Recent UW Law Faculty Scholarship: Weaponizing Fear; Colonialism, Foreign Investment and Property Rights Reconsidered; Pathology Logics; and Regulating Social Media in the Free-Speech Ecosystem

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

In a letter dated February 22, 2022, Texas Governor Greg Abbott directed the commissioner of the Texas Department of Family and Protective Services (DFPS) “to conduct a prompt and thorough investigation of any reported instances” of what he calls “abusive sex change procedures”. Many condemned the weaponizing of the child protective system to punish families. Some highlighted that the directive misuses the vague definitions of child abuse to target LGBTQ youth and their families. While I agree with both notions, I suggest that their framing insufficiently captures the ways the “child protective” system fits squarely into the project of controlling marginalized families. Then, the issue is not primarily the misuse of the system, but the system itself. This essay rejects the notion that vague definitions lie at the heart of the issue. To be sure, we cannot define our way out of anti-trans and anti-Black violence-and their intersections-perpetuated by the family regulation system. This essay employs the term “family regulation system” when referring to what is commonly described as the “child welfare system”.

I argue that the directive, as much as it plays on vague terms, relies on preexisting, deep-seated fears of violence committed or perpetuated by the carceral state against the most marginalized families. Whatever the long-term viability of the directive, and other similar targeting strategies, the damage of exacerbating these fears has been done. This essay explores how fear is regularly weaponized against families with intersectional marginalized identities by outlining the “conditions” of fear in the family regulation system and exploring how fear is and is not discussed in “child welfare” court decisions. The targeting of LBGTQ youth and parents by the family regulation system is a racialized movement. Yet, popular conversations and legal scholarship rarely adopt an intersectional lens and bigger picture framing that includes both Black LGBTQ children and Black LGBTQ parents. This essay argues that the lack of intersectional perspectives is indicative of a larger disregard for the impacts of intersectional marginalization in family regulation.

In an article in IO, now somewhat old but still regularly cited, Professor Jeffrey Frieden (1994) imaginatively presented European colonialism as resolving what has become known as the “credible commitment” problem in the IPE literature on foreign investment. Frieden claimed that colonialism’s aim or function was to prevent expropriation of metropolitan investment. I revisit Frieden’s provocative interpretation, arguing that it gets things wrong—both about colonialism and investment. The better interpretation highlights themes associated with the school of historical rather than of rational institutionalism: the role of subjective ideas; of path dependence, and of unintended consequences. Through a close examination of French colonialism in Africa I show that the problem of credible commitment was both subjectively and objectively absent, and that patterns of colonial investment are better explained as a function of material factors, then-dominant economic beliefs and ideas, and the French government’s policy interventions and abstentions. The investment story of French colonialism in Africa is about the relative lack of private investment—arguably due, at least in part, to an excess of rights, allocated to the wrong people and of the wrong type—even in those sectors of the economy that Frieden suggests are most sensitive to the colonial resolution of credible commitment problems.

Every year thousands of marginalized parents become entangled in the family regulation system, an apparatus more commonly referred to as the “child welfare system”. Against the backdrop of demands to abolish the police, directly impacted parents, activists, and scholars highlight the shared carceral logic of the family regulation and criminal legal system. Their demands caution that merely tinkering with one aspect of carcerality will not achieve the larger goals of abolition, or what Mariame Kaba describes as “a vision of a restructured society”. In prior work, I examine how the coercion of domestic violence survivors in the family regulation system functions as a self-legitimizing tool and perpetuates harmful knowledge. This piece focuses on another logic deeply embedded in the system: the pathologizing of impoverished and racialized groups. Scholars have discussed the pathologizing of marginalized groups to describe several different phenomena. Here “pathology logic” refers to the institutional logic that produces notions of individual responsibility, renders the structural conditions of poverty and racism invisible, and obscures resistance. Three key elements contribute to this logic in the family regulation context. One, the policing of emotions by family regulation actors through ostensibly neutral behavioral descriptors. Two, the coercion of mental health evaluations and treatment that produce a formal clinical label. Three, the exacerbation and exploitation of emotional distress linked to family regulation intervention. The pathology label legitimizes intrusive state intervention into marginalized families’ lives and reifies the subjugation of their experiences.

This piece makes three significant contributions to the ongoing debate over the family regulation system’s role in carceral abolition. First, it provides a definition of the substance and scope of pathology logics in “child welfare”. Next, it examines the procedural and institutional drivers of pathology logics. Finally, this article traces the language of pathology logics by showing how ostensibly neutral behavioral descriptors police emotions and label marginalized families “deficient”. Pathology logics distract from the structures that render families in marginalized communities hyper-visible to the state, conceal the interconnectedness of carceral systems, obscure the destabilizing effects of poverty and racism, and erase the expertise of directly impacted families by equating resistance and pathology. Pathology constructs “via racist, gendered, and classist norms” who is and who is not “capable” of parenting without state intervention. Instead of centering incremental reform, this article highlights ways of shifting power.

Social media is just one part of the broader free-speech ecosystem. Social media regulation thus only regulates one part of that ecosystem. To evaluate social media regulation thus requires an understanding of the role social media itself plays—or more importantly, ought to play—in that ecosystem. We must thus first answer the following question: what institutional role should social
media play in that broader free-speech ecosystem?

I argue that one framework through which to view this question—or perhaps one subset of this question—is, where should social media companies lie on what we might call the “speaker conduit continuum”? When we think about regulating the post office or the old AT&T, the legacy monopoly telephone company, we instinctively think about that regulation differently from how we think about regulating The New York Times. Why does regulating the telephone company seem different from regulating a newspaper? Because each plays a different role in the free speech ecosystem: one is a “speaker,” the other a “conduit” for other people’s speech. That might seem obvious, but technological advances in communications over the past three decades have blurred that line even further.

In the late 1960s and early 1970s, the Supreme Court dealt with a similar conundrum, one that required it to interrogate, and then articulate, the role that newspapers and broadcast media each play in the free-speech ecosystem. In a pair of unanimous decisions a half century ago, Red Lion Broadcasting v. FCC and Miami Herald v. Tornillo, the Court held that a “right to reply” requirement was constitutional when applied to broadcast media but unconstitutional when applied to newspapers. In so holding, the Court implicitly placed newspapers firmly on the “speaker” side of the speaker-conduit continuum while framing broadcast media as having some attributes of a “conduit.”

The Court’s decisions depended on a social construction of newspapers and broadcast radio, one that intertwines with the public values the Court saw each medium as furthering. In particular, the Court understood broadcast as what I will call, drawing on the work of Alexander Meiklejohn, a Meiklejohnian medium of communication; one where the interests of the public as audience, not
as speakers, were of primary concern.

Similarly, we cannot understand the appropriateness of any legal regulation of social media without making judgments about both where on the “speaker-conduit continuum” social media companies should lie and what public values we want them to embody.

For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.