumer Credit Contracts,33 to UCLA l REV. 940,949 (1986) (coining the term "implied unconscionability"). Judge Wachtler also may have been concerned that Star Credit was "skirting" the state's usury laws through use of the creditsystem. rd.at 974.
125. Jon, 298 N.YS.2d at267.

126. Id. at 267 (stating that Star Credit increased the price by the risk premium associated with buyers who were more prone to defaulting). 127. Horowitz, supranote 124, at 948.
128. EcoNOMhCANALYsis OFLA, supranote 3, at 116.
414
[Vol. 7:395
default risk. Thus, Jones and similarly situated customers would be made worse off by holding such a contract to be unconscionable. A final problem with unconscionability is the inconsistency in its application. A central purpose of contract law is to provide certainty to exchanges. This is accomplished through background rules which reduce the parties' transaction costs associated with exchange.' Where a judge has overwhelming personal misgivings or feelings regarding the case, and unconscionability is applied, there is little guidance in precedent given the highly subjective nature of the doctrine" This ambiguity leads to inefficient transactions in the marketplace.' 3 ' D. Carboniv. ArTospide A tangential issue in unconscionability analysis was raised inJones. When judges look to related markets in comparing the value of the contract to the "market" value, they may mistakenly believe that the two values should be identical, even though the two markets are separate and distinct.s3 This results in contracts being held unconscionable because the price differences are perceived to be too high, and it is assumed that the consumer was subject to oppression and unequal bargaining power.
129. SeeJuliet P. Kostritsky, Bargainingwith Uncertainty,MoratHazardandSunk Costs:A Default Rule for Precontractual Negotiations, 44 HAsnNGs LJ. 621, 634 (1993) (arguing that the
"inadequacy of private strategies for overcoming defects in the bargaining process oftenjustifies legal intervention").
130. SeeDuncan Kennedy, Form and Substancein PrivateLaw Adjudication, 89 HARV. L. REV.
1685, 1688 (1976) (discussing the differences between formal rules and social policy and the resulting problems when they overlap); see also Horowitz, supranote 124, at 948 (stating that somejudges use personal opinion to shape the term unconscionability). 131. At least one court has allowed a plaintiff to go forward with a substantive unconscionability argument, even where the price of the good offered was the market price. See Perdue v. Crocker Nat'l Bank, 702 P.2d 503 (Cal. 1985). Plaintiff argued that, since the net cost of a check drawn against insufficient funds was only $0.30, a $6 fee was excessive. I4 at 512. The California Supreme Court held that the substantive unconscionability claim was a triable issue, and thus reversed the trial court's dismissal. I. at 525. The court believed that while a price set by a competitive market was unlikely to be unconscionable, even the market price might be excessive under certain circumstances. Id. at 512. One commentator has noted that the case "clearly endorses both the view that a price may be unconscionable because it gives a party too much profit and the novel concept that the cumulative profits from many separate transactions are relevant to an individual plaintiff's claim." Harry G. Prince, Uneonscionabilityin
California:ANeedfor Restraintand Consistency, 46 HASTiNGS LJ. 459,550 (1995). ComparePerdue
v. Crocker Nat'l Bank, 702 P.2d at 513 (finding that small charges applied to a large volume of transactions may yield a sizeable sum), with California Grocers Ass'n v. Bank of Am., 27 Cal. Rptr. 2d 396, 402 (Ct. App. 1994) (holding that volume is "inconsequential" to an unconscionability claim and noting the insufficient funds fee to be on the "low end" of the market). 132. Jones v. Star Credit Corp., 298 N.Y.$.2d 264,267-68 (Sup. Ct. 1969). 133. Id. at 266-67.
1998-1999]
This market comparison is the reason for the holding in Carboni v. Arrospide" Arrospide borrowed $4,000 from Carboni.'3 - The note issued on July 27, 1988, carried an interest rate of 200% per annum 6 and was due in three months." The initial intent of the parties was that Arrospide would pay off $6,000 in six months."7 Although there was some confusion as to what the note was to be used for, the court apparently believed that the purpose of the loan was to pay medical
1 costs."
The note was not paid on time.3
Still, Carboni continued to
make cash advances, which by November 25, 1988, eventually totaled 140 By March of 1990, Arrospide owed Carboni $99,346 in principal. nearly $390,000.' The Superior Court of San Mateo County, California found the contract unconscionable and modified the interest rate to twenty 4 four percent. 2 Garboni appealed, but the California Court of Appeals affirmed the decision.'" Ironically, the court, after having "little trouble concluding that an interest rate of 200 percent on a secured $99,000 loan was unconscionable; i.e., that it imposes a cost on the borrower which is overly harsh and was not justified by the circumstances in which the contract was made,"'" cited Jones for the proposition that "deciding the issue is substantially easier than explaining it."'" The court noted that the interest rate was the "price" of the money loaned.4 6 This was a correct assessment. The court remarked, however, that the interest rate was approximately ten times the "rate then prevailing in the credit market for similar loans."' 47 This was much more than the price "difference" in Jones, which was merely three to four times the market price.4 The court also noted that Carboni testified that Arrospide could have obtained
134. 2 Cal. Rptr. 2d 845 (Ct. App. 1991).
135. Id. 846. at

136. 137. 138. 139. 140. 141. 142. 143. 144. 145. Id. Id. Id. at 845. Carboni v. Arrospide, 2 Cal. Rptr. 2d 845,846 (Ct. App. 1991). Id. at846. Id. Id. Id. at851. Carboni v. Arrospide, 2 Cal. Rptr. 2d 845, 849 (Ct. App. 1991). Se id. at 849 (quotingJones v. Star Credit Corp., 298 N.Y.S.2d 264, 266 (Sup. Ct.
1969)).
146. Id. at 847. 147. rd.at 849. 148. Id.

416
a $4,000 loan secured by a third deed of trust for ten points."9 Below this "analysis" of substantive unconscionability, however, came the court's procedural unconscionability analysis.' 0 While noting in its substantive unconscionability analysis that Arrospide could have obtained a loan more cheaply,' the court stated that Arrospide "had attempted unsuccessfully to secure a loan from other 5 sources."' 2 This was directly stated in the agreement, and the court used the contract's clause to hold that there was an inequality of bargaining power which effectively robbed Arrospide of any meaningful choice.'s3 Thus, the court concluded that Carboni was able to offer credit on a "take it or leave it" basis.'s4 Carboni himself testified that Arrospide told him that it was impossible for him to borrow funds from other sources.1 The court's substantive unconscionability and procedural unconscionability arguments lead to two conclusions. First, the 5 court's analysis is contradictory. 1 Arrospide could have turned to other sources of credit, yet lacked meaningful choice. The interest rate Carboni charged was too high because the rate for "similar loans" was ten times lower, yet Arrospide was unable to obtain financing from these other sources. 57 The contradiction arises from the court's misunderstanding of the market mechanisms at play. The court correctly points out that in determining unconscionability, courts may compare "the price actually being paid... [with prices paid by] other similarly situated consumers in similar transactions,"' but fails to note the dissimilarity between a home improvement loan and a loan to repay hospital bills. This distinction was not lost on Arrospide, whose loan application was denied by several lending institutions.' 59 This contradiction, arising from the court's misunderstanding of the market mechanisms at play in this case, led
149. Carboni v.Arrospide, 2 Cal. Rptr. 2d 845,850 (Ct. App. 1991). 150. Id at 850 (analyzing procedural unconsdonability). 151. Id. 152. Id. 153. Id. at 850. 154. Carboni v.Arrospide, 2 Cal. Rptr. 2d 845,851 (C. App. 1991). 155. Id. at 851. 156. See Edward Giedgowd, 47 CONSUMER FIN. L.Q. REP. 98, 104 n.2 (1993) (arguing that the court's analysis in Carboniwasinternally inconsistent). 157. See Carbon4 2 Cal. Rptr. 2d at 849 (concluding that the price of credit was ten times its actual value). 158. See Carboni v. Arrospide, 2 Cal. Rptr. 2d 845, 849 n.10 (C. App. 1991) (citing to Perdue v. Crocker Nat'l Bank, 702 P.2d 503,512 (Cal. 1985)). 159. Id.
1998-1999]
SYUIA AND CHARYBDIS
417
the court to the incorrect conclusion that Arrospide was under duress, when in fact the transaction was unique. The transaction in Arrospidewas an instance of bilateral monopoly." Second, the loan is efficient under a Law & Economics analysis. The purpose of the loan was to pay for medical bills and personal liabilities.' 6' This is probably why conventional lenders denied Arrospide credit. Arrospide was unable to find a lender until the interest rate was sufficient to cover the lender's risk that Arrospide might default. Given that the loan was for medical costs and not property investment, the risk of default was higher, hence the high interest rate.6 This rate, which was "plainly set out" in the contract, 63 was satisfactory to Arrospide, since he intended to repay the loan within three months, knew the terms of repayment, and nonetheless agreed to the terms.' Thus, the loan was mutually beneficial at the time it was created and was efficient because the parties voluntarily entered into the contract.'6 E. Potential Feminist Objections to Law &Economics Anaysis This brings us to the question we started with: Does the Law & Economics analysis bring about a result amenable to feminists? In order to answer this question, we first must deal with some objections that might be raised with upholding the contracts in Williams,Jones, and Arrospide. Initially, some feminists might argue that the add-on clause in Williams evidences monopoly power.'6 That is, Walker-Thomas could merely raise its price to compensate itself for the risk associated with dealing with low-income consumers. Thus, as a monopoly, the furniture store is not harmed by the removal of the add-on clause.
160. See id at 846 (accounting for the fact thatArrospide was pressured). 161. Id. 162. See Carboni v.Arrospide, 2 Cal. Rptr. 2d 845, 846 (Ct. App. 1991) (explaining that the note paid to Carboni had an annual interest rate of 200%). 163. Id. at 850. 164. Id. at 846. 165. While the court may believe thatArrospide was under duress, he clearly was not under the economists definition of duress since Arrospide was not coerced into signing the contract by an improper threat from Carboni. Supranote 41. Rather, Arrospide was only prompted ee by his initial conditions. This makes him no different than any other economic actor. Thus, under the economists definition, he was not under duress. See supra note 41 and accompanying text. 166. See David Greenberg, Easy Tens, Hard Times: Complaint Handingin the Ghetto, in No ACCESS To LAW: ALTERNATIVES To THE AMERICAN JUDICIAL SYSTEM 380-88 (Laura Nader ed., 1980) (arguing that because most "name" stores would turn away "almost all unemployed and benefit-receiving credit applicants," and because "[tihe shopping radius of poor people is quite narrow... Walker-Thomas often becomes the only accessible merchant of credit").
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No evidence, however, suggests that Walker-Thomas held monopoly power. The fact that a term is favorable to one party does not imply that the party had monopoly power. Monopoly power is not merely that terms in a contract are more favorable to one party than the other. Rather, monopoly power implies that the firm could increase price without consumers switching to alternative suppliers 6 and without firms entering the market and undercutting its price.' 7 Absent the ability to dominate the market and prevent customers from switching, Walker-Thomas' customers could have sought alternative sources and bypassed Walker-Thomas' practices. If none existed and Walker-Thomas was able to capture super competitive profits, then other furniture stores could have entered the market to capture a portion of these monopoly rents." Thus, it is doubtful that the mere presence of the add-on clause alone leads to the conclusion that the firm had monopoly power. There is another argument that the add-on clause does not indicate monopoly power: if Walker-Thomas had monopoly power, it would not exercise it through the add-on clause, but would simply raise the price. Clearly, the firm did not do this because it feared
competition or losing customers. Thus, there must be some
reason absent monopoly power that explains the add-on clause. Since it is doubtful that the repossessed goods have high resale value,' one can assume that the clause merely assigns the risk of default to the party most able to avoid it. If Walker-Thomas did not hold monopoly power, then it appears that Star Credit and Carboni did since they were able to raise prices directly without the clause.'7 In other words, the fact that the price exceeded the value of the freezer by a factor of four indicates
167. John J. Flynn, Monopolization Under The Sherman Act: The ird Wave and Beqond 26 ANTrrRusr BULL. 1, 10-11 (1981). 168. There is no indication of what occurred following the court opinions. Walker-Thomas may indeed have raised the price of its goods, but this would not mean that it is a monopolist unless no entry occurred and consumers did notswitch to other suppliers. 169. Alternatively, Walker-Thomas may fear potntial entrants. See infra note 175 and accompanying text. 170. It is equally reasonable to assume that the low-income consumers patronizing WalkerThomas had some degree of power over the store. Without their patronage, Walker-Thomas would be forced to seek customers from the same customer group as Sears and other similar stores. It is unclear whether Walker-Thomas would have fared well in this market. Thus, consumer power (choosing not to purchase) might force Walker-Thomas to keep the terms of sale to economically reasonable levels. Posner, supra note 1, at 275 (suggesting that lower income customers are not devoid of all power). 171. If so, other firms would enter into the business of repossessing and selling repossessed items. 172. Se Prince, supranote 131, at 478 (stating that these situations are monopolistic in that the buyer does not have many options).
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monopoly power, as does an interest rate of ten times the prevailing rate. In Jones, this conclusion is wrong for several reasons. First, it misinterprets the nature of the market. The market for consumer goods in impoverished neighborhoods may be isolated from other
retail sectors. Evidence of this isolation is that the rate of profit for low-income consumer appliances was lower than for other consumer appliances. 74 Nonetheless, low-income retailers may be barred from retrieving super competitive profits because of potential entrants from the general retail sector. That is, if the market is contestable, low-income retailers cannot monopolize price. 75 Second, the price of Jones' freezer embodies the risk premium of the seller, while the value of the freezer ($300) is the cash value of the appliance. These two numbers are therefore, incomparable. Finally, the term monopoly implies that consumers have no other alternatives.17 6 This article has mentioned two alternatives to consumers; they could save a portion of their income until they are able to purchase the appliance, or they could purchase the item on layaway, making installment payments until the item is paid off. There is a third alternative for consumers. Consumers may opt to forego purchasing the item. This option has the effect of forcing a seller to offer more attractive terms in order to complete the sale. The seller's competitors will do likewise. A process of competition prevails based on the terms of the contract.' 7 In contrast to Jones, Carboniisan example of monopoly power. The Carbonicourt was not at all clear on this point, because it noted the alternative suppliers of credit and the rates they charge as evidence of the excessive interest rate." Simultaneously, the court argues that
173. ElinorUstrom, The Comparative Study ofPublic Economies, AMi. ECONOMIST, Apr. 1, 1998, at3. 174. One study found that retailers serving low-income clients charged higher prices than
their retail counterparts. Surprisingly, the retailers serving low-income consumers received lower profit rates (on net worth) than the general market retailers. Horowitz, supra note 124, at 940 (citing to U.S. FED. TRADE COMM'N, ECONOMIc REPORT ON INSTALLMENT CREDIT AND
RETAIL SALEs PRACtiCES OFDisTcr oFCOLUMBIARErAiLRs (1968)).
potential competitor forces the firm to act as though competitive conditions were already in
place. In that environment, a monopoly cannot produce results harmful to consumers.
WILLIAM BAUMOL, JOHN C. PANzAR, ROBERT D. WILLIG, CONTESTABLE MARKETS AND THE THEORY OF INDUSTRIAL STRUCTuRE 51 (1982); William Baumol, Contestable Markets: An Uprising
175. The contestable market literature supports this assertion. The threat of entry by a
in the Theoy of Industrial Structure 72 AM. ECON. REV. 1 (1982). The contestable market literature states that the threat of entry by an actor who has not yet entered the market can influence market price. 176. Prince, spa note 131, at478. 177. Posner, ECONOMIC ANALYSIS oFLAw, supra note 3, at 114. 178. Se Carboni v. Arrospide, 2 Cal. Rptr. 2d 845, 846 (Ct. App. 1991) (noting that the high HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 419 1998-1999
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Arrospide could not turn to these sources for supply." 9 The court
could properly state its point in the following manner: every economist knows that the relevant market for determining monopoly power is the market where consumers can practically turn to for supplies and where no suppliers would enter given a five percent increase in price.' Arrospide could not find alternative sources of financing.' Additionally, no suppliers entered to compete with Carboni.' 2 Thus, it seems clear that Carboni had monopoly power, contrary to the court's substantive unconscionability assertion that other alternatives were available. But the value of this monopoly is reduced given that Arrospide had monopsony power. No other consumers of credit were competing with Arrospide for Garboni's capital. Carboni could have used his capital in other markets. Given the nature of the contract, it is possible that Arrospide could have bargained Garboni down to a rate just above Garboni's next best alternative. Feminists might counter that Arrospide was desperate, and that this desperation conferred more bargaining power upon Garboni. t Even if Garboni, Star Credit, and Walker-Thomas were monopolies," s the consumers might still have had an option.'"" Instead of
interest rate was against public policy). 179. Id at 851. 180. See U.S. Dept. ofJusfice and Fed. Trade Comm, Horizontal Merger Guidelines, reprinted in 4 Trad. Reg. Rep. (CCH) [ 13,104, 57 Fed. Reg. 41,552 (Sept. 10, 1992). Section 1.0 of the Guidelines states: "In determining whether a hypothetical monopolist would be in a position to exercise market power, it is necessary to evaluate the likely demand responses of consumers to a price increase. A price increase could be made unprofitable by consumers either switching to other products or switching to the same product produced by other firms at other locations. The nature and magnitude of these two types of demand responses respectively determine the scope of the product market and the geographic market." Id. at 41, 554. Participant suppliers in the relevant market include firms already the products within the relevant geographic area and any "timely," "likely," and "sufficient" supply responses to a five percent price increase. Id. (drawing from 1.32). 181. Carboni, 2 Cal. Rptr. 2d at 850-51. 182. Id. at 851. 183. Greenberg asserts that Walker-Thomas was a monopoly because consumers felt that they lacked alternatives to Walker-Thomas' products. Greenberg, supranote 166, at 382. 184. "The fact that a product is monopolized does not make it a necessity of life." ECONOMicANAL'sts OF LAW, supra note 3, at 115. If the goods were necessities, however, the analysis would be more complicated. It seems unlikely that most of the consumer goods Williams purchased were necessities. Most necessities are either regulated (e.g., electricity and gas) or in highly competitive markets (e.g., groceries). Nonetheless, a compelling argument could be made that Williams' goods were necessities. SeeSpence, supranote 12, at 93-94 (giving examples of necessities). If the goods were necessities, a consumer's ability to withdraw from the market and coerce the monopoly into offering more attractive terms is minimized. See Duncan Kennedy, Distribuive and PaternalisticMotives in Contract and Tort Law With Special Reference to Compulsory Terms and Unequal BargainingPower, 41 M. L. REV. 563, 608 (1982) ("Consumers are too poor... to induce sellers to provide something that under the free contract model, sellers don't have to provide unless the price is right."). However, if the
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competitors forcing the sellers to change the terms of the sale, the consumers could have forced change, through their unwillingness to purchase. Monopoly pricing is a.function of a firm's marginal cost If demand for the and the product's elasticity of demand."'
monopolist's product declines due to either excessive terms or high

prices, the monopolist is forced to change its price or terms in order In Carboni, Jones, and Williams, Law & to maximize profits. 8 Economics leads us to the same conclusion, that the parties to the agreement fare better under the contract than if it were held unconscionable and therefore, void. A second objection of feminists regards the procedural elements of the cases. For example, even if Walker-Thomas had no monopoly power in the commodity market, it enjoyed power by controlling the Williams professed information available to the consumer."7 ignorance as to the terms of the contract.lsa She believed that the clause called for the repossession of the most recently purchased good only. 89 In addition, Wflliams could not reduce her ignorance as to the terms of the contract because of high informational and budgetary constraints.'O For feminists, the Williams court should have
product is monopolized and a consumer necessity, there may be a strong case for antitrust enforcement. Note that a holding of unconsdonability in the contract does not render the monopoly neutered. Antitrust laws may provide a stronger remedy either through divestiture of the firm or regulation. See Daniel L Rubinfield, Antitrust Enforcement in Dynamic Network Industris, ANTrrusr BuunnN-Dow JONES, Sept. 22, 1998, available in 1998 WL 16568457 (arguing that "the antitrust laws are directed toward restricting specific practices that are likely to be anticompetitive because such practices are not in the long run interests of consumers). 185. Elasticity of demand measures consumer responsiveness to changes in price. For example, if a price increase on good A leads to an enormous consumer withdrawal from the marketfor good A, then demand for good Ais said to be elastic. FrancisJ. Mulhern,Jerome D. Williams & Robert P. Leone, Variabilityof BrandPriceElastidtiesAcross Retail Stores:Ethnic, Income OFR-TAniNG, Sept.22,1998, availablein 1998 WL 13503461. andBrandDeterminantJouRNAL 186. EcoNOMICANALiSIS OFLAW, supra note 3, at 115. Note the monopoly is still inefficient because it produces net losses to social welfare. 187. SwJean Braucher, DefiningUnfairness:Empathy andEconomic Analysirs at the FederalTrade Commission, 68 B.U. L. REV. 349, 363 (1988) (asserting that consumers face barriers in information gathering). For example, consumers may fear the denial of credit if they ask about the consequences of defaulting. Furthermore, even if consumers were able to obtain contract information from the firm, "[e]onsumers attempting to evaluate creditors' remedies also face the difficulty of estimating the likelihood of default and of weighing terms contingent on default against more immediate aspects of transactions. Debtors in general do not expect to default and avoid thinking about this risk." Ad. 188. Williams v.Walker-Thomas Furniture, Co., 198 A.2d 914,915 (D.C. 1964). 189. See id. (explaining that appellant signed the contracts without reading them). 190. Theoretically, Williams could have employed an attorney to explain the terms to her. She probably could not afford one, however, so a budgetary constraint prevented her from acquiring full information. See id. (stating that Williams provided for herself and seven children by means of public assistance). In addition, it is unlikely that she could have determined the meaning of the terms without exceptionally high transaction costs. Id. The language of the contract is comprehensible only to those who have a legal education. Seesupranote 95.
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declared the clause unenforceable on procedural grounds.' The preceding conclusion is unsupported for two reasons. First,
Williams admitted that she did not ask anyone to explain the contract. 92 If she had, three possible outcomes could have resulted. First, the store's agents could have read and explained the terms to 93 her.' The above analysis indicates that in this instance, she still 9 would have signed the contract! Second, if the store had refused to explain the contract, then Williams had the option not to purchase. Finally, the store could have deliberately deceived Williams and intentionally misexplained the contract's provisions. This action could be challenged on the grounds of fraud and misrepresentation. s Second, courts have generally held that persons signing contracts
have a duty to read the contract's provisions or to have the terms read
to them.' In the absence of fraud, Williams was bound to the contract despite not asking Walker-Thomas to read the terms to her. The lack of evidence of monopoly, fraud, or duress leads to the conclusion that Williams made a unilateral mistake. Williams
191. This argument could not be made as toJmes and Arrospde because in both instances the consumers knew the price of the goods, namely the refrigerator and the loan. SeeJones v. Star Credit Corp., 298 N.Y.S.2d 264, 264-65 (Sup. Ct. 1969) (stating that the plaintiffs signed a note in the amount of $4,000 to be paid off in a single lump sum payment of $6,000 after three months). In particular, Arrospide, having sought other loans, would be familiar with interest rates for various secured and unsecured loans. Carboni v. Arrospide, 2 Cal. Rptr. 2d 845,850-57 (Cal.App. 1991). 192. Williams, 198 A.2d at 915. 193. In this case, the cost of information to Williams is almost zero. Because she filled to take even this minimal step, it follows that one cannot know which barriers to information she actually faced. 194. There is no indication of what type of informational network existed in the neighborhood. It is possible that "word got around" regarding the nature of the agreements with Walker-Thomas. Even though Williams did not know the terms, she would have known the result of nonpayment. There is some evidence that the nature of Walker-Thomas' practices were well known in the ghetto. See Greenberg, supra note 166, at 159; see also William Raspberry, The Day the City'sFury was Unkashed. Lessons of the Riots, WASH. POST, Apr. 3, 1988, at Al (describing the riots in Washington, D.C., following the assassination of Rev. Martin Luther King in 1968: "There was the woman yelling at looters in the Walker-Thomas Furniture store, noted for its high-interest charge accounts, to 'Get the books! Get the booksl'"). 195. See RESTATEMENT OF THE LAW, CONTRACTS 2d 162-64 (defining fraudulent misrepresentation and providing that misrepresentation may prevent formation of a contract and may make a contract voidable). "If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient." Id. 164. 196. See 1 SAMUELWILUJSTON & RICHARD A. LORD, WIL.LSTON ON CONTRACTS 4:16 (4th ed. 1990) ("Itwill not do for a man to enter into a contract and when called upon to respond to its obligations, to say that he did not read it when he signed it or know what it contained"); Steven
Bender, Consumer Protectionfor Latinos: Overcoming Language Fraud and English-Only in the
Marketplace, 45 AM. U. L REv. 1027, 1036 (1996) (explaining the duty to read doctrine in the context of consumers who are in a language minority).
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believed the terms to be that if she did not pay, Walker-Thomas could repossess only the item at issue.r 7 It is unlikely that she asked for clarification of the terms or that there was much discussion of them. It also seems unlikely that Walker-Thomas knew of her mistake. Again, under a Law & Economics analysis, this contract should be enforced. Where information costs are small (Williams asking someone to read and explain the provisions of the contract to her), holding the contract unenforceable discourages parties from obtaining full information and is inefficient. Another argument for a holding of unconscionability in a Williamstype scenario might be that enforcing the contract ignores the sheer disparity in bargaining power"" between the two parties. On one side, there is the impoverished uneducated Williams, and on the other is a large, powerful firm that can employ several attorneys to protect its interests. Feminists would argue that the law should protect the weak from the powerful. This argument implies a paternalism based on class, racial, and gender grounds.'9 The "weak" would be protected from entering into contracts that the law concludes are not in their best interest.2 0 Williams. 2 ' Protecting the poor was Judge Skelly Wright's concern in The problem is that the judge imposed his values on the contracting parties despite the absence of a showing of monopoly power or 202 By voiding the contract based upon his own process concerns.
197. See~lilliams v. Walker-Thomas Furniture, Co., 198 A.2d 914, 915 (D.C. 1964) (stating that appellant signed the contractwithout knowledge of contractual details). 198. The U.C.C. expressly disclaims any concern with disparity in bargaining power. See U.C.C. 2-302 cmt. 1 (1989 & Supp. 1998). But see RESTATEMENT (SECOND) OF CONTRACTS 2.08 cMt. d (1981) (suggesting that while "mere" inequality does not make for unconscionability, gross inequality does have a role to play). See also Dalton, supra note 12, at 1037 (recognizing that every contract is the "product of inequality of bargaining power" with respect to the subject of the bargain). Rghts, 22 199. See PatriciaJ. Williams, AlhemicalNotes: ReastructingldealsFromDeconstructed
HARV.C.R-C.L. L REV. 401, 420 n.54 (1987) ("A quick review of almost any contracts text will show that most successful defenses feature women, particularly if they are old and widowed; illiterates; blacks and other minorities; the abjectly poor, and the old and infirm."). 200. See Leff, supra note 64, at 541 (criticizing the "vacuousness" and "nth level of abstraction" of the U.C.C.'s unconscionability provision as its highly subjective nature allows courts to make decisions based on stereotype and class distinctions) (citing Williams v. WalkerThomas Furniture, Co., 198 A.2d 914 (D.C. 1964)). 201. See J. Skelly Wright, The Courts Have Failed the Poor, N.Y. TIMEs, Mar. 9, 1969, (Magazine), at 26 (discussing Williams v. Walker-Thomas). 202. The paternalism may have subtle racist overtones. See Amy H. Kastely, Out of the W'zhiteness: On Raced Codes and MhiteRace Consdousness in Some Tort, COiminal and ContractLaw,63 U. CmN. L. REv. 269, 306 (1994) ("By fhiling to include further detail about the contracts
between Walker-Thomas and Williams and by resting instead on the vague and broadly associated listing of limited power, little knowledge, limited education, and lack of choice, Judge Skelly Wright's opinion allows-even invites--the reader to use raced tropes linking poverty, lack of education, single parenthood, and lack of capacity with black women ... ").
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subjective preferences, the judge may have made the very people he was trying to protect worse off by casting them out of the marketplace.203
203. The mixed success that plaintiffs have before the courts is evidence of the courts' paternalistic biases towards plaintiffs perceived to be less rational on the basis of their race, class, or gender. The more the plaintifffits the role of the rational actor, the less likely that the relief sought will be granted. See Stewart McCaulay, Bambi Meets Godzilla: Reflections on Contracts Scholarship and Teaching vs. State Unfair and Deceptive Trade Practices and Consumer Protection Statutes, 26 HOUs. L REv. 575, 583 (1989) (suggesting that unconscionability has fhded as a viable contract defense and has been replaced by state trade protection statutes). For example, McCaulay points out that business people repeatedly assert unconscionability, and most lose. Id. at 579 n.24. In some instances, unconscionability is no longer viewed as a viable defense because the business people attempting to assert it have been paragons of the economically rational actor. See Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 535 P.2d 419, 424 (Kan. 1975) ("None of the parties here involved were neophytes or babes in the brambles of the business world."); Bowlin's, Inc. v. Ramsey Oil Co., Inc., 662 P.2d 661, 668-69 (N.M. Ct. App. 1983). The court in Bowlin'sstated: Most parties who assert 2-302 [Same as 55-2-302, N.M.S.A. 1978] and most who have used it successfully in reported cases have been consumers. Most of these successful consumer litigants have been poor or otherwise disadvantaged. Since much current literature suggests that the low.income consumer is often the victim ofsharp practices, it is not surprising that the targets of the unconscionability doctrine are usually plaintiff-creditors and credit sellers. The courts have not generally been receptive to pleas of unconscionability by one merchant against another. Presumably, few businessmen and middle-class cash purchasers are victims of the kinds of gross advantage-taking that usually calls forth 2-302. Id. Courts tend to be less paternalistic of business people than impoverished people. Unconscionability claims are still successfully raised by non-Wall Street types. See McCaulay, supranote 203, at 583 (indicating that farmers have done well raising unconscionability issues). In addition, defendants have successfully raised unconscionability in contracts with mandatory arbitration agreements; see also Doctor's Assoc., Inc. v. Casarotto, 517 U.S. 681, 654 (1996) (holding that unconscionability is applicable to arbitration agreements); Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138, 159 (Ct. App. 1997) (holding a compulsory arbitration clause to be substantively and procedurally unconscionable); Patterson v. IT Consumer Fin. Corp., 18 Cal. Rptr. 2d 563, 567 (Ct. App. 1993) (holding that arbitration provision was unconscionable and thus unenforceable); Fritz v. Nationwide Mutual Ins. Co., 1990 WL 186448 at *6 (Del. Ch. Nov. 26, 1990) (holding a compulsory arbitration clause solely against the insured to be unconscionable). Unconscionability can also be successful in contracts in which a plaintiff attempts to limit damages. SeeWalker v. American Cyanamid Co., 948 P.2d 1123, 1130 (Idaho 1997) (holding a disclaimer of consequential damages in fertilizer sale unconscionable); Adams v. American Cyanamid Co., 498 N.W.2d 577,590 (Neb. Ct. App. 1992) (holding same); Sosa v. Paulos, 924 P.2d 357, 364-65 (Utah 1996) (holding a clause requiring patient to repay physician's attorney's fees to be unconscionable, if the patient's award in a malpractice claim was less than half of damages sought); Art's Flower Shop, Inc. v. Telephone Co. ofW. Va., 413 S.E.2d 670, 675 (W. Va. 1991) (holding a contract limiting damages for failure to place yellow advertisement to twice the cost of advertisement unconscionable). Finally, unconscionability may still be used if the process or substance of negotiation seems particularly egregious to the court. See Ilkhchooyi v. Best, 45 Cal. Rptr. 2d 766, 775 (Ct. App. 1995) (holding a profit sharing clause unconscionable); Family Fin. Servs., Inc. v. Spencer, 677 A.2d 479, 485 (Conn. 1996) (holding a mortgage between a non-English speaker and a mortgage company unconscionable); Waters v. Minnesota Ltd., 587 N.E.2d 231, 234 (Mass. 1992) (holding the assignment of an $189,000 annuity for $50,000 unconscionable); Leasefirst v. Hartford Rexall Drugs, Inc., 483 N.W.2d 585, 588 (Wis. Ct. App. 1992) (holding a forum selection clause unconscionable). Unconscionability is also sometimes raised in addition to consumer protection acts. See, eg., Walker v. Winks Furniture, 640 N.Y.S.2d 428, 430 (Sup. Ct. 1996) (holding a furniture sales contract to be unconscionable, in part, where the store failed to deliver on the date promised and failed to cancel the contract without imposing a cancellation fee).
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Thus, the objections raised here do not lead to a result contrary to a Law & Economics analysis. While feminists may object to the terms of the contract the acceptable alternative is not to void the contract. The belief that voiding the contracts is better for Williams, Jones, and Arrospide is based on several false premises. First, unequal bargaining power does not imply that the contracts made these consumers worse off at the time they entered into them." Second, even if feminists could find a way out of the contracts that would make Jones, Williams and Arrospide better off, the effects of saving them go beyond these three individuals to those similarly situated. Making Williams, Jones, and Arrospide "better off' might make future consumers who would seek to purchase furniture and borrow money worse off. The lack of welfare-improving alternatives creates a conundnm for feminists. Law & Economics provides a way out of the dilemma by demonstrating that the best alternative is to enforce the contract because the other choice, voiding the contract, does not make the parties better off. Such action also does 5nothing to correct the "monopoly" or power concerns of feminists.2 05 Finally, feminists are also likely to be concerned with rationality and the distribution of income.0 7 Law & Economics is unable to alleviate these concerns. Feminists may argue that the crucial assumption that makes the previous analysis work is the assumption that both Walker-Thomas and Williams are rational actors. In economic theory, individual units within the marketplace ("the firm" or "the consumer") are rational actors engaged in the maximization of either profits or pleasure, subject to resource and budget 2 constraints. 8 Any action taken by either Williams or Walker-Thomas is the result of a complex cost-benefit analysis that yields a utility or profit-maximizing outcome.!" The conclusion that the contract between Williams and Walker-Thomas benefits both parties and that
204. SeeDalton, supranote 12, at 1037 (noting that"gross" inequality of bargaining power is
not a "conclusive indicator" of unconscionability because inherent in every contract is unequal
bargaining power).
and theLaw andEconomics Movement 84 GEO. LJ. 205. SeeThomas F. Cotter, LegalPragrnatism 2071, 2139 (1996) (asserting that "economic analysis forces the policymaker to undertake the sometimes painful task of thinking through her moral beliefs. by upholding a doctrine of unconscionability, is she really serving the interests of the poor, or is she only assuaging her guilty conscience with a low-cost (to her) pseudosolution that accomplishes nothing?"). 206. See, eg., Hadfield, supranote 84, at 1258 (discussing rationality). 207. See, e.g., Hadfield, supranote 84, at 1263 (discussing the relevance of income). 208. See Revisiting Regulation andDereglation Through the Lens of CompetitionPolicy: Gettingthe BalanceRight MONDAQBUS. BRMIING, Nov. 16,1998, availablein 1998 VL 22855749. 209. SeeHarrison, supranote 83, at459 (discussingprofit-maximizing outcomes). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 425 1998-1999
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the add-on clause has wealth-maximizing value rests on this crucial assumption. There may be several reasons, however, why the clause was inserted into the contract. Perhaps an overzealous law clerk inserted the clause at the behest of his or her supervisor, or Walker-Thomas sought terms in its adhesion contract which would maximize the value of the contract to itself. Alternatively, there are several irrational reasons why Williams had signed the contract: One is that human behavior includes a significant element of submission to authoritarian and hierarchical control that does not serve individual interests in any conventional sense.... We may learn to submit to control through socialization. This view of human behavior leads to questioning whether consent should always be equated with rational pursuit of one's own best interest. "Submission" has dark overtones and perhaps does not evoke the actual feelings of consumers entering into credit transactions, particularly large ones. A consumer borrower may feel some elation at the social participation of entering into the market in a significant way and at the approval thus conferred by the creditor. This may produce a desire to play the expected role by dutifully assuming the obligation and not questioning the authority of the entity that confers approval and good feelings. Creditors' ordinary presentation of adhesion contracts-as a matter of course and as how these things are done-adds to the consumer's sense of 210 appropriate role-playing. If the add-on clause was inserted for a reason other than risk assignment, and Williams accepted the term for any reason other than that the benefits of the contract exceeded the costs, the theory cannot possibly hope to address whether the contract should be enforced, because the value of the contract is indeterminate. 1 212 Law & Economics assumes rationality. According to the theory, 2 when people are not rational, they are not competent. s For Law & Economics, there is no way to prove that people are consistently rational in market transactions, except to prove it by definition. t 4
210. See Braucher, supranote 187, at 366-67 (citing Robin L. West,Authority, Autonomy, and
Choice: The Role of Consent in the Moral andPolitical Visions ofFranz Kajka and RichardPasner,99 HARv. REy. 384,386-88 (1985)). L. 211. See Kennedy, supra note 17, at 389-93 (discussing the standard procedure in costbenefit analysis).
212. See Cotter, supra note 205, at 2116 (explaining the "central concept" of law and
economics). 213. Cotter, supra note 205, at2116. 214. Cotter, supranote 205, at 2116.
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215 People are rational This thrusts the theory into a tautology. because they consistently pick those options that give them the greatest pleasure. Conversely, people consistently pick those options which give them the greatest pleasure because they are rational."6 In addition, some psychological and economic literature directly
disputes this assumption as being either patently false or, at the very least, limited 7 It appears that the rationality assumption cannot be completely accepted on the basis of empirical study, but can only be accepted as a principle that coheres with other closely held first 2 principles. 18 Feminists, however, may be wary of readily adopting this assumption for several reasons. First, the rationality assumption has 1 been considered male-biased. 2 9 It assumes a "separative" individual whose tastes and preferences are exogenous from the social context
215. "If human desire itself becomes normative (in the sense that it cannot be criticized), and if human desire is made definitionally identical with certain human acts, then those human acts are also beyond criticism in normative or effidency terms; everyone is doing as best he can in exactly what he has set out to do, which by definition is 'good' for him. In those terms it is not at all surprising that economic analyses have 'considerable power in predicting how people in fact behave." Lef, supa note 17, at 458. 216. For the economist, [a] gang of Aleutian Islanders slushing about in the wrack and surf with rakes and magical incantation for the capture ofshell-fish are held, in point of taxonomic reality, to be engaged in a feat of hedonistic equilibrium .... And that is all there is to it. Indeed, for economic theory of this kind, thatis all there is to any economic situation. Thorstein Veblen, .ProfesorClark'sE m=ias, in THE PLACE OF SCIENCE IN MODERN CIMLIZATION AND OTHER ESSAYS 182, 193 (1961). See also MARTIN HOLUs & EDWARD J. NELL, RATIONAL ECONOMIC MAN: A PHILOSOPHICAL CRHrIQUJE OF NEo-CIAssicAL ECONOMICS 5-6 (1975) (discussing the connection between philosophy and economics as they related to Rationalist philosophy and classical or Manian economics); Amartya K. Sen, RationalFools:A Critiqueof the ofEconomic Theo-, 6 PHIL & PUB. ArT. 317 (1977) (criticizing rationality BehavioralFoundations assumption of mainstream economics). It should not shock the reader to discover that both terrorists and addicts are rational under economic theory. SeeScott Atkinson, Todd Sandier & John Tschirhart, Terrorism in a BargainingFramework, 30J.L. & ECON. 1, 2-6 (1987) (explaining the stages of bargaining with a terrorist and the factors used to test bargaining theory hypotheses); Gary S. Becker, Michael Grossman, & Kevin Murphy, Economics ofDrugs: Rational Addiction and tle Effec ofPrice on Consumption, 81 AM. ECON. REv. 237 (Papers and Proceedings 1991) (portraying addicts as rational economic actors). 217. See generally JUDGMENT UNDER UNCERTAINTY HEURISTICS AND BIASES 32-47 (D. Kahneman, P. Slovic &A. Tversky eds., 1982) (discussing the study of subjective probability and strategies of reasoning); RICHARD NISBETT & LEE ROss, HUMAN INFERENCE-- STRATEGIES AND SHORTCOMINGS OF SOCIALJUDGMENT (1980) (discussing human inference and human error and human beings' "failure to use the normative principles and inferential tools that guide scientific inquiry"); Ward Edwards & Detlof Von Winterfeldt, Cognitive illusions and Their Implicationsfor the Law, 59 S. CAL. L. REV. 225, 259-69 (1986) (analyzing reasons for human processing errors); see also Randall Bennett & Kent Hickman, Rationalityand the Price is Right,' 21J. ECON. BEHAV. & ORG. 99, 102-05 (1993) (demonstrating that game show contestants Pail to act rationally and do not engage in strategic behavior). 218. See BERTRAND RUSSEL, THE PROBLEMS OF PHILOSOPHY 140, 155 (1959) (discussing the coherence theory of truth). 219. England, supranote 24, at 41. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 427 1998-1999
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within which the individual exists. In other words, it adopts a masculine view of the world and human behavior. Insofar as masculine is the metric, the theory may devalue the feminine. Second, an analysis based on the economist's view of rationality does not lend itself to criticizing the social, cultural or political institutions of a society, except where those institutions create barriers to the smooth functioning of the economy.4' Thus, the origins and causes of racism, sexism, and homophobia are unviewable through the lens of efficiency. There is a second, related issue that demonstrates that Law & Economics is a useful tool, but not a panacea. Law & Economics explicitly rejects any redistribution of income from the wealthy to the poor. Such a transfer not only fails to create wealth but actuall reduces it because the redistribution of wealth is not without cost. The theory may implicitly favor the wealthy, however, insofar as courts assign entitlements to those individuals that value the entitlements 22 the most based on willingness and ability to pay. 4 Thus, feminists might be reluctant to use Law & Economics as a policy prescription. Nonetheless, this article does not argue that feminists should wholeheartedly adopt Law & Economics as their basic operating mechanism. Instead, they should use Law & Economics as a tool with which to predict the long-term equilibrium outcomes of the policies they advocate. IV. POLICY IMPLICATIONS FOR FEMINIST LEGAL THEORISTS: A
CONCLUSION
This brief discussion of unconscionability provides some insight as to whether Law & Economics is a useful tool for feminist legal theorists. Two conclusions can be drawn with respect to whether unconscionability should be touted by feminists. These conclusions lend insight regarding the potential drawbacks and benefits of using
220. England, supranote 24, at 41. 221. See ROBERT KUTINER, EVERYrHING FOR SALE: THE VIRTUES AND LiMaTs OF MARxETS 68 (1997) (providing a recent analysis and critique of the use of economics to determine public policy). 222. "Usually efficiency and fairness, in the sense of (rough) equality in the distribution of resources, are considered competing values which require a tradeoff to reconcile capitalism and democracy." Braucher, supranote 187, at 351 (citingARTHUR OKUN, EQUALrYAND EFFICIENCY:
THE BIG TRADEOFF 1-5 (1975)). See also Herbert Hovenkamp, Positivism in Law dEconomics, 78
CAL. L. REv. 815, 836-37 (1990) (noting that at least some laws have redistributive effect as their purpose). 223. ECONOMICANALYSIS OF LAW, supranote 3, at 461. 224. Coase, supranote 21, at 12-13. 1
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Law & Economics in the context of feminist policy. With respect to unconscionability, those that feminists seek to protect are better off under the contract than under a regime where the contract is unenforceable.2 The contract provisions in question enable transactions to take place at a reduced cost to the consumer. Absent these provisions, the low-income consumer will either be totally barred from the transaction or will only be able to engage in the transaction at a substantially higher cost. Law & Economics asserts that the challenged terms of the contract make the buyers better off. Second, a holding of unconscionability has all of the vice and none of the virtues of ihe Law & Economics viewpoint. By disallowing firms to insure against the risk associated with selling to low-income groups, the courts in Jones,26 Williams 7 and Arrospid~s have effectively barred low-income groups from entering into the marketplace (ones, Arrospide), or have the raised the transaction costs of doing so (Williams). The unconscionability doctrine unfortunately only remedies the feminist issues of monopoly or unequal bargaining power by eliminating the victim from the marketplace. Unconscionability masks the issue by hiding the problem. There cannot be unequal bargaining power between buyer and seller if the buyer is forced from the marketplace. Unlike antitrust laws, unconscionability does not address the seller's monopoly power (if any exists) because the seller will merely reallocate the power (e.g. raise its prices if the add-on clause is unconscionable). It could, for example, raise its prices if the add-on clause is unconscionable. The unconscionability doctrine does not have the power of threatened regulation or divestiture to prevent such reallocation.' Hence, the unconscionability doctrine ultimately hurts the very people it is trying to protect. Law & Economics allows for agency in markets for disadvantaged groups while simultaneously seeking to protect those groups from the throes of the market. Protectionism through unconscionability is
225. This article reaches this conclusion with respect to the cases presented. A perceptive contracts professor might come up with a hypothetical that runs contrary to our findings. "In this context I think it is dangerous to begin the analysis of unconscionability by talking about
h)pohetcal clauses that have never appeared in any commercial agreement, particularly if the
hypothetical case is then used as an argument in support of real control." Epstein, supra note
34, at 306 (emphasis added). 226. Jones v. Star Credit Corp., 298 N.Y.S.2d 264 (Sup. Ct. 1969).
227. Williams v. Walker-Thomas Furniture, Co., 198 A.2d 914 (D.C. 1964), remanded 350
F.2d 445 (D.C. Cir. 1965).

228. Carboni v. Arrospide, 2 Cal. Rptr. 2d 845 (Ct. App. 1991). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 429 1998-1999
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unsound policy with no benefit to the disadvantaged groups. However, this knowledge comes at a loss because Law & Economics has difficulty addressing issues of power and conflict outside of the notions of duress/monopoly. First, Law & Economics cannot speak to the inherent unfairness of bargaining positions between buyers and sellers. Insofar as feminists seek to address these issues outside of the context of a pure monopoly or duress situation, they must turn elsewhere. Second, Law & Economics has little to say about the distribution of income in society, except that it is generally skeptical of wealth transfers because they are inefficient. Law & Economics can provide a good starting point for feminist debate. Law & Economics can be a useful tool to guide feminist policy so as to avoid outcomes that ultimately harm the people feminists are trying to empower. While it creates the ability to predict the outcomes of advocated policies, Law & Economics fails to provide insight as to the nature of conflict and power in the existing social structure and lacks voice as to issues regarding distribution of income. While this article agrees with Judge Posner's opinion that Law & Economics should be a part of the feminist chorus, it does not assert that Law & Economics should be given the role of soloist.
EGGING ON LESBIAN MATERNITY: THE LEGAL IMPLICATIONS OF TRI-GAMETIC IN VITRO FERTILIZATION

KYLE C. VELIE
I. INTRODUCTION ................................................................................ 431 A. Families andAssisted Reproductive Technologies............................ 431 B. The New Procedures:Tri-GameticIn Vitro Fertilization................... 433
II. HISTORICAL DISCUSSION OF ARTs AND THE NOTION OFTHE FAMILY ................................................................................................ 435
437 A. ArtficialInsemination by Donor.................................................... 440 B. Surrogacy...................................................................................... C. Dissolutionof the Lesbian Relationshipwith Children..................... 441 HIL. ANALYSIS: How DOES TGIVF FIT INTO THE EXISTiNG LEGAL 442 LANDSCAPE? ........................................................................................ A. Scenario One: Known DonorMakes ClaimforPaternity,Visitation and/orCustody Based on Known Sperm DonorStatus......................... 442 B. Scenario Two: Known DonorMakes A ClaimforPaternity, ritation and/or Custody Based On SurrogacyAnalogy ..................................... 452 C. Scenario Three: Dissolutionof a Lesbian Couple With ChildrenBorn 460 Through TGIVF ................................................................................ IV. RECOMMENDATIONS ...................................................................... 462 V. CONCLUSION .................................................................................. 463
I.
INTRODUCTION
A. FamiliesandAssisted Reproductive Technologies Over the past decade, new reproductive technologies have
J.D. Candidate, Washington College of Law, American University, 1999; BA., Hamilton College, 1993. I wish to thank Professor Nancy Polikoff for her insight and guidance in the development of this paper. My thanks also goes out to the many researchers, scientists and doctors who patiently guided me through the mysteries ofreproductive biology and technology. Finally, I would like to thank my parents for their never-ending support and encouragement.
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emerged and become widely available as a means of creating a family.' The resulting family structures have challenged the traditional meaning of family.2 Beginning with Louise Brown in 1978,' and continuing into the present-day debate over the possibility of human cloning,4 the discourse surrounding assisted reproductive technologies (ARTs) has moved away from the secrecy of scientific laboratories and into the very public arenas of popular culture, mass media, and the judicial system.5 This Comment addresses new and not yet widely used ARTs that utilize the genetic material from two women to create an embryo. Although these processes could theoretically be used by any two women to create a child, the techniques likely will be utilized most often by lesbian couples to create families that are based on biology and genetics, rather than the more legally precarious family structures that are currently available to lesbians and lesbian couples.'
1. SeeJohn A. Robertson, Assisted Reproducive Technology and the Family, 47 HASTINGS LJ. 911, 912 (1996) (discussing the widespread availability of assisted reproductive technologies (ARTs) in the last ten years). 2. See id. (explaining the public's doubts and concerns about the moral, ethical and practical consequences of the widespread use of ARTs, including the effect on the children born from these technologies and the feminist concerns about the control and use ofwomen as vehicles of reproduction); Lisa C. Ikemoto, The In/Fertle, The Too Fertile, and The Dysfertile, 47 HASTINGS LJ. 1007, 1033 (1996) (describing as "dysfertile" those rendered "socially sterile" because they are unmarried, lesbian, or gay); see also BUREAU OF THE CENSUS, U.S. DFP'T OF COMMERCE, CURRENT POPULATION REPORTS, SERIES P-20, NO. 447, HOUSEHOLD AND FAILY CHARAcTERISncS: MARCH 1990 AND 1989, at 2-3 (1990), ited in Craig W. Christensen, Legal Orderingof Family Values: The Case of Gay and LesbianFamilies, 18 CARDOZO L. REV. 1299, 1311 (1997) (defining the "traditional nuclear family" as "a married couple and their biological child(ren)"). The growing availability of ARTs has allowed single women, lesbians and gay men, and lesbian and gay couples to create families, thereby challenging the traditional notion of family. 3. SeeJohn A. Robertson, Embyos, Families, andProcreativeLiberty: The Legal Structure of the New Reproduction, 59 S. CAl. L. REV. 939, 943 & n.2 (1986) (discussing the story of Louise Brown, the first known baby born in 1978 as a result of in vitro fertilization). 4. See Lawrence Hall, A Culture So CavalierAbout Life Can't Be Trusted To Tinker, STARLEDGER (Newark, N.J.), June 11, 1997, at 25, available in 1997 WL 8079574 (describing the scientific breakthroughs of cloning a sheep in Scotland and a monkey in Oregon, the announcement by a Swiss religious cult to offer cloning services to gay couples, and the public outcry that cloning is morally unacceptable); see also Susan Cohen, A HouseDivided, WASH. POST, Oct. 12, 1997, (Magazine), at 12, available in 1997 WL 14706752 (describing the deliberations of the National Bioethics Advisory Committee, appointed by President Clinton, in devising federal guidelines for the use of genetic technologies, including cloning). 5. See Karen M. Thomas, Artfiidal InseminationNo Longer Shrouded in Secrec, GREENSBORO NEWS & REC., Dec. 5, 1997, at D2A (describing the portrayal of donor insemination on television, her own decision to reveal to her daughter that she was conceived through artificial insemination, and the trend towards "yes" donors who agree to allow the child created from their sperm to find out limited information about them when the child turns 18). 6. Lesbians who want to become mothers currently have few options available. In the past, most lesbians with children had their children in the context of a marriage before they discovered that they were lesbians. See Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Non-Traditional Families,78 GEo. .J. 459, 464-65 (1990) (explaining that until recently, lesbian mothers were
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B. The New Procedures:Tri-GameticIn Vitro Fertilization With new advances in science, new reproductive technologies are
being developed. Some new reproductive technologies involve eggs
from two different women.' They may also use a sperm casing.9 The result of these procedures is a child with genetic material from both women.' Although debate in the scientific and medical communities about the feasibility of these procedures continues, several techniques to create a child who is the genetic and biological result of two women have been suggested." Because these procedures are
predominantly mothers who gave birth in heterosexual marriages before they "came out" as lesbians). More recently, however, many lesbians have chosen artificial insemination by donor (AIDS) to create families. Se Libby Brooks, 7he Mother of AU Dilemmas, THE INDEPENDENT (London), May 11, 1997, at 19 (describing the process a woman goes through, and the amount of work and commitment she puts forth to conceive a child through artificial-insemination). However, because the current state of the law accords more weight to biology than intent, "the legal assignment of parental status may contradict and frustrate the original intentions of the AIDS participants." Anne Reichman Schiff FrustratedIntentions andBindingBiology: SeeingAlD In The Law, 44 DuKE LJ. 524, 538 (1994). See infra notes 42-47 and accompanying text (discussing the legal challenges faced by lesbian families). 7. See infra,note 11. 8. Seeinfra,note 11. 9. Seeinfra, note 11. 10. See infra, note 11. 11. The term Tri-Gametic In Vitro Fertilization (TGIVF) best describes these processes, which involves three gametes-an eggfrom each of two women and the sperm from a donor. A gamete is a human sex cell (an egg or a sperm). See IRWIN SLrSNICF, LEVON BALZ, ALANJ. McConuAcK, DAVID E. NEavrON & FREDEKicKA. RASMUSSEN, BIOLOGY 611 (1988). The process will most likely occur in vitro, due to its complexity. See Interviews with Dr. Charles Novotny, Professor of Microbiology and Molecular Genetics, and Dr. George Osol, Assistant Professor of Obstetrics and Gynecology, University of Vermont School of Medicine (Jan. 6, 1998) (on file with author). Although these procedures are not currently being offered in any major fertility clinic, there is anecdotal evidence that at least one procedure has been attempted by at least one lesbian couple. See Notes from the National Gay and Lesbian Task Force's Creating Change Conference in Washington, D.C. (Nov. 1996) (on file with author). At this conference, a lesbian couple shared their story. The couple described this procedure as follows: The deoxyribonucleic acid (DNA) is removed from the donor sperm and discarded. Id. DNA contains coded biological information that is passed between generations. See generally
SLESNIcK, BAI.E, McCoRIAcK, NEivwON & RASMUSSEN, at 611 (defining a gamete). An egg is
removed from the non-gestational mother, who will not carry the child, and that egg's DNA is removed and placed into an "empty" sperm casing (a sperm cell with the DNA removed). The gestational mother's egg is then fertilized by the sperm containing the non-gestational woman's genetic material. See Notes from the National Gay and Lesbian Task Force's Creating Change Conference in Washington, D.C. (Nov. 1996) (on file with,author). The author has confirmed that the procedure is possible. See Interviews with Dr. Charles Novotny, Professor of Microbiology and Molecular Genetics, and Dr. George Osol, Assistant Professor of Obstetrics and Gynecology, University of Vermont School of Medicine (Jan. 6,1998) (on file with author); see also Electronic Mail Correspondence with anonymous researchers (on file with author). Although some doctors confirm this procedure is possible, other doctors expressed skepticism and are not convinced that this procedure is possible. Many researchers and doctors contacted did express doubts as to the feasibility of this procedure, but others have made several suggestions concerning other procedures that would reach the same result. Several of the doctors and researchers contacted by the author requested anonymity regarding their comments on this topic. In order to respect this request, they remain unnamed throughout this Comment. More information may be available by reaching the author or the American
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not yet available in any major fertility clinic in the country, and therefore have no official names, for purposes of this Comment this new set of technologies is referred to as Tri-Gametic In Vitro Fertilization (TGIVF) . The embryo created through TGIVF is the genetic combination of the two women who are the intended parents. Given the political backlash that surrounds the use of more common ARTs by lesbians and gay men to create families,'" TGIVF introduces issues that are unique and potentially explosive in both the political and judicial
UniversityJournal of Gender, Social Policy & the Law. One technique for TGIVF involves fertilizing an egg from the non-gestational mother with a donor sperm. At the point in the fertilization process in which the nuclei from both the egg and the sperm "decondense," or swell, the sperm nucleus is removed and discarded. At this point, the female nucleus from the non-gestational mother's egg is suctioned out and placed into the mature egg belonging to the gestational mother, which then progresses in the same manner as if fertilized by a sperm. See Electronic Mail Correspondence with anonymous researcher at the Cooper Institute for Reproductive and Hormonal Disorders (Jan. 8, 1998) (on file with author); Electronic Mail Correspondence with anonymous researcher at the University of Georgia (Oct. 24,1998) (onfile with author). Yet another option may be to activate an egg to begin the chromosomal reduction process, in which the oocyte, or egg, reduces to one set of chromosomes, known as the "haploid" stage. Once the oocyte is reduced to two "polar bodies" in this haploid stage, each of which contains the appropriate number of chromosomal sets, one of the polar bodies is placed into the sperm head, which is then used to fertilize the gestational mother's egg. See Electronic Mail Correspondence with anonymous researcher from Albany Medical Center (Oct. 28, 1998) (on file with author). Additionally, a procedure known as "cytoplasmic transplant" has been suggested. In this procedure, each woman provides an egg. The nucleus of one is removed and placed in the denucleated egg of the other, so that the DNA comes from one partner and the cytoplasm with mitochondrial DNA comes from the other, thus giving each partner a physical, biological, and genetic connection with the resulting child. SeeElectronic Mail Correspondence with Professor John Robertson, University of Texas School of Law (Jan. 12, 1998) (on file with author); Electronic Mail Correspondence with anonymous researcher at the University of Wisconsin (Oct. 30,1998) (on file with author). Note that this procedure does not involve sperm in any way. Finally, one researcher has suggested a method in which the non-gestational mother's egg is activated, not with sperm, but parthenogenetically, and then the pronuclei is removed. Next, the gestational mother's egg is fertilized with a sperm, after which the male pronucleus is removed, and the non-gestational mother's pronudeus is injected into or fused with the gestational mother's egg, and the resulting offspring comes from an egg crossed with another egg. SeeElectronic Mail Correspondence with anonymous researcher at the Samaritan Institute of Reproductive Medicine, Phoenix, Arizona (Jan. 8,1998) (on file with author). 12. Seesupra, note 11. 13. See Deborah Bradley, A New Kind of Family: Some Gays, Lesbians Turn to Art fical Insemination, DALLAS MORNING NEWS, July 16, 1995, at Al, available in 1995 WL 9048164 (noting the growing number of lesbians and gay men utilizing ARTs to create families, the backlash from the Religious Right, and the hesitancy of legislatures and courts to recognize lesbian and gay families); see alsoJulieShapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parentsand Their Children, 71 IND. LJ.623, 625 (1996) (documenting the controversial nature of lesbian and gay parenting as presented in the popular press in the last several years, as well as the introduction in some jurisdictions of legislation restricting the rights of lesbian and gay parents).
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This Comment explores the unique legal issues that may emerge from TGIVF. Part II consists of a brief summary of the now-common and widely accepted ARTs, a synopsis of their historical uses, and a discussion of legislative and judicial treatment of these ARTs. Part Ill analyzes the legal issues involved in artificial insemination by donors and surrogacies, and the legal issues that may emerge with TGIVF. This analysis addresses the various rights, obligations, and responsibilities of parents; the judicial definitions of family; and how the current legal landscape may treat TGIVF. Part IV recommends that families created by TGIVF be legally recognized by legislatures and courts. There are two distinct family structures that may result from TGIVF, both of which should be legally recognized. The first alternative is a child with two legal mothers. The second alternative is a child with three legal parents-two mothers and one father. This Comment argues that a family with three parents should be recognized only if such a family structure is intended by the two genetic mothers. Part V concludes with thoughts and reactions to TGIVF; its place in the past, present and future of reproductive technology; and the legal and political struggles over control and definitions of family. II. HISTORICAL DIscussION OFARTS AND THE NOTION OF THE FAMILY Several reproductive technologies currently exist and are widely used to achieve conception. These techniques include in vitro fertilization (IVF), 5 embryo transfer, 6 gamete intrafallopian transfer
14. For example, children born through TGIVF will all be girls because women's genes
carry only female chromosomes. See SLESNICK, BALZER, McCoRMACK, NEvToN & RASMUSSEN, supra note 11, at 161. Further, if a genetic component to homosexuality is ever discovered, the
children of TGIVF may have an increased chance of being lesbians. See generaly John
Gallagher, Gayfor the Thrill of t, THE ADVoCATE, Feb. 17, 1998, at 53 (reviewing the current social and sdentific debates about a possible biological origin to homosexuality); Simon LeVay & Dean Hamer, Etiden efor a BiologicalInfluence in Male Homosexualty, Sm. AM., May 1994, at 20 (describing the current state ofscientific research on homosexuality). 15. In vitro fertilization involves the removal of a woman's mature egg and its placement in a test tube, or similar laboratory medium, with a sperm. After fertilization occurs, the embryo is implanted back into the egg provider or into the womb of a surrogate. See Note, Reproductive Techno!ogy and the ProcreationRights of the Unmarried 98 HAMV. L. REv. 669, 670 (1985) (defining in vitro fertilization). 16. Embryo transfer occurs most commonly in a heterosexual couple when the woman cannot produce eggs. In this process an "ovum donor," or a woman who is fertile, is inseminated with the sperm of the infertile woman's husband or partner. After a few days, the embryo is flushed out of the ovum donor's uterus and placed in the uterus of the woman who intends to gestate and raise the child. See id. (explaining the process of embryo transfer).
436
9 7 (GIFT), 1 zygote intrfallopian transfer (ZIFT),'" egg donation,'
0 surrogacy, 2 and artificial insemination by a known or anonymous sperm donor (AID). IVF and AID are the most widely used techniques, with an estimated twenty-to-thirty thousand children born each year from their use. Historically, these techniques were used by infertile, married couples who wished to form a family 5 However, over the past decade ARTs have been used by a growing number of people to form families. Some of these people have included infertile unmarried couples,24 single heterosexual women or lesbians, and lesbian and gay couples. Using these techniques to build non-traditional family 17. Gamete intrafillopian transfer involves the placement of an egg and a sperm into the
patent fallopian tube of the intended mother. SeeJoHN A. ROBERTSON, CHILDREN OF CHOICE
99 (1994) (describing the GIFT process). 18. Zygote intralilopian transfer involves the placement of a zygote directly into the patent fallopian tube. See id. (defining the ZIET process). 19. Egg donation, which has been analogized to sperm donation, allows women who cannot produce their own eggs to conceive. The donated egg is fertilized in vitro then placed into the intended mother's womb. SeeAlexa E. King, Solomon Revisited. AssigningParenthoodin the Context of CollaborativeReproduction, 5 UCLA WOMEN'S L.J. 329, 340 (1995) (defining egg donation). 20. There are several types of surrogacy. "Traditional surrogacy" involves the artificial insemination of the surrogate with the sperm of the intended father. See Christine L. Kerian, Surrogacy: A Last Resort AlternativeforInfertie Women or a Commodyiscation of Women's Bodies and Children?,12 WIS. WOMEN'S LJ.113, 114 (1997) (defining and discussing the different types of surrogacy). The embryo is, therefore, the genetic product of the surrogate and the intended father. Id. "Gestational surrogacy" occurs when an embryo, created in vitro from the intended mother's egg and the intended father's sperm, is placed into the gestational surrogate's womb. Id. Finally, "donor surrogacy" involves the sperm of the intended father and the egg from an unknown donor. Id. The fertilized egg is then placed into the womb of the surrogate, who has no genetic tie to it. Id. Another variation of donor surrogacy involves the sperm from an anonymous donor and the egg from an anonymous donor. See Ellen Goodman, Orphan' With FiveParents? Yes, and No Suppor4 MiLWAUmEJ. SENTINEL, Sept. 17, 1997, at 14 (describing the story ofJaycee Buzzanca, a child conceived through AID with a donated egg and a donated sperm, then gestated by a gestational surrogate and turned over to her intended rearing parents upon birth). The embryo created from the donated sperm and donated egg is placed in the womb of the surrogate, who has no genetic tie to the child. Id. The conceived child is then turned over to the intended parents, who also have no genetic tie to the child. Id. 21. Artificial insemination by donor is the oldest and most commonly used ARTS. The technique is relatively unsophisticated and involves the introduction of sperm into the intended mother through a syringe orsimilar instrument. SeeROBERTSON, supra note 17, at 8 (describing AID procedures and choices). 22. See Robertson, supranote 1, at 912 (discussing the statistics of ARTS use generally). 23. "Infertile" is defined as a "lack of pregnancy after a year of unprotected intercourse."
Robertson, supra note 1, at 911, citing OFFICE OF TECH. ASSESSMENT, U.S. CONGRESS, INFERTILITY: MED. AND SOC. CHOICES 3 (1988); see ing, supra note 19, at 336 (noting that
ARTs were created with the intention of enabling infertile heterosexual couples to create families). 24. See Mary Lynne Birck, Modem Reproductive Technology and Motherhood. The Search for Common Groundand the Recognition ofDifference, 62 U. CIN. L.REv. 1623,1625 (1994) (discussing the growing use ofARTs by "many persons traditionally excluded from parenthood," including lesbian and gay couples); see also King, supra note 19, at 336 (describing the increasing popularity ofARTs among the "socially infertile," including lesbians and gay men).
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structures has created a backlash in popular culture and has tested the limits of the existing law and the judicial interpretations of those 25
laws. Two ARTs in particular are implicated in TGIVF. The first is artificial insemination by donor and the second is surrogacy. These techniques are implicated because they involve a third party to
reproduce, just as TGIVF requires a third party sperm donor to
conceive a child. AID and surrogacy are also the ARTs that are most analogous to TGIVF. When a conflict arises between a known donor and the two mothers in the context of TGIVF, the known donor may base his arguments on existing statutes and case law concerning AfD
and surrogacy to gain custodial or visitation rights.27 These two potential arguments are fully explored in Part HI of this Comment. A. AtificialInsemination by Donor As AID became more widely used, legislatures around the country adopted laws to define the participants' legal relationships created or extinguished by AID, and to guide judges in reaching decisions when a dispute arose in the families created by AID.28 AID occurs in the context of family law, which is state-created, and thus, the laws and judicial decisions addressing AID vary from state-to-state.29 Although AID laws are state creations, the Uniform Parentage Act (UPA), introduced in 1973, provides guidance to state legislators."
25. SeeDavid E. Rovella, UsingFamiy Values to ExpandLesbian Rights,NAT'L L.J., Aug. 1997, at A7 (discussing the Radical Right's negative reaction to lesbian families in an interview with Kate Kendell, Executive Director of the National Center for Lesbian Rights). 26. See Polikoff, supra note 6, at 469-71 (explaining how existing family law is inadequate for dealing with the range of non-traditional families that exist today). Polikoffstates: Although courts have gone to great lengths to provide every child with precisely one mother and one father, the realities of family formation and parenting are considerably more complex.... Courts should design rules to serve the child's best interests. By failing to do so, they perpetuate the fiction of family homogeneity at the expense of the children whose reality does not fit this form.... Customarily, legal parenthood is an all-or-nothing status.... An examination of the doctrine that courts use to impose some parental obligations or confer some parental rights illustrates that this approach is inadequate. Id.; see also King, supranote 19, at 344 (stating that "families of consent" created by lesbians and gay men do not generally receive legal protections). 27. See infranotes 117-42 and accompanying text 28. See infranotes 96-38 (discussing the statutes addressing AID). 29. See Schiff, supra note 6, at 538 and accompanying text (discussing the state-specific nature ofAMD and surrogacy). 30. See UNIF. PARENTAGEACr 5, 9B U.LA. 287 (1987). The UPA's purpose is to "provide substantive legal equality [for] children regardless of the marital status of their parents." IExisting AID law is one way to analyze TGIVF, because it involves a form of insemination by donor. SeeinfraPartIll (discussing TGWVF).
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Section 5 of the UPA addresses artificial insemination, but is limited 3 to the context of a husband-wife relationship! ' The goals of this section of the UPA are to support the traditional nuclear family, to encourage sperm donation, and to guarantee some level of certainty and predictability as to the outcome of legal disputes.32 The effect of sections is to strip a sperm donor of any parental rights and to confer those legal rights to the husband of the inseminated woman!' The UPA is silent on the issue of single women, either heterosexual or lesbian, who conceive through AID. 4 This silence results in an uncertain and precarious legal status for children born to single 3 women through AID. 5 Currently, thirty-four states have laws dealing with AID!s Of those
31. Section 5 of the UNIF. PARENTAGEAcr reads: (a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband's consent with the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other then the donor's wife is treated in law as if he were not the natural father ofa child thereby conceived. UN.iF PARENTAGE AcT 5, 9B U.L.A. 287 (1987). The Comment to section 5 reads, "This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. It was thought useful, however, to single out and cover in this Act at least one fact situation that occurs frequently." Id. 32. See Schiff, supra note 6, at 535 (explaining the purposes of the UPA). 33. SeeSchiff, supranote 6, at 585 (explaining the purposes of the UPA). 34. UNiT. PARENTAGEACr 5, 9B U.L.A. 287 (1987). 85. SeeKristin E. Koehler, Atificiallnseminati: In the Child sBestInterest SAE. L. Sc. & TECH. 321,332 (1996) (explaining that "slingle and lesbian women are more vulnerable than married women to the interference of donors because most AID statutes apply directly to married couples only"); see also Katharine T. Bartlett, Re-ExpressingParenthood,98 YALZ LJ. 293, 807 (1988) (stating that when a lesbian uses a known donor, the donor may win primary
custody of the child); Christensen, supranote 2, at 1356 (noting that in almost every case where
"a donor has asserted parental rights against an unmarried woman, the donor prevailed" and even in cases involving written agreements between donors and recipients, the majority of agreements upheld in court have been those that favor the donor's claim). 36. SeeALA. CODE 26-17-21 (1992); AI.ASKA STAT. 25.20.045 (Michie 1996); ARIz. REV. STAT. ANN. 12-2451 (West 1992); ARK. CODEANN. 9-10-201 (Michie 1993); CAL. FAM. CODE 7612 (West 1995); COLO. REV. STAT. ANN. 19-4-106 (West 1990); CONN. GEN. STAT. ANN. 45a-774 (West 1998); FLA. STAT. ANN. 742.11 (West 1994); GA. CODE ANN. 19-7-21 (1991); IDAHO CODE 39-5405 (1998); 750 IL. COMP. STAT. ANN. 40/3 (West 1993); FAN. STAT. ANN. 23-129 (1995); MD. CODEANN., Esr. & Tpusr 1-206 (1997); MASS. GEN. LAWS ANN. ch. 46, 4B (West 1995); MICH. COMP. LAWs ANN. 333.2824 (West 1994); MINN. STAT. ANN. 257.56 (West 1992); Mo. ANN. STAT. 210.824 (West 1996); MONT. CODEANN. 40-6-106 (1997); NEV. REV. STAT. 126.061 (1995); N.H. REv. STAT. ANN. 168-B:3 (1994); NJ. STAT. ANN. 9:17-44 (West 1993); N.M. STAT. ANN. 40-11-6 (Michie 1994); N.Y. DOM. REL. LAw 73 (McKinney
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thirty-four states, thirteen have adopted laws based on the UPA37 In states that have no law addressing AID,ss traditional family law governs?' In states that do have laws addressing AID, but the factual circumstances fall outside the statute's language, traditional family Historically, family law decisions regarding law also governs.4 parenthood have been grounded on biology and genetics. 41 These statutes and judicial precedents are, therefore, of limited use when applied to factual situations that fall outside the biological or traditional nuclear family models 4 2 These outdated laws, when mixed with the reality of contemporary family life, have created a legal quagmire for judges and for non-traditional families struggling for legal recognition and protections. More specifically, lesbians seeking to create families with their partners have suffered under the current legal framework. 43 There are two common scenarios that are litigated in the context of lesbian The first involvds a known sperm donor asserting families.
1996); N.C. GEN. STAT. 49A-1 (1995); N.D. CENT. CODE 14-18-03 (1997); OHIO REV. CODE ANN. 3111.37 (West 1996); OKLA. STAT. ANN. tit. 10, 551 (West 1987); OR. REV. STAT. 109.239 (1997); TENN. CODE ANN. 68-3-306 (1996); TEX. FAM. CODE ANN. 151.101 (West 1996); VA. CODEANN. 20-158 (Michie 1995); WASH. REV. CODEANN. 26.26.050 (West 1997); Wis. STAT. ANN. 891.40 (West 1997); WYo. STAT. ANN. 14-2-103 (Michie 1994).
37. These states include: Alabama, California, Colorado, Illinois, Minnesota, Missouri, Montana, Nevada, NewJersey, New Mexico, New York, Washington, and Wisconsin. SeALA. CODE 26-17-21 (1992); CAL. FA. CODE 7612 (West 1995); COLO. REV. STAT. ANN. 194-106 (West 1990); 750 IL. COMp. STAT. ANN. 40/3 (West 1993); MINN. STAT. ANN. 257.56 (West 1992); Mo. ANN. STAT. 210.824 (West 1996); NEV. REV. STAT. 126.061 (1995); N.J. STAT. ANN. 9:17-44 (Vest 1993); N.M. STAT. ANN. 40-11-6 (Michie 1994); N.Y. DOM. REL. LAW 73 (McKinney 1996); WASH. REV. CODE ANN. 26.26.050 (West 1997); Wis. STAT. ANN. 891.40 (West 1997). 38. These states include: Delaware, the District of Columbia, Hawaii, Indiana, Iowa, Kentucky, Louisiana, Maine, Mississippi, Nebraska, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont and West Virginia. 39. See Schiff, supra note 6, at 535 (explaining the legal treatment of AID cases in states without laws addressingAID). 40. See Schiff, supra note 6, at 535 (explaining the legal treatment of AID cases in states with laws addressing AID, where the factual circumstances fill outside of those laws). 41. Sez Rochelle C. Dreyfuss & Dorothy Nelkin, Thejurisprudence of Genedics 45 VAND. L. REV. 313, 320 (1992) cited in King, supra note 19, at 346 (itating that courts are hesitant to validate lesbian and gay parenthood, in part due to "genetic essentialism"); see also Schiff, supra note 6, at 526 (explaining that courts have traditionally defined family as a relationship based on biology, adoption and marriage). 42. See King, sup a note 19, at 349 (explaining the failure of the law to respond to new family structures resulting from ARTs); see also Shapiro, supra note 13, at 660 (describing judicial bias and prejudice as bases for non-recognition of lesbian and gay families). 43. See, e.g., Bryan Smith, Court Allows SpennDonorsPaternity ight, CHI. SuN-TIMES, Aug. 5, 1997, at 9 (describing the case of a gay man who provided sperm to a lesbian couple with an agreement that he would relinquish all parental rights; after the baby's birth, the donor changed his mind and instituted a paternity action, which an Illinois court allowed him to pursue, holding that the Illinois UPA only applied to married women).
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patemity.4 The second occurs when a lesbian couple with a child or children ends their relationship and both women assert parental Often, the outcome of either of these situations is status.* uncertain However, both of these issues take on a new significance when they arise in the context of TGIVF. Although single women, both lesbian and heterosexual, and lesbians and their partners, use known sperm donors to conceive children, this Comment focuses on the use of AILD by lesbians and lesbian couples. The risk of using a known sperm donor in AID is that the known donor will come forward and attempt to claim a right to custody, visitation, and/or a declaration of legal paternity of the child conceived with his sperm.4 7 The decisions in cases involving challenges by a known donor vary from state to state, but they are overwhelmingly decided in favor of the known sperm donor." The question in the context of TGIVF becomes: How will a court treat a known donor who comes forward and asserts paternity when only the casing of his sperm, and not his genetic material, is used to conceive a child? B. Surrogacy The second ARTS implicated by TGIVF is surrogacy. There are
44. See, eg., id. (reporting that where the sperm donor is anonymous there is more legal protection, stemming from the desire to encourage sperm donation and the desire to protect the expectations of both the donor (the expectation not to fhce a paternity action) and the mother (the expectation that the donor will not assert a right to parental status)); see also King, supranote 19, at 350. Although the use of an anonymous donor generally results in more legal protection for the lesbian family, many lesbians choose to use a known donor for several reasons. First, the lesbian mother may want to assure access to medical information to have more control over the insemination process. Second, the lesbian mother may want to have access to the donor in order to answer questions the child may have about his or her background and origin. Finally, lesbian mothers may use a known donor with the intention of facilitating some level of interaction between the child and the donor. See Christensen, supra note 2, at 1356. 45. See Polikoff, supra note 6, at 533-34 (describing the increasing number of cases concerning custody and visitation when lesbian partners end their relationship).
46. SeeVickie L. Hehry, A Tal of Three Women: A Survey of the Rights and Responsibilities of UnmarriedWomen Who Conceive by Altem ativeInsemination and a ModelforLegislative Reforn, 19 AM. J.L. & MED. 285, 299 (1993) (discussing the non-biological mother's chances of continued
participation in the life of the child after the dissolution of the relationship with the biological mother). 47. See Christensen, supra note 2, at 1356 (describing the risks ofusing a known donor). 48. See Christensen, supranote 2, at 1356 (describing the outcomes of the majority of cases in which known donors assert parental rights); see also Thomas S. v. Robin Y., 618 N.Y.S.2d 356, 357 (App. Div. 1994) (granting an order of filiation to a known sperm donor who donated his sperm to a lesbian couple with an oral agreement that he would not assume a parental role in the child's life);Jennifer Bojorquez, Do Sperm Donors Have RightsZ FRESNO BEE, July 20, 1993, at El (describing a case in which a lesbian couple used a known donor who, after the child's birth, successfully petitioned for a declaration of paternity).
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several forms of surrogacy.
In traditional surrogacy, a couple
contracts with a woman to conceive and carry a child to term.'9 The
birth mother then turns the child over to the contracting couple and relinquishes all parental rights to the child.O A second form is gestational surrogacy, which differs from traditional surrogacy in that the gestational surrogate has no genetic link to the child she carries 1 to term.5 Instead, the gestational surrogate carries an embryo 2 created with another woman's egg. In 1987, American courts first tested the legality of a traditional surrogate agreement in the case of In re Baby Al" The birth mother argued that, despite the contract, she was the rightful parent of the child.5 The question in the context of TGIVF is: What happens when a known donor uses the analogy of surrogacy to argue for parental rights to the child conceived using his sperm casing?
C. Dissolution of the Lesbian Relationshipwith Children
The final issue addressed involves the dissolution of the lesbian relationship when children are born using TGIVF. The question emerges: How will courts deal with the competing claims of the two mothers? All three of these issues-known donors asserting parental rights based only on the donated sperm, known donors using the analogy of surrogacy to assert paternity, and the legal status of the two women vis-i.-vis the child(ren) upon dissolution of their relationship-are addressed in Part III.
49. SeKerian, supranote 20, at 114 (defining types of'surrogacy). 50. SeeKedan, upranote 20, at 114 (defining types ofsurrogacy). 51. Kerian, supra note 20, at 114 (stating that infertile couples typically employ this method of surrogacy to conceive a child that is biologically and genetically related to both of the intended parents). 52. Kerian, supranote 20, at 114. 53. 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987), a.ff'd in part and rev'd in par4 537 A.2d 1227 (N.J. 1988). The highly publicized case of Baby M involved a surrogate mother who repudiated a surrogacy contract after giving birth. The Superior Court, Chancery Division, enforced the contract and awarded custody to the biological father and his wife. The New Jersey Supreme Court reversed in part, finding the surrogacy contract void as a matter of public policy. In re Baby M., 537 A.2d 1227,1240 (N.J. 1988). However, the court affirmed the lower court's determination of custody, relying on the best interests of the child standard. Id. at 1258. 54. See In reBaby M., 537 A.2d at1238.
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III. ANALYSIS: HOW DOES TGIVF FIT INTO THE EXISTING LEGAL
A. Scenario One: Known DonorMakes ClaimforPaternity, Visitation and/or Custody Based on Known Sperm DonorStatus This scenario typically involves a lesbian couple who chooses a known sperm donor. The couple would most likely have a written or oral agreement with the donor that the donor would have neither parental rights or obligations toward the child, nor will the donor act as a parental figure to the child.*5 Many lesbian couples use known 5 donors to create families, 6 despite the fact that using a known donor significantly decreases the legal stability of the lesbian family." The legal uncertainty stemming from using a known donor is based on a lack of statutes that specifically address the use of known donors by single women. Of the thirty-four states that currently have legislation dealing with AID,e sixteen have statites that address AID only in the context of
55. This is the most common scenario with traditional AID. See King, supra note 19, at 35152 (noting the prevalence of oral or written agreements between known donors and single women). King also observes that, "[a]s yet, neither written nor oral agreements made between women and donors have been upheld as legally enforceable or binding." Jd.; see also ROBERSrON, supra note 17, at 132 (describing the many instances in which agreements are made in the context of collaborate reproduction, including sperm donation). 56. See Henry, supra note 46, at 289. Reasons for choosing a known donor include: the desire for involvement in the child's life by the donor, the fact that some sperm banks refuse to treat single or lesbian women; and the inexpensive nature of using a known donor (it can be accomplished at home without the supervision of a doctor). See id at 288 (describing discrimination faced by lesbians at some sperm banks); see also ROB"fEON, supa note 17, at 8 (noting the various reasons that lesbians choose known sperm donors). 57. Using an anonymous donor's sperm obtained through a sperm bank guarantees that the donor will not attempt to claim paternity of the child, nor any of the rights and duties that accompany legal parenthood. SeeKing, supranote 19, at349-50 (discussing the security of using an anonymous donor). This legal assurance stems from statutes that mandate that men who donate to sperm banks must waive all parental rights. See id.(discussing laws regarding anonymous sperm donation through sperm banks). Therefore, when using anonymous sperm from a sperm bank, a lesbian conceives a child with no legal father. See id. (explaining that most states bar paternity claims by men who donate sperm anonymously). Several cases illustrate the dangers of using a known donor. SeeJhordan C. v. Mary K., 224 Cal. Rptr. 530, 531-32 (Ct. App. 1986) (upholding parental rights of a known donor); C.M. v. C.C., 377 A.2d 821, 825 (NJ.Juv. & Dom. Rel. C. 1977) (granting an order offiliation, visitation and rights to the known sperm donor of a single woman, over the mother's objections). 58. SeeALA. CODE 26-17-21 (1992); ALASKA STAT. 25.20.045 (Michie 1996); AiZ.REv.
23-129 (1995); MD. CODEANN., EST. & TRUSTS 1-206 (1997); MASS. GEN. LAWSANN. ch. 46, 4B (West 1995); MICH. COMip. LAWSANN. 333.2824 (West 1994); MINN. STAT. ANN. 257.56 (West 1992); MO. ANN. STAT. 210.824 (West 1996); MONT. CODEANN. 40-6106 (1997); NEV. REV. STAT. 126.061 (1995); N.H. REV. STAT. ANN. 168-B:3 (1994); NJ. STAT. ANN. 9:17-44 (West 1993); N.M. STAT. ANN. 40-11-6 (Michie 1994); N.Y. DOM. RELt.LAW 73 (McKinney HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 442 1998-1999
STAT. ANN. 12-2451 (West 1992); ARK. CODEANN. 9-10-201 (Michie 1993); CAL. FAM. CODE 7612 (West 1995); COLO. REv. STAT. ANN. 19-4-106 (West 1990); CONN. GEN. STAT. ANN. 45a-774 (West 1993); FLA. STAT. ANN. 742.11 (West 1994); GA. CODE ANN. 19-7-21 (1991); IDAHO CODE 39-5405 (1993); 750 ILL.COMP. STAT. ANN. 40/3 (West 1993); KAN. STAT. ANN.
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marriage 5 9 In the remaining eighteen states, unmarried women
using AID are expressly or implicitly addressed.0 Unmarried women lack legal security for, and recognition of, their families in
jurisdictions with no AID statute, as well as those jurisdictions with AID statutes that do not address their factual situation.1 For example, in C.M. v. C.C.,6 " a known donor prevailed in his paternity action. At the time of the dispute, the jurisdiction in G.M. did not have an AfD statute.Y There also was a factual dispute over the existence of a pre-conception agreement6 The donor claimed that he and the child's mother intended to marry and that he donated his sperm in reliance on this intention.65 The mother denied this contention.66 Because there was no other man willing to take on the responsibilities of fatherhood, the court held that the 6 donor should be the child's legal parent. 7 The court analogized the
1996); N.C. GEN. STAT. 49A-1 (1995); N.D. CENT. CODE 14-18.3 (1997); OHIO REV. CODE ANN. 3111.87 (West 1996); OKLA. STAT. ANN. tit. 10, 551 (West 1987); OR. REV. STAT. 109.239 (1997); TENN. CODE ANN. 68-3-306 (1996); TEx. FAM. CODE ANN. 151.101 (West 1996); VA. CODEANN. 20-158 (Milchie 1995); WASH. REV. CODEANN. 26.26.050 (West 1997); WIS. STAT. ANN. 891.40 (West 1997); WYo. STAT.ANN. 14-2-103 (Michie 1994). 59. These states include: Alabama, Alaska, Arizona, Florida, Georgia, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, and Tennessee. See ALA. CODE 26-17-21 (1992); ALASKA STAT. 25.20.045 (Michie 1996); AIz. REV. STAT. ANN. 12-2451 (West 1992); RA. STAT. ANN. 742.11 (West 1994); GA. CODE ANN. 19-7-21 (1991); KAN. STAT. ANN. 23-129 (1995); MD. CODEANN., Esr. &TRusrs 1-206 (1997); MASS. GEN. I.AwSANN. ch. 46, 4B (West 1995); MICH. COMP. LAWS ANN. 333.2824 (West 1994); MINN. STAT. ANN. 257.56 (west 1992); Mo. ANN. STAT. 210.824 (west 1996); MONT. CODEANN. 40-6-106 (1997); NEV. REv. STAT. 126.061 (1995); N.Y. DOM. REn LAW 73 (McKinney 1996); N.C. GEN. STAT. 49A-1 (1995); TENN. CODEANN. 68-3-306 (1996). 60. These states include: California, Colorado, Connecticut, Idaho, Illinois, New Jersey, New Mexico, NewYork, Ohio, Oregon, Virginia, Wisconsin, and Wyoming. See CAL. FAM. CODE 7612 (West 1995); COLO. REV. STAT. ANN. 194106 (West 1990); CONN. GEN. STAT. ANN. 45a-774 (West 1993); IDAHO CODE 39-5405 (1993); 750 ILL. COMP. STAT. ANN. 40/3 (West 1993); N.J. STAT. ANN. 9:17-44 (West 1993); N.M. STAT. ANN. 40-11-6 (Michie 1994); N.Y. DOM. REL. LAW 73 (McKlnney 1996); OHIO REV. CODEANN. 3111.37 (West 1996); OR. REV. STAT. 109.239 (1997); VA. CODEANN. 20-158 (Michie 1995); WiS. STAT. ANN. 891.40 (West 1997); WYO. STAT. ANN. 14-2-103 (Michie 1994); see also Koehler, supra note 35, at 332-33 (discussing the vulnerability ofsingle women who use AID). 61. See Polikoff, supra note 6, at 469 (describing the vulnerability to paternity claims of unmarried women who use AID to conceive). 62. 377 A.2d 821 (NJ.Juv. &Dom. Rel. Ct. 1977). In this case, the father and motherwere dating prior to the child's conception. The court found that the couple was contemplating marriage, but did not wish to engage in sexual intercourse prior to marriage. In order to conceive, the father agreed to supply sperm to assist the mother in arrificial self-insemination. The parents then broke off their relationship before the birth of the child, and the father sought a court order to establish parental rights. Id. at 821-22. 63. Id. at 824. 64. Id.
65. rd
66. rd 67. C.M.v. C.C., 377A.2d 821,824 (NJ.Juv. &Dom. Rel. Ct. 1977).
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situation to sexual intercourse, stating that "[i]f the conception took place by intercourse, there would be no question that the 'donor' would be the father. The issue becomes whether a man is any less a father because he provides the semen by a method different from that normally used."' The court further stated that it was in the child's best interest to have one father and one mother!' The court 7 made this ruling over the objections of the child's mother. 7 is another AID case. This fwrdan C. v. May _ , case arose in California, ajurisdiction with an AID statute.7 Jzordan C. involved an unmarried woman, Mary, who inseminated herself with Jhordan's sperm.7 Jhordan brought an action for paternity and visitation. 74 The California AID statute is a modified version of the UPA and states in pertinent part that "[t~he donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived."75 The court held that, because Mary did not use the services of a licensed physician as required by the statute, she was not entitled to the statute's protection in relation to the sperm donor. 6 As a result, Jhordan prevailed.7 The Jhordan C. dicta suggests that when a doctor assists an unmarried woman who used a known donor in AID, she would be protected from paternity actions by the known donor, assuming that her jurisdiction's statute was not limited to married women. 8 Contrary results have occurred. In In re .C.,7' an unmarried woman used a known donor and involved a licensed physician in the process as required by the Colorado statute." The donor filed a paternity suit
alleging that the only reason he donated his sperm was because the
68. Id. 69. Id. 70. Id. at 822. 71. 224 Cal. Rptr. 530 (Ct. App. 1986). 72. Id. at 531. 73. Id at 532. 74. Id. at 533. 75. CAL. FAM. CODE 7613 (West 1995) (emphasis added). 76. Jhordan C., 224 Cal. Rptr. at 537-38. 77. Jhordan C. v. Mary K, 224 Cal. Rptr. 530, 531 (Ct. App. 1986) (affirming trial court's holding thatJhordan was the child's legal father). 78. Seeid. at535. 79. 775 P.2d 27 (Colo. 1989). 80. Id. at 28. The Colorado statute states, "Ct]he donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." COLO. REV. STAT. ANN. 19-4-106 (West 1986).
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woman promised that he would be treated as the child's father!' The court, contrary to the plain language of the statute, determined that the statute was ambiguous when applied to the case of a known donor, even when the parties adhered to the statutory requirements.' The court concluded that the legislature must not have intended the statute to apply to the known donor situation.Y The court, however, remanded the case for a factual determination of whether an agreement existed between the donor and the unmarried woman." The court stated that if the lower court found that there was an agreement that the donor would waive all parental rights, then the donor could not maintain the paternity action. The decision in McIntyre v. Crouch8 farther illustrates the limited legal protections afforded to unmarried women who use known donors in AID 8 7 Like the statute in In re R C., the statute in McIntyre required involvement of a licensed physician in the AID process.s The statute referred to in McIntyre further provided that a donor "shall have no right, obligation or interest with respect to a child born as a result of artificial insemination"' 8 if the sperm donor is "not the mother's husband."0 In this case, the woman knew the donor but 1 failed to use a licensed physician in the insemination process.9 The court stated that the woman's failure to use a physician was a misdemeanor, but that it did not deprive her of the statute's protection.2 The donor claimed that he had an agreement with the 3 woman that he would play a role in the child's life. 9 Based on the alleged agreement, the court held that the statute, as applied to this
81. In mR.C., 775 P.2d at 28.
82. Id. at 35.

83. Id. 84. Id. 85. Id. 86. 780 P.2d 239 (Or. Cc App. 1989). 87. But see Leckie v. Voorhies, 875 P.2d 521, 522 (Or. Ct App. 1994) (holding that a written waiver ofparental rights given by a known sperm donor to a lesbian couple was valid). 88. The statute states, "[o]nly physicians licensed under this chapter and persons under their supervision may select artificial insemination donors and perform ardficial insemination."
OR.REV. STAT. 677.260 (1997).
89. OR.REv. STAT. 109.239 (1997). 90. Id. 91. McIntyre v. Crouch, 780 P.2d 239, 241 (Or. Ct. App. 1989) (stating that it is an undisputed fact that the woman inseminated herself, without physidan supervision). 92. Id. at 243 (stating that if a woman artificially inseminates herself without a physician's supervision, she commits a class C misdemeanor). 93. See id. at 242-43 (noting petitioner's claim that he donated his semen in reliance on an agreement with respondent that he would have parental rights).
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petitioner, was unconstitutional, depriving him of due process." The court stated that "if [the donor] could establish that he and the
respondent agreed that he should have the rights and responsibilities 9 of fatherhood and in reliance thereon he donated his semen," then
the statute denied the donor due process by terminating his parental
rights and providing him no process by which to challenge that termination. The court remanded the case for a factual 97 as to the existence of an agreement. determination
In Thomas S. v. Robin Y,98 a lesbian couple used sperm from a known donor to conceive a child. Before insemination, all three parties verbally agreed that the lesbian couple would raise the child as their own and that the donor would have no parental rights, but that the donor would reveal his identity to the child upon request of the mothers." When the resulting child, Ry, was three-and-a-half years old, her mothers introduced her to the donor.' Over the next several years, the donor visited Ry when the mothers requested that he visit her.'0' Thereafter, the donor requested visitation with Ry alone.0 2 When the lesbian co-mothers refused, the donor filed a paternity action to attain filiation.'0 3 The lower court denied the donor's claim, stating that the donor appeared to Ry as "an outsider attacking [Ry's] family, refusing to give it respect."'" The New York Court of Appeals, however, reversed the lower court's decision.', The appellate court based its holding on the biological tie between Ry and the donor, as well as on the repeated visits between Ry and the donor that were encouraged by the mothers. 6 The appellate
94. Id at 244. 95. Id 96. See McIntyre v. Crouch, 780 P.2d 239, 245-46 (Or. C. App. 1989) (discussing the New York case Lehr v. Robertson, 463 U.S. 248 (1983), which interpreted the case as indicating that under the Due Process Clause, a state may completely bar a biological father's efforts to assert his rights to fatherhood). 97. See Mclntyre, 780 P.2d at 246 (finding genuine issues of material fact with respect to a parental rights agreement). 98. 618 N.Y.S.2d 356 (App. Div. 1994). 99. Id.at358. 100. See id. at 363 (noting that this was prompted by questions raised by the five-year-old child of Robin Y.'s partner). Both children were introduced to their biological fathers. Id. at 358. 101. Id. at364. 102. See id. (noting that appellant wished to introduce Ry to other members of his family, but was uncomfortable introducing Ry's mother to them). 103. Thomas S. v. Robin Y., 618 N.Y.S.2d 356,364 (App. Div. 1994). 104. Thomas S. v. Robin Y., 599 N.Y.S.2d 377,382 (Farn. Ct. 1993). 105. Thomas S., 618 N.Y.S.2d at 357. 106. Sme at 362 (noting that petitioner is estopped from denying appellant the right to id.
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court stated: [I] t is appropriate to begin 'with the observation that the effect of
Family Court's order is to cut off the parental rights of a man who
is conceded by all concerned-the child, her mother and the court-to be the biological father. The legal question... is whether the rights of a biological parent are to be terminated .... [T]ermination of those rights is in violation of well established standards of due process and cannot stand. 07 The appellate court failed to consider either the oral agreement or the original intentions of the parties, highlighting the tenuous nature of legal protections afforded to unmarried women who use sperm from known donors."' Finally, in Steven W. v. MarthaAndra N," a known donor agreed to provide sperm to a lesbian couple and to play a very limited role in the child's life, a role much less than that of a father."' The lesbian couple successfully self-inseminated."' During the pregnancy, the donor changed his mind and began telling family and friends that he 2 was an expectant father.1 The lesbian couple wrote the donor a letter terminating any contact, and the donor subsequently filed a paternity action."3 Because the California statute governing AID requires the participation of a licensed physician in the insemination process,14 the court held that the donor's rights had not been not consider the intentions of the terminated."5 The court did 6 in reaching its decision." parties The forgoing decisions involving known donors are important for their precedential value when applied to a dispute between a known
legal recognition of the relationship). 107. Id.atM58-59. 108. See id. at 361 (dismissing the alleged agreement as unenforceable for failure to comply with statutory requirements). The appellate court based most of its opinion on determining whether denying an establishment of paternity is in the best interests of the child. Id. 109. No. 3 Civ. C012456, (Super. C.Yolo County, Calif., May 6,1993). 110. So Steven W. v. Martha Andra N., No. 3 Civ. C012456, slip op. at 2-3 (stating that
Steven expressed an interest in being "responsible" for the child, but that he never defined
what that meant).

111. Rc.at3.
112. Id. 113. Id. at4-5. 114. See UNIF. PARENTAGE Acr 7005(b) (1995) (requiring that semen for artificial
insemination be "provided to a licensed physician" in order for the donor not to be the resulting child's legal father), ited in Steven W. v. Martha Andra N., No. 3 Civ. C012456, slip op. at 7-8 (Super. Cr.Yolo County, Calif., May 6,1993). 115. Steven W. v. Martha Andra N., No. 3 Civ. C012456, slip op. at 10-11 (Super. Ct. Yolo County, Calif, May 6,1993). 116. ird. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 447 1998-1999
448
donor and a lesbian couple in the context of TGIVF. 1 7 In an action for a declaration of paternity, visitation, or custody, a known donor may cite the forgoing precedents in support of his claim. In these cases, the known donor likely will analogize the facts of his case to the facts in the line of cases discussed above. In all jurisdictions, regardless of the presence or absence of an AID statute, in order to win custody the donor will have to establish that the sperm casing used in TGIVF plays as important a role as the entire sperm used in traditional AID. To accomplish this, the donor will argue that his sperm casing, albeit filled with someone else's genetic material, performed a necessary biological function in the fertilization process. The role of the sperm casing, the donor will assert, is that which allows fertilization to occur: The enzymes contained in the head of the sperm trigger the fertilization process, ' leading to the creation of the embryo."8 The donor will conclude that, but for his sperm casing, the child would not have been conceived. The donor will have to assert that these functions, performed by his sperm casing, rise to the same level of importance as the functions performed by whole sperm containing the genetic material of the donor in traditional AID. This argument should rarely succeed, because a court will not be able to conclude, that the donor is a biological parent of the child. Because the sperm contains the genetic material of the nongestational mother, there will be no grounds for a presumption of paternity in the donor. On the contrary, a genetic or blood test to determine paternity will reveal the donor not to be a natural parent
117. This section of the Comment only discusses the scenario in which the donor and the lesbian couple disagree about the role that the donor will play in the child's life. The scenario in which the lesbian mothers and the donor agree that all three parties will play a role in the child's life is addressed in Part IV. Seediscussion infraPart IV. 118. See SLEsICK, BALZER, McCoRmAcK, NavroN & RASMUSSEN, Supra note 11, at 611 (describing the fertilization process). During heterosexual intercourse, several hundred million sperm enter the vagina, and several thousand sperm reach the egg. Id The egg releases chemicals that attract the sperm. Id Usually only one sperm can fertilize each egg. Id. The sperm head contains digestive enzymes that, when released, dissolves a path to the egg. See id. Once the sperm penetrates the egg, the head and the middle section of the sperm enter the egg, and changes occur in the egg to prevent other sperm from entering. See HARVEY D. GOODMAN, THOMAS C. EMMEL, LINDAE. GRAHAM, FRANCES UM. SLOWICZEK&YAAKOV SHECH'7ER, BIOLOGY 735 (1986). Once the sperm penetrates the egg, the sperm's nucleus combines with the egg's nucleus and forms-a zygote. Id. 735. This zygote contains 23 chromosomes from at the mother and 23 chromosomes from the father. Id. 735. The zygote develops into a fetus, at
which gestates for approximately nine months until birth. SeeSLESNIC, BAI.ZER, MCCoIACK, NEvTON & RASMUSSEN, supra note 11, at 611-12. In TGIVF, however, the zygote and resulting
embryo will contain 23 chromosomes from each of the two women involved, and the sperm's role is limited to enabling fertilization. SeeInterviews with Dr. Charles Novotny, and Dr. George Osol, stpranote 11.
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of the child conceived through TGIVF."9 Upon reaching this conclusion, a court should find that the sperm casing in TGIVF can never be on the same level of importance as the entire sperm in AID. In the unlikely event that a donor is successful in convincing a court that the sperm casing and the entire sperm play identical roles in the respective AID procedures, he may have a valid cause of action for paternity, visitation, or custody. The outcome of any of these proceedings will hinge on the precedent in thatjurisdiction, and on the AID statute, if one exists in that state. For example, in a jurisdiction with no AID statute, the donor may cite a decision such as C.M. v. C.C0 The donor will assert that the reasoning in C.M., which held that a known donor was the child's legal parent,2 1 is correct and controlling. The donor will further assert that, if there is no other man available and willing to accept the role of the father, the donor should be declared the child's legal parent.'2 In the eighteen states with AID statutes that include protections for unmarried women, the courts should find that the donor waived all parental rights, provided that all the statutory requirements have been met.'2 However, existing case law illustrates that such an outcome may not be guaranteed.' A donor in a state with an AID statute that includes unmarried women may cite Jhordan C. v. Mary
119. Most states use genetic testing through blood tests to determine paternity in cases where paternity is contested. See, ag., ALA. CODE 26-17-12 (1992) (stating that in a paternity proceeding, the court "shall order the mother, child and defendant to submit to one or more genetic tests to assist the court in determining paternity of the child. The statute further explains that, "[glenetic testing methods include, but are not limited to, the human leukocyte antigen test"); ARiz. REV. STAT. ANN. 25-816 (West 1992) (stating that in a paternity proceeding the "department of economic security... may order the mother, her child or children and the alleged father to submit to the drawing of blood or tissue samples for genetic testing"); ME. REV. STAT. ANN. tit. 19-A, 1558 (West 1998) (stating that in a paternity proceeding, "[t]he court... shall order the mother, child and alleged father to submit to blood or tissue typing tests, which may include, but are not limited to, tests of red cell antigens, red cell isoenzymes, human leukocyte antigens and serum proteins"). 120. 377A.2d 821 (N.J.Juv. &Dom. Rel. Ct. 1977). 121. See i. at 825 (finding that a known donor can be a legal parent). 122. See id. at 824 (describing the need for a father). 123. S&4 eg., Leckie v. Voorhies, 875 P.2d 521 (Or. Ct. App. 1994) (holding that a written waiver of parental rights by a known donor to a lesbian couple was valid). Although the Leckie court did not reach the issue of the applicability of the Oregon AID statute, which states that a sperm donor who is not the woman's husband waives all claims to parental rights, the same outcome can be presumed if reached under the statute. See id. at 522. The Leckie court distinguished this holding from the decision in Medntyre V. Crauch, which held that the Oregon AID statute was unconstitutional as applied to a sperm donor who gave his sperm in reliance on an agreement that he would be involved in the child's life. See McIntyre v. Crouch, 780 P.2d 239,244 (Or. Ct.App. 1989). 124. See supra notes 4348 and accompanying text (describing the precarious nature of lesbian families in relation to the law).
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K.,"5 which held that a known donor was the legal parent of a resulting child because an unmarried woman did not use a licensed physician in the insemination process as required by the AID statute.' Furthermore, even if a woman who is using this new technology fulfills all the statutory requirements, the donor may still 7 prevail if the court follows the holding in In re . C." The R.C. court ignored the plain language of thre Colorado AID statute, which also applied to unmarried women, and stated that a sperm donor relinquishes all claims of paternity, and found that a known donor could be a legal parent if there was an agreement between the donor and the woman that the donor would play a role in the child's life."8 Finally, a donor may rely on McIntyre v. Crouch,"9 which provides that a court may ignore the plain language of an AID statute requiring a sperm donor to waive all claims to paternity.' The McIntyre court held that an agreement between a known donor and an unmarried woman superseded the plain language of the AID statute, which stated that a sperm donor waives all claims to parental rights.'3 ' Relying on McIntyre will allow a known TGIVF donor to argue that a court can find reasons to ignore the plain language of an AID statute and declare that the donor is a legal parent to the child."2 Additionally, McIntyre illustrates the importance of a pre-conception agreement between the sperm donor and the unmarried woman that states specifically what role, if any, the sperm donor will play in the child's life.'33 In jurisdictions where the AID statute protects only married women, there are several possible results if the known donor asserts paternity. In states that interpret the AID law to include unmarried
125. 224 Cal. Rptr. 530 (CL App. 1986). 126. See id. at 532 (noting that sperm was "donated personally to Mary by Jhordan") (emphasis in original). 127. 775 P.2d 27 (Colo. 1989). 128. Id. at 35. Accordingly, to raise a fhctual dispute for litigation, a known donor in a TGIVF dispute need only assert that he intended to raise the child or that he believed he would share in the parenting of the child. Id. 129. 780 P.2d 239 (Or. Ct. App. 1989). 130. See id. at 244 (concluding that the contract between the mother and father of a child born out of wedlock may supercede a statute that mandates waiver of paternity rights). 131. See id at 243-45 (discussing how, if the donor can prove he gave semen in reliance on an agreement that he be able to participate in the child's life, he may be able to establish parental rights despite the limiting language of the statute). 132. Id.
133. See NATIONAL CTR. FOR LESBIAN RIGHTS, LESBIANS CHOOSING MOTHERHOOD: LEGAL
IMPLICATIONS OF ALTERNATIVE INSEMINATION AND REPRODUCTIVE TECHNOLOGIES
28-31 (1996) (describing the importance of written agreements between known donors and unmarried
women in protecting the preconception intent of all parties). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 450 1998-1999
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women, notwithstanding the statutory language to the contrary, it will be more difficult for the donor to gain paternal rights because the unmarried woman will be protected by the statute." In states that follow the statutory language and deny protection to unmarried women, however, the donor will have a stronger case for winning
parental rights.' s
In jurisdictions without an AMD statute, traditional family law will govern.35 In these states, the family law principles governing AID are the same as the principles that govern when the child was conceived through sexual intercourse.'!" In many states with an AID law excluding unmarried women, "the law treats the unmarried woman and the donor as it would any two biological parents who have conceived a child out of wedlock. ' " In these jurisdictions, as in most 3 others, paternity is established through blood tests." 9 In the more likely scenario, the donor will not be able to establish a level of parity between the role of the sperm casing in TGIVF and the role of the entire sperm in traditional AID. If this happens, the court will most likely rely on the genetic truth that the child is the offspring of two women and declare that the donor is not, and cannot be, a 4 natural or legal parent to the child.1' The court will then be able to
134. These states include: California, Colorado, Connecticut, Idaho, Illinois, New Jersey, New Mexico, NewYork, Ohio, Oregon, Virginia, Wisconsin, and Wyoming. See CAL. FAM. CODE
7612
(West 1995); COLO. REV. STAT. ANN. 19-4-106 (West 1990); CONN. GEN. STAT. ANN. 45a-774 (West 1993); IDAHO CODE 39-5405 (1993); 750 ILL COM'. STAT. ANN. 40/3 (West 1993); NJ. STAT. ANN. 9:17-44 (West 1993); N.M. STAT. ANN. 40-11-6 (Michie 1994); N.Y. DOM. REL. LAW 73 (McKinney 1996); OHIO REV. CODEANN. 3111.37 (West 1996); OR.REv. STAT. 109.239 (1997);VA. CODEANN. 20-158 (Michie 1995);Wis. STAT. ANN. 891.40 (West 1997); WAo. STAT. ANN. 14-2-103 (Michie 1994); see also Koehler, supra note 35, at 332-33 (discussing the vulnerability of single women who use AID). 135. Seesupranotes 3034 and accompanying text (discussing using the UPAas guidance for
analyzing the issues presented in ART situations).

136. See Schiff, supranote 6, at 539 (discussing the resolution of AID cases in states with no
AID statute). 137. See Schiff, supra note 6, at 539 (describing the application of family law principles to AID cases injurisdictions with no AID-specific law).
138. Schiff, supranote 6, at539. 139. Se supra note 119 and accompanying text (explaining the statutory guidelines and processes that determine paternity). 140. The same blood tests that are used to determine paternity can be used to demonstrate that two women are the natural parents of a child. Courts prefer to declare that two natural parents also are the legal parents of any child. See R. Alta Charo, BiologicalDeterminismIn Legal Decision Making: The Parent Trap, 3 TEx.J. WOMEN & L. 265, 266 (1994) (describing the law's preference for biology over intent in family matters). Following this reasoning, courts will most likely declare that the two women are both the natural and legal parents of a child born through TGIVF. But se generallyMichael H. v. Gerald D., 491 U.S. 110 (1989) (suggesting that a court may be able to declare a TGIVF sperm donor the legal parent of a child, notwithstanding the lack of genetic ties to that child). In MichaelH., Carol D. and Gerald D. were married. Id. at 113. While still married to Gerald, Carol became pregnant by Michael H. during an adulterous relationship with him. Id. Gerald was listed as the child's father on her birth HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 451 1998-1999
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distinguish between the sperm casing and the entire sperm and, accordingly, be able to justify disparate custody decisions and visitation actions by known donors. Once this distinction is made and paternity is declared a legal impossibility, courts generally will consider any claim by the donor for visitation or custody as it would any third party asserting such a claim. The laws governing claims by third parties for child custody or visitation vary from state-to-state, but most states have stringent standards and high evidentiary burdens that a third party petitioner must meet.1 B. Scenario Two: Known DonorMakes A ClaimforPaternity,Visitation and/orCustody Based On SurrogacyAnalogy A second type of argument potentially available to a known donor who makes a claim for paternity, visitation, and/or custody is one
certificate, and he held himself out as her father. Id. at 113-14. However, due to their sometimes divergent careers, Carol and Gerald often lived apart. Id. at 113. During some of their separations, Carol lived with Michael, during which time he held himself out as the child's father. Id. at 114. Blood tests revealed that Michael was the biological father, and he sued for paternity and the right to visitation. Id. Notwithstanding the fact that Michael was the child's biological father, a California Court of Appeals affirmed the superior court's holding that Gerald was the child's legal father. Id. at 116. The superior court based its holding on the California statute that provides that a child born to a married woman living with her husband is presumed to be a child of the marriage. Id. 115-16. The United States Supreme Court upheld the lower court's decision. Id. at 131. The fact that the highest court in the United States can declare a man to be the legal father of a child when it has been scientifically proven that another man is the child's father indicates that a court may be able to reach a similar conclusion in the case ofa TGIVFsperm donor asserting paternity. However, MicAad H. can be distinguished from a TGIVF case on the basis that neither mother in the TGIVF family will be married to the donor, so any marital presumption between the mothers, like the one in Michael H., may be implicated. 141. SeePolikoff, supra note 6, at 508 (discussing the laws addressing third parties in custody and visitation disputes). 142. There are two considerations when a third party asserts a claim for custody or visitation. The first challenge is for the third party to establish standing to bring the action. See Polikoff, supra note 6, at 508. The second consideration is the substantive standard that the court will apply in considering the claim. See id.; see also CONN. GEN. STAT. ANN. 46(b)-57 (West 1995 & Supp. 1998) (stating that in a custody dispute between a parent and a third party, the court "shall be guided by the best interests of the child.. ."); NEB. REV. STAT. 42-364 (1993) (stating that to award custody to a third party, the court must find parental unfitness, inability to discharge parental responsibilities, neglect of the child(ren), or abandonment of the child(ren)); see also, e.g., Nancy S. v. Michelle G., 279 Cal. Rptr. 212, 214-15 (Ct. App. 1991) (quoting CAL. CIV. CODE 4600(c) (West 1991), stating that [b]efore the court makes any order awarding custody to a person ... other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child. Id.; Painter v. Bannister, 140 N.W.2d 152, 156 (Iowa 1966) (holding that in a custody dispute between a parent and a third party, there is a "presumption of parental preference" and, notwithstanding the parental preference, the "primary consideration is the best interest of the child"); Bottoms v. Bottoms, 457 S.E.2d 102, 104 (Va. 1995) (stating that "[i]n a custody dispute between a parent and non-parent, 'the law presumes that the child's best interests will be served when in the custody of its parent,'" citingJudd v. Van Horn, 81 S.E.2d 432,436 (Va. 1954)).
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analogous to arguments made by surrogate mothers. The donor's argument will be based on an analogy between gestational surrogacy and TGIVF. As previously noted, there are several types of surrogacy, including traditional surrogacy and gestational surrogacy.14 A donor most likely will claim the following: In a gestational surrogacy situation, the gestational surrogate carries the genetic material of others. More specifically, the gestational surrogate carries an embryo created with the egg and sperm of two people who are unrelated to her.'" The donor will likely argue that in TGIVF, the sperm donor plays the same role as the gestational surrogate. Furthermore, the donor may claim that, like the gestational surrogate, he carries the genetic material of another. He may argue that his role in reproduction, like that of the gestational surrogate, is crucial and therefore deserving of legal protection. It is unlikely, however, that a court will equate the role of a gestational surrogate and the role of a sperm donor in TGIVF. It is true that both the gestational surrogate and the donor sperm in TGIVF carry the genetic material of others." s Both also play critical
roles in conception1 But the similarities end there. There are
important distinctions between sperm donors and gestational 4 7 surrogates that require the law to treat the two scenarios differently.1 The process of sperm donation is simple, painless, fast, and without
4 risk.1'
Gestational surrogacy, on the other hand, involves a
substantial time commitment and the potentially serious health risks associated with pregnancy.'4 These physical and emotional differences should compel a court to find the two processes different enough tojustify differential treatment under the law. If a court agrees with the donor that the two scenarios are analogous, the statutes and common law addressing surrogacy are instructive in predicting how a known TGIVF donor will fare in his action for paternity, visitation and/or custody. The statutes and case law relevant to the donor's argument are those that address
143. See Kerian, supranote 20, at 114 (defining types ofsurrogacy). 144. See Kerian, supranote 20, at 114 (explaining types ofsurrogacy). 145. Seesupranote 11. 146. Seesupranote11. 147. See Barbara L. Keller, SurrogateMotherhood Contractsin Louisiana: To Ban or to Regulate?, 49 LA. L. REV. 143,179 (1988) (noting the differences between surrogacy and sperm donation). 148. See Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscramhing the Conundrum ofLegalM'atenify, 80 IOWAL. REV. 265,291 (1995) (comparing the characteristics of blood and sperm donation) [hereinafter SolomonicDecisions]. 149. See Keller, supra note 147, at 179 (describing the physical and psychological risks of carrying a child in a surrogacy arrangement).
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gestational surrogacy. ' 5
Currently, several states have statutes that address surrogacy. ' None of these statutes, however, distinguishes between traditional surrogacy and gestational surrogacy. 52 Case law addressing gestational surrogacy is, therefore, the most appropriate precedent for the sperm donor in TGIVF. Those gestational surrogacy cases where the gestational surrogate attempted to claim maternity are the most analogous to the claim a sperm donor would attempt to make in the context of TGIVF. There are very few cases involving gestational surrogacy. The most
5 influential case to date is Johnson v. Calvert.'3 In Johnson, Anna Johnson agreed to carry to term the embryo created from the egg and sperm of Mark and Crispina Calvert, a married couple.'5 4 Johnson signed a contract in which she agreed to relinquish all parental rights to the child and turn the child over to the Calverts."5
In return, the Calverts agreed to payJohnson $10,000.'o During the pregnancy, relations between Johnson and the Calverts deteriorated,
resulting in a lawsuit in which the Calverts sought declaratory
150. The basis of the donor's analogy to a surrogate mother is that his sperm casing contains a third party's genetic material. Therefore, he will rely only on those statutes and cases addressing gestational surrogacy, the situation where the surrogate mother carries an embryo that has no genetic link to her. Relying on cases and statutes that address traditional surrogacy, where the surrogate is a genetic parent to the child, will not assist the donor in his action for paternity, custody, or visitation because he is not a genetic parent to a child bor of TGIVF. In contrast, the birth mother in a traditional surrogacy arrangement is also the genetic mother.
See supranotes 140-42.
151. Currently, 18 states have surrogacy statutes. ALA. CODE 26-IOA-33 (1992); Aiuz. REv. SrAT. ANN. 25-218 (West 1991 & Supp. 1998); ARK. CODE ANN. 9-10-201 (Michie 1993 & Supp. 1997); D.C. CODE 16402 (1997); FLA. STAT. ch. 742.15-.17 (1997); IOWA CODE 710.11
(1993); KY. REV. STAT.
199.590 (1998); LA. REV. STAT.
LAWS 722.859 (1993); NEB. REV. STAT. 25-21.000 (1995) (surrogacy contracts); NEV. REV. STAT. 126.045 (1997) (surrogacy contracts), NEV. REV. STAT. 127.287 (1997) (surrogacy exception allowing payment for surrogacy services); N.H. REV. STAT. ANN. 168-B:1 - 32 (1994); N.Y. DOM. REL LAW 122 (Mcdinney 1996); N.D. CENT. CODE 14-18-03 (1997); UTAH CODE ANN. 76-7-204 (1995); VA. CODE ANN. 20-159 - 20-163 (Michie 1995); WASH. REV. CODE 26.26.210 - 60 (1997); W. VA. CODE 484-16 (1998). The states that void paid surrogacy contracts include: Arizona, the District of Columbia, Indiana, Kentucky, Louisiana, Michigan, Nebraska, New York, North Dakota, Utah, and Washington. Arizona, New York and Utah also prohibit unpaid surrogacy contracts. States that allow enforceability of surrogacy contracts in some form include: Arkansas, Florida, Nevada, New Hampshire, Tennessee, Virginia, and West Virginia. 152. See Robertson, supra note 1, at 924 (noting the lack of specificity in existing surrogacy statutes). 153. 851 P.2d 776 (Cal. 1993). 154. Id. at 778. 155. See id (noting that the surrogate mother relinquished "all parental rights"). 156. See id (noting that the husband and wife took out a life insurance contract for the. surrogate mother).
9:2713
(West 1991); MICH. COaMP.
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judgment that they were the legal parents of the unborn child.'57 Johnson countersued, seeking a declaration that she was the child's legal mother." The court looked to California's version of the UPA for assistance in deciding the case.'59 The court stated that although the UPA was not enacted with the intent of resolving surrogacy disputes, it was nonetheless helpful because it "facially applies to any parentage determination, including the rare case in which a child's maternity is in issue.""t The court stated that both Anna and Crispina "adduced evidence of a mother and child relationship as contemplated by the [California Uniform Parentage] Act"' Anna because she gave birth to the child, and Crispina because blood tests confirmed that she was the child's genetic parent6 2 The court further stated that, although both women could be considered the child's mother, "for any child California law recognizes only one natural mother, despite advances in reproductive technology rendering a different outcome biologically possible. " 'O The court specifically declined to find that the child had two legal mothers.'6 The court decided that the intent of the parties was dispositive in determining which woman was the legal mother to the child: We conclude that although the [California Uniform Parentage] Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child-that is, she who intended to bring about the birth of a child that she intended to raise as her own-is the natural mother under California law.165 As a result of this reasoning, the court held that Crispina Calvert was the natural and legal mother of the child.'6
157. Id. 158. SeeJohnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993) (noting that the two cases were consolidated). 159. Id. 160. Id. at 779. 161. Id. at 780 (providing means by which biological mothers and fathers can show parentchild relationship). 162. Td. (noting that "the act sets forth no specific means by which a natural mother can establish a parent and child relationship"). 163. Johnson v. Calvert, 851 P.2d 776,781 (Cal. 1993). 164. See id. at 781 & n.8 (noting that to recognize a third party's parental rights would diminish a natural mother's role). 165. Id. at 782. 166. See id. 787 (noting that in an egg donation scenario, the woman who donates would at be the natural mother).
456
McDonald v. McDonald 67 also addressed a dispute involving gestational surrogacy. In McDonald, a married couple had two children during their marriage.'6' The wife, although she gestated and gave birth to both children, was not the genetic mother of the children." The couple filed for divorce, and the court had to decide whether the wife was the natural parent of the children for the purpose of deciding custody. 70 In deciding that the gestational surrogate was also the natural and legal parent to the children, the court, relying onJohnson v. Calvert,' stated:
Thus, ... in a true egg donation situation, where a woman gestates
and gives birth to a child formed from the egg of another woman with the intent to raise the child as her own, the birth mother is the natural mother under California law.' In the case at bar, we have a true 'egg donation' situation, and we find the reasoning of the M Supreme Court of California on this issue to be persuasive.
Under this reasoning, the court awarded temporary custody of the two children to the gestational surrogate/mother.'" 7 Finally, in Belsito v. Clark,' 4 a married couple who could not give birth to their own child transplanted an embryo created from their egg and sperm into a gestational surrogate, who was also the wife's sister.'7 In preparation for the birth, the gestational surrogate discussed the issue of the birth certificate with the hospital.' 7 The hospital informed the gestational surrogate that, because she was the birth mother, her name would appear on the birth certificate.'" Further, the hospital informed the gestational surrogate that, because
167. 608 N.Y.S.2d 477 (App. Div. 1994). 168. Id. 478. at 169. See id (stating that instead, the couple used donated eggs that were then fertilized with the husband's sperm and implanted into the wife's uterus). 170. See id. (stating that for purposes of the court's decision, the "genetic mother is the woman whose eggs are fertilized during the conception process, while the gestational mother is the woman who carries the fertilized eggs in her uterus until birth"). 171. 851 P.2d 776 (Cal. 1993). 172. SeeMrDonal, 608 N.Y.S.2d at480 (internal citations omitted). 173. See McDonald v. McDonald, 608 N.Y.S.2d 477, 480 (App. Div. 1994) (finding that the gestational surrogate/mother was entitled to temporary custody of the children, with the husband having visitation rights). 174. 644 N.E.2d 760 (Ohio Ct. Common Pleas 1994). 175. See id. at 761 (discussing the procedures and routines followed during the in vitro fertilization process). 176. See id. at 762 (elaborating on Ohio law pertaining to the parentage listed on birth certificates). 177. See i (explaining further that, although Clark was the birth mother, she would contribute none of her own DNA to the child).
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she was unmarried, the child would be considered illegitimate.' As a result of this information, the married couple sought a declaratory judgment that they were the natural and legal parents of the child and to have their names listed on the child's birth certificate." 9 The Belsito court rejected the intent test articulated by Johnson v. Calvert.' The court opined that theJohnson intent test was difficult to apply, and, further, that it contravened two important areas of public policy.'"' First, the court stated that "as a matter of public policy, the state will not enforce or encourage private agreements or contracts to give up parental rights."' a Second, the court stated that the public policy behind the state's adoption laws strove to protect mothers, children, and the stability of the parent-child relationship."' Finally, the court rejected theJohnsom intent test because of its "failure to fully recognize the genetic provider as having the right to choose or to
consent.'..
After rejecting the Johnson test, the Belsto court articulated a new test-one that considered both genetics and gestation.s The court stated that "[b]y formulating the law in this manner, both tests, genetics and birth, are used in determining parentage. However, they are no longer equal. The birth test becomes subordinate and The Belsito court also addressed the secondary to genetics. ' possibility that, in some circumstances, the gestational surrogate may want to take on the role of the natural parent.8 The court reasoned: The law must recognize the reality that the surrogate who did not provide the genetics of a child may wish to be the legal parent.... This concept should be recognized and applied to the identification of the legal parent of a child delivered by a nongenetic-providing surrogate. It should be applied when the
178. See i& (explaining that the child to be born would be recorded with the last name of the gestational surrogate). 179. See Belsito v. Clark, 644 N.E.2d 760, 762 (Ohio Ct. Common Pleas 1994) (stating that the birth certificate would then reflect the "legitimate" status of the child). 180. SeeBelito 644 N.E.2d at 764-65 (citing tojohnson, 851 P.2d 776 (Cal. 1993), and public policy regarding parental tights and adoption law). 181. Sez id. at 765 (discussing the difficulty of proving intent). 182. Id. 183. See id. (discussing how the adjudication of adoption prevents later challenges to the rights and interests of both parents and children). 184. Id. at 766-67. 185. See Belsito v. Clark, 644 N.E.2d 760, 776 (Ohio Ct Common Pleas 1994) (stating that "[t]he law must recognize the reality that the surrogate who did not provide the genetics of a child may wish to be the legal parent"). 186. Id. at 767. 187. See id. (pointing to state adoption laws, which reflect the recognition that someone other than the natural parent may assume the legal status of a natural parent).
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gestational surrogate wishes to raise the child she has delivered. It must apply only with consent, or waiver of consent, of the genetic parents.88 After explaining these tests, the court decided that, on the facts of this case, the genetic parents, who' were also the intended parents, were the natural and legal parents of the child carried by the gestational surrogate.'8' A TGIVF sperm donor asserting paternity, custody, or visitation in the context of TGIVF may cite the foregoing line of cases in support of his claims. If he relies on the Johnson precedent, the donor may first assert that, according to the California Supreme Court, a child cannot have two mothers under the law.'9' Further, the donor may assert that, because public policy mandates every child have two parents, preferably one mother and one father, 9 ' he should be declared the child's legal father. This interpretation ofJohnson is not likely to succeed, however, given the scientific reality that the child is the natural, genetic child of two women. A second argument that the donor may offer is, as with the facts in the Johnson case, there are three possible parents as a result of TGIVF. Even if a court finds that there are three possible parents-the gestational woman by her genetic and birthing contribution, the nongestational mother by her genetic contribution, and the sperm donor by his biological contribution-the Johnson precedent still mandates that a court finds only two of those three parents to be the legal and natural parents.1 2 Further, under the Johnson test, the donor would have to show that the pre-conception intent of all three participants was that the donor play the role of a parent in the child's life."3 Finally, the donor would face the challenge of overcoming the statutory language of the state's UPA, if one exists, which usually
188. Id 189. See id (clarifying that under Ohio law, if a child is "delivered by a gestational surrogate who has been impregnated through the process of in vitro fertilization, the natural parents of the child" are those providing the genetic makeup of the child). 190. SeeJohnson v. Calvert, 851 P.2d 776, 781 (Cal. 1993) (finding that the genetic and "intending" mother was the natural mother). 191. See Polikoff, supra note 6, at 469-71 (explaining how existing fanily law strives to provide every child with two parents). Polikoffstates that, "courts have gone to great lengths to provide every child with precisely one mother and one father." Id. at 469. Even in states with laws governing sperm donation, "case law demonstrates that the courts will interpret the statute in such a way as to facilitate thejudicial search for one mother and one father." Henry, supra note 46, at 293. 192. SeeJohnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993). 193. See id. at 782 (holding that to be considered a natural parent, a person must intend to bring about the birth of a child and intend to raise the child as his or her own).
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declares that a sperm donor waives all claims to parental rights. 94 The donor may assert that the McDonald case, which held that a gestational surrogate was also the natural and legal parent of the child,9 s compels a court to find that he is a natural and legal parent to a child born of TGIVF. However, this simplistic reading of the McDonalddecision will rarely convince a court to find for the TGIVF sperm donor. Instead, the reasoning behind the court's holding in McDonald-that the birth mother was also the natural mother even though the couple used a donated egg1 -- should compel a court to hold against the sperm donor. In the case of a TGIVF dispute, the gestational mother is also a genetic mother. 97 Finally, in TGIVF women use sperm in the context of a true sperm donation, analogous to the McDonald court's "true... [sperm] donation,""" in which a court assumes the two women intend to raise the resulting child, while simultaneously assuming that the sperm donor did not intend to raise the child, but instead intended to relinquish all parental
rights.
The donor will need to distinguish much about the Belitd' holding in order to make a legitimate argument. Under the Belsito test, genetics supersedes birth in determining parentage2 00 Therefore, the donor will have a difficult time overcoming the scientific fact that the two women are the genetic parents of the TGIVF child. If the donor somehow meets this challenge, he will cite the court's statement that, in some circumstances, the gestational surrogate will want to take on the role of the natural parent. 21 Again, the donor most likely will analogize his position as one carrying another's genetic material to the position of the gestational surrogate. He will state that, because a gestational surrogate may sometimes assert the role of natural parent, he, too, should be able to assert that role. The important differences between gestating and birthing a child and donating sperm,2 2 even if that sperm later
194. See supranotes 36-38 and accompanying text (cataloging those states that have a UPA statute, those states that do not, and stating that traditional family law governs in cases where
the facts are not governed by the UPA statute).
195. See McDonald v. McDonald, 608 N.Y.S.2d 477, 480 (App. Div. 1994) (following the intent reasoning ofJohnson, 851 P.2d 776,781 (Cal. 1993)). 196. Id. 197. Saesupranote 11. 198. SwMcDonald 608 N..S.2d at 480. 199. Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct. Common Pleas 1994). 200. Seeid.at 767.
201. See id
202. So Kerian, supra note 20, and accompanying text (discussing the differences between
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contains the genetic material of another, will most likely convince a court that this type of argument by the donor is not legitimate. Finally, the court's disclaimer in Belsito, that the gestational surrogate will be able to raise the child as a natural and legal parent "only with 3 consent, or waiver of consent, of the genetic parents,"" most likely will prove fatal to the donor's claims.
C. Scenario Three: Dissolution ofa Lesbian Couple With ChildrenBorn Through TG1VF
Currently, when a lesbian couple with children dissolve their relationship, there are few legal protections for the non-biological
mother.21 Some jurisdictions allow second-parent adoptions that
bestow full parental rights and obligations upon the non-biological 5 lesbian co-parent. 2 "Second-parent adoption solidifies the parental status of the nonbiological parent who would otherwise be a legal stranger to the child, regardless of the intent and conduct of the parties. 2 Upon dissolution of the relationship, the adoptive mother has the legal guarantee of custody and/or visitation based on her status as a legal parent to the child. 20 7 However, in those states and jurisdictions that do not offer second-parent adoptions, the nonbiological co-mother has no legally protected relationship with the
surrogacy and sperm donation). 203. Belsito, 644 N.E.2d at767. 204. See Henry, supranote 46, at 300 (explaining that no existing AID statutes address the rights of non-biological co-parents of unman-ied women, including lesbian co-parents). 205. Currently, 17 states, including New York, Massachusetts, and Vermont, and dozens of jurisdictions permit second-parent adoptions. See In reDana G., 660 N.E.2d 397, 401 (N.Y. Ct. App. 1995) (finding that lesbian co-adoption of partner's genetic child comported with public policy of adoption statute and that genetic mother's legal ties needn't be severed for secondparent adoption; In reTammy, 619 N.E.2d 315, 321 (Mass. 1993) (holding that joint adoption by lesbian co-mothers was in the child's best interest and that the legal rights of a biological motherwould not terminate upon the adoption of the child by a second mother); In reB.L.V.B. & E.L.V.B., 628 A.2d 1271, 1275-76 (Vt. 1993) (holding that lesbian genetic mother's children could be adopted by her partner without terminating her parental rights where they comprised a family unit and it was in the children's best interests); see also NATIONAL CTRL FOR LESBIAN RIGHTS, LESBIANS CHOOSING MOTHERHOOD, supranote 133, at 54. Two states, Florida and New Hampshire, ban lesbians and gay men from adopting. See FLA. STAT. ANN. 63.042(3) (West 1997) ("No person eligible to adopt under this statute may adopt if that person is a homosexual."); N.H. REv. STAT. ANN. 170-B:4 (1998) ("[A]nyindividual ... nota homosexual may adopt...."); see also NATIONAL CR. FOR LESBIAN RIGHTS, LESBIANS CHOOSING
MOTHERHOOD, sup-a note 133, at 54. In a second-parent adoption, the non-biological co-
parent adopts her partner's biological child. However, the biological mother does not relinquish her parental rights. The child therefore has two legal mothers. See id. 54 at (defining second-parent adoption). 206. Nancy D. Polikoff, TheDiberateConstructionofFamilies Without Fathes: Is It an Optionfor Lesbian andHeterosexualMothers, 36 SANTA CLARA L. REv. 375,392 (1996). 207. See Henry, supranote 46, at 297 (explaining the legal protections created by secondparent adoptions).
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In many cases, the non-biological co-mother is denied
custody and visitation with the child she helped bring into the world.*
TGIVF guarantees both mothers the right to visitation and/or custody upon the dissolution of their relationship because both are biological and genetic parents to the child. Therefore, custody, visitation, and child support will be decided by state laws governing 2 such matters. " As a result, both mothers will maintain their parental roles in the child's life.
208. Henry, supra note 46, at 299 (stating "the non-biological mother has little legal recourse if the biological mother terminates the non-biological mother's relationship with the child, even if that termination is against the child's best interests. When a non-biological mother, even one who participated in the decision of the biological mother to conceive by AI[D], sues for visitation, she has notfared well in the courts.") (internal citations omitted). 209. Sep, ag., Nancy S. Michele G., 279 Cal. Rptr. 212, 213-14 (Ct.App. 1991) (holding v. that the biological mother of children born during a lesbian relationship was the only legal parent to the children, and that any contact between the children and the non-biological comotherrequired consent of the biological mother); Georgia P. v. Kerry B., Nos. 197577,197581 (Cal. Sup. Ct., Sonoma County), aff'd Nos. A059817, A060829 (Cal. Ct. App., Jan. 31, 1994) (unpublished opinion) cited in King, supra note 19, at 362-63 & nn.150-57 (holding a written agreement between the biological and non-biological co-parents void and declaring the biological mother to be the sole legal parent of the child); Alison D. v. Virginia M., 77 N.Y.2d 651, 655 (1992) (holding that a non-biological, lesbian co-mother did not have standing to petition for visitation); In re ZJ.H., 471 N.W.2d 202, 211 (Wis. 1991) (holding that the nonbiological and non-adoptive co-parent lacked standing to petition for visitation and declaring the child's adoptive parent the sole legal parent, notwithstanding a written agreement between the co-parents that both would share parenting in the event of the dissolution of their relationship). See also Kate Thomas, Lesbian Lover Wins Standingas a Parent, Texas Court Says She May Sue for Visitation, NAT'L LJ., Aug. 4, 1997, at A6 (stating non-biological co-parent has standing to bring claim for visitation rights). But see In reKristinJanine Pearlman, No. 87-24926 DA (Fla. Cir. Ct., Broward County, Mar. 31, 1989) (setting aside adoption by maternal grandparents of a child born through anonymous AID after the biological mother died and instead granting custody to the non-biological co-parent) cited in Nancy D. Polikoff, Thomas S. v. Robin Y: BriefAmicus Curiae of the National Center for Lesbian Rights; Lambda Legal Defense and EducationFund; Gay andLesbian Advocates andDefender; Center Kids; and Gay and Lesbian Parents CoalitionInternational Supportof Respondent-Appellee, 22 N.Y.U. REV. L &Soc. CHANGE, 213, 252 in (1996); A.C.v. C.B., 829 P.2d 660, 664 (N.I. Ct. App. 1992) (holding that a consent decree outlining the shared parenting that was entered into by a biological and non-biological coparent upon dissolution of their relationship was enforceable according to the child's best interests). 210. Because family law is state-created, laws addressing the issues of child support, visitation and custody vary from state-to-state. See Schiff, supranote 6, at 534-35 (explaining the state by state nature of family law). See also, eg., MnCH.COMP. LAWS 25.312(6a) (1994) (mandating that in custody disputes the court shall inform the parents about joint custody and, at the request of either parent, considerjoint custody under the best interests of the child standard); MINN. STAT. 518.17 (1992) (mandating that upon request of either parent, the court "shall use a rebuttable presumption ... thatjoint legal custody is in the best interests of the child"); MONT. CODEANN. 40-4-212 (1997) (directing the court to determine custody "in accordance with the best interest of the child"); VT. STAT. ANN. tit. 15, 665 (1996) (stating that when parents cannot agree to divide parental duties, the court "shall award parental rights and responsibilities primarily or solely to one parent").
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IV. RECOMMENDATIONS
State legislatures and courts should embrace TGIVF as a valid method of family formation. This Comment suggests two alternative family forms that should be recognized as a result of TGIVF. First, the law should recognize a TGiVF-created family with two legal parents-the two mothers-and the children. Given the historical deference to biology over intent, courts and legislatures most likely will have difficulty invalidating the TGIVF family with two genetic mothers and their child2 " Therefore, this form of TGIVF family . should be recognized by courts in all jurisdictions. Second, the law should recognize a TGIVF-created family with three legal parents-the two genetic mothers and the sperm donor. This three-parent family should only be recognized and protected if the two genetic mothers intend to create such a family, and the sperm donor likewise agrees and intends such a family. 2 Granting this decision-making power to the two genetic mothers assures that their intentions will be realized by precluding intrusive actions by the
donor.
This three-parent family will be based on biology, genetics, and intent.1 3 Gaining judicial recognition and validation of the TGIVF family that seeks to include three parents will be more problematic than gaining judicial acceptance of the two-parent TGIVF family. Courts have been reluctant to recognize either families of intent or 2 families with more than two parents. " A modified Belsitd ' s test may be envisioned to determine when these three-parent families should be protected. Instead of using the two-tiered Belsito test, which
211. SeeCharo, sutrranote 140, at 266 (stating that "public policy and the law frequently use biological categories and an unthinking preference for whatever is 'natural'.. "). 212. Polikoff rightly states that "[t]he law must develop a new definition of legal parent to solve [judicial] inconsistencies and uncertainties. A parent under this new definition would be the child's parent regardless of how many other parents the child has or what sex those parents are.", Polikoff, supra note 6, at 483. Schiff further comments that "the pre-conceptlon intentions of the parties should be respected," and "that enforcing pre-conception intentions may require the law to expand traditional notions of what constitutes a 'family,' to mirror more accurately the reality that children today may have more than two biological parents." Solomonic
Decisions, supranote 148, at 267.
213. The genetic component comes from genes of the two women. The biological component comes from the 'role played by the sperm casing that contains the DNA from the non-gestational mother. Finally, the intent component comes from the mutual intent of the two genetic mothers who desire to have the sperm donor play a role in the child's life as a father or other adult figure. 214. See McIntyre v. Crouch, 780 P.2d 239 (Or. C. App. 1989); see also supra notes 86-97 and accompanying text. 215. See supranotes 190-91 and accompanying text. 216. Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct. Common Pleas 1994).
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considers both genetics and birth, but places the birth subordinate to genetics, 2" a court considering a three-parent family should apply a two-tiered test that takes into account genetics and intent, but places intent over genetics. In this intent-genetics test, the first inquiry is whether all three parties intended and agreed to form a family and parent the child. ' 8 The intent should be manifested in a binding preconception agreement involving the two mothers and the sperm donor. The determination as to parentage, the number of parents and who those parents are, would realize the pre-conception intent of all three parties. The second inquiry into genetics would only be 9 triggered in the event of a dispute among any of the parties.21
V. CONCLUSION
TGIVF is just the latest in a growing number of reproductive technologies.'2 0 More specifically, TGIVF provides a legally secure family for lesbian mothers. For lesbian families that desire a twoparent nuclear family, TGIVF offers this option through the traditional means of birth. No second-parent adoptions or written co-parenting agreements are necessary. For lesbian families that desire a non-traditional, three-parent family, TGIVF offers this option, provided that courts meet the challenge of expanding what is considered a "real" family by the judicial system and, by extension, by society as a whole. Both of these TGIVF family forms represent a step forward in the struggle for recognition and protection of lesbian and gay families. Fighting for recognition of the three-parent TGIVF family is especially important because of the potential threat that TGIVF poses to the lesbian and gay community's work concerning family issues.22
217. See id.at 767 (explaining that although genetics and birth tests are used in determining parentage, the birth testis secondary to genetics). 218. Although the easier argument may be to advocate genetics over intent, due to the deference given to genetics by courts, it still is important to argue that fhmilies of intent be recognized. See infra Part V (discussing the lesbian and gay community's efforts to convince courts to recognize families of intent). 219. Suggesting that intent supersedes genetics attempts to further the struggles within the lesbian and gay community for legal recognition of families of intent. See infra Part V. However, the genetic tie between both mothers and the TGIVF child might guarantee an additional level of legal protection. 220. Seesupranote 11. 221. Since the 1980s, lesbian and gay families have fought legal battles to gain recognition and protection of their families. SeePolikoff, supranote 6, at 527-43 (discussing the work of the lesbian and gay community to gain recognition of lesbian and gay families). The families that lesbians and gay men fought for were not usually based on genetics. Id. On the contrary, these families were often families of intent, and they faced the challenge of convincing ajudiciary to consider intent, not only the historically recognized bases of biology and genetics, in deciding family law issues to recognize their families. Id.
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TGIVF'should not become the only judicially recognized form of lesbian families simply because it represents the genetic model that the courts are so comfortable in recognizing. TGIVF should represent only one of several ways by which to gain a legally recognized and protected family. TGIVF should not narrow the family options of lesbians by compelling those lesbians who want children to use TGIVF and no other method. TGIVF should stand with adoption, AfD by known or anonymous donor, and children from previous marriages or relationships as only one of the many recognized and protected family forms. To limit lesbian family options by requiring that TGIVF be used to trigger legal protections would be a step backwards in the struggle for the recognition of lesbian and gay families. Instead, TGIVF-created families should represent a stepping stone into the future of legally recognized, nontraditional families.
222. See Charo, supra note 140, at 266 (stating that "public policy and the law frequently use biological categories and an unthinking preference for whatever is 'natural'" in deciding family law issues).
NAKED FEMINISM: THE UNIONIZATION OF THE ADULT ENTERTAINMENT INDUSTRY

HOLLYJ. WILMET I. INTRODUCTION ................................................................................ 11. APPLICABLE LAWS ........................................................................... H. ANALYSIS ....................................................................................... 465 471 477
A. Control......................................................................................... B. Relative Investments ...................................................................... C. Skill andInitiative........................................................................ D. OpportunityforProfitandLoss ..................................................... E. Permanency of the Relationship...................................................... F. IntegralPartofEmployer's Business................................................ IV. PROFESSIONAL EXEMPTION ........................................................... V. CONCLUSION ..................................................................................
477 486 486 488 488 492 494 494
I. INTRODUCTION
With the power and membership of labor unions dtclining every year' and the popularity and revenue from adult entertainment
products and services rising at astronomical rates, 2 it is logical that
* HollyJ. Wilmet received a Bachelor's degree in political science and Russian studies at the University of Southern California and aJuris Doctorate from the Washington College of Law at American University. Wilmet is currently an associate with the Law Office of Joseph D. Gebhardt, P.C. in Washington, D.C., which concentrates its practice in labor employment discrimination and civil rights law. 1. Union membership has declined steadily since the 1960s and last year fell another 159,000 to 16.1 million members, just 14 percent of the work force. To replenish its diminishing ranks, the American Federation of Labor-Congress of Industrial Organizations (AFL.CIO) now vows to actively recruit women, who make up approximately 40% of the nation's trade union membership. See Kieran Murray, DwindlingLabor Unions RruLit Women, CHI. TMIt., Apr. 19, 1998, at 9. 2. Revenues from the legal adult entertainment industry are conservatively estimated at at least $10 billion a year and include home video sales and rentals at $3.1 billion a year;, adult content films and sexually oriented interactive games on CD-ROMs at $300 million a year; internet services; cable, satellite, and pay-per-view TV and "gentlemen's clubs," upscale strip
466
organized labor would, at some point, turn its attention to one of the last unorganized and disenfranchised groups of workers in America: adult entertainers Not only are adult entertainers appropriate for union organization,4 but they want to be organized.5 Nevertheless, organized labor has all but turned its back to the exotic dancers and pornographic movie actors seeking assistance in securing minimum wages, benefits and job security.6 But, unlike most workers who are
clubs offering tuxedoed doormen, valet parking, and stock options traded on NASDAQ, which bring in over $100,000 a week, not to mention revenues from the over 2,200 more traditional strip clubs, peep shows, X-rated theatres, and adult bookstores. See Anthony Flint, Skin Trade SpreadingAcrossU.S. High Tech Finds Boonfor$I061ndusty, BOSTON GLOBE, Dec. 1, 1996, atAl. 3. See generally Tom Kuntz, Dancers of a Tawdy World, United OrganizedLabors Red-Light Beacon, N.Y. TImES, Apr. 20,1997, at 7 (discussing the first union contract in the nation covering workers in the sex trade). 4. The mission of the AFL-CIO includes: "To aid workers in securing improved wages, hours, and working conditions.., to promote the organization of the unorganized into unions of their own choosing for mutual aid, protection and advancement.., to encourage all workers without regard to race, creed, color, sex, national origin, religion, age, disability, or sexual orientation to share equally in the full benefits of union organization." AFLCIO CONsr., art. II, Objects and Principles 3.4. 5. Exotic dancers' unionizing efforts date back td the 1940s when the American Guild of Variety Artists (AGVA) individually represented a large number of dancers through recognition agreements, casual engagement contracts, and standard contracts for minimum wages on a dancer-by-dancer, club-by-club basis. The relationship between AGVA and dancers ended abruptly in 1973 when a federal court first declared nightclub performers to be independent contractors. Telephone Interview with Paul Bales, Executive Director of AGVA, Southern California Chapter (Apr. 14,1998). Group organizing efforts started up again, without AGVA's assistance, in the early 1990s at Pacer's, a San Diego, Cal. strip club. See Martha Irvine, San Francisco Strippers Enjoy Union Coverage, LAS VGAS REv.J., May 12, 1997, at 1A. Those efforts were short-lived, however;, the dancers voted to decertify the union in 1993, due largely to managements misinformation, threats, and the hiring of dancers who would notjoin the union. Id.Se aso Wis. STATEJ., Sept. 4, 1993. In early 1996, strippers of the Lust Lady peep show in San Francisco, Cal. began organizing themselves in an effort to persuade club management to remove the one-way mirrors in customer booths that allowed customers to clandestinely photograph and videotape dancers, the product of which they feared would begin appearing on the Internet or on bootleg videos without dancer permission or financial gain. See Kuntz, supra note 3, at 7; see also Telephone Interview with "Jane,"Organizer/Dancer at the Lusty Lady (Apr. 10, 1998);Jane, NoJustice, No Pice (last modified June 12, 1997) <http://wv.bayswan.org/Edjust-piec.htnl> (explaining how strippers went from no recognition to union contact ratification). Since then, organizing efforts have begun in Hollywood, Cal.; Philadelphia, Pa.; Anchorage, Alaska; Massachusetts; Francisco, Cal.) 1998 (on file with author). 6. In what is generally representative of the working condition demands of most strippers, the Lusty Lady dancers' first collective bargaining agreement secured for them the right to be treated by management "vith dignity, respect, courtesy, and trust;" to be free from "an intimidating, offensive, or hostile work environment;" to 'just cause" dismissals which include "[e]mployer's opinion regarding employee sexiness while performing, customer interaction
and/or customer satisfaction
... .";
NewJersey; and some provinces within Canada. NEWSLErraa 10 (Exotic Dancers' Alliance, San
to one paid sick day; to be free from the arbitrary docking
of pay for missed meetings and sick days; to family/personal leave, provided that "the Eelmployer approves ... based on scheduling considerations, the employee states, in writing, when she expects to return, the dancer's appearance has not changed materially since she started her leave (i.e., employee has no additional tattoo or piercing... no significant weight gain or loss), employee returns to work within one week or stated return date;" to a guaranteed
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customarily approached by union organizers7 these adult entertainers have had to go door-to-door at the AFL-CIO in an effort to find a union willing to represent them;8 or, in the por actress's case, right to the door marked "Screen Actors' Guild."9 So why then, won't these labor
pay scale ranging from $12.00 per hour for new hires to $21.00 per hour for dancers employed 31 weeks, plus tips; extra pay for working in the Private Pleasures/talk dirty booth at 50% of gross receipts; to 10-minute breaks every 40 - 50 minutes on stage, and a 30-minute lunch break, provided that it is "taken before midnight, Sunday through Thursday, and before 1:00 a.m. Friday and Saturday"; to paid 15 minutes preparation time; to pay for dancers who undertake the "selecting, purchasing, and programming" of music; to time plus 1/10 pay for working New Year's Eve; to remove the one-way windows; to a grievance and arbitration procedures; and support staff [bouncers, cashiers, and janitors] to receive two 15-minute paid breaks and one unpaid 20-minute lunch. See Collective Bargaining Agreement (CBA) between Multivue, Inc., The Lusty Lady and Local 790, Service Employees International Union, and AFL-CIO, ratified Apr. 4,1997 (on file with author); see also Kuntz, supranote 3; Irvine,supranote 5. In their second CBA, ratified on April 4,1998, the benefits increased to include up to four paid sick days (based on hours worked) with no monetary penalty for additional sick days; time and one-half pay for New Year's Eve; a guaranteed pay scale of $22.00, which the employer can increase to $23.00 - 26.00 per hour;, and their biggest coup, a hiring cap on the number of dancers employed at a particular time. SeeJane, supra,note 5 (contract on file with author). 7. See Its the Naked Truth, TtuLSAWORLD, May 4,1997, availableat 1997 WL 3636315. 8. The Lusty Lady dancers, who sought out Service Employees International Union (SEIU), Local 790 for representation, initially encountered resistance from the union; but Local 790 had an informal affiliation with the Exotic Dancers' Alliance, a San Francisco-based advocacy group, and with their assistance, persuaded Local 790 to represent them. SeeJane, supra note 5. In the cases of dancers in Philadelphia and Anchorage the situation was much worse. At the Oakford Inn in the Philadelphia suburbs, the International Brotherhood of Teamsters, AFLCIO, initially agreed to represent the dancers, and had gone so far as to collect signature cards, petition the NLRB for approval, schedule an election, and begin a campaign, when they inexplicably abandoned the effort and the dancers, in mid-campaign. SeeJane, supra note 5. Unsurprisingly, the dancers failed to get enough votes to certify the union, and the effort failed. Not CoveredStrippersReject Chane to Form Union, MILWAUKMEJ. SENTINEL, Oct. 30,1997, at5. In Anchorage, the Alaska Exotic Dancers' Union, an independent union, sought out and initially affiliated with the Teamsters. The Teamsters agreed to represent the dancers of the Showboat Show Club, but they suddenly abandoned the dancers mid-campaign, warning organizers "not to call back." Telephone Interview with Tor Brawley, Alaska Exotic Dancers' Union, Dancer/Organizer of the Showboat Show Club (Apr. 21, 1998) [hereinafter Brawley Interview]. As a result of diligent efforts on the part of the dancers' organizer, the Showboat's dancers informally affiliated with the Hotel Employees Restaurant Employees, AFL-CIO. Id. 9. As its name suggests, the Screen Actors' Guild (SAG) is the major representative for movie actors, with a membership of nearly 90,000. Dade Hayes, Porn Actress Takes Case to NationalLabor Board uims: PerformerFilesComplaintAfter Getting Cold ShoulderFrom the Screen Actors GuiI4 LA. TMms, Nov. 8, 1997, at B5. It operates as a closed union, requiring applicants to either work on a project financed by a guild signatory (usually a major movie studio or production company), work three days (or collect three vouchers) as an extra on approved shows, or be a member of an affiliated entertainment union, prior to being eligible for membership. Id. In November 1996, Dalny Marga Valdes, star of more than 70 X-rated films, was denied Guild membership, and as a result filed charges with the National Labor Relations Board (NLRB) against SAG for discriminatory and arbitrary denial. Telephone Interview with attorney, NLRB, Southern Cal. Office (Apr. 4, 1998). Those charges were eventually dismissed by the NLRB for lack of cause. Id. Ms. Valdes seemingly did not meet SAG's standards for admission and now has little recourse because SAG, as a private organization, is entitled to set standards for admission so long as those standards are not constitutionally forbidden. Id. SAG is under no legal duty as a labor union to accept everyone seeking membership. Id.
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unions accept ready-organized contingents of strippers or por stars? Although one could speculate that labor's reluctance is due to the controversial and sexual nature of these professions,0 the industry's reputed ties to organized crime," fear of public backlash, or any combination thereof, the primary2 reason for labor's reluctance may actually be our nation's labor laws.' The National Labor Relations Act [hereinafter "NIRA"] grants most employees the right to organize and join unions.'3 It does not, however, grant those same rights to supervisors or independent contractors, and therein lies the distinction.1 4 By arbitrarily classifying their exotic & dancers as "independent contractors ' 5 rather than "employees" and
10. Organized labor's reaction to strippers is representative of the general public's, and includes such sentiments as "not taking [them] seriously" and assuming that exotic dancing/entertaining is "not an honest day's work." Wesley Pruden, AJungle Out There andIt's BoilingHo, WASH. TImES, May 6, 1997, atA4. The porn industry has taken a bold step to be heard above the roar of condemnation: lobbying. In a successful effort to defeat California state legislation that would have taxed pornographic materials, a 40-persofi porn star delegation went to the state capital and personally lobbied state representatives. The porn industry currently keeps a full-time lobbyist on payroll. See Mark Katches, Touch of Savvy Helps Pora IndustryAvoid Tax, ORANGE COUNTY REG.,June 22, 1997, availableat 1997 WL 7429157; se also, Free Speech Coalition, Celebrate Free Speech Lobbying Days 1998 (last modified Feb. 10, 1999) <http://www.freespeechcoalition.com/industry/legislation/celebrate.htm>. 11. Rumored affiliations between strip clubs and organized crime are numerous and notably include: ties tojack Ruby and the assassination ofJohn F. Kennedy (Ruby, a strip club owner, said he was not at the assassination because he was at his club dealing with union/Mafia problems), Report of the President's Commission on the Assassination of President John F. Kennedy [a.k.a., Warren Commission Report], Sept. 24, 1964; ownership of San Francisco strip clubs, including Mitchell Brothers O'Farrell Theatre, the club subject to a class-action suit discussed herein, Interview by Siobhan Brooks with Dawn Passar,Co-Founder of the Exotic Dancers' Alliance, (visited Apr. 18, 1999) <http://wiv.bayswan.org/sioblntvw.html>; "Scores," a highclass New York City strip club that is the focus of a recent extortion case brought by the government againstjohn Gotti, Jr., alleging that he demanded payments of both the dancers and the club owner, Greg B. Smith, JuniorsBrand New Jam: EnforcerImplicates Gotti in Extort Cases, N.Y. DAILY NEvs, Apr. 3, 1998, at 7; Showboat Show Club, the Anchorage, Alaska strip club, which is the subject of current unionizing efforts by dancers, rumored to be controlled by the Hell's Angels motorcycle gang, a rumor supported in the continued presence of leatherdad, armed Hell's Angels at management-union meetings. Brawley Interview, supranote 8. 12. See infra notes 13-18 andaccompanying texL 13. The National Labor Relations Act's (NLRA) mostimportantprovision, section 7, states: "Employees shall have the right to self-organization, to form,join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. 157 (1994). 14. Id. 15. Independent contractors are explicitly excluded from the NLRA's section 7 rights and other related provisions by section 2(3). 29 U.S.C. 152(3) (1994). This distinction is important because, although it is not widely known, exotic dancers are of one of two types: "house" dancers or "features." See Christine Fuentes, BoogieNights: The '70s Are Alive and Well at S.F.'s Gold Club, S.F. ExAMINER, Nov. 30, 1997, at M16. House dancers comprise the majority of exotic dancers and are the ones misclassified as independent contractors. Id. Generally, these women work on a continuing basis for one particular club; on exception they may alternate or simultaneously work for more than one club located in the same area and owned by the same enterprise. Id. However, it is rare for a dancer to work equal amounts of time for two more
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charging them fees to work' 6 rather than paying them wages, proprietors of strip clubs have, until recently, been able to stop
organizers in their tracks, thereby denying dancers the protection and benefits of collective action. The courts have become an active partner in the continuing financial exploitation of adult entertainers
(namely exotic dancers) by legally classifying various types of stage entertainers as independent contractors, and thus denying these workers protection of the labor laws enacted for their benefit.' That may be about to change, however. Several class action law suits, collectively involving over 5000 exotic dancers and thirty-one strip dubs, have been filed 9 in the state courts of California! and Nevada.' The
independently owned strip dubs. Thus, a multiple-employer situation would not arise during unionization and collective bargaining. Id. A "Feature" is hired by the dub for promotional purposes for a limited engagement. The feature is often a pornographic movie actress, magazine centerfold, or other sex industry celebrity, who will sign autographs or take photos with customers but rarely dance. See; eg., Fuentes, supra note 15, at M16. Those who do dance tend to be individually recognized and advertised as they travel a "circuit" of strip dubs (i.e., Los Angeles to San Francisco to Las Vegas). Id. When the clubs visited are owned by separate enterprises, the feature dancer is properly classified as an independent contractor, and would not be able tojoin a union. Id. An exception may arise, however, if the visited dubs are all owned by the same enterprise (which they often times are). Existing labor law permits union members, once properly part of a bargaining unit, to work at different job sites of a single employer, and in some cases of different employers, so long as each employer is party to a collective bargaining relationship with the union. See Combined Century Theatres, Inc. v. NLRB, 120 N.L.R.B. 1379 (1960), mod. and enforcda, 278 F.2d 306 (2d Cir. 1960) (stating that thirteen movie theatre companies are considered a single employer under the NLRA). 16. An outrageous industri)wide practice requires exotic dancers to pay their employing strip dub for each shift they work. This practice is believed to have originated at the Mitchell Brothers O'Farrell Theatre in the late 1980s, quickly spreading nationwide. Brooks, supra note 11. These fees, commonly called "stage fees," "house," "tip-out," "rent," "commission," "leases," etc., purport to be for the right of use of the owner's facilities as dancers ply their "independent trade." Brooks, supranote 11. The fees are often fixed, amounts, usually referred to as "stage fees," and range between $25-100 per shift. Alternatively, the fees are "tip-outs"- where the amount to be remitted to the dub is determined by a percentage of the dancer's daily earnings on "tips," the price customers pay dancers directly for private table or lap dances. NMVsLarr-t 8 (Exotic Dancers Alliance, San Francisco, Cal.) 1997 (on file with author). Atsome dubs, such as the Market Street Cinema and Century Theater in San Francisco, the fees reach amounts as high as $150 per shift. Id.; see Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154, 160 (Wash. 1997) (adjudicating where the Club charged dancers $65 or more for a six to eight hour shift). 17. Brooks, supranote 11. 18. See Associated Musicians of Greater Newark v. Bow & Arrow Manor, 206 NJ-RB. 581 (1973) (orchestra leader and strolling musicians of restaurant club considered independent contractors under NLRA); Harrah's Cub v. NLRB, 446 F.2d 471 (9th Cir. 1971) (casino house band members considered to be independent contactors under NLRA); Radio City Music Hall Corp. v. United States, 135 F.2d 715 (2d Cir. 1943), affmningSO F. Supp. 329 (S.D.N.Y. 1942) (holding movie theatre intermission stage performers are to be considered independent contractors). 19. Prior to publication of this article, the first of two Califomia cases, infra note 20, settled for $2.85 million, which included attorneys' fees and restitution.Julie N. Lynem, O7anrUSeue With 500 Daners: $12.85 Million Indudes Restitution, LegalFe, S. F. CHRoN.,July 10,1998, atA22. Because the settlement reportedly did not include any admission of liability, the claims and issues contained therein remain untested in the courts. It is, therefore, in this author's opinion, appropriate to discuss the issue as apendingmatter (with this disclaimer).
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legal basis of each suit is that strip dub proprietors have improperly classified their exotic dancers as independent contractors, rather than employees, in violation of state and federal wage and hour laws.22 Success on the merits would mean the dancers are legally entitled to back wages, reimbursement of stage fees, and other damages.! To win their cases, these women must demonstrate that their classification as independent contractors is a subterfuge (likely created by club owners to avoid employment-related costs and taxes);2 4 that the reality of their employment situation clearly demonstrates that club owners, not dancers, control the actual working conditions within the clubs; and that, accordingly, exotic dancers lack the business independence required for classification as independent contractors.2 This article explores the legal basis for the dancers' claims, from the treatment of employees and independent contractors under the NLRA, the Fair Labor Standards Act and California and Nevada state laws, to the corresponding federal and state courts' interpretations, tests, and
20. Two class-action lawsuits have been filed in California to date. In the first, Vickery v. Cinema Seven, Inc., 480 former exotic dancers of the O'Farrell Theatre-a unique multi-theme roomed strip dub in San Francisco, billed as "the adult Disneyland," and best known for on-stage and private seating live performances of sexual acts involving multiple dancers and/or sexual "props/toys"--sued the dub for backwages and reimbursement ofstage fees. &e Caren Benjamin, Stdppezs Expand Wage Lawsuit to Addidtonal Las Vegas Clubs, LAS VEGAS RE.J.,June 12,1997, at 5B. The dancers alleged that in 1988 the dub impermissibly changed the classification of its exotic dancers from employees to independent contractors, simultaneously stopping the payment of wages and implementing the practice of charging stage fees. Id. The dancers were granted class action starus in May 1995. Seeid. The second lawsuit, filed in Los Angeles Superior Court on December 9, 1998, pits five exotic dancers (seeking to represent a class that indudes all dancers employed at the dubs since 1994) against 23 strip dubs in the Southern California, San Fernando Valley region. See Peter Hardaub, Stripper Sue Clubs Over Work Status, LA DAILY NEws, Dec. 10, 1998, at N8. Here too, the dancers allege a "sham independent contractor arrangement" exists between the dubs and the dancers that work at them. Id. The dancers hope that this lawsuit will reward them with punitive damages and employee-status, and the benefits that accompany that status, such as hourly wages, disability insurance,job benefits, workers' compensation and overtime pay. Id. 21. In Roe v. Cheetah's Lounge, over 5000 former and present exotic dancers as a B(2) class, are suing for unpaid wages, overtime wages, reimbursement of monies paid to the dubs as "tip-outs, rent, commission, locker fees," reimbursement for costume/uniform expenses, and declaratory judgment prohibiting the future sharing of tips and gratuities, and requiring payment of minimum wages. Petitioner's First Amended Complaint for Class Action Relief at 8-13, Roe v. Cheetah's Lounge (D. Ct. Nev.) (No. A371500) (on file with author). 22. Benjamin, supranote 20, at 5B. 23. Benjamin, supranote 20, atSB. 24. The manner in which the principal handles any tax obligations is of no significance in determining employment status under California law. Letter from Miles Locker, Attorney for Cal. Labor Comm'n (Oct. 10,1997) (citing Toyota Motor Sales v. Superior Court, 220 Cal. App. 3d 864,877 (1990) ("An employer cannot change the status of an employee to one of an independent contractor by illegally requiring him to assume a burden which the law imposes directly on the employer.")) (on file with author). 25. SeeYard Bird, Inc. v. Virginia Employment Comm'n, 503 S.E. 2d 246, 253 (Va. Ct. App. 1998) (explaining that the club exercised actual or potential control over dancers, and dancers were not engaged in independently established businesses). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 470 1998-1999
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classification of exotic dancers. 26 The facts suggest that these cases would be successful under both California and Nevada law, as well as federal law.9 Furthermore, these lawsuits present the court with an
ideal opportunity to apply the Fair Labor Standards Act's model of

employee/independent contractor law to the adult entertainment industry. Such a definitive judicial application would not only benefit public policy and the working conditions of thousands of working women, but may also have possible persuasive value in any subsequent 2
NLRA action. 1
Assuming that judicial determination of exotic dancers' employee status on a class-wide basis would subsequently lead to an industry-wide change in the practice of treating dancers as independent contractors either voluntary, through further legal action, or by collective action on the part of dancers - this article explores the future of their unionization and the unavoidable implications for the feminist movement!9
I.APPLICABLE LAWS
The primary statute granting employees the right to organize and collectively bargain is the NLRA. Since 1935, despite subsequent amendments in 19473' and 1959, it has acted as the primary powerequalizing tool for employees.31 Not only does the NLRA grant
26. SeeinfralPartll. 27. S infraPartil.
28. It should be noted that the NLRB has complete autonomy in deciding cases arising under the NLRA, and therefore would not be bound by a trial court's determination of dancers' employee status. The Board may, however, be influenced by such action. See 9 U.S.C. 141 (1994) (stating the purpose of the Act to be to benefit public policy and working
conditions). 29. See infra Part II (discussing how the case of pornographic movie actors differs from that of exotic dancers in that their unionization issues turn more on the labor laws regarding union representation and membership, rather than wage and hour laws). Unfortunately, there is no legal precedent holding a union responsible to an individual for denied membership in that union. As a result, the unionizing efforts of pornographic movie actors will not be specifically discussed further in the context of this article. 30. In 1947, an and-Labor, Republican-led Congress amended the NLRAwith the Taft-Hartley Act,which was significant in two respects- First, it specifically excluded independent contractors from NLRA protection, a direct response to the Supreme Court's decision in NLRB v. Hearst Enterprises, 322 US. 111 (1944) (using the "economic factors" test ta.ka., "statutory purpose" test] and finding newsboys to be employees covered under the NLRA); second, the amendments permitted employers to actively campaign against unions during the pre-election campaign, provided that there was "no threat of reprisal, or force, or benefit." 31. As stated in the National Labor Relations Act Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours,
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employees collective action rights,'2 it also prevents employers (and unions) from impinging on those rights. In addition, the Act protects employers and unions from each other's activities by defining specific acts which constitute "unfair labor practices."' With broad coverage extending to all enterprises "affecting commerce,"4 few businesses are beyond the NLRA's reach*5 Enforcement power for the NLRA is vested in the National Labor Relations Board [hereinafter "Board"], an independent federal agency created by Congress in 1935 to specifically administer the NLRA through "two principal functions:" (1) to determine, through secretballot elections, the free democratic choice of employees whether they wish to be represented by a labor union in dealing with their employers, and if so, by which union; and (2) to prevent and remedy unlawful acts (a.k.a., unfair labor practices) by either employers or unions. 6 7 The Board "does not act upon its own motion in either function."" It proceeds only after petitions for elections or charges of unfair labor practices are filed with one of the fifty-two Board offices nationwide!8 In reviewing an order or decision issued by the Board, the reviewing federal court of appeals must give deference to the Board's findings of fact and accept them "if supported by substantial evidence on the record considered as a whole." 9 What constitutes "substantial evidence," however, is undefined in the Act!' This omission has resulted in the type of inconsistencies between Board and court decisions commonly found injudicial review of administrative action. The NLRA vaguely defines the term "employee" as "includ[ing] any
employee.., but shall not include ... any individual having the status
or other working conditions, and by restoring equality of bargaining power between employers and employees.
National Labor Relations Act, 29 U.S.C. 151 (1994).
32. See id (encouraging "the practice and procedure of collective bargaining"). 33. 29 US.C. 158(a) (1994) (indudingunfair practices by the employer).
34. 29 US.C. 141(b) (1994). 35. 29 U.S.C. 152(2) (3) (1994) (defining the term "employer"). Section 152(3) specifically excludes certain businesses from NLRA coverage. See 29 U.S.C. 152(3) (excluding employees such as agricultural laborers, domestic servants, employees hired by a parent or spouse, independent contractors, supervisors, or workers hired under the Railway Labor Act from NLRA
protections).
36. Dec. 11, 37. 38. 39.
a court).
See29 U.S.C. 153 (1994); Fact Sheet on the National LaborReations Board (last modified 1998) <http://www.nlrb.gov/facts.html>. 29 U.S.C. 153 (1994). 29 U.S.C. 153 (1994). 29 U.S.C. 160(f) (1994) (reviewing a final order of the NLRB subsequent to a petition of
40. Seeid. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 472 1998-1999
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Because the NLRA fails to define of an independent contractor."' "independent contractor," it has been left to the Board and the courts to define the parameters of the term. In the absence of statutory guidance, the Board and the courts have, since 1947, generally applied the common law respondeatsuperior"rightof control" testO Under the right of control approach, an
[i]ndependent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.""
In determining the right of control, "the test lies in the degrees to which the principal may intervene to control the details of the agent's performance."" The narrowness of this approach has resulted in mixed
treatment of adult entertainers' employment status in the courts.4
Cases arising under the Fair Labor Standards Act [hereinafter "FLSA"],4 however, have consistently held that "employee" and "independent contractor" should not be used in their common law 47 sense when used in federal social welfare legislation. respondeat superior Accordingly, the right of control test has usually been rejected in favor of the broader "economic reality' test, which encompasses elements of the control test and is indistinguishable from the c6mmon law test for
41. 29 U.S.C. 152(3) (1994). 42. See eg., Romero v. Shumate Constructors, 888 P.2d 940, 948 (N.M. Ct. App. 1994) (holding that, in common law, the right of control test applies to determine if an employer should be held vicariously liable). 43. Russell v. Torch Club, 97A.2d 196,197 (NJ.Super. 1953) (quotingReisman v.Public Serv. Corp., 82 N.JI 464, 466 (NJ. 1911); Errickson v. F.W. Schwlers.Jr., Co., 158 A. 482 (NJ.1932)). 44. Radio City Music Hall Corp. v. United States, 135 P.2d 715, 717 (2d Cir. 1943) (finding stage entertainers to be independent contractors); d, Hanson v. BCB, Inc. 754 P.2d 444, 446 (Idaho 1988) (stating that the right of control test includes: "1) direct evidence of the right; 2) method ofpayment; 3) furnishing major items of equipment [dancer's body held not to be piece of equipmentfor test's purpose]; 4) right to terminate the employment relationship"). 45. See Mylar, Inc. v. United States, 934 F. Supp. 1204, 1209 (W.D. Wash. 1996) (holding control test supports industry practice of treating exotic dancers as independent contractors). But se Matcovich v. Anglim, 134 F.2d 834, 836 (9th Cir.), ert denie4 320 U.S. 744 (194) (finding control exerted by dance hall proprietor created employer liability of Social Security taxes of employee dancers). Se gnmaayPalm Garden, Inc. v. Oregon Liquor Control Comm'n, 514 P.2d 888 (Or. Ct. App. 1973) (stating that under the control test, dancers were employees subjecting the dub to liability for violation of obscenity laws); Club Hubba Hubba v. United States, 239 F. Supp. 324 (D. Haw. 1965) (explaining that entertainers were employees for Social Security and unemployment taxes). 46. The purpose of the Fair Labor Standards Act is to preclude "laborconditions detrimental to the maintenance of minimum standards of living necessary for health, efficiency, and general weU-beingofworkers." 29 U.S.C. 202(a) (1994). 47. &ee Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947) (interpreting FLSA); United States v. Darby, 312 US. 100,125 (1941); Overnight Motor Tramnsp. Co. v. Missel, 316 U.S. 572, 577 (1942).
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agency8 Under the economic reality test,49 a court must consider several factors in evaluating whether an employer-employee or employerindependent contractor relationship exists between two parties: (1) the extent to which the services in question are an integral part of the "employer's" business; (2) the amount of the "employer's" investment in facilities and equipment; (3) the nature and degree of control retained or exercised by the "employer;," (4) the "employee's" opportunities for profit or loss; (5) the amount of skill, initiative, judgment, or foresight required for the success of the claimed independent enterprise; and (6) the permanency and duration of the
relationship.-" The Supreme Court has expressly approved of the application of the aforementioned factors to entertainment employment situationsO Thus, not surprisingly, courts asked to determine the employment status of exotic dancers by applying the "economic reality" test have overwhelmingly found the dancers to be employees under the FLSA, 2 the Social Security Act, and tax and worker's compensation laws.! California courts employ a similar analysis in determining employee status under state law 5 To date, this analysis has not been explicitly
48. S!e United States v. Silk, 331 U.S. 704, 712-19 (1947) (holding liability for employment taxes under Social Security Act requires evaluation of totality of circumstances in employment relationships); see alsoNationwide Mutual Ins. Co. v. Darden, 503 U.S. 318 (1992) (holding common law agency principles includes evaluation of economic factors and should be used to determine employment relationship when Congress provides only nominal definitions); Wilde v. County of Kandiyohi, 15 F.3d 103, 106 (8th Cir. 1993) (explaining that the agency approach is substantially the same as economic factors approach); Frankel v. Bally, 987 F.2d 86, 90 (2d Cir. 1993) (holding both approaches employ list offactors to determine whether employer controls work environment). 49. See Mitchell v. Crowley & Brother, 292 F.2d 105, 109 (5th Cir. 1961) (explaining the economic reality test). 50. Debra T. Landis, Annotation, Determinationof "Independent Contrador"and "Empkee"Status for PuPoesof 3(E)(1) of the FairLabor StandardsAct (29 US.C.A. 203 (E)(1)) 51 A.L.R. FED. 702 (1981). 51. SeeBartels v. Birmingham, 332 US. 126, 130 (1947) (approving the Sik test factors for use in entertainment employment cases). 52. See ag., Reich v. Circle C. Invs., Inc., 998 F.2d 324 (5th Cir. 1993) (applying economic reality test factors to find exotic dancer was employee under FLSA); 303 West 42nd St. Enter., Inc. v. IRS, 916 F. Supp. 349 (S.D.N.Y. 1996) (staring that private booth/peep show exotic dancers were employees for tax purposes over employer's contentions that a landlord/tenant relationship existed; signed contract for "lease" ofspace held not controlling); Reich v. Priba Corp., 890 F. Supp. 586 (N.D. Tex. 1995) (recognizing that an exotic dancer is an employee under FLSA); Pagones v. Industrial Accident Comm'n, 72 P.2d 888 (Cal. Dist. Ct. App. 1937) (holding that an exotic dancer was an employee covered under worker's compensation). 53. Under Califonialaw, whether or not a person isan "employee" depends on the degree of control that the purported employer has to exercise over that person; in other words, where the purported employer has the right to control the mode and manner of doing the work, an employeremployee relationship exists. Se CAL LAB. 2750 (citing Randolph v. Budget Rent-a-Car, 97 F.3d 319 (9th Cir. 1996)). An "independent contractor," by comparison, is "any person who renders service for aspecified result, under the control of his principal as to the result ofher work only and
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M applied to exotic dancers by the courts in a precedent-setting action.s It has, however, been the subject of several actions by the California 5
Labor Commission.
not as to the means by which such result is accomplished." The seminal California Supreme Court case regarding the test to determine employee/independent contractor status is Borello & Sons v. Department of Indus. Relations, 48 Cal. d 341 (Cal. 1989), where the court found migrant cucumber pickers who had signed a 60 day employment contract were, nonetheless, employees of the farm that hired them. The court, rejecting the common law "right ofcontrol" test, employed a multi-factored test, which weighed the following factors: (1) extent of the principal's right to control the manner in which the work is performed; (2) whether the person performing the services is engaged in a business or occupation distinct from that of the principal, orwhether the services rendered are part of the regular business of the principal; (8) whether the principal or the worker supplies the instrumentalities, tools, and the place in which the work is performed; (4) whether the person providing the service has an opportunity for profit or loss based on his managerial skill; (5) the degree of permanence of the working relationship; (6) whether the service requires special training and skills characteristic of licensed contractors;, (7) and whether or not the parties believe they are creating an employeremployee relationship. S, id. at351. Compare these factors with the 20 factors the Internal Revenue Service uses to determine whether a worker is an employee or independent contractor for tax withholding purposes under W2 or 1099, respectively: (1) making a profit or loss; (2) work on specific premises; (3) offering services to general public; (4) right to fire; (5) furnishing tools and materials; (6) method of payment; (7) working for more than one firm; (8) continuing relationship; (9) investment in equipment or facilities; (10) business or travel expenses; (II) right to quit; (12) instructions;, (13) sequence of work; (14) training; (15) services performed personally, (16) hiring assistants, (17) set working hours; (18) working fuUl-timt; (19) oral or written reports; (20) integration into business. RS 20 FadorControlTest (visited Feb. 25,1999) <http://www.nindsrc.com/2rues_body.html>. 54. The exception to this statement is Williams v. Bijou Group Inc., No. 969116 (S.F. Sup. Ct. 1995). What began as a wage and hour case brought by an exotic dancer of the Market Street Cinema, San Francisco, Cal., and the California Labor Commission, turned into a contentious bankruptcy action upon the issuance of a tentative ruling by the court, which found that (1) Plaintiffwas an employee of Defendant not an independent contractor, and thus was entitled to payment of minimum wage; (2) Defendant's failure to pay minimum wage violated California law; (3) Defendantes collection of stage fees violated California law, which prohibits an employer from charging its employee a fee to work; (4) the independent contractor agreement that Plaintiff signed was a fiction and a subterfuge, thus rendering the agreementvoid; (5) Defendant's bad faith failure to pay minimum wage compelled imposition of liquidated damages;, (6) Plaintiff was entitled to costs, including reasonable attorney's fees; (7) Plaintiff was entitled to prejudgment interest on the unpaid wages. Williams v. Bijou Group, No. 969116, Tentative Ruling (filed Oct. 5, 1995) (on file with author). Three years foliowing the court's ruling, the club honored the judgment and paid Ms. Williams the monies due to her. Telephone Interview with Miles Locker, Attorney for Cal. Labor Comm'n (July 14,1998). 55. The California Labor Commission investigates charges of discriminatory employer conduct, wage and hour violations. In March 1996, the Labor Commission decided its first exotic dancer case in favor of the dancer who was arbitrarily fired for refusing to sign an independent contractor agreement with the Crazy Horse strip dub. The dancer was awarded back wages and reimbursement of stage fees. See NEaWs 9 (Exotic Dancers' Alliance, San Francisco, Cal.) 1997 (on file with author); seealsoLocker,supranote 24. Applying the Borellofactors, seesupranote 53, the Labor Commission determined that the degree of control exercised by strip club management was more like that of an employer-employee, not employer-independent contractor relationship. Such factors included management requirement that dancers schedule particular shifts to work or be available to work; management decisions regarding dance rotation; management control over what a dancer wears or does not wear (i.e., must be nude by certain time), or what the dancer may look like (i.e., lose weight, have breast enhancement surgery, no tattoos, piercings, etc.), or to what music she may dance; managementrequired minimum or maximum charges for private dances; management prohibition against dancers leaving premises during shift; essentialness of dancers' services to function and purpose of
476
Use of the FLSA to determine employee status, however, creates a
potential problem for exotic dancers under that act's "professional". exemption.r The consequence of this exemption, should it apply, is that exotic dancers would be held to be employees, but the employing clubs would not be required to comply with minimum wage or working
hours requirements. The professional exemption in this case would affect only the dancers' ability to collect a minimum wage and overtime pay, not their right to collectively act and organize under the NTRA. Since "professional" is undefined in the LSA, the courts may rely on regulations promulgated pursuant to express legislative directive 7
Hence, two tests are available under the regulation that defines professional employees in a recognized field of artistic endeavor.! The argument that an exotic dancer is an exempted professional fails
for at least two reasons. First, most dancers receive their income
exclusively from customer tips, not employer-paid wages.!9 Such income has been held inapplicable to meet the preliminary burden of the tests:
the minimum wage liability requirement. 6 Second, exotic dancers
seeking artistic recognition and legitimacy for their profession are

caught in a catch-22 because vindicating their rights under the FLSA
necessarily means repudiating the artistic integrity of their profession." While finding that exotic dancers are entitled to minimum wage
adult entertainment club; dancer's performance of labor/services at a particularjob site; majority of dancer's income is from a particular strip dub; absence of opportunity for profit or loss based on dancer's managerial skill. Exotic Dancers' Alliance, InsideFocus '98 (last modified May 16, 1998) <http://wv.bayswan.org/InsdFocus3.html>. 56. The minimum wage and overtime provisions of the FLSA do not apply to "any employees employed in a bona fide executive, administrative, or professional capacity...." 29 U.S.C. 213(a)(1) (1994). 57. See &.,Chevron U.SA v. National Resources Defense Council, Inc., 467 U.S. 837, 842 (1984) (holding that if the statute is silent or ambiguous with respect to a specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute). 58. The "short test" requires the exemption of an employee who is paid $250 or more per week, and "whose primary duty consists of... work requiring invention, imagination, or talent in a recognized field of artistic endeavor." Harrell v. Diamond A Enter., Inc., 992 F. Supp. 1343, 1355 (MD. Fla. 1997) (quoting 29 C.F.R. 541.3 (1994)). Alternatively, the "long test" requires only $170 wages per week, but burdens the employer with showing that the job requires "innovation, imagination, or talent" in a recognized field of artistic endeavor, that the employee's work is "original and creative in character," that it requires the "consistent exercise of discretion and judgment," and that it "is predominately intellectual and varied in character." al at 1357. 59. See Reich v. ABC/York-Estes Corp., No. 91-C-6265, 1997 WI 264379, at *6 (N.D. I11. 1997) (holding that dancers received tips from customers through the collection of "dance fees"); see also Harrell 992 F. Supp. at 1346 (noting that the exotic dancer plaintiff relied entirely on tips and dance fees compensation). 60. See id at 12; see asoABCYoh-Etsr, 1997 WI 264379 at *7 (money earned by exotic dancers are tips and cannot be used to off-set employer's obligation to pay minimum wages). 61. See 29 C.F.R. 541.3 (1998) (stating that professional work is exempted from the provisions of FLSA if the worker satisfies a minimum income level and the work is original and creative in a recognized field ofartistic endeavor).
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requirements, the courts have determined that exotic dancing does not require the type of "innovation, imagination, and talent" contemplated by the regulation. 62 Finally, although courts have yet to proceed so far into the tests, it can be reasonably argued, that exotic dancing would not qualify as a "recognized field of artistic endeavor, " 63 and thus, would also fail the professional exemption requirements." 6 An illustrative case is Harrellv. DiamondA Enterpises,Ina' In Harrell, not only did the court hold the exotic dancer was an employee of the strip club under the economic factors test 6 but it also soundly rejected the club's contention that the dancer was, alternatively, an exempted professional employee under the FSLA.Y7 It is this comprehensive and recent analysis of the employment relationship between stripper and strip club that offers the best framework for analysis of the
aforementioned class action lawsuits. III. ANALYSIS A. Control The first factor to be considered under the economic factors/reality test is the degree of control that strip club proprietors exert over the working conditions of their exotic dancers.69 In Harrel4 the court found substantial club control when: 1) the club established a set fee dancers
had to charge for table dances; 2) each dancer was obhgated to
62. See Hwreg 992 F. Supp. at 1355-57 (stating that work product being purchased by customers is notdaning skill but dancer's ability to titillate male customers). The Hanmlcase was a case of first impression to the court because previous exotic club defendants had not attempted to invoke the 541.3 exclusion from minimum wage requirements. Id.at 1354. 63. See id. at 1354 n.13 (quoting a Department of Labor interpretation of 541.3) (emphasis added). 64. See i at 1356-57 (refusing to construe broadly the term "dancer" to include erotic dancing for consideration of artistic integrity). The court tried to balance its decision to grant the plaintiffrecovery of unpaid minimum wages under the FLSA with a public policy distinction that erotic dancing is not "dancing" as contemplated under 541.3. Id. at 1357. In so doing, the court held that there was no evidence before it to indicate that the plaintiff was doing anything more than "moving." Id. 65. 992 F. Supp. 1343 (M.D. ha. 1997). 66. See i at 1348-54 (analyzing the plaintiff's working conditions to determine if an employer-employee relationship existed). After analyzing each of the seven parts of the FLSA test for employment, the court held that an employment relationship existed between the plaintiff and defendant. Id. at 1353-54. 67. See U/at 1354-56 (analyzing the nature of the plaintiffs work to determine if the plaintiff met the requirements for the professional exemption). 68. See id. at 1348 (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947) (holding that employment will be determined if an employee is "economically dependent upon the alleged employer")). In determining economic dependence, the court must analyze six independent factors. Id. 69. See id. at 1348-5.
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perform on center stage during her shift; 3) the club required the dancer to purchase and wear costumes consisting of high heeled shoes and provocative lingerie; 4) the club employed bouncers to protect the dancers from unruly customers; 5) the club controlled advertising, club atmosphere, and customer volume, thereby making the dancer completely dependent upon the club for her earnings.! Although the exotic dancer exercised discretion in scheduling her hours, the selection of music to be played, the number of table dances she performed, and was not required to report her earnings or. undergo training,7' the court, nonetheless, concluded that the club exerted control over the "meaningful" parts of the business?2 Each class action lawsuit contains similar factors weighing in favor of the strip clubs' exercise of control over the dancers.7 The first factor indicative of dub control is mandatory scheduling of work shifts.!4 Strip clubs usually schedule two 6-8 hour shifts: a day shift for the lunch crowd, and a busier and more profitable, but more competitive, night shift 75 Dancers are often required to work a minimum number of hours per shift, per week.76 Dancers unable to work a scheduled shift, even in cases of illness, often must find substitute dancers who bear a physical resemblance in size, shape, and coloring, to cover that shift.7 Dancers failing to find such suitable substitutes risk club-imposed penalties ranging from removal of the dancer from a popular shift, scheduling for less profitable shifts, arbitrary fines, or even termination 8 Unlike most others around the country, strip clubs in
70. SeeHarrellv. DiamondA. Enter., Inc. 992 F. Supp. 1343,1349-50 (M.D. Ea. 1997). 71. See id. (detailing the areas where the exotic dancers had discretion in their positions within the club). 72. The court held that the correct analysis of the case required the court to determine whether the amount of discretion provided to the dancers was symptomatic of economic independence or if it merely covered up economic dependence. Id. at 1349. The court finally held that the control of the dub over the dancers was dispositive of the argument that the dancers were independent contractors. Id. at 1350. 73. SeeReich v. Circle C. Invs., 998 F.2d 224,327 (5th Cir. 1993). 74. See id. (finding that dancers were required to comply with mandatory work schedules that the club compiled based upon the days each dancer wished to work); see alsoJeffcoat v. State Dep't of Labor, 732 P.2d 1073, 1075 (Alaska 1987) (noting that the dancers were hired to work six days a week, eight hours a day, for a six week period). 75. Cf. Carrie Benson Fischer, Employee Rights in Sex Work: The Strugglefor Dancers' Rights as Employee, 14 LAW & INEQ.J. 521, 534 n.75 (1996) (stating that some clubs schedule shifts for
dancers with a break during slow periods to maximize hours while minimizing compensation). 76. SeeJeffcoat, 732 P.2d at 1075 (observing that the club hired dancers to perform an eight hourshift). 77. Jane, supranote 5.
78. See Reh,'998 F.2d at 327 (finding that the use of fines to enforce work attendance where
dancers missed scheduled shifts to be indicative ofemployer-like control).

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Las Vegas are open for business twenty-four hours a day." In order to guarantee that a larg6 number of dancers are present at all hours, these clubs are more rigid and controlling in the scheduling of dancers than clubs that are not open all day long." Clubs also use the schedule as an arbitrary means of control by rewarding "pef" dancers with numerous "choice" hours, while punishing disfavored dancers and those who violate the dub's unwritten and often unarticulated rules by scheduling them fewer hours or even no hours at all. 8' The arbitrariness by which hours are assigned perpetuates the economic uncertainty among dancers created by the tips-only compensation system. If an exotic dancer was truly an independent contractor, as the defendant in Harrell argued, she would likely have the freedom to work at whatever times, on whichever days, and for however long she wanted, so long as she completed the piece of 82 work for which she contracted with the dub. This raises one of the most obvious, yet unaddressed questions regarding the independent contractor/employee distinction: What is the work for which the exotic dancer is being hired?' Furthermore, how is satisfaction to be measured? 84 The inability to easily answer these questions demonstrates the improbability of an exotic dancer being an independent contractor. A second factor indicating employer control over the dancers' working conditions is mandatory prices for table/lap dances.5 A true independent contractor would be free to charge any price she wanted for a private dance, subject only to the laws of supply and demand 8
79. See Olympic Garden Topless Cabaret (visited Feb. 23, 1999) <http://www.ogcabaret.com> (advertising the Las Vegas dub as "open 24 hours"); Tally-Ho Stylish Entertainment (visited Nude Feb. 23, 1999) <http://wwivw.tall)ho.com> (promoting the Las Vegas club open 24 hours a day and 7 days a week). But see Wild J's (visited Feb. 23, 1999) <http://wwv.wvildj.com/ dubinfo.htmI> (advertising limited hours). 80. Most dubs involved in the Las Vegas lawsuit schedule over 200 dancers per shift. Telephone Interviewwith Ara Shirinian, Esq., Plaintiff' Counsel (Apr. 16,1998). 81. SeeJane, supranote 5 (reporting that dancers at San Francisco's Lusty Lady Club were subjected to favoritism and arbitrary company poliies and rules). 82. See American Guild of Music Artists, 157 N.LR.B. 735, 738-39 (1966) (finding that dancers had contracted with a theatre to perform a specified number of performances for a specific fee). Accordingly, the court held the dancers to be independent contractors. Id. 83. See id. 738-39 (finding that the specific piece of work the dancers were required to at perform was a set number of performances). 84. Currently, customers "dissatisfied" with their private dances may obtain refunds either from the dub, who in turn fines the dancer for failing to satisfy the "needs" of the patron, or directly out of the dancer's pocket. Jane, supranote 5. 85. See Harrell v. Diamond A Enter., Inc., 992 F. Supp. 1343, 1346 (M.D. Fla. 1997) (reporting that customers paid asetfee of five dollars or ten dollars for a table dance). 86. SeeThomasJ. Campbell, LaborLaw & Economks, 38 STAN.L REV. 991, 1004-05 (1986) (explaining that the amount of the supply of a good or service, as well as the demand for it, will
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By setting prices, the strip clubs take away one of the most important
element of business independence in a free-market system, and effectively converts the dancer from an independent contractor into an employee.87 In Las Vegas, private dance prices are generally set by the strip
clubs;s' however, at the Mitchell Brothers O'Farrell Theatre in San
Harrellstandards, 90 while the San Francisco dancers may notY The performance of mandatory stage dances provides free dances for 92 all patrons. Such mandatory performances preclude dancers from 93 earning money for private dances. In many of the Las Vegas clubs, dancers must rotate on raised stages for the traditional striptease/erotic dances, thereby meeting the Harrellrequirements for employer control. Mitchell Brothers in San Francisco, requires the dancers to perform on various types of stages and in various settings.4 In addition, the dancers
affect the market price for that good or service, irrespective of the true value of that good or service). 87. See Harrell, 992 F. Supp. at 1349 (indicating that the dub's control over the price of table dances was a significant form of control over the dancers). 88. See id., 992 F. Supp. at 1346. 89. Price of individual performances at Mitchell Brothers varies quite dramatically, and often depends upon such factors as the length and type of act performed, the number of dancers involved, the number and type of sexual props used, costing the customer ten dollars to over one hundred dollars per dance, per dancer. Interview with "John Doe," patron of O'Farrell Theatre, in Washington, DC (Apr. 13,1998). 90. See Harre4 992 F. Supp at 1348-54 (analyzing the various standards that distinguish independent contractors from employees). 91. The San Francisco dancers at O'Farrell Theatre differ from the Las Vegas dancers enough to make the determination of employment uncertain. For example, the San Francisco dancers exercise more control over the compensation for private dances than have dancers in previous cases. See id. at 1346 (finding that the dub regulated the prices assessed for private dances). Accordingly, the San Francisco dancers may be independent contractors under the Harrelcourt'sanalysis. 92. See id. (noting that the public dances were paid for by the dub from a flat weekly rate to the dancers). The obvious implication of requiring public dances was to provide free entertainment to entice male patrons in the dub, while the other dancers solicited drinks and dances from the patrons. Id. 93. See id. (noting that dancers received most of their money frrm private dances, not the public dances the club required them to perform). 94. Mitchell Brothers O'Farrell Theatre has five different theme rooms: the "New York live" room, in which each dancer performs "individually in her own personal style" (e.g., "little girl next door," "glamorous showgirl," "sexy dominatrix") for two songs that leave her completely nude; the "Green Door Show," billed as the "most explicit" in the dub, in which a round stage with numerous dancers rises from the floor to eye-level for an "orgy-style show" several times daily, after which each pair of dancers is available for a private showing at the patron's command; "Private Cabanas," which offer one-on-one shows where the patron "controls the action;" the "Ultra Room," a "fast-action, peep-show style" domination scene, after which the dancer will visit private, curtained customer booths; and finally, the "Kopenhagen," a
Francisco, dancers engaged in "specialty dances" set their own prices, surreptitiously alluded to as "gifts" by the dancers.89 As a result of set prices for private dances, the Las Vegas exotic dancers clearly satisfy the
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must get on their hands and knees, become completely nude, and perform interactively as a group what is commonly called a "daisy chain. 9 5 Strip dub proprietors would be hard pressed to find a court that would not find this demeaning, unsafe sexual requirement indicative of employer control. The fourth factor indicating employer control is mandatory costumes/uniforms.6 In Las Vegas strip clubs, exotic dancers are required to purchase and dry clean their own uniforms at their own 9 expense,97 in violation of both Harrell and Nevada state law The O'Farrell Theatre dancers must not only purchase lingerie and costumes at their own expense, but niust buy sexual props to use in their performances.9, Again, this factor indicates employer-like control over the dancers' working conditions, rather than an independent contractor relationship. Additionally, strip clubs, as in Harrell,are responsible for controlling unruly customers, as well as advertising, club atmosphere, and customer volume' t o These factors directly affect an exotic dancer's opportunity 0 for profit and increase her economic dependence on the dub." Many strip clubs also charge an admission fee, which while increasing dub profits may decrease a dancer's ability to profit if the fee operates to leave customers with less disposable income to spend on dances and 02 drinks.
completely darkened room where two dancers "perform their theme show," illuminated only by the airplane controller-like flashlights held by the customers. Mitchell Brothers, A Mini Theatre Tour (visited onApr. 9,1999) <http://www.ofarrelwelfiame.html>. 95. &eJennifer Bryce, The Daisy Chain, The Autobiography of an Adtiis NBEw m 8 1997 (visited Apr. 16,1999) <wv.bayswan.org/EdaNews.8.html#Inside Focus-DaisyChain>. 96. The requirement that a dancer be topless or nude at a certain time during her dance (i.e., by the end of the first song) is arguably analogous to the requirement that she wear a specific uniform, and therefore indicative of employer control. 97. See Nina Martin, Dancers Cope Wlth the Latest Labor Trend: MakingErployees Independent Contractors, CAL. LAW.,July 1995, at 50,52. 98. &eVickery v. Cinema Seven, Inc., No. 959610 (Cal. Super. Ct.),f ed Mar. 24,1994; Roe v. Cheetah Lounge, No. A371500, FstAmended Complaint for Class Action Relief (D. Ct. Nev.),fid May 29, 1997 at 11-12 (requiring employees to launder uniforms by special processes (i.e., dry deaning) violates Nevada law) (on file with author) (citing NEv. REV. SrAT. 608.165 (1997) (placing the duty on the employers to dean uniforms or accessories without cost to its employees). 99. Martin, supranote 97, at 52. 100. SeeHarrell, 992 F. Supp. at 1349. 101. Seeid. 102. SeeJudith Lynne Hanna, Undreasingthe FtstAmendment and Corsettingthe StipteaseDancer, 42 DRAMA REv. 6 (June 22, 1998). Mitchell Brothers O'Farrell Theatre, for example, charges a fee of approximately thirty dollars for admission, making it one of the steepest fees in the nation. Other than fees for dances, some dubs require dancers to sell drinks as away of making money. In return for having a patron buy the dancer a drink at an inflated price, the dancer receives a drink voucher. The voucher entitles her to a remittance or commission. Often, the commission is reduced if a customer pays by credit card, rather than in cash. Ifa dancer fails to meet the required drink quota, she may either be fined or fired. Brawley Interview, supranote 8. Other dubs have expanded the use
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Finally, mandatory tip-outs and stage fees '" not only indicate employer control, but also violate the FLSA.'" In addition, mandatory tip-outs and stage fees constitute an independent cause of action under both California' and Nevada' 6 law. Exotic dancers in Las Vegas are compelled to pay their employers anywhere from $25 to $50 per shift,' and $75 per shift when a convention is in town.' 3 In San Francisco, strip club dancers commonly pay over $100 per shift, excluding the percentage of tips which must be shared with the disc jockey, bartenders, wait staflf, and management,10 all of whom are usually paid by the club as wage-earning employees. Dancers at Mitchell Brothers O'Farrell Theatre are forced to "pony up" a month's worth of stage fees prior to working their first shift.'1
of quota sales to include other products. For example, the Gold Club in San Francisco, California requires dancers to purchase cigars from the club and sell them to customers. If customers fail to purchase any or all of the cigars, the dancer still must pay the club for them. NEIVSLErr 9 (Exotic Dancers' Alliance, San Francisco, Cal.), 1997 (on file with author). 103. See Hanna, .supranote 102, at 22 (stating that the "stage fee" is a fee the dancer pays to the club for the performance space, and "tip outs" are tips paid out of the dancers earnings to the discjockey, bartender, and management). 104. Fair Labor Standards Act of 1938, as amende 29 U-S.C. 201 (1997). See Reich v. PFriba Corp., 890 F. Supp. 586,595 (ND. Tex. 1995) (holding that an employer's collection of tip-out fees violates the FLSA because the deduction reduces entertainers' wages to below the minimum wage). 105. See CAL. LAB. CODE 351 (West 1989) (prohibiting an employer to directly or indirectly claim any part of employees tips). While workers can be compelled to share tips with other employees, they cannot be forced to give tips to employers in any form, nor can tips be credited against the minimum wage thatthe employer mustpay. &eid. Unfortunately, some employers have begun to circumvent this restriction by paying dancers a
minimum wage, but imposing dance "quotas" on the dancers. This means that the clubs can require dancers to sell a minimum number of lapdances, the proceeds of which must be relinquished to the club. Dancers failing to meet this quota can be fired. SeeJane, supra note 5.
The Bijou Group, after having been found liable for wage and hour violations, has responded to
fee. Jane, NoJustice NoPiec4 supranote 5, at 12. The GreatAlaska Bush Company, in Anchorage, Alaska, instituted a similar practice whereby dancers are paid $4.75 per hour by the club, but must pay the club $6 for every hour they work, in addition to tipping the bartenders and DJ. See Melissa, WorkingaBroad,DANzoNE, Sept. 1995, at4. 106. Nevada law prohibits both the sharing of tips and gratuities by employees with their employers, while also prohibiting confiscation or conversion by an employer of tips and gratuities earned by their employees. SeeNE.. REv. SrAT. 608.160 (1997). 107. Shirinian, supranote 80. 108. In 1997 alone, Las Vegas hosted 3,749 conventions. Telephone Interview with Kevin Bagger, Las Vegas Convention and Business Authority, Research and Statistics Office (Oct. 19,
legal action by changing its stage fee practice. See Bijou Group, No. 969116 (S.F. Sup. Ct. 1995). It has implemented a complicated and, to date, legally unchallenged practice of charging the dancers $150 per shift, $42 of which is returned to the dancers in "paychecks," thus resulting in a $108 stage
1998). This suggests that the $75 fee is in place more often than not. 109. SeeTelephone Interview withJohanna Breyer, Co-founder, Exotic Dancers' Alliance (Apr.
21, 1998); see also Martha Irvine, Strippers Get Ground-breakingLaborPat, LA DAILY NEvS, Apr. 12, 1997, at Wll (stating that "a lot of women are told they have to make $150 to $200 in four hours just to meet cash quotas") ;Jane, supranote 5. 110. Hanna, supranote 102, at 22. 111. Jane, supra note 5, at 13. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 482 1998-1999
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Considering that the average dub-mandated price for a table dance ranges from $5 to $30 per dance,"' it becomes dear how clubs financially exploit their exotic dancers:" ' each dancer must dance anywhere from two to fifteen dances in addition to the free stage dances she must perform just to break even for the night. Compounding this situation is the fact that many dubs take an initial cut of the fee a dancer earns for doing private dances." 4 Thus, the dancer may actually earn only one-half to two-thirds of a dance fee prior to the pay out of any stage fees. Even worse, dancers must pay the tip-out fees regardless of whether they make any money during their shift. As a result, it is common for dancers to be forced into borrowing money from other dancers, or to use their own money to cover the stage fee on a slow shift. In some cases, the dancers may even "owe" dub management, payable on their next shift. Thus, a dancer may potentially lose money by going to 115 work. More importantly, the practice of charging stage fees, in combination with the dissatisfaction refund policy, 6 arguably leads to the creation of a slippery slope towards prostitution, whereby the t selling of sexual imagery quickly becomes the selling of actual sex.1 7 This occurs when customers demand more and more explicit performances from dancers who, already struggling to pay the rocketing stage fees, must submit to market pressures until brothellike services become the norm, thereby transforming a legal profession into an illegal one."' When this happens, a dancer's
112. For example, in Austin, Texas, table dances at the nude dub are $20 (no touching of dancers allowed), and $30 (light touching permitted) at the topless dubs. Dancers must dance on several stages 2-3 times per 6-8 hour shift for songsets. Daily registration fees, taxes, and tipouts cost dancers $30-50 per shift. SeeTeresa Dulce, Workinga Broad, DANzINEJune/July 1996, at 3. At the Great Alaskan Bush Company in Eugene, Oregon, table dances are $5 when performed topless $10 for a nude version. Se Emplkiymt inEugene DAzINE,Jan. 1996, atS. 113. Irvine, supranote S, atNll. 114. The D~j! Vu chain owns and operates four strip dubs in San Francisco, California. The practice at each is for the dancer to pay the dub $9 for every $20 nude lap dance she sells, in addition to a $10 "ladies' drink fee," which must be paid whether or not the dancer actually drinks anything. Jane, supra note 5, at 11. Compounding the dancers' frustration at paying these fees is the chain's heavy-handed practice of having someone spy on the dancers by walking around the dubs, secretly recording the number of dances each dancer sells. Id. 115. Hanna, supranote 102, at22. 116. Under this policy, if a patron is not satisfied, the dancer must return tips without argument lArtin, supranote 98, at 52. 117. See ROBERT C. ALLEN, HORRiBLE PRETTINESS: BURLESQUE AND AMmEcAN CULTURE 50
(1991).
118. SwJane, supra note 5, at 11; Exotic Dancers' Alliance, InsideFocus '98, (last modified May 16,1998) <http://wwv.bayswan.org/InsdFocus2.html>.
484
"hustle" becomes "solicitation," 9 customers become 'Johns," strip clubs become "bordellos," and' club owners become "pimps." Although many strip clubs (and local ordinances) forbid any physical contact between dancers and patrons, it is not uncommon for some strip clubs to condone, and even encourage, such behavior in their clubs, often providing customers with private V.I.P. rooms, cubicles, couches and beds on which their dancers perform.' Not only does
this perpetuate many societal stereotypes about exotic dancers, it also

highlights the power imbalance inherent in the existing employment structure, as well as the immediate need for legal intervention or collective action to remedy that power differential. Financial arrangements, such as stage fees and employee out-ofpocket refunds, are virtually unheard of in any other industry, and arguably go unchecked in the adult entertainment business for any number of reasons including: (1) many exotic dancers operate with a certain amount of secrecy about what they do, not telling family and friends because of society's disapproval and misunderstanding of exotic dancing, or for safety and privacy reasons; thus there is no public outcry at the practice; (2) most club proprietors are men, while the majority of adult entertainers are women, 2 ' who have been culturally indoctrinated by an intolerant and unsupportive society to accept such power differentials and sexist treatment without complaint;'2 (3) many exotic dancers are simply unaware of their legal rights and protections, and thus allow the practice to continue unchallenged and unreported;rs and, finally (4) even if a single dancer did take a stand, without the benefit of collective action she
119. Many states outlaw the public performance of actual or simulated sexual acts. In Oregon, for example, it is unlawful for any person to knowingly engage in sexual contact (defined as "any touching of the sexual organs or other intimate parts of a person not manied to the actorforthe purpose of arousing or gratifying the sexual desire of either party") (emphasis added) or sadomasochistic acts (defined vaguely as "flagellation or torture by [or) upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed" in a live public show). See OR.REV. STAT. 167.062 (1997); see also Teresa Dulce, 411 on T-n-A, DANZINE, Sept. 1995, at 2 (quoting OR. REv. STAT. 167.062). This type of law would apply to two dancers who, during a performance, touch each other physically or with a sexual toy or prop. Id. at 3. Furthermore, when a customer pays for the performance, or if the dancers agree to do such a performance for money, the act becomes solicitation of prostitution. Id. 120. Mitchell Brothers, which bluntly advertises "See It, Touch It, Taste It," "rents" to its dancers private rooms, equipped with beds to dance on, for $150 during the day shift, and $250 for the night shift. SeeJane, supranote 5, at 13; see alsoIrvine, supranote 109, at Nil. 121. Martin, supra note 99, at 84. 122. See Heidi Machen, Women's Work: Attitudes, Regulation, and Lack of Power Within the Sex Industry, 7 HASTINGSWOMEN'S LJ. 177,177-78 (1996). 123. Id. at 183. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 484 1998-1999
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would almost certainly be subject to retaliation by the club, or be branded a trouble-maker and subjected to peer pressure from other
dancers.' 24
Many of the factors contributing to the continuous financial and physical exploitation of exotic dancers can be changed only by altering our societal views towards the sex industry. Until society openly recognizes the adult entertainment industry as a collection of legitimate, profitable, and necessary professions,as the struggle of the women who comprise the majority of the industry will continue unnoticed, taking a backseat to the demands of consumers, the greed of the profit-makers, and the vocal opposition of anti-pornographers, like Andrea Dworkin, Cathadne Macinnon, and the Christian Coalition, all of whom seek to end the industry altogether.121
124. Se eg., Bryce, supranote 95; se also Breyer, supranote 109; Machen, supranote 122, at 177. 125. In addition to strip clubs, massage parlors, and adult movie theaters, the adult entertainment industry is comprised of various segments involved in the production and sale of adult-oriented magazines, books, novelty products, and movies. The adult video industry, centered in California, comprises the largest portion of the industry and is made up of producers, manufacturers, wholesale distributors, retailers, and mail order companies, who together employ thousands of people. Free Speech Coalition Employment Statistics (last modified Feb. 10, 1999) <http://www.freespeechcoalition.com/industry/truth/employmen.htni>. In 1995, adult video retail sales and rentals made up 13.3% of the entire video market, accounting for $3.1 billion. Free Speech Coalition, Statistical Infornation (last modified Feb. 10, 1999) In California alone, <http://wwwafreespeechcoalition.com/industry/truth/tats.html>. approximately 2,800 retail stores carry adult videos for sale and/or rental, each store stocking an average of 700 titles for rental purposes. Id. In 1995, 609 million rentals of adult videos were reported; almost 92,000,000 of them in California. d. These rentals generated a minimum of $22 million in sales tax for the state of California, demonstrating how potentially valuable the adult video industry can be to the states where the product is made and sold. Id- Throughout the United States, adult videos are carried in more than 25,000 retail outlets; in stores carrying both adult and general release films, adult video sales and rentals accounted for 28.1% of total business. Id. 126. The fervor with which some feminist activists, led by Dworkin and MacKinnon, have rallied against pornography and, by implication, the sex industry, is ironic since opposition to pornography is also a conspicuous feature of the religious right's conservative political agenda. ELLEN WILLS, No MORE NICE GMRLS: COUNTERCULTURAL ESSAYS 15 (1992). In fact, Dworkin and MacKinnon have drafted and introduced legislation to ban pornography throughout the United States and Canada. See eg., Joan Kennedy Taylor, Does Seual Speech Harm Women? The Splt WithinFeminisi, 5 STAN. L. & POL'YREV. 49,50 (1994). In an effort to explain how such opposing forces unite on a topic such as the andpornographers have with regard to sexual imagery and practices, author Carol Queen has put forth a provocative theory she coins "absexuality." Carol Queen, DirtyPictures,Moral Outrage,and the New Abseuality: Why Antipom Crusaders Have Sex on the Brain, PLAYBoY, Aug. 1997, at 41. Queen theorizes that "absexuals," literally meaning "away from sex," developed their anti-sex mindset during childhood because ofvarying degrees of early trauma about sex, either because of physical sexual abuse (such as Dworkin says she experienced) or mental and emotional abuse, often religiously inspired. Id. In Queen's view, social learning theory best explains the genesis of an absexual a sexually abused child grows up, looks for an explanation of what happened to her and targets pornography; a religiously abused child is obsessively punished and made ashamed of her own sexual feelings, resulting in an inordinate focus later on other people's sins. Id.
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Courts addressing relative investments have universally concluded that an exotic dancer's investment in costumes is minor compared to a club owner's investment in the club. 27 The courts all have looked to the club owner's total investment in the strip club as a business operation and have considered such factors as facility, advertising, location, hours of operation, maintenance, supply and selection of food and drinks, utilities, et cetera.' 28 Therefore, it is likely that the California and Nevada courts would use the same analytical framework and similarly would find this factor weighing in favor of dancers' economic dependence." One factor that has not been considered by any court thus far, but could seemingly weigh against dancers and in favor of dubs in the relative investment analysis, is the increasingly common practice of undergoing breast augmentation and cosmetic surgery if dancers pay for the procedures themselves. While there are no firm numbers on how many dancers undergo such procedures, it is clearly evident that many are electing to do so."' Nonetheless, the clubs' investments in facilities and products would likely continue to outweigh the cost of cosmetic surgery."' Furthermore, a club may have the burden of proving that a dancer undenvent cosmetic surgery as an investment in her career, rather than for personal or medical reasons."2 It remains to be seen whether any dubs will make such an argument. C. Skill andInitiative Potentially, the most important type of initiative attributable to exotic dancers is their ability to mingle and socialize with male patrons to solicit private dances from them, which is known as "hustling.""' The argument that hustling is a factor weighing in favor of independent
127. See g., Harrell v. Diamond A Enter. Inc., 992 F. Supp. 14M, 1350 (M.D. Fa. 1997) (listing cases finding thatclubs' investmentovershadows dancers' investment). 128. See i&; s e also Reich v. Circle C. Invs., 998 F.2d 324, 328 (5th Cir. 1993) (noting dub's
investment included liquor license, inventory of refreshments, leases on stage and lights, sound
equipment, maintenance and renovation, and advertising). 129. See, eg., Harrel 992 F. Supp. at 1350 (finding that because courts have universally concluded that a dancer's investment is minor compared to the club's, this factor works in favor of economic dependence). 130. See Hanna, supranote 102 (finding that many dancers feel pressured to surgically alter their bodies rather than risk replacement, since demand for such jobs is high). 131. See Hanna, supra note 102 (stating that some club rules actually require dancers to surgically alter their bodies). 132. See Machen, supra note 122, at 194-95 (discussing willingness of business to suffer added expense because women are integral to the business and are what customers pay to see). 133. "More reliable than table dances, itis conversation that reels in the Regulars-a smart dancer's sustenance." Fuentes, supra note 15, at M16. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 486 1998-1999
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contractor status has been universally rejected by every court to consider it as a type of initiative different from that contemplated by the tesL The dancer's initiative is therefore restricted to decisions involving what costume to perform in, what style of hair and makeup to wear, and how provocatively to dance.135 Such limited initiative is more consistent with the status of a service employee than an independent contractor."6 Evidence that exotic dancing requires specialized exotic dancing skills could be demonstrated by specific criteria or standards for dancers, seminars, instruction booklets, or choreography." 7 Most clubs "audition" potential exotic dancers either by requiring applicants to disrobe in front of the manager, gyrate on stage to music, or to dance for audience approval in an "amateur contest."8ss These auditions serve as an opportunity to evaluate the dancer's figure and sexiness, not her formal dance training."9 Many exotic dancers have no prior exotic " dancing experience,. and no court has held this a sufficient skill requirement, absent specific criteria for evaluation." The California court, for example, could rigorously analyze this element on two fronts. First, Mitchell Brothers auditions potential dancers with a rather critical eye; unlike most dubs, an audition does not guarantee a dancer ajob.4 ' Second, there is a limited possibility that the Mitchell Brothers O'Farrell Theatre dancers' abilities to plan, choreograph, and sell their unique live sex routines may be considered above the average skill level and initiative exercised by traditional exotic dancers'~ Whether that carries them over to the skill level and
134. "The ability to converse with dub clientele in an effort to generate a larger dp is not the type of initiative contemplated [by this factor]. Customer rapport much more dosely parallels effidency than initiative ....&eHare 992 F. Supp. at 1350 (quoting Reich v. Priba Corp., 890 F. " 4 Supp. 586, 593 (5th Cir. 1995) (defining initiative as activities that expand client base, goodwill, and/or contracting possibilities, such as those of an independent businessperson)). 135. See id, 992 F. Supp. at 1351 (citing Martin v. Priba Corp., Civ. A. No. 3:91-CV-2786-G, 1992 WL 486911, at *4 (N.D. Tex. Nov. 6, 1992)) (rejecting the "hustling argument" because "Ct]he scope of (the dancer's] initiative is restricted to decisions involving what clothes to wear or how... to dance"). 136. Se i&at 1351 (finding that dub's only requirement that dancer "had to be moving" was insufficient to prove specal skill orinitiative). 137. Id138. See, eg., Teresa Dnice, Working a Broad,DANZINE, Aug./Sept. 1996, at 3. 139. See Harref,992 F. Supp. at 1351 (according to plaintiff/dancer, the only requirement for a prospective dancer was that she had to keep moving and that dancers who failed the tryouts were few and far between). 140. See id. 141. Sex id;seeasoRechv. Priba Corp., 890 F. Supp. 586,592 (5th Cir. 1995) (finding no special skills where exoticdancers had no prior experience and strip dub had no skill requirement). 142. Jane, supranote 5, at 13. 143. Compare Club Hubba Hubba v. United States, 239 F. Supp. 324, 326 (D. Haw. 1965)
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initiative exercised by an independent contractor remains to be seen. In any case, such an analysis would be a novel issue for the California court.'" Overall, however, the skill and initiative factor supports a finding that dancers are economically dependent on the club. D. OpportunityforProfit and Loss Like the relative investment analysis, the key determinants for profit and loss to be considered are those of a successful business enterprise (i.e., hours of operation, atmosphere, advertising, set fees for dances, etc.).'4 Profit opportunities for exotic dancers depend a great deal upon the club's reputation, advertising, dance prices, and generally those factors that initially attract customers to one strip club as opposed to another.14 Las Vegas strip clubs have increased their opportunity for profit beyond those of other clubs by installing and operating casino games within the strip clubs themselves, thereby creating more control over the profit/loss determinants. An exotic dancer's risk for loss is limited to the amount of the stage fee/tip-out, which may be controlled by the strip club.' In this manner, strip clubs completely control both the dancers' opportunity for profit and amount of loss. The same types of practices are involved in San Francisco and weigh heavily in favor of employee status. 8 E. Permanency of the Relationship Exotic dancing as an industry is impermanent and transitory. Like a professional athlete, an exotic dancer's value to her employer tends to decrease after reaching a certain level of seniority.'4 Because adult entertainment is an industry built around creating, arousing, and
(finding that the dub characterized imported troupe of Japanese dancers as independent contractors) with Ha-ell, 992 F. Supp. at 1351 (finding no evidence that plaintiff participated in any effort to increase client base, enhance good will, or establish contracting possibilities). 144. SeeAssociated Musicians ofGreater Newark v. Bow& Arrow Manor, 206 NLRB 581 (1973) (orchestra leader and strolling musicians of restaurant dub considered independent contractors under NLRA); Harrah's Club v. NLRB, 446 F.2d 471 (9th Cir. 1971) (casino house band members considered to be independent contractors under NLRA); Radio City Music Hall Corp. v. United States, 135 F.2d 715 (2d Cir. 1943), afflg50 F. Supp. 329 (S.D.N.Y. 1942) (holding movie theatre intermission stage performers to be considered independent contractors). 145. SeeP_, Corp., 890 F. Supp. at 593 (explaining each party's risk related to profit and loss). 146. See Hanna, supra note 102, at 12 (explaining that clubs may be glamorous or sleazy, expensive or free, serve alcohol or not, depending on a customer's expectations). 147. See ag., Harrell 992 F. Supp. at 1346 (discussing plaintiff's stage fee and tip-out). 148. See Machen, supra note 122, at 188-91 (describing the wage practices at the O'Farrell Theatre in San Francisco). 149. SeeHanna, supranote 102, at 53 (describing new dancers as "a stream of young women often at the dam ready to take a vacated place"); see also Machen, supra note 122, at 192 (asserting that strip clubs are eager to have young, inexperienced workers).
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exploiting customers' sexual fantasies, which are as varied and fluctuating as the customer base itself, the numerous young, new faces are more valuable to a strip club than are fewer, older, more experienced ones.'O Accordingly, courts place less emphasis on this factor, relying instead on the weight of the other factors combined to demonstrate economic dependence.' s A high number of dancers is good for the club and even good for the customers, but not good for the dancers since a dancer's ability to earn is inversely proportionate to the number of dancers working at a given time.5 2 This occurs because there is a fixed number of potential customers and a fixed number of potential dances 5 available."' Assume, for illustrative purposes, that there is only one dance available, per customer, per song. If a club had forty customers and twenty dancers scheduled at a given time, each dancer would potentially have two customers per song. Similarly, if forty dancers were scheduled for the same customer base, the potential number of patrons a dancer could dance for decreases to one. Finally, if more than forty dancers were scheduled, there would be some dancers who would be numerically excluded from selling any dances. Consider as well that if each song lasts an average of four minutes, then each dancer can only sell, at best, a maximum of fifteen dances per hour, regardless of how many potential customers are present. It is a rare occurrence for a strip club to be consistently crowded during all hours of operation, and with all customers buying private dances, the preceding hypothetical is optimistic. Many patrons prefer to withhold their money and act as voyeurs, simply looking on as other patrons buy dances, or watching the free dances being continuously performed on stage.'6 This scenario is very common throughout the industry and creates
150. S Hanna, supranote 102, at 22 (describing how customers fantasize about getting the "personal attention of an attractive female who would not otherwise 'give him the time of day'"). 151. Reich v. Cirde C. Invs. Inc., 998 F.2d 824,328-29 (5th Cir. 1993) (holding that the balance ofother factors outweighs the lack of permanency); Reich v. Priba Corp., 890 F. Supp. 586,593 (5th Cir. 1995) ("Because dancers tend to be itinerant, the court must focus on the nature of their dependence"); Martin v. Circle C. Invs., Inc., No. MO-91-CA.-43, 1991 WL 338239 (W.D. Tex. Mar. 27,1991) (the fact that dancers are tiansitory is not determinate). 152. See e.g., Harrel; 992 F. Supp. at 1349-50,1353 (noting that dancers had no control over the customer volume at the night dub, which employed about 80 dancers). 153. See ag., Hannah, .supra note 102, at 20 ("[C]lub managers may schedule more performers than needed and the dancers compete for the few customers available."). 154. See Hanna, supra note 102, at 17 (discussing the types of dances performed in strip dubs and the responses ofmembers of the audience).
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fierce competition among dancers for customers. Such competition acts as a formidable barrier to union organization."' Unless union organizers persuade dancers to view each other not as competitors, but as allies, obtaining the majority support necessary for union recognition will prove difficult, if not impossible.'It is also important to emphasize that these hypothetical figures include neither the number of dances the dancer is required to perform free on stage, nor the time she must spend talking to the customers, building the rapport necessary to sell a dance.*7 Both expectations further decrease the number of dances she can potentially sell. The time spent "hustling" is vital to the sale of private dances because the dancer is not selling the mere image of her nude body, but actually the illusion that she is personally interested in the male patron - in other words, that he has in some way attracted her. attention-ss This is the process by which dancers build clientele, a group of "regulars" who frequent the club to see a particular 5 dancer.' 9 This dynamic further reduces the number of potential customers to whom other dancers can sell dances. For these reasons, a hiring cap on the number of dancers employed or scheduled at any one time has tremendous economic value to the dancers, and is potentially one of the most desirable provisions in obtaining a collective bargaining agreement.'6 0 The fact that an adult entertainer's career is so fleeting tends to support a socio-economic theory that many women, although certainly
155. SeeHanna, supranote 102, at 50 (noting that conflict exists among strippers). 156. See Hanna, supra note 102, at 54 (detailing the difficulty two dancers experienced in organizing other dancers in an effort to present their complaints about working conditions to the management).
157. See geneaUyKatherine Liepe-Levinson, Striptease. Desire, Mimetic Jeopardy, and Performing
Spectators, 42 DRAMA Rav. 9 (1998) (detailing the distinction between stage dances and lap dances). Se also Hanna,supranote 102, at22. 158. Fuentes states that: One dancer has described the process as follows: "Making good money is luck and hustling. It's a business. Girl walks around the club, sees who's checking her out. When she sees someone she makes her way over. In a second she's sized him up and decided her approach. She says all the right things: if he thinks black is white, it's white .... Now, the guy may start to think that he's got something here, so he starts coming in more regularly during her shifts. She's sure to keep it going: her face lights up when he walks in the club, she pays attention only to him, and does what she needs to make it look like he rocks her world. Soon, he's paying more and more moneyjust to sit with her. She takes the money, looks sad when he has to go and laughs about it backstage later with her friends. Fuentes, supranote 15. 159. See eg., WorkingaBroad, DANZINE (Nov. 1995), at 4 (on file with author). 160. Se Hanna, supra note 102, at 54 (describing the types of union agreements some dancers have negotiated).
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not all, enter the adult entertainment industry because it provides an immediate source of income which is available to women without much commitment in the way of education, training, or financial investment.16' The flexible schedules accommodate women who are 162 mothers, students, actors, or employees in need of additional income. In many cases, the income a woman makes from dancing is the difference between work and welfare.'63 This type of economic dependency makes adult entertainers more susceptible to the illegal demands of their employers, while simultaneously ensuring their silence about their mistreatment'64 It is also arguably one of the main reasons that feminists should be supportive of adult entertainers' legal and unionizing efforts.'6 Without the opportunities that the adult entertainment industry provides, many women would lack financial empowerment and independence, and thus would remain dependent on the largess of men or society.'66 Many people who speak out publicly against the sex industry are the same people who salivate over it and financially support it in private.' 67 By denying its existence and legitimacy, a hypocritical society pushes the industry underground and out of sight, whereby illegal and exploitative practices such as those described herein, are allowed and even encouraged to flourish unabated and unchecked." Perhaps a better solution is one where all factions of the adult entertainment industry are recognized, tolerated, legitimized, legalized, and regulated when necessary, either by state or local government - as are Nevada's brothels6 9 - or through the collective bargaining relationships that
161. SeeHanna,supranote 102, at 11 (noting dancers' diverse backgrounds). 162. Hanna, supranote 102, at 51. 163. Hanna, supranote 102, at 40. 164. See Hanna, supra note 102, at 53 (characterizing the abusive tactics employed by some strip club owners in an effort to minimize the willingness of dancers to complain and to ensure that dancers will tolerate abuse in order to avoid loss of theirjob). 165. Hanna, supranote 102, at 54. 166. Hanna, supranote 102, at40. 167. Take, for instance, the case of television evangelist Jimmy Swaggart. In 1988, the popularity of Swaggart's TV ministry crashed after he was exposed leaving a New Orleans motel room with a prostitute. Joe Domanick, Maybe There Is a God: Six Lessons on the Pifalls of Public H)pocrisy, PLAYBOY, Aug. 1990, at 110. Proving that old habits die hard, Swaggart was again caught with a prostitute in 1991, after being stopped for a traffic infraction. Jimmy Swaggart: Television Evangelist is Caught zith Prostitute, U.S. NMVS & WORLD REPORT, Oct. 28, 1991, at 28 [hereinafter Swaggart]. 168. Swaggart, supranote 167, at 28. 169. See NEV. REV. STAT. ANN. 201.354 (Michie 1997) (allowing acts of prostitution to be conducted legally in licensed houses of prostitution while making the same acts illegal outside of such houses).
492
unions provide.' 71 In this way, those working in the industry can be assured of safe and non-exploitative working conditions, acceptable wages, access to necessary medical and social services, and legislative protection. Society would, in return, benefit from a decreased risk of transmittable social diseases, less burden on the welfare system and 171 increased tax revenues. F. IntegralPartofEmployer's Business Strippers are an integral and essential part of a strip club's
operation.1 n No court examining the issue has found otherwise; therefore, the courts are logically concluding that "[wihen the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the worker who performs those services is more likely to be considered an employee than an 3 independent contractor."1 7 The same will likely be true of the lawsuits evaluated in this paper.""
However, if by a slim chance the Las Vegas strip clubs can demonstrate that gambling, rather than exotic dancing, is the integral part of their
business, then they may be able to convince a court that their dancers should remain independent contractors. The nature of the seven strip
clubs involved, however, negates this argument.'75 The dubs'
dependence on the dancers is, therefore, highly indicative of an employee-employer relationship between stripper and strip club. 7' When the aforementioned factors are considered "collectively and
170. Hanna, supranote 102, at 54. 171. Hanna, supranote 102, at 40. 172. See Liepe-Levinson, supra note 157 (reporting statements made by a strip club owner relating to the amount of money an individual dancer can earn in a single day and the way that this income supports a lucrative business). 173. 303 West 42nd St. Enters. v. IRS, 916 F. Supp 349,357 (S.D.N.Y. 1996); see also, Harrell v. Diamond A. Enter., 992 F. Supp. 1343, 1352 (M.D. Fla. 1997) ("Exotic dancers are obviously essential to the success ofa topless nightclub."); ef., Reich v. Circle C. Invs., 998 F.2d 324, 327-28 (5th Cir. 1993) (finding dancers' economic dependence on nightclub without considering the factor of the nightclub's success depending on the dancers' performance of services). The court determined that the dancers were economically dependent on the nightclub, and thus, employees within the meaning of the Act. Id See also Locker, supra note 24, citing Borello & Sons v. Department of Indus. Relations, 48 Cal. 3d 341, 357 (1989) ("[P]ermanent integration of the workers into the heart of [a] business is a strong indicator that [the principal] functions as an employer....") (citations omitted). 'The modem tendency is to find employment when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business service." Ia174. "After all, what would the O'Farrell Theatre be without the dancers?... [a] mirrored warehouse with faded carpet and a snack bar attached." Bryce, supranote 95. 175. One only needs the briefestvisit to any of the clubs involved to observe that the women are indeed the club's main feature. Investigation by Author, in Las Vegas, Nev. (Sept. 19-20, 1998); Telephone Interview withJohn Roe, patron of Crazy Horse Saloon (Oct. 1,1998). 176. Investigation by Author in Las Vegas, supranote 175.
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it appears obvious that in the reality of strip club
practice, exotic dancers are highly controlled in most aspects of their employment and are economically dependent upon the strip clubs 8 employing them.'7 For that reason, exotic dancers are not independent contractors as claimed by the dubs; 9 rather, they are employees of the clubs." Interestingly, this analysis is not affected by the existence of an employment contract between the stripper and a strip club. Courts have astutely observed that it is a common practice within the adult entertainment industry for a dancer to sign a boilerplate contract, wherein she agrees to define her relationship to the dub as one of an independent contractor, tenant, or lessee.' 8' However, because such contracts are usually the result of intimidation or an ultimatum, the courts have declared that they may be voided after an examination of the employment circumstances.'n Considering the broad tests applied to previous exotic dancer cases brought before the courtsss the similarity to the facts discussed
herein,'84 and the inherent inequity of the existing system, it seems inconceivable that the courts would find exotic dancers in California and Nevada to have independent contractor status. Therefore, the only fair and equitable solution is for the courts to hold these exotic dancers to be employees of the strip clubs they work for, entitled to all the 177. Hne11, 992 F. Supp. at 1353. them to comply with work schedules and fining them for absences and tardiness).
178. See Reid 998 F.2d at 327 (finding that dub owners control their dancers by requiring 179. See Harrl, 992 F. Supp. at 1346 (noting that the defendant night club owner argued that the plaintiff dancer was an independent contractor and not an employee). 180. See Reid, 998 F.2d at 328-29 (holding that exotic dancers are employees based on the
five factors of the economic reality test set forth by the court).
181. See Hayrell 992 F. Supp. at 1353 (observing that the contracts which the dancers signed
contained a boilerplate independent contractor provision).

182. SeYellow Cab Coop., Inc. v. Worker's Compensation Appeals Bd., 226 Cal. App. 3d 1288,
1301-02 (1991) ('Where the pincipal offers no real choice of terms, but imposes a particular
characterization of the relationship as a condition of employment, the workers' acquiescence in that characterization does not by itself establish a forfeiture of the act's protections"); Brown v. Industrial Accident Comm'n of Cal., 163 P. 664, 665 (Cal. 1917) (explaining that the terms contained in an employment contract do not necessarily determine the existing relationship between parties; such a relationship may be, "and often is, governed entirely by the subsequent conduct of the parties"). 183. See generaly Reick 998 F.2d at 8-29 (finding that exotic dancers are employees under the economic reality test). See also 303 W. 42nd St. Enters., Inc., 916 F. Supp. at 353 (SD.N.Y. 1996) (reviewing whether exotic dancers are employees for tax purposes under standards that are broader than the common law). Section 530 of the IRS Code permits treating a worker as a non-employee irrespective of the worker's status under common law, provided such treatment is "consistent" and there exists a "reasonable basis" for such treatment. Id. 184. See generally303 W. 42ndSt. Enters. Ina, 916 F. Supp. at354 (describing the club owner's arguments that exotic dancers were not employees); Martin v. Priba Corp., Civ. A. No. 3:91-CV2786-C, 1992 WL 486911, at *3.4 (NJ). Tex. Nov. 6, 1992) (recounting the dub owner's view that exotic dancers are independent contractors).
494
benefits and protections of the state law, the FLSA, and by implication, the NLRA.
IV. PROFESSIONAL EXEMPTION The FLSA's professional exemption is the last legal hurdle the exotic dancers might face in their bid to become wage-earning employees once it has been determined that they are employees under the economic reality test.' In this case, the employer will raise the exemption as a defense to a finding of employee status. Hence, the employer bears the burden of establishing that its employees are exempted professionals.8 While the performances that many of the exotic dancers of the Mitchell Brothers O'Farrell Theatre give are too graphic for description in this paper,'8 it suffices to say that these performances may come close to the professional exemption of the FLSA if considered to be imaginative and innovativeIs It is unlikely, though, that this type of "dance" would fall within the professional exemption's threshold requirement of a "recognized field of artistic endeavor."8 9 However, it could be argued that such a proposition is supported by a California law that legalizes live sex acts. This law classifies "sexual conduct engaged in as part of any stage performance, play, or other entertainment open to the public" as a form of artistic expression. 9 This analysis is not " required for the San Fernando Valley or Las Vegas exotic dancers, since these dancers generally perform the more traditional stage, lap, and/or table dances that were found in Harrelltobe lacking artistic qualities. 9 '
V. CONCLUSION
The unionization of adult entertainers is already in progress and promises to continue with ever-increasing speed as greater numbers of dancers, informed of their legal rights and empowered by their
185. See 29 U.S.CA 213 (a)(1) (West 1998) (mandating that professionals are exempted from the minimum wage rules of the FLSA even if they are found to be employees under
F SA).
186. &e eg., supra notes 56-67 and accompanying text. 187. See ditsc supanotes 20,95,120. 188. See 29 C.F.R. 541.302 (1999) (proclaiming that the result of an artistic endeavor derives primarily from the "invention, imagination or talent of the employee"). 189. See 29 C.F.R. 541.3 (1999) (defining "a recognized field of artistic endeavor" as "music, writing, the theater and the plastic and graphic arts"). 190. Fuentes, supra note 15, at M16. 191. See HarrAl, 992 F. Supp. at 1356 (finding that the dancer's work did not fulfill the "invention, imagination, or talen" requirement).
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brethren's success,'9 gather the knowledge and courage to stand up for
their legal and civil rights. The unionization of exotic dancers promises to be like no other in modem history. Not only will it be a new chapter in the history of the labor movement, but it promises to be the birth of a new breed of feminism: a movement where beauty is a sword, not a shield; and where women bare their bras, not burn them. Although unaware of it themselves, these strippers may become the next feminist leaders.9 3 Unlike modem feminists9 who decry beauty,
192. In addition to the successful organization of the Lust Lady (which remains the best motivator), other exotic dancers have had success in recovering damages from strip clubs for wage and hour claims and unfair labor practice charges. For instance, the Alaska Exotic Dancers' Union (AEDU) filed ULP charges against the Showboat Show Club on behalf of three employees who were allegedly fired for union activities. The club settled with the union for
$40,456. Id. See UnionizedStrippersSettle with Club,JuNEAU EMNPIRE, May 6,1998, at 5. The AEDU had filed five additional ULP charges against the same club for interference, restraint, and coercion in the employees' exercise of 7 rights (charges on file with author). In Eugene, Oregon, nine exotic dancers, successful in their wage and hour claim lawsuit, collected $45,000 after ajudge determined that they were employees of the two strip clubs for which they worked. See Nude Dancers Win the Minimum Wage, PORTLAND OREGONIAN, Oct. 5, 1995, at C3. Although dancers at both clubs are now entitled to minimum wage, the ruling is being appealed by the clubs' owner. 193. By use of the term "stripper," rather than "exotic dancer," I mean to convey the confident, sexy, erotic, and often anti-male, attitude and character which engulfs the woman when she is transformed into the "manipulated, tweezed, curled, painted" fictitious entity of an c exotic dancer. See eg., Fuentes, supra note 15; see also Torn Brawley, AEDU Geesis: Alaska ExoF Dancers' Union and How It Got Star/e4 EXOTIC TIMES, Spring/Summer 1998, at 5 (on file with author). Arguably, this attitude is different from the one that represents these women outside of work, where the dancer mightbe a single mother, monogamously married, or a lesbian. 194. The dominant trend in modem feminism (also known as "Second Wave" feminism, gender feminism, equity feminism, etc.) has evolved from one of equality-seeking to one intensely focused on women's victimization by men. SeeJOAN BREN GUERNSEY, VOICES OF FEMINISM: PAST, PRESENT, FUTURE 52 (1996). According to this set of beliefs, the reason all women have failed to turn into liberated women is that the patriarchy (typically defined as a pervasive and self-sustaining system of male domination and privilege) stands in the way, responding to women's progress with backlashes-discrimination, harassment, abuse, and misogynist social messages. Women then internalize these negative responses, causing them to revert back to traditional roles and behaviors, in addition to having self-destructive behaviors like low self-esteem, depression, and eating disorders. See KAREN LEHRMAN, THE LIPSTICK PROVISO: WOMEN, SEX &POWERINTHEREALWORLD 9 (1997). Underlying the criticism of modem feminism are four basic points: (1) gender feminists have undermined the original conception of feminism (the emancipation of women from laws and social regulations confining them to one type oflife) by hardening the theory into an inflexible set of political opinions, professional goals, and androgynous behaviors and attire; (2) many feminist expectations are not only unrealistic, but contrary to the desires and values of women today; (3) those objectives which are more realistic (eliminating street harassment or sexist speech) either cannot or should not be achieved by government intervention; and (4) what many feminists, like Susan Faludi, are calling a backlash against feminism, is actually resistance by both sexes to the extremes of establishment feminism. See id. at 10. Unfortunately, by characterizing and focusing on most women's life's events as episodes of systematic male brutality, Second Wave feminism has fractured the feminist movement into several competing, and often antagonistic, factions: the pioneering Second Wave feminists, such as Gloria Steinem, Germaine Greer, Susan Brownmiller, and Susan Fauldi; the critics, led by Camille Paglia, Christina Hoff Sommers, Kaitie Roiphe; and the Third Wave feminists, the newly emergingyoung, angry, confident feminists who grew up benefiting from the work of the Second Wave feminists, yet remain dissatisfied with the Second Wave's narrow goals, dominance
496
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femininity, and sexuality as weapons of a patriarchal plot to keep women submissive,'95 strippers take what is inherently theirs-feminine sexuality-and they exaggerate it to extremes, using surgery, make-up and sensuous movements. Then, they confidently use their bodies as weapons against the very men who believe they are using the stripper. Playing on men's desires and arrogance, strippers manipulate these men into believing that they (the strippers) are attracted to them. Ultimately, the men pay for perpetuating such false and sexist beliefs with hard currency, if not increased sensitivity. If the beauty culture is truly a patriarchal plot against women, then the patriarchy has failed miserably, because, like Madonna, strippers know that sexuality is power, that power is money, that money buys independence, and in that independence is equality. Having interviewed two extraordinary women at the center of this movement, having heard their stories of threats and intimidation,"9 of abuses by male-dominated dub 7 management,' 9 of criticism by other women, 93 having heard how they
by white, middle-class women, and reputation for man-hating. See U/. Obviously, Second Wave feminism is incompatible with the stripper unionization-feminist movement since this movement is generally viewed as sexuallyjudgmental, or even anti-sexual because it refuses to accept the existence of differences between the sexes, thus also requiring an androgynous sexuality from women. This movement is also judgmental of other women's sexuality and appearance. It idealizes women's child-bearing capacity as evidence of women being closer to nature and better than men, and it believes that women are naturally cooperative, peace-loving, and non-competitive. Se, eg., NAOMI Wol', FiRE WrH Fi E 147-49
(1993) [hereinafter FIRE]. by Naomi Wolf in her bestseller, The Beauty Myth. SeeNAOMI WOLF, THE BEAutYMYrH (1990).
195. This view has been espoused in a variety of contexts by several feminists, most notably
196. As with most other industries facing unionization for the first time, threats of violence and intimidation are common practices by management. When the possible involvement of organized crime is added to that already volatile situation, it comes as no surprise that dancer/activists have been threatened with, and subject to, everything from blacklisting to physical violence. See supra note 11 and accompanying text. Exotic Dancers' Alliance co-founder, Johanna Breyer, was blacklisted from all San Francisco strip clubs after she began organizing other dancers. Jane not only faced various methods of management retaliation (i.e., arbitrary firings, lock-outs, verbal abuse, etc.) during her organization ofthe Lusty Lady, butshe also faced threats of personal harm (e.g., broken legs) from management of the Showboat Show Club when she attempted to assistTom Brawley in organizing that strip dub. During the organization of the Showboat Show Club, Tom Bmwley, wearing only a bikini and stiletto heels, was physically escorted by an armed guard to the Showboat owner's basement office, where she alleges that she was falsely imprisoned, then verbally and physically threatened by the club owner, Terry Stalhman. Brawley, supra note 193, at 6. She and other dancers of the Showboat received numerous threats from management and their affiliated Hell's Angels motorcycle gang. Brawley Interview, sup= note 8. 197. The stories dancers tell of the demeaning, humiliating, and illegal abuses they have suffered at the hands of management are horrific and probably unbelievable to the uninformed. Such abuses include: hostile environment, sexual harassment, regularly being called "bitches" and "whores" at company meetings, and club tolerance for rude, hostile customers. Se4 ag., Brawley, supra note 193. There is also quid pro quo sexual harassment, such as being fired for not allowing management or their friends to fondle them, or having the DJ play the wrong music during the stage performance of a dancer after she refuses to date him. Also, forced prostitution is often required as a condition ofemployment Bryce, supra note 95. This includes permitting customers
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NAKED FEMINISM
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have only become more encouraged by these obstacles, not less, I can confidently say "[tihese are not the traditional feminists of years past. ' These are the 'bad girls' of power feminism."' They have passion, they
to touch, lick, fondle, or even molest them. For example, one dub promotes its "Sundays" as a night when the dancers' genitals are covered with whipped cream and a cherry and customers can pay for the opportunity to eat it off. Some dancers are forced to perform unsafe sex acts (forced sexual battery) with other dancers as a condition of employment. SeBrawley Interview, supra note 8. 198. Even within the ranks of exotic dancers, there is dissent regarding organization and legal action. The reasons are numerous but can be narrowed to a few prominent theories: (1) successful management anti-union propaganda campaigns based on threats, misinformation, and outright lies persuade and intimidate many dancers into believing union membership would actually be harnxfll, rather than beneficial; (2) many dancers do not report their income on tips to the IRS which both prevents having to pay taxes and allows them to receive welfare money for their families; if dassified as employees, not only would the income have to be reported, but itwould also be taxed, thereby reducing what is usually an already poverty-level income; and (3) management often threatens dancers with termination or physical violence if they support other dancers' organizing/legal efforts. Those reasons are suspected to be at the heart of the repeated efforts of the Independent Dancers Association (IDA) to intervene in the Mitchell Brothers class action lawsuit. The IDA, composed of the present dancers at Mitchell Brothers O'Farrell Theatre, have unsuccessfully attempted to intervene three times in the lawsuit. E-D.A. General Information, NEVSLErR 8, 1997, at 2 (on file with author). Finally, filing a separate lawsuit against one of the main plaintifJennifer Bryce, which not only was dismissed as a retaliatory action under the state's "anti-slap" statute, but also resulted in the IDA being sanctioned and ordered to pay plaintiff's attorney fees. Id. The IDA also appeared at a furndraising event for the Exotic Dancers' Alliance, accompanied by one of the defendants in the case to protest the union's involvement. Bryce, supra note 95, at6. 199. Ironically, it is Naomi Wolf, in her theory of "power feminism," who unwittingly offers a blueprintfor the stripperunlonization/feminstmovement. To Wolf, [plower feminism means taking practical giant steps instead of ideologically pure baby steps; practicing tolerance rather than self-righteousness. Power feminism encourages us to identify with one another primarily through the shared pleasures and strengths of femaleness, rather than primarily through our shared vulnerability and pain. It calls for alliances based on economic self-interest and economic giving back rather than on a sentimental and workable fantasy of cosmic sisterhood:' FIRE, supranote 194, at 77. Wolf argues that for power feminism to occur, women must shake off their ambivalence toward using power and get in touch with the part of their psyche she calls the "inner bad girl," the part which is "mischievous and boisterous." FIRE, supra note 194, at 334. Wolf would not have to look long at the stripper-cum-feminist to see her "bad girl" in the flesh: Every molecule of the [girl] seeks ever pleasure. She is sensuous, grasping, selfabsorbed, fierce, greedy, megalomaniacal, and utterly certain that she is entitled to have her ego, her power and her way....She is a very naughty girl... At her worst she is narcissistic and destructive; at her best, she is the force of creativity, rebellion against injustice, and primal self-respect. Id. at 334-36. But it is in the principles of Wolf's power feminism that its applicability to the stripper movement and the distance from the victim feminism becomes most obvious. In power feminism women have the right to determine their lives, women's experiences matter, and a woman's choices affect the people around her and can change the world. A woman must be unapologetically sexual, understanding that good pleasures make good politics. Women should be tolerant of other women's choices about sexuality and appearance, believing that what every woman does with her body and in her bed is her own business. Women can hate sexism without hating men. Women should actively seek power and use it responsibly to make the world more fair to others. Aggression, competitiveness and desire for autonomy and separation is as much a part of the female psyche as is nurturing behavior. Poverty is not glamorous. Women should acquire money for their own dreams, independence, and security as well as for social change. Making social change does not contradict the principle that girls want to have
498
have a plan, and soon they will have the power of the law.
fun. Their motto could be "If I can't dance, it's not my revolution." Id. at 149-50. HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 498 1998-1999

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Citation: 7 Am. U. J. Gender Soc. Pol'y & L. 319 1998-1999 Content downloaded/printed from HeinOnline (http://heinonline.

CONCEPTUALIZING THE LAW FROM A GENDER PERSPECTIVE:

PARAELANk.ISISDEGNEODELFEN6MENOLEGAL) (2nd ed. 1996).

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol.

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 320 1998-1999

CONCEPTIONS OFVIciM AND AccusED

JOURNAL OF GENDER, SOCmL POLICY& THE LAW [Vol.

We have undertaken to study the law as such, discovering its

II. CRIERIA FOR SELECION IN CRIMINAL LAW

CoNCEPTIONS OF VICTIM AND ACCUSED

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 7:319

the specific circumstances in each country. Nothing could be further

III. THE INTERMEDIATION BETWEEN THE ACCUSED AND THE VICTIM IS

CONCEPTIONS OF VICTIM AND AccusED

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 7:319

CONCEPnONS OF VICTIM AND ACCUSED

JOURNAL OF GENDER, SOC.ALPOLIGY&T-E LAW [Vol. 7:319

16. It is important to recall the discussions on neo-criminalizing trends (increasing sentences)

infractions known as "offenses to sexual morality," such as adultery and seduction.

CONCEPTIONS OFVICIM AND ACCUSED

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 329 1998-1999

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 7:319

18. Vargas, supra note 3.

CONCEPTIONS OFVICrIM AND ACCUSED

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 332 1998-1999

COMMENT ON THE PAPER BY GLADYS ACOSTA

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 333 1998-1999

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW

Perhaps what certain branches of feminism wish to attack is not legal

moral justification. Though some theories may be deficient, it is not

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 334 1998-1999

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 335 1998-1999

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 7:335

WOMEN'S HUMAN RIGHTS IN ARGENTINA

SOCIAL POLicY & THE LAW (Vol. 7:335

WOMEN'S HUMAN RIGHTS iN ARGENTINA

childhood until the firstyear of life...."

JOURNAL OF GENDER, SOCIAL POLICY

& THE LAW [Vol. 7:335

WOMEN'S HUMAN RIGHTS INARGENTINA

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 341 1998-1999

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 342 1998-1999

GENDER AND LAW: MEXICAN LEGISLATION ON DOMESTIC VIOLENCE

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 343 1998-1999

JOURNAL OF GENDER, SOCIAL POLiCY& THE LAW [Vol. 7:343

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 7:343

1998-1999] MEXICAN DOMESTIC VIOLENCE LEGISLATION

JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 7:343

1998-1999] MExICAN DoMEsTIc VIOLENCE LEGISLATION

JOURNAL OF GENDER, SOCIAL POLICY & THELAW [Vol. 7:343

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 350 1998-1999

JOURNAL OF GENDER, SOCIAL POLICY &THE LAW [Vol. 7:343

1998-1999] MEXICAN DoMESrIcVIOLENCE LEGISLATION

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 353 1998-1999

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 354 1998-1999

THE LAW: AN ART OR A SCIENCE?

I. MY INrIATION INTO THE ART OF NOT THINKING AND THE SCIENCE

362 A. Step I ...................................................

371 3. The Formal/NormativeComponent.................................

371 F. Step 6 ........................................................

I. MYINTIATION INTO THE ART OF NOT THINKING AND THE SCIENCE OF

HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 355 1998-1999