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Imagining New LegalitiesPrivacy and Its Possibilities in the 21st Century$
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Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey

Print publication date: 2012

Print ISBN-13: 9780804777049

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804777049.001.0001

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The Law of Play

The Law of Play

Chapter:
(p.62) The Law of Play
Source:
Imagining New Legalities
Author(s):

Ariela R. Dubler

Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804777049.003.0003

This chapter discusses the legal construction of a social sphere of play and the stakes of situating legally salient actions in that context. In particular, it considers how the Supreme Court has imagined play as a site that might immunize from legal liability otherwise potentially troubling forms of sexualized behavior. It argues that in the hands of the Court the concept of play can actually render as nonsexual—and thus legally unconcerning—forms of behavior that might otherwise appear sexual and improper. Through close readings of two Supreme Court cases, it posits that the Supreme Court has used play—that is, broadly defined, the ways and spaces in which people play with each other recreationally—to construct a type of imagined protected sphere in which people can act freely, beyond the reach of legal regulation, even in ways that skirt the boundaries of illicit behavior. A distinction thus emerges between the legal consequences of actions that occur as a part of some type of play and the legal consequences of similar actions that occur outside of the realm of play. To map and examine how play functions in these ways, two Supreme Court cases are analyzed: Oncale v. Sundowner Offshore Services Inc., a 1998 case about whether male-on-male behavior can constitute legally actionable sexual harassment, and Safford Unified School District v. Redding, a 2009 case about whether it is constitutional for a public school official to perform a strip search on a female student suspected of possessing ibuprofen in violation of school policy.

Keywords:   play, Supreme Court, legal liability, sexualized behavior, sexual harassment, illicit behavior

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