Category Archives: Politics

One Day in December: Starred review in Library Journal

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One Day in December casts a spotlight on the remarkable “missing actor” of the Cuban Revolution, Celia Sánchez. Based on ten years of original research, the biography draws on interviews with Sánchez’s friends, family, and comrades in the rebel army, along with countless letters and documents.

Alice Walker “loved the book;” Sapphire, author of Push, called it “a damn good read;” and most recently, the book has received a much-deserved starred review in Library Journal!

From Library Journal, May 1, 2013

Stout, Nancy. One Day in December: Celia Sanchez and the Cuban Revolution. Monthly Review. 2013. 457p. illus. bibliog. index. ISBN 9781583673171. $28.95. BIOG

The Cuban revolution so closely associated with Fidel Castro and Che Guevara also involved those such as Camilo Cienfuegos, Eloy Menoyo, Frank Pais, and Celia Sanchez, all revolutionary heroes in their own right. Sanchez was Castro’s supporter, confidante, and—depending on the source—his lover. In this impressive biography Stout (reference librarian, Fordham Univ. Libs.; Havana: La Habana) utilizes interviews, Cuban archives (to which she was granted special access by Castro himself), letters, and other documents to provide an accurate portrait of Sanchez, who ran the planning organization of the revolution after the death of Pais in 1957. Slight in stature, Sanchez saw combat and was arguably the most influential among Castro’s cadre of revolutionary leaders. Her role during and after the revolution was remarkable, and Stout’s biography tells her story as well as offering insights into other revolutionaries and their contributions. Sanchez’s death from cancer in 1980 shook Castro and all of Cuba but her legacy remains in buildings and projects that bear her name. VERDICT Highly recommended for readers and scholars of Cuban history. With a foreword by Alice Walker.—Boyd Childress, formerly, Auburn Univ. Libs., AL.

Want more? Read the introduction by Alice Walker or an excerpt from the book—and watch our exclusive interview with author Nancy Stout.

Genetic testing, cancer risk, and Angelina Jolie’s choice

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Angelina Jolie’s New York Times op-ed announcing for the first time that she underwent a double mastectomy to reduce BRCA-related breast cancer risk was welcome news in several respects. She is very specific, for instance, regarding the exact estimation of her risk, the kind of detail you do not often see in news reports and other public testimony about BRCA.  (BRCA-related risk is highly variable: 45-90% for breast cancer, 10-60% for ovarian cancer.)

Jolie also mentions the high price-tag associated with just the test itself, a point that has been raised for some time, and a topic that will be addressed this summer as the Supreme Court decides whether to accept Myriad Genetics’ (the company that owns the patents to the BRCA1 and BRCA2 genes) argument for patent protection. And finally, Jolie observes that BRCA mutations explain just a small percentage of breast and ovarian cancer cases. What she does not say, but is worth pointing out, is that more than half of all breast cancer cases remain unexplained. As the organization Breast Cancer Action has often noted, we need to fight for true “prevention” of breast cancer, which would include a radical shift in the way we regulate toxic chemicals.

Jolie understands herself to be acting not just as a mother but also as a role model for other women. This would make sense if BRCA testing were relatively new. However, it is anything but—BRCA tests have been around since the mid-nineties, and mastectomies much longer than that. In fact, women have been electing to receive prophylactic mastectomies due to familial risk well before the BRCA genes were described by researchers and a test for mutations was developed. Yet in 2013, the choices for high-risk women are the same: surveillance, surgery, or cancer drug therapy. Placed in this historical context, the question should not be “Why aren’t more women getting tested and acting on that knowledge?” but rather, “Why are the interventions the same almost twenty years after the genetic test became commercially available?”

Although new ways for reducing BRCA risk have failed to materialize (even if the plastic surgery methods associated with breast reconstruction have improved dramatically), what has occurred over the last twenty years has been a subtle yet indelible shift in what “risk” means. Indeed, BRCA mutations can hardly be said to infer “risk” at all, since the interventions women undergo are the same, or in the case of double mastectomy, even more extreme than what many women with breast cancer actually undergo.

“Risk,” then, really means “disease” in the post-BRCA age—marked as it is by an ethical obligation to act on cancer risk even if that action increases risk in other ways (as in the case of BRCA related ovary removal and subsequent fatal heart disease risk that early surgical menopause can entail). This, too, is an age of the successful feminist argument that there is nothing “natural” to femininity (thus enabling the claim that one is rejecting conventional notions of beauty and gender by undergoing mastectomy and oophorectomy), and the creation of an entirely new citizen-patient: the “previvor.”

With the development of better breast reconstruction techniques, the conceptual shift to “risk” being something you act on as if you actually had breast cancer, and the emergence of a new discourse of the empowered “previvor,” it is hard to imagine how any woman with a BRCA mutation will have a choice in any meaningful sense of the term. Can living with BRCA risk ever be thought of as an informed, empowered course of action? Will we see new ways of ameliorating BRCA risk that do not entail major and risky operations? Breast cancer is indeed an epidemic. Yet epidemics, as Paula Treichler wrote, too often close off critical, theoretical discussion that is often needed in order to properly evaluate and contextualize developments in medicine and in the broader culture. All the more important, then, that we continue to understand BRCA testing and mastectomy, and the choice to undergo one or both. After all, the choice is constrained as much by culture as it is by biology.

Kelly E. Happe is Assistant Professor of Communication Studies and Women’s Studies at the University of Georgia. She is the author of The Material Gene: Gender, Race, and Heredity after the Human Genome Project (NYU Press, 2013).

Why restrict jury duty to citizens?

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—Andrew Guthrie Ferguson

[This article originally appeared in The Atlantic online. Read it here.]

A few weeks ago, the California Assembly passed legislation that for the first time would make non-citizens eligible for jury service. If passed by the State Senate, California would be the only state to decouple citizenship and jury duty.

A chorus of criticism has been raised over the proposed bill without thinking about the fundamental question it presents. Why do we limit jury service to citizens?

The answer does not lie in history. At the time of the framing of the United States Constitution, jury service was limited to property-owning white men–as, for that matter, were voting rights in most states. Recent immigrants who owned property could sit on juries, but other citizens (women and others without property) could not. Thus, as originally understood, citizenship did not define who could sit on a jury.

Nor is the answer that citizens possess some special civic knowledge. There are no educational requirements for jury service. No special “citizen training” classes. Qualification for federal jury service simply requires that the potential juror “be adequately proficient in English to satisfactorily complete the juror qualification form.” In an era where studies show that most Americans fail basic civic literacy tests (including the official government citizenship test), we can honestly wonder about this collective lack of civic knowledge. Thus, assuming that many non-citizens are equally knowledgeable (or ignorant) about American civics and law, knowledge cannot be the reason for preferring citizens.

Nor, is it about community representation. Juries, of course, have always acted as a community conscience. Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury. Yet, including non-citizens on juries would not necessarily change that community dynamic. In fact, including non-citizen members of our community might provide a closer approximation of the actual community sentiment. After all, a lawful permanent resident of California (who has lived in the state for twenty years) might be much more representative of the community than a recent citizen moving from Alabama or New Hampshire.

So why has jury service been limited to citizens? Here are three good reasons.

Citizenship symbolizes and preserves self-government. In a democracy, citizens are the sovereigns and sovereigns have to govern themselves through institutions like the jury. This is a structural power – a reservation of political control to citizens. One cannot outsource the responsibility of self-government, including jury duty. Those who have been entrusted with the responsibility to govern must do the hard work of self-government.

Second, citizenship has come to define our political identity. For much of early American history, we denied full political rights to women and people of color. As a result, the battles for political equality have been framed in terms of citizenship. The Women’s Suffrage Movement explicitly linked jury service and voting in its push for political equality, knowing that just gaining the right to vote would not be enough for women to be considered full constitutional citizens. The Civil Rights Movement in the South began with a series of jury discrimination cases recognizing that jury participation symbolized a measure of constitutional equality. Those victories established that to be a full participant in the constitutional system, one had to identify as a citizen juror.

Finally, citizenship involves a legal and social relationship with the government – a granting of constitutional rights and an acceptance of civic responsibilities. American citizenship is a legal commitment to certain participatory values, including participation in juries. The badge of citizenship marks individuals as belonging to a national community that guarantees certain liberties and opportunity in exchange for democratic participation. As the Supreme Court stated in Powers v. Ohio, jury duty “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law. Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”

A shift to non-citizen jurors would alter this balance of sovereignty, identity, and the relationship between citizen and government. Of course, many non-citizens would make excellent jurors, just as many actual citizens make poor jurors, but the underlying legal relationships would be significantly affected. This change to non-citizens juries may come, as the history of the jury has always evolved with social norms, but such a change would restructure the current balance of rights and responsibilities in a way that Californians and others should weigh very carefully.

Most importantly, the debate over non-citizen jurors has resulted in new awareness that jury service matters. However the California legislature ultimately decides the issue, the controversy has highlighted a deep-felt sense that jury service goes to the heart of what it means to be an American citizen: It is not patriotism alone, but commitment to the participatory values of democracy. Next time you are asked to serve, wear your juror badge proudly.

Andrew Guthrie Ferguson is an assistant professor of law at the UDC David A. Clarke School of Law, and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013).

Marriage equality and the law, 1967 and 2013

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—Howard Ball

In 1967, when a good cigar only cost five cents, a very different U.S. Supreme Court, led by a very different Chief Justice (Earl Warren), faced a choice between a states rights and an equal protection of the laws argument. The same choices face the Justices this term, but I am fearful that the outcome will be very different in 2013.

In 1967, the case Loving v. Virginia came to the Court because Virginia (and 15 other states) enforced its anti-miscegenation statute prohibiting marriage between Caucasians and blacks. At this time, the jurists formed an exceedingly diverse group, much more so than the sitting Court. For one thing, the majority of them had political careers prior to joining. Thus, this intimate contact with politics gave them a much greater sense of the real world than the cloistered world of arcane legalism would have.

Also of note was that the Court was mostly composed of either moderate or liberal jurists; there were no arch conservative “originalists” such as Antonin Scalia, Clarence Thomas, and Samuel Alito sitting as we see in the current Court. And the Loving decision was but one example of the Court’s rock solid commitment to civil rights and civil liberties in the mid-20th century (1953-1969).

Virginia’s lawyers argued that in a federal system, the state has the power in the 10th Amendment to establish rights and limits regarding marriage. The lower federal courts accepted this argument, yet without a dissent, Chief Justice Warren categorically rejected it. He wrote that “the 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” The Court’s commitment to racial marriage equality in Loving came even though 72% of the American public opposed inter-racial marriage that year. (In 2011, 97% of persons under 30 years approved of inter-racial marriage. Clearly, values evolved towards equality.)

In 2013, two cases are in the Supreme Court. One, U.S. v. Windsor, the plaintiff, an octogenarian lesbian whose wife of more than four decades died and who had to pay over $300,000 to the IRS because the 1996 Defense of Marriage Act (DOMA) denied federal benefits to same-sex married couples, argued that the law was an unconstitutional violation of the right of gay and lesbian couples to marry. In the second case, Hollingsworth v. Perry, lawyers challenged the constitutionality of Proposition 8, passed in 2008 by the voters in California. It invalidated an earlier California Supreme Court decision that allowed same sex marriage. The arguments by the lawyers for the gay and lesbian petitioners are based on the concept of equality in the Constitution and are reminiscent of the Loving decision.

In contrast to the expectations of petitioners in 1967, however, the outcome in 2013 is uncertain. First of all, only one sitting Justice, Elena Kagan, has any prior experience outside of the judiciary (she was the U.S. Solicitor General in the first Obama Administration). Two had prior work on the Senate judiciary committee (Stephen Breyer) and as counsel for the ACLU (Ruth B. Ginsburg). All the other members came to the Court from lower federal appellate courts, having no real political world experiences to draw upon. Furthermore, unlike the Warren Court, there is a hard and fast ideological split on the Court: five very conservative jurists and four moderates. And there has been, for more than a decade, an “appreciation” by the conservative majority of the primacy of states’ rights vis-á-vis federal power, a general wariness about the Court moving too hastily when deciding controversial social issues, and an originalist commitment to the historic values and traditions of the American society.

There are only a few options available to the Court in deciding the same-sex cases:

  1. Dismiss the cases as improvidently granted, which would leave DOMA in place and have the 9CA overturn of Proposition 8 restored,
  2. (a) Overturn DOMA, ending a federal imposition and enabling, in the 9 states and the D.C. that allow same sex marriage, all married couples to receive federal benefits, and (b) validate California’s Proposition 8, enhancing, in both cases, the principle of states’ rights in the face of federal laws.
  3. Overturn Proposition 8 and DOMA on individual rights, privacy and “equal protection” grounds, using Loving as precedent.

I am not holding my breath that the last option will be the majority’s choice. It will be one of the first two possibilities; either one will sadden but not surprise me and most Court observers. Paradoxically, unlike public opposition to racial intermarriage in 1967 rejected by a unanimous Court, in 2013, although 58% of Americans support same-sex marriage, it may be rejected by a five person majority. Oh, for the return of a good five cent cigar and the Warren Court!

Howard Ball is Emeritus Professor of Political Science and University Scholar at the University of Vermont and Adjunct Professor of Law at Vermont Law School. He is the author of At Liberty to Die: The Battle for Death with Dignity in America (NYU Press, 2012) and The Supreme Court in the Intimate Lives of Americans (NYU Press, 2002).

Outlawing abortion won’t help children with Down syndrome

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—Alison Piepmeier

My daughter, like all kids, is a delight and a lot of work. Now 4, she talks nonstop, although her speech isn’t always comprehensible. She reads. She performs class conversations for me: “What does a cow say? Moo. Great work, Maybelle!” This evening she sang me “I’m Just a Girl Who Can’t Say No” from “Oklahoma!” (a song that, in my daughter’s case, is clearly untrue because she excels at saying no).

Maybelle has Down syndrome, a condition I knew almost nothing about before she was born. During the four years she has been alive, I have been repeatedly surprised by her curiosity, her individual sense of humor and how much she has accomplished. She doesn’t fit the stereotypes at all. For this reason, it is troubling to me that rates of termination for pregnancies where Down syndrome is identified are extremely high. The most recent researchsuggests that for every child born with Down syndrome, another is terminated. With the increasing availability of noninvasive prenatal tests that can take place within the first few weeks of pregnancy, many in the Down syndrome and disability rights communities fear that abortion rates will skyrocket, that a process often identified as eugenic will escalate, and that Down syndrome will essentially be eliminated — at least among those with the resources for prenatal testing and the desire to terminate.

That is why some parents of children with Down syndrome are celebrating the news that North Dakota has become the first state to outlaw abortion for fetal conditions like Down syndrome. One parent wrote that “it felt like a small victory seeing that abortions based on Down syndrome were banned — like saying, see, individuals with Down syndrome are valued and protected.”

But outlawing abortion is not a reasonable response to this situation. A woman who does not want to be pregnant won’t stay pregnant if there are any mechanisms in place for her to have an abortion.

As part of my research for a book on prenatal testing and reproductive decision-making, I have talked with women who terminated their pregnancies when they learned that the fetus had Down syndrome. For most of these women, abortion was an incredibly painful decision. These were wanted pregnancies in which the fetus was already identified as a child, and often even named.

Repeatedly women told me that they ended the pregnancy not because they wanted a “perfect child” (as one woman said, “I don’t know what ‘perfect child’ even means”) but because they recognized that the world is a difficult place for people with intellectual disabilities.

One woman told me, “The thing is I could not, in good conscience, from the get-go, know that my child has these setbacks in life.” Another identified adulthood as the challenge: “There is no part of caring for an infant or school-aged child with Down syndrome that we didn’t think we could handle. We chose to terminate mostly on the basis of our understanding of the challenges and quality of life he and our family would face if/when he lived to be over age 21: his middle age, and end of life.”

Another woman talked quite a bit about rape. She was assaulted as a child, she knew that the statistics for sexual abuse were high for people with intellectual disabilities, and she was determined that her daughter would not experience that, so that was one of the reasons she terminated her pregnancy. She referred to her abortion several times as “the protective choice.”

All these women grieved, but did not regret, their abortions. A state law banning abortion would not have stopped them from terminating their pregnancies, it would just have made an incredibly difficult process even more difficult for them. Indeed, more than one mother I spoke with traveled out of state for her abortion because the pregnancy was too advanced for her to have an abortion in her home state.

If North Dakota really does want it to be “a great day for babies in North Dakota” and wants to prove that “a civil society does not discriminate against people … for their sex or for disability,” it should make the state a welcoming place for people with disabilities. The state could take the cash reserves it has put aside for legal challenges to its laws and use those funds to train public schools to be meaningfully inclusive (as all the best research shows is the way to go). It could provide easily accessible medical care and early intervention. The state could develop independent — but supported — housing for adults with intellectual disabilities so that there are not waiting lists years long. It could improve criminal justice responses to rape — indeed, North Dakota could become a state that works to prevent rape by training men not to be rapists.

Let women have abortions for whatever reason they choose, but make it a world they would like to bring a child into — even a child with an intellectual disability.

Alison Piepmeier is the director of the women’s and gender studies program at the College of Charleston in South Carolina and the author of Girl Zines (NYU Press, 2009).

[This article originally appeared on the New York Times Motherlode blog. Read it here.]

Two covers for Two Presidents?

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NYU Press takes a different path to publishing a book on the political gridlock in Washington DC

When NYU Press decided to publish a provocative new book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch, by David Orentlicher, arguing in favor of two Presidents, rather than one, it had a number of major challenges, according to Steve Maikowski, Director of NYU Press. “First, we had to ensure that the final manuscript made a very convincing and well-grounded case for such a controversial idea, and the author, a Professor of Law at Indiana University, did indeed ground his argument forcefully in both law and American history. Otherwise, we feared the book would be dismissed out of hand as implausible by pundits and the review media.”

The Press saw the book, which advances this idea of a bipartisan executive branch, as a way to break the political gridlock between the Republicans and Democrats—and especially timely and worthy of serious review attention, given the endless budget impasses and the ongoing fiscal cliff negotiations in Washington.

A far-fetched argument? Not according to the author, or to the early reviewers of the book, including Sanford Levinson, an acknowledged expert on constitutional law and professor of government at the University of Texas School of Law. Levinson wrote, “Can Orentlicher be serious in calling for a plural executive? The answer is yes, and he presents thoughtful and challenging arguments responding to likely criticisms. Any readers who are other than completely complacent about the current state of American politics will have to admire Orentlicher’s distinctive audacity and to respond themselves to his well-argued points.”

The Press was further encouraged by the very favorable pre-publication buzz the book (or rather, the idea behind the book) received from the Washington Post and Boston Globe. What seemed to be an implausible argument of a plural executive branch was called by the Globe, “a fresh lens on a problem we all complain about—and may offer useful guidance for how we should go about trying to reform our government.” Orentlichter went on to appear on ‘Fox and Friends,’ where he was met with just a twinge of cynicism, but also a whole lot of encouragement.

The book also received several excellent pre-publication reviews, including the following praise from Publishers Weekly: “As unlikely as the thought may sound, Orentlicher makes a surprisingly persuasive case for this radical change. Orentlicher delivers a compelling explanation of how such a system would better align with the framers’ original conception of the executive branch… the author has an incisive eye for the problems of contemporary government.”

With the very positive buzz circulating the book, the next challenge was how best to package and market the book to draw attention to the author’s controversial proposal. The NYU Press design and marketing team met the challenge head on, and immediately found a way to encapsulate the author’s argument in an innovative and exciting design.

In a launch meeting for the book, the discussion turned to how best to evoke visually such a two-headed being. Adam Bohannon, a designer at the Press, and Mary Beth Jarrad, marketing and sales director, decided to publish the book with two different covers—one to appeal to Democrats, and another to appeal to fans of the GOP. The Press then commissioned an illustration that would show the pairing of the Democratic donkey and Republican elephant. The result: two covers that look very much the same, but each features one of the iconic partisan images, the donkey or the elephant.

The book was released to the trade in February, with an equal number of copies of each edition in each carton shipped to wholesalers and retailers. The Press decided it would be too burdensome to track sale of each book, which would have required separate ISBNs and increased management of two titles rather than one. “We’ll probably never know which of the two editions sells the best, and as long as we sell them all, we probably will not care to know,” said Jarrad. “The next big question is, when we publish the paperback in 2014, which of the two covers should we use then.”

Waiting for democracy

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—Andrew Guthrie Ferguson

Last November, thousands of citizens waited for hours outside polling places to cast their ballots in the presidential election. When asked why they were willing to wait, most answered in the emphatic language of democratic pride. It is our duty. It is our right. It is our calling as citizens. We are proud to.

Every day in courthouses across America, there are other lines of waiting citizens—lines for jury duty. There are lines to get into the courthouse, lines to check in, lines before you head to the courtroom for jury selection. Yet, if you ask those jurors why they were willing to wait, the language is less emphatic, less proud.

Why do we think of voting as something more connected to our democratic identity?  Why of the twin political rights of voting and jury service—the two markers of full political citizenship—do we value the right to vote more? The answer is that we misunderstand the value and values of jury service to democracy.

Why Jury Duty Matters sets out to reframe the debate by showing the importance of jury service to our democracy. To understand the value of jury service you need to understand its history, its constitutional connection, and its personal relevance to citizenship.

First, the history of the jury is the history of America. The right to a jury trial came over on the first boats to America. Jury protections can be found in the charters that founded the Jamestown and Plymouth colonies. Juries were instituted in the constitutions of each of the Thirteen Colonies and each of the new States. In fact, the denial of the right to a jury trial made it into the Declaration of Independence as one of the grievances of the colonists, helping to spark the Revolutionary War. Not surprisingly then, the right to a criminal jury trial is the only right that makes an appearance in both the original text of the United States Constitution and the Bill of Rights—under Article III and the Sixth Amendment, respectively. Further, you also have the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s right to a Grand Jury.

Then, as America democratized and diversified, the jury was central to the battle for equality. The civil rights movement in the South began by challenging exclusions from jury service. The right to serve as a juror was a badge of citizenship—symbolizing equality. The women’s suffrage movement (both before and well after the Nineteenth Amendment) also involved a particular emphasis on the right to serve as jurors. Equality meant voting and having the right to jury service. Today, paralleling the progress of the various civil rights movements, jurors represent a fair cross section of society, a living symbol of equality in law.

This constitutional history is real, yet most people do not appreciate it when it comes to jury service. Jury duty is the one time where constitutional history and constitutional theory become immediately relevant, because you—the citizen—are a constitutional actor. We—the people—must act, and Why Jury Duty Matters explores why you should accept the call as a constitutional actor.

Second, the jury is a teaching moment where constitutional values come alive in practice. Participation, deliberation, fairness, equality, accountability, liberty, dissent, and the common good—these are constitutional values, and they are embedded in jury service. While voting is one form of participation, jury service is an even more fundamental contribution. It requires working through those other principles, applying due process rules to achieve fairness, deliberating with others, dissenting with tolerance, and practicing equality in a microcosm of one-person, one-vote democracy in the jury room.

These values are also values that we see in other areas of our democratic practice. But in jury service the lessons are longer, the questions deeper, and the practice harder. It is for that reason that Alexis de Tocqueville likened juries to free public schools, always open to teach the civic skills of democracy.

Finally, jury service is personally meaningful. It is the one day that you are required to act like a constitutional citizen. The argument in this book is that you should treat that jury summons like a constitutional invitation. You get to experience it for a day, or more, and hopefully learn a thing or two about your country and the Constitution.

Jury duty is Constitution duty. It is a way for citizens, ordinary folks, to connect to the constitutional principles that guide this nation. Most people see jury duty as a service they do for the court system or for the defendant or parties. But in truth, jury duty is also for the citizen. Jury duty provides constitutional lessons necessary for democracy.

So the next time you are waiting on jury duty, remember you are waiting for democracy. It is just as important as your vote.

Andrew Guthrie Ferguson is Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia. He is co-author of Youth Justice in America and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action.

Silver lining: VAWA’s lapse provides opportunity to reflect

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—Leigh Goodmark

The 112th Congress failed to reauthorize the Violence Against Women Act (VAWA), which expired at the end of last year. Commentators have decried that failure as yet one more facet of the Republican Party’s War on Women, proof that Congress cares little about the plight of women subjected to abuse by their partners. Some have suggested that it is particularly important to immediately fund the Violence Against Women Act because of the financial support it provides for police, prosecutors and courts in the fight against domestic violence. I agree that Congress should pass the Violence Against Women Act—but not because of the damage that the failure to reauthorize the law might do to the criminal justice response. Instead, we should use the opportunity given by Congress’ failure to reauthorize VAWA to rethink whether pouring hundreds of millions of dollars into the criminal justice system is the most effective policy option for combating domestic violence in the United States.

The legal system, particularly the criminal justice system, is the primary response to domestic violence in the United States, largely because, since 1994, VAWA has made that system a priority, channeling hundreds of millions of dollars into criminal justice initiatives designed to eradicate domestic violence.  At VAWA’s inception, the intention to cast domestic violence as a crime, and therefore to address domestic violence through the criminal justice system, was clear. As Democratic Congresswoman Carolyn Mahoney explained during the floor debates on VAWA, “Right now, if you assault a stranger, you go to jail. If you assault your spouse, you get therapy. The Violence Against Women Act brings an end to this backward system.”

Eighteen years later, it’s worth pausing to ask not whether Mahoney was right—she was. VAWA radically changed US policy on domestic violence and ensured that the criminal justice response would be primary. But it is worth pausing to ask what orienting domestic violence law and policy towards the criminal justice system has achieved. A study from the Department of Justice reveals that from 1994 to 2010, domestic violence in the US dropped by 64%, a figure that many have claimed proves the effectiveness of VAWA’s criminal justice focus. But the reality is a bit more nuanced than the soundbyte. From 1994 to 2000, the rate of domestic violence fell 48%—but the crime rate generally fell 47%. From 2000 to 2010, the decline in domestic violence “slowed and stabilized,” according to the study, while the overall crime rate continued to fall.

Given these figures, it is hard to argue that the criminal justice response to domestic violence since 1994 has been particularly effective. Moreover, social science researchers have found scant evidence that the criminal justice reforms of the last thirty years have had any impact on rates of domestic violence, suggesting that the current VAWA proposal to authorize $292 million primarily for police, prosecutors, and courts will simply throw good money after bad.

Which is not to say that VAWA is unimportant. The current version of VAWA, the one that the Congress failed to pass, is particularly important for the same reasons that it has been controversial: because it extends greater protection to those groups—immigrant women, Native American women, and lesbians, gay, bisexual and transgender people subjected to abuse—who are most marginalized and most in need of assistance. Moreover, VAWA funds other important services for people subjected to abuse, including transitional housing and civil legal assistance.

But VAWA could do so much more. A good start would be to redirect some of the $292 million that is currently earmarked for the criminal justice response into other kinds of assistance for people subjected to abuse. That assistance could target some of the larger structural issues that contribute to domestic violence or fund innovative programs that seek to bring justice to people subjected to abuse without requiring them to engage with the state. VAWA could support programs that provide direct economic assistance, community-based justice responses, restorative justice programs, and reproductive health initiatives.

At the time of its passage, VAWA was revolutionary. It could be revolutionary again by refocusing its efforts on more promising policy initiatives. The criminal justice response to domestic violence has had eighteen years of dedicated funding with underwhelming results. The time has come to think more creatively about how to achieve justice for people subjected to abuse. The delay in passing VAWA provides us with that opportunity.

Leigh Goodmark is Associate Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law. She is the author of A Troubled Marriage (NYU Press, 2012).

Russia’s ban and the real issues facing adoption today

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—Laura Briggs

The Russian adoption ban and the U.S. Magnitsky Act offer all the absurdity of the Cold War, with less geopolitically at stake. Both sides are claiming the other is cruel to children, and neither is making much sense. There are real issues to talk about related to the care of children, but the conversation in the blogosphere and the press on both the Russian and U.S. sides relies on caricatures of each other, children, and adoption.

In early December, Congress passed and Obama signed the Magnitsky Act, which was aimed at Russian officials responsible for the death in prison of Sergei Magnitsky, a lawyer who had supposedly uncovered a tax fraud scheme by Russian officials against Hermitage Capital Management, a U.K.-based financial company that lobbied heavily for the Act. It also imposed visa and financial sanctions against all Russian officials responsible for “gross violations of human rights.” It’s unclear at best what this means, but it does seem to violate U.S. and international law—Russian officials apparently could have assets frozen and even be incarcerated if they set foot on U.S. soil, based simply on allegations by U.S. NGOs.

Russia responded by denouncing the hypocrisy of the U.S.—noting human rights abuses in Guantánamo’s prison—and its parliament passed the Dima Yakovlev Act, which banned U.S. NGOs, including those involved with adoptions, from operating in Russia. Dima Yakovlev was an adopted Russian toddler who died in July 2008 when his new father left him strapped in a hot car for nine hours in a Washington, D.C. area parking lot. The case made headlines in Russia when the father was acquitted on manslaughter charges, joining a steady stream of other terrible cases reported in the press of Russian adoptees being beaten, neglected, and killed by their U.S. parents—igniting calls for an international adoption ban.

While the actions of a mother in Tennessee, who put her seven-year old adopted son from Russia on a plane back to that country in 2010, made headlines in the U.S., for Russians it was just another in a long series, a steady drumbeat of distressing stories about serious abuse of Russian adoptees. While there is little doubt that it was the Magnitsky Act that precipitated the ban on U.S. adoptions from Russia, it wouldn’t have been possible to mobilize so quickly to stop them if there were not already a great deal of pre-existing political sentiment in this direction.

The whole thing seems like nothing so much as the Nixon-Krushchev kitchen debate, the 1959 exchange between the two leaders about a washing machine in a model house they were touring with press in tow. Krushchev accused the U.S. of “capitalist attitudes” that exploited and oppressed women in the home. Nixon touted the U.S. standard of living, and said that while misogynist attitudes were universal, the purpose of things like washing machines was to make things easier for “our housewives.”

The Magnitsky-Yakovlev exchange mirrors this conversation in all its foolishness. The trouble with the U.S. position is that it is entirely too sentimental about how great the nuclear family is for children, while the Russian side is too cynical. For one thing, the U.S. press keeps talking about Russian “orphans.” But almost none of the children living in large Russian institutions—about 120,000, according to most estimates—are actually orphans. They are, like the 400,000 children in the U.S. child welfare system, victims of variously bad circumstances, from parental homelessness to alcoholism or mental illness to abuse. Some have physical or emotional disabilities that make it very difficult for them to live in a family. Certainly the Russian child welfare system has few things to recommend it, being among other things severely underfunded. (One possibly productive side-effect of all of this is the promise of more funding flowing to Russian child-welfare institutions.)

On the U.S. side, after our own experiments with large-scale institutions for children through the 1960s, we have swung to a new anti-institutional extreme that is informing our desire to “rescue” Russian “orphans.” We imagine that virtually all children—no matter what their history, their emotional or physical state, or the likelihood that their parents might return for them or at least visit—would be better off in a nuclear family. This is sentimental and naïve. While most adoptions of children from Russian institutions go well, post-institutional children or those dealing with the aftermath of abuse—whether they’re from U.S. foster care, Russian orphanages, or any number of other places—sometimes have extremely challenging behaviors, outside the box of normal childhood challenges. Some are frighteningly violent, which accounts for some (although by no means all) of the reports of U.S. parents responding with terrible violence of their own to Russian adoptees. The Tennessee single mother who returned her son to Russia had told the local sheriff in her town that the seven-year-old had made credible threats that he would burn the house down while she and her other children slept. She got no help. As the viral circulation of the blog post known as “I am Adam Lanza’s mother” made clear, we have few supports and essentially no idea what to do when families say they are afraid of their children’s violence. This, alongside a rejection of the therapeutic culture that seems to have little to offer either parents or children in these situations, provokes a certain acquiescence and even support for the kind of “spare the rod, spoil the child” parenting that can lead to horrific abuse.

The Russians, like Krushchev in 1959, imagine our families as places that exploit the weak and vulnerable—children, this time.

There is nothing good about the Magnitsky-Yakovlev exchange, nor what it produces for institutionalized Russian children or adoptees in the U.S. But let’s use this opportunity to talk about real issues facing children, parents, and states in the U.S., Russia, and across the globe.

>> This post also appeared on the author’s blog. Click here for more.

Laura Briggs is Associate Professor and Department Head of Gender and Women’s Studies at the University of Arizona. Her book International Adoption: Global Inequalities and the Circulation of Children was published by NYU Press in 2009.

Election 2012: The death of the Southern Strategy?

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—Steven A. Ramirez

For many decades the GOP played the politics of racial divisiveness to further the cause of tax cuts, deregulation and a more limited federal government. The election of 2012 promises to end this ugly chapter in American politics. The ultimate outcome will change our political landscape in far-reaching ways.

Surprisingly, Republican leaders openly admit that their party used race to appeal to white voters (particularly in the old Confederacy) disaffected with the perceived embrace of racial equality within the Democratic Party. Republican strategist Kevin Phillips openly admitted to seeking out the votes of “negrophobe whites” in the New York Times in 1970. The Nation very recently posted the actual audio recording of Reagan Administration Official Lee Atwater articulating how the GOP implemented the Southern Strategy in sordid (and highly offensive) detail in 1981. Atwater unabashedly ties the politics of race to economic issues such as tax cuts. Two Republican National Committee Chairs actually apologized for the Southern Strategy.

In my book Lawless Capitalism, I argue that the politics of racial division led directly to the subprime debacle through massive financial deregulation beginning in the Reagan Administration. Deregulation of mortgage lending, the basic structure of globalization, and financial consolidation all find their roots in the Reagan Administration. Indeed, the fundamental explosion in American debt started in 1980. To be fair, the Democrats contributed much to the crisis too. The crisis resulted from longstanding and bipartisan policies. Nevertheless, the Southern Strategy dominated the political scene in the decades preceding the subprime debacle.

The election of 2012 may spell the end of the Southern Strategy, at least as a means of GOP success. African American and Latino voters turned out in record numbers. Asian American voters supported President Obama over Mitt Romney by 73-26, a margin that exceeds Obama’s advantage among Latino voters.

The viability of the GOP’s Southern Strategy will continue to fade. Asian Americans form the fastest growing minority group in the nation. A recent study by the Pew Hispanic Research Center projects that the voting power of Hispanics will double by 2030—to nearly half of the electorate. If the Democrats continue to run candidates of color to energize this base, then these growing voting groups will constitute a formidable foundation for a durable Democratic majority. Meanwhile, the GOP base still today favors discriminatory practices, such as anti-immigration laws and legislation designed to suppress the vote of minority communities.

On issues relating to immigration, education, voting rights, the war on drugs, and many others, a fundamental change in political calculus is afoot. I contend the change may be even more monumental than such core issues. Ultimately, without the ability of governing elites to use the politics of racial division to further their interests, the very high level of economic inequality currently burdening our nation may be unsustainable.

Steven A. Ramirez is Professor of Law at Loyola University of Chicago, where he also directs the Business and Corporate Governance Law Center. His book, Lawless Capitalism: The Subprime Crisis and the Case for an Economic Rule of Law, will publish in December 2012.

Women gain in Election 2012, but glass ceiling remains

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—Margaret S. Williams

In his acceptance speech, President Obama noted that the richness of America comes not from its wealth, but instead from the bonds that hold us together despite our differences. In fact, much of his victory speech on election night focused on celebrating the differences we have, and recognizing that everyone can contribute to bringing America back from its recent hard times.

This emphasis on diversity was echoed in the news media as well, which focused on the “substantial gains” made by women. Indeed, the number of women in Congress increased from 16.8% to a likely 17.9%, according to the Center for American Women in Politics. In his first term, President Obama appointed a Cabinet that was 33% female and brought women’s representation on the Supreme Court also to 33%. Gains for women indeed, but where do we rank internationally?

In our forthcoming book, Contagious Representation, Frank Thames and I explore women’s political representation in democracies around the world. Women’s representation in Congress in 2013 will put the U.S. on par with the average democracy…in 2009. The U.S. will still rank behind developing countries such as Rwanda and our economic peers in Scandinavia. U.S. women are still under the ultimate glass ceiling by not only never holding executive office (an event that has occurred in 39 other democracies since 1945) but also never being a major party’s nominee. The minority of women on the Supreme Court is noteworthy not only for the substantial increase under the Obama Administration but also because it is the only branch of government on which the U.S. is above the global average in women’s representation. 33% is above average.

Yes, the gains for women in the 2012 election should not be discounted. Many were hard fought, but perhaps that is exactly the point. It was a tough, expensive election, and it raised the number of women in Congress by 1.1%. The rate of progress is not exactly inspiring; it would take 32 more elections (64 years) to reach parity.

If we are really a country that celebrates diversity and wants to see more women participating in politics, maybe it is time to consider more radical measures. Both parties could do more to bring women into the political fold. Instead of just recruiting women, why not set targets for female candidates? This is not nearly as far as other democracies have gone to ensure greater representation of women, and it is entirely within both parties’ control. As we note in our book, these targets are proven to increase the number of women in politics, especially legislative office. From there, gains in legislative representation have been shown to open other avenues of participation for women, including executive office.

Instead of the two major parties trying to single out a group that will put them over the edge on election day, why not consider the possibility that both parties should do more to bring all people into the political process? The eyes of the world are on us as we celebrate a 1% increase. Perhaps it is time we do more.

Margaret S. Williams is the co-author (with Frank C. Thames) of Contagious Representation: Women’s Political Representation in Democracies around the World (forthcoming from NYU Press, January 2013).

Stop the bleeding: Prescriptions to heal racial economic inequality in America

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—F. Michael Higginbotham

Recently, Americans elected Barack Obama as President for a second term. When Obama began his first term, economic disparities between blacks and whites were alarmingly wide. Black unemployment, poverty, and homelessness were twice that of whites. Wealth accumulation for blacks was one twentieth of what it was for whites. A similar disparity existed for Latinos/as. During the last four years, the gap widened.

It’s important to recognize that racial inequality today is a reality. There is no such place as a post racial America. While the causes of racism are more complex than they were under discriminatory laws of the Jim Crow Era, today this divide is primarily caused by choices that result in economic hardship, housing isolation, education inequity, and criminal justice stereotyping.

One choice is exemplified in the story of Tim Carter and Richard Thomas, arrested in 2004 in separate incidents three months apart in nearly the same location in St. Petersburg, Florida. Police found one rock of cocaine on Mr. Carter, who is white, and a crack pipe with cocaine residue, on Mr. Thomas, who is black.

Both men claimed drug addictions, neither had any prior felony arrests or convictions, and both men potentially faced five years in prison. Mr. Carter had his prosecution withheld, and the judge sent him to drug rehabilitation. Mr. Thomas was prosecuted, convicted and went to prison. Their only apparent difference was race.

Another choice is reflected in the pattern of property ownership and the fact that whites continue to embrace the “tipping point” notion in housing integration. “Tipping point” bigotry inspired Jeremy Parady, who pleaded guilty in 2005 to conspiracy to commit arson in a series of fires in a new housing development in Southern Maryland. Parady admitted that he set fire to this development because many of the buyers were blacks and the surrounding neighborhood was mostly white.

While these disparities have been persistent, they need not be permanent. As a long term strategy, let’s equalize funding for public schools, prohibit racial profiling, eliminate laws that have a severe racially disproportionate impact, redefine our notion of racism to include negligent acts, criminalize intentional acts of racism, and increase integration in neighborhoods and schools. Such changes would go a long way to reducing current racial inequities.

For now as a start, let’s pass the American Jobs Act which contains several components that would reduce racial inequality in employment. First, the act is aimed at revitalizing and rebuilding communities where unemployment has risen most sharply, especially urban areas. Many such areas have a high percentage of black unemployment. Second, the act is aimed at neighborhoods where the foreclosure rates are highest. This includes many areas with high concentrations of blacks. Third, the act is aimed at decreasing youth unemployment by creating summer and year-round jobs for impoverished teenagers and young adults. Many of these youths are black with little chance of finding employment under current economic circumstances.

Too many Americans are hurting under this extended economic slump. Blacks and Latinos/as have been particularly hit hard with unemployment near 15%. Healing the racial divide must begin soon. Stopping the bleeding in employment discrimination must begin now.

F. Michael Higginbotham is the Wilson H. Elkins Professor of Law at the University of Baltimore School of Law. He is the author of Race Law: Cases, Commentary, and Questions and Ghosts of Jim Crow: Ending Racism in Post-Racial America (forthcoming from NYU Press, March 2013).