Thursday, October 27, 2016
Call for Authors for Volume of Rewritten Reproductive Justice Opinions
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Reproductive Justice (working title). This edited volume, proposed to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press (that book’s cases and authors are available here). Subsequent volumes in the series will focus on different courts or different subject matters. This call is for contributions to a volume of reproductive justice (RJ) decisions rewritten from a feminist perspective.
Reproductive Justice volume editor Kimberly Mutcherson seeks prospective authors for 15 rewritten RJ-related opinions covering a range of topics. With the help of an advisory committee, the editor has already selected 15 cases to be rewritten. Potential authors are welcome to suggest other cases, but given certain constraints (including a preference for avoiding cases that have already or soon will be rewritten for other volumes in this series), it is unlikely that the list of cases will change. The current list of cases and a list of cases that the editor and advisory committee considered, but that (sadly) did not make the final cut, can be found here. Cases may come from any jurisdiction and any court, including non-U.S. jurisdictions. As is necessary in a text focused on RJ, the volume editor conceives of feminism broadly as multiple movements concerned with justice and equality. Further, as befits an RJ focused volume, authors should be prepared to rewrite cases in a way that brings into focus intersectionality, gender, race, class, disability, gender identity, age, sexual orientation, national origin, histories of incarceration, immigration status, and beyond.
As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case. Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000 word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000 word maximum for the commentary). Commentators and opinions writers who wish to work together are welcome to indicate that in the application.
The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship. There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); the Women’s Court of Canada; ongoing projects in Ireland, New Zealand, and a pan-European project; and other U.S.-based projects currently under way.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten RJ cases should complete the submission form found here.
Applications are due by November 21, 2016 at 5:00 p.m. (EST). The editor expects to notify accepted authors and commentators no later than December 16, 2016. First drafts of rewritten opinions will be due on June 2, 2017. First drafts of commentaries will be due on August 4, 2017.
[W]hite and male victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
The debate over this use of demographic averages pits two tenets of the American justice system – fairness and accuracy – against each other.
Martha Chamallas, a law professor at Ohio State, called the practice reminiscent of “something Ruth Bader Ginsburg and civil rights advocates [fought] in the 1960s.” Jennifer Wriggins, a law professor at the University of Maine, said it “reinforces past discrimination and pushes it out into the future and endorses it.”
Defenders say it is the most accurate way to make calculations about the losses people incur when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” said James Woods, a forensic economist in Houston.
Wednesday, October 26, 2016
Ronald Rotunda, The ABA's New Rules Mandating "Diverse" CLE Panels. He speaks out against the new rule, arguing that it is poorly drafted and impractical to implement, among other things.
Here's what the new rules provide:
The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. The ABA implementation date for the new Diversity & Inclusion CLE Policy shall be March 1, 2017.
The organizing panel at the recent U.S. Feminist Judgments/Constitutional Law Conference deliberately composed panels with something like this in mind. And it made all the difference both representatively and substantively. Seeing and hearing a diversity of people and ideas, opened up the debate from both panelists and audiences, and literally changed the discussion.
But the ABA Rule doesn't even go this far. Under the new rule, typical panels of four can still include three white men, with then one token diversity member competing from among many different groups. It retains, rather than subverts, the majority status. That it triggers such opposition shows only how much it is needed.
Subversive feminist action is alive and well these days in Iceland.
Tuesday, October 25, 2016
At last week's tremendous Feminist Judgments Conference, I had the pleasure of listening to many new works and feminist thinking in a wide variety of areas. Here is one to share today:
Wendy Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 NYU Rev. L & Social Change 581 (2016)
“Slut-shaming” is the act of criticizing a woman for her real or perceived sexual promiscuity. Until now, much scholarship and journalism has focused on the slut-shaming of school-aged girls and young women. This article broadens the discussion about this harassing behavior by illuminating an overlooked area: slut-shaming in the American workplace. This article focuses on how courts have dealt with hostile work environment cases based in whole or in part on rumors about adult women’s alleged sexual promiscuity. In particular, courts have struggled with how to interpret Title VII’s seemingly simple requirement that conduct occur “because of” sex. Courts have often failed to recognize the gendered aspect of sexual rumors about women. Due to the continued existence of the sexual double standard, rumors about women who engage in sex acts with men penalize women for violating gender norms.
Tuesday, October 18, 2016
The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: gender equality.
Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.
The US Feminist Judgments Conference is this week here at Akron Law.
The background materials for the conference include articles and essays exploring the foundational ideas of the conference, including what feminism means, what feminist judgments are and why we might need them, and the difference feminist decision making might make. To review the materials, go here: US Feminist Judgments CLE Materials
Table of Contents:
Kathyrn Stanchi, Linda Berger, & Bridget Crawford, Introduction to the Book: Feminist Judgments (Cambridge 2016)
Sally Kenney, Thinking About Gender and Judging (2008)
Sally Kenney, Wise Latinas, Strategic Minnesotans, and the Feminist Standpoint: The Backlash Against Women Judges, Thomas Jefferson L.Review (2013)
Heather Roberts & Laura Sweeney, Why (Re)Write Judgments? (2014)
Erika Rackley, What a Difference Difference Makes (2008)
Rosemary Hunter, Can Feminist Judges Make a Difference? (2008)
Rosemary Hunter, Feminist Judgments as Teaching Resources, Oñati Socio-legal Series (2012)
Justice Sonia Sotomayor, Lecture: A Latina Judge’s Voice (2009)
Justice Sotomayor, dissenting, Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2015)
Gonzales v. Carhart, 550 U.S. 124 (2007)
Justice Ginsburg, dissenting in Gonzales
Beverley Baines, Why Not Nine? (2016)
Tracy Thomas & TJ Boisseau, Law, History & Feminism, Introduction to Feminist Legal History (NYU Press 2012)
Monday, October 17, 2016
It's finally time for the US Feminist Judgments Conference this week, Thursday Oct. 20th and Friday Oct. 21st at Akron Law. I will be blogging and tweeting live from the conference here, and @ProfTracyThomas and @conlawcenter. Follow hashtag #FemJConf
The full conference program is here: Rewriting the Law, Writing the Future Program
Featured speakers include: Linda Berger, Bridget Crawford, Kathryn Stanchi, Berta Hernández-Truyol, Jamie Abrams, Shoshanna Ehrlich, Yvonne Lindgren, Margaret Johnson, Meghan Boone, Teri McMurtry-Chubb, Valorie Vojdik, Martha Chamallas, Danshera Cords, Jonathan Crock, Phyllis Goldfarb, Wilson Huhn, Shaakirrah Sanders, Hannah Brenner, Renee Knake, Meg Penrose, Anibal Rosario Lebron, Lisa Avalos, Nancy Cantalupo, Joanne Sweeny, Corey Yung, Karen Gross, Wendy Hess, Kimberly Holst, Susan Salmon, Elizabeth Kukura, Kalyani Robbins, Jessica Feinberg, Nicole Porter, Natalie Nanasi, Kim Holst, Emily Meyer, Navid Khazanei, Deborah Saybolt, Tara Willke, Laura Rosenbury, and Tracy Thomas.
A special panel of judges' will include Eve Belfance, City Attorney Akron, former Judge; Ohio Court of Appeals Karen Nelson Moore, Judge, U.S. Court of Appeals for the Sixth Circuit; Mary Margaret Rowlands, Judge, Summit County Court of Common Pleas; Elinore Marsh Stormer, Judge, Ohio Probate Court
The keynote speaker will be political scientist Sally Kenney speaking on "The Difference Gender Makes to Judging."
Friday, October 14, 2016
Carolyn Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn State L.Rev. 337 (2015)
Abstract:Scholars and battered women’s advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, and gay men; abuse is as common in same-sex relationships as in their heterosexual counterparts. Failure to take such factors into account perpetuates a one-dimensional image of the batterer as a controlling, heterosexual, male villain — a stereotype that impedes efforts to coordinate effective responses to domestic violence and entrenches gendered hierarchies that affect men, as well as women.
This Article begins by placing the feminist paradigm of the batterer in historical context. Although feminists transformed the dialogue about domestic violence by locating it in patriarchy and gender inequality, the offender stereotype that the Battered Women’s Movement used to spur a vigorous state response and that still drives domestic violence policy shares some limitations with earlier paradigms of the wife beater — the hot-headed sinner in Puritan New England or the drunken brute of Temperance discourse. Like these earlier stereotypes, the image of the coercive, controlling male batterer is too one-dimensional and too closely tied to other sociopolitical agendas to yield a practical approach to prevent domestic violence and change the behavior of its perpetrators.
Drawing on historical, sociological, and psychological materials, as well as insights from masculinities studies, this Article suggests limits to our understanding of those who commit intimate-partner abuse and to the laws and policies — especially court-mandated batterer intervention programs (“BIPs”) — currently in place. It presents an original analysis of 46 sets of state and local standards for BIPs to show that, although these standards are starting to be more inclusive, they still tend to impose a “one-size-fits-all” formula designed for heterosexual male offenders. The “one-size-fits-all” approach ignores crucial differences — not only in intimate-partner violence committed by women, as opposed to men, and homosexuals, as opposed to heterosexuals — but also between heterosexual male offenders and the types of abuse they inflict. Recognizing these differences would facilitate the effective tailoring of BIPs to achieve long-term behavioral change in a variety of participants. The Article concludes by offering preliminary suggestions for transforming pro-feminist interventions to encourage accountability and rehabilitation and to reduce recidivism without stereotyping domestic violence offenders.
Andrea J. Nichols, Sex Trafficking in the United States (Columbia Press 2016)
Sex Trafficking in the United States is a unique exploration of the underlying dynamics of sex trafficking. This comprehensive volume examines the common risk factors for those who become victims, and the barriers they face when they try to leave. It also looks at how and why sex traffickers enter the industry. A chapter on buyers presents what we know about their motivations, the prevalence of bought sex, and criminal justice policies that target them. Sex Trafficking in the United States describes how the justice system, activists, and individuals can engage in advocating for victims of sex trafficking. It also offers recommendations for practice and policy and suggestions for cultural change.
Andrea J. Nichols approaches sex-trafficking-related theories, research, policies, and practice from neoliberal, abolitionist, feminist, criminological, and sociological perspectives. She confronts competing views of the relationship between pornography, prostitution, and sex trafficking, as well as the contribution of weak social institutions and safety nets to the spread of sex trafficking. She also explores the link between identity-based oppression, societal marginalization, and the risk of victimization. She clearly accounts for the role of race, ethnicity, immigrant status, LGBTQ identities, age, sex, and intellectual disability in heightening the risk of trafficking and how social services and the criminal justice and healthcare systems can best respond. This textbook is essential for understanding the mechanics of a pervasive industry and curbing its spread among at-risk populations.
Please visit our supplemental materials page (https://cup.columbia.edu/extras/supplement/sex-trafficking-united-states) to find teaching aids, including PowerPoints, access to a test bank, and a sample syllabus
Thursday, October 13, 2016
Here's the full schedule: 2017 AALS Annual Meeting Schedule at a Glance
Not a big year for feminist inquiry per se. Panels of interest to law & gender include:
 Joint Program of Disability Law, Insurance Law, Law, Medicine and Health Care and Minority Groups, Co-Sponsored by Poverty Law and Women in Legal Education – Why Law Matters: Health and Social Justice
 Clinical Legal Education – Addressing Implicit Bias in Teaching
 Women In Legal Education, CoSponsored by Minority Groups, Balance in Legal Education – Cultivating Empathy
 Women in Legal Education Luncheon. Ticket price is $85 per person.
 Employment Discrimination Law, Co-Sponsored by Women in Legal Education – Responding to Fisher v. Texas
 Women in Legal Education – Speed Mentoring
 Education Law – Title IX and Transgender Student Rights: Looking Ahead
Anita Hill, Op ed, What We Can Still Learn from Sexual Harassment
What I learned in 1991 is no less true today and no less important for people to understand: responses to sexual harassment and other forms of sexual violence must start with a belief that women matter as much as the powerful men they encounter at work or at school, whether those men are bosses or professors, colleagues or fellow students.
We must understand the harm that sexual harassment and sexual violence causes. Missing from the conversation this weekend, which focused almost exclusively on the character of the offender, was concern about the victims of sexual violence....
A recent Equal Employment Opportunity Commission Task Force reported on the psychological, physical, occupational, and economic harm that victims of sexual harassment suffer. Since 1991, I’ve heard from thousands of women who have experienced harassing bosses and colleagues. Some overcome the situations, but none of them ever forget the pain of it. To understand why the way women are treated matters, we must view Donald Trump’s comments and the behavior he described from the point of view of a victim of sexual predation.
Trump’s language, which he and others have tried to minimize as “locker room banter,” is predatory and hostile. To excuse it as that or as youthful indiscretion or overzealous romantic interest normalizes male sexual violence. According to attorney Joe Sellers, a member of the EEOC Task Force, “Trump’s remarks reflect the quintessential mindset of a harasser: the view that he has certain privileges and power by virtue of his celebrity status and position.”
The Rethinking Gender Forums sponsored by the University of Akron Women's Studies program brings together colleagues from multiple disciplines to deepen the dialogue and understanding of gender issues.
RETHINKING GENDER FORUMS
Wednesday October 19, 2016
“Never Could Make Enough To Get Ahead: Southern Freedwomen's Work in Socio-historical Perspective”
Dr. Kathryn Feltey, Associate Professor, Department of Sociology
Wednesday November 16, 2016
“Going Back in Time: Whiteness, Maleness, and the Lure of Cinematic Nostalgia”
Dr. Kara Kvaran, Department of Women’s Studies
Wednesday February 15, 2017
“The Perils of Perfection: Why Girls Should Be Bold and Imperfect”
Dr. Robin Prichard, Associate Professor, School of Dance, Theatre, and Arts Administration
Wednesday March 22, 2017
“Poetry Lives! Two Akron Women Poets on Gender, the Body, and Surprise”
Dr. Mary Biddinger, Associate Professor, English Department, and Holly Brown, Author
Wednesday April 19, 2017
“College Students’ Caregiving Responsibilities and Its Impact on College Performance”
Dr. Pam Schulze, Professor and Director of the Center for Family Studies
Wednesday, October 12, 2016
Dov Fox, Reproductive Negligence, Columbia L. Rev. (forthcoming)
Abstract:A pharmacist fills a prescription for birth control pills with prenatal vitamins. A lab loses a cancer survivor’s eggs. A clinic exposes embryos to Mad Cow. A sperm bank uses a donor of a different race. A geneticist predicts a healthy fetus would be born with a terrible disease. These transgressions go unchecked within a reproductive profession that operates virtually free of regulation. Victims who sue find the legal system treats their suffering as more trifle than tragedy. Courts don’t deny that specialists are to blame for botching a vasectomy or misimplanting an embryo. But in the absence of property loss or physical injury, they decline to recognize disrupted family planning as a serious and distinct harm worthy of legal protection.
This Essay introduces a right to recover for reproductive wrongs that: (1) impose procreation on people who undertook efforts to avoid it; (2) deprive those who pursued pregnancy or parenthood of that opportunity; or (3) confound more particular reproductive goals for a child with certain traits. This cause of action would measure these three injuries as a function of (a) their practical consequences for plaintiffs; and (b) the probability that misconduct was responsible for having caused those injuries. Damages would accordingly be reduced in cases of defective birth control based on the role of user error; in cases of lost embryos, depending on the severity of preexisting infertility; and in cases of prenatal misdiagnosis, in proportion to uncertainties in genetic testing.
Kudos then, to Congress and President Obama for passing a law that will make changing tables mandatory in women’s and men’s restrooms in all federal buildings. Introduced in the House of Representatives last spring by Rep. David Cicilline, the bill was passed by a large margin in the house (389-34) and signed into law by the President on October 7. Named the Bathrooms Accessible in Every Situation (BABIES) Act, the bill “requires male and female restrooms in a public buildings to be equipped with baby changing facilities that the General Services Administration determines are physically safe, sanitary, and appropriate.” The legislation mandates that any necessary changes be made in the next two years and allows for some exceptions such as in cases where the cost of construction is unfeasible.
“Federal buildings are paid for by taxpayers and it's important to ensure that they are as open, as accessible, and as family-friendly as possible,” Rep. Cicilline wrote on Facebook. “This is how government should work to make commonsense reforms that make life easier for the people we serve.”
In recent years, there’s been a growing movement among dads fighting for changing tables in men’s rooms. Last year, Ashton Kutcher created a petition on Change.org asking for Target and Costco to put changing tables in all their stores and received 104,384 signatures. In 2014, the California State Assembly passed the “Potty Parity for Parents Act,” which would have required businesses installing changing tables in the future to make them available to both sexes. Unfortunately, Governor Jerry Brown vetoed this bill, as well as another one which would have required government buildings and other public places to make changing tables available to men, explaining that he thought implementing these changes would best be left to the private sector. Also, last year New York state Sen. Brad Hoylman introduced legislation, currently in committee, which would require new or recently renovated public buildings in New York to provide equal access to changing tables.
Tuesday, October 11, 2016
A much-cited 2012 study found scientists were more enthusiastic about identical applications for a lab manager position when a generic male name was at the top, versus a female one. The implications of such findings are troubling, but one possible, relatively easy solution is hiding candidates’ names during the screening process. Harder to solve are the problems posed in a new study suggesting that letters of recommendation disadvantage women scientists on the job hunt by virtue of how they discuss candidates they’re trying to help.
“Gender Differences in Recommendation Letters for Postdoctoral Fellowships in Geoscience,” published this week in Nature Geoscience, says women are only about half as likely as men to receive letters containing language that describes them as excellent, rather than just good. The study involved letters from about 500 U.S. and international institutions regarding candidates for a postdoctoral research fellowship in the geosciences at a top American university.
Interestingly, the gendered use of language was consistent across letter writers. So women, for example, weren't any more likely to describe female candidates with the kind of dynamic language that might push them into the “excellent” category than were men.
The ranks of private judges in the lucrative field of alternative dispute resolution are less diverse than the federal bench. Opening the door to more women and minorities would require a mix of awareness and advocacy on the part of in-house lawyers and private attorneys that to date is largely lacking.
American Lawyer, Where are the Women and Minorities in Global Dispute Resolution?
In the world of international arbitration, cases come in all shapes and sizes, from billion-dollar blowouts with big geopolitical consequences to minor dustups involving commercial disputes, regional backwaters or arcane treaties. But the cases tend to have one thing in common: those selected as judges are almost always men, predominately white and disproportionately from wealthy industrialized nations.
For experienced women and minority attorneys, whose ranks in the legal profession have grown over the past two decades, that means obtaining appointments on international matters can be the steepest climb of their careers, even after rising to law firm equity partnership or judicial appointments. "People say it's a tight club. How one gets on this list is so obscure, obscure even to me," said Shira Scheindlin, a domestic arbitrator who retired this year from the Southern District of New York federal bench. "It's something I'd like to do, but it hasn't been that easy.
Women and minorities are underrepresented in many segments of the ADR industry—even when compared to the overall legal profession. For example, the American Arbitration Association has reported that in business disputes last year, 22 percent of those selected from its roster of nearly 7,000 neutrals were either a woman or a minority.
Thursday, October 6, 2016
Michele Goodwin & Allison Whelan, Constitutional Exceptionalism, Univ. Ill. L.Rev. (forthcoming)
Abstract:Exceptionalism is the perception that a country, society, institution, movement, or time period is ‘‘exceptional’’ (i.e., unusual or extraordinary) in some way and thus does not need to conform to normal rules or general principles. In recent years, a problematic trend has emerged: religion being used to justify harming women, people of color, member of the LGBTQ community, and even inflicting injury on children. Such cases are escalating. Frequently, those who wish to impose harms on others in the name of religion claim an exception by statute or the constitution to do so. This Article argues that the use of religion to inflict injury or harm on others is a form of impermissible discrimination. Disturbingly, judicial deference to religiously based discrimination misreads free exercise of religion and expands the doctrine beyond its reasonable and legitimate limits. This Article selects sex-based bias as an example because religiously based discrimination targeting sex and gender reveals hostility to the concerns of women as a broad class, including all women with the potential to become pregnant, non-married pregnant women, members of the LGBTQ community, and transgendered females.
Our thesis is that religiously based discrimination targeting sex penalizes pregnant and contraceptive-seeking women for their status, carving out unconstitutional distinctions between men and women. Such bias undermines women’s constitutional rights to be treated as equal citizens, secure in their bodies. We argue that the Free Exercise Clause of the First Amendment neither creates an ‘‘exception’’ nor grants a right to impose harmful conditions and injuries on others, including women.
Wednesday, October 5, 2016
Beverley Baines, Women Judges and Constitutional Courts: Why Not Nine? in Constitutions and Gender (Helen Irving, ed. forthcoming)
Abstract:We should take Justice Ruth Bader Ginsburg’s question “Why not nine women?” seriously. Justice Ginsburg has served on the United States Supreme Court since 1992 and her proposal is for an all-women Court. Western democracies do not appear poised to adopt her proposal; nor have they endorsed the prevailing proposals for parity by feminist scholars Erika Rackley and Sally Kenney or for feminist judges by Rosemary Hunter and Beatriz Kohen. To explain why these proposals had some initial successes but are now stagnating, I frame them as deploying a “strategy of containment”, a strategy defined by Jamie R. Abrams to explain the loss of efficacy of feminist domestic violence reform. Situating Justice Ginsburg’s proposal as “moving beyond the strategy of containment”, I draw on women’s judgments in Australian, Canadian, German, Indian, Indonesian, Israeli, South African, British and American constitutional cases about or with significance for women’s equality. Whether writing as the only, often the first, woman on a national “constitutional” court, or deciding cases where more than one woman justice wrote a judgment, the richness of their adjudicative diversity demonstrates that women can comprehensively perform the tasks of adjudicating constitutional cases. Far from posing a threat to democracy or the rule of law, the legacy of women jurists’ voices illustrates how they promote constitutional justice for women and men.
Deborah Brake, The Trouble with "Bureaucracy", 7 Cal. Law Review online 66 (2016)
Abstract:Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing the federal government’s efforts to regulate sexuality on campus as a bureaucratic overreach. This essay offers several counterpoints for thinking about Gersen and Suk’s critique. First, how much personal liberty would be enhanced by the dismantling of the bureaucracy depends on the conditions of sexual equality in which that liberty will be exercised. Second, Gersen and Suk’s lens of bureaucracy obscures the pre-existing role that government and institutional actors have played in regulating and influencing the conditions of sexuality. Finally, Gersen and Suk’s account of the democratic illegitimacy of the federal sex bureaucracy neglects the grassroots activism that pressed for a tougher regulatory regime and the legitimate role executive agencies can play, consistent with robust democratic engagement, in strengthening sex equality law. In the final analysis, any decision to disengage or recalibrate the federal sex bureaucracy must take into account and bring into dialogue the stories of both survivors and accused students.