April 7, 2007
This week's issue of The Nation has two items about stories I've discussed previously, both, unfortunately, subscription only but no doubt available in your library.
First up is a piece by David Rosner and Gerald Markowitz about the Rhode Island lead paint nuisance case. Rosner and Markowitz are both historians and both served as expert witnesses for the plaintiffs; their book Deceit and Denial criticizes the conduct of the lead and vinyl chloride industries. The discovery into the peer review of that book was the main example I use in my forthcoming Nebraska Law Review piece. Their article acknowledges that it is new to treat matters like lead paint through the law of nuisance, and outlines varied bad conduct on the part of the manufacturers, but in so doing suggests that the lawsuit required bad conduct. Public nuisance, however, is generally a fault-free doctrine as compared to classic tort cases. Rosner and Markowitz do note their role as experts but do not note whether or not they were paid experts.
Second is an interesting column by Patricia J. Williams called Colorstruck, addressing the recent "wrongful birth" lawsuit brought by New York parents against a fertility clinic for using sperm from an African-American father rather than that of the father, Thomas Andrews. Her conclusion (but the whole thing is well worth reading):
I might have consigned all of this to tabloid sensation had I not had conversations in recent days in which this case came up. Well-educated legal minds of all political stripes were arguing that there's nothing wrong in the parents' claim, that it's a private choice they made to have a family that looks "like" them and that they should get some money for the girl's "trauma" since, after all, it is harder to be black in this society. Some of the people arguing this have previously argued against affirmative action because our society is supposedly colorblind. Just look at Angelina! If this dreamy reasoning is any reflection of the culture at large, then its logic signals a privatization of civil rights: Discrimination is no longer a social problem that implicates all of us and our institutions as unloving or uninclusive. Discrimination becomes destiny, the normative response to biologized "abnormality."
It is ironic. There is a bill in the Georgia state legislature to make April Confederate Heritage Month. Not Southern heritage, but Confederate. Whatever romance that term may conjure in the collective imagination, it's important to remember that the Confederate Constitution was almost identical to that of the United States. The only significantly different provision was one that said: "No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed." In an era when none of us are slaves but all of us are increasingly objects in the marketplace, it is sad and alarming that "Negro" features, however arbitrarily perceived or shiftily delineated, still lower the value of the human product, of human grace.
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