Harrison Murno Aff
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| Apple Valley | 1 | Opponent: Northern Valley HS Independent JS | Judge: Saianurag Karavadi AC - Homemakers |
| Columbia | 1 | Opponent: Princeton PE | Judge: Kayla Graham AC - lay |
| Duke Invitational | 1 | Opponent: Montville AA | Judge: Charles Karcher 1AC - Racial Cap |
| Glenbrooks | 2 | Opponent: Southlake Carroll SD | Judge: Glenda Ferguson AC - Prisons aff |
| Yale Invitational | 1 | Opponent: Lake Highland Prep PS | Judge: Parth Misra 1AC - Gene-Editing Aff |
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0 - Contact InformationTournament: Any | Round: 1 | Opponent: Any | Judge: Any I disclose and format my documents the way I learned on my team. If you need me to change my docs (i.e change the highlighting color, change the font) I am very happy to accommodate. If you need me to disclose a different way, let me know and I will see what I can do based on the situation. | 9/18/21 |
0 - NavigationTournament: Any | Round: 1 | Opponent: Any | Judge: Any | 9/18/21 |
NovDec - Homemakers affTournament: Apple Valley | Round: 1 | Opponent: Northern Valley HS Independent JS | Judge: Saianurag Karavadi Part 1: ROJ The Role of the Judge is to Promote the Reclaiming of Educational Spaces, which means they must endorse our ability to use debate for critical discourse. Judges can no longer pretend that they’re “just part of the game” and don’t have a real impact on participants. “Close the doors!” Richard Sodikow would bellow across the auditorium at the top of his lungs. His voice rang through the enormous room and his order was immediately followed. The doors would be closed and the hundreds of high school students who attended the prestigious fall debate tournament at the Bronx High School of Science would be locked in, together. The fire alarm would sound, but we would not leave. We did not have to. We were already protected. The alarm was for the people outside of Richard’s purview. The children around him—high school students who came from across the United States to compete in academic debate—did not have to worry. The race, class, or gender of the debaters did not matter. We were all inside, together. Protected by the adult who took responsibility for our care. That type of care, that type of concern for all children is missing from contemporary Lincoln-Douglas debate. Our community stands idly by while certain children, coaches, judges and programs are blatantly bullied online by institutions the debate community actively supports. While the research on the bystander effect is over 50 years old, the internet and social media has exacerbated the extent, and the impact, of inaction on online mediums. Professor Vincent Hendricks explains the 21st century bystander effect when he elucidated: The bystander effect occurs because people observe each other before assisting. And the more people observing each other the stronger the signal that help is neither required nor appropriate. Once you take such public signals to social media in terms of, say, aggregated likes, you may just reinforce bystander behavior even more. In the case of cyberbullying, by innocently “liking” you may be part of movement to establish a strong public signal about what the correct collective response is. You register your “like” with no obligation to actually intervene and non-intervention may just become the norm. (Hendricks) High school debate, a uniquely educational and academic activity fostering the promotion of civil discourse, ought to reflect the basic principle that children — of all races, classes, genders, sexual orientations — are sacrosanct, and that their participation should be encouraged. The circuit Lincoln-Douglas virtual community, however, has proven that despite our focus on philosophy and morality in debate rounds, we are willing to watch some children be slaughtered online. In this note we highlight the importance of a fully inclusive debate space, warning that the community’s reluctance to create virtual norms and its refusal to speak out against often racist, always destructive online bullying endangers not only the few students and programs who are publicly sacrificed, but that this unchallenged online behavior threatens the legitimacy of our activity as a whole. One or more of the authors were directly involved in many of the incidents described in this essay. Federici 1 Housework has become a part of women’s personality and attributions. But exploited as you might be, you are not that work. Today you are a postman, tomorrow a cabdriver. All that matters is how much of that work you have to do and how much of that money you can get. But in the case of housework the situation is qualitatively different. The difference lies in the fact that not only has housework been imposed on women, but it has been transformed into a natural attribute of our female physique and personality, an internal need, an aspiration, supposedly coming from the depth of our female character. Housework had to be transformed into a natural attribute rather than be recognized as a social contract because from the beginning of capital’s scheme for women this work was destined to be unwaged. Capital had to convince us that it is a natural, unavoidable and even fulfilling activity to make us accept our unwaged work. In its turn, the unwaged condition of housework has been the most powerful weapon in reinforcing the common assumption that housework is not work, thus preventing women from struggling against it, except in the privatized kitchen – bedroom quarrel that all society agrees to ridicule, thereby further reducing the protagonist of a struggle. We are seen as nagging bitches, not workers in struggle. Yet just how natural it is to be a housewife is shown by the fact that it takes at least twenty years of socialization – day-to-day training, performed by an unwaged mother – to prepare a woman for this role, to convince her that children and husband are the best she can expect from life. In fact capital has a dual policy, one for the middle class and one for the proletarian family. It is no accident that we find the most unsophisticated machismo in the working class family: the more blows the man gets at work the more his wife must be trained to absorb them, the more he is allowed to recover his ego at her expense. You beat your wife and vent your rage against her when you are frustrated or overtired by your work or when you are defeated in a struggle (to go into a factory is itself a defeat). The more the man serves and is bossed around, the more he bosses around. A man’s home is his castle . . . and his wife has to learn to wait in silence when he is moody, to put him back together when he is broken down and swears at the world, to turn around in bed when he says ‘I’m too tired tonight,’ or when he goes so fast at lovemaking that, as one woman put it, he might as well make it with a mayonnaise jar. (Women however have always found ways of fighting back, or getting back at them, but always in an isolated and privatized way. The problem, then, becomes how to bring this struggle out of the kitchen and bedroom and into the streets.) It is important to recognize that when we speak of housework we are not speaking of a job as other jobs, but we are speaking of one of the most pervasive manipulations, most subtle and mystified forms of violence that capitalism has perpetrated against any section of the working class. True, under capitalism every worker is manipulated and exploited and his/her relation to capital is totally mystified. The wage gives the impression of a fair deal: you work and you get paid, hence you and your boss are equal; while in reality the wage, rather than paying for the work you do, hides all the unpaid work that goes into profit. But the wage at least recognizes that you are a worker, and you can bargain and struggle around and against the terms and the quantity of that wage, the terms and the quantity of that work. To have a wage means to be part of a social contract, and there is no doubt concerning its meaning: you work, not because you like it, or because it comes naturally to you, but because it is the only condition under which you are allowed to live. Even so, it hardly succeeds. No matter how well-trained we are, few are the women who do not feel cheated when the bride’s day is over and they find themselves in front of a dirty sink. Many of us still have the illusion that we marry for love. A lot of us recognize that we marry for money and security; but it is time to make it clear that while the love or money involved is very little, the work which awaits us is enormous. This is why older women always tell us ‘Enjoy your freedom while you can, buy whatever you want now. . . ’ But unfortunately it is almost impossible to enjoy any freedom if from the earliest days of life you are trained to be docile, subservient, dependent and most important to sacrifice yourself and even to get pleasure from it. If you don’t like it, it is your problem, your failure, your guilt, your abnormality. We must admit that capital has been very successful in hiding our work. It has created a true masterpiece at the expense of women. By denying housework a wage and transforming it into an act of love, capital has killed many birds with one stone. First of all, it has got a hell of a lot of work almost for free, and it has made sure that women, far from struggling against it, would seek that work as the best thing in life (the magic words: “Yes, darling, you are a real woman”). The black woman’s experience in America provides arguably the most overwhelming evidence of the persistent and ongoing drag from gender and race discrimination on the economic fate of workers and families. Black women’s labor market position is the result of employer practices and government policies that disadvantaged black women relative to white women and men. Negative representations of black womanhood have reinforced these discriminatory practices and policies. Since the era of slavery, the dominant view of black women has been that they should be workers, a view that contributed to their devaluation as mothers with caregiving needs at home. African-American women’s unique labor market history and current occupational status reflects these beliefs and practices. Compared with other women in the United States, black women have always had the highest levels of labor market participation regardless of age, marital status, or presence of children at home. In 1880, 35.4 percent of married black women and 73.3 percent of single black women were in the labor force compared with only 7.3 percent of married white women and 23.8 percent of single white women. Black women’s higher participation rates extended over their lifetimes, even after marriage, while white women typically left the labor force after marriage. Differences in black and white women’s labor participation were due not only to the societal expectation of black women’s gainful employment but also to labor market discrimination against black men which resulted in lower wages and less stable employment compared to white men. Consequently, married black women have a long history of being financial contributors—even co-breadwinners—to two-parent households because of black men’s precarious labor market position. Black women’s main jobs historically have been in low-wage agriculture and domestic service.1 Even after migration to the north during the 20th century, most employers would only hire black women in domestic service work.2 Revealingly, although whites have devalued black women as mothers to their own children, black women have been the most likely of all women to be employed in the low-wage women’s jobs that involve cooking, cleaning, and caregiving even though this work is associated with mothering more broadly. Until the 1970s, employers’ exclusion of black women from better-paying, higher-status jobs with mobility meant that they had little choice but to perform private domestic service work for white families. The 1970s was also the era when large numbers of married white women began to enter into the labor force and this led to a marketization of services previously performed within the household, including care and food services. Black women continue to be overrepresented in service jobs. Nearly a third (28 percent) of black women are employed in service jobs compared with just one-fifth of white women. Women so focused on home and family, Friedan pointed out, formed a desirable audience for the advertisers of personal and household goods trying to reach them. “In all the talk of femininity and woman’s role,” she wrote, “one forgets that the real business of America is business. But the perpetuation of house- wifery, the growth of the feminine mystique, makes sense (and dollars) when one realizes that women are the chief customers of American business.” What Friedan called “the sexual sell” included advertisements that promoted youth, physical beauty, and conventional femininity, playing upon women’s anxieties about the need to appear sexually desirable to men. Admen went even further in their use of the “sexual sell” by homing in on housewives’ discontent. As Friedan put it, “Somehow, somewhere, someone must have figured out that women will buy more things if they are kept in the underused, nameless- yearning, energy- to- get- rid- of state of being housewives.”3 Advertisers and motivational researchers, recognizing that housework was dull and endless, tried to make it seem more creative, requiring expertise and the skillful use of products and equipment. Other conveniences, from appliances to cake mixes, could be sold as time- savers that allowed women to bestow even more attention on their families. And the training for a life of endless consumption began early: “Like a primitive culture which sacrifi ced little girls to its tribal gods, we sacrifi ce our girls to the feminine mystique, grooming them ever more effi ciently through the sexual sell to become consumers of the things to whose profi table sale our nation is dedicated.”4 Here, Friedan joined contemporary social commentators such as Vance Packard and John Kenneth Galbraith in critiquing the prevalence of empty consumption in postwar society, but added an understanding of its gendered dimensions.5 The cultural image of women, she informed readers, was harnessed to capitalism. Advocacy I defend the statement, “Resolved: A just government ought to recognize an unconditional right to strike for homemakers.” This means that homemakers don’t have to cook, clean, take care of children, have sex. It was the feminist movement that began the analysis of sexuality that has given the power to prostitutes to say, “I am a sex worker” and to come out of the shadows and to struggle and say, “my struggle is also a feminist struggle.” It was the women’s movement that started analysing sexuality as part of housework, as part of the services that women are expected to give to men, as part of the marriage contract that women are obliged to give. Until the 1970s or 1980s, the crime of rape in the family did not exist in the United States, because it was understood that when you get married, the man acquires the right over your body and has the right to get sexual services from you at any time. It was understood – and the feminist movement has analysed it – that men always sell themselves, or try to sell themselves, in the wage labour market. We also sell ourselves in the marriage market. For many women, getting married is an economic solution, because the division of labour has been organised in such a way that it is much more difficult for women to get access to wage jobs. So, many women marry not because they want to, but as an economic solution for their lives. And you have sex because that is part of your job. We performed this deconstruction of sexuality, of the family, of the relationship between men and women, and we said that marriage is prostitution. In many cases, you can have a good relationship with your husband, but it doesn’t matter. The reality is that the way the state has constructed marriage has forced women to rely on marriage for survival and therefore, to offer sex in exchange for subsistence. The state has put us into the situation of prostitution. Shaw Sex strikes have worked to create political power. In a recent interview with Marie Claire, singer Janelle Monáe called for a sex strike in the name of women’s rights. “People have to start respecting the vagina,” she said. “Until every man is fighting for our rights, we should consider stopping having sex.” It’s not such a crazy idea: Women have withheld sex to protest social injustices and advocate for political reform throughout history. Many of these strikes have proven successful—even if Monáe’s idea would likely fail in the US. Most people associate the idea of sex strikes with the ancient Greek play Lysistrata, in which women team up to bring about the end of the Peloponnesian War. But sex strikes have spanned hundreds of years and multiple countries. In 1600, for example, Iroquois women refused to engage in sex as a way to stop unregulated warfare. The tactic worked: They gained veto power concerning all future wars and paved the way for future feminist rebellions. In more recent years, sex strikes have surged in popularity as a means to achieve political ends. In 2003, Leymah Gbowee organized a well-publicized sex strike to end Liberia’s brutal civil war. Not only did warlords agree to end the violence, Gbowee was later awarded a Nobel Peace Prize for her efforts. Three years later, female partners of gang members in the Colombian city of Pereira withheld sex to demand civilian disarmament and a reduction in violence. According to the Global Nonviolent Action Database, the strike’s results were clear: Pereira’s murder rate fell by 26.5 by 2010, a huge accomplishment for a city that had a homicide rate twice the national average when the sex strike began. Kenyan women followed suit in 2009, enforcing a sex ban until political infighting ceased. Within one week, there was a stable government. And in the Philippines, a sex strike led to peace in a violence-plagued Mindanao Island village. This intimate form of protest has drawn criticism—namely, that women shouldn’t have to resort to sex in exchange for power. But there’s no denying that it produces results. (And yes, women should have access to other avenues of power, but systemic and institutional sexism often precludes this from becoming a reality.) Howard A strike is necessary to publicize this abuse. For Icelandic men, this day became known as the “Long Friday”. With no women to staff desks and tills, banks, factories and many shops were forced to close, as were schools and nurseries – leaving many fathers with no choice but to take their children to work. There were reports of men arming themselves with sweets and colouring crayons to entertain the swarms of children in their workplaces, or bribing older children to look after their siblings. Sausages (easy to cook, of course, and a hit with children the world over) were in such demand that shops sold out; children could be heard giggling in the background while male newsreaders reported the day’s events on the radio. Many of the greatest successes of feminism have come in moments when boots were on the ground; and our bodies elsewhere to the posts ascribed to women by patriarchal capitalism. In the UK, public reaction to the sexual violence meted out against the 300 women who marched to parliament demanding women’s suffrage on 18 November 1910, Black Friday, was instrumental in gaining the vote for women. The 1968 strike by Ford’s women sewing machinists at Dagenham, which was followed by 1970 strikes by women clothing workers in Leeds, were landmark labour-relations dispute that triggered the passing of the Equal Pay Act 1970. Yet domestic labour has always been a tricky injustice to protest against. It takes place in the privacy of the home, making it difficult for women to see each other doing this work and to collectively acknowledge that men do not share equally in its burden (and they don’t: the average British woman still contributes 60 more washing, wiping and childcare a week than the average British man, even as the pandemic has increased this work to around nine hours per day). And there can also be dire consequences if we withdraw this labour: children uncared for and vulnerable relatives unfed. “A women’s strike is impossible; that is why it is necessary,” claims Women’s Strike Assembly (WSA), an activist alliance that, to mark last week’s International Women’s Day, called for a series of banner memorials to be erected around the UK to declare why #westrike as women (or, just as importantly, why we can’t). In a manifesto published in November, WSA wrote: “We strike because we are tired of our labour being taken for granted. We strike because we now have to do a triple shift: our paid work, our unpaid domestic labour and educating our children during the pandemic.” In Liverpool, Bristol and Edinburgh women gathered, last Monday, in socially distanced clusters toting their banner memorials. “#westrike because we are tired. Very, very tired,” a banner in Liverpool read and a memorial painted by Bristol Sisterhood stated, simply: “Fuck macho bullshit, women on fire.” Many of the social media protests, however, indicated why last Monday saw no wholesale abandonment of women’s posts. “I am a freelancer and I would not get paid (or lose my client!). But I’m striking with my compañeras in mind and spirit,” one IWD banner read, and another: “I cannot strike but I lit a candle in solidarity.” Recent years have seen a flowering of strikes against gendered labour in Spain and South America. In 2018, six million women joined Spain’s 2018 “Dia Sin Mujeres’ (day without women), including Madrid’s Manuela Carmena and actress Penelope Cruz, as “feminist men in solidarity” staffed a network of collective nurseries. Old-fashioned mother’s aprons, the symbol of the strikes, were stitched in solidarity workshops and strung from balconies. But, in Britain, women’s general labour strikes have been conspicuously absent. Selma James, the cofounder of 70s marxist activist project Wages for Housework, has a theory to account for this lack. She points out that as the power of unions dwindles, the climate in Anglo-Saxon countries is less hospitable to gestures of withdrawn labour, even as feminist identity marches gain broader support. Without union protection, British and north American women who strike from paid work risk losing their jobs; to the single mum on the breadline in a pandemic, strikes, in this context, seem the preserve of privileged white feminists. For all this, calling political attention to the pandemic’s third shift is an urgent project. Only 36 of British women have been able to continue working full time alongside their caring responsibilities during the pandemic, compared to 66 of men, and mothers are more likely to have quit or lost their job. As the pandemic recedes over a nation of shattered women, there will be opportunities for direct action. Women’s March, Pregnant Then Screwed and Women’s Strike Assembly, among others, are calling for protests and marches to highlight the structural sexism that’s left women bearing the brunt of reproductive labour during this year of crisis. James, in the meantime, advocates a daily constellation of “small resistances”: banging pots and pans at your window; stringing up a banner and apron; radically lowering domestic standards. Forty-five years after the Women’s Day Off, Iceland has ranked top in the World Economic Forum’s Global Gender Gap Report – an index that examines educational opportunities, life expectancy, pay equity and the average time spent on housework – in 13 of the past 16 years. Yes, it’s impossible for many women to strike; but can we afford not to? To the women of the Wages for Housework movement, the Icelandic strike was a salutary example of their politics in action. Internationalist, anti-capitalist, and feminist, the movement argued that by focusing on women’s unpaid labor inside the home—child care, cleaning, emotional support, even sex—activists could highlight more fundamental inequalities based on gender. And the best way to do so was to refuse to do that kind of work. As the International Feminist Collective (IFC), which launched the Wages for Housework campaign, wrote in a press release: “We don’t want just to demonstrate our strength but to use it and increase it to get what we want…. We are tired of our work and of not having any time of our own.” That press release is just one of the trove of documents collected in the new book Wages for Housework: The New York Committee 1972–1977: History, Theory, Documents. Published by Autonomedia and edited by Silvia Federici, one of the core members of that committee, and artist and scholar Arlen Austin, Wages for Housework is one of those rare books that takes the reader inside the theory and practice of a radical movement, reproducing posters and flyers, photographs, internal strategy papers, and media clips along with previously published articles. Wages for Housework helps to recover a movement that had modest origins but spread around the world within several years. From the gathering in Padua, Italy, that launched the international campaign in 1972 to the spin-off groups like the New York Committee, the women of Wages for Housework made arguments and demands that were well ahead of their time, helping to fill in the gaps overlooked by the mostly male left and the mostly liberal mainstream feminist movement, both of which have long excluded the home and the processes of social reproduction from their activism and thinking. As the IFC’s launch statement (which served as a founding document for the New York Committee) put it: We identify ourselves as Marxist feminists, and take this to mean a new definition of class, the old definition of which has limited the scope and effectiveness of the activity of both the traditional left and the new left. This new definition is based on the subordination of the wageless worker to the waged worker behind which is hidden the productivity, i.e., the exploitation, of the labor of women in the home and the cause of their more intense exploitation out of it. Such an analysis of class presupposes a new area of struggle, the subversion not only of the factory and office but of the community. To demand wages was to acknowledge that housework—i.e., the unwaged labor done by women in the home—was work. But it was also a demand, as Federici and others repeatedly stressed, to end the essentialized notions of gender that underlay why women did housework in the first place, and thus amounted to nothing less than a way to subvert capitalism itself. By refusing this work, the Wages for Housework activists argued, women could help see to “the destruction of every class relation, with the end of bosses, with the end of the workers, of the home and of the factory and thus the end of male workers too.” In a moment when women’s protests and talk of class struggle are both resurgent, the intersectional analysis that Wages for Housework put forth (years before Kimberlé Crenshaw coined the term) is more relevant than ever. It noted that to ignore women’s wageless work is also to ignore that of so many others, from the slaves who built the United States to those who still labor basically unwaged in prisons: “In capitalism,” as the Wages for Housework committee members wrote in 1974, “white supremacy and patriarchy are the supremacy and patriarchy of the wage.” But Wages for Housework also sought to improve women’s lives in more immediate ways, through struggles around health care and reproductive rights, Social Security, and the criminalization of sex workers, and it showed the possibilities of radical action even in the most conservative of eras. Wages for Housework was critical of the understanding of work both on the socialist left and in mainstream feminism. It criticized liberal feminists for embracing work as liberation, for turning away from reproduction as an issue or viewing it narrowly through the lens of abortion rights, and it criticized socialists for overlooking the work that occurred off the factory floor. In the 1980s, members of the New York Committee, which had disbanded in 1977, put out Tap Dance, a journal reproduced in this volume and strikingly similar to the zines that were published only a few years later during the Riot Grrrl movement, which criticized feminism that had turned too polite and directed too much of its energy toward lobbying, petitioning, letter-writing, and legislating at the federal level. “This is like facing the rising flood water with a tea cup,” the group wrote, a sentiment hard not to sympathize with today. There are plenty of collections by the women of Wages for Housework—Federici’s Revolution at Point Zero and Selma James’s Sex, Race and Class are great entry points—but the gift that this one gives is a glimpse into the day-to-day workings of an activist movement. Drawing inspiration from Italian workerism and Detroit’s League of Revolutionary Black Workers, Wages for Housework understood the nuclear family not as “natural” but as a hierarchical structure particular to a certain period of capitalism. As men’s wages continued to rise and, in the second half of the 20th century, more married working-class women made homemaking their job, their husbands effectively became their bosses and their work a supposed labor of love. Moreover, that ideological conception shaped the wages that women were paid if they did take jobs outside the home. In order to challenge these artificial divisions of life into work and home or work and love, the women of the New York Committee organized in the places where rank-and-file workers (homemakers) had strategic power. This could be particularly tricky, since housework was necessarily isolated. But they developed a new set of tactics, including strategic outreach to the media, gaining coverage in The New York Times, the Los Angeles Times, Life magazine, and more, as well as creating their own pamphlets and leaflets, designed to be accessible to everyone they reached (materials in Spanish, materials targeted at particular groups, etc.). The New York Committee opened a Brooklyn storefront where meetings could be held and where women from the community could drop in; the committee also set up promotional tables at local events like the Atlantic Antic, selling Wages for Housework–themed pot holders and distributing information. Its members also frequented supermarkets, laundromats, and other “places where housework has to some degree already been socialized,” treating them as the rare shop floors for workers mostly isolated in the home. They wrote of marches and demonstrations as measures of their strength, what Jane McAlevey and other labor organizers call “structure tests.” They helped to organize four international conferences to bring the network together. In the documents, one finds tension as well as collaboration among the Wages for Housework activists, especially concerning questions related to the group’s structure and leadership. The group’s members believed in organizing autonomously; while they would join other struggles in solidarity, they would do so only on their own terms. They also struggled to find a model for organization that agreed with their ideals; they rejected hierarchical structures and vanguard parties, but they also tried to avoid fetishizing “spontaneity,” and they pointed out the problems with consensus-based decision-making. Federici writes of the tension “between reformism and radicalism, between the wage as compensation for housework and the wage as subversion of this work…. But it was in learning to balance these contradictory sides of the wage that our group was formed” (emphasis hers). This fraud that goes under the name of love and marriage affects all of us, even if we are not married, because once housework was totally naturalized and sexualized, once it became a feminine attribute, all of us as females are characterized by it. If it is natural to do certain things, then all women are expected to do them and even like doing them – even those women who, due to their social position, could escape some of that work or most of it (their husbands can afford maids and shrinks and other forms of relaxation and amusement). We might not serve one man, but we are all in a servant relation with respect to the whole male world. This is why to be called a female is such a putdown, such a degrading thing. (“Smile, honey, what’s the matter with you?” is something every man feels entitled to ask you, whether he is your husband, or the man who takes your ticket on a train, or your boss at work.) | 11/5/21 |
NovDec - Prison StrikesTournament: Glenbrooks | Round: 2 | Opponent: Southlake Carroll SD | Judge: Glenda Ferguson Guinier and Torres RACISM IS RAMPANT, AND DEBATE’S A PLACE TO CHALLENGE IT – rounds are practice for real world engagement of political problems. An individual in isolation cannot constitute or define the meaning of a political space. Only when individuals freely join together to resist and transform the forces of conventional power which named them as part of¶ a group in the first place can the possibilities emerge for generating new¶ forms of collective and democratic struggle. Those intermediate spaces defined by this reconceptualization of post-postmodern power offer the¶ opportunity for individuals to share their stories and construct relationships that reinforce a more systemic and critical social understanding. The effort to expand our readings of race and power beyond strictly win/lose outcomes is not explanatory as much as it is motivational. It describes, from the inside out, what it feels like to experience the joy of human solidarity when mobilized to generate new and unexpected outcomes. Thus, political race builds from inside the lived experience of a marginalized community and uses that experience as an imperfect but valuable lens through which to view and possibly enhance an individual’s political status. The lens on that experience can be stretched and even reshaped when human beings join together to engage in diagnosing and organizing through the multi-step process that we imagine. When and if it is¶ acknowledged, groups may move from this vantage point to join with others in free spaces of participatory democracy that resist authority and challenge the status quo. As we illustrate in Chapters 5 and 6, these free spaces are usually outside the formal public sphere of legislative decision-making; they are also¶ not the same as the public sphere of communitarian literature. They are instead intermediate or in-between places in which a marginalized group can share their experiences without interference from the dominant¶ group.6 The interstices are practice fields or training sessions for an eventual engagement with various hierarchical sources of power. They are laboratories¶ as well as launching pads. As more and more teachers, administrators, schools and organizations are questioning their practices and looking at the racist history of their institutions, many are finally asking, “How we can listen to and support Black students, teachers and communities who have been systemically silenced for too long?” This question is essential, and examining anti-Blackness in our practice is something we all must be looking at. Looking at anti-Blackness or inequities brought about by systems rooted in white supremacy and racism is something all students should be doing. While more institutions, including primarily or historically white ones, are committing to this work, white teachers with primarily white students can feel hesitant to discuss these issues since they may not feel it affects them. This idea is a fundamental misunderstanding of what anti-racist work actually is. Anti-racist work means acknowledging that racist beliefs and structures are pervasive in all aspects of our lives—from education to housing to climate change—and then actively doing work to tear down those beliefs and structures. Those beliefs and structures don’t just exist in primarily white/and or privileged institutions—they thrive there. Schools that house mostly students and teachers who have benefited from white privilege can lack the perspective to push back on institutional malpractice or racist mindsets that may be present. In addition, it is difficult to convince those with power and privilege to give those privileges up without clear education and work to understand why doing so is a necessity for true justice in our society. Doing the work in spaces of privilege may look different, but educators cannot pretend that anti-racist work doesn’t exist simply because their student body isn’t directly harmed by racism. There are clear aims that primarily white and otherwise privileged institutions must work toward in the fight against racism. Teachers must re-evaluate their curriculum. When teaching standards and core curricula have been developed for your students, it’s easy to simply follow along. However, it’s important to remember that our education system has been founded on historically racist practices, including silencing those from disenfranchised communities. It’s not just BIPOC who need to see themselves in the literature or history they study. White students need to hear those perspectives as well, just as straight and cisgender students need to read LGBTQ+ stories. This is because students need not just mirrors but also windows into other cultures, as Dr. Rudine Sims Bishop notes in her essay “Mirrors, Windows and Sliding Glass Doors.” Students from communities with white privilege need to hear voices from other perspectives in order to grow their own thinking. Those perspectives need to be diverse and empowering as well—only showing Black suffering or slavery does not begin to break down problematic beliefs about Black people. Instead, students coming from positions of power need to see and understand the power and agency of those who have been historically disenfranchised, particularly since society frequently tells them otherwise. This will allow white students and teachers to have a more accurate and nuanced understanding of our history, while also ensuring they can center BIPOC voices and be allies and accomplices instead of “saviors.” Students need to understand privilege and rethink power. Students from privileged communities can struggle to understand privilege since they may feel that they have had to work hard or struggle at times in their lives. Teachers must help students understand how privilege works at a systemic level that may have given students an edge that, while it may be one they didn’t ask for, is still very real. The work does not stop there, though. It can be easy in teaching privilege to fall into the trap of “white guilt” or “privilege guilt” (or even “survivor guilt” for BIPOC who have moved up socioeconomically and have internalized the belief that their communities were something to be “survived”). While guilt can be an important emotion to notice and process, educators should help students move through it to a place of action. Beyond “feeling bad” about generations of oppression, how can they use this knowledge to advocate for change and begin breaking down their own racist beliefs? How can they also reframe their understandings of privilege so that they stop prioritizing hegemonic ideas of success and worth? Some of that will mean teaching students to analyze and reframe how they see values and stories from other cultures. Most of us were taught to praise white-dominant cultural ideas: financial success, rugged individualism, paternalism. Because of this, cultures with different priorities may not be seen as “successful” or “valuable” in our eyes and in the eyes of our students. We need to teach students with privilege not to be “saviors” for historically disenfranchised communities, but rather to listen to, value and stand in kinship with them so we can work together toward justice. Schools must interrogate their practices and how they gained institutional privilege to begin with. Part 2: Behind the Wall Davis et al The prisoner industrial complex, or PIC, is a continuation of slavery – it’s built on notions of stripping humanity of individuals to prioritize profit. As prison populations have soared in the United States, the conventional assumption that increased levels of crime are the cause has been widely contested. Activists and scholars who have tried to develop more nuanced understandings of the punishment process- and especially racism's role- have deployed the concept of the "prison industrial complex" to point out that the proliferation of prisons and prisoners is more clearly linked to larger economic and political structures and ideologies than to individual criminal conduct and efforts to curb "crime." Indeed, vast numbers of corporations with global markets rely on prisons as an important source of profit and thus have acquired clandestine stakes in the continued expansion of the prison system. Because the overwhelming majority of U.S. prisoners are from racially marginalized communities, corporate stakes in an expanding apparatus of punishment necessarily rely on and promote old as well as new structures of racism. Women especially have been hurt by these developments. Although women comprise a relatively small percentage of the entire prison popu- lation, they constitute, nevertheless, the fastest growing segment of pris- oners. There are now more women in prison in the State of California alone than there were in the United States as a whole in 1970 (Currie 1998). Because race is a major factor in determining who goes to prison and who does not, the groups most rapidly increasing in number are black, Latina, Asian-American, and indigenous women. Globalization of capitalism has precipitated the decline of the welfare state in industrialized countries, such as the U.S. and Britain, and has brought about structural adjustment in the countries of the southern region. As social programs in the U.S. have been drastically curtailed, imprisonment has simultaneously become the most self-evident response to many of the social problems previously addressed by insti- tutions such as Aid to Families with Dependent Children (afdc). In other words, in the era of the disestablishment of social programs that have historically served poor communities, and at a time when affirmative action programs are being dismantled and resources for education and health are declining, imprisonment functions as the default solution. Especially for women of color, who are hardest hit by the withdrawing of social resources and their replacement with imprisonment, these dra- conian strategies- ever longer prison sentences for offenses that are often petty- tend to reproduce and, indeed, exacerbate the very problems they purport to solve. There is an ironic but telling similarity between the economic impact of the prison industrial complex and that of the military industrial complex, with which it shares important structural features. Both systems simultaneously produce vast profits and social destruction. What is beneficial to the corporations, politicians, and state entities involved in these systems brings blight and death to poor and racially marginalized communities throughout the world. In the case of the prison industrial complex, the transformation of imprisoned bodies of color into consumers and/or producers of an immense range of commodities effectively transforms public funds into profit, leaving little in the way of social assistance to bolster the efforts of women and men who want to overcome barriers erected by poverty and racism. For example, when women who spend many years in prison are released, instead of jobs, housing, health care, and education, they are offered a small amount of release money, which covers little more than a bus ride and two nights in an inexpensive hotel. In the "free world," they are haunted by the stigma of imprisonment, which renders it extremely difficult for a "felon" to find a job. Thus they are inevitably tracked back into a prison system that in this era of the prison industrial complex has entirely dispensed with even a semblance of rehabilitation. Some employers around the US are responding to perceived worker shortages in their industries by pursuing cheap sources of labor, such as people currently or formerly in prison. During a recent industry conference, a Waste Management Services executive discussed hiring immigrants to fill commercial driver’s license positions, and other executives suggested using prison or work release programs to address perceived labor shortages in the sanitation, waste and recycling industry. Campaigners say the move would be exploitative and reflects a refusal to simply raise wages to attract employees. “The talk about immigrant labor, prison labor, it’s all about exploitation, nothing else,” said Chuck Stiles, director of the Teamsters solid waste and recycling division, which represents about 32,000 workers in the private waste industry. “There is no driver shortage. There is a huge wage and benefits shortage that these waste companies refuse to give up anything on the bottom line.” Stiles said several prison work release programs targeted by the waste industry fail to provide decent wages and benefits in an industry where workers face significant safety risks, poor weather conditions, long hours and scarce time off for holidays. Employers and industry groups have claimed labor shortages were stifling recovery from the Covid-19 pandemic, with the US Chamber of Commerce and Republican governors blaming unemployment benefits. Some 26 states have canceled federal extended unemployment benefits early, though economists have noted the available jobs recovery data shows there is no economy-wide labor shortage. That hasn’t stopped employers and business groups from using perceived labor shortages as a pretext to seek out cheap labor sources; employers are hiring teenagers to fill open jobs, automating some job roles to avoid raising wages, lobbying Congress to double the cap on work immigration visas and expanding the use of prison labor. The restaurant industry in Michigan, Texas, Ohio and Delaware recently announced a prison work release program for the food service and hospitality industry. In April, Russell Stover candy production facilities in Iola and Abilene, Kansas, began using prison labor through the Topeka correctional facility in response to staffing issues disrupting production lines. About 150 prisoners work at the plant, making $14 an hour with no benefits or paid time off, while other workers start at higher wages with benefits and paid time off. Kansas also deducts 25 of prisoners’ pay for room and board, and another 5 goes toward a victim’s fund. The prisoners also must pay for gas for the nearly two-hour bus ride to and from the plant. Brandilynn Parks, president of the Kansas Coalition for Sentence and Prison Reform, said these programs can be beneficial for prisoners, but often are a way for employers and the prison system to take advantage of a vulnerable population, while driving down wages and taking jobs from other workers in the community. She noted many private companies that hire prison workers will not employ them after they are released and will not hire job applicants with criminal records. She added that these programs perpetuate mass incarceration. “Whenever we have private industries coming into the Kansas department of corrections, they sign a contract guaranteeing a certain number of people will be working there,” said Parks. “That means there has to be a certain number of people incarcerated, so we’re not working to lower the prison population, but instead building the prison industrial complex as a working machine where people become numbers – and we need a certain amount of numbers to keep them employed to uphold the contracts.” Parks argued employers refusing to pay living wages is the primary factor driving perceived labor shortages, and that the expansion of prison workforce programs are not good faith efforts to solve the problem. Hiring people “who are at their lowest in life and then throwing them crumbs is despicable,” Parks said. “The contract guaranteeing this amount of people makes it difficult to release people because they’re making the department of corrections money. So the DOC and private industry wins and they try to make it appear as though the incarcerated win, when really they’re being taken advantage of.” Even before the pandemic, the construction industry targeted prison labor sources amid what employers have claimed is a severe construction labor shortage that has only worsened under Covid-19. Construction is also one of the industries where significant numbers of formerly incarcerated people find work. In New York City, construction industry employers recruit recently released prisoners who must seek and maintain employment as a condition of their release from prison. Thousands of workers in New York City are siphoned from prison into low-paying construction jobs with no benefits, no health insurance and unsafe working conditions. These job sites, known as “body shops”, use subcontractors so that employers can offload risk insurance liability. The practice has been spreading, but the New York city council is considering legislation to regulate these employers. “Throughout the pandemic, body shop laborers left their homes and took trains and buses to crowded job sites, building the NYC skyline. They did this without health insurance, without an economic safety net and with the constant threat of re-imprisonment if they refused to continue to work,’’ said Chaz Rynkiewicz, vice-president and director of organizing for Construction and General Building Laborers Local 79. “While other workers were called heroes for working during the pandemic, body shop workers are told that their criminal justice history sentences them to a lifetime of hard labor with negligible reward.” Although none of the strikers’ ten demands have yet been met, the 2018 nationwide prison strike was still a remarkable event in its scope and coordination, as well as its ability to generate public support and attention. An estimated 150 different organizations endorsed the strike; citizens held numerous demonstrations outside of prisons in solidarity; and a range of national media publications provided detailed coverage of the protest’s motivations, objectives, tactics, and status as potentially the “largest prison strike in U.S. history.” 7. Despite the 2018 prison strike’s apparent gravity, it is difficult to fully contextualize its significance because surprisingly little attention has been paid to prison strikes previously. For instance, just two years prior, in 2016, a similar nationwide prison strike was described as “the largest prison strike . . . you probably haven’t heard about.” 8. In light of this reality, this Note peers behind prison walls to improve our understanding of prison strikes — the end goal being to open the door to a broader discussion of why and how these strikes should receive legal protection. Part I briefly documents America’s history of prison strikes, showing that the 2018 nationwide strike is the latest in a long, important tradition of prisoners using the only real means available to them — collective actions against prison administrators — to protest labor conditions and other deeply held grievances. Part II then evaluates the legal framework governing prison strikes, demonstrating that such strikes likely do not receive sufficient protections under either the Constitution or federal and state statutes and therefore can be shut down by prison administrators without fear of judicial oversight. Part III, informed by the rich history of prison strikes, argues that their potential and demonstrated value demands, at the very least, consideration of the merits of protecting incarcerated individuals’ right to strike, and it contends that the First Amendment framework offers one potential avenue to allow prisoners to peacefully surface pressing problems in our carceral system and to collectively express their humanity and dignity. I. PRISON STRIKE BACKGROUND AND HISTORY The term “prison strike” encompasses a range of nonviolent collective actions by prisoners — namely work stoppages, sit-ins, spending boycotts, hunger strikes, and other forms of protest — that challenge the rule or order of prison administration and generally disrupt “business as usual” within the prison. 9. Prison strikes differ from other forms of collective action in prisons, including prison riots and rebellions, in that they are peaceful forms of resistance: they do not involve the threat or the use of force against persons or property. 10. And prison strikes differ from other forms of prison disturbances, like individual inmate protests, that are not collective in nature and therefore do not disrupt normal prison activity or obstruct prison officials’ control. 11. See id. Generally speaking, prison strikes (and prisoner collective action more broadly) have not received rigorous scholarly or media analysis until very recently. Social scientists, legal scholars, and the press have largely failed to provide a systematic accounting of the history and place of prisoner protest in the American penal system, particularly prior to the early to mid-twentieth century. 12. Against this backdrop of scarce attention, this Part briefly considers the history of prison strikes, both to illuminate an important but overlooked aspect of prison life and to inform the legal analysis that follows. In particular, this Part provides an abbreviated overview of strikes across four key periods of prison development in the United States: (1) the inception of the American prison during the early American republic, (2) the creation of modern legal punishment and penitentiaries between the antebellum period and Reconstruction, (3) the explosion of prison systems and prison labor between Reconstruction and World War II, and finally (4) the prisoners’ rights and reform movements emerging between the end of World War II and our present-day mass incarceration system. This overview suggests that as the carceral state has expanded and evolved, so too have prison strikes — thus placing actions like the latest 2018 strike in a long tradition of prisoners organizing to express deeply held grievances. Further, examining the history of prison strikes reveals that strikes are often the only way for the incarcerated to act on those grievances — and that while strikes have rarely brought about immediate changes, they have helped initiate longer-term prison reforms and have periodically been successful in drawing attention to the otherwise unnoticed plight of those behind bars. Thus, I affirm: Part I briefly documents America’s history of prison strikes, showing that the 2018 nationwide strike is the latest in a long, important tradition of prisoners using the only real means available to them — collective actions against prison administrators — to protest labor conditions and other deeply held grievances. Part II then evaluates the legal framework governing prison strikes, demonstrating that such strikes likely do not receive sufficient protections under either the Constitution or federal and state statutes and therefore can be shut down by prison administrators without fear of judicial oversight. Part III, informed by the rich history of prison strikes, argues that their potential and demonstrated value demands, at the very least, consideration of the merits of protecting incarcerated individuals’ right to strike, and it contends that the First Amendment framework offers one potential avenue to allow prisoners to peacefully surface pressing problems in our carceral system and to collectively express their humanity and dignity. I. PRISON STRIKE BACKGROUND AND HISTORY The term “prison strike” encompasses a range of nonviolent collective actions by prisoners — namely work stoppages, sit-ins, spending boycotts, hunger strikes, and other forms of protest — that challenge the rule or order of prison administration and generally disrupt “business as usual” within the prison. 9. Prison strikes differ from other forms of collective action in prisons, including prison riots and rebellions, in that they are peaceful forms of resistance: they do not involve the threat or the use of force against persons or property. 10. And prison strikes differ from other forms of prison disturbances, like individual inmate protests, that are not collective in nature and therefore do not disrupt normal prison activity or obstruct prison officials’ control. 11. See id. Generally speaking, prison strikes (and prisoner collective action more broadly) have not received rigorous scholarly or media analysis until very recently. Social scientists, legal scholars, and the press have largely failed to provide a systematic accounting of the history and place of prisoner protest in the American penal system, particularly prior to the early to mid-twentieth century. 12. Against this backdrop of scarce attention, this Part briefly considers the history of prison strikes, both to illuminate an important but overlooked aspect of prison life and to inform the legal analysis that follows. They add: Harvard Law Review. Academic Journal “Striking the Right Balance: Toward a Better Understanding of Prison Strikes” HLR, March 2019. JP The foregoing analysis suggests that the First Amendment is a critical, worthwhile vehicle for considering the merits of a right to strike for prisoners. As Justice Black recognized, the importance of such analysis likely transcends prisoners themselves. He wrote: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.” But this Note acknowledges that judicial recognition of prison strikes’ First Amendment values requires significant doctrinal change. Convincing the Supreme Court to overturn its Jones and Turner precedents, and instead to adopt a test with less deference than is currently afforded to prison administrators, is unlikely. As a result, future research is necessary to identify other potential avenues to consider the legal status and merits of prison strikes. As alluded to above, labor law presents one such promising avenue, as does state constitutional and statutory law. Drawing from the broader jurisprudence around hunger strikes, and this area of the law’s focus on the body, may present yet another avenue to consider. And more fundamentally, reconsidering incarceration — including the nature of penal punishment, the constitutional status of prisoners, the judiciary’s role in our carceral system, and the ability of social science and social movements to inform the law — may be needed to protect prison strikes and bring about the reforms that strikes have advocated for. There is a difficult tension in our jurisprudence on prisoners. On the one hand, prisoners are found to enjoy some constitutional rights. On the other hand, prisoners’ rights are often curtailed and must give way to the regulations that prison officials employ to maintain security and order in our correctional system. Allowing prisoners to peacefully strike allows our criminal justice system to navigate this tension, preserving the goals of prison officials while allowing prisoners to surface critical problems in prison conditions and our criminal justice system as a whole. The strikes also represent an important end unto themselves: they are an important statement of prisoners’ humanity, dignity, and entitlement to a life beyond “modern slavery.” Kaur Prison strikes create media attention that sheds light on the injustices of the prisoner industrial complex. In the unbearable heat of Rajasthan, some undertrial male prisoners in Jaipur Central Jail, locked up in small suffocating cells for up to 23 hours without ventilation or fans, resolved to take action. The prisoners started a hunger strike demanding installation of boxes where prisoners could put their complaints, and regular visits of a judge to look into their complaints (Waqar 2019). Prisoners had intimated about their hunger strike along with the demands in a letter to the prison authorities and the judge presiding over their trials. On the intervening night of 29 and 30 March 2019, some undertrial prisoners in Jaipur Central Jail were dragged and beaten up brutally, leading to fractured limbs and serious injuries. Despite the judge issuing a notice to the jail authorities, prisoners not only suffered physical beatings, but they were also charged under Sections 332 (voluntarily causing hurt to deter public servant from his duty) and 353 (use of criminal force on public servant in execution of his duties) of the Indian Penal Code (IPC) for causing injury to a prison official’s finger, and inflicting self-harm (Hindu 2019). The most astonishing aspect of this turn of events is that the demands of the prisoners for which they started the hunger strike are the mechanisms that prison authorities should on their own be adopting as per the mandatory directions given by the Supreme Court in several cases including Sunil Batra (II) v Delhi Administration and Madhukar B Jambhale v State of Maharashtra. On 23 and 24 June, 2017 women prisoners of Byculla Jail in Mumbai rebelled to highlight torture and murder of their co-prisoner Manjula Shetye by prison staff. If it wasn’t for their strike, Manjula’s case would never have seen the light of the day. Their strike brought so much attention to Manjula’s murder in custody that not only the accused prison staff were arrested and are currently being tried, but ministers and parliamentarians have visted the prisoners. However, an first information report against the 200 women prisoners was filed for allegedly rioting, making unlawful assembly (Dalvi, 2018). 3. Petition for Redress. — Inmates’ strikes can be seen not only as expressions of their dignity and general efforts to express their voices beyond prison walls but also as significant methods of assembly to call attention to specific grievances and seek redress from the government. 169. While in theory “there is no iron curtain drawn between the Constitution and the prisons of this country,” 170 in practice, “prisons often escape the daily microscope focused on other American institutions such as schools, churches, and government.” 171. Id. at 145. Courts grant prison administrators wide deference not only in running day-to-day life within prisons but also in restricting press access to prisons. 172. Therefore, much of the American public — already closed off from and largely indifferent to the lives of prisoners — is kept even more in the dark about prison conditions and the state of our carceral system as a whole. Prison conditions, from what has been documented, are horrendous across states. Many prisons are severely overcrowded and seriously understaffed; 173. inmates routinely experience physical abuse and even death at the hands of prison guards, 174 receive inadequate protection from guards, are deprived of basic necessities, 175. are given substandard medical care, 176 and are forced to live in squalor and tolerate extreme circumstances; 177. most prisoners have minimal, if any, access, to rehabilitative or mental health services; 178. and prisoners have little legal recourse, as internal prison grievance procedures are often stacked against inmates, 179. and judicial deference and federal legislation have effectively shut the courthouse doors on prisoners’ civil rights claims. 180. And across prisons, criminal sentencing laws not only have contributed to an unprecedented era of mass incarceration, but also have forced African Americans and people of color broadly to bear much of this burden. 181. As the Marshall Project states, “society won’t fix a prison system it can’t see”; 182. Keller, supra note 172. peaceful prison strikes like the 2018 strike, however, draw back the “iron curtain” of prison walls, bringing to light many of the pressing issues described above. Through these strikes, inmates are able not only to express their grievances to their prison administrators, but also to “publicize their on-the-ground realities to the larger world” 183. As recent history has shown, inmates have experienced some success by pressing their claims against the government through publicized strikes. For example, as described above, the California strikes in 2011 and 2013 generated public outcry that eventually resulted in transformations to the California prison system’s solitary confinement policies. 185. See supra note 73 and accompanying text. In Alabama, inmates’ participation in the 2016 nationwide prison strike helped prompt the Department of Justice to open an investigation into the state’s prison conditions. 186. And more broadly speaking, strikes like the 2018 strike have begun to “remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional” barriers to critical prison reforms. B. CONSIDERING ADDITIONAL LEGAL AVENUES FOR PROTECTING PRISON STRIKES The foregoing analysis suggests that the First Amendment is a critical, worthwhile vehicle for considering the merits of a right to strike for prisoners. As Justice Black recognized, the importance of such analysis likely transcends prisoners themselves. He wrote: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.” | 11/20/21 |
SeptOct - Gene-Editing AffTournament: Yale Invitational | Round: 1 | Opponent: Lake Highland Prep PS | Judge: Parth Misra The Role of the Judge is to Promote the Reclaiming of Educational Spaces, which means they must endorse our ability to use debate for critical discourse. This Pride month, as revelers hit the streets to celebrate LGBTQ history, Republican state legislatures are hard at work trying to erase it. And it’s not just epochal events like the Stonewall riots, or towering figures like Harvey Milk, that could be wiped from classroom instruction. In public schools in Tennessee, Arkansas, and Montana, it may soon become illegal even to mention Bayard Rustin, the openly gay co-organizer of the 1963 March on Washington, or educate kids about the AIDS crisis. In May, Tennessee became the first state to pass what queer-rights advocates have branded as “Don’t Say Gay” laws, which either forbid the teaching of LGBTQ history in K-12 schools outright or allow parents to choose whether their children participate in lessons that include it. Within days, Montana followed suit. Yet another bill in Arkansas awaits the signature of the state’s Republican governor. Similar bills have been considered in West Virginia, Iowa, and Missouri, and even more proposals are percolating through red-state legislatures. Akin to bans on the teaching of critical race theory, these laws seek to preserve the myth that the story of America is one of inexorable progress and unblemished virtue, that we stand exceptional among nations as the gleaming embodiment of democracy; they also imply that a great number of us don’t matter. In particular, legislation forbidding the teaching of queer history aims to ossify what remains of society’s moral disapproval of LGBTQ people and endangers queer youth susceptible to suicide. “It is a false representation of the past, one in which LGBTQ people are imagined never to have existed,” said Anthony Mora, associate professor of history and Latinx studies at the University of Michigan. “The hesitancy to open up questions about the failures of the past—of not living up to the goals of the republic—is less about the past than about not wanting to change the present, to hold in place the status quo and not allow for real moments of debate and change.” Holbrook 1 PATENTS ARE BEING PURSUED TO REVERSE THE GAY GENE” This Article argues that patents also possess the potential to express governmental preferences for, disfavor towards, or even condemnation of various members of society. The recent discoveries into human biology portend discoveries that relate to various conditions that are central to a person’s identity. The deaf, for example, do not view their condition as a pathological condition in need of curing: to them, they are simply a linguistic minority. Similar concerns have been expressed by others, such as high-functioning autistics and little people. Patents on discoveries related to such conditions would communicate the message that “curing”30 these people would be normatively good, further marginalizing these groups. One particular group whose trait is increasingly shown to be biologically related has already borne the brunt of societal and expressive marginalization: gays and lesbians. Recent scientific studies have demonstrated that homosexuality is undoubtedly influenced by biology, even if it is not biologically determined in all cases.31 A likely result of such research into the origins of sexual orientation would be the formulation of methods to “cure” gays and lesbians.32 An even more likely scenario would be a pre-natal screen that would estimate the likelihood that the fetus would be gay, permitting termination of the pregnancy33 or perhaps consumption of a pill to reduce the likelihood of bearing a gay child.34 Patents resulting from the quest to find the “gay gene” or other biological origins of homosexuality have the potential to express moral condemnation of gays and lesbians. Although a patent relating to sexual orientation or the alteration of such orientation has yet to issue, at least one researcher in this field has confirmed his intent to pursue patent protection on such a discovery.35 This Article will explore the potential for patents to perform a social signaling function, apart from the market signal articulated in portfolio theory. I contend that patents communicate information that is relevant not only in a technical or pecuniary sense but also in a normative one. Central to this signaling is the utility doctrine, which delineates the inventions that are socially beneficial and thus worthy of patent protection. I explore these contentions using the paradigm of sexual orientation because it is pregnant with issues of morality and the potential for expressive consequences. Granting patents on genes related to sexual orientation, and potentially other conditions such as deafness, high-functioning autism, or dwarfism, communicates government approval that these groups are pathological and should be cured. Such a communication expressively harms these groups. This line of argument contributes an additional basis to criticize granting certain patents in areas relating to human biology and genetics.36 The messages and signals are necessary elements of any functioning property system. Patents therefore undeniably act in ways to facilitate signals and communication beyond there simple disclosure. A patent differs from other forms of property in a significant way: they are granted by the US government after a substantive review of an application for the right to exclude. An inventor must demonstrate that she has satisfied the patentability requirements11 and is thus entitled to a patent, which the United States Patent and Trademark Office (PTO) confirms by issuing the patent. The fact that the patent is a grant of a right by the government enhances the signals of the patent document. The government’s imprimatur help convey the signal with greater clarity and confidence. The patent has credibility behind it because of the government’s imprimatur. 12 There is no reason that these signals are limited to technical and pecuniary considerations. The message in the patent also can involve the contents of the invention contained within it. The government imprimatur attending the patent grant can confirm the legitimacy of a technology.13 In particular, the genetic revolution has resulted in discoveries linking genes, proteins, and other biological processes to human behavior generally.14 Research into biological causes of behaviors is inevitable and, indeed, has already begun.15 Recent discoveries include genes that influence aggressiveness,16 weight,17 intelligence, 18 novelty seeking, worry19 and harm avoidance.20 One scientist has noted that “the real breakthroughs in understanding personality are not occurring on leather couches but in laboratories.”21 Another has suggested that “the genetic analysis of behavior will prove to be . . . the most important advance in the behavioral sciences in his lifetime.”22 Many of these discoveries are patentable. While patents relating to genetically-based diseases are desirable, patents on genes and processes that influence behaviors, activities, or conditions that are not clearly harmful could be problematic.23 These discoveries may result in the ability to manipulate or choose preferential traits, a form of privatized eugenics.24 The PTO inevitably will be grant patents on biological discoveries with such eugenic potential. This begs the question of whether we want the patent system to create an incentive for these types of discoveries. Moreover, the imprimatur of the patent grant can express the view that such technologies are legitimate and normatively good. Patents are awarded only for inventions that are useful. Utility, however, is a relative concept: what is good for one could be destructive to another. This concern is particularly acute for groups whose identities are tied to their biological state or behaviors: the invention could be used to destroy these groups by “curing” them or by preventing their birth through prenatal screening. The grant of patents on these technologies confirms that the government views them favorably, and could express that these groups are highly disfavored, further marginalizing them. What constitutes pathological is often infected by social and cultural norms, not simply medical knowledge. The most obvious example is homosexuality itself. As discussed above, until the early 1970s, the medical community, with considerable internal debate, did consider homosexuality to be pathological. Nothing changed in the 1970s with respect to homosexuality– instead social norms and views of homosexuals changed with in the medical community, resulting in it being eliminated as a pathological condition.212 The contextual nature of psychological disorders, therefore, may result in an ever-moving target of what constitutes pathological. The medical line of therapy/enhancement could truly break down in the context of the deaf, dwarfs, and high-functioning autistics. The deaf do not view themselves as medically pathological, although the hearing community would view them as lacking one of the key human senses and, thus, possessing a pathological condition. The medical community would seem to be more in line with that of the hearing community, risking that the use of a medical norm would allow patents that arguably would express disfavor to the deaf community. A similar argument could be made for dwarfs, who have bodies that function entirely normally. They are simply statistically far outside the normal range of human height. High- functioning autistics can view themselves as simply having different social skills, which is not inherently wrong. Arguably, this should not be viewed as a pathological condition, but likely the medical community would disagree. Simply because these distinctions are difficult to make, however, does not inevitably mean that we should allow everything to be patented. Regulatory agencies other than the PTO are charged with making this distinction already.213 The PTO could be require the demonstration of a utility that is beyond mere enhancement and one that instead is a therapy directed to a known pathology. The DSM could remain an effective tool, however. While on the margins some conditions may seem close to the line of pathology, there are some conditions that universally would be viewed as pathological, such as schizophrenia and bipolar disorder. The DSM would at least provide certainty for certain behaviors. Plan Text and Holbrook 4 I affirm, “Resolved: Member nations of the World Trade Organization ought to eliminate intellectual property protections for gene-editing medicines.” In fact, the ultimate utility that we may be protecting is that of choice – allowing persons to determine how best to use these technologies. But falling back on choice does not answer the question of why the government should be involved in granting patent rights for these discoveries. Choice alone as purely a “good” is quite debatable in the context of privatized eugenics, which the patent system is poised to incentivize. 220 The right to choose may accompany a considerable cost – elimination of groups considered outside the norm.221 While the regulation of this choice undeniably lies outside of the patent system,222 that system need not embrace destructive choices by allocating a given technology as “useful” regardless of the harm that invention might inflict. The government should not be facilitating such activities with the patent system. The patent system is one of incentives – if an inventor will engage in research resulting in a patentable invention, she is rewarded with the patent’s period of exclusivity, which allows the inventor to recoup her sunk costs and preventing free-riding by competitors. There is no doubt that denying patents in this area will not stop research into such technologies – other public measures would be required.223 Eliminating, or modifying the availability of, patent rights in these areas would at least help to mitigate these commercial interests and make such innovations less desirable. Regardless, though, do we really want the patent system – with the approbation of a government-granted right – to incentivize the creation of inventions with such powerful expressive harms and enormous eugenic potential? Simply because denying patent protection will not stop these technologies does not mean that we should, therefore, continue to grant these patents and create incentives for harmful and potentially destructive discoveries.224 The idea for gene therapy—a type of DNA-based medicine that inserts a healthy gene into cells to replace a mutated, disease-causing variant—was first published in 1972. After decades of disputed results, treatment failures and some deaths in experimental trials, the first gene therapy drug, for a type of skin cancer, was approved in China in 2003. The rest of the world was not easily convinced of the benefits, however, and it was not until 2017 that the U.S. approved one of these medicines. Since then, the pace of approvals has accelerated quickly. At least nine gene therapies have been approved for certain kinds of cancer, some viral infections and a few inherited disorders. A related drug type interferes with faulty genes by using stretches of DNA or RNA to hinder their workings. After nearly half a century, the concept of genetic medicine has become a reality. Holbrook 5 Eliminating patents for gene-editing affirms that homosexuality is not pathological. Patents traditionally have been justified on the basis of incentives. Commentators have justified patent law on three different incentive systems: quid pro quo, ex ante, and prospect theories. Under the quid pro quo view, the patent acts as an incentive for the innovator to disclose the invention to the public in exchange for the patent’s exclusive rights.2 On the most basic level, the patent disclosure communicates a message to the public about what the inventor has discovered and how to make and use that discovery.3 According to the ex ante incentive view, patents are needed to combat the public good problem of information: without patents, competitors could free ride on the invention and compete with the innovator without incurring the research and development costs.4 Such free riding reduces the ex ante incentive to invest in innovation. The third view, prospect theory, contends that patents create the incentive to commercialize the invention after the patent has issued.5 By defining the property right surrounding the invention, the inventor can best coordinate later commercialization of the good in a way akin to prospecting of mineral rights.6 Recent scholarship has persuasively challenged these paradigmatic views and has demonstrated that patents perform functions far different than providing these basic incentives. Patents can operate as a vehicle for transmitting messages. For example, patents can serve as a signal to markets about aspects of the firm. A robust patent portfolio can send a signal to the market about the nature of a firm’s innovation capacity or other factors relevant to potential investors.7 The patent thus acts as an intermediary, translating otherwise complicated information into a simpler form to allow the markets to operate more efficiently. Patents communicate other information in order to reduce transaction costs: they can facilitate affirmative asset partitioning by firms and combat “team production” problems arising in efforts by firms to develop and exploit information assets.8 Patents consequently serve a far greater communicative effect then simply communicating the technical information regarding the invention and the scope of the exclusionary rights. This reality is not surprising. Property rights often involve issues of communication, messages, and symbols.9 The need for notice of property rights among parties necessitates that there be a common language of communication and expression of who owns the rights and what those rights are.10 Property rights are more than simply the ability to exclude others. The pharmaceutical industry has come under criticism recently for failing to devote sufficient resources to particularly relevant drugs, instead focusing on the next generation of market-driven (as opposed to health-care driven) drugs such as antihistamines. A recent study has shown that most new drugs entering the market are not particularly innovative and instead are simply follow-on improvements on already existing drugs.215 There are a number of reasons for this reality: the dependency on drug companies on blockbuster drugs;216 the ability of companies to extend patent protection effectively on blockbusters through patent and FDA laws and regulations;217 and the reduced cost of relying on known drugs in proving safety and efficacy.218 Innovation in the pharmaceutical market thus seems anchored to existing drugs, many of which are more driven towards enhancement as opposed to curing pathologies. A new utility standard, therefore, would reduce incentives for companies to spend money on “lifestyle” drugs and instead create greater incentive for pharmaceuticals and other companies to research drugs and biologics directed to more severe conditions. With availability of patents curtailed, companies would not have the patent rights to recoup their sunk research and development costs. The ex ante incentive to research drugs that deal with lifestyle would therefore be dramatically reduced, affording the opportunity for drug companies to shift greater resources to finding cures to truly pathological conditions. Less money would be spent on the next generation of Viagra and hopefully more would be spent trying to find vaccines for AIDS.219 In the decades since IVF was introduced, the ability to create embryos in vitro has given rise to a number of reproductive interventions. As genetic technologies improved, it became possible to remove DNA from in vitro embryos and assess them for genetic disease. The incidence of Tay-Sachs disease in the Ashkenazi Jewish community is a frequently cited example of how assisted fertility technologies can rescue families from the devastation of childhood disease; with a combination of community-based carrier screening and assisted fertility to avoid embryos affected with Tay-Sachs, the community dramatically reduced the frequency of the disease.33 Other communities experiencing serious genetic disease have seen hope in reproductive gene editing, emphasizing the ability to avoid similar outcomes for their children.34 However, these technologies also concern the ethics of procreation, including freedom to create one’s future children and obligations to promote their interests.35,36 With greater editing capabilities have come fiery debates about what constitutes disease, disability, and a life worth living. While seeking to eliminate lethal childhood conditions like Tay-Sachs was relatively uncontroversial, genetic conditions with more variable phenotypes and less immediate clinical impact are harder to categorize. In particular, the Down syndrome community has been vocal in raising concerns about how prenatal diagnosis can lead to the elimination of certain kinds of people labeled as deviating from a “healthy” norm.37 Some communities, including those with hereditary deafness or dwarfism, have expressed concern about the categorization of their phenotype—which many regard as an essential element of their identity—as “diseased.”38 At the same time, the use of these technologies to avoid conditions that do not manifest until late in life, or may not manifest at all, has been controversial. Individuals affected by late-onset genetic conditions have the opportunity to live productive, fulfilled lives. Should those lives be precluded on the basis of genetic risk?39 These more foundational debates about the goals of reproductive research make the use of germline editing to create HIV resistance especially problematic. In the present case, HIV is an infectious disease that can be avoided through well-known protocols.40 Transmission of the condition from parental serum is routinely avoided in assisted fertility by “washing” the gametes involved prior to fertility treatment. Moreover, using an elaborate and risky gene-editing procedure to offer even a chance of HIV resistance can send a telling message that life as an HIV-positive individual is sufficiently undesirable that it constitutes a life not worth living. Such research creates the very real possibility of exacerbating the stigma experienced by those living with HIV in China.40,41 None of the justifications for the use of either IVF or embryo editing appear to be justified by the target of the experiment. | 9/18/21 |
Open Source
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