1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

For several reasons, historically miners have received special regulatory attention.
Through-out the twentieth century, when coal was the nation’s primary source of energy,
their labor was perceived as highly valuable. The nation valorized miners, politically and
culturally. Their efforts to assert their rights provoked violent resistance from the mining
companies and legendary stand-offs, now immortalized in the history of unionization. 315
Importantly, miners were also what Joan Williams has called ideal workers. 316 They
inspired workers’ compensation because they were bread-winning men who performed
crucial labor for the economy, whose workplace deaths left economically devastated
families. 317 Finally, during the heyday of mining, its substantial environmental costs
were not widely perceived. In other words, the substantial externalities mining imposes
were invisible. All of this translated into political influence. [add quote from the Witt
book] 318 Of course, MSHA was not a palliative. Miners continue to struggle against
both corruption and lack of enforcement, and several recent incidents demonstrate how
such dedicated agencies can be even more susceptible to industry capture. 319 In sum,
MSHA can be understood as a product of miners’ substantial, if contested, political
influence. 320
The analogy to mining, an archetypically risky form of labor, and one that has
enjoyed substantial, if not completely effective, regulation, is helpful in thinking about
the political feasibility of regulating sex work. While mining may be an iconic form of
labor, it is less clear that most Americans view sex work as of similar social value. To
the contrary, sex work occurs against the strong gravitational pull of marriage and the
firm entrenchment of sex in the private sphere. Prostitution has long been cast as a threat
to the companionate model of marriage that arose in the late eighteenth century. [Add
cites to historic criticisms]. Today’s critiques have hardly changed in tenor or fervor.
Feminists and social conservatives alike condemn prostitution as threatening “family
values.” For instance, [add example of response to Spitzer from both feminist and social
conservative perspectives]. Moreover, the commodification of sex, that is, the
occurrence of sex in markets, is also separately and roundly condemned. [add quotes
from Radin et al] Thus, in today’s nominally sexually “enlightened” era, no less than in
Victorian times, prostitution is viewed as a threat to marriage and its role in preserving
the social order, or, from a more feminist lens, the possibility of marriage as a site of
gender egalitarianism. In stark contrast, most workers labor firmly in the so-called public
sphere and do not do so against this powerful gravitational pull.
In addition, sex professionals are viewed in many ways as the opposite of the “ideal
worker.” People find it difficult to envision prostitutes as women with families, let alone
as the primary bread-winner, which many of them are. To the contrary, as just described,
315
[add cites].
316
[add citation to Joan]
317
[add quotation and citation from Witt]
318
See also Robert H. Stropp, Jr., Walkaround Rights for Miners’ Representatives Under MSHA: A
Compatible Statutory Scheme, 96 W. VA. L. REV. 795 (1994).
319
[add examples re the recent mining disasters and how they were attributed to underenforcement.] In the
wake of this political maelstrom, Don Blankenship, CEO of the Massey Mines, was forced to resign. [two
sets of books, plus lack of enforcement].
320
Miners are a labor conundrum. On the one hand, among the most vulnerable and exploited of workers.
On the other hand, special status.
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