Dana Neacsu, Tempest in a Teacup or the Mystique of Sexual Legal Discourse, 38 Gonz. L. Rev. 601 (2003).
This article is about sex; but not about sex meaning gender, an adjective, or “that thing we are.” It is about sexual behavior. It is, in Professor Franke’s words, about sex as verb-“that thing we do”-or, to quote Judge Posner, it is about that “quintessential private activity [of] our culture.” However, it does not focus on sex as “the ultimate animal necessity.” That would be the realm of today’s talk shows headed by Jerry Springer and his ilk. Instead, it focuses on the pervasiveness of sexual discourse in the legal realm and tries to explain the reason behind it.
This article suggests that sex has become a human behavior that is often legally sanctioned because it offers itself to endless and various permissive and restrictive regulations. Furthermore, policing sex requires little infrastructure, unlike, say, a war in Iraq or improving the public school system. Allowing permissive sex legislation is also less expensive. Moreover, like thirst and hunger and irrespective of any regulation, sex will continue its old ways, whether heterosexual or homosexual, reproductive or amative…Read More