UNIVERSITY OF CINCINNATI LAW REVIEW, Volume 72, Number 3: Pages 455-526,
Winter 2003.

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Sarah E. Waldeck*

A recent explosion of law and norms scholarship has been aimed at understanding how social norms regulate human behavior.1 Like the law, social norms establish what constitutes appropriate conduct and carry the threat of punishment, either sanction by members of the community or the self-imposed guilt that comes from knowing one has behaved wrongly or inappropriately. Indeed, some norms control behavior so effectively that the distinction between what is law and what is convention almost ceases to exist: people comply with whatever the rule might be, without giving much thought to its source. To illustrate the point, when circumcision rates in the United States were more than 70 percent, nearly 10 percent of parents thought the procedure was required by law, much like it mandates the installation of silver nitrate drops into a newborn's eyes shortly after birth.2

To date, much of the law and norms scholarship has been developed by theorists whose primary affiliation is with the law and economics movement. At least part of the appeal of social norm theory lies in its ability to explain how apparently irrational behavior is, in actuality, the product of rational, utilitarian decisionmaking. In the simplest of terms, these scholars envision the benefit (or cost) of complying with the predominant social norm as one of the many factors figuring into the analysis that an individual conducts before deciding to engage in a particular behavior. For instance, when a person decides whether to recycle, she not only weighs the inconvenience against the environmental effects, she also considers the norm-based benefits of recycling, such as the avoidance of the guilt that might result from not recycling or [page 456] the social capital that is gained by appearing to be the sort of person who recycles.

This Article argues that social norms are more than just discrete factors in the behavioral cost-benefit analysis. Instead, norms are more accurately described as a variable that colors every aspect of the analysis, thereby encouraging an individual to either exaggerate or diminish the significance of other factors that figure into the behavioral calculus. To be sure, deviance from, or compliance with, a norm may have its own cost or benefit that factors into the analysis-whether it be guilt, esteem, or the capital that might hinge on whether one sends the optimal social signal. But this Article argues that an equally important function of norms is to affect the way individuals understand information, so that from the outset the behavioral outcome is weighted in favor of the predominant social norm.

This observation enriches social norm theory in several ways. First, it shows that despite the attention that the academy has given to social norms in recent years, legal scholars continue to undervalue the role that norms play in shaping and controlling human behavior. Second, it addresses a criticism often leveled at social norms scholarship: that a utilitarian theory of decisionmaking is too neat to explain human behavior, which is complicated and often appears to be anything but rational. This Article argues that social norms are messy because they both create discrete, norm-based costs and benefits, and act as multipliers that distort our perception of the other, non-norm-based costs and benefits associated with a particular behavioral choice. Finally, recognition of the dual nature of social norms enhances our understanding of how the law can effectively change norms. Some legal scholars have already suggested that careful measures that gradually erode a norm are usually more effective than laws aimed at immediate, wholesale change. This Article suggests that the most careful measures will undo the distortion caused by the predominant norm, so that an individual begins to appreciate the true costs and benefits associated with a particular decision.

The law and norms movement has often been criticized for producing "too much scholarship that is abstract and methodological rather than devoted to understanding particular problems of law and social behavior"3 and for failing to rely heavily on empirical data to produce [page 457] "situation-specific insights that can assist policymakers dealing with relevant problems."4 In contrast, this Article examines the dual nature of social norms and the implications for policy makers by closely examining the social phenomena of routine neonatal circumcision- the surgical procedure performed during early infancy, in a hospital or doctor's office, for non-religious purposes.

At first blush, neonatal circumcision may seem a strange explanatory vehicle. Some readers are likely to have strong sentiments about the appropriateness or inappropriateness of the procedure, while others may find the subject threatening, either because of their own circumcision status or that of their sexual partner, or because they once decided whether to circumcise a son. Still other readers have probably never paused to think about routine circumcision, because most American cultural groups consider the circumcised penis "natural."

But the practice of male circumcision is a quintessential social norm, as a brief cross-cultural comparison helps demonstrate. In Sweden, for example, routine circumcision is non-existent and widely perceived as an assault on the child, with the Swedish Parliament recently voting to strictly regulate the conditions under which religious circumcisions may be performed.5 South Korea, on the other hand, has a routine circumcision rate of about 90 percent, higher than any other country. Most of the reasons South Korean parents give for circumcising their sons are familiar to American parents, including fear that uncircumcised boys will be the object of ridicule, ease of penile hygiene, and medical benefits. But South Korean boys are circumcised (with anesthesia) during late elementary school, primarily because both parents and children see circumcision as a rite of passage into adulthood.6 If the thought of having a ten year-old circumcised makes you wince, South Koreans have the same response to our practice, with a significant percentage believing that a newborn is ill-equipped to handle the procedure.7 As two prominent sociologists have commented, sensitivity to social norms is best illustrated by matters that involve sexuality, as "it is unlikely that one can conjure up any image that will not correspond to what in some other culture is an established norm, or at least an occurrence to be [page 458] taken in stride."8 As such, routine neonatal circumcision is the ideal vehicle for exploring and enhancing the ideas that currently dominate the social norms literature.

The Article proceeds in three parts. Part I begins by discussing how current social norm theory adopts an essentially utilitarian view of human decisionmaking and conceives of norm-based considerations as a discrete factor in the behavioral calculus. Part I then argues that social norms are better understood as not only stand-alone factors in the cost-benefit analysis, but also as variables that distort a decisionmaker's understanding of every element in the behavioral calculus. Part II turns to the concrete example of routine neonatal circumcision. It provides a brief history of routine circumcision in the United States and shows how social norm theory helps explain why the procedure became standard practice. Part II next turns to the current debate on circumcision and discusses why parents continue to circumcise even though the procedure is no longer medically recommended. Here discrete norm-based considerations continue to have explanatory value, but do not satisfactorily account for parental behavior. Part II then demonstrates the usefulness of perceiving a social norm as a multiplier that affects every aspect of the cost-benefit analysis, thereby allowing the decisionmaker to either exaggerate or diminish the significance of other factors that figure into the behavioral calculus. Finally, Part III builds on the work of other norm theorists to suggest that narrow legal interventions that undo the distorting effect of social norms may be the most effective strategy for changing a pervasive norm. Part III then illustrates how this strategy would work in practice by examining empirical evidence to determine which legal measures would be most likely to tip the norm in favor of noncircumcision.


A. Norms as Discrete Factors in the Behavioral Cost-Benefit Analysis

The current thrust of the law and norms movement is best illustrated by the work of three theorists: Robert Cooter, Richard McAdams, and Eric Posner. Robert Cooter's conception of social norms is related to expected utility theory, which predicts that because an individual wishes to maximize her utility, she will choose the option with the greatest [page 459] expected net benefit.9 The problem for expected utility theory, however, is that some choices do not appear to maximize utility. Tipping is a frequently used example. If a person is at a restaurant to which she never expects to return, she should not tip the waiter, at least not in rational economic terms. The tip will add to the cost of the meal that has already been consumed and will not help guarantee good service in the future. Yet most people tip regardless of whether they plan to return.10 Cooter argues that in scenarios such as this, the existence of a norm changes the individual's cost-benefit calculus.11

Specifically, Cooter posits that norms develop when there is "[u]nanimous endorsement" of behavior that "will convince some members of the community to internalize the obligation, and to inculcate it in the young."12 Because of internalization, the individual who does not comply with the norm experiences guilt or shame. In other words, the individual herself imposes a cost for non-compliance. If the guilt or shame is great enough, the individual maximizes utility by complying with the norm, whether it be tipping or some other behavior. Richard McAdams's vision of norms is also related to utility theory, but he sees norms functioning primarily as sources of external sanction. According to McAdams's esteem theory, norms are created and reinforced because people react to, and desire, the esteem of others. He argues that norms arise when (1) prior to the development of any widespread convention, a consensus exists about the desirability of a particular behavior; (2) there is some risk that others will detect whether a particular individual engages in the behavior; and (3) the consensus and risk of detection is well-known by the relevant population.13

Assume, for example, that after a series of well-publicized studies on automobile safety, a widespread consensus develops that children under twelve are safer in the backseat. This prescription poses a variety of practical problems: carpooling is more difficult; parents with multiple children will have to buy larger, more expensive vehicles; unpleasant confrontations are likely with the child who insists on sitting in the front. [page 460] In the face of these and other costs, parents may not put children in the back if the only perceived benefit is increased safety during the highly unlikely event of an accident.14 According to esteem theory, however, the desire for esteem creates an additional benefit-the approval of those who see the parent placing children in the backseat. As McAdams writes, "[i]f the consensus is that [engaging or not engaging in a particular behavior deserves esteem, a norm will arise if the esteem benefits exceed, for most people, the costs of engaging [or not engaging in the behavior]."15 Like Cooter, then, McAdams perceives human decisionmaking as essentially utilitarian, with individuals conducting a series of cost-benefit analyses. The esteem derived from engaging or not engaging in a particular behavior can be the decisive factor in determining how an individual will act. If enough people sufficiently value the esteem that comes with a particular action or inaction, a norm will arise.

Once the norm is established, compliance with the norm may not be a means of gaining esteem; rather, compliance is necessary to avoid a loss of esteem.16 To again use the automobile safety example, imagine that a significant percentage of parents put children under twelve in the back. Now the parent who complies with the norm does not gain esteem, because she is simply "doing what parents do." But the parent who does not comply with the norm will lose esteem, because she is not doing what parents do. Moreover, the cost of non-compliance increases as overall compliance with the norm increases. As McAdams explains,

"[b]ecause esteem is relative, the intensity of disesteem directed at those who engage in a disapproved behavior is partly a function of the total number of people who are thought to engage in that behavior . . . . Thus, because individuals value esteem relatively, the more a behavior negatively distinguishes them from others, the more costly it is."17

This feedback process can have the effect of "tipping," so that once a particular threshold is reached, the esteem cost is strong enough that it deters most deviance.18

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Like Cooter, McAdams views norms as obligations.19 Indeed, McAdams reconciles his theory with Cooter's in a way that will prove important for this Article. McAdams argues that if internalization occurs, it is most likely to occur with abstract norms, like "be a good neighbor" or "be a good citizen." The esteem-based norm is more concrete, in that it defines what behavior violates the abstract norm, like "not mowing your lawn" or "not voting."20 In the automobile safety example, the internalized abstract norm is "be a good parent," while the esteem-based prescriptive norm is "put children in the backseat." Thus, esteem-based norms can generate internal as well as external sanctions because the individual will feel guilty about violating the prescription for being a good parent, a good neighbor, or whatever the abstract norm might be.21

The third relevant theory is Eric Posner's "signaling model." For Posner, social norms are thinner than for Cooter and some other social norm theorists. A norm "is not an exogenous force, it is not internalized; it is a term for behavioral regularities that emerge as people interact with each other in pursuit of their everyday interests."22 Stripped to its bare essentials, signaling theory posits that norms develop as individuals try to signal that they are of a "good type"-i.e., that they are the sort of people with whom others should cooperate.23 The desired cooperation varies depending on context. A bond trader may supply a client with sought-after sports tickets to signal that he is worthy of continued business; a prospective job candidate may dress carefully for an interview to signal that she will be a good employee.

Signaling theory applies to social matters as well. As Posner describes, "[s]ome people pay for elaborate and time-consuming hairstyling, invest in contact lenses rather than glasses, pierce ears and other body parts, tattoo or scar or brand themselves."24 Regardless of the context, the behavior that Posner categorizes as "signaling" is observable and connected to appearances. It is also arbitrary, in that people attach significance to the behavior (for example, dressing nicely) only because of prior beliefs about the sort of people who engage in the particular behavior. Finally, signaling behavior is costly, in terms of time, actual dollars, or physical discomfort.25 Similar to McAdams, [page 462] Posner argues that individuals incur these costs as a means of establishing or preserving their reputations.26

To recap, for these social norm theorists, human decisionmaking is essentially utilitarian. While each theorist envisions norms generating a different kind of cost or benefit, each sees norms operating as a discrete factor in the behavioral calculus. Consider recycling, an example thatis often used in the norms literature. As others have pointed out,27 in the absence of a pro-recycling norm, the decision to recycle is a puzzling one. Recycling is inconvenient, because it requires the rinsing of items that would otherwise simply be discarded, the sorting and separation of different kinds of trash, and in some jurisdictions, regular trips to a recycling collection point. Moreover, the environmental impact of a single individual's recycling effort is negligible; whether a single Coke can goes into the trash or the recycle bin is of virtually no environmental consequence. In other words, an individual weighing only the inconvenience against the environmental impact would almost certainly choose not to recycle. But according to these theorists, individuals weigh the inconvenience of recycling against more than just the environmental benefit. They also take norm-based considerations into account, such as the guilt that may result from failing to be the sort of citizen who recycles, or the possibility of being thought less of when non-recycling becomes apparent to the neighbors. Thus these norm-based considerations function as discrete factors in the behavior cost-benefit analysis.

B. Norms as Multipliers

The utilitarian explanation of human decisionmaking has been broadly challenged by social scientists28 and criticized in some of the legal literature.29 The central objection is that when decisions are complex, we lack the time and resources to gather all the relevant data, as well as the cognitive capacity to determine all the positive and negative consequences of a particular course of action. So alternative theories of decisionmaking abound. To name only a few, researchers have hypothesized that humans "satisfice" by looking for the action that [page 463] meets specific minimum requirements and is thus "good enough" (as opposed to the best available alternative); that decisionmaking is essentially "a sequential narrowing-down process, similar to the logic employed in the popular game Twenty Questions"; that we often use simple moral precepts as the sole basis for a decision; and that we frequently use heuristics, or mental shortcuts, to make decisions. In light of the overwhelming evidence of how frequently we fail to engage in classic cost-benefit analyses, even many of the scholars whose work assumes that we have "the logic of a supercomputer, boundless knowledge, and all eternity to make a decision" will concede that humans often fail to maximize utility.30

However, even if one rejects some of the classic assumptions of law and economics, the work that has been done on law and norms is nonetheless important. While we are often either incapable of, or uninterested in, choosing the course of action that maximizes utility, we do sometimes try—however imperfectly—to find the best alternative. And the central point of law and norms scholarship is that norms are an important part of this endeavor. But norms are even more important than the current legal scholarship acknowledges, because they do not just impose costs and benefits for us to consider. Norms also act as multipliers that affect how we perceive the other information that is relevant to a particular decision.

For instance, consider again the example of recycling. Assume that a person knows that many of her neighbors recycle and that the local government has gone to some effort to encourage its citizens to recycle; in other words, assume the person is aware of the norm favoring recycling. Also assume that the person is interested in making the best decision, and believes (rightly or wrongly) that the decision whether to recycle is relatively straightforward, with only a few relevant variables: the environmental impact of recycling (ei), the external esteem that recycling garners (ee), the personal satisfaction that comes from perceiving one's self as a good citizen (ps), and recycling's inconvenience (i). As the person becomes cognizant of the norm, she may begin to exaggerate the environmental impact of her own recycling, perhaps on the theory that if individual effort has negligible effect, few of her neighbors would choose to recycle. At the same time, she might discount the inconvenience of recycling, again on the theory that if everyone is doing it, the demands of recycling cannot be all that onerous. To illustrate with an equation (where boldface indicates a [page 464] norm with an exaggerating effect, and regular typeface indicates a norm with a discounting effect), the person chooses to recycle because:

((norm * ei) + ee + ps) > (norm * i)

If norms function as external variables that affect the way decisionmakers understand information, then the behavioral outcome will always be weighted in favor of the predominant social norm, regardless of what other factors enter into the behavior calculus. In other words, the norm carries more force than other considerations in the cost-benefit analysis, because the norm both imposes its own set of costs and benefits and colors a decisionmaker's perception of other relevant factors.

To further complicate matters, even for a single decision, the distorting norm will not have a constant value. Consider another example, the decision to place a two year-old in a car seat. Assume that the parent is expecting an infant and that the two year old is both old enough and large enough that the car seat is no longer required by law. Some benefits of placing the two year-old in the car seat are fairly obvious: safety (s), as well as the norm-based personal satisfaction (ps) that comes from "doing what good parents do" and the external esteem (ee) of being perceived as the sort of parent who straps in a toddler. Some costs are relatively apparent as well: the expense of buying a new car seat for the infant (cs), the hassle of having to repeatedly buckle and unbuckle the two year-old (b), and perhaps the investment in an automobile that is large enough to accommodate two car seats (a). Some of these costs weigh more heavily against the pro-car-seat-norm than others. As such, the norm would have the strongest diminishing effect on what the parent perceives as the greatest cost—perhaps the investment in a new vehicle. In contrast, if the parent perceived the cost of the additional car seat as negligible, the norm would have little or no discounting effect. Similarly, if a consideration weighed only slightly against the relevant norm—perhaps the buckling and unbuckling in our hypothetical—the multiplier effect would likely discount that factor less than one that strongly weighed against the norm. To again illustrate with an equation, a person may choose to use a car seat for the two-year-old because:

((norm * s) + ps + ee) > ((NORM * a) + (norm * b) + cs)

Moreover, the existence of the norm might even lead a person to exaggerate the personal guilt or loss of external esteem that might result from failure to comply with the norm. Indeed, social scientists have discovered that we often make incorrect empirical guesses about what other people do. For example, most college students drink moderately [page 465] at most, but incorrectly assume that most of their fellow students are far more intemperate. This sort of misperception causes individuals, who often fear embarrassment, "to suppress attitudes and behaviors that are incorrectly thought to be non-conforming and instead to engage in the behaviors that are incorrectly thought to be normative."31 In other words, the decisionmaker misapprehends the actual consequences of compliance or noncompliance with what they perceive to be the norm. To return to the recycling example (and to assume a simple case where the existence of a norm has the same multiplier effect on all the factors weighing in favor of recycling), in this scenario:

(norm (ei + ee + ps)) > (norm + i)

Thus, the existence of a norm not only creates discrete costs and benefits, it also influences a person's perception of each and every factor in the behavioral calculus, including the costs and benefits of norm compliance. Indeed, the existence of the norm might even lead the decisionmaker to imagine nonexistent costs and benefits. For example, because so many two year-olds are in car seats, a parent might assume that failure to use a car seat risks legal sanction, even if no such law actually exists.

The multiplier effect of norms is similar to a number of phenomena that cognitive scientists collectively refer to as "confirmation bias," or our tendency to seek information and ask questions that will corroborate rather than falsify our theories, and to interpret evidence in ways that support our beliefs or hypotheses. As social scientists have explained,

There is considerable evidence that people tend to interpret subsequent evidence so as to maintain their initial beliefs. The biased assimilation processes underlying this effect may include a propensity to remember the strengths of confirming evidence but the weaknesses of disconfirming evidence, to judge confirming evidence as relevant and reliable but disconfirming evidence as irrelevant and unreliable, and to accept confirming evidence at face value while scrutinizing disconfirming evidence hypercritically.32

The way in which raw data is interpreted, then, appears to depend largely upon the predilections of the interpreter.

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For example, Charles Lord, Mark Lepper, and Lee Ross have demonstrated that individuals with strong opinions on complex social issues do not evenhandedly evaluate relevant empirical evidence.33 Lord and his fellow researchers presented two studies to proponents and opponents of capital punishment. One study seemed to prove the deterrent effect of the death penalty, while the other seemed to disprove it. The studies typically elicited "entirely opposite evaluations" depending on a person's initial beliefs about capital punishment.34 In general, the participants in Lord's experiments accepted evidence that confirmed their initial beliefs, while subjecting contradictory evidence to critical evaluation. As Lord and his colleagues explained,

Willingness to interpret new evidence in the light of past knowledge and experience is essential for any organism to make sense of, and respond adaptively to, its environment. [Our subjects'] sin lay in their readiness to use evidence already processed in a biased manner to bolster the very theory or belief that initially "justified" the processing bias. In so doing, subjects exposed themselves to the familiar risk of making their hypotheses unfalsifiable-a serious risk in a domain where it is clear that at least one party in a dispute holds a false hypothesis-and allowing themselves to be encouraged by patterns of data that they ought to have found troubling.35

The results of Lord's experiment were reminiscent of an earlier study in which Princeton and Dartmouth football fans were shown tapes of the same game, but provided dramatically different post-game summaries.36

Because the participants in Lord's study were exposed to a common set of mixed data-some supporting the deterrent effect of capital punishment and some not-it is difficult to quantify, as a normative matter, exactly how much the data should have affected attitudes.37 Instead, the most we can say is that some change would have been appropriate. But Craig Anderson, working with Lepper and Ross, has documented that we actually persist in our beliefs in ways that are normatively indefensible.38 In one experiment, subjects were led to believe that either a positive or negative relationship existed between a firefighter trainee's preference for risk and his ultimate success on the [page 467] job. Subjects were then told that the studies were fictitious and had no probative value. Nonetheless, assessments of the relationship between risk preference and ultimate success as a firefighter continued to reflect the subjects' initial belief, even though they were aware that the belief was based on faulty data. As the researchers summarized, "People often cling to their beliefs to a considerably greater extent than is logically . . . warranted. . . . [I]nitial beliefs may persevere in the face of a subsequent invalidation of the evidence on which they are based, even when the initial evidence is itself [weak]."39

In all of these studies, of course, the subjects were committed to an initial belief or hypothesis. When an individual is deciding whether to follow a norm, they are by definition not yet "committed" to a particular choice. But when we are aware of a norm, we are often inclined to think that it reflects the preferable course of action, even if we have not yet decided to follow the norm. This is not the same as suggesting that norms act as heuristics, as is sometimes argued.40 Here the norm does not serve as a mental shortcut that eliminates the need for further analysis. But the norm does, to borrow the language of Amos Tversky and Daniel Kahneman, act as a sort of anchor.41 As countless experiments have shown, when asked to answer questions, "people may spontaneously anchor on information that readily comes to mind and adjust their responses in directions that seem appropriate."42 Usually, however, the adjustment away from the anchor is insufficient, so that the final answer is biased toward the anchor. Social scientists have developed several explanations for why the adjustment is inadequate;43 one is that, at least when the anchor is not known to be wrong, the individual generates evidence that is disproportionately consistent with the anchor.44 Similarly, a norm may act as the "anchor" from which we evaluate subsequently-provided information.

In sum, because we are often inclined to assume that a particular behavior is preferable simply because so many of our peers do it, norms [page 468] provide a reference point which predisposes us to exaggerate variables that support the norm and to downplay those that contradict the norm. Of course, when a norm maximizes utility or otherwise reflects the best course of action, its multiplier effect is useful because it helps lead us to the preferable alternative. But when the norm is suboptimal, its multiplier effect can be quite damaging, because the norm prevents an evenhanded assessment of the relevant information.

As will be discussed in greater detail later,45 the way that norms affect our understanding of information bears directly on the work of legal policymakers who craft rules and incentives aimed at achieving a particular result. But before discussing how policymakers might try to counterbalance the bolstering caused by a norm, the Article turns to a concrete illustration of how norms function as multipliers: the parental decision to routinely circumcise male infants.

The next section of this Article, Part II, begins with an historical account of how routine circumcision became the predominant practice in the United States. This section then examines the empirical evidence on why parents continue to opt for a procedure that is no longer medically recommended. The discussion shows that discrete norm-based considerations have explanatory value, but do not entirely account for parental behavior. Instead, decisionmaking about routine circumcision is more satisfactorily explained when norms are understood both as discrete factors and as multipliers that allow parents to exaggerate the benefits of circumcision and downplay the disadvantages. In particular, the next Part shows that if norms are considered only as discrete factors, human decisionmaking often appears to be primarily about seeking conformity, when in fact the cognitive process is far richer. After circumcision has illustrated the theory, the Article then provides a situation-specific discussion of how legal policymakers might respond to the role of norms as multipliers.


Like many social norms, circumcision is properly described as highly path dependent. In its most stripped-down form, path dependency means that "history matters."46 Events that (with hindsight) should have been insignificant lead to a cascade of activity, which in turn "lock in" [page 469] an inefficient practice.47 The story of the QWERTY keyboard is frequently invoked to illustrate the concept.48 In the early days of typewriters, inventors struggled to prevent them from jamming. The QWERTY keyboard (on which we all type today) was designed to minimize this problem. In 1888, a stenographer who was apparently the Michael Jordan of typing won a series of contests around the country, beating less-talented challengers who happened to use different keyboards. After the stenographer's successes, everyone began choosing typewriters with QWERTY keyboards. In 1936, an inventor patented a DSK keyboard, which allowed for greater speed and easier learning. By then, however, QWERTY was so entrenched that the more efficient DSK never became popular. Even today, we continue to type on an inefficient keyboard designed to solve a long-obsolete mechanical difficulty. The QWERTY story is hotly debated in the economics literature-whether DSK really was superior to QWERTY and whether the costs of switching from QWERTY to DSK outweighed any marginal benefit.49 But the QWERTY story, if accurate, illustrates how an event as insignificant as a typing contest might lock in a particular practice.

A. Circumcision's QWERTY Moment

Because male circumcision dates back to at least 2400 B.C.,50 perhaps it is a bit foolhardy to try to identify the watershed incident. But if we ask the narrow question of how the United States stepped onto the path of routine neonatal circumcision, the critical event was in 1870, when a five year-old boy from Milwaukee met Lewis Sayre, a preeminent orthopedic surgeon.51 The boy was so bowlegged that he could barely walk or stand. After a physical examination, Sayre was puzzled about [page 470] the source of the condition. He did, however, notice that the boy was suffering from genital irritation. Sayre speculated that the irritation might be causing the bowleggedness. (This was not as absurd then as it sounds today. At the time, doctors believed that each organ had "its own spheres of neural influence, governing different aspects of body and mind," and that "each was wired, however indirectly, to every other."52 The theory was akin to acupuncture, e.g., squeeze hard between the thumb and index finger to cure a headache.) So Sayre circumcised the boy, using chloroform as an anesthetic.

Incredibly—here is the QWERTY moment—the boy's knees straightened out within a few weeks of the circumcision. Then Sayre circumcised another partially paralyzed boy, who also recovered. Sayre soon concluded that genital irritation was the cause of many orthopedic diseases. He eventually associated the foreskin with an even wider array of disorders, including epilepsy, hernia, and mental diseases. Sayre then began to promote circumcision in hundreds of articles and presentations. As a sort of Michael Jordan of nineteenth-century medicine, he had the ideal bully pulpit.53 In 1866, Sayre was named vice president of the new American Medical Association; he was elected president in 1880. Sayre wrote Lectures on Orthopedic Surgery and Disease of the Joints in 1876, which had at least twelve editions and was "the bible for a generation of surgeons."54 Indeed, the British Medical Journal described him as having "moved a great mass of painful, tedious and almost incurable complaints into the region of curable and easily managed affections."55 Thus, when Sayre said that circumcision could cure serious diseases, people listened.

In the 1880s, doctors began to promote circumcision as a prophylactic measure, instead of as a response to specific disorders. Because the foreskin was believed to be associated with so many diseases, doctors advocated circumcision "as a precautionary measure, even though no symptoms have as yet presented themselves."56 Once circumcision was perceived as sound preventive medicine, physicians promoted the procedure as most ideally performed on infants, who would then benefit [page 471] from a lifetime of circumcision's protective effects. Significantly, doctors also believed that infants did not experience pain. As such, they believed that anesthesia, which was a particularly tricky business in the late nineteenth and early twentieth centuries, was unnecessary.57

The belief that circumcision was medically beneficial coincided with other developments that helped popularize the procedure. First, in the late 1800s, the number of hospitals dramatically increased and the rate of post-surgical complications sharply decreased.58 This made circumcision a more convenient and less risky option than it otherwise would have been. At the same time, at least for the upper and middle classes, childbirth was evolving from "a domestic event managed by midwives . . . into a medical event handled by physicians."59 Eventually, circumcision became a marker of class, indicating that one's family was wealthy or sophisticated enough to deliver in a hospital.60 Moreover, as researchers began to identify the bacteria that caused diseases, the human body was portrayed as a reservoir of dangerous microbial agents. The penis was seen as an especially virulent source of contamination. In particular, the uncircumcised penis was perceived as dirtier than the circumcised penis because of secretions that collect under the foreskin.61 Thus circumcision was thought to make the penis cleaner and, therefore, the boy healthier. Finally, circumcision was fueled by a Victorian fear of masturbation, a sin which was believed to cause insanity, epilepsy, and myriad other diseases.62 Many believed that uncircumcised males were more likely to masturbate because they had to retract the foreskin to clean under it. Indeed, the 1898 edition of All About Baby (the nineteenth century's Dr. Spock) advised mothers that circumcision was "advisable in most cases . . . [to prevent] the vile habit of masturbation."63

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Over time, the medical profession came to understand that circumcision neither prevented masturbation nor provided the panoply of benefits that Sayre and others had presumed it would. But doctors continued to promote circumcision, primarily on the ground that it constituted good penile hygiene, and reduced the risk of sexually transmitted diseases and penile cancer. As the decades passed, circumcision rates continued to climb. While no precise statistics are available, estimates are that by 1900, 25 percent of males were circumcised; by 1912, 35 percent; by 1920, 50 percent; by 1935, 55 percent; and by 1970, upwards of 85 percent.64

B. A Social Norm Account of the Decision to Circumcise Prior to the 1970s

Even with this short historical account, we can see how social norms theory helps account for the trajectory of historical events. The combination of McAdams's and Cooter's work is particularly important; Posner's less so, because signaling theory accounts for arbitrary behavior,65 and at this juncture circumcision had a medical rationale.

Recall Cooter's notion of internalized norms, with guilt acting as an internal sanction that raises the cost of particular actions or inactions. As in the automobile safety hypothetical, the operative norm for circumcision is the inverse of the Biblical Commandment: i.e., be a good parent. This norm is deeply internalized, and failure to comply usually generates great guilt.66 As Sayre and the medical establishment endorsed routine circumcision as a prophylactic measure, the procedure became a concrete prescription for being a good parent and a means of gaining esteem. Eventually, as routine circumcision steadily became standard practice, circumcision became so widespread that it ceased to be a means of gaining esteem. Instead, circumcision became necessary to avoid a loss of esteem. One commentator describes how circumcision started in the upper echelon of society, but was eventually perceived by [page 473] poor and immigrant populations as a means of avoiding class stigma.67 As McAdams would predict, increasing circumcision rates had a feedback effect: as more and more infants were circumcised, the esteem-based incentive continued to grow, because noncircumcision was seen as ever more deviant.

The esteem-based analysis, however, is more complex than the original theory suggests. As the history tells us, circumcision became a mark of modernity and sophistication, an indication of cleanliness and sound moral character. But these esteem gains were almost certainly experienced by the child who was circumcised, not by the parental decisionmaker. Even today parents do not usually speak about their child's genitalia, and this reticence was probably even more pronounced during the historical period when Victorian values were predominant. Moreover, not too many of a parent's peers would have had the opportunity to observe whether the child was circumcised. Thus, any esteem gain by the parents themselves was necessarily small. In contrast, the esteem-based benefits experienced by the child may have lasted a lifetime, from early experiences of communal undress to later sexual encounters.

Indeed, circumcision shows how esteem-based norms can dictate behavior in ways that are more multi-tiered than McAdams and Cooter originally delineated. The primary esteem gains, or external incentives, belong to the child. Yet the internal sanction-guilt associated with failing to be a good parent-belongs to the parent. In other words, the internal sanction compels the parent to seek esteem for the child. Of course, it is conceivable that at least some parents recognize that they may gain reputational benefits by seeking esteem for their child: for example, they might enable their child to befriend a person with whom association would give tangential esteem to the parents; or they might help their child marry someone who would enhance the family's reputation and supply grandchildren of particularly good stock. But any cost-benefit analysis that took into account these downstream parental reputational benefits would be exceedingly complex, and considerable social science evidence has shown that when confronted with complexity, individuals become unwilling or incapable of conducting the calculus necessary to reveal the utility-maximizing option.68 More likely, the guilt associated with failing to be a good parent is enough to compel parents to seek esteem for their children. Indeed, this internal sanction mechanism may be why we give parents broad discretion to determine [page 474] what is in the best interests of their children,69 and why, for the most part, we interfere with parental authority only at the margins. If parental behavior actually jeopardizes the health or safety of the child, there is ample indication that the "be a good parent" norm is not serving as an adequate brake on parental desires and norms that conflict with the one favoring parenting.

To summarize, existing social norm theory enriches our understanding of how routine circumcision became the predominant practice in the United States. Note, however, that social norm theory is not necessary to make the historical decision to circumcise appear rational; until the early 1970s, the decision to circumcise was probably a relatively easy one, regardless of any discreet, norm-based concerns. Circumcision was believed to confer significant medical benefits, the risk of complications was low, and infants were not believed to feel pain. Most, if not all, the factors in the cost-benefit analysis indicated that circumcision was the optimal choice. While the emergence of a social norm favoring circumcision may have caused parents to exaggerate the health benefits or minimize the risk of complications, we cannot say that the existence of a norm distorted parental decisionmaking; most likely, parents made the choice that they would have even in the absence of a social norm multiplier that affected how parents processed the information they received about circumcision. However, when we consider the modern-day decision to circumcise, social norm theory, and particularly the role of norms as multipliers, becomes critical.

C. The Decision to Circumcise Post-1970

Numerous studies have attempted to quantify how modern-day parents make decisions about circumcision. Parents rarely give a single reason for their decisionmaking and, as we might expect, often cite medical reasons. Indeed, the circumcision rate has always been tied, at least to a small extent, to the current medical recommendation. In 1971, when circumcision rates were above 85 percent, the American Academy of Pediatrics (AAP) released a statement that recommended against routine neonatal circumcision.70 The AAP reiterated this conclusion in 1975 and 1983. Nationwide circumcision rates gradually fell to around 70 percent and then leveled off. In 1989, in the wake of new information about urinary tract infection and sexually transmitted [page 475] diseases, the AAP revised its statement to take a neutral stance on circumcision, stating that the procedure had potential medical benefits as well as disadvantages and risks.71 Rates again rose above 80 percent. After the AAP reviewed the evidence again in 1999 and announced that circumcision was not medically warranted, the nationwide rate dropped to around 65 percent, where it has more or less remained.72 However, circumcision rates currently vary greatly by region: in the Midwest, 81 percent of newborns are circumcised; 67 percent in the Northeast; 64 percent in the South; and only 37 percent in the West.73

As the next section indicates, without taking social norms into account, in 2003 the decision to routinely circumcise is difficult to explain: current medical data reveal either that the effects of circumcision are marginal enough that it is not particularly effective in preventing disease, or that the potential benefits of the procedure are related to diseases that are too uncommon to warrant widespread prophylactic measures. In addition, we know now that circumcision causes infants to experience significant pain and carries a non-negligible risk of complications. Because of the plethora of relevant medical information, the text of the next section addresses only the most important research, while the citations provide a more complete picture. Readers who are uninterested in current medical understanding may wish to proceed directly to Part II.D, which returns to issues of social norm theory.

1. The Medical Considerations

In 1999, a Task Force established by the AAP concluded that the "data are not sufficient to recommend routine neonatal circumcision."74 At that time, approximately 1.2 million American infants-85 percent of male newborns-were circumcised annually, at a cost of between $150 and $270 million.75 Of course, the AAP's Task Force on Circumcision is as vulnerable to special interest capture as any other deliberative body, and strong sentiments exist on both sides of the circumcision [page 476] issue.76 The AAP's position, however, echoes that of other Western pediatric associations. Of particular interest are Britain, Canada, and Australia, which all at one time had circumcision rates comparable to those in the United States.77 None of the medical associations in these countries now endorse routine neonatal circumcision,78 despite the recognition that the procedure has potential medical benefits. But as the following discussion reveals, these benefits are associated with diseases that are too rare to warrant prophylactic circumcision of all newborn males, or alternatively, with diseases for which the effect of circumcision is so marginal that it cannot be considered an effective means of prevention.79 Moreover, over the last thirty years, the medical profession has recognized that newborns experience pain, and thus, that circumcision has significant costs.

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a. The Medical Disadvantages

1. Pain

Circumcision is not the innocuous procedure that many believe, especially given that most circumcisions continue to be performed without any anesthesia.80 At the risk of stating the obvious, circumcision is extremely invasive and intensely painful. Although the procedure varies depending on which surgical instruments are used, typically the doctor grasps the foreskin with clamps, tears it away from the glans, slits the foreskin and pulls it through the clamp, tightens the clamp to hold the foreskin in place, and then cuts off the foreskin.81 Circumcision is painful enough that when it is performed after infancy, general anesthesia is the standard of care.82 In part, this is because no local anesthetic can completely block the pain of circumcision. In addition, the most effective local anesthesia involves multiple injections into the penis, which are thought to be too painful for the fully-aware patient to tolerate.83 That circumcision hurts probably does not come as a surprise-at least not if the grimaces, winces, and other contorted facial expressions that usually accompany discussion of the procedure indicate how we perceive it.

Yet most of us are remarkably cavalier about the prospect of infants experiencing the pain of circumcision. One common misperception is that infants are not yet sufficiently developed to feel pain. But newborns have both the anatomical and functional components necessary for the perception of painful stimuli.84 Indeed, the data on whether infants experience pain is so compelling that "current knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young, nonverbal infants as they do to children and adults in similar painful and stressful situations."85 In other words, as a means of assessing what circumcision feels like to an infant, it is not anthropomorphic to ask, what would circumcision feel like to me?

[page 478]

Every marker suggests that circumcision is extraordinarily painful for the infant. Unanesthetized newborns cry vigorously and in some cases become mildly cyanotic because of prolonged crying.86 Indeed, the infant's cry acts as a graded signal during circumcision, increasing "in intensity along dimensions that reflect the degree of discomfort felt by the infant."87 Crying is most frequent and high-pitched during the parts of the procedure that we might expect to hurt the most: when the foreskin is grasped with a clamp and torn away from the glans, when the foreskin is slit, and when the foreskin is pulled through a clamp and cut off.88 During circumcision infants also demonstrate other stress-related physiological reactions, including dramatic changes in blood pressure, heart and respiratory rates, and in transcutaneous oxygen and plasma cortisol levels.89 The deep sleep that many infants fall into after circumcision is another indicator of infant discomfort; it is not normal rest but instead a non-rapid-eye-movement sleep that is a hallmark of infant pain or stress.90 Finally, for at least twenty-two hours after circumcision, 90 percent of infants have altered behavioral states, including disruptions in sleep/wake cycles, irritability, lethargy, and disruption of feeding patterns.91

Of course, pain is a subjective experience. Because infants are nonverbal, it is impossible to assess their subjective response to circumcision, or to determine whether the pain experienced by infants is similar to the pain experienced by children and adults. However, at a minimum, the data shows that circumcision "clearly constitutes a physiologic and perhaps even a psychological form of stress in premature and full-term neonates."92

The issue of infant pain is often dismissed on the ground that it cannot be remembered. And certainly this would seem a significant difference between pain in adults and older children and pain in neonates. While adults and children cannot remember the sensation of pain itself, they can recall the experience associated with pain.93 Circumcision [page 479] may seem less cruel if the infant is unable to remember it. However, research is beginning to suggest that painful experiences during infancy do have lasting effects, even if the experiences cannot be the subject of conscious recall. For example, one study looked at vaccination response in four- to six-month-old male babies. Infants were divided into three groups: those who were uncircumcised; those who had been circumcised with EMLA, a topical anesthetic which blocks some but not all circumcision pain; and those whohad been circumcised without any anesthesia. Researchers found a "significant linear trend on all outcome measures, showing increasing pain scores from uncircumcised infants, to those circumcised with EMLA, to those [circumcised without anesthesia]."94 In other words, the more pain an infant experienced during circumcision, the stronger his pain response during subsequent vaccination. These results were consistent with studies outside the context of circumcision that show repeatedly exposing infants to painful stimuli may induce hypersensitivity, and that this can be prevented through the use of effective anesthetic.95 Authors of the study on vaccination response postulated that the pain of circumcision may alter an infant's central neural processing of painful stimuli, and thereby induce long-lasting changes in infant pain behavior.96 They also speculated that since post-traumatic stress disorder is one of the consequences of unanesthetized surgery on adults, "the greater vaccination response in the infants circumcised without anesthesia may represent an infant analogue of a post-traumatic stress disorder triggered by [the traumatic and painful event [of vaccination]."97 This speculation would comport with the evidence that the structures that are necessary for memory are well-developed and functioning during the newborn period, and that infants do have the capacity to store information and experiences.98 In sum, the science suggests that, even for infants, the pain of circumcision should not be dismissed on the ground that its effects are limited to the few minutes during which the procedure is being performed.

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2. Risk of Complications

As with any surgical procedure, circumcision carries the risk of complications. Studies report complication rates ranging from 0.19 percent to 0.60 percent.99 The most recent study, which examined a large and diverse patient sample in Washington, found a complication rate of approximately 0.20 percent, or one complication per every 476 circumcisions.100 The most common problem is bleeding during and after circumcision,101 which can typically be controlled by the use of hemostatic agents, cautery, stitches, or even mere gentle pressure.102 Infection is the second most common complication, and is usually limited to local redness and secretion of pus. Very rarely, a widespread systemic infection develops, or the infection kills some of the penile tissue.103 There is also a risk of surgical error, even when the procedure is done by experienced physicians.104 Errors include removing too much skin, so that part of the penile shaft is stripped bare until skin grows back or a graft is performed, or so that the glans retracts and becomes hidden in the suprapubic fat.105 Other surgical errors include lacerations to the penis and, extraordinarily rarely, amputation of the penis. But while this kind of accident is a headline grabber,106 surgical error-particularly grave surgical error-is rare.107 As one editorial in the New England [page 481] Journal of Medicine summarized, "in experienced hands, infant circumcision involves a very low but not completely negligible risk."108

b. Potential Health Benefits

1. Urinary Tract Infection (UTI)

As previously stated, circumcision continues to be associated with some potential health benefits, the most immediate of which is a decreased risk of urinary tract infection, as the foreskin can harbor bacteria that cause the disease. While males of all ages are susceptible to UTI,109 the risk is greatest during the first year of life.110 All studies demonstrate an association between noncircumcision and increased risk of UTI, although the magnitude of risk varies from study to study.111 The AAP estimates that noncircumcision means a four- to ten-fold increase in risk during the first year of life.112 However, the actual incidence of UTI is low, even for uncircumcised boys. According to the [page 482] AAP, at most approximately one percent (1 out of 100) of uncircumcised males contract UTI during their first year.113 Since publication of the Task Force's report, a new study reports that among uncircumcised boys, the actual incidence of UTI is 2.15 percent.114 But even if this new statistic is correct, less than 3 out of every 100 uncircumcised males will contract UTI, and most who do can be easily treated with antibiotics. For some infants, however, the infection will be serious enough to warrant a hospital admission. Some researchers have also worried that early UTI might lead to renal scarring and speculate that this may affect kidney function over the long-term,115 but the clinical significance of renal scars has not yet been demonstrated.116

2. Penile Cancer

Circumcision also has a quantitative effect on the risk of penile cancer, a serious disease with a three-year mortality rate of 20 to 25 percent and whose treatment sometimes includes penile amputation.117 In its early stages the disease resembles skin cancer, with lesions appearing on the outer surface of the penis. Circumcised males, who have one-third to one-half less penile skin than uncircumcised males, have less surface area on which the cancer can develop.118

But while penile cancer is serious, it is also exceedingly rare, even for uncircumcised men. The AAP's Task Force reports that in the United States, one out of 100,000 men contract cancer of the penis.119 However, the Task Force has been criticized for conflating the data on [page 483] circumcised and uncircumcised males, thereby understating the risk.120 In fact, most cases of penile cancer occur in uncircumcised males, who have an incidence rate of 2.2 per 100,000.121 One study has estimated that if all American men were uncircumcised, the annual number of penile cancers would increase from roughly 1,000 to more than 3,000,122 while another study reports that the risk estimate for developing penile cancer in males who are not circumcised neonatally is 3.2 times that of men circumcised at birth.123 In addition, some research suggests that circumcision is particularly effective in preventing invasive penile cancer, the most serious form of the disease.124 However, by anyone's measure, penile cancer is a rare medical occurrence.125

3. HIV

While some studies have challenged the link between noncircumcision and HIV,126 as the Task Force states, "there is a substantial body of evidence that links noncircumcision in men with risk for HIV infection."127 Most of this data comes from Sub-Saharan Africa, and suggests that circumcision has a significant protective effect against [page 484] acquisition of HIV.128 A number of these studies have severe methodological limitations, such as the failure to adjust for factors (like sexual behavior) that strongly correlate with HIV risk and subject pools that are limited to high-risk populations.129 Nonetheless, some researchers consider the link between HIV and circumcision status so strong, and the situation in Africa so desperate, that they have called on public health authorities to initiate mass circumcision as a prophylactic measure.130

There are several hypotheses for why the presence of a foreskin may increase susceptibility to HIV. One possibility is that the foreskin contains a greater number of cells that are especially sensitive to the HIV virus.131 Another is that the foreskin increases the risk of sexually transmitted diseases that involve ulcers and open sores, which in turn facilitate HIV transmission.132 A third possibility is that the thick layer of cells that develop on the glans of the circumcised penis protect against HIV.133 Finally, the warm microclimate under the foreskin may permit viruses to survive longer, thereby increasing exposure.134

The connection between HIV and circumcision has not been heavily studied in the United States. Of the two studies conducted in sexually transmitted disease clinics in the United States, one found that noncircumcision is a risk factor for HIV,135 while the other did not.136 The only random population study conducted in the United States [page 485] found no correlation between circumcision status and the rate of HIV.137 What is undoubtedly true is that behavioral factors are "far more important risk factors in the acquisition of HIV infection than circumcision status."138 The United States itself illustrates this point: it has both the highest rate of circumcision and the highest rate of HIV infection in the Western world.

4. Other Sexually Transmitted Diseases (STDs)

The data are decidedly mixed over whether circumcision prevents other STDs. A discussion of just a few studies illustrates the point. One Australian study, for instance, reports a four- to five-fold increase in the rates of syphilis, gonorrhea, and herpes among uncircumcised men.139 A large study of men who visited a Seattle STD clinic also found higher rates of syphilis and gonorrhea among uncircumcised men. But circumcision status appeared to have no effect on the rates of herpes and chlamydia. Uncircumcised men also had significantly lower incidence of human papilloma virus (HPV), which causes genital warts.140 In contrast, a recent study of men from Brazil, Colombia, Thailand, the Phillippines, and Spain found an association between noncircumcision and increased risk for HPV.141 Finally and confoundingly, a random population study in the United States found that circumcised men were slightly more likely to suffer from both bacterial and viral STDs.142 As the AAP's Task Force summarized, the "[e]vidence regarding the relationship of circumcision to STD in general is complex and conflicting."143

If circumcision makes a difference, it is probably for reasons that are similar to why noncircumcision is a risk factor for HIV: the moist environment under the foreskin and the susceptibility of particular cells in the foreskin. In addition, the foreskin may be prone to small abrasions during intercourse, which would facilitate transmission of STDs. Importantly, as with HIV, behavioral factors are far more [page 486] significant than circumcision status in determining whether a person contracts an STD. Again, the United States has both the highest rate of circumcision and the highest rate of STDs in the Western world.

5. Cervical Cancer

The argument that circumcision affects cervical cancer has floated in and out of the medical literature for years, but most studies attempting to document the connection have been disregarded because of profound methodological flaws, such as women inaccurately reporting the circumcision status of their husbands. Indeed, the AAP's 1999 policy statement does not even mention cervical cancer prevention as a potential medical benefit. However, in April 2002, the New England Journal of Medicine published a report suggesting that the female partners of circumcised males are less likely to get cervical cancer than the partners of uncircumcised males.144 Specifically, researchers pooled data from Spain, Colombia, Brazil, Thailand, and the Philippines, and concluded that women whose male partners had six or more sexual partners and were circumcised had a lower risk of cervical cancer than women whose male partners had six or more sexual partners and were uncircumcised.145 In addition, circumcised males in the study had a lower incidence of the sexually-transmitted disease HPV. Because exposure to certain strains of HPV is a significant risk factor for cervical cancer, researchers hypothesized that circumcision protects against the cancer by reducing the incidence of HPV infection.146

As an editorial that accompanied the study explains, it does have some shortcomings. First, many risk factors for HPV are more common among uncircumcised men than circumcised men, such as poor genital hygiene and a history of multiple sexual partners. Because these variables are difficult to control for, they may help explain the higher incidence of HPV in uncircumcised males.147 In other words, because behavioral factors are so important, it is still not certain whether circumcision makes a quantitative difference in the rate of cervical cancer. In addition, progression from infection with a cancer-causing strain of HPV to invasive cervical cancer may take several decades. Therefore, at least some of the females in the study may have become infected by a different male partner, whose circumcision status is [page 487] unknown. This sort of misclassification would either attenuate or exaggerate the association between noncircumcision and risk of cervical cancer.148 Finally, the study conflicts with some conducted in the United States which found that uncircumcised males have either the same or lesser incidence of HPV than circumcised males.149 Nonetheless, if the results of this most recent study are replicated elsewhere and become well-accepted, the medical utility of circumcision might be greatly enhanced.

However, the issue of distributional fairness has gone largely undiscussed in the reporting of the recent findings about cervical cancer: who would receive the benefits of circumcision and who would bear the risks. The notion of shared risk is embedded in most public health initiatives, particularlythose that involve children. Think, for example, of inoculations, to which circumcision is often compared. Under a universal vaccination policy, each child bears the risk of a complication, just as each child gains immunity to disease. If cervical cancer becomes the "medical argument for circumcision,"150 however, the non-negligible risks and considerable pain are borne by males, while the medical benefit is reaped by females. Circumcision would be a unique prophylactic intervention, one in which the health of one population was put at risk for the benefit of another population.

From a legal prospective, the broad parental discretion to consent on behalf of the child is sharply curtailed when a medical procedure does not benefit the child but may aid third parties. The issue arises most frequently in the context of organ transplants.151 Whether the court uses a substituted judgment or best interest standard,152 the overarching focus [page 488] is on what course of action will give the child the greatest net benefit.153 In answering this question, courts examine the relationship between the donor and donee, the effect of the procedure on the donor, the urgency of the donee's need, and the probability that the procedure will be successful.154

Evaluated by these criteria, circumcision could not be performed or recommended as a prophylactic measure to prevent cervical cancer. First, the beneficiary's need is far from urgent; many years will elapse before the boy is sexually active. No analogy can be drawn to the cancer patient who needs a bone marrow transplant,155 or the kidney patient who is kept alive by dialysis.156 Second, the case law emphasizes the necessity of a close, existing relationship between the child and person who will benefit from the surgery.157 Here there is not yet a relationship between the boy and the woman who would benefit from circumcision. Moreover, even the most recent study suggests that circumcision offers a protective benefit only to the female partners of men who have six or more sexual partners or engage in other behavior that puts them at high risk for HPV; the boy may end up not fitting this profile. For that matter, the boy may be homosexual and never have female partners. Without knowledge about what sort of man the boy will become, preventive circumcision is highly speculative.

These considerations lead to the conclusion that if circumcision is done to prevent cervical cancer, it should be postponed until the boy is old enough to voice his own opinion on the matter. But while some cultures may believe that routine circumcision is more humane if done during adolescence,158 this is certainly not the American view: many [page 489] parents say they circumcise during infancy to avoid the possibility that it will need to be done later.159 Thus, we can easily imagine a court assuming that any relationship between a male and his sexual partner will be close, and that if the procedure is going to be done at all, it has to be done during infancy. But even given these assumptions, circumcision would not pass muster under the usual standards for evaluating medical procedures that are performed for the benefit of third parties.

When altruistic surgeries are performed on minors, the beneficiary is usually desperate and helpless. No alternative treatments are available, and without the aid of the minor, death is a near certainty.160 In contrast, women are capable of protecting themselves from cervical cancer that is connected to HPV. Not only can they practice safe sex, even more critically (and perhaps more realistically), they can receive simple annual Pap tests. Cervical cancer is easily cured if detected early, and for this reason, "[d]octors often say it is a disease that no woman should die of."161 If prevention of cervical cancer becomes the medical rationale for circumcision, voiceless infants are subjected to a procedure for the benefit of adult women, who are fully equipped to take control of their own bodies and sexual well-being.

Some readers may think that it is inappropriate to compare circumcision to surgeries that are performed for the benefit of third parties; all we are talking about are foreskins, not kidneys or bone marrow. But our exasperated "it's only circumcision" merely reflects the social norm, which in turn shapes how we perceive the loss of the foreskin.162 To truly assess the fairness of removing healthy tissue from infants for the benefit of adult women, we need a thought experiment. Temporarily dispense with scientific disbelief and pretend that a new study concludes that amputating a male infant's little toe would decrease cervical cancer rates in particular populations. Many physicians and the popular press start touting toe amputation as effective preventive medicine. Would you choose to cut off your newborn son's little toe? Or, if it is difficult to imagine yourself with an infant son, would you think this recommendation represented appropriate public health policy?

My guess is that the answer to both questions is no, even though the little toe is not more useful than the foreskin, and even if you think that [page 490] the absence of a little toe might make the boy a more desirable sexual partner. You may be unwilling to subject infants to the pain of amputation; you may think that "normal" means having a little toe; you may believe it bizarre to amputate something that is likely to cause the boy little trouble beyond the occasional stub; you may be convinced that there are better ways to combat cervical cancer; you may just generally feel possessive about your son's body parts. That we do not have similar reactions when it comes to cutting off the foreskin for the benefit of adult women is a testament to how deeply embedded the norm of circumcision really is.

Of course, the analogy between the foreskin and the little toe is not strictly accurate, because toe amputation (like kidney transplants or bone marrow extractions) holds no possibility of potential health benefits for the child. Circumcision, in contrast, has potential health benefits.163 But it would be inappropriate to allow these potential benefits to cloud the issue of distributional fairness, because the medical establishment has already told us that the potential benefits are not enough to merit routine neonatal circumcision.

Some would argue that the analogy between the foreskin and little toe is inapt for another reason: that, in fact, the foreskin has a sexual function that makes it far more useful than the little toe. In adult males, the foreskin comprises one third to one half of the penile skin and acts as platform for nerve and nerve endings, making it as sensitive or more sensitive than other parts of the penis. Except when the penis is erect, the foreskin protects the glans by hanging over it. Without the protection of the foreskin, the glans of a circumcised male becomes keratinized and develops layers of protective cells that act like a callous.164

But while the physical characteristics of the foreskin are well-understood, whether the loss of the foreskin affects sexual performance or sexual satisfaction is fiercely debated. Unfortunately, but perhaps predictably, the evidence is mixed and mostly anecdotal.165 The two [page 491] studies that surveyed men who were circumcised later in life report conflicting results. In one study of 15 men, circumcision resulted in no statistically significant changes in male sexual function.166 In another study of forty-three men, participants reported a statistically significant reduction in erectile function as well as decreased penile sensitivity.167 In this same study, however, men were more satisfied with their penis after circumcision, based in large part on its new appearance.168 This suggests a point made in a large study of American sexual practices: the perception of sexual experience depends not only on the physical characteristics of the individuals involved, but also on the larger cultural and social context.169 Still, perhaps our thought experiment should be modified to include the possibility that amputation of the little toe negatively affects sexual function. (Remember that you are suspending scientific disbelief.) With this modification the reader is now probably even more reluctant to cut off a newborn's toe because the sacrifice required of the infant simply seems too great, especially when adult women have a means of safeguarding their own interests.

In sum, more research needs to be done before prevention of cervical cancer can be added to the list of circumcision's potential health benefits. But because of the issue of distributional fairness, as well as the dubiousness of the parent's ability to consent to circumcision when its purpose is to benefit adult women, we should view with caution any argument that promotes the prevention of cervical cancer as a justification for routine circumcision.

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D. Social Norms As A Discrete Factor in the Modern-Day
Decision to Circumcise

If routine circumcision is not medically recommended, is painful, and carries the risk of complications, why do more than 65 percent of American parents choose to do it? While there is no simple answer to this question, the existing social science research shows that the procedure is highly path dependent: in large part, parents circumcise because their parents did it and because their peers are doing it. Indeed, surveys of parental decisionmaking reveal that the single most prominent factor is usually what researchers term "social concerns," that is, the desire for the boy to look like his peers or his father.170 With regard to the former, parents worry that a boy whose penis is different from others will be ridiculed by his schoolmates, or that his sex life will be negatively affected in later years.171 In other words, parents perceive that the presence or absence of a foreskin is a basis for what McAdams describes as esteem-based sanctions. And there is room here for Posner's signaling theory as well. With no medical reason for the procedure, the circumcision decision is wholly arbitrary and an opportunity to signal a "good type."

The empirical data suggests that parents are correct in perceiving that circumcision status has esteem-based and reputational consequences. While evidence of locker room teasing is only anecdotal,172 in cultures where circumcision is the norm, researchers have found distinct differences in the sexual practices of circumcised and uncircumcised men. The largest study of American sexual practices reported that circumcised men engaged in each activity examined-various forms of oral [page 493] and anal sex and masturbation-more frequently than uncircumcised men.173 When respondents were asked to rate their preference for a variety of sexual practices, circumcised men expressed a greater preference for almost every form of sexual behavior. The difference was most pronounced for oral sex, with "circumcised men significantly more likely to prefer [receiving] fellatio than uncircumcised men."174

What is particularly fascinating, and most significant for social norm theory, is that the differences in practices and preferences were apparent in white respondents, but not in Blacks and Hispanics. Among respondents, whites were considerably more likely to be circumcised (81 percent, as compared to 65 percent of blacks and 54 percent of Hispanics).175 In reflecting on their findings, the researchers commented:

While we do not wish to push speculation too far, differences in the association between circumcision status and sexual practice across ethnic groups suggest that cultural, rather than physiological, forces may be responsible. In particular, [our] results may reflect attitudes regarding the cultural acceptability of the uncircumcised penis . . . . Among whites, . . . uncircumcised men are relatively uncommon. A consequence of this may be that a certain stigma is attached to the uncircumcised penis in the white population. If the uncircumcised penis assumes somewhat negative cultural associations among whites, this may lead uncircumcised white men to engage in a somewhat less-elaborated set of sexual practices. [In particular, such acts that involve direct stimulation of the uncircumcised penis should hold the least appeal.]176

Other studies also suggest that among groups where circumcision is the norm, there is a stigma associated with the foreskin. When American college women were shown pictures of the circumcised and uncircumcised penis, 87 percent said that they preferred circumcision.177 And in a study of 43 men who were circumcised later in life, "there was a statistically significant improvement in how men thought the penis looked to them and to their partners."178 Men also reported that they were more likely to receive oral sex and that their partners were more likely to initiate sexual activity, although these changes were not statistically significant.179

*494 Of course, most parents will be unaware of this research. But there is plenty of cultural evidence that, at least among whites, noncircumcision isconsidered deviant. For instance, in a Seinfeld episode, Jerry asks Elaine whether she has ever seen an uncircumcised penis. Her response is an emphatic "you wouldn't recognize it if you saw it!" In Sex and the City, Charlotte is surprised to discover that a man is uncircumcised; by the end of the episode, he has undergone elective circumcision to escape negative reactions from women. Moreover, in at least some social groups, a parent's peers probably also convey that a stigma is associated with noncircumcision.180

The other social concern commonly expressed by parents-that a boy look like his father-is not as easily explained under social norm theory. Certainly the father (who would presumably participate in the circumcision decision) would not be the source of the esteem-based sanction. Moreover, only very immediate family would be in a position to know whether the son's circumcision status matched the father's. Thus an esteem-based model does not explain the importance parents place on this factor. Neither does a signaling model, since by their very nature signals must be observable.181

Robert Cooter's internalization model may have more explanatory value, albeit in a very nuanced way. So far this Article has contemplated that the deeply internalized norm is "be a good parent." But another deeply internalized norm may be at work as well, one that involves conceptions of masculinity. The comments of some circumcised fathers illustrate the point: "Even if it hurts, he has to go through it . . . . One day he'll thank me" and "[i]t's part of being a man in a man's world . . . . My father was circumcised, I am, and my son will be."182 Indeed, circumcision may be an example of what Timothy Beneke has coined "compulsive masculinity," or the "need to relate to, and at times create, stress or distress as a means of . . . proving manhood."183 American culture is replete with examples of the belief that enduring physical pain or psychological distress is what defines a man. For [page 495] instance, sports, which often involve physical pain and intense pressure, have long been a vehicle for proving masculinity,184 while television commercials for the armed forces imply that they will turn boys into men. Indeed, most cultures equate manhood with the successful endurance of distress, and many have rituals that formalize this means of proving masculinity. Beneke cites the adolescent circumcision rites in some East African tribes as one example;185 perhaps the South Korean practice discussed in this Article's Introduction qualifies as well. While Americans may not consciously perceive of neonatal circumcision as a rite of passage, on some level parents may believe that it is appropriate to expose male infants to distress, because these babies are beginning their journey towards manhood. If this is so, then the compulsive masculinity norm would intersect nicely with the good parenting norm, because good parents prepare their sons for manhood.

Cooter's model, however, is about more than mere internalization. His thesis is that failure to conform with the norm generates a self-imposed sanction in the form of guilt or shame.186 Why would a son looking different than his father generate an internal sanction? One possibility is that parents are again stepping into the child's shoes and anticipating that he will feel shame in looking different from his father, whom the parents probably assume will be a role model. But the genitalia of a child and an adult are very different regardless of circumcision status, and by the time the child really could resemble his father, he will probably be old enough to understand why his parents made a different decision than his grandparents. Thus a more plausible possibility is that parents believe that "teaching your son to be a man" is something that good parents do, and that they experience guilt when they fail to expose him to what they consider an important aspect of masculinity. Moreover, making a different choice for one's son requires a father to admit that what was done to him was, in hindsight, not the best choice.187 Given how closely the penis is connected to conceptions of manhood, this might be quite a significant concession on the part of the father, and one many may not allow themselves to make.

[page 496]

E. Social Norms as Multipliers in the Modern Day Decision To Circumcise

Assume that the decision whether to circumcise usually involves the following considerations: pain (p), the risk of complications (rc), the possibility that loss of the foreskin may diminish sexual pleasure (ds), medical benefits (mb), esteem among peers (ep), esteem among sexual partners (es), and the advantages of the son resembling the father (sf). If norm-based considerations are merely discrete factors in the behavioral calculus, in 2003 a majority of parents must reason that:

(p + rc + ds) < (mb + ep + es + sf)188

This explanation of parental decisionmaking, however, is ultimately unsatisfactory.

Most newborns—male or female—are treated with extraordinary tenderness. They are protected from light, touched only gently, and swaddled in soft clothing. Almost all the benefits of circumcision are norm-based. Such considerations would have to achieve an exalted status to overcome the parental instinct to protect an infant from sources of stress and discomfort.

A more compelling account of parental decisionmaking is that the prevalence of the procircumcision norm causes parents to discount the considerations that weigh against circumcision, and exaggerate the evidence supporting the procedure. For instance, Caucasian parents in the Midwest are likely to know only circumcised males, many of whom are healthy, and probably all of whom consider themselves no worse for the trauma. These parents will also see that their peers continue to circumcise their sons, which provides another basis for discounting the disadvantages of the procedure and exaggerating its potential health benefits.

As discussed in Part I.B, norms affect how the decisionmaker perceives the relevant factors in the cost-benefit analysis. There are countless ways this phenomena could manifest itself with regard to circumcision, but we might imagine that a typical parent would be most troubled about causing pain, and most attracted to the idea that circumcision has medical benefits. In this instance, we would expect the parental analysis to look like this (where boldface indicates an exaggerating effect, and regular typeface indicates a discounting effect):

[page 497]

((norm * p) + rc + ds) < ((norm * mb) + ep + es + sf)

We might also expect something more complicated, where the discounting and bolstering effects of a norm vary, depending on the strength or weakness of a relevant consideration, and whether it counsels for or against following the norm:

((NORM * p) + (norm * rc) + ds) < ((NORM * mb) + (norm * ep) + es + sf)

The permutations are many, but the central point is that norms will impose their own set of costs and benefits, and color the decisionmaker's perception of the other relevant considerations.

This hypothesis is supported by the work of researchers who have studied informed consent in the context of routine circumcision. Virtually all of these studies reveal that providing information about the advantages and disadvantages of the procedure does not lead to lower circumcision rates.189 Of course, one possibility is that the discrete, norm-based considerations are so powerful that they make all other factors irrelevant. Another possibility is that some parents do not even attempt to engage in a careful analysis before deciding to circumcise. For these parents, the norm favoring circumcision acts as an heuristic, and the parents simply pay no attention to information about the procedure.190 But other parents who described themselves as always assuming that they would circumcise did actively express an interest in learning more about the procedure before it was performed on their son. And the evidence suggests that they were unable or unwilling to fully process information that ran counter to the prevalent norm. For instance, in a study where physicians provided mothers with verbal counseling, researchers were able to assess parental reactions to information that suggested the disadvantages of circumcision outweighed its benefits. As the study's authors described:

Several mothers were visibly uncomfortable having to listen to the 5-10 minute presentation of all the information. On several occasions they seemed to express guilt about their decision and resentment toward the physician for creating doubt about their previously [page 498] established beliefs regarding circumcision. One mother even informed the pediatrician that the process of being told about all the medical complications and risks of the procedure was so adversive that she had decided not to bring her child to his pediatric clinic for subsequent well-child visits.191

Having to be part of a conversation about circumcision made it more difficult for parents to bolster the decision to circumcise; most were anxious to discount, or perhaps entirely ignore, the costs that would lead them to opt against circumcision.

If we accept for the sake of argument that most parents care deeply about doing what is best for their child, a version of parental decisionmaking that includes cognitive restructuring in the direction of a norm rings much more true than one that has parents removing part of the penis simply for the sake of conformity, or to comport with notions of masculinity. Indeed, when social norms are seen as multipliers, it is easier to explain how circumcision reconciles with the deeply internalized norm of good parenting, as usual conceptions of acting in a child's best interest do not include having him undergo a surgery that has associated risks and is not medically warranted.

Moreover, given gender stereotypes, parents may be able to conveniently ignore the pain of circumcision. Here norms of masculinity are again relevant, and these norms cause parents to discount the pain that is experienced by the male infant. Numerous social scientists have demonstrated that parents perceive their infants through gender-tinted glasses.192 Adults not only describe babies in ways that invoke traditional gender stereotypes, they also are likely to choose different toys depending on the child's perceived sex, to talk more to infants they believe are girls, and to roughhouse more with infants they believe are boys. In general, parental behavior towards infants "reflects their stereotyped beliefs about girls and boys, namely, that girls are delicate . . . while boys are strong and sturdy."193 Of particular relevance is the data on how mothers interact with infant sons and daughters. Mothers hold their daughters more closely than sons, touch them more frequently, and cuddle them more often. Significantly, "[m]others are highly sensitive to a daughter's expressions of pain or discomfort, often mirroring the baby's expression themselves for a moment, while they [page 499] tend to ignore such expressions in a son."194 Perhaps parents are able to minimize the pain of circumcision because they already have the gender-based perception that their son will, to use the colloquial expression, "take it like a man." Indeed, in early personality tests intended to distinguish between males and females, subjects were awarded masculinity points for agreeing-and femininity points for denying-that they could "stand as much pain as others can."195 While explicit references to pain have disappeared from contemporary measures of masculinity and femininity, personality measures continue to consider toughness a marker of masculinity.196 It may be that when parents decide whether to circumcise, they are influenced by a preconceived notion of masculinity, and are therefore able to discount the pain and trauma that circumcision causes the infant. If this is so, then two norms are coloring the perceptions of the parental decisionmaker: the norm favoring circumcision and a norm about masculinity. These norms should have the strongest discounting effect on the most persuasive reason not to circumcise and the greatest exaggerating effect on the least persuasive reason to circumcise.


Assume that a legislator or other policy maker wanted to change the procircumcision norm. An individual who announced this goal might be motivated by a variety of considerations, although fairness to the infant and Kaldor-Hicks inefficiency197 would probably top the list. On the latter point, a number of cost-utility and cost-effectiveness studies have concluded that circumcision is inefficient, although most are of limited value because they focus on only one or two potential benefits of circumcision and do not adequately consider the potential disadvantages.198 The most comprehensive cost utility analysis, which used [page 500] decision tree modeling and Markov simulation to evaluate the effect of circumcision across an eighty-five year life expectancy,199 concluded that the "advantages and disadvantages cancel each other. Cost and health factors should be removed from the decision, and personal factors (e.g., cultural or religious) should be considered of primary importance when the doctor and the parents discuss the issue."200 From a societal standpoint, however, the best preventive medicine encompasses measures that, to put it colloquially, provide some bang for our buck. This is the primary reason why Britain and most Canadian provinces have dropped routine circumcision from their public insurance plans.201 Given limited healthcare funding, these governments concluded that the resources spent on circumcision could be put to better use. While the American system of privatized healthcare partially obviates these sorts of systemic medical allocations, fully one-third of all American births are covered by Medicaid.202 Moreover, even when the birth is covered by private insurance, the overarching point remains the same: healthcare dollars could yield greater benefit if they were spent elsewhere.

But regardless of how persuasive the argument for change, our would-be norm manager faces what Lawrence Lessig describes as a collective action problem.203 At present, circumcision is consistent with notions of good parenting. Stubbornly and circularly, this association is likely to persist as long as most parents continue to circumcise, because conceptions [page 501] of good parenting are informed and influenced by what significant numbers of parents choose to do.204 Moreover, the parent who might be inclined towards noncircumcision (and could therefore begin to help challenge the social meaning of circumcision) has little incentive to not circumcise, because of the esteem-based or reputational consequences within that parent's group, and because the norm colors their assessment of other factors.205 Thus, for the norm to change, parents have to act collectively. That is, enough of them have to simultaneously choose noncircumcision to make the stigma associated with the foreskin disappear, and to transform noncircumcision into the choice associated with good parenting. Once the number of noncircumcisions reaches this critical mass, even individuals who might prefer routine circumcision will be unlikely to circumcise because they will be the ones fearing negative reputational consequences.206

Dan Kahan has suggested that in the face of such collective action problems, incremental legal measures are ultimately more effective than broad, sweeping reforms.207 Kahan illustrates his argument by pointing to the gradual transformation of public attitudes towards smoking. As recently as 1960, smoking was considered glamorous and sophisticated. Then, beginning with the release of the Surgeon General's Report in 1964, the law slowly began to chip away the pro-smoking norm. Over a period of decades, Congress required warning labels, banned television advertisements, and federal, state, and local governments gradually restricted public smoking. By the 1990s, legal decisionmakers were holding the tobacco industry accountable for its effect on public health, and smoking was viewed as a disgusting habit that bystanders need not tolerate.208 In contrast, consider Prohibition, which was designed to immediately end the consumption of alcohol. Prohibition was widely ignored and ultimately repealed, and drinking continues to be acceptable today. If a law condemns behavior more than the average individual does, it is likely to engender backlash and resistance. If, however, the legal intervention "gently nudges" towards the desired [page 502] attitude, "it might well initiate a process that culminates in the near eradication of the contested norm and the associated types of behavior."209

When norms are understood as multipliers, it becomes evident that the most effective gentle nudges will counteract the distorting effect that the norm has on the other factors in the behavioral calculus. In other words, in order to change behavior, it is not necessary to condemn or even appear to directly attack the behavior that results from the predominant norm. Instead, it is sufficient to make it harder for a decisionmaker to discount the costs of a particular decision, or to exaggerate the benefits.

The remainder of this Article applies the lessons of social norms as multipliers, and examines three incremental legal interventions whose collective weight may help change the social meaning of noncircumcision, so that the esteem-based and reputational consequences become positive, or at least neutral, and so that the norm ceases to diminishor exaggerate the other considerations in the behavioral calculus. Specifically, the Article discusses the possibility of legislation that (1) requires parents to pay out-of-pocket for routine circumcisions; (2) imposes a civil fine on doctors who circumcise without the use of effective pain control; and (3) strengthens the informed consent process. The Article reviews the empirical data supporting the effectiveness of each of these reforms and concludes that measures addressing payment and pain have some promise. The Article is, however, more skeptical about the effectiveness of a measure aimed at the informed consent process, even though this is a common recommendation among medical professionals and increasing information is a general strategy favored by social norm theorists.

A. Legal Scholarship on Circumcision

Most legal writers examining routine neonatal circumcision have advocated broad reforms of the legal landscape which, if adopted, would almost instantly eradicate the procedure. For example, some authors have analyzed the legal and ethical requirements for informed consent when medical treatment is given to a child and concluded that parents lack the legal authority to consent to routine circumcisions.210 Others [page 503] have suggested that circumcision violates human rights,211 or is properly construed as child abuse.212 Still others have suggested that outlawing female circumcision but permitting male circumcision violates the Equal Protection Clause.213

While these authors are to be commended for taking a fresh look at such a deeply-embedded norm, their legal prescriptions are radically out of step with popular sentiment. There is a tremendous societal investment in routine circumcision, and many of us have a personal stake as well. Indeed, probably most readers of this Article, not to mention most members of the legal community and government, are either circumcised, have a partner who is circumcised, or-perhaps most critically-have chosen to circumcise their own sons. We are not ready to suddenly accept the analogy between circumcision and child abuse, or male circumcision and female circumcision. In sum, most of the existing legal arguments about routine circumcision are simply too ambitious (and therefore too unrealistic) to offer the prospect of real change.

The litigated cases on routine male circumcision support this conclusion. In London v. Glasser,214 which was filed against the doctor by the infant's guardian ad litem, a central argument was that the infant's parents lacked the legal authority to consent to circumcision.215 In an unpublished opinion, the California Court of Appeals held that parents have the authority to consent to any medical procedure, regardless of its purpose.216 The California Supreme Court subsequently denied certiorari without comment. In Fishbeck v. State of North Dakota,217 a mother [page 504] whose infant had been circumcised without her consent (but with the father's) alleged that North Dakota violated the Equal Protection Clause when it, as the court wryly described, made "so-called 'female circumcision,' perhaps better described as female genital mutilation, a crime."218 The Eighth Circuit dismissed the case for lack of standing, on the questionable reasoning that it was "completely speculative" whether the mother may someday have another son whom the father would also want circumcised.219 Indeed, courts have been reluctant to provide a remedy for routine circumcision even when neither parent has consented to the procedure.220 As one commentator has described, "The thrust of these . . . cases is that circumcision is a harmless and, in fact, a generally helpful operation that should not be placed under excessive legal regulation."221

Cases such as these illustrate an additional advantage of incremental reform that is aimed at counteracting the distorting effect of social norm multipliers. Small, carefully targeted measures are not only less likely to engender resistance and backlash, they are also more likely to become law. The more sweeping the reform, the harder it becomes to convince a legislature or court that it should swim against the prevailing norm. Thus, narrow measures are not only more likely to be effective in changing a contested norm, they are also more likely to be adopted in the first instance.

B. Requiring Out-of-Pocket Payment

The decision to remove routine circumcision from public health insurance is frequently cited as one of the primary reasons why Britain and Canada have experienced precipitous declines in circumcision rates. [page 505] At the end of World War II, an estimated 20 percent of British boys were routinely circumcised, with rates as high as 67 percent among upperclass boys in particular geographic areas.222 Today statistics are no longer kept, but the incidence is widely reported as negligible. In Canada, roughly 48 percent of boys were routinely circumcised in the 1970s, with rates in some provinces as high as 60 percent.223 Today the circumcision rate in Canada is less than 17 percent,224 with differences still existing between the provinces. The declines in the provinces with the highest rates during the 1970s are particularly striking: Ontario has gone from approximately 59.8 percent to 19.6 percent, and British Columbia has gone from 60 percent to 6 percent. Individual provinces in Canada began delisting circumcision in the 1980s, while Britain discontinued coverage under its National Health Service in 1949.225 In contrast, in the United States, routine neonatal circumcision continues to be covered by most Medicaid programs and private insurance plans.226

Do the empirical data support the notion that delisting can have a real effect on circumcision rates? Yes, although a close look at the Canadian experience suggests that the actual effects of discontinuing coverage are more ambiguous than often described. First, Manitoba and the Northwest Territories still reimburse for the procedure. These two areas not only have dramatically different circumcision rates,227 but neither is the area in which circumcision is the most prevalent. Saskatchewan, which delisted in 1996, has a rate of almost 28 percent-slightly higher than the rate in Manitoba and much higher than the rate in the Northwest Territories. This suggests that, as in the United States, the decision to circumcise is heavily influenced by tradition and a mix of cultural factors.228 Second, in some provinces delisting occurred after circumcision had already fallen out of public [page 506] favor, so that any subsequent reduction in rates cannot fairly be described as delisting helping to turn the tide of public opinion.229 In these provinces, the most influential factor may have been periodic statements by the Canadian Paedatric Society that circumcision is not medically indicated.230 In some other provinces, however, the largest year-to-year decrease did occur within a year or two of delisting. But circumcision rates in these provinces had already been slowly declining, at a rate of approximately one or two percent each year. To further complicate the matter, the delisting in these provinces occurred around 1996, when the Canadian Paediatric Society again made a statement against routine circumcision.231 It is therefore unclear whether the Society's statement or the discontinuance of insurance was primarily responsible for the decrease.

In at least one province, however, delisting is the only obvious explanation for the largest decreases in circumcisions from one fiscal year to the next. In New Brunswick, in the eighteen months following discontinuance, the rate dropped from 24.6 percent to 18 percent, roughly where it remains today. While the 6.6 percentage point decrease seems modest, it appeared at a time when (contrary to the rest of Canada) the circumcision rate was slowly increasing in the province.232

In sum, no accurate categorical assertions can be made about the effect of discontinuing public insurance in Canada. If one had to generalize, all that can be said is that in some provinces delisting, in combination with statements from the Canadian Paedatric Society, as well as cultural and social considerations that cannot be gleaned from [page 507] dry statistics, helped accelerate a decline in the number of routine circumcisions.

Although the Canadian experience suggests that discontinuing insurance coverage of routine neonatal circumcision will not be a panacea, delisting may be an incremental measure worth pursuing. First, it is an affirmative statement that routine circumcision is not medically indicated. Second, if parents have to pay for circumcisions out-of-pocket, it may be more difficult for them to exaggerate the procedure's medical benefits.233 Third, parents might anticipate that given the lack of insurance coverage, fewer people will be likely to circumcise their sons, and that therefore an uncircumcised boy is less likely to be viewed as "different." Finally, and importantly for those who worry about the unanticipated consequences of tinkering with norms, nothing suggests that discontinuing coverage might create a backlash that ultimately reinforces the norm of routine circumcision. In other words, the Canadian experience does not indicate that delisting might do for circumcision what Prohibition did for the consumption of alcohol, i.e., make the norm even stronger than it was prior to legal intervention.

It is far simpler, however, to end coverage in Canada and Britain, where the vast majority of the population has public insurance. In the United States, most infants are covered by private insurance, not by Medicaid. If Medicaid delisted routine neonatal circumcision while private insurance companies continued to cover it, there would likely be no decrease—and perhaps even an increase—in the number of circumcisions. Data from Oregon, where Medicaid does not cover routine neonatal circumcision, shows that parents are likely to pay for the procedure out-of-pocket after being denied coverage.234 Of course, Oregon's poorer parents are behaving as social norm theory would [page 508] predict. Depending on the degree of stigma that parents anticipate their sons will experience from noncircumcision, or the extent to which the norm distorts other factors in the calculus, parents may find great utility in paying for the procedure themselves. Moreover, if infants who fall under Medicaid are the only boys without coverage, noncircumcision may cause a particular loss of esteem because the presence of a foreskin will be associated with poverty. Indeed, circumcision may become even more attractive because it provides an opportunity to signal that the boy is not from the "sort" of family that needs public assistance. Thus, for delisting to be an effective nudge, private health insurance will have to stop covering circumcisions.

The law regularly defines risks that, as a matter of public policy, either must be, or cannot be, covered by insurers. In the healthcare context, we are accustomed to laws that mandate coverage, such as statutes that provide 48-hour hospital stays following childbirth. But in other areas, the law often dictates that insurers cannot cover certain risks. For example, some states prohibit insurers from covering punitive damages235 and intentional torts.236 A legislature could similarly decree that parents who choose to circumcise must bear the costs themselves.

The difficulty revolves around which legislature would pass such a law, and how many insurance plans the law would reach. The labyrinth of the McCarran- Ferguson Act,237 ERISA, and state laws regulating the business of insurance practically guarantees that no single law will apply to all insurers. Obviously, a constitutionally valid federal law could preempt conflicting state laws and have universal application. But the McCarron-Ferguson Act, which provides that federal laws that indirectly affect insurance do not preempt state laws that regulate insurance, reflects the legislative determination that states are the most appropriate regulators of insurance.238 So while the Act does not bar Congress from passing laws that relate to the business of insurance, it is unlikely that Congress actually would do so.239 Furthermore, regardless of McCarran-Ferguson, it is far more likely that laws prohibiting [page 509] coverage of routine circumcision would be passed on the state level. To the extent that federal laws are supposed to reflect a national consensus, none exists about circumcision. As previously discussed, circumcision rates vary dramatically from region to region, with the Midwest as high as 81 percent and parts of the West as low as 37 percent.240 Moreover, while there is an anticircumcision lobby, it is not well-funded or high-profile enough to exert real influence at the national level.

This means that laws prohibiting coverage of routine circumcision would have to be passed on a state-by-state basis. But a state could not reach all the insurers within its borders. A substantial portion of the population receives medical insurance through employee benefit plans that are covered by ERISA. While ERISA does not dictate the substance of medical plans like it dictates the substance of pension plans, many experts agree that ERISA exempts self-funded plans from state insurance regulation.241 It has been estimated that within the average state, 50 percent of employees receive health insurance from self-funded plans that are covered by ERISA.242 Thus, a substantial number of people would be unaffected by a state law that makes circumcision uninsurable.

It is unclear what effect such a law would have on insurers who cannot be regulated by the state. In a survey of insurers that covered circumcision, insurers explained that they covered circumcision because their customers expected it.243 Some may see a chance to drop circumcision coverage without suffering any penalty in the marketplace, while others might perceive an opportunity to gain competitive advantage by covering services that some other plans cannot.

Despite the piecemeal nature of any state law, however, measures aimed at eliminating coverage of routine circumcisions are still worth pursuing. The very existence of the law may help influence attitudes about the procedure's efficacy and appropriateness, even among those whose insurers continue to offer coverage. The Northwest Territories, which still reimburses for routine circumcision, experienced significant declines in rates during the 1990s. An official from the Ministry of Health commented, "I can't account for a reason, other than general [page 510] public sentiment turning increasingly negative over that decade towards the procedure."244 One possibility is that the delisting in other areas of Canada helped to slowly erode any favorable attitudes toward circumcision that existed in the Northwest Territories.

Indeed, other empirical data suggests that even extraordinarily narrow measures may cause dynamic shifts in a contested norm. For example, China practiced footbinding for centuries, even after the harmful effects of the tradition were well-known. Then local missionaries established an antifootbinding society in 1874, where families pledged that they would not bind their daughters' feet, or allow their sons to marry a woman whose feet had been bound. This local convention "created sufficient density to make it self-sustaining," and footbinding essentially disappeared throughout China by 1919.245 Even a law with limited application may have a similar effect in the United States.

Finally, a state law prohibiting circumcision coverage may stand a real chance of passage in some states. In light of the crushing budget deficits faced by many states, at least some will be interested in trimming their Medicaid budgets.246 For example, after concluding that it could save almost $700,000 in the biannual budget, North Carolina recently voted to remove circumcision from the list of services covered under Medicaid.247 In the wake of complaints that "poor Tarheels would become the butt of locker jokes," the legislature reversed itself and restored coverage.248 Moreover, in a survey of Medicaid programs, many state administrators explained that their programs covered circumcisions to help ensure that parents of poorer children had the same choices as other parents.249 One way to address the concerns expressed by the state administrators and by the State of North Carolina is to pass a law applying to private insurers at the same time the procedure is being delisted from Medicaid. This law, in turn, might begin to erode the norm favoring circumcision.

[page 511]

C. Requiring Pain Control

1. The Rationale for the Intervention

Based on the "considerable evidence that newborns who are circumcised without analgesia experience pain and physiologic stress,"250 the AAP recommends the use of analgesia.251 However, an astonishingly large percentage of infants are still circumcised without effective pain control. The most comprehensive survey of circumcision practices shows that in 1998, the rate of anesthetic use varied by region: in the Northeast, 28 percent of doctors reported that they used some form of analgesia; in the South, 37 percent; in the Midwest, 45 percent; and in the West, 67 percent.252 Distressingly, this survey probably overestimated the amount of pain relief actually provided. While most doctors reported using a dorsal penile nerve block (local injections that are effective in blunting, although not entirely eliminating, circumcision pain), others reported using EMLA topical cream, which does not relieve pain during the most invasive parts of the procedure.253 Still others reported using acetaminophen and oral sucrose, which are ineffective in controlling operative pain and "cannot be recommended as the sole method of analgesia."254 Because the survey was conducted one year before the AAP's recommendation, more physicians may now use anesthesia. However, the literature published since the AAP recommendation does not suggest that there has been a significant increase in the use of effective anesthesia.255

When asked to explain why they do not use anesthesia, physicians indicate a disturbing failure to stay abreast of the medical data and latest [page 512] surgical techniques.256 In the 1998 survey, 54 percent of doctors who did not use anesthesia expressed concern about adverse side effects.257 In fact, one local injection technique has no reported complications, and the other technique has bruising as its most frequent complication.258 Equally astonishing, 44 percent of doctors stated that the procedure does not warrant anesthesia, a belief contradicted by the reams of evidence documenting that infants experience intense pain during circumcision.259 Eighteen percent of doctors said they were unfamiliar with the technique necessary to administer local injections. Indeed, the lack of familiarity with technique is commonly cited in other surveys as well. In one 1990 study, residents described themselves as very willing to learn anesthesia techniques for circumcision, but only 32 percent had heard relevant lectures in medical school or during residency, and only 35 percent were familiar with studies describing the effectiveness of local anesthesia.260

While these statistics hardly inspire confidence in the medical profession, perhaps they are what we should have predicted. The literature is replete with examples of widespread under-treatment of pain, particularly in areas of palliative and long-term chronic care.261 The problem may be particularly acute with infant care, however, as evidenced by the fact that circumcision is the only painful surgery routinely done without anesthetic. Indeed, doctors have few external incentives to stay abreast of the literature on pain and circumcision. Infants cannot advocate for themselves, nor can they choose physicians who will use effective pain control. The parents who are supposed to protect the infant's interest have an incentive to engage in cognitive [page 513] dissonance because the knowledge that circumcision is painful may cause them to question deeply-internalized beliefs about circumcision and good parenting. Doctors are also unlikely to face external sanctions from their peers because anesthesia is not yet the standard of care.262

One way to break through the inertia is to impose a civil fine on doctors who circumcise without using dorsal penile nerve block or subcutaneous ring block, the two forms of local anesthesia that have proven most effective in blocking pain during all parts of the procedure.263 Such a measure would provide an economic incentive to learn and practice appropriate anesthetic techniques, particularly if the fine were high enough that an unanesthetized circumcision would cost the physician more than she would be paid for performing it. In the wake of such legislation, some doctors might conclude that circumcising is not worth the potential trouble and cease performing the procedure altogether.264 But doctors who regularly perform circumcisions and depend on them for income would likely learn and apply the necessary techniques.

A law that would provide an incentive to use effective pain control has much merit in its own right, but would it be an effective means of influencing attitudes towards routine circumcision? Unlike in the previous section, there is no empirical evidence to guide us. Sweden is the only country that mandates the use of anesthesia. The law was just passed in 2001 and is likely to have little effect on public opinion about routine circumcision, which is overwhelmingly negative.265 Social norm theory, however, predicts that there is reason to think that a measure requiring anesthesia would dampen the procircumcision norm in the United States.

Law has an expressive function; that is, it both expresses social values and encourages norms to move in particular directions.266 For example, Cass Sunstein has argued that antilittering and pooper-scooper laws [page 514] have expressive effect. These laws express the sentiment that not cleaning up after yourself or your dog demonstrates disrespect for others.267 Even in situations where there is no possibility of formal sanction, people are likely to comply with the law because they have internalized its message, or because they fear that they will be frowned on (or actively berated) by fellow citizens. Hence, the law expresses a normative judgment and helps align behavior with that judgement.

What is the expressive function of a law that requires the use of anesthetic during circumcision? Quite simply, it says that circumcision hurts and that it is no longer appropriate to turn a blind eye and deaf ear toward the infant's pain. To further emphasize this point, rather than allow any exceptions, the law could provide that if anesthesia were contra-indicated in a particular infant, routine circumcision ( i.e., one that was not medically necessary) could not be performed. Certainly such a law would have an effect on doctors beyond the obvious economic one associated with the civil fine. It would help inculcate the attitude that good doctors use anesthesia, and it would raise the specter of professional opprobrium for failing to practice medicine as the law requires. But it is also likely to have an effect on the choices of parents by making it harder to rationalize circumcision as a "little snip" and to discount what is experienced by the infant.

A couple of commentators have speculated that anesthesia makes the procircumcision choice easier for parents because the parents perceive anesthesia as eliminating the amount of pain experienced by the infant.268 (To the extent that such a perception exists, it is wrong-headed; remember that in adults and older children, the pain from the anesthetic injections alone is thought to be too much for a fully-aware patient to tolerate.)269 But some anecdotal evidence suggests that parents react more negatively to anesthetic than to the circumcision itself,270 perhaps because they are not as culturally desensitized to the prospect of penile injections. In any event, a law requiring anesthesia may force parents to grapple with the reality that circumcision is an actual surgery with costs that should not be discounted.

2. Implications for Ritual Circumcisions

One obvious question is whether this law should extend to ritual circumcisions. A law that required anesthesia to be used in all circumcisions [page 515] is likely to pass muster under the federal constitution, although some state constitutions may offer religious ritual more protection from governmental regulation.271 In Employment Division, Department of Human Resources of Oregon v. Smith,272 the Supreme Court held that the Free Exercise Clause permits a law that burdens religion as long as the law is neutral, generally applicable, and is not passed to ban behavior solely because of its religious motivation.273 Since Smith, the courts have upheld a variety of laws which are alleged to burden the exercise of religion: laws prohibiting the use of drugs,274 laws restricting or prohibiting vending,275 and laws requiring individuals to obtain or reveal their social security numbers,276 to name only a few.277

Under a straightforward Smith analysis, a law that required anesthesia would be neutral and generally applicable, as it would apply to both routine and ritual circumcisions. Furthermore, in light of the formidable evidence that circumcision is painful and traumatic for neonates, the legislature would rightly be perceived as acting to protect infant well-being rather than seeking to interfere with religious practices. Indeed, the primary effect of the law would be to regulate routine circumcisions. [page 516] The vast majority of circumcisions are routine, and a significant percentage of these routine circumcisions are done without anesthesia.278 Thus, in terms of actual numbers, the law would affect far more routine circumcisions than ritual circumcisions. Hence there could be no allegation that ritual circumcisions were targeted or treated differently than other circumcisions.279

The Smith analysis, however, becomes more complicated if the "hybrid claim" that it mentions in dicta actually exists. To find that neutral laws of general applicability do not violate the Free Exercise Clause, Justice Scalia had to grapple with cases where the Court did in fact hold that the First Amendment prohibits the application of a facially neutral law to religiously motivated activity.280 Scalia reconciled these cases with Smith by finding that they, unlike Smith (which presented the question whether it was constitutional for a State to ban the use of sacramental peyote), involved the Free Exercise Clause "in conjunction with other constitutional protections."281 Scalia's discussion suggests that it was appropriate to apply strict scrutiny to these hybrid cases.282

In the wake of Smith, the circuit courts have struggled to determine the proper scope of so-called hybrid claims. Indeed, the Sixth Circuit has refused to recognize hybrid claims until the Supreme Court further clarifies the issue.283 And in his concurrence in Church of the Lukumi Babalu Aye, Justice Souter commented:

[T]he distinction Smith draws strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is [page 517] implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote[-smoking] ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all.284

The Supreme Court had a recent opportunity to consider the contours of hybrid claims when it reviewed the Sixth Circuit's ruling in Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton.285 In that case, a group of Jehovah's Witnesses argued that an ordinance regulating the conduct of solicitors and canvassers infringed on a host of constitutional rights, including free exercise of religion and freedom of speech. After finding that the ordinance was valid, the Sixth Circuit stated, "[W]e reject plaintiffs' assertion . . . that laws challenged by hybrid rights claims are subject to strict scrutiny . . . . [W]e do not believe the Court held [in Smith], nor has it ever held, that a different level of scrutiny applies to laws that potentially affect hybrid rights."286 In overruling the Sixth Circuit, however, the Supreme Court simply stated that it did not need to resolve the appropriate standard of review because "the breadth of speech affected by the ordinance . . . make[s] it clear that the Court of Appeals erred in upholding it."287 To date then, the viability and scope of hybrid claims remains unclear.

In those circuits that have recognized hybrid claims, courts have been discriminating about what kind of constitutional allegations are worthy of the hybrid label. To illustrate, in many cases the plaintiff has alleged that a particular law or policy infringes on both the free exercise of religion and the right of parents to control their child's upbringing. For example, parents have raised constitutional challenges to an AIDS awareness assembly,288 school suspension policies,289 the refusal to allow a father (who was not an attorney) to represent his son in court,290 among others.291 The universal approach in these cases, perhaps to [page 518] address Justice Souter's concern that every claim is an amalgam of constitutional rights, is to distinguish the interest at stake from the sort advanced in Wisconsin v. Yoder, where compulsory schooling of Amish children was perceived to threaten an entire way of life.292 In other words, merely implicating another constitutional right in addition to the Free Exercise Clause is not enough to warrant strict scrutiny.

But these cases suggest that if the ancillary constitutional claim were powerful enough, the courts would have applied strict scrutiny in assessing the claim. Moreover, the interest that Jews and Muslims have in ritual circumcision might be powerful enough to raise a Yoder-like claim, or one that is analogous to Pierce v. Society of Sisters,293 which struck down a law prohibiting parochial schools. Indeed, one judge has used circumcision as a vehicle for expressing doubt about whether Smith means that any facially neutral law stands, despite an obligation to violate it.294 As a thought experiment, Judge Kleinfeld proposed a law, passed without religious animus, that prohibits circumcision because the pain exceeds the medical benefits. The judge commented that the law "would make it impossible for Jews and Muslims to practice one of their most sacred religious obligations" and would be unconstitutional because it would abridge both the right to rear one children's in one's religion and the free exercise of religion.295

Circumcision is central to the practice of Judaism and important in the Muslim tradition as well. For Jews, circumcision represents the covenant between God and Abraham and Abraham's descendants.296 In the Jewish tradition, it is the obligation of every father to have his son circumcised.297 There is little debate within Judaism about the necessity of circumcision under Jewish law, although some have argued that certain Jewish texts and traditions can be used to challenge the practice.298 Within the Muslim tradition, there are six schools of law, all [page 519] of which differ in how they apply the sources of Muslim law. One school considers circumcision obligatory, while the others consider it highly recommended. At a minimum, circumcision is considered a symbol of being Muslim.299 In sum, Judge Kleinfeld was correct when he wrote that a law prohibiting circumcision would raise constitutional issues similar in magnitude to those found in Yoder and Pierce.

However, a law that requires the use of anesthetic is quantitatively different than a measure that bans circumcision altogether. Indeed, a law that required anesthetic would likely be found constitutional, even if it were subjected to strict scrutiny as a hybrid claim. First, in light of the weighty evidence that infants feel intense pain during circumcision, and that the pain may have lasting repercussions, the state has a compelling interest in requiring the use of anesthesia.300 Furthermore, the constitutional right to control the upbringing of one's children does not extend to matters that harm the child's physical or mental health.301 Indeed, in Smith, Scalia specifically mentions compulsory vaccination laws in a list of measures for which it would be absurd to constitutionally require religious exceptions.302 A law which required anesthesia for all circumcisions would be wholly consistent with the state's role as parens patriae, where it is empowered to act to protect the health and safety of children.

A measure mandating anesthesia is also narrowly tailored. Unlike under a law which prohibits circumcision, Jews and Muslims still would [page 520] be free to practice their religious traditions. Indeed, some parents already request its use in ritual circumcisions.303 Moreover, as the Jewish rite illustrates, ritual circumcisions have changed as medical knowledge has evolved. For example, today the procedure is performed in sterile conditions, often with equipment that is similar or identical to what is used by doctors. As another example, Jewish law requires what is called the staunching of the blood. Prior to the middle of the nineteenth century, a mohel used his mouth to suction blood from the penis; this was the recognized method of disinfection at the time.304 As medicine began to understand how bacteria and viruses were transmitted from one person to another, most Jews abandoned this aspect of the ritual. Today this part of the ceremony is almost always performed with a swab or through a glass tube, with suction supplied by a rubber attachment.305 A law requiring anesthesia would simply compel those who request and perform ritual circumcisions to stay abreast of modern medical understanding.

Undoubtedly, such a measure would create a practice issue for those who perform ritual circumcisions. The requirement should be relatively straightforward for anyone who is already trained as a doctor or nurse, as are the vast majority of mohels in the Reform Jewish community.306 The measure would be far more onerous for those mohels and barbers (the term for individuals who perform Muslim circumcisions) who have learned their trade through apprenticeship, as is, for example, the tradition in the Orthodox Jewish community. Presumably, the state could establish training and licensing procedures for these individuals, so that they could continue to practice their profession. Ultimately, however, the primary concern should not be the ease of those who perform circumcisions, but the well-being of the infants on whom circumcisions are performed. Moreover, despite the burden that mandatory anesthesia would place on some mohels and barbers, a law that requires anesthesia still arguably demonstrates great deference for religious practice. Even with anesthesia, circumcision ( not to mention local injections into the penis) will hurt. In other words, even after passage of a law requiring anesthesia, the state will permit infants to be subjected to a procedure that is painful and carries the risks of [page 521] complications, and whose only certain value is symbolic, all out of deference to parental wishes and religious concerns.

But although a law that applied to both routine and ritual circumcisions would be constitutional, such a comprehensive measure is not necessarily the best approach for dampening the social norm favoring circumcision. Remember that the strategy is to use incremental reforms because more dramatic efforts may generate resistance and are harder to sell politically.307 Most Muslims and Jews will probably react strongly and negatively to any measure that regulates ritual circumcision. Given the perpetual state of siege in which its members often find themselves, any threat perceived by the Muslim community would likely be magnified post-September 11. >From the Jewish perspective, attempts to regulate circumcision may invoke a history of persecution. As early as 168 B.C., persecutors of the Jews sought to ban circumcision. This effort was repeated during the Spanish Inquisition, the Nazis, and the Soviet government.308 As one Jewish commentator has written, "All Jewish people . . . carry this history in our collective memory, and any challenge to circumcision evokes it, whether consciously or unconsciously."309 To illustrate, the Swedish law requiring anesthesia applies to ritual circumcision, and the outcry from the Jewish community has been fierce.310 Under the law, mohels (who must be approved by the Swedish Board of Health) are only allowed to perform circumcisions during the first two months of life and in hospitals or under similar conditions. The child must receive pain relief, which must be administered by a doctor or qualified nurse. After the first two months of life, circumcisions can only be performed by a medical doctor.311 Because so many Swedish doctors and nurses are opposed to circumcision, the Jewish community is worried that the anesthesia requirement will effectively end ritual circumcisions in Sweden.312 Of course, the Swedish law, which includes punishment of up to six months in prison or a fine of an individual amount, is of a greater magnitude than anything contemplated in this Article. Nonetheless, the opposition the measure encountered probably illustrates what would occur if any comprehensive anesthesia measure were proposed in the United States.

In addition to the negative response that it would likely engender, a measure applying to ritual circumcisions would be markedly out-of-step [page 522] with the current state of the law. Some states expressly exempt those who perform ritual circumcisions from medical licensing requirements.313 In the absence of an express exemption, at least one court has found that ritual circumcision does not constitute the practice of medicine.314 In sum, both the prevailing state of the law and the expected response from Jewish and Muslim communities make any comprehensive measure a far too sweeping reform.

It may seem inconsistent to simultaneously write that unanesthetized circumcision is extraordinarily painful and that parents with certain religious beliefs should be free to subject their children to it. But because the law has an expressive function, parents who engage in ritual circumcisions will not be wholly immune to the effect of the law. If unanesthetized circumcision is widely perceived as cruel (and hence inconsistent with good parenting), more Jewish and Muslim parents are likely to insist on anesthesia, particularly if they can do so without violating their religious obligations. Only members of extremely closeted religious communities are immune from the normative judgments of society as a whole. Indeed, this point may make Jewish and Muslim communities particularly leery of any law addressing circumcision, even one that does not apply to ritual circumcisions. If the societal norm tips in favor of noncircumcision, and especially if circumcision eventually comes to be seen as the equivalent of chopping off a newborn's toe, the norm cascade that was initiated by incremental reforms might threaten the continued viability of the religious ritual, and engender social opprobrium for those who continue to practice it. On the other hand, at least within the Jewish tradition, circumcision was never intended to be mainstream; instead, it was embraced as a means of distinguishing oneself from members of other faiths.315 One can argue that when circumcision ceases to be a secular practice, Jews and Muslims will be practicing circumcision as the rite was originally intended-as a unique tenet of their faith.

[page 523]

D. Strengthening Informed Consent

Social norm theorists often recommend the provision of information as a means of changing public opinion and helping to tip a norm,316 perhaps because the government is less likely to be accused of playing Big Brother if it simply supplies neutral information and allows people to draw their own conclusions. At first blush, strengthening informed consent seems like an attractive strategy, both because parents may have greater difficulty distorting the costs and benefits of circumcision, and because the empirical evidence suggests there is ample room for more information about circumcision. Studies have shown that many parents do not discuss circumcision with their doctor until they arrive at the hospital in labor or shortly thereafter (hardly a good time for informed decisionmaking!).317 The counseling that does occur is usually underinclusive, with physicians providing only a fraction of the information necessary for an informed decision.318 For this reason, most medical professionals who have studied circumcision recommend a beefed-up informed consent process as one means of changing parental attitudes.

Some state legislatures have determined that for certain medical treatments, physicians should not have sole authority to determine what to disclose. Thus they have passed statutes requiring that physicians reveal specific information about risks, benefits, and other relevant concerns. Many of these statutes are connected to child bearing. For example, states mandate that midwives disclose particular information about their background and the scope of services they can offer,319 and that pregnant women be provided with specific information about HIV [page 524] testing,320 drugs that may be furnished during labor and delivery,321 and postpartum depression.322 Theoretically a state could pass a similar statute requiring thorough disclosure of the risks and potential benefits of circumcision.

Although more information may seem like a sound strategy for counteracting the distorting effects of a procircumcision norm, the evidence suggests that such a statute would have little effect on parental decisionmaking. As a general matter, many commentators agree that the informed consent process does little to ensure that an individual understands a procedure and genuinely consents to it. They argue that this level of consent and comprehension only occurs when the physician understands the values and priorities of the patient and engages in careful discussion about the full range of options-behavior that is impossible to legislate.323 But even more important, and as mentioned previously, the empirical evidence shows that when parents are given medical information about circumcision, it has a negligible effect.324 For example, numerous studies have shown no differences in circumcision rates between parents who received either unbiased written information or unbiased written oral counseling.325 The only study that has demonstrated that information can reduce circumcision rates was arguably very Big-Brother-like; it had parents view videotapes that contained graphic illustrations of various steps of the procedure.326

Why does the provision of medical information have so little effect? Most researchers speculate that a strengthened informed consent process makes little difference because the decision to circumcise is [page 525] ultimately made for social, not medical reasons.327 The timing of the information was also an issue. In each study the informed consent process took place late in the pregnancy or after birth, while many parents reported that they made the circumcision decision early in the pregnancy or before conception.328

Obviously, each of these issues is a real barrier for those who wish to require strengthened and effective informed consent. While physicians may be best-suited to discuss the medical aspects of circumcision, they will not always be appropriate candidates for addressing social concerns. It is also difficult to imagine a non-Orwellian statute that could direct them to do so. Furthermore, a physician is unlikely to talk to women about circumcision before they are pregnant, and even counseling early in the pregnancy would be awkward (both because the gender of the child will be unknown and because of the risk that the pregnancy may end spontaneously).

Given the complications of informed consent, increased information is probably best provided through a widespread public information campaign that addresses both medical and social considerations. Examples of such parental information campaigns are common: the danger of alcohol during pregnancy, the importance of reading to young children, and the necessity of putting kids in the backseat, to return to an example from the beginning of this Article. In this regard, perhaps any effort at norm management would benefit most from the active participation of a so-called norm entrepreneur, someone who has the personal charisma or political clout to strongly influence attitudes about circumcision.329 For instance, in California, which has the lowest circumcision rate of any state, the possession of a foreskin is sometimes described as "chic." 330 Perhaps noncircumcision needs a Surgeon General who could do for it what C. Everett Koop did for smoking. Even better would be an American baby with the notoriety of Princes William and Harry, who were not circumcised even though their father had been.331 Indeed, what better way to counteract the effect of norms [page 526] as multipliers than to have parents thinking the American equivalent of, "If noncircumcision is good enough for the future King of England, it's good enough for my son."


This Article has argued that social norms are more than just discrete factors that figure into the behavioral cost-benefit analysis. Instead, norms are more accurately described as variables that affect our perception of every other factor in the analysis, thereby encouraging an individual to either exaggerate or discount the significance of other considerations. While deviance from or compliance with a norm may have its own costs or benefits, an equally important effect of norms is to influence the way individuals understand information, so that from the outset the behavioral outcome is weighted in favor of the predominant social norm.

Norms therefore play an even larger role in shaping and controlling behavior than most legal scholars have envisioned. As the discussion of routine neonatal circumcision suggests, norms are most effectively re-engineered by measures that counter the way the norm distorts our perception of other factors in the behavioral calculus. The challenge that remains for the legal academy is to engage in the empirical research necessary to predict how to best change specific norms, so that the information can be utilized by policymakers who desire reform. At the very least, such empirical work will further inform the theories that legal scholars offer to explain human behavior.

* Associate Professor, Seton Hall University School of Law. I appreciate the insightful comments of Michelle Adams, Kathleen Boozang, Rachel Godsil, John Jacobi, R. Erik Lillquist, Paul Olszowka, Marc Poirer, Daniel Solove, and Charles Sullivan. Desiree Dicorcia, Sarah Kaput and Nick Harnik provided valuable research assistance. The Article also benefited from my participation in an "Uncomfortable Conversation" workshop hosted at Cornell University Law School, as well as a summer workshop at Seton Hall.

           1. Several journals have devoted symposia issues to the subject of law and social norms, including Symposium, The Legal Construction of Norms, 86 VA. L. REV. 1577 (2000), Symposium, Social Norms, Social Meaning, and the Economic Analysis of Law, 27 J. LEGAL STUD. 537 (1998), Symposium, Law and Society & Law and Economics: Common Ground, Irreconcilable Differences, New Directions, 1997 WIS. L. REV. 375 (1997), and Symposium, Law, Economics & Norms, 144 U. PA. L. REV. 1643-2339 (1996).
           2. Martin T. Stein et al., Routine Neonatal Circumcision: The Gap Between Contemporary Policy and Practice, 15 J. FAM. PRAC. 47, 51 (1982); see also Hawa Patal, The Problem of Routine Circumcision?, 95 CANADIAN MED. ASS'N. J. 576, 581 (1966) (discussing similar misperception among Canadian parents).
           3. Eric A. Posner, Law and Social Norms: The Case of Tax Compliance, 86 VA. L. REV. 1781, 1781 (2000) . For articles that do delve into the empirical evidence surrounding specific social norms, see, e.g., Ann E. Carlson, Recycling Norms, 89 CAL. L. REV. 1231 (2001) (discussing recycling practices); Ryan Goodman, Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics, 89 CAL. L. REV. 643 (2001) (discussing South Africa before and after the abolition of sodomy laws); Katharine K. Baker, Sex, Rape, and Shame, 79 B.U. L. REV. 663 (1999) (discussing date rape).
           4. Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science, Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051, 1075 (2000).
           5. See infra notes 310-312 and accompanying text.
           6. S.J. Oh et al., Knowledge and attitudes of Korean parents towards their son's circumcision: a nationwide questionnaire study, 89 BRIT. J. UROLOGY INT'L 426, 429-30 (2002).
           7. Id.; D.S. Kim et al., Male Circumcision: a South Korean perspective, 83 BRIT. J. UROLOGY INT'L 28, 33 (1999).
           9. John Broome, Modern Utilitarianism, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS & the Law v.2, 651, 655 (Peter Newman ed. 1998).
         10. Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1492-93 (1998).
         11. See, e.g., Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585 (1998); Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. PA. L. REV. 1643 (1996).
         12. Robert Cooter, Structural Adjudication and the New Law Merchant: A Model of Decentralized Law, 34 INT'L REV. L. & ECON. 215, 224 (1994).
         13. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 358 (1997) [herinafter Origin]; see also Richard H. McAdams, A Focal Point Theory of Expressive Law, 86 VA. L. REV. 1649 (2000) (explaining how the law provides a focal point around which individuals can converge).
         14. Indeed, most parents will probably assume that an accident is even less likely to happen to them than to the average driver. See Christine Jolls, Behavioral Economics Analysis of Redistributive Legal Rules, 51 Vand. L. Rev. 1653, 1659 (discussing the many studies showing that most actors believe that they are less likely than average to have something bad happen to them).
         15. Origin, supra note 13, at 358.
         16. Id. at 365-66.
         17. Id. at 366-67.
         18. Id. at 368.
         19. Id. at 350.
         20. Id. at 384 n.154.
         21. Id. at 358.
         22. ERIC A. POSNER, LAW AND SOCIAL NORMS 26 (2000).
         23. Id. at 19. For further explication of Posner's theory, also see Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697 (1996).
         24. POSNER, supra note 22, at 22.
         25. Id. at 22-23.
         26. Id. at 24.
         27. Carlson, supra note 3, at 1242.
         28. See generally IRVING L. JANIS & LEON MANN, DECISION MAKING: A PSYCHOLOGICAL ANALYSIS OF CONFLICT, CHOICE, AND COMMITMENT 21-41 (1977) (summarizing alternative explanations of decision making).
         29. See, e.g., W. Bradley Wendel, Rational Choice Theories of Social Norms and the Pragmatics of Explanation, 77 Ind. L.J. 1 (2002); Jeffrey J. Rachlinski, The Limits of Social Norms, 74 CHI.-KENT L. REV. 1537 (1999); L.E. Mitchell, Understanding Norms, 49 U. TORONTO L.J. 177 (1999).
         30. Kate Douglas, Basic Instinct, NEW SCIENTIST, Sept. 1999, at 33.
         31. Alan D. Berkowitz, The Social Norms Approach: Theory, Research, and Annotated Bibliography 5 (Jan. 2003), available at
         32. Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. PERSONALITY & SOC PSYCHOL. 2098, 2099 (1979).
         33. Id.
         34. Id. at 2102.
         35. Id. at 2107.
         36. A. Hastorf & H. Cantril, They saw a game: A case study, 49 J. OF ABNORMAL AND SOCIAL PSYCHOLOGY 129 (1954).
         37. Lord et al., supra note 32, at 2106; Craig A. Anderson et al., Perseverance of Social Theories: The Role of Explanation in the Persistence of Discredited Information, 39 J. PERSONALITY & SOC. PSYCHOL. 1037, 1037 (1980).
         38. Anderson et al., supra note 37, at 1042.
         39. Id. at 1045.
         40. Robert B. Cialdini & Melanie R. Trost, Social Influence: Social Norms, Conformity, and Compliance, in 2 THE HANDBOOK OF SOCIAL PSYCHOLOGY 151, 155 (Daniel T. Gilbert et al., eds., 4th ed. 1998).
         41. For an explanation of the anchoring and adjustment heuristic and a review of the research, see generally Gretchen B. Chapman & Eric J. Johnson, Incorporating the Irrevelant: Anchors in Judgments of Belief and Value, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 120 (Thomas Gilovich et al. eds., 2002).
         42. Nicholas Epley & Thomas Gilovich, Putting Adjustment Back in the Anchoring and Adjustment Heuristic, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 139, 139 (Thomas Gilovich et al. eds., 2002).
         43. Chapman & Johnson, supra note 41, at 126 (explaining three different stages at which an anchoring mechanism could occur).
         44. Epley & Gilovich, supra note 42, at 140.
         45. See infra Part III.
         46. Stephen E. Margolis & S.J. Liebowitz, Path Dependence, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS & THE LAW 17 (Peter Newman, ed. 1998).
         47. See W. Brian Arthur, Competing Technologies, Increasing Returns, and Lock-In By Historical Events, The Econ. J., Mar. 1989, at 116 (exploring how individuals choose between competing technologies).
         48. For a full account, see Paul A. David, Clio and the Economics of QWERTY, 75 AM. ECON REV., May 1985, at 332.
         49. See, e.g., S.J. Liebowitz & Stephen E. Margolis, The Fable of the Keys, 33 J. L. & ECON. 1 (1990) (arguing that the QWERTY story does not reflect the historical record and that continued use of QWERTY is efficient).
         50. DAVID L. GOLLAHER, CIRCUMCISION: A HISTORY OF THE WORLD'S MOST CONTROVERSIAL SURGERY 1 (2000). The oldest image of male circumcision is on an Egyptian tomb built sometime around 2400 B.C. One wall of the tomb shows temple priests cutting the penises of two adolescents. In the first picture, "an assistant stands behind one of the youths, gripping his arms and pulling them back while the priest operates with a stone knife. 'Hold him and do not allow him to faint' reads the inscription." In the second picture, "the boy being circumcised urges the priest-surgeon to 'thoroughly rub off what is there.' The circumcising priest replies, 'I will cause it to heal."' Id. at 2.
         51. This account is based on Id. at 74-79. For an in-depth historical discussion of Western attitudes toward circumcision, and the emergence of circumcision as a cultural norm, see Geoffrey P. Miller, Circumcision: Cultural Legal Analysis, 9 VA. J. SOC. POL'Y & L. 497 (2002).
         52. GOLLAHER, supra note 50, at 79.
         53. While Sayre's assessment of circumcision was misguided, he was responsible for some significant medical successes. For example, when he was resident physician of New York City, his quarantining of a ship may have saved the City from a cholera epidemic. He also championed proper sewage disposal, inspection of tenement houses, and compulsory smallpox vaccination. Id. at 77.
         54. Id.
         55. Id. at 78 (citing BIOGRAPHY OF EMINENT AMERICAN PHYSICIANS AND SURGEONS 458 (R.F. Stone ed., 2d ed. 1898)).
         56. GOLLAHER, supra note 50, at 84 (citing N.H. Chapman, Some of the Nervous Affections Which Are Liable to Follow Neglected Congenital Phimosis in Children, 41 MED. NEWS 317 (1882)).
         57. GOLLAHER, supra note 50, at 97, 100.
         58. Id. at 96-97. When Sayre performed his first circumcision in Milwaukee, there were less than 200 hospitals in the United States. By 1910, there were more than 4000. Id. Also, during the same period, doctors began to understand the importance of sterile surgery. Id. at 96.
         59. Id. at 107.
         60. Id. See also ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 103 (1985) (discussing class issues and stigmas associated with noncircumcision).
         61. GOLLAHER, supra note 50, at 89-90.
         62. Id. at 101.
         63. Id. at 104. Some have rejected any comparisons between male and female circumcision on the ground that only the latter is aimed at subordinating women and controlling their sexuality. See, e.g., Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 33, 56, 60 n.12 (1993). I would agree that comparisons between the two practices should rarely be made, in part because of the differing political climates in which they occur. But while we no longer circumcise to prevent boys from masturbating, at one time the practice was directly aimed at curbing male sexuality. Particularly disturbing is that at least a few respected physicians advocated circumcising young boys without anesthesia, so that they would associate the pain of the procedure with masturbation. See, e.g., Athol Johnson, On An Injurious Habit Occasionally Met With in Infancy and Early Childhood, 1 LANCET 344, 345 (1860); JOHN HARVEY KELLOGG, PLAIN FACTS FOR OLD AND YOUNG: EMBRACING THE NATURAL HISTORY AND HYGIENE OF ORGANIC LIFE 295 (Charles Roseberg & Carroll Smith-Roseberg eds., Arno Press 1974) (1888) ("The operation should be performed by a surgeon without administering an anesthetic, as the brief pain attending the operation will have a salutary effect upon the mind, especially if it be connected with the idea of punishment . . . ."). To the extent that routine neonatal circumcision is path dependent, our current practices can be traced to outmoded beliefs about male sexuality. Hence, there exists a rarely-acknowledged parallel between male and female circumcision.
         64. GOLLAHER, supra note 50, at 1.
         65. See supra notes 22-26 and accompanying text.
         66. See Elizabeth S. Scott, Social Norms and the Legal Regulation of Marriage, 86 VA. L. REV. 1901, 1913 (2000) (suggesting that norms of parental obligation deter selfish behavior).
         67. See ROMBERG, supra note 60, at 103.
         68. See Korobkin & Ulen, supra note 4, at 1077-84 (reviewing effect that complexity and ambiguity has on decision-making).
         69. See Scott, supra note 66, at 1913 (discussing norms of parental behavior).
         70. AMERICAN ACADEMY OF PEDIATRICS, Standards and Recommendations for Hospital Care of Newborn Infants 110 (1971).
         71. AMERICAN ACADEMY OF PEDIATRICS, Report of the Task Force on Circumcision (RE9148) (1989 Addendum to 1975 Statement), available at
         72. National Center for Health Statistics, Report of the Task Force on Circumcision (RE9148) (1989 Addendum to 1975 Statement), available at These statistics under-report the number of routine circumcisions, because they do not include the circumcisions that are performed in doctors' offices after the infant is discharged from the hospital.
         73. Id.   74. American Academy of Pediatrics, Task Force on Circumcision, Circumcision Policy Statement, 103 PEDIATRICS 686, 686 (1999) [hereinafter 1999 Task Force on Circumcision].
         75. Id.
         76. See, e.g., Letters to the Editor 105 PEDIATRICS 681-85 (2000) (comments on the 1999 statement of the Task Force on Circumcision, with some writers complaining that the AAP should have taken a stronger stance against the procedure, and others complaining that the AAP should have endorsed the procedure.); Edgar J. Schoen et al., New Policy on Circumcision: Cause for Concern, 105 PEDIATRICS 620, 622 (2000) (suggesting "an anti-circumcision bias by the 1999 Task Force"); see also Matthew R. Giannetti, Note, Circumcision and the American Academy of Pediatrics: Should Scientific Misconduct Result in Trade Association Liability?, 85 IOWA L. REV. 1507 (2000) (suggesting that the AAP should be liable for promoting circumcision as a viable medical practice).
         77. See infra notes 222-25 and accompanying text.
         78. See Canadian Paediatric Society, Neonatal Circumcision Revisited, 154 CANADIAN MED. ASS'N J. 769, 769 (1996) ("Circumcision of newborns should not be routinely performed."); The Australasian Association of Paediatric Surgeons, Guidelines for Circumcision, available at (Apr. 1996) ("It is considered to be inappropriate and unnecessary as a routine to remove the prepuce, based on the current evidence available."). The British Medical Association (BMA) has issued a paper entitled Circumcision of Male Infants: Guidance for Doctors, available at (Sept. 1996). The statement does "not attempt to offer detailed guidance as to the appropriateness of accepted therapeutic clinical procedures." Instead, it addresses the ethics of performing circumcisions. While the paper opposes any outright ban on circumcisions, it states that "[i]t is rarely necessary to circumcise an infant for medical reasons" and that "[t]he BMA opposes unnecessarily invasive procedures being used where alternative, less invasive techniques are equally efficient and available." Id.
         79. The Article does not discuss phimosis (a condition where the foreskin cannot be retracted) or balanitis (infection of the foreskin). Because circumcision removes the foreskin, it eliminates the possibility that the male will contract either of these conditions. However, while the true frequency of the conditions is unknown, they are believed to be rare. 1999 Task Force on Circumcision, supra note 74, at 687. Although many parents fear that their sons will have to be circumcised later in life if one of these conditions develop, a range of treatment options exist, and most are as simple as antibiotics or steroid creams. While no precise statistics are available, post-infancy circumcisions in the United States are reported to be exceedingly rare, and they are even more so in countries where circumcision is not the medical norm. EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 64 (1980).
         80. See infra notes 252-55 and accompanying text.
         81. Fran Lang Porter et al., Neonatal Pain Cries: Effect of Circumcision on Acoustic Features and Perceived Urgency, 57 CHILD DEVELOPMENT 790, 792 (1986).
         82. M. Sobeth et al., Local Anaesthetic Circumcision in Adults, 53 INT'L J. CLINICAL PRAC. 637 (1999).
         83. Id. While receiving the anesthetic is painful, it is not nearly as painful as an unanethetized circumcision. Janice Lander et al., Comparison of Ring Block, Dorsal Penile Nerve Block, and Topical Anesthesia for Neonatal Circumcision, 278 JAMA 2157, 2159-61 (1997).
         84. K.J.S. Anand et al., Pain and Its Effects in the Human Neonate and Fetus, 317 NEW ENG. J. MED. 1321, 1323 (1987); see also Linda Franck & Linda Lefrak, For Crying Out Loud: The Ethical Treatment of Infants' Pain, 12 J. CLINICAL ETHICS 275, 275-76 (2001) (discussing need for infant pain management).
         85. Anand et al., supra note 84, at 1326.
         86. Howard J. Stang et al., Local Anesthesia for Neonatal Circumcision: Effect on Distress and Cortisol Response, 259 JAMA 1507, 1510 (1988). A cyanotic infant turns blue because of a lack of oxygen.
         87. Porter et al., supra note 81, at 800.
         88. Id. at 795-99.
         89. Stang et al., supra note 86, at 1509.
         90. Thomas F. Anders & Robert J. Chalemian et al., The Effects of Circumcision on Sleep-Wake States in Human Neonates, 36 PSYCHOSOM MED. 174, 178 (1974); Robert N. Emde et al., Stress and Neonatal Sleep, 33 PSYCHOSOM MED. 491, 495-96 (1971).
         91. R.E. Marshall et al., Circumcision: Effects upon newborn behaviour, 3 INFANT BEHAV. & DEV. 1, 12 (1980). The effects of circumcision may last longer than twenty-two hours, but it is difficult for researchers to track infants after this point because they are typically discharged from the hospital.
         92. Anand et al., supra note 84, at 1326.
         93. Id.
         94. Anna Taddio et al., Effect of Neonatal Circumcision on Pain Response During Subsequent Routine Vaccination, 349 LANCET 599, 599 (1997).
         95. Maria Fitzgerald et al., Cutaneous Hypersensitivity Following Peripheral Tissue Damage in Newborn Infants and Its Reversal with Topical Anaesthesia, 39 PAIN 31 (1989) (examining pain response in infants subjected to repeated heel lancings).
         96. Taddio et al., supra note 94, at 602.
         97. Id.
         98. See generally Anand et al., supra note 84, at 1321, 1322-23 (summarizing data on fetal and newborn neural and cerebral cortex development).
         99. See, e.g., Dimitri A. Christakis et al., A Trade-off Analysis of Routine Newborn Circumcision, 105 PEDIATRICS 246, 246 (2000) (reporting rate of 0.2%); Thomas E. Wiswell & Dietrich W. Geschke, Risks From Circumcision During the First Month of Life Compared With Those for Uncircumcised Boys, 83 PEDIATRICS 1011, 1011 (1989) (reporting rate of 0.19%); Kenneth L. Harkavy, Letter to the Editor, 79 PEDIATRICS 649, 649 (1987) (reporting rate of 0.6%); William F. Gee & Julian S. Ansell, Neonatal Circumcision: A Ten-Year Overview: With Comparison of the Gomco Clamp and the Plastibell Device, 58 PEDIATRICS 824, 824 (1976) (reporting rate of 0.2%).
       100. Christakis et al., supra note 99, at 248.
       101. See, e.g., Id. at 247 (reporting bleeding in 0.18% of circumcisions).
       102. 1999 Task Force on Circumcision, supra note 74, at 688; N. Williams & L. Kapila, Complications of Circumcision, 80 BRITISH J. SURGERY 1231, 1232 (1993); J. Shulman et al., Surgical Complications of Circumcision, 149 Am. J. Diseases Children 85, 85 (1963).
       103. When these events occur, it is typically after the infant has been released from the hospital. There are thus no reliable statistics on the frequency of these complications, but they are generally believed to be rare.
       104. Christakis et al., supra note 99, at 249.
       105. Williams & Kapila, supra note 102, at 1231-32.
       106. See, e.g., Charles Seabrook, Recent Accidents Involving Circumcisions Renew Debate of Necessity of Procedure, ATLANTA J. & CONST., Aug. 31,1985, at C5 (reporting that nearly 90% of an infant's penis was burned when a doctor used improper equipment); Charles Seabrook, 22.8 Million Said to Settle Circumcision Suit, ATLANTA J. & CONST., Mar. 12, 1991, at C1 (reporting that final settlement had been reached in suit brought over boy's injuries).
       107. The most recent study reports a 0.04% error rate, or 56 surgical errors out of the 130,475 circumcisions performed. Only one error (0.0008%) was severe enough that it required reconstruction of the penis. Christakis et al., supra note 99, at 247.
       108. Ronald L. Poland, The Question of Routine Neonatal Circumcision, 322 NEW ENG. J. MED. 1312, 1313 (1990).
       109. See David H. Spach et al., Lack of Circumcision Increases the Risk of Urinary Tract Infection in Young Men, 267 JAMA 679, 679 (1992) (noting that while UTI most commonly occurs in neonates and older men, it can also affect young men).
       110. 1999 Task Force on Circumcision, supra note 74, at 689. Studies have suggested that during infancy, uncircumcised boys may harbor greater amounts of periurethral bacteria and higher concentrations of uropathogens, which can lead to urinary tract infections. James A. Roberts, Neonatal Circumcision: An End to the Controversy?, 89 S. MED. J. 167, 168 (1996); Thomas E. Wiswell et al., Effect of Circumcision Status on Periurethral Bacterial Flora During the First Year of Life, 113 J. PEDIATRICS 442, 445 (1988).
       111. As the AAP explains, "[I]t is difficult to summarize and compare the results [of UTI studies] because of differences in methodology, samples of infants studied, determination of circumcision status, method of urine collection, UTI definition, and assessment" of other variables which contribute to whether the infant contracts UTI. 1999 Task Force on Circumcision, supra note 74, at 689.
       112. Id. at 690. See also Teresa To et al., Cohort Study on Circumcision of Newborn Boys and Subsequent Risk of Urinary Tract Infection, 352 LANCET 1813, 1814-15 (1998) (finding uncircumcised boys to be 3.7 times more likely than circumcised boys to have a UTI that necessitated a hospital admission during the first year); Thomas E. Wiswell & Wayne E. Hachey, Urinary Tract Infections and the Uncircumcised State: An Update, 32 CLINICAL PEDIATRICS 130, 132 (1993) (reporting uncircumcised boys to have a ten-fold increase in the risk of UTI and an actual incidence of 1.4%); Thomas E. Wiswell et al., Declining Frequency of Circumcision: Implications for Changes in the Absolute Incidence and Male to Female Sex Ratio of Urinary Tract Infections in Early Infancy, 79 PEDIATRICS 338, 338-39 (1987) (reporting that uncircumcised boys have an eleven-fold greater chance of UTI during the first year and an actual incidence of UTI in uncircumcised males of .85% to 1.25%); Thomas E. Wiswell & John D. Roscelli, Corroborative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96, 98, 99 (1986) (demonstrating a ten-fold increase in risk between circumcised and uncircumcised boys during the first year and an actual incidence of .87% and 1.20%); Thomas E. Wiswell et al., Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 75 PEDIATRICS 901, 902 (1985) (reporting a twenty-fold greater risk of UTI and an actual incidence among uncircumcised boys of 4.12% during the first year of life). See also Wiswell & Hachey supra, at 133 (conducting a meta-analysis of nine studies and demonstrating a twelve-fold increased risk for uncircumcised boys).
       113. 1999 Task Force on Circumcision, supra note 74, at 690.
       114. Edgar J. Schoen et al., Newborn Circumcision Decreases Incidence and Costs of Urinary Tract Infections During the First Year of Life, 105 PEDIATRICS 789, 793 (2000); see also Thomas E. Wiswell, The Prepuce, Urinary Tract Infections, and the Consequences, 105 PEDIATRICS 860, 860 (2000) (arguing that actual incidence among uncircumcised males is at least 2.2%).
       115. E. Stokland et al., Renal Damage One Year After First Urinary Tract Infection: Role of Dimercaptosuccinic Acid Scintigraphy, 129 J. PEDIATRICS 815, 817 (1996); J. Winberg et al., Clinical Pyelonephritis and Local Renal Scarring: A Selected Review of Pathogenesis, Prevention, and Prognosis, 29 PEDIATRIC CLINICIAN N. AM. 801, 810 (1982).
       116. 1999 Task Force on Circumcision, supra note 74, at 690.
       117. Edgar J. Schoen, The Relationship Between Circumcision and Cancer of the Penis, 41 CANCER J. FOR CLINICIANS 306, 308 (1991).
       118. GOLLAHER, supra note 50, at 145. There are other hypotheses about why circumcision lowers the risk of penile cancer. One possibility is that cancer is associated with chronic irritations of the penis that circumcision may prevent, such as phimosis. Hung-Fu Tseng et al., Risk Factors for Penile Cancer: Results of a Population-Based Case-Control Study in Los Angeles County (United States), 12 CANCER CAUSES & CONTROL 267, 270 (2001). Another possibility is that the presence of a foreskin increases a male's probability of contracting the human papilloma virus (HPV), which has been associated with a heightened risk of penile cancer. See Schoen, supra note 117, at 307. However, researchers disagree about whether uncircumcised men are more susceptible to HPV than circumcised men. See infra notes 116-28 and accompanying text.
       119. 1999 Task Force on Circumcision, supra note 74, at 690.
       120. Schoen, supra note 76, at 621.
       121. Schoen, supra note 117, at 307.
       122. Id. (citing M. Kochen & S. McCurdy, Circumcision and the Risk of Cancer of the Penis: A Life-Table Analysis, 134 AM. J. DIS. CHILD 484-86 (1980)).
       123. Christopher Maden et al., History of Circumcision, Medical Conditions, and Sexual Activity and Risk of Penile Cancer, 85 J. NAT'L. CANCER INST. 19, 22 (1993). This study has been criticized as underestimating the risk of the most serious forms of penile cancer, because it included men diagnosed with both invasive cancer and cancer in situ, but did not distinguish between the two groups in reporting results. 124. Edgar J. Schoen et al., The Highly Protective Effect of Newborn Cancer Against Invasive Penile Cancer, 105 PEDIATRICS e36, available at (arguing that if all American men were circumcised, less than 70 cases of invasive penile cancer would be diagnosed annually, and if all American men were uncircumcised, there would be more than 2800 cases annually).
       125. While noncircumcision is a major risk factor for penile cancer, it is not the only one. Others include cigarette smoking, certain sexual behavior, previous genital trauma, and low levels of physical activity. Tseng et al., supra note 118, at 276. Poor penile hygiene may be the most significant risk factor, as evidenced by the significant variations in cancer rates between countries where the vast majority of men are uncircumcised. For example, in Denmark the rate is 0.82 per 100,000 (lower than in the United States); in Brazil, 2.9 to 6.8, and in India 2 to 10.5. 1999 Task Force on Circumcision, supra note 74, at 690.
       126. See, e.g., R.S. Van Howe, Circumcision and HIV Infection: Review of the Literature and Meta-Analysis, 10 INT'L J. STD & AIDS 8, 11 (1999) (performing what Van Howe describes as a "meta-analysis" of studies published in peer-reviewed journals and demonstrating that "having a foreskin significantly decreases the risk of acquisition or transmission of HIV"). But see Nigel O'Farrell & Matthias Egger, Circumcision in Men and the Prevention of HIV Infection: A 'Meta-Analysis' Revisited, 11 INT'L J. STD & AIDS 137, 138 (2000) (criticizing Van Howe's methodology, re-analyzing his data, concluding that "[t]he combined estimates from both fixed and random effect models indicate that lack of circumcision is associated with an increased risk of HIV infection," and calling for more sophisticated studies to examine the role of circumcision).
       127. 1999 Task Force on Circumcision, supra note 74, at 691.
       128. See, e.g., Stephanie Clark, Male Circumcision & HIV Prevention: Current Knowledge and Future Research Directions, 356 LANCET 223, 225 (2001) (reviewing ecological, cross-sectional/case control, and prospective studies); Helen A. Weiss et al., Male Circumcision and Risk of HIV Infection in Sub-Saharan Africa: A Systematic Review and Meta-Analysis, 14 AIDS 2361 (2000) (conducting meta-analysis and finding that 21 of 27 studies showed that circumcised men have approximately half the risk of HIV infection than uncircumcised men); Stephen Moses et al., The Association Between Lack of Male Circumcision and Risk for HIV Infection: A Review of the Epidemiological Data, 21 SEXUALLY TRANSMITTED DISEASES 201 (1994) (reviewing thirty epidemiological studies and reporting that in the studies where significant association was found between noncircumcision and HIV status, measures of increased risk ranged from 1.5 to 8.4); Isabelle de Vincenzi & Thierry Mertens, Male Circumcision: A Role in HIV Prevention?, 8 AIDS 153 (1994) (reviewing data and its methodological limitations, discussing implications for public-health interventions and suggesting areas for further research).
       129. See Van Howe, supra note 126, at 13; Vincenzi & Mertens, supra note 128, at 156-57.
       130. Daniel T. Halperin & Robert C. Bailey, Male Circumcision & HIV Infection: 10 Years and Counting, 354 LANCET 1813 (1999). But see Kate Bonner, Male Circumcision as an HIV Control Strategy: Not A 'Natural Condom', 9 REPROD. HEALTH MATTERS, 143, 145 (2001) (arguing that the wisest course is to recommend reduction strategies of better-proven efficacy, such as condom use).
       131. Rachel A. Royce et al., Sexual Transmission of HIV, 336 NEW ENG. J. MED. 1072, 1075 (1997).
       132. John C. Caldwell & Pat Caldwell, The African AIDS Epidemic, SCI. AM. Mar. 1996, at 62, 66.
       133. Angus Nicoll, Routine Male Neonatal Circumcision and Risk of Infection with HIV-1 and Other Sexually Transmitted Diseases, 52 ARCHIVES DISEASE CHILDHOOD 194, 194 (1999).
       134. Id.
       135. Joan K Kreiss & Sharon G. Hopkins, The Association Between Circumcision Status and Human Immunodeficiency Virus Infection Among Homosexual Men, 168 J. INFECTIOUS DISEASES 1404 (1993).
       136. Mary Ann Chiasson, Heterosexual Transmission of HIV-1 Associated with the Use of Smokable Freebase Cocaine (Crack), 5 AIDS 1121 (1991).
       137. Edward O. Laumann et al., Circumcision in the United States: Prevalence, Prophylactic Effects, and Sexual Practice, 277 JAMA 1052, 1054-55 (1997).
       138. 1999 Task Force on Circumcision, supra note 74, at 691.
       139. Susan W. Parker et al., Circumcision and Sexually Transmissible Disease, 2 MED. J. AUSTL. 288, 289 (1983).
       140. L.S. Cook et al., Clinical Presentation of Genital Warts Among Circumcised and Uncircumcised Heterosexual Men Attending an Urban STD Clinic, 1993 GENITOURIN MED. 262, 262 (1993).
       141. Xavier Castellsague et al., Male Circumcision, Penile Human Papillomavirus Infection, and Cervical Cancer in Female Partners, 346 NEW ENG. J. MED. 1105, 1107-1108 (2002).
       142. Laumann et al., supra note 137, at 1054.
       143. 1999 Task Force on Circumcision, supra note 74, at 691.
       144. Castellsague et al., supra note 141, at 1110-11.
       145. Id. at 1110-11.
       146. Id. at 1111.
       147. Hans-Olov Adami & Dimitrios Trichopoulos, Cervical Cancer and the Elusive Male Factor, 346 NEW ENG. J. MED. 1160, 1160 (2002).
       148. See Id. at 1160 (discussing possibility of attenuation).
       149. See supra note 140 and accompanying text.
       150. Denise Grady, Male Circumcision Is Found to Reduce Cervical Cancer, N.Y. TIMES, April 11, 2002, at A28.
       151. See cases cited infra at note 154; see also Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 120 (Ct. App. 2001) (holding that parents cannot enroll their children in research studies that have risks but promise no benefit for the child); 45 C.F.R. § 46.405 (stating that the Department of Health and Human Services will fund research presenting more than a minimal risk to children only if an "intervention or procedure . . . holds out the prospect of direct benefit for the individual subject" or a "monitoring procedure . . . is likely to contribute to the subject's well-being," and certain other conditions are met); 45 C.F.R. § 46.102(defining mininal risk to mean that the "probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life during the performance of routine physical . . . tests").
       152. When applying the substituted judgment test, the court places itself in the child's shoes, and decides whether the minor would consent to the procedure if he was capable of doing so. Under the best interest test, a court determines whether the procedure is in the best interest of the child from an objective standpoint. Usually these two tests represent distinctions without any real differences, especially since when most courts apply the substituted judgment test to cases involving minors, they ask the objective question whether a reasonable person in the child's circumstances would choose to consent to the procedure. See Louise Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 YALE L.J. 1, 30-37 (1990); Rachel M. Dufault, Comment, Bone Marrow Donations by Children: Rethinking the Legal Framework in Light of Curran v. Bosze, 24 Conn. L. Rev. 211, 212 (1991).
       153. Lisa K. Gregory, Annotation, Propriety of Surgically Invading Incompetent or Minor for Benefit of Third Party, 4 A.L.R.5th 1000 (1993).
       154. See, e.g., Curran v. Bosze, 566 N.E.2d 1319 (Ill. 1990) (holding that it was not in the child's best interest to donate bone marrow to sibling with whom child did not have a relationship); Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979) (allowing the child to donate kidney because doing so would provide the child with substantial psychological benefits); In re Richardson 284 So. 2d 185 (La.Ct. App. 1973) (holding that the child could not donate kidney to his sister, in part because transplant was not immediately necessary and in part because outcome of transplant was uncertain); Hart v. Brown, 289 A.2d 386 (Conn. 1972) (holding it was in the child's best interest to donate kidney to her identical twin); Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969) (holding that child could donate kidney to brother because his well-being would more be jeopardized by loss of the brother than loss of a kidney).
       155. Curran, 566 N.E.2d 1319 .
       156. Richardson, 284 So. 2d 185; Hart, 289 A.2d 386.
       157. Curran, 566 N.E.2d at 1324; In re Guardianship of Pescinski, 226 N.W.2d 180, 183 (Wis. 1975) (Day, J., dissenting). 158. See supra notes 6-7 and accompanying text (discussing South Korea).
       159. Jeffrey D. Tiemstra, Factors Affecting the Circumcision Decision, 12 J. AM. FAM. PRACT. 16, 18 (1999).
       160. See Richardson, 284 So. 2d at 187 (holding that child could not donate kidney because there was no immediate necessity).
       161. Grady, supra note 150, at A28.
       162. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 937 (1996) (noting how difficult it is to establish actual preferences, because all opinions are influenced by the existence of the relevant norm).
       163. See supra notes 109-59 and accompanying text.
       164. J.R. Taylor et al., The Prepuce: Specialized Mucosa of the Penis and Its Loss to Circumcision, 77 BRITISH J. UROLOGY 291, 293 (1996).
       165. One widely-quoted man who was circumcised later in life compared the loss of sensation to the difference between seeing in monochrome and seeing in color. Another reported that the loss of sensitivity was favorable, because it gave him more control over his orgasms. See K. O'Hara & J. O'Hara, The Effect of Male Circumcision on the Sexual Enjoyment of the Female Partner, 83 BRIT. J. UROLOGY INT'L 79, 79 (1999) (collecting anecdotes). Master & Johnson tested the glans of circumcised and uncircumcised males and found no difference in sensitivity, but since no details of their testing were made available, this too is considered largely anecdotal. William H. Masters & Virginia E. Johnson, Human Sexual Response 190 (1966). See also T. Hammond, A Preliminary Poll of Men Circumcised in Infancy or Childhood, 83 Brit. J. Urology Int'l 85, 87 (1999) (reporting a variety of sexual dysfunction among circumcised men, but the subject pool was limited to individuals who were likely biased against circumcision). There are many historical instances where a decrease in sensitivity was billed as one of the advantages of circumcision. For example, the twelfth-century physician and rabbi Moses Maimonides argued that circumcision had the advantage of curbing a male's sexual appetite. See O'Hara & O'Hara, supra, at 79. As routine circumcision became standard medical practice, many physicians argued that it had the advantage of making intercourse less pleasurable and thereby discouraged adultery, while others advocated circumcision as a means of guarding against premature ejaculation. Gollaher, supra note 50, at 105. Only one study has comprehensively examined the preferences of women who have had intercourse with both circumcised and uncircumcised males. It reported a clear preference for intercourse with uncircumcised males. O'Hara & O'Hara, supra, at 81. The authors hypothesized that removal of penile skin, and the resulting loss of fine-touch receptors, changes male positioning and thrusting patterns during intercourse in ways that reduce the amount of vaginal secretions and decrease stimulation of the clitoris. Id. at 82.
       166. S. Collins et al., Effects of Circumcision on Male Sexual Function: Debunking A Myth?, 167 J. UROLOGY 2111, 2112 (2002).
       167. Kenneth S. Fink et al., Adult Circumcision Outcomes Study: Effect on Erectile Function, Penile Sensitivity, Sexual Activity and Satisfaction, 167 J. UROLOGY 2113, 2114 (2002).
       168. Id.
       169. See infra notes 174-79 and accompanying text.
       170. See, e.g., Sharon L. Binner, Effect of Parental Education on Decision-Making About Neonatal Circumcision, 95 SO. MED. J. 457, 459 (2002) ("Our study agrees with previous reports that social indicators such as circumcision status of the father appear to play the most important role in the decision to circumcise."); Mark S. Brown & Cheryl A. Brown, Circumcision Decision: Prominence of Social Concerns, 80 PEDIATRICS 215, 216 (1987) ("Among all reasons parents gave for the circumcision decision, social reasons were prominent."); M. Jeffrey Maisels, Circumcision: the effect of information on parental decision making, 71 PEDIATRICS 453, 454 (1983) ("[O]ur experience suggests that the decision is not usually a medical one. Rather, it is based on the parents' perceptions of hygiene, their lack of understanding of the surgical risks, or their desire to conform to the pattern established by the infant's father and their own societal structure."); Stein et al., supra note 2, at 51 ("When parents were asked to rate the importance of various reasons for or against routine neonatal circumcision, the reasons most frequently cited were . . . a personal preference for the child.").
       Parents who circumcise commonly list penile hygiene and concerns about cleanliness as reasons for circumcision. See sources cited supra. These responses also reflect social convention, as perceptions of what constitutes good hygiene varies according to the culture.
       171. Brown & Brown, supra note 170, at 217; Chandice C. Harris, Cultural Values and the Decision to Circumcise, J. NURSING SCHOLARSHIP, Fall 1986, at 98, 101.
       172. See, e.g., Harris, supra note 171, at 99 (quoting an uncircumcised white man: "'I think there is psychological trauma when you are not circumcised. I went through gym class, being in the locker room. There were not remarks, but I felt different."')
       173. Laumann et al., supra note 137, at 1054-55.
       174. Id. at 1056.
       175. Id. at 1054.
       176. Id. at 1099.
       177. M.L. Williamson & P.S. Williamson, Women's Preferences for Penile Circumcision in Sexual Partners, 14 J. SEXUAL EDUC. THERAPY 8, 10 (1988).
       178. Fink, supra note 167, at 2114.
       179. Id. at 2115.
       180. There are no studies focusing on circumcised boys in groups where noncircumcision is the norm. But presumably they too would experience the effects of deviance. Indeed, a colleague of mine tells of a friend who was traveling abroad. His sexual encounter with a Scandinavian woman took an unexpected turn when she blurted out, "But part of it is missing!"
       181. See supra notes 13-25 and accompanying text.
       182. Harris, supra note 171, at 100. Here is another interesting parallel with female circumcision. While the Western world properly conceives of female circumcision as mutilation, circumcised women are often strong advocates of the practice and are responsible for arranging for their daughter's circumcision. See generally Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998) (discussing the efforts of Somali immigrant women to arrange for their daughters' circumcisions).
       183. TIMOTHY BENEKE, PROVING MANHOOD 36 (1997).
       184. This is nicely illustrated by Norman Mailer's description in Life magazine of Muhammad Ali's loss of a championship fight to Joe Frazier: "For Ali had shown America what we all had hoped was secretly true. He was a man. He could endure moral and physical torture and he could stand." Id. at 37 (citation omitted).
       185. Id. at 46.
       186. See supra note 12 and accompanying text.
       187. See Harris, supra note 171, at 100 (noting the surprise and strong emotion invoked, especially in white males, when they are told that circumcision is no longer recommended).
       188. Because the majority of American males are circumcised, this formulation assumes that the child's father is circumcised.
       189. See infra notes 316-31 (discussing whether strengthening informed consent requirements will be an effective targeted reform).
       190. See, e.g., Stein et al., supra note 2, at 49; Gary Owen Bean & Claudia Egelhoff, Neonatal Circumcision: When Is the Decision Made?, 18 J. FAM. PRAC. 883, 884 (1984); Harris, supra note 171, at l00 (discussing how parents report that they really did not talk about the procedure and had always simply assumed that they would or would not circumcise).
       191. Jay J.J. Christensen-Szalanki et al., Circumcision and Informed Consent: Is More Information Always Better?, 25 Med. Care 856, 862 (1987).
       192. See generally CAROLE R. BEAL, BOYS AND GIRLS: THE DEVELOPMENT OF GENDER ROLES 42-49 (1994) (summarizing data about parental interaction with children).
       193. Id. at 45.
       194. Id. at 46 (citing E.E. Maccoby et al., Children's dispositions and mother-child interaction at 12 and 18 months: A short-term longitudinal study, 20 DEVELOPMENTAL PSYCHOLOGY 459 (1984)).
       196. See, e.g., Rose-Marie Hoffman & L. Dianne Borders, Twenty-Five Years After the Bem Sex-Role Inventory: A Reassessment and New Issues Regarding Classification Variability, 34 MEASUREMENT & EVALUATION COUNSELING & DEV. 39 (2001), available at; JOHN R. GRAHAM, THE MMPI: A PRACTICAL GUIDE 46-48 (1979) (summarizing what sort of score on the Minnesota Multiphasic Personality Inventory reveals men who are presenting themselves as extremely masculine).
       197. According to this oft-invoked criteria, a practice is inefficient if those who would benefit from reform would be better off even after they compensated those who be harmed by reform. In other words, a practice is inefficient if change would make society as a whole better-off. Allan M. Feldman, Kaldor-Hicks Compensation, in 2 THE NEW PALGRAVE DICTIONARY OF ECONOMICS & THE LAW 417 (Peter Newman, ed.) (1998).
       198. See, e.g., D. Berdeu et al., Cost-Effectiveness Analysis of Treatments for Phimosis: A Comparison of Surgical and Medicinal Approaches and Their Economic Effect, 87 BRIT. J. UROLOGY INT'L 239 (2001) (focusing on risk of phimosis); John B. Chessare, Circumcision: Is the Risk of Urinary Tract Infection Really the Pivotal Issue, CLINICAL PEDIATRICS, Feb. 1992, at 100 (1990) (focusing on risk of urinary tract infection); David Cadman et al., Newborn Circumcision: An Economic Perspective, 131 CANADIAN MED. ASS'N 1353 (1984) (focusing on risk of penile cancer). In Frank H. Lawler et al., Circumcision: A Decision Analysis of Its Medical Value, 23 FAM. MED. 587 (1991), Lawler and his colleagues examined a wider range of potential benefits, including urinary tract infection, penile cancer, and miscellaneous penile problems for which circumcision may be a treatment. They concluded that "circumcision seems to be within the range of cost-effectiveness generally considered worthy of implementation." Id. at 593. They also counseled that "there is no medical indication for or against circumcision" and that the "decision regarding circumcision may most reasonably be made on nonmedical factors such as parent preference or religious convictions." Id. at 587. However, analysis of the risks or costs was limited to death from circumcision and other surgical complications, thereby rendering this study under-inclusive as well. For example, pain has been long been recognized as a significant disadvantage of circumcision. See supra notes 80-98 and accompanying text. In addition, Lawler and his colleagues have been criticized for discounting the costs of circumcision but not the quality-adjusted life expectancy, which resulted in cost-effectiveness ratios that were substantially lower than if discounting had been applied evenhandedly. Michael D. Hagen, Fiscal Factors, Fimbrial Fact, and Foreskins, 23 FAM. MED. 580, 583 (1991).
       199. Theodore G. Ganiats, Routine Neonatal Circumcision: A Cost-Utility Analysis, 11 MED. DECISION MAKING 282 (1991).
       200. Id. at 288.
       201. See infra note 222-33 and accompanying text.
       202. J.C. Abma et al., Fertility, Family Planning, and Women's Health: New Data from the 1995 National Survey of Family Growth, National Center for Health Statistics, at (last updated Mar. 3, 2003).
       203. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 997 (1999).
       204. See Id. at 961-62 (discussing the construction of social meaning).
       205. See supra notes 13-25, 59 and accompanying text; Lessig, supra note 203, at 997-98 (commenting that "an individual not only has no selective incentive to change a social meaning, but she also suffers a selective cost if she does act to change it"); Origin, supra note 13, at 385 (attempting to synthesize the esteem theory with Lessig's discussion of social meaning).
       206. The point of critical mass is much-discussed in the literature. Sunstein writes of norm cascades, Lessig of transformations in social meaning, and McAdams of tipping points. Sunstein, supra note 162, at 933; Lessig, supra note 203, at 992; Origin, supra note 13, at 368. See generally MALCOLM GLADWELL, THE TIPPING POINT (2000) (discussing "[i]deas and products and messages that spread just like viruses do").
       207. See generally Dan M. Kahan, Gentle Nudges v. Hard Shoves: Solving the Sticky Norms Problem, 67 U. CHI. L. REV. 607 (2000).
       208. Id. at 626.
       209. Id. at 609.
       210. J. Steven Svoboda et al., Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum, 17 J. CONTEMP. HEALTH L. & POL'Y 61, 132 (2000) (recognizing that at present their argument may fall on deaf ears, because "[c]ourt decisions are in part influenced by the culture in which they occur"); Ross Povenmire, Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue >From Their Infant Children: The Practice of Circumcision in the United States, 7 AM. U. J. GENDER SOC. POL'Y & L. 87 (1999).
       211. Abbie J. Chessler, Justifying the Unjustifiable: Rite v. Wrong, 45 BUFF. L. REV. 555 (1997).
       212. William E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional Issues, 23 J. FAM. L. 337 (1984).
       213. Those who have written on the equal protection issue assume that legal policy and decisionmakers would rather outlaw male circumcision than permit female circumcision. See, e.g., Shea Lita Bond, Comment, State Laws Criminalizing Female Circumcision: A Violation of the Equal Protection Clause of the Fourteenth Amendment?, 32 J. MARSHALL L. REV. 353 (1999). But given the strength of the male circumcision norm, this is a dubious assumption. It seems more likely that if a legislature were forced to choose, it would repeal the laws banning female circumcision and assume that the practice could be persecuted under child abuse laws. If a prosecutor tried to pursue male circumcision under these same laws, however, the norm favoring male circumcision would probably prevent her from obtaining a conviction. For a careful discussion of the Equal Protection issue, see Dena S. Davis, Male and Female Genital Alteration: A Collision Course with the Law?, 11 HEALTH MATRIX 487 (2001) (arguing that given the disparate treatment of males and females, the state must take control of male circumcision and regulate how it is performed).
       214. Doc. A032040 (Cal. App. 1987) (on file with author). Occasionally there are press reports about other cases challenging male circumcision, but these have all settled before generating any court opinions. See, e.g., C. Shoemaker, Baby M. Lawyer Joins Case on Circumcision, COURIER NEWS, Nov. 4, 2000, at D1.
       215. Id. at 3.
       216. Id. at 4.
       217. 115 F.3d 580 (8th Cir. 1997) .
       218. Id. at 580.
       219. Id. at 581. Again, it is not entirely clear what relief Fishbeck thought she would obtain. Before a court can extend the coverage of a statute so that it comports with the Equal Protection Clause, the court must be convinced that the legislature would have expanded the legislation rather than strike the legislation in its entirety. See Heckler v. Mathews, 476 U.S. 728, 739 (1984) (citing Calfano v. Westcott, 433 U.S. 76, 91, (Powell, J., concurring in part, dissenting in part)). As previously discussed, see supra note 213, it is not at all clear that a legislature would prefer expansion to repeal. The most Fishbeck could have realistically expected is that the Eighth Circuit would have struck down the law and counseled the North Dakota legislature about reconsideration and repassage. See Guido Calabresi, The Supreme Court, 1990 Term - Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 103-109 (outlining a simple repassage requirement).
       220. See Kalina v. General Hospital of Syracuse, 220 N.Y.S.2d 733, 735 (N.Y. Sup. Ct. 1961), aff'd 235 N.Y.S.2d 808 (N.Y. App. Div. 1962), aff'd 195 N.E.2d 309 (N.Y. 1963) (holding that a hospital was not liable for circumcising a child after the parents informed it that they wanted a ritual circumcision performed outside the hospital); see also Banks v. Wright, 721 So. 2d 1063 (La. Ct. App. 1998) (finding that an unauthorized circumcision, performed on an adult patient during bypass surgery, did not constitute battery).
       221. Miller, supra note 51, at 506.
       222. Douglas Gairdner, The Fate of the Foreskin: A Study of Circumcision, 2 BRIT. MED. J. 1433, 1435 (1949).
       223. Canadian Paediatric Society, supra note 78, at 770.
       224. All of the statistics on current Canadian rates are available at Because the statistics are compiled by the Circumcision Information Resource Center, which is opposed to routine circumcision, I contacted the Ministry of Health for each province and territory to verify the accuracy of the reported information. What appears on the website is consistent with what my own research revealed. My email communications occurred in April and May 2002 and are on file.
       225. Gollaher, supra note 50, at 119.
       226. Circumcision currently is not covered by Medicaid in Arizona, California, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Oregon and Washington. Adam Liptak, Opponents of Circumcision Use the Legal System and Legislatures to Combat It, N.Y. Times, Jan. 23, 2003, at A14.
       227. The rate in Manitoba is 25.7%, while the rate in the Northwest Territories is 5.9%, see supra note 224.
       228. See supra notes 170-187 and accompanying text.
       229. See Scott, supra note 66, at 1927 (noting the difficulty of determining whether the law precedes or merely follows the creation of the norm).
       230. Quebec, for example, had a circumcision rate of 31.2% in 1971. When insurance coverage was discontinued in 1987, the province had a rate of 5.3%. In the five years following a 1975 statement by the Canadian Paedatric Society, rates in Quebec dropped from 25.8% to 7.9%. See supra note 224.
       231. In Saskatchewan, for instance, coverage for routine circumcision was discontinued in 1996, the most recent year that the Canadian Paedatric Society comprehensively evaluated the procedure and recommended against it. In the two years following that recommendation and delisting, Saskatchewan's circumcision rates decreased 7.2%, from 37.2% to 30%. Today the rate is 27.6%. As another example, routine circumcision was delisted in Nova Scotia in 1997. In the following year, the rate decreased by 8.6%. But the effect of delisting in Nova Scotia is particularly difficult to evaluate, since prior to discontinuance the rate was only 11.1%. Therefore circumcision had already fallen out of public favor in Nova Scotia, even prior to delisting and the 1996 statement by the Canadian Paedatric Society. See supra note 224.
       232. Ontario is another province that may have experienced a decrease in rates attributable to delisting, but the unavailability of data for certain years in the 1990s makes it difficult to quantify the exact association. One study reports in the first month after delisting showed no change in circumcision rates, but that says little about what happened over time. Ruth E. Walton et al., Neonatal Male Circumcision After Delisting in Ontario: Survey of New Parents, 43 CANADIAN FAM. PHYSICIAN 1241 (1997).
       233. See Linda Lindeke et al., Neonatal Circumcision: A Social and Medical Dilemma, MATERNAL-CHILD NURSING J., Spring 1986, at 31, 37 (commenting "if health insurance coverage for routine circumcision were terminated . . . parents would then be faced with a financial disincentive, and would more likely be forced to make a conscious decision about circumcision which takes into account the lack of any medical indication for this procedure").
       234. Janet B. Mitchell et al., Impact of Oregon's Priority List on Medicaid Beneficiaries, 57 MED. CARE RES. & R. 216, 231 (2000). Oregon has a Medicaid system that is different from that of other states. Instead of having a static list of insured procedures, Oregon has a priority list, where procedures are ranked hierarchically from most to least medically necessary. The cut-off line for covered services is established every two years based on the available budgetary resources. Id. at 218. Routine circumcision consistently has been beneath the cut-off line, with the average cost of a circumcision at approximately $250. Id. at 231. But see Robert Adler et al., Circumcision: We Have Heard From the Experts; Now Let's Hear From the Parents, 107 PEDIATRICS e20, § 26 (Feb. 2001), at http:// (2001) (reporting that some parents in California [where circumcision is not covered by Medicaid] wanted their sons circumcised but opted not to when they learned their insurance benefits would not cover the procedure).
       235. See, e.g., Wardrip v. Hart, 28 F. Supp. 2d 1213 (D. Kan. 1998); Diocese of Winona v. Interstate Fire & Cas. Co. 841 F. Supp. 894 (D. Minn. 1992); Home Ins. Co. v. American Home Prod. Corp., 550 N.E.2d 930 (N.Y. 1990); Dayton Hudson Corp. v. American Mut. Liability Ins. Co., 621 P.2d 1155 (Okla. 1980).
       236. See, e.g., Waller v. Truck Ins. Exch., Inc., 900 P.2d 619 (Cal. 1995); Am. & Foreign Ins. Co. v. Colonial Mortgage Co., 936 F.2d 1162 (11th Cir. 1991); 2000 Cal. Legis. Serv. § 1668 (West).
       237. 15 U.S.C §§ 1011-1015 (2003).
       238. 15 U.S.C. § 1011; see U.S. Dept. of Treasury v. Fabe, 508 U.S. 491, 499-500 (1993) (discussing legislative history of the Act); Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429 (1946) (same).
       239. The Act provides that if Congress enacts a law that specifically relates to the business of insurance (as opposed to indirectly affecting the business of insurance), the federal law will control. 15 U.S.C. § 1012(b); see Humana Inc. v. Forsyth, 525 U.S. 299, 306-307 (1999) (discussing the scope of the Act).
       240. See supra notes 73 and accompanying text.
       241. COUCH ON INSURANCE 3d § 10.1 (Lee R. Russ & Thomas F. Segalla, eds. 1997). A company is self-funded when, instead of purchasing traditional coverage for its employees, it does the same sort of underwriting procedure that insurance companies do, such as estimating potential losses and creating sufficient reserves. Id.
       242. Christina Park, Prevalence of Employer Self-Insured Benefits: National and State Variation, 57 MED. CARE RES. & REV. 340, 351 (2000).
       243. Amber Craig et al., Tax Dollar Funding of Medically Unnecessary Circumcisions Through Medicaid (2001), available at
       244. Email to author from Dave McDonald, Senior Health Analyst for the Northwest Territories, May 8, 2002 (on file with author).
       245. Randal C. Picker, Simple Games in a Complex World: A Generative Approach to the Adoption of Norms, 64 U. CHI. L. REV. 1225, 1284 (1997) (citing Gerry Mackie, Ending Footbinding and Infibulation: A Convention Account, 61 Am. Sociological Rev. 999, 1015 (1996)).
       246. See Stephanie Simon, Medicaid Ax is Falling as Recession Saps States, L.A. TIMES, Mar. 5, 2002, at A1 (reporting how state legislatures are moving people off Medicaid and trimming the benefits of those who remain).
       247. Christopher Swope, Budget Cuts Touch A Nerve, GOVERNING MAG., Jan. 2002, at 14.
       248. Id.
       249. Craig et al., supra note 243.
       250. 1999 Task Force on Circumcision, supra note 74, at 688.
       251. Id.
       252. Howard J. Stang & Leonard W. Snellman, Circumcision Practices in the United States, 101 PEDIATRICS e5 (1998), available at See also Nancy Wellington & Michael J. Rieder, Attitudes and Practices Regarding Analgesia for Newborn Circumcision, 92 PEDIATRICS 541, 542 (1993) (reporting that of the 74 physicians surveyed, only 24% used any form of analgesia and only 4% used the dorsal penile nerve block); Patricia Fontaine, Local Anesthesia for Neonatal Circumcision: Are Family Residents Likely to Use It?, 22 FAM. MED. 371, 373 (1990) (reporting that nearly one-half had never used anesthesia, and 38% used anesthesia in less than half of the circumcisions they performed); W.L. Toffler et al., Dorsal Penile Nerve Block During Newborn Circumcision: Underutilization of a Proven Technique, 3 J. AM. BOARD FAM PRAC., 171, 174 (1990) (reporting that only 36% of physicians surveyed in Oregon were using pain control).
       253. Lander et al., supra note 83, at 2162.
       254. 1999 Task Force on Circumcision, supra note 74, at 689; see Cynthia Howard et al., Acetaminophen Analgesia in Neonatal Circumcision: The Effect on Pain, 93 PEDIATRICS 641, 641 (1994) (reporting that "[a]cetaminophen was not found to ameliorate either the intraoperative or the immediate postoperative pain of circumcision" ).
       255. See Ronald S. Litman, Anesthesia and Analgesia for Newborn Circumcision, 56 OBSTETRICAL & GYNECOLOGICAL SURV. 114, 114-15 (2001) (reviewing current practices and anesthesia techniques).
       256. See Lynne Gerson Maxwell & Myron Yaster, Analgesia for Neonatal Circumcision: No More Studies, Just Do It, 153 ARCHIVES PEDIATRIC & ADOLESCENT MED. 444, 444 (1999) (attributing the failure to use anesthetic to a lack of training, a lack of interest in performing circumcisions, and "an inability of physicians to change their practice based on published evidence").
       257. Stang & Snellman, supra note 252; see also Wellington & Rieder, supra note 252, at 542 (reporting that the most common reason for not using any anesthesia was lack of familiarity with the technique, followed by concern over adverse drug effects.).
       258. 1999 Task Force on Circumcision, supra note 74, at 688-89; Leonard Snellman & Howard J. Stang, Prospective Evaluation of Complications of Dorsal Nerve Block for Neonatal Circumcision, 95 PEDIATRICS 705, 705-06 (1995). Hematoma has been the other complication, but these have not been problematic. There are two reports of serious complications, one resulting from faulty technique and the other when the wrong solution was injected into the penis. 1999 Task Force, supra note 74, at 688.
       259. Stang & Snellman, supra note 252. Other frequently-cited reasons included "infants do not remember the pain" (mentioned by 23% of physicians surveyed) and "adds too much time to the procedure" (mentioned by 9%).
       260. Fontaine, supra note 252, at 373.
       261. See, e.g., Catherine S. Magid, Pain, Suffering, and Meaning, 283 JAMA 114 (2000); Michael A. Ashburn & Peter Staats, Management of Chronic Pain, 353 LANCET 1865 (1999); 264 J.L. MED. & ETHICS 265-352 (1998) (symposium issue on legal and regulatory issues in pain management).
       262. Geoffrey Miller predicts that eventually tort law will require that all circumcisions be performed with anesthesia, and that hospitals will be liable if they do not include information about the availability of anesthesia in the consent forms they distribute to the infants' parents or guardians. Miller, supra note 51, at 585.
       263. Lander et al., supra note 83, at 2157; 1999 Task Force on Circumcision, supra note 74, at 688-89.
       264. Although discouraging doctors from performing circumcisions would not be the purpose of this legislation, it might be a consequence that would further dampen the pro-circumcision norm. If circumcisions became harder to obtain, the rates might decrease and thereby dilute the esteem-based sanctions.
       265. Attorneys for the Rights of the Child, Swedish Parliament Scrutinizes Male Circumcision as a Violation of Human Rights, available at
       266. Sunstein, supra note 162, at 953; see also e.g., Cooter, supra note 11, at 586 (analyzing "how law can tip aggregate behavior and change individual preferences by expressing values"); Cass Sunstein, On the Expressive Function of the Law, 144 PA. L. REV. 2021, 2031 (1996).
       267. Sunstein, supra note 266, at 2027.
       268. See, e.g., ROMBERG, supra note 60, at 385-86.
       269. See supra note 83.
       270. Anna Taddio, Pain Management for Neonatal Circumcision, 3 PEDIATRIC DRUGS 101, 106 (2001).
       271. See Zakhartchenko v. Weinberger, 605 N.Y.S.2d 205, 206 (N.Y. Sup. Ct. 1993) ("A religious ritual, such as a circumcision, anciently practiced and reasonably conducted, is not subject to governmental restrictions so long as it is consistent with the peace or safety of this state.").
       272. 494 U.S. 872 (1990).
       273. Id. at 878.
       274. Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2001) (holding that laws prohibiting marijuana use do not violate Free Exercise Clause); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991) (holding that law prohibiting peyote possession is constitutional). In Smith, the Supreme Court itself held that the Free Exercise Clause permits states to prohibit use of sacramental peyote. 479 U.S. at 890.
       275. ISKON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 959 (D.C. Cir. 1995) (holding Free Exercise Clause does not protect a religious group's sale of beads and audiotapes); Krafchow v. Town of Woodstock, 62 F. Supp. 2d 698 (N.D.N.Y. 1999) (vending ban is a neutral law of general applicability); Al-Amin v. City of New York, 979 F. Supp. 168 (E.D.N.Y. 1997) (same).
       276. McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000) (finding that requiring a social security number to vote does not violate Free Exercise Clause); Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) (finding that requiring a social security number to obtain a driver's license does not violate Free Exercise Clause).
       277. See, e.g., Miller v. Drennon, 966 F.2d 1443 (4th Cir. 1992) (finding that scheduling shifts for paramedics did not violate the Free Exercise Clause); Christ Coll. v. Bd. of Supervisors, No. 90-2406, 1991 U.S. App. LEXIS 21680 (4th Cir. 1991) (holding that a zoning law prohibiting construction of a schoolhouse does not offend the Free Exercise Clause); Rector v. City of New York, 914 F.2d 348 (2d Cir. 1990) (finding that landmark preservation law does not violate Free Exercise Clause); Intercommunity Ctr. Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990) (holding that immigration laws can be constitutionally applied to organization whose members' beliefs compelled them to provide employment without regard to residency, nationality or immigrant status); Kickapoo Traditional Tribe of Tex. v. Chacon, 46 F. Supp. 2d 644 (W.D. Tex. 1999) (finding that statute authorizing disinterment and autopsy did not violate Free Exercise Clause); United States v. Phila. Yearly Meeting of the Religious Soc'y of Friends, 753 F. Supp. 1300 (E.D. Pa 1990) (finding that requiring Quakers to pay the military portion of their taxes does not offend the Free Exercise Clause).
       278. See supra notes 252-55 and accompanying text.
       279. Compare Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down law which treated ritual slaughter of animals differently than other sorts of slaughter).
       280. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school attendance laws as applied to the Amish); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (invalidating a tax on solicitation as it applied to the dissemination of religious ideas); Cantwell v. Connecticut, 310 U.S. 296 (1940) (invalidating a licensing system in which the administrator had discretion to deny a license to causes he deemed non-religious). Justice Scalia cites these cases in Smith, 498 U.S. at 881.
       281. 494 U.S. at 881-82 .
       282. Id. at 882.
       283. Watchtower Bible Tract Soc'y, Inc. v. Vill. of Stratton, 240 F.3d 553, 561 (6th Cir. 2001), overruled by 536 U.S. 150 (2002); Kissinger v. Board of Trustees, 5 F.3d 177 (6th Cir. 1993). But see Vandiver v. Hardin County Board of Educ., 925 F.2d 927, 933 (6th Cir. 1991) ("The Smith decision implies without stating that those hybrid claims which raise a free exercise challenge coupled with other constitutional concerns remain subject to strict scrutiny."). See also Knight v. Connecticut Dep't of Public Health, 275 F.3d 156, 167 (2d Cir. 2001) ("In this Circuit, we have not yet addressed generally whether hybrid claims . . . [are viable] and we need not do so here . . . ."); Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1150 (9th Cir. 2000) (en banc) (Kleinfeld, J., dissenting) (commenting, in case where claim is dismissed for lack of ripeness, "the contours of Employment Division v. Smith are as yet undeveloped. Some would read the 'hybrid' rights language in Smith so narrowly as to give it little practical applicability, and treat any facially neutral law as constitutionally permissible, despite a religious obligation of some to violate it. Others . . . would read it more broadly.").
       284. 508 U.S. at 567 (Souter, J., concurring).
       285. 240 F.3d 553.
       286. Id. at 561.
       287. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 164 (2002).
       288. Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995).
       289. Jensen v. Reeves, 3 Fed. Appx. 905 (10th Cir. 2001).
       290. Johnson v. County of San Diego, 114 F.3d 874 (9th Cir. 1997).
       291. See e.g., Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927 (6th Cir. 1991) (mandatory tests for home-schooled children); Leebaert v. Harrington, 193 F. Supp. 2d 491 (D. Conn. 2002) (health education classes); Littlefield v. Forney Indep. Sch. Dis., 108 F. Supp. 2d 681, aff'd., 268 F.3d 275 (5th Cir. 2001) (school uniforms).
       292. 406 U.S. 205, 209-10 (discussing the impact that compulsory schooling could have on the survival of Amish communities); see, e.g., Brown, 68 F.3d at 539 ("Plaintiffs' allegation of interference with family relations does not state an independently protected claim and a one time attendance does not threaten their way of life."); Littlefield, 193 F. Supp. 2d at 685 ("Free exercise parental rights claim does not command strict scrutiny if the claim presented is qualitatively different than the claim in Yoder.'').
       293. 268 U.S. 510 (1925).
       294. Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1150 (9th Cir. 2000) (Kleinfeld, J., dissenting).
       295. Id.
       296. 1 ENCYCLOPEDIA JUDAICA, Circumcision, at 567, 568 (1998).
       297. J.M. Glass, Religious Circumcision: A Jewish View, 83 BRIT. J. UROLOGY INT'L 17, 18 (1999).
       298. See, e.g., J. Goodman, Jewish Circumcision: An Alternative Perspective, 83 BRIT. J. UROLOGY INT'L 22 (1999) (arguing that circumcision is not essential to the Jewish identity); Davis, supra note 213, at 509-12 (discussing Jewish rituals that some practice as alternatives to circumcision).
       299. S.A.H. Rizvi, Religious Circumcision: A Muslim View, 83 BRIT. J. UROLOGY INT'L 13, 13 (1999).
       300. Many mohels argue that Jewish circumcision is less painful because it is done more quickly, by people with more skill. However, with the exception of one study showing that the clamp used by some mohels may be less painful than the clamp used by doctors, this claim has never been subjected to empirical testing. And there is no evidence that circumcision by a mohel is anywhere close to pain-free. W.F. Gee & J.S. Ansel, Neonatal Circumcision: A Comparison of the Gomco and Mogen Methods, 79 PEDIATRICS 649 (1987).
       301. Yoder, 406 U.S. at 230; Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("The right to practice religion freely does not include liberty to expose . . . the child . . . to ill health.").
       302. Smith, 494 U.S. at 889. Smith also suggests that if a legislature chooses to allow a religious exemption, there is no violation of the Establishment Clause. See Id. at 890 ("It may be fairly said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."). Indeed, the law is littered with broadly applicable statutes that exempt individuals whose compliance would conflict with a religious obligation. See generally James G. Dwyer, The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C. L. REV. 1321 (1996) (discussing religious exemptions from compulsory vaccination and schooling laws); Jennifer L. Rosato, Putting Square Pegs in a Round Hole: Procedural Due Process and the Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents, 29 U.S.F. L. Rev. 43 (1994); David S. Rosettenstein, Trans-racial Adoption and the Statutory Preference Schemes: Before the "Best Interests" and After the "Melting Pot", 68 ST. JOHN'S L. REV. 137, 147 (1994) (discussing religious matching provisions that require adoption agencies to place children with adoptive or foster care parents of the religion that the biological parents request).
       303. Glass, supra note 297, at 19.
       304. ENCYCLOPEDIA JUDAICA, supra note 296, at 573.
       305. Id.
       306. Hebrew Union College - Jewish Institute of Religion, 200th Reform Mohel Certified, Jewish Ritual Practitioners Celebrate Milestone (informational materials), available at (last updated Sept. 15, 1998).
       307. See supra notes 207-09 and accompanying text.
       308. Glass, supra note 297, at 17; Goodman, supra note 298, at 25.
       309. Goodman, supra note 298, at 25.
       310. See, e.g., Jews in uproar about Swedish circumcision law, AGENCE FRANCE PRESSE, June 8, 2001, at 7; Douglas Davis, Protest over Swedish Law to outlaw circumcision, JERUSALEM POST, June 19, 2000, at 6.
       311. Attorneys for Rights of the Child, supra note 265.
       312. Id.
       313. See, e.g., DEL. LAWS tit. 24, § 1703(e)(4) (2003) (providing that nothing in the chapter requiring medical licensing prohibits ritual circumcision); MONT. CODE ANN. § 37-3-103(1)(h) (2002) (providing that no medical license is necessary to perform ritual circumcision); MINN. STAT. § 147.09(10) (2002) (same); WIS. STAT. ANN. § 448.03(2)(g) (West 2002) (same).
       314. Zakhartchenko v. Weinberger, 605 N.Y.S.2d 205 (N.Y. App. Div. 1993).
       315. ENCYCLOPEDIA JUDAICA, supra note 296, at 573.
       316. See, e.g., Lessig, supra note 203, at 973-76 (discussing importance of education in constructing social meaning); Picker, supra note 245, at 1227 (noting that affecting the amount of information available is one way for the government to implement policy).
       317. A.J. Herrera et al., Routine Neonatal Circumcision, 130 AM. J. DISEASES CHILD 1069 (1979); D.A. Grimes, Routine Circumcision of the Newborn Infant: A Reappraisal, 130 AM. J. OBSTETRICS & GYNECOLOGY 125, 128 (1978). In Adler et al., supra note 234, §§ 25-29, researchers investigated parental attitudes about circumcision and found a significant proportion did not feel they had received adequate information. Slightly more than 15.4% of study participants were unhappy about their decision, and more than 40% did not feel they had been provided enough information. Interestingly, 27% of parents who had chosen noncircumcision were unhappy, while only 14% of the parents who had chosen circumcision were unhappy. The researchers speculated that cognitive dissonance was at least partly responsible for the higher satisfaction rates among parents who had circumcised, because these individuals did not have the option of reversing their decision.
       318. See, e.g., Christensen-Szalanki et al., supra note 191, at 862 (reporting that "physicians were routinely informing mothers about only a small minority of the medical complications associated with circumcision and none of the risks associated with not being circumcised"); Stein et al., supra note 2, at 51 (reporting that less than half of the physicians who counseled parents included information in each of four relevant areas: indication, contraindications, complications and cost).
       319. See, e.g., COLO. REV. STAT. § 12-37-105 (2002); FLA. STAT. ANN. § 467.015 (West 2001); MINN. STAT. ANN. § 147D.07 (West 1998).
       320. See, e.g., CONN. GEN. STAT. ANN. § 19a-593 (West 1997); DEL. CODE ANN. tit. 16, § 1202 (2001); VA. CODE ANN. § 54.1-2403.01 (Michie 2001).
       321. 44 N.Y. PUB. HEALTH LAW § 2503 (McKinney 2002).
       322. N.J. STAT. ANN. § 26:2-176 (West 2002).
       323. See, e.g., Robert Gatter, Informed Consent Law and the Forgotten Duty of Physician Inquiry, 31 LOY. U. CHI. L.J. 557 (2000); A. Goldworth, Informed Consent Revisited, 214 5 CAMBRIDGE Q. HEALTHCARE ETHICS 214, 218 (1996); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985); Jay Katz, Informed Consent—A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977).
       324. See supra note 189 and accompanying text.
       325. See, e.g., Binner et al., supra note 170 at 458 ("We conclude from our findings that the use of a simple educational brochure about the medical indications and possible risks of neonatal circumcision in the immediate postnatal period has no impact on the decision-making process about neonatal circumcision."); Alfredo J. Herrera et al., Parental Information and Circumcision in Highly Motivated Couples with Higher Education, 71 Pediatrics 233, 234 (reporting no significant differences in circumcision rates between women who received oral counseling in Lamaze classes and control group); Maisels, supra note 170, at 454 (reporting no significant differences in decision-making between mothers in the third trimester who received two and one-half pages of written information and control group).
       326. Robert W. Enzenauer et al., Decreased Circumcision Rates With Videotaped Counseling, 79 SO. MED. J. 717, 718 (1986) (reporting a drop in a hospital's circumcision rates from 90% to 70%).
       327. See, e.g., Binner et al., supra note 170, at 460; Maisels, supra note 170, at 455.
       328. See, e.g., Tiemstra, supra note 159, at 17 (reporting that 44% of parents reported making the decison before the mother became pregnant); Bean & Egelhoff, supra note 190, at 884-85 (reporting that 56% of women sampled had decided before becoming pregnant that they would have their sons circumcised, while only 7% of mothers made the decision after delivery).
       329. Sunstein, supra note 162, at 929.
       330. See Emily Benedek, UnKindest Cut? How Circumcision Came Full Circle, N.Y. TIMES, May 19, 1996, at D3. This point has not been lost on anti-circumcision lobbying groups, which release lists of celebrities who are not circumcised. See Uncut Celebrities, available at, http:// It is not at all clear how the groups obtain or verify this information, although it is fun to speculate.
       331. Benedek, supra note 330, at D3.

(File revised 7 January 2006)