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

Some pro-sex work theorists accuse feminists who oppose it of not being concerned with
“overcoming the oppression of all women,” which is what feminism is supposed to be
about. 328 Anne McClintock contends that “[e]mpowering sex workers empowers all
women, for the whore stigma is used to discipline women in general; and encouraging
society to respect sex workers encourages society to respect all women.” 329 Finally,
under some definitions of feminism, prostitution might be lauded for its potentially
positive effects in subverting and destabilizing the current sex/gender system. 330
C. Endowments [& Bargaining Power?]
I began this Section by observing that the controversy over condom mandates in
the pornography industry, a long-standing legal sex market, suggests the difficulty in
administering a regulatory regime for sex markets. On the other hand, the opposite might
be true. Institutional endowments form differently in legal versus illegal markets. One
effect of decriminalization is to disrupt the endowments that have become entrenched in
the shadow of illegality. In fact, decriminalization is often urged explicitly to disrupt
these interests as evidenced in instances as diverse as the legalization of alcohol,
gambling, and the emerging legal markets for marijuana. 331 Hence, part of pimps’ power
over prostitutes comes from their close and complex relationships with law enforcement
institutions. 332 It is unclear how current endowments would transform in legalized
markets for sexual labor. Thus, prostitution might actually be easier to regulate than
pornography because the current institutional endowments will be disrupted, it will take
some time for them to re-form and re-organize in the legal economy.
D. Substitution Effects
Of course, there are limits to regulation. Equally important are its unintended effects.
Sex work comprises a labor sector that is highly susceptible to substitution effects. That
is, as the costs of operating a legal business increase, employers, workers, and customers
migrate, or substitute, to the underground, illegal economy. In economic language,
changing the cost structure of a market produces an equilibrium response. Classic
examples include markets for house-keeping and yard work. Workers in these sectors
self-sort into four markets. They can work for a legal company, independently and
and followers, and withhuge numbers of women who spend billions on cosmetics and surgical
procedures in their struggle to prolong sexiness into old age. In each of these cases, like sex
workers, women are also either taking pleasure in the power of temporarily sexy and salable
bodies, or attempting to find such power. Thus, from the standpoint of feminist theory, it is
inconsistent to indict only the prostitute for collusion with patriarchy unless millions of other
women are also viewed just as critically.
Chancer, supra note [x], at 165.
328 Chancer, supra note [x], at 156 (emphasis in original). Elsewhere Chancer contends “For all these
reasons, then, it strikes me that feminism would be most consistent with its own goals of representing the
interests of all women to the extent that it rigorously avoided reproaching prostitutes for coping within
gender-skewed conditions.” Chancer, supra note [x], at 166 (emphasis in original).
329 McClintock, supra note [x], at [add pincite].
330 [add cite to Jody Green on this definition; Gayle Rubin and Judith Butler too? Katherine Franke in law?]
331
332
See also LEVITT & DUBNER, supra note [x], at 40-41 (discussing negotiations between pimps and police)
[change to Venkatesh].
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