Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, August 18, 2017

Response: The Multiple Feminisms of a 19th Century Women's Rights Thinker

Paula Monopoli’s point in her recent review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law,  is well taken.  She notes that “[t]he only arguable weakness in this book is that after the trenchant introduction, Thomas does not do much to connect back to the different strands of feminist theory per se.”

This actually was one of the earliest ideas I had for the book, and one that interested the editor the most in the original proposal.  But in looking back at it now, it seems that this part of the manuscript ended up on the cutting room floor. (Along with a background discussion of Protestant ideas of no-fault divorce which I still miss as it placed Stanton’s idea in greater historical and religious context).

The generality of the point of multiple feminisms survived in the book, challenging the characterization of Stanton as a simplistic thinker, a mere “first generation” advocate seeking to treat women the same as men.  (And Sue Davis makes a similar point in her book The Political Thought of Elizabeth Cady Stanton about the multiple feminisms seen in Stanton’s political theory).

However, the specifics of contexts illustrating each type of feminism must be pieced together by the reader herself through the book. So let me try and explain better here.

Liberal feminism. This is the most known about Stanton, that she support a formal equality approach to treating women the same as men.  This meant reversing laws of coverture which denied women equal rights to property, inheritance, and child custody.  It meant giving women the same right to vote, hold public office, and enter the professions by college and work.  Women should be lawyers, reverends, and medical doctors.  Women should be able to own their own bank accounts.  She would have eliminated all instances where law created a separate rule based on gender, much like Ruth Bader Ginsburg advocated during her years of women’s rights work with the ACLU Women’s Rights Project.

Difference feminism.  However, Stanton did not only advocated formal equality between genders.  She also advocated specific legal and social rules for women only, for situations where women were differently situated.  Stanton advocated a maternal custody rule, giving child custody to women only.  She supported a widow’s exception for dower, tax and bankruptcy due to women’s different need.  And she advocated a women-only right to control sexual relations and procreation through abstinence, challenging the existing standard of male sexual prerogative. 

Her justification for these was an understanding that it was women who biologically bore children, and socially raised them.  She considered women’s role in raising children to be a powerful one.  Indeed, she argued that women should use this power to raise the next generation of children up with equal virtues and coeducation, so that women could transform society by their feminist parenting. 

While society used the maternal role to “protect” and restrict women’s rights, Stanton used maternity as a basis for power and a justification for right.  It’s not that men could not share in parenting, which she also advocated, but that they simply did not.  As such, women were differently situated and needed rights that corresponded to that reality.

Radical feminism.  Stanton also appreciated that the structures of law, society, and the family themselves were barriers to women’s full autonomy.  Like modern legal theorist Catharine MacKinnon, she attacked the sexualization of women -- in romantic Victorian notions and revealing décolletages -- and advocated dress reform and coeducation.  Stanton endorsed an equal moral sexual standard, that idea of men as needing to indulge their sexual passions by affairs, adultery, and command of marital relations was wrong, and that men should be restrained and liable for consequences, and that women also entitled to sexual express and sexual control.  And she would also restructure marriage from hierarchy to joint partnership.  Not just that women would retain their own separate property earned or inherited, but that marriage would have joint property belonging to both partners regardless of where obtained. 

Finally, Stanton quite radically took on the structure of the church.  After fifty years of work for women’s rights, Stanton learned that the foundational sticking point was that the basis of social and legal gender norms of women’s subordination were based in religious teachings.  She took on the Christian church’s doctrines and teachings, reinterpreting biblical passages and deconstructing the male bias in those rules. 

Overall, Stanton’s use of feminist methodology of deconstruction, critical suspicion of seemingly objective rules, and understanding of male privilege allowed her to approach legal and social critique with an all-encompassing feminist theory that shows her to be an advance and radical legal thinker.

Monopoli concludes in her review, that “the main strength of the book lies in Thomas as legal historian pulling together the arguments out of Stanton’s own writings, making them available to us and linking them to Stanton’s surprisingly modern legal theories. This book should be included on reading lists for upper-level seminars in jurisprudence, family law, and legal history, in addition to gender and the law. Reading it will introduce students to a significant legal mind, albeit an informally trained one, not traditionally included in the canon of prominent American legal thinkers.”

August 18, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Book Review: The Feminist Legacy of Elizabeth Cady Stanton

Thanks to Paula Monopoli for her great (and thorough) review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law in the Journal of Legal Education.

 

Mother. Author. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton

 

Tracy Thomas’s new book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, provides extensive support for the claim that Stanton was “the intellectual giant of the [women’s rights] movement.” In this eminently readable yet deeply substantive work, Professor Thomas argues that Stanton was a foundational theorist for modern feminism. Until recently, Stanton’s intellectual contributions have not been widely explored, and Thomas aims to rectify that oversight. She situates Stanton in her rightful place by focusing on Stanton’s writings and advocacy in the area of family law. Thomas does a persuasive job, using Stanton’s views on marital property law, divorce, voluntary and involuntary maternity, and the custody of children as a lens through which to examine broader themes about women’s status as equal citizens in our republic. She also documents Stanton’s intellectual contributions in a way that informs current debates about gender equality.


While Stanton’s writings ranged broadly on the subordination and emancipation of women, Thomas narrows in on Stanton’s views on the subjugation of women within marriage. She also reveals Stanton’s extensive, if de facto, training in law through her father’s practice, law library and clerks. “As a young woman, Stanton had read widely in her father’s law library and discussed cases with him . . . . [H]er legal training allowed Stanton to bring to the early women’s rights movement a keen sense of the role of law in creating inequality between the sexes.” Thomas argues that this understanding of the common law itself and her understanding of how to construct legal arguments were central to Stanton’s efficacy as a theorist and an advocate.

 

Thomas begins by examining Stanton’s personal story. Stanton was a harried mother of three children under the age of ten when she convened the first women’s rights convention in Seneca Falls in 1848. In the decade that followed, she went on to have four more children and to advocate tirelessly for women’s equality. Thomas points out how much the adage “the personal is the political” applied to Stanton, as she wrote to her partner in advocacy, Susan B. Anthony, for help:


Can you get any acute lawyer . . . sufficiently interested in our movement
to look up just eight laws concerning us—the very worst in all the code? I
can generalize and philosophize easily enough myself; but the details of the
particular law I need, I have not time to look up. You see, while I am about
the house, surrounded by my children, washing dishes, baking, sewing, etc.,
I can think up many points, but I cannot search books, for my hands as well
as my brains would be necessary for that work . . . . Men who can, when they
wish to write a document, shut themselves up for days with their thoughts
and their books, know little of what difficulties a woman must surmount.

 

These words would resonate with many female scholars today. After this first letter, Stanton again wrote to Anthony to tell her that the legislative testimony she was trying to finish was not nearly done and that her deadline was rapidly approaching. Anthony responded by coming to babysit while Stanton finished the address. Having a public voice requires time and energy. But bearing a disproportionate share of family caregiving makes such public participation difficult and remains a structural barrier to gender equality today.

 

Thomas integrates these and similar examples of the connection between the nineteenth-century Stanton and modern-day feminists. She begins her book with an introduction that gives the reader a thumbnail sketch of modern feminist theory. Thomas outlines the distinctions among liberal feminism, with its focus on formal equality; difference feminism, with its focus on resolving subordination by recognizing women’s biological, relational, and cultural differences; and radical or dominance feminism, which situates subordination in the victimization of women as sexual objects and emphasizes the need for structural reforms. Thomas argues that Stanton’s views on family law reform informed modern feminist theory. 

 

***

 

As Thomas notes, many of the reforms that Stanton wrote about and advocated for in terms of property, marriage, divorce, and custody have become the legal status quo. But in these turbulent times, Thomas’s book reminds us how fragile those gains are and how radical they still seem to many in our society. As Stanton lamented, after “years of untiring effort” to obtain guarantees of property and custody, those statutes were “repealed in States where we supposed all was safe.”Her cautionary note to be vigilant rings as loudly in 2017 as it did in 1876, and we would do well to heed it. Professor Thomas’s excellent new book has given us additional intellectual tools to do just that.

August 18, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Wednesday, August 16, 2017

Gender and Political Discourse

By Guest Blogger Jamie Abrams

This is my third summer guest blogging with the Gender and Law blog.  In prior years, I have comfortably crafted an idea, polished the text, and published the blog for critique and discussion.  I have always received thoughtful engagement on the blog posts and the process of writing them has made me a better writer, scholar, and teacher.  For some reason, however, this approach has not worked this summer.  I have struggled greatly with why that is so, particularly in a year in which the battle for gender equality seems to be slipping so far in the wrong direction.  Indeed there are endless articles and current events on which I could be writing.   

In struggling to understand this newfound writer’s block, I came across the article The Believing Game – Methodological Believing by Peter Elbow.  This article resonated with me on a deep level in thinking about the status of modern political discourse and its relevance to gender equality.  In summary, the author argues that we are born as methodological “believers.”  We begin life inherently believing the things our parents and those in authority tell us.  We are welcome to new ideas and open to listening eagerly and sincerely.  Over time, we are taught to engage instead in what Elbow calls “The Doubting Game.”  This, Elbow explains, “represents the kind of thinking more widely honored and taught in our culture” in which we learn the “disciplined practice of trying to be as skeptical and analytic as possible with every idea we encounter.”  This doubting game dominates modern thinking and indeed it dominates the traditional law school curriculum.  Applying Elbow’s thesis to modern times, the doubting game seems to govern how we process news, how we vote, how we interact with others in nearly every political and social respect.

As a culture, however, Elbow argues that we have not developed methodological believing to match our skills for doubting.  By this he means that we don’t know how to use belief as a tool to decide whether to accept or reject a particular position.  Yet the believing game offers critical additional tools to help us find flaws in our own thinking.  It allows us to test our very assumptions by trying to understand what is valid and worthy of belief in a different viewpoint.  It allows us to find “hidden virtues” in positions as a tool to strengthen our own thinking.  The “believing game” pushes us to “dwell in an idea” to try to understand it.  The question of rejecting or accepting the idea is another matter entirely, but it is through belief in the idea that we process and understand the idea in the first instance.

These methodological approaches are also closely connected to gender norms.  The doubting game – which dominates so much of our political and social discourse today – is associated with masculinity, Elbow notes, in its emphasis on arguing, challenging, resisting, pushing back.  Whereas the believing game is much more associated with femininity in that it emphasizes listening, relating, understanding. 

Elbow ultimately concluded in 2008 that we are losing the lens and the language to engage in methodological believing.  This thesis seems even truer today.  As I absorbed this article, a lot of things began to fall into place for me.  I wondered if my struggle to blog, or even to engage in any political discourse on social media since the election comes from the painful realization that such efforts are largely futile to the extent that they try to promote a greater understanding. 

This article leads me to a few conclusions.  First, it reminds me that the stagnant role of women in politics is deeply concerning for the longstanding critique of who is governing and the representativeness of our political leadership.  But also that gender inclusion and diversity more broadly in politics stands to shape how we are governing and engaging in political discourse generally.  Second, it reminded me that rather than digging in deeper on defending and supporting our views, we need to better frame the rigor of political discourse.  How to do that, of course, is the bigger question to which I have no answers.  All that I share here is that diagnosing the problem as one rooted in our very approach to the methodology of critical thought helped me for a moment to see past the “fake news” and ideological divides that govern the headlines today.  It helped me to realize that the gender equality project is about more than just a group of individual legislative reforms or initiatives.  It is connected to the very values that we embrace and idealize in political discourse.

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism.

August 16, 2017 in Guest Bloggers, Theory | Permalink | Comments (0)

Wednesday, August 9, 2017

How Feminist Theory and Methods Affect the Process of Judgment

Bridget Crawford, Kathryn Stanchi & Linda Berger, Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment, Univ. of Balt. L. Rev. (forthcoming).

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle first to realize the right of women to vote and then to eliminate from the nation’s laws explicit discrimination against women. For others, it is a political movement whose purpose is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy – a system of thought and a community of belief entering on attaining political, social, and economic equality for women, men, and people of any gender.

 

For us, the editors of Feminist Judgments: Rewritten Opinions of the United States Supreme Court, it is all of those things and more. Feminism is both a movement and a mode of inquiry. In its best and most capacious form, feminism embraces justice for all and seeks to ally itself with rights-based movements for people of color, the poor, immigrants, refugees, religious minorities, disabled individuals, LGBTQ+ people, and other historically marginalized groups.


This essay presents feminism as the foundation for a developing form of rich, complex, and practical legal scholarship, the lens and the means through which we may approach and resolve many legal problems. First, the essay explores the intellectual foundations of feminist legal theory and situates the U.S. and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory, a move that made the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court an especially fitting topic for the 10th Annual Conference held at the Center for Applied Feminism.

 

When they write feminist judgments (using feminist perspectives or methods to produce revised versions of actual court opinions), feminist authors translate feminist theory into the language of law practice and judging. Their translations demonstrate the potential for lawyers to incorporate feminist theory and methods into oral and written arguments, for law students to gain deeper insights from and to learn the practical utility of feminist theory, and for judges to recognize how incorporating feminist perspectives may transform the reasoning or outcome of a case without changing the law or the facts of the underlying lawsuit. Finally, the essay uses contemporary examples of feminist judging to illustrate that the gap between feminist theory and judicial decision making is narrowing, a real-world advance that suggests a widening judicial audience for Feminist Judgments.

August 9, 2017 in Theory | Permalink | Comments (0)

Google Fires Engineer Who Opposed Gender Diversity in Workplace

Following up on the blog post Google Engineer Says Gender Diversity Initiatives Bad Idea ...  Google has now fired the engineer.  Surprising, but encouraging to see a company put support behind what are often shallow commitments to equalized workplaces.  

The company said the engineer's memo -- opposing gender diversity initiatives because of women's "neuroticism" and because women biologically prefer jobs with people and emotion rather than tech jobs with "systemic" thinking -- was "harmful" to the workplace.  The engineer has threatened to sue.  

August 9, 2017 in Business, Equal Employment | Permalink | Comments (0)

Why Feminist Legal Theory Still Needs Mary Joe Frug

Elizabeth M. Schneider, Why Feminist Legal Theory Still Needs Mary Joe Frug: Thoughts on Conflicts in Feminism, 51 New England L.Rev. (2017)

Mary Joe Frug was murdered in Cambridge, Massachusetts in 1991, more than twenty-five years ago. Some of us who were close to Mary Joe, or whose lives and/or work have been influenced by Mary Joe, were invited to contribute the New England Law Review’s
Memorial Symposium on the twenty-fifth anniversary of her tragic death.

 

Today, twenty-five years after her death, I see even more of a need for the integration of Mary Joe’s perspectives into ongoing work on feminist legal theory and practice. We are in the midst of a very fragmented time, where there seems to be little appreciation of, and sensitivity to, the history of feminist legal theory and practice, and there has been considerable scholarly and activist dispute.***

 

Mary Joe called herself a post-modernist but her approach had many different dimensions. She was not simple and reflexive. Both Minow and Rosenbury highlight the flexibility of her thinking and her constant questioning and re-questioning of her own views. Martha Minow identifies several aspects of Mary Joe’s thinking: she “introduced, elaborated, or demonstrated a range of strategies and tactics” in every situation, and saw “the danger of turning any form of critical analysis into a formula or mechanical application . . . .” There was no freezing of one single approach; no rigidity. Laura Rosenbury emphasizes the complex dimensions of Mary Joe’s attitude toward law: she saw law as not simply a tool of repression or liberation. Law could also play a constructive force, and law reform strategies were important to her in concrete settings.
Mary Joe focused on specifics, such as: a particular doctrinal issue, the contested interpretation of a particular legal strategy. Contingency and context were both central to her approach to law.

August 9, 2017 in Theory | Permalink | Comments (0)

Monday, August 7, 2017

The N.F.L.’s Domestic Violence Policy:  Revealing the Limits of an Internalities Approach to Domestic Violence

From Guest blogger, Jamie Abrams:

The National Football League’s (NFL’s) response to domestic violence provides a good example of the limits of internalities and the expansive and transformative power of externalities to apply a framework introduced in my last blog entry.  In August 2014, the NFL Commissioner Roger Goodell announced a new Personal Conduct Policy. The policy was enacted after a high profile case of domestic abuse involving Ray Rice and his then-fiancée.  Commissioner Goodell faced harsh criticism for allegations against him ranging from giving Rice an inappropriately light punishment to attempting to cover up the scandal by ignoring the existence of the security camera footage until the media released it.  The revised policy stated that assault, battery, domestic violence or sexual assault involving physical force would be subject to a suspension of six games without pay for the first offense.  The suspension would apply regardless of whether the player was formally charged.  A second qualifying offense would lead to a lifetime ban from professional football.    The NFL sought to ensure a “fair and consistent process for player and employee discipline” that would “set a higher standard.”

The NFL’s response, however, rested entirely on internalities.  It depended on the victim coming forward to report the allegations of assault.  It added an additional punitive and professional outcome to the existing criminal and civil consequences.  In its application, the policy only raised the stakes for the victim in coming forward to report domestic violence against prominent athletes.  This approach is inherently limited in its efficacy and insulates the NFL (which is a proxy for the state in this example) from accountability.

When understood in the context of externalities and broader political framings, the NFL could have dramatically reframed its approach in actually using its power as the NFL to change behaviors.  The culture of the NFL could have been more closely examined to see the ways in which it acts as a provoker of domestic violence and the ways in which it could better prevent domestic violence.  For example, in a highly masculine environment, might the publicity, threatened job loss, and income loss embedded in the NFL policy – particularly when initiated by the victim – actually exacerbate the risk of domestic violence?  Might the NFL work to change its culture of masculinity in ways that effectively address the medical, social, and statistical risks of domestic violence that are unique to NFL culture? 

Expanding the lens to include externalities offers an insightful contrast to consider what might be missing from an internalities approach.  It reveals how the NFL camaraderie and the team atmosphere of the NFL might be leveraged to create positive peer associations and stronger cultural values and beliefs about healthy relationships.  It reveals how the NFL might also provide more support for its players who are prior victims of abuse or witnesses of abuse or hold other risk factors.  With the power and resources of the NFL expanded to an externalities approach, perhaps stronger lasting change could be achieved.

 

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

August 7, 2017 in Guest Bloggers, Sports, Violence Against Women | Permalink | Comments (0)

Google Engineer Says Gender Diversity Initiatives Bad Idea

Diversity Programs at Google Discriminatory, Engineer Claims in Anti-Diversity Memo

A document written by an unnamed senior software engineer at Google suggesting the company encourage "ideological" rather than gender diversity, is generating anger within the company and in Silicon Valley.

Titled "Google's Ideological Echo Chamber," the male author wrote that women don't make up 50% of the company's tech and leadership positions not because of sexism but because of differences in their preferences and abilities. 

He also writes that the company's focus on diversity tends to alienate conservatives, which he believes is bad for business as conservatives tend to be more conscientious, a trait that is required for "much of the drudgery and maintenance work characteristic of a mature company."

The essay comes as Google is engaged in an ongoing effort to try to get more women and minorities into technical and leadership jobs, and as the Mountain View-based company is being investigated by the Labor Department over allegations that it does not pay men and women equally. ***

The 10-page manifesto against Google's diversity initiatives appears to have first been circulated internally at the company Friday. It was initially reported by Motherboard.

On Saturday Gizmodo published the full document, prompting a flood of angry tweets and some supporting the writer's right to free speech.

The overall tone of the essay is calm. The author acknowledges that there is bias that holds women back in tech and leadership. He doesn't suggest that women aren't capable of doing technical work but rather that the differences between men and women should be acknowledged. 

He states that women tend to be more interested in people rather than things, "empathizing vs. systemizing," whereas men have a higher driver for status and so tend to end up in leadership positions.

He also says that on average, women have more "neuroticism," as defined as "higher anxiety, lower stress tolerance."

The author doesn't believe that Google should engage in social engineering just to make its jobs equally appealing to men and women, calling "discriminatory" programs at the company available only to women and minorities.

August 7, 2017 in Business, Equal Employment | Permalink | Comments (0)

Friday, August 4, 2017

Conference: Women in Law and Leadership

Women in Law and Leadership Symposium
Friday, November 3, 2017
Marcum Conference Center at Miami University
Oxford, Ohio

You are invited to the Women in Law and Leadership (W.I.L.L.) Symposium from 8 a.m. to 5 p.m. on Friday, November 3, 2017.

Miami University and its Pre-Law Program are proud to present a daylong conference focused on issues related to women in law and leadership. The conference will bring together lawyers and current Miami students. Miami Pre-Law students will moderate panel discussions featuring successful Miami alumni in the legal profession. Panel topics include gender issues in the workplace, work/life challenges, keys to success, and career trajectories and possibilities. Each session has significant intellectual and practical content designed to improve each participant’s professional competence and understanding of leadership. Application for Ohio CLE credit is pending.

More details to follow online.

For more information, please contact prelaw@MiamiOH.edu

August 4, 2017 in Conferences, Women lawyers | Permalink | Comments (0)

Updating Gender Bias Task Force Work by Focusing on Women Lawyers in Complex Civil Litigation

Brooke D. Coleman, A Legal Fempire? Women in Complex Civil Litigation, 93 Indiana L.J. (2017)

This essay begins from the view that gender equity is important to the functioning and legitimacy of our legal system, and assesses gender equity—or rather the lack thereof—within the legal profession. First, the essay reflects on the gender bias task force movement that began almost four decades ago. Second, using a case study approach, the essay updates that work by examining the role of women on the Judicial Panel for Multidistrict Litigation, as judges, and in multidistrict litigation leadership roles. Finally, after assessing the ongoing barriers to gender equity in modern complex civil litigation as well as its modest gender equalizing reforms, the essay closes with a set of proposals for how to move toward gender equality.

August 4, 2017 in Courts, Gender | Permalink | Comments (0)

Moving Beyond the Internalities of Domestic Violence

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

 

Imagine if domestic violence activists could reframe its politicization and present the issue for public response anew.  How would the issue be framed and described?  What legal solutions would be identified?  Who would be accountable for effective results?  I suggest that such an exercise would reveal that the domestic violence movement is politicized around the internalities of victims and perpetrators in ways that collaterally restrain efforts to end domestic violence. 

Internalities are the condition of being internal or contained within.  This term describes the ways in which domestic violence is politicized as a problem internal to the relationship in which it occurs.  In this internalities framing, there are two actors – the victim and the perpetrator.  Other actors, such as law enforcement, social support services, and lawyers, all intervene to assist once initiated, but the problem and legal responses to it are understood and defined by its internalities.  The internalities framing puts our focus on the victim and the perpetrator as a contained unit:  How can this victim be protected?  How at risk is this victim for future violence?  How will the perpetrator be prevented from contact with this victim?   The “crisis” of domestic abuse is built around the victim and her needs, an understandable point of emphasis from a public safety and health standpoint,  but a narrow one from the perspective of ending domestic violence.

There are considerable strengths to an internalities framing, particularly when understood in historical context.  It uniquely grew out of understandings of domestic violence as discerned from women victims and the consciousness-raising dialogues that brought these individual experiences together collectively. This framing gave powerful voice to a silent epidemic historically insulated in the family with minimal state intervention or response.   Giving voice to the experiences of survivors and developing social, political, and legal interventions to those experiences is one of the greatest accomplishments of the second-wave feminist movement.

There are also inherent limitations to this approach.  From a politicization perspective, an internalities framing risks politicizing domestic violence as if it spontaneously erupts out of the relationship, which insulates the state from accountability.  Consider, for example, the iconic “Cycle of Violence.”  It visually depicts and explains abuse as a single victim and a single perpetrator on a continuous cycle without externalities or collateral harms to family, community, employers, the economy, etc.  It pretends that abuse just erupts and sustains itself on this cycle within the internal family unit, without consideration of the political, economic, social, legal, medical triggers that also play a role.  Lethality risk assessments likewise ask victims about internalities only, such as victim pregnancies, perpetrator drug/alcohol abuse, perpetrator weapon access, and recent violent incidents between the two.

There is an interesting power paradox embedded in this internalities approach.  Victims gain autonomy by shaping law reform approaches and framing domestic violence in the public arena, but they, in turn, hold implicit accountability for the effectiveness of those interventions.  This autonomy paradoxically immunizes the state and perpetrators from accountability, which was the exact goal of the early battered women’s movement.  This creates an insider-outsider politics that positions the victim as the insider party accountable for effective interventions and risk assessments.  The state is cast merely in a supporting role coming to her aid as an outsider.  This insulates the state from accountability and casts the crisis and accountability for effective solutions around the victim, rather than the perpetrator. 

This framework ignores the ways in which state actors in the judicial and law enforcement process might provoke or exacerbate risks of family violence or might exercise more proactive risk assessments and accountability.  It also ignores the ways in which those externalities will likely lead the perpetrator to recidivist behaviors with a new partner even if the state were able to successfully break the cycle of violence in the preceding relationship.

Missing from this framing of violence are the ways in which externalities can play a critical role in exacerbating, triggering, and facilitating domestic violence.  Some examples of relevant externalities systemically excluded from our politicization of domestic violence are economic distress, the perpetrator’s own history of prior abuse, job loss or dissatisfaction, mental illness, larger gender inequality and cultural norms, and changes in custody/parenting status.  Ignoring externalities compromises the extent of state interventions; fictionalizes the family as an isolated unit separated from other political and social systems; and reveres state actors as universally working to end family violence, ignoring the possibility that state action can also sometimes provoke or exacerbate violence.

Note:  This blog post previews arguments that I make in a forthcoming chapter in the book The Politicization of Safety (N.Y.U. Press) following a conference on The Politicization of Safety organized by Jane Stoever at the University of California–Irvine School of Law this April

August 4, 2017 in Guest Bloggers, Violence Against Women | Permalink | Comments (0)

Thursday, August 3, 2017

CFP FutureLaw Workshop 2.0

Conference Announcement and Call for Papers
2017 Junior Scholars #FutureLaw Workshop 2.0 at Duquesne


The conference is organized by Seth Oranburg, Assistant Professor, Duquesne University School of Law (oranburgs@duq.edu). Funding is provided in part by the Federalist Society. All papers are selected based on scholarly merit, with an emphasis on scholarly impact, topical relevance, and viewpoint diversity.

September 7-8, 2017

By invitation only

OVERVIEW: The conference aims to foster legal and economic research on “FutureLaw” (as defined below) topics particularly by junior and emerging scholars by bringing together a diverse group of academics early in their career focusing on cutting-edge issues.

TOPICS: The conference organizers encourage the submission of papers about all aspects of FutureLaw, which includes open-data policy, machine learning, computational law, legal informatics, smart contracts, crypto-currency, block-chain technology, big data, algorithmic research, LegalTech, FinTech, MedTech, eCommerce, eGovernment, electronic discovery, computers & the law, teaching innovations, and related subjects. FutureLaw is an inter-disciplinary field with cross-opportunities in crowd science, behavioral economics, computer science, mathematics, statistics, learning theory, and related fields. Papers may be theoretical, archival or experimental in nature. Topics of interest include, but are not limited to:

- Innovation in legal instruments (e.g., new securities, new corporate forms, new litigation procedures, etc.)

- Innovation in legal technology (e.g., new law firm governance, legal automatic, democratizing access to legal services, legal chatbots, etc.)
- Innovation in legal teaching (e.g., new classroom techniques, distance learning studies, experiential learning, transactional clinics, etc.)

Papers regarding the effect of these innovations (e.g., diversity, inclusion, equity, equality, fairness, return on investment, productivity, security, etc.) are also welcome.

DUAL SUBMISSION PROCESS: For the 2017 conference, the FutureLaw Workshop and the Duquesne Law Review (DLR) announce a new, non-exclusive, combined submission process. At your discretion, a paper submitted to the 2017 FutureLaw Workshop 2.0 may also be considered for publication by DLR free of charge. The rules for this dual submission process are as follows:

(1) You must apply online at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20. Submitted papers will be considered for publication by the DLR free of charge. A reply to your submission in acceptance to the Workshop or invitation to publish in the DLR is your option, not your obligation.

(2) If you do not wish to be considered by the DLR while submitting for the FutureLaw Workshop, please indicate this in the comments field provided.

(3) Papers submitted for dual consideration must not already be accepted by another journal.

(4) While under consideration as a dual submission for the 2017 FutureLaw Workshop and invitation by the DLR, a paper may be submitted to another journal (or JAR).

PAPER SUBMISSION PROCEDURE: Please upload a PDF version of your working paper, by August 4, 2017 via the online submission form at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20. When you select the radio button for “Attendance Category: Participant,” you will see an option to upload a paper.

The FutureLaw Workshop may reimburse presenters and discussants reasonable travel expenses and accommodations. Please let us know if your academic institution does not provide you with travel and accommodation expenses.

CONFERENCE ATTENDANCE: Attendance is free and by invitation only. Academics interested in receiving an invitation to attend but who do not wish to submit a paper may apply online as “observers” at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20

 

August 3, 2017 in Call for Papers, Conferences | Permalink | Comments (0)

CFP Feminist Judgments Rewriting Torts

Call for Authors – Feminist Judgments: Rewritten Torts Opinions

DEADLINE: Friday August 25, 2017

The U.S. Feminist Judgments Project seeks contributors of judicial opinions rewritten to reflect a feminist perspective, and commentaries on the cases and rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Rewritten Torts Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  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.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Torts volume editors Lucinda Finley and Martha Chamallas seek prospective authors for fourteen to sixteen torts opinions covering many major topics in tort law. The editors have selected the cases with an eye towards issues and injuries of particular salience to women’s lives, and with insights from feminist torts scholarship and input from leading torts scholars.  Potential authors are welcome to suggest other opinions that they would like to address, but the overall number of cases finally included in the volume must remain limited.

Interested prospective contributors should submit a proposal to either: 1) rewrite an opinion (subject to a 10,000 word limit), or 2) comment on a rewritten opinion (4,000 word limit).  Rewritten opinions may be majority opinions, concurrences, or dissents. Authors of rewritten opinions should abide by the law and precedent and supplemental materials in effect and available at the time of the original decision.  Commentators should explain the original court decision and its context, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique various feminist theories and advocacy.

Those who are interested in rewriting an opinion or providing commentary should apply no later than Friday August 25, 2017, by e-mailing the following information to Lucinda Finley, finleylu@buffalo.edu,  and Martha Chamallas, chamallas.1@osu.edu :

  1. Your CV, your areas of torts interest or expertise, and why you are interested in and well suited to participate in this project.
  2. Your top three preferences of cases to write about, and whether you have a preference to do a rewritten opinion or a commentary.
  3. Any time constraints and other obligations that may impact your ability to meet the submission deadlines.
  4. If you have another case that you feel strongly should be included instead of one of the selected cases and that you would like to write about, provide information about the case and the reasons you think it should be included.

This list of cases that the editors have selected for consideration to be included in the volume Feminist Judgments: Rewritten Torts Opinions, is as follows:

  1. The “Classics”: Tort cases that appear in almost every U.S. Torts casebook, and thus shape generations of lawyers’ understanding of tort doctrine.
  1. Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (Cal. 1976): the classic “psychiatrist’s duty to warn” case, with an underappreciated subtext of intimate partner violence.
  1. Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976), establishing a limited affirmative duty to “rescue,” or come to the aid of someone in peril.

Negligence:  Is the “Learned Hand” formula for negligence just an economic cost/benefit calculation, or should it include a broader array of social factors (as Hand himself intended)?

  1. McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th 1987). In a case involving a woman who was assaulted in her hotel room by a stranger who gained access through a sliding glass door, Judge Posner applied an economic cost/benefit analysis to the question of negligence and upheld a jury verdict for the defendant hotel. This case involves attempted sexual violence against women, and also provides fertile ground for a feminist critique of a law and economics perspective on tort law.

Duty of care:  A significant Torts issue, heavily influenced by policy concerns, and often involving women and children plaintiffs who have been assaulted – and thus fertile territory for feminist analysis.

  1. Kircher v. City of Jamestown, 74 N.Y.2d 251 (N.Y. 1989). A case involving the “limited public duty” doctrine, which severely restricts the obligation of police or other protective service workers to affirmatively aid crime victims.  This limited duty has serious adverse implications for women and children experiencing family violence.  It is the civil tort law analogue to the limited constitutional affirmative duty to protect adopted by the US Supreme Court in infamous cases such as DeShaney and Castle Rock v. Gonzales. The NY Court of Appeals has been a “leader” in crafting the rules that circumscribe when a victim can sue the police for failure to protect.  While there are numerous cases that one could choose to include in this volume, including several that directly involve domestic violence and police failure to enforce protective orders, Kircher has been selected for several reasons.  It comes after several NY Court of Appeals opinions in this area, and thus provides a good vehicle to explore, critique, and consider expanding the doctrinal limitations. There are two dissenting opinions that call for a relaxation of some of the doctrinal limitations.  And it subtly demonstrates the problem of police callous attitude towards presumed family violence that often underlies their inaction.  Kircher was abducted by a stranger from a drug store parking lot, who drove her around and raped her. The eye witnesses to the abduction reported it to a police officer, who dismissively assumed it was probably a domestic dispute, and thus did not follow the abductor’s car.
  2. Sharon P. v. Arman, Ltd., 21 Cal.4th 1181, 989 P.2d 121 (1999). A woman was raped in late morning in the underground parking garage of the office building where she was a tenant. The California Supreme Court held that the risk of sexual assault in this particular parking garage was not sufficiently foreseeable to impose a duty on the landlord to provide reasonable security, even though the court acknowledged the demonstrated risk of underground parking garages in general. The case highlights the way in which courts can use the duty issue and landlord protective policy concerns to keep cases form juries and erect significant barriers to tort recovery for sexual assault victims – especially the first sexual assault victim on a particular property.

Vicarious Liability

  1. Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th 291, 907 P.2d 358 (1995). A young pregnant patient was digitally sexually molested during her ultrasound exam by the ultrasound technician employed by the hospital. The issue was whether he was acting within the scope of his employment so as to trigger respondeat superior liability for the employer hospital. In notable contrast to cases where they had ruled that employees committing physical assaults on other workers or customers were acting in the scope of employment, the court held that the sexual assault was done for purely personal “lust” reasons, so that the ultrasound technician was not acting within the scope of employment.

Damages:  Damages issues have received significant attention from feminist torts scholars, and they remain extremely important for whether there are hidden barriers to equal access to the tort system and fair compensation for women and people of color. 

  1. Simpkins v. Grace Brethren Church of Delaware, 2016 Ohio 8188, 2016 Ohio Lexis 2961 (December 2016).  A teenage girl was sexually assaulted by her pastor.  In her suit against the church that employed him and that ignored his history, a jury awarded her a verdict in excess of $2 million dollars.  But Ohio has a general cap on non-economic damages for all tort claims, and the application of this cap significantly reduced the compensation that she could recover.  She appealed, contending that the damage cap, as applied to sexual assault victims, was unconstitutional. The Ohio Supreme Court upheld the cap finding that it survived rational basis review. 
  1. M.M. v. Kimpson, 116 F.Supp.3d 126 (E.D.N.Y. 2015).  A case involving harm to a young Latino boy from lead based paint. The economists who projected future earnings for the child used earnings tables based on race.  The case directly raises the issue of whether courts should permit the use race-based earnings tables (and by extension sex-based earnings tables) to calculate future lost earnings.  It also illustrates the racially disparate impact of many environmental harms.

Compensable harms:  Emotional Distress and Reproductive Harm. Tort law’s traditional devaluing of emotional, relational and reproductive harm has worked to the detriment of women.  Cases involving various aspects of reproductive harm raise important issues about  reproductive health and autonomy which are often overlooked by courts.

  1. Dillon v. Legg, 441 P.2d 912 (Cal. 1968), the landmark case that first recognized a tort claim for “bystander” emotional distress suffered from watching a family member get gruesomely injured, regardless of whether the plaintiff was in the “zone of danger.” Would such claims be better characterized as harms to important relational interests that are deserving of protection?
  1. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). In a case involving the sexual exploitation of a woman by her boyfriend who videotaped their consensual sexual intercourse and showed the tape around the college campus, the Texas Supreme Court declined to permit tort claims for negligent infliction of emotional distress. The case provoked a great deal of outcry by women’s advocacy groups, and provoked a dissent by the lone woman Justice on the court, who characterized the result as overtly gender biased.
  1. Broadnax v. Gonzales, 2 N.Y.3d 148 (2004). Overruling precedent that barred emotional distress claims for pregnancy loss unless the pregnant woman suffered a separate physical injury, the NY Court of Appeals permits a woman to recover for emotional distress against physicians whose negligent prenatal care caused the death of her fetus. This case and its precedents highlight the implications of characterizing a pregnant woman and her fetus as separate beings, so that loss of a pregnancy is not understood as physical harm to the woman.
  1. Greco v. U.S., 893 P.2d 345 (Nev. 1995). Physicians negligently failed to diagnose severe fetal defects in time for woman to consider whether to terminate the pregnancy.  The parents brought a “wrongful birth” claim, and the disabled child brought a “wrongful life” claim.  Surveying case law from many other jurisdictions, the court permitted the wrongful birth claim, while denying the wrongful life claim. While there are many cases from which to choose that explore these issues, Greco is selected because it discusses both wrongful birth and wrongful life in a single case, discusses the policies involved and the decisions of many other jurisdictions, represents the evolving majority approach, and like most cases, fails to fully comprehend the reproductive autonomy dimensions of these tort claims.

Intentional Torts

  1. Robinson v. Cutchin, 140 F. Supp.2d 488 (D. Md. 2001). An African-American woman was involuntarily sterilized by a physician who performed a tubal ligation without her consent during an emergency C-section to deliver her 6th The case discusses the difference between battery claims and informed consent medical malpractice claims, which sound in negligence.  The opinion displays remarkable insensitivity to women’s reproductive autonomy and to the racially biased attitudes of the doctor, and to the history of forced sterilization of minority women.
  2. Reavis v. Slominski, 551 N.W.2d 528 (Neb. 1996).  This case explores the issue of consent as a defense to intentional torts. Reavis had sex with her employer at an office holiday party; several years earlier, she had also acquiesced to his repeated sexual advances, claiming she could not turn him down because she desperately needed the job, and because her prior history of sexual abuse amounted to an incapacity that made her extremely fearful of not acquiescing.  She sues for battery, and the issues involve apparent consent, coercion, duress, and incapacity as vitiating apparent consent.  The case resulted in multiple opinions, with a debate between majority, concurrences, and dissent over the relevance of her prior history of sexual abuse, and over whether fear for one’s job is sufficient to constitute duress that would vitiate apparent consent.
  1. Guthrie v. Conroy, 567 S.E.2d 403 (Ct. App. N.C. 2002). A workplace sexual harassment hostile environment case brought as a tort claim for intentional infliction of emotional distress. The opinion, while acknowledging that the conduct would amount to a Title VII hostile environment claim, dismisses it as merely juvenile and boorish behavior that does not meet the stringent tort standard for “outrageousness.” The opinion summarizes the factors and types of conduct in the workplace harassment context that would push the behavior into the “outrageous” category. The case highlights the interactions between statutory Title VII civil rights law and common law tort claims, and whether they are intended to vindicate different interests and should be assessed by different standards.
  1. Lyman v. Huber, 10 A.3d 707 (Me. 2010). An i.i.e.d. case arising out of an emotionally abusive and controlling intimate partner relationship. The court focused on the “severe” emotional distress element of the claim, and overruled a verdict for the plaintiff, concluding that she did not suffer emotional distress more severe than what the “reasonable person” would be expected to tolerate. This case highlights the difficulties facing domestic violence victims who try to bring tort claims against their abusers, with courts often interpreting the elements of the i.i.e.d. tort more strictly than in commercial relationship or stranger relationship contexts. It is also a vehicle for exploring the potential for bias in the supposedly objective notion of the “reasonable person.”

August 3, 2017 in Call for Papers | Permalink | Comments (0)

The Origins of Ms.

An oldie but goodie.

NYT, Ms: Explaining the Origins of Ms. (2009)

In the Nov. 10, 1901, edition of The Sunday Republican of Springfield, Mass., tucked away in an item at the bottom of Page 4, an unnamed writer put forth a modest proposal. “There is a void in the English language which, with some diffidence, we undertake to fill,” the writer began. “Every one has been put in an embarrassing position by ignorance of the status of some woman. To call a maiden Mrs. is only a shade worse than to insult a matron with the inferior title Miss. Yet it is not always easy to know the facts.”

 

How to avoid this potential social faux pas? The writer suggested “a more comprehensive term which does homage to the sex without expressing any views as to their domestic situation,” namely, Ms. With this “simple” and “easy to write” title, a tactfully ambiguous compromise between Miss and Mrs., “the person concerned can translate it properly according to circumstances.” The writer even gave a pronunciation tip: “For oral use it might be rendered as ‘Mizz,’ which would be a close parallel to the practice long universal in many bucolic regions, where a slurred Mis’ does duty for Miss and Mrs. alike.”

 

The item in the Springfield paper made a minor splash, getting picked up and discussed over the next few weeks in other newspapers around the country, from Iowa to Minnesota to Utah. As 1901 drew to a close, however, the Ms. proposal faded from the public eye — though it seems to have made enough of an impression to lurk just below the radar for decades to come. In 1932, it reappeared: a letter writer in The New York Times wondered if “a woman whose marital status is in doubt” should be addressed as M’s or Miss. And in 1949, the philologist Mario Pei noted in his book “The Story of Language” that “feminists, who object to the distinction between Mrs. and Miss and its concomitant revelatory features, have often proposed that the two present-day titles be merged into a single one, ‘Miss’ (to be written ‘Ms.’).”

 

The genesis of Ms. lay buried in newspaper archives until earlier this year, when after much painstaking hunting through digitized databases I found The Sunday Republican article that started it all. A few years ago I stumbled upon a mention of the article in another newspaper, The New Era, of Humeston, Iowa, on Dec. 4, 1901. Fred Shapiro, the editor of “The Yale Book of Quotations,” then found an excerpt from The Sunday Republican article in The Salt Lake Tribune. After discovering that The Sunday Republican had recently been scanned and digitized by Readex, a publisher of digital historical materials, I was finally able to zero in on this forgotten document.

 

It was certainly unknown, in 1961, to Sheila Michaels, a 22-year-old civil rights worker in New York City, who one day spotted it on a piece of mail that her roommate received. In fact, she initially took it as a typo, albeit a felicitous one. Fiercely independent, Michaels abhorred having her identity defined by marriage. Struck by Ms., she became a one-woman lobbying force for the title as a feminist alternative to Miss and Mrs. She even unwittingly replicated The Republican’s rationale for pronouncing Ms. as “mizz,” since she had noticed this ambiguous spoken form when she was a child growing up in St. Louis.

 

For several years her fellow activists evinced little interest. The turning point, Michaels told me recently, came when she was interviewed on the progressive New York radio station WBAI in late 1969 or early 1970. The program “Womankind” invited her on with other members of a radical group known simply as the Feminists, and during a lull in the show she plunged into her impassioned plea for Ms. Her advocacy finally paid off. The following August, when women’s rights supporters commemorated the 50th anniversary of suffrage with the Women’s Strike for Equality, Ms. became recognized as a calling card of the feminist movement.

 

August 3, 2017 in Gender, Pop Culture | Permalink | Comments (0)

Demphasizing Gender with the Neutral Pronouns Mx and Their

Heath Fogg Davis, How We're Redefining Gender in the 21st Century

In the United Kingdom, the gender-neutral honorific "Mx" is increasingly being used on driver's licenses and bureaucratic forms such as banking statements. Americans, however, have been slower to use Mx in lieu of Mr. or Ms.

 

The honorific "Ms." was first introduced in 1901, but it took several decades for it to be adopted by linguistic gatekeepers such as the New York Times, which only began using it in 1986 alongside "Mrs." and "Miss." How long will it take for Mx to take hold on our side of the pond?

 

New policies, language and forms of address recognizing nonbinary gender identities and classifications are prompting Americans to move beyond the assumption that everyone should assimilate into the categories of male or female. The times are changing, and so is our language. ***

 

Even the bureaucracy of gender is changing. Washington, DC and the state of Oregon now offer a nonbinary gender option on their driver's licenses, and New York has proposed similar legislation. Instead of M for male or F for female, these policies allow drivers to choose X for "unspecified." California lawmakers have proposed adding a third unspecified gender designation not only to driver's licenses but to birth certificates, too. If passed into law, parents in that state will be able to override the longstanding practice of letting medical professionals decide and record on birth certificates whether their children are male or female based upon the appearance of their genitals at birth.

August 3, 2017 in Gender | Permalink | Comments (0)

Monday, July 31, 2017

Book Podcast: After Roe: The Lost History of the Abortion Debate

New Legal History Podcast: Mary Ziegler's After Roe

In this special summer episode, we take a step back from reviewing to introduce listeners to H-Law's new legal history podcast. Robert interviews H-Law's podcast producer and host Siobhan Barco and we run in full her first episode, an interview with legal scholar Mary Ziegler, author of After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015). From Siobhan's description of the episode:

Ziegler’s work uses the landmark American abortion rights case, Roe vs. Wade to explore litigation as a vessel for social change and the role the court plays in democracy. In addition to traditional archival research, Ziegler recorded over one hundred oral histories of people in the pro-life and pro-choice camps, allowing her to move beyond caricatures and delve more precisely into the  catalysts for these individual’s points of view.

Topics we discuss include:

(1)Whether Roe is overstated as a cautionary tale for judicial intervention

(2)How the bright line divide between the pro-life and pro-choice movements had not yet coalesced in the 1970s.

(3)Roe as a canvas onto which activists could project different strategic aims

July 31, 2017 in Abortion, Books, Legal History | Permalink | Comments (0)

Book Review: Gendered Law in American History

Janet Halley, Book Review: Richard Chused & Wendy Williams, Gendered Law in American History (2016), JOTWELL

Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what didhappen with this issue or that in the transformative-yet-reactionary 19th Century?

 

But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours.  But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!

 

The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths.

*** 

One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.

July 31, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Wednesday, July 19, 2017

Rewritten Feminist Judgments: The Tax Opinions

Bridget Crawford & Anthony Infanti, Introduction to Feminist Judgments, to Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., Cambridge University Press, 2017, Forthcoming).

Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings together a group of scholars and lawyers to rewrite tax decisions in which a feminist emphasis would have changed the outcome or the court’s reasoning. The volume includes cases that implicate gender on their face (like medical expense deductions for fertility treatment or gender confirmation surgery as well as special tax benefits for married individuals), as well as cases that require a more nuanced understanding of history, politics and economics (such as the tax treatment of tribal lands and the business expense deduction). This book opens the way for a discussion of how viewpoint is a key factor in statutory interpretation.

July 19, 2017 in Gender | Permalink | Comments (0)

Book Review of Sanger's About Abortion

David Pozen, The Abortion Closet

An enormous amount of information and insight is packed into Carol Sanger’s About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is  anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

 

The panoramic ambition of the book, and its correspondingly multi-disciplinary method, are established in the first chapter, in a section titled “What Abortion Is About.” By the end of this section, the reader has learned something about: Roe v. Wade; various international treaties on the rights of women; abortion training protocols in medical schools; the neurological development of a fetus; the 2004 and 2012 presidential primaries; a 1995 papal encyclical; a 1984 lecture by the New York Governor; a 2001 concurrence by a Mississippi Supreme Court Justice; the 2003 recommendation by a Food and Drug Administration advisory committee to approve the “morning-after-pill” for over-the-counter sale; the anti-abortion turn within certain Protestant denominations in the 1970s and 80s; sociological research on pro-life activists and their views on sex; anthropological research on pregnancy termination decisions following a diagnosis of fetal disability; prostitution laws in New York; abstinence-only programs in Texas; President George W. Bush’s Culture of Life; the rise and rise of parental involvement statutes and personhood amendments; the rise and fall of federal support for family planning organizations and abortion services to pregnant soldiers; the intensifying politics of abortion in state judicial elections; the recent Hobby Lobby litigation over the Affordable Care Act; and the Supreme Court’s decision last Term in Whole Woman’s Health.


This section lasts fourteen pages. It is a testament to Sanger’s skill as a writer and to
her synthetic capacities as a thinker that one comes away from this whirlwind tour feeling not vertigo, but rather an enhanced sense of clarity about the arc of abortion regulation. While the pace soon slows down, the rest of the book maintains a relentless inquisitiveness, ever collecting and connecting data points to help guide the reader through complex socio-legal terrain.

An earlier blog post about Sanger's book is here.

July 19, 2017 in Abortion, Books | Permalink | Comments (0)

Monday, July 17, 2017

Women Under Represented on Irish Juries in Serious Criminal Trials, Especially Rape Trials

Irish Times, Women Under Represented on Juries in Serious Criminal Trials: Gender Imbalance is Most Noticeable in Rape Trials

While it is over 40 years since women won the right to be included on jury selection panels, men continue to dominate most juries in serious criminal trials.

 

An analysis by The Irish Times of 200 trials in the Central Criminal Court, which deals almost exclusively with rape and murder, shows that men dominated the jury in 57 per cent of cases.

 

Women dominated the jury in only 17 per cent of cases, while there was an even six/six split between the genders in 26 per cent of cases.

 

The gender imbalance was most noticeable in rape trials, where 61 of 100 juries were dominated by men compared to only 13 dominated by women. To put it another way, 723 men sat on the juries compared to 477 women.

 

In murder cases male jurors were in the majority in 52 cases compared to 23 with female-majority juries.

 

Both the reasons and consequences of the gender imbalance in Irish juries remain unclear, mainly due to the secretive nature of jury selection and jury deliberation.

 

Many studies suggest women are more likely to judge female rape complainants harshly and to acquit men accused of rape. In 2009, Irish academics who studied 108 rape trials found that male-dominated juries had the highest conviction rate. There was not a single conviction in the 17 cases which had female-dominated juries.

July 17, 2017 in Courts, Human trafficking | Permalink | Comments (0)