In March 2015, lawyer Dora Monserrate-Peñagaricano was representing a client in a deposition hearing in the U.S. District Court for Puerto Rico when she complained aloud to a colleague that the room was hot.
Tuesday, April 25, 2017
In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.
Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”
Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***
Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.
Monday, April 24, 2017
Deborah Jones Merritt, Ruth Colker, Ellen Deason, Monte Smith & Abigail Shoben, Formative Assessments: A Law School Case Study, Univ. Detroit Mercy L. Rev. (forthcoming)
Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.
Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.
In addition to exploring these relationships between formative assessment and academic achievement, we discuss several race and gender effects that emerged in our analyses. Women, for example, were significantly more likely than men to complete the formative assessment. Women also received significantly higher grades than men in a spring-semester course on Legal Analysis and Writing; men, conversely, received significantly higher grades than women in a Legislation course. A race effect, meanwhile, emerged for students with LSAT scores at or above the school median: Among those students, nonwhite students who completed the formative assessment achieved significantly higher grades in Constitutional Law than white students who submitted the same exercise.
All of these relationships deserve further empirical study. In particular, our results suggest the importance of examining the transfer effects of formative feedback, gender differences in law school learning, and paths for improving the academic experience of minority students.
Griffin Ferry, Oppression Through “Protection”: A Survey of Femininity in Foundational International Humanitarian Law Texts, 35 Law & Inequality: A Journal of Theory and Practice 57 (2017).
War is often assumed to be a space devoid of a regulatory framing—characterized as inherently contrary to and separate from the input of social and ethical values expressed in laws—but international humanitarian law (IHL) contradicts this mistaken assumption. A field as fluid as the conflicts it addresses, IHL has developed into a highly-regimented, value-driven framework that increasingly affects and constrains state behavior. Regulatory codifications of IHL are necessarily backwards-looking, arising in response to technological, political, and social developments that continuously change the nature of armed conflict. Despite this continual evolution, the oppression of women has been thematically constant over sixteen centuries of IHL evolution, an unfortunately consistent value that has far-reaching impacts for the field.
The foundational doctrines of IHL evidence the marginalization of women in various ways. Notably, the doctrines repeatedly use essentialized conceptualizations of women as weak, infantile persons requiring protection from physical violence above all else to justify oppressive codifications. Ostensibly progressive IHL codifications rest on theoretical underpinnings that modernize historic inequality and perpetuate IHL’s androcentric condition.
This Article unearths and analyzes the patriarchal roots of IHL and its essentialized conceptualizations of women with a gender-focused examination of the Summa Theologica, the Lieber Code, the Hague Conventions, and the Geneva Conventions. These foundational IHL texts contain recurring themes that marginalize, sexualize, and infantilize women under the guise of protection. The texts are fora in which the objectification and marginalization of women in conflict are surreptitiously endorsed and legitimized. Understanding the history and forms of female oppression is a critical first step toward ensuring the future of IHL does not perpetuate the shortcomings of the past.
Wednesday, April 19, 2017
Updated April 19, 2017
The appointments of new law deans this year is trending women. For the 2017 appointment season, thus far, 12 of 18 (63%) new deans are women. Two are women of color.
For my thoughts as to possible explanations for this trend, see my quoted comments in Karen Sloan, If It's a New Law Dean, It's Likely a Woman.
In 2015, 46% of new law dean appointments were women. Annual List of New Women Law Deans.
Still, a new study of law school deans, US Law School Industry: Dean Positions 2015-2016, concludes that “Law programs and their leadership remain potentially gendered. . . . Women continue to be substantially under-represented at the highest levels of leadership, though we find that differences are significantly less pronounced at Assistant and Associate Dean positions.”
Here is the 2017 list::
Aviva Abramovsky, Buffalo (Associate Dean for International Initiatives, Syracuse)
Joan Bullock, Thomas Jefferson (Associate Dean for Academic Affairs, Florida A&M)
Marcilynn Burke, Oregon (Associate Dean for Academic Affairs, Houston)
Cathy Cox, Mercer (President, Young Harris College, former Secretary of State Georgia)
Megan Carpenter, New Hampshire (Co-Director, Intellectual Property, Texas A&M)
Darby Dickerson, John Marshall Chicago (Dean, Texas Tech)
Susan Duncan, Univ. of Mississippi (Interim Dean, Louisville)
Heather Gerken, Yale (Professor, Yale)
Rachel Janutis, Capital (Interim Dean, Capital)
Judge Madeline Landrieu, Loyola New Orleans (Judge, Louisiana Court of Appeal)
Lyrissa Lidsky, Univ. of Missouri (Associate Dean, Graduate Programs, Florida)
Hari Osofksy, Penn State (Professor, Minnesota)
The men appointed to new deanships are:
Paul Caron, Pepperdine (Professor, Pepperdine)
Dan Filler, Drexel (Associate Dean, Drexel)
Michael Hunter Schwartz, McGeorge (Dean, Arkansas)
Michael Kaufman, Loyola Chicago (Professor, Loyola Chicago)
Gregory Mandel, Temple (Interim Dean, Temple)
CJ Peters, Akron (Associate Dean for Scholarship, Baltimore)
Tuesday, April 18, 2017
Jane Murphy & Solangel Maldonado, Reproducing Gender and Race Inequality in the Blawgosphere, in The Fate of Legal Scholarship (forthcoming Cambridge Press)
Abstract: The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this emerging form of scholarship. Finally, we offer suggestions for reversing these trends and creating a more inclusive blogosphere and enriching its potential for lively, informed scholarship.
III. Gender and Legal Blogging: Why Don’t More Women Promote Their Scholarship Through Blogging?
Given all these benefits [of blogging], you would expect to see a broad and diverse range of law faculty bloggers, including a high percentage of women blogging on these oft cited, highly visible legal blogs. The opposite is true. While women are more active participants than men in social media generally and on some legal blogs, they are underrepresented in these highly rated law-related academic blogs.
The relative lack of female voices in the upper echelons of the legal blogosphere may be traced to gender patterns in traditional legal scholarship. A variety of studies have documented the gender disparity in law review publication.
Commentators have suggested a number of possible explanations for women’s underrepresentation in scholarship. They include the fact that women, overall, have been teaching in law schools for fewer years than men, they appear in fewer numbers in highly ranked schools, and they tend to be under represented in subjects like Constitutional Law that appear more frequently in prestigious law journals. And just as in traditional scholarship, it appears that the subjects most often discussed in the blogs viewed as most scholarly---Constitutional Law, Civil Procedure, Criminal Law—are subjects taught more often by men. While there are blogs focusing on Family Law, Trusts and Estates, and Feminist Jurisprudence and other areas where female scholars blog in greater numbers, these blogs do not have the visibility of the highly rated blogs.
Women faculty also tend to have less time for scholarship given that they devote more time to serving law schools in committee work and student contact. And women, including law school faculty, still take on greater share of family responsibilities than their male counterparts
While the ease of blogging may offer new opportunities for female scholars, at least one commentator has concluded that “[T]he online world of legal scholarship may ultimately replicate many of the hierarchical and gendered structures found in the offline world of legal scholarship.” The reasons for this prediction echo those that have contributed to women’s inability to keep pace with men in the world of traditional scholarship. It begins with having the time to blog. Even with the shorter, more informal style of blogging, being a regular contributor to a blog takes time.
A more speculative and less quantifiable reason for women’s lagging behind in both traditional scholarship and blogging is what has become known as the “confidence gap” between men and women. This term refers to the research findings that conclude a “vast confidence gap that separates the sexes. Compared with men, women don’t consider themselves as ready for promotions, they predict they’ll do worse on tests, and they generally underestimate their abilities.”
When women do assert themselves and express strong points of view, they expose themselves to negative, gender-based comments. This may also account for female scholars’ reluctance to blog. An increasingly well-documented body of research indicates that women face a disproportionate amount of gender-based online or “cyber harassment” in social media.
Recommendations from the authors for change:
- First, we should all be alert to the racial and gender disparities and explore ways to address them. For example, bloggers on general interest blawgs can blog about these disparities and explain why we should all be concerned when the perspectives of women and minorities are absent.
- Second, bloggers should look beyond their informal networks when inviting faculty to blog and when selecting books to review for online symposia.
- Third, law schools should recognize the contributions that bloggers make and support faculty who wish to blog by counting it as scholarship or service.
I remember when this issue first came to my attention years ago. A student in my Family Law class wrote his thesis paper on the topic. I couldn't believe this was the state of the law and asked him to check and recheck his research on the laws and cases. He just kept finding more evidence.
It seemed implausible to me that this was the state of the law given that biological fathers have a difficult time normally getting custodial rights when their only crime is being in a non-marital relationship. Biology is not the only factor for parental rights under the Constitution, the Supreme Court has said, but requires "biology plus." Biology plus the proper social relationship with the child and the mother in a unitary family status. It is hard to argue that rape is a "unitary family status."
Five Maryland legislators could have ended a policy that forces women to share child custody with their rapists. Instead the five legislators, all men, buried the bill.
Maryland is one of seven states without a law allowing women to terminate parental rights for their rapists, if their child was conceived as a result of sexual assault, according to reproductive rights organization NARAL. The state’s current policy forces survivors to negotiate child custody and adoption issues with their attacker. In a bid to update the draconian policy, Maryland Delegate Kathleen Dumais introduced legislation that would allow a woman to cut her rapist’s parental rights.
But while the bill passed both Maryland’s House and Senate, the bill’s text varied between the two legislative bodies. On Monday, the last day of legislative session, a five-person negotiating group was set to decide on the bill’s final text, the Baltimore Sun reported. Instead, the five-man group let the bill fall by the wayside, running out the legislative session’s clock without finalizing the bill’s text. ***
“For those who choose to carry to term, a woman who becomes pregnant through rape runs the risk that the rapist will assert his parental rights,” NARAL’s Maryland branch wrote in a statement of support for Dumais’s bill. “If she chooses to raise the child herself, it could mean her rapist inserting himself into her life for the next 18 years. The perpetrator may also hinder efforts to place the child up for adoption. In some extreme cases, rapists have only agreed to allow an adoption to go forward if the victim promised not to testify against him at Trial.
Here's some of the legal research on the subject:
Kara Bitar, The Parental Rights of Rapists, 19 Duke J. Gender L. & Pol'y 275 (2012)
Katherine Wendt, How States Reward Rape: An Agenda to Protect the Rape-Conceived Child Through the Termination of Parental Rights, 2013 Mich. St. L. Rev. 1763 [Westlaw link]
Jihye Yoo, Xiaohan Mei, Craig Hemmens, and Mary K. Stohr, Rapists' Parental Rights: Adding Insult to Injury, 52 Crim. L. Bull. (2016) [Westlaw link]
Friday, April 14, 2017
Jill Filipovic, Two Books Explore the Furor Over Rape on Campus
According to our last president, several sitting senators, feminist activists and female college students all over the country, sexual violence on campus is one of the most pressing issues facing young American women. Statistics promulgated by the Obama White House declare that an estimated one in five college women will be sexually assaulted. To combat this scourge, universities have hired new administrators, mandated anti-rape training sessions at freshman orientation and sped up the disciplinary process for accused assailants. Prominent feminists and lawyers say many schools are still doing too little to protect female students and far too much to protect male ones.
But according to the Northwestern professor and cultural critic Laura Kipnis, the opposite is true: It’s now men who are the victims of a nationwide sexual panic, one seated more in traditional views of women as vulnerable and sexually passive than in a feminism that recognizes young women to be self-sufficient independent actors (who are also human enough to make, and learn from, stupid sexual blunders).
Kipnis’s “Unwanted Advances: Sexual Paranoia Comes to Campus” focuses on one professor whose career was ruined by accusations of sexual assault and the ensuing Title IX investigation. Kipnis is drawn into this man’s professional drama after she too was on the receiving end of two Title IX complaints stemming from an essay she wrote deploring her university’s policy of frowning on relationships between teachers and students. Her book is a look at the secretive and largely unaccountable processes by which campus sexual assault allegations are investigated and adjudicated, using a handful of real incidents to illustrate her broader argument that complex interpersonal relationships and dumb drunken mistakes are now the quasilegal purview of well-paid administrators more interested in protecting a university’s reputation — even if it means ruining a few men’s lives — than seeking either truth or justice. The high-volume conversation about campus sexual assault, she says, is a kind of black-and-white gender traditionalism dressed up in feminist clothes, obscuring ambiguities and power plays inherent to human sexual desire, and instead casting adult women as innocent victims (or victims-in-waiting) and men as either rapists or potential predators.
And yet I loved reading it. Kipnis’s book is maddening; it’s also funny, incisive and often convincing. ***
If only the same could be said about “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by KC Johnson, a professor at the CUNY Graduate Center, and Stuart Taylor Jr., a contributing editor at National Journal. An in-depth look at how universities compromise due process norms in adjudicating sexual assault cases — and it is clear they do — is overdue; instead, the authors choose a handful of egregious examples to make the case that campus sexual assault isn’t all that common and that the bigger problem is innocent young men railroaded by promiscuous women who get drunk and regret their choices, or flat-out lie at the behest of conniving campus feminists. Instead of an honest analysis of the complex issues and competing values at play, the book teems with vastly overstated claims, questionable statistics and quotes massaged beyond their original meaning.
“You’re not getting menopause, I hope,” interjected the opposing lawyer, Camilo Salas, in front of 14 other, mostly male, lawyers.
Monserrate bridled at his comment. And in a sanctions hearing several months later, U.S. District Judge Francisco A. Besosa also chastised Salas for it, quoting the American Bar Association report First Chairs at Trial: More Women Need Seats at the Table to emphasize the comment’s discriminatory nature and negative impact: “An ABA report published this year,” stated the judge, “identified ‘inappropriate or stereotypical comments’ directed at female attorneys by opposing counsel as one of the causes of the marked underrepresentation of women in lead trial attorney roles.”
It’s not the only time that the First Chairs report—which examines why there is a dearth of women lawyers in lead counsel and trial counsel posts and what to do about it—has been cited in sanction hearings. Since its release in 2015, this first-of-its-kind study, published as a joint project of the American Bar Foundation and the ABA Commission on Women in the Profession (CWP), seems to be having the precise effect that its coauthors hoped it would.
“I think having judges call that behavior out, and having a study that they can rely on,” is a powerful tool for change, says coauthor Roberta D. Liebenberg, a former chair of the CWP and a senior partner at Philadelphia-based Fine, Kaplan and Black, R.P.C. Stephanie A. Scharf, who heads the litigation practice at the women-owned Chicago firm Scharf Banks Marmor LLC, served as Liebenberg’s coauthor.
The two began by taking a random sample (608 cases) of all the civil and criminal cases filed in 2013 in the U.S. District Court for the Northern District of Illinois. They examined the cases from the perspectives of (1) type of case, (2) type of practice setting, and (3) type of client. They found that women were consistently underrepresented in lead counsel roles in almost all types of legal settings. Notably, men were three times more likely than women to serve as lead counsel in civil cases. And when surveying criminal cases, the authors found that men were four times more likely than women to serve as trial lawyers.
“You could go into any courtroom and just by being there know that there are not enough women as first chair trial lawyers,” Liebenberg says. “But because we did the statistics, the thing has really taken off. It’s been cited by several courts in sanctioning lawyers for biased behavior, like during a deposition. It’s been cited in a law review article. It’s been cited by The Wall Street Journal and the New York Times. And it really shows you how important the statistical backup is—to validate what we can all see with our eyes.”
Thursday, April 13, 2017
The Organization of American Historians has announced it book awards for 2016. Those that may be of interest on gender and law include:
Darlene Clark Hine Award for the best book in African American women’s and gender history.
LaShawn D. Harris, Michigan State University, Sex Workers, Psychics, and Number Runners: Black Women in New York City's Underground Economy (University of Illinois Press).
Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.
Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press).
David Montgomery Award for the best book on a topic in American labor and working-class history, with cosponsorship by the Labor and Working-Class History Association (LAWCHA).
Ryan Patrick Murphy, Earlham College, Deregulating Desire: Flight Attendant Activism, Family Politics, and Workplace Justice (Temple University Press).
Google has discriminated against its female employees, according to the US Department of Labor (DoL), which said it had evidence of “systemic compensation disparities.”
As part of an ongoing DoL investigation, the government has collected information that suggests the internet search giant is violating federal employment laws with its salaries for women, agency officials said.
“We found systemic compensation disparities against women pretty much across the entire workforce,” Janette Wipper, a DoL regional director, testified in court in San Francisco on Friday.
Reached for comment Friday afternoon, Janet Herold, regional solicitor for the DoL, said: “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”
Herold added: “The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry.”
Google says it's "taken aback" by the Labor Department's claim it doesn't fairly compensate women.
The Internet giant says it conducts robust scientific analysis to ensure there is no gender pay gap.
"It’s very important to us that men and women who join Google in the same role are compensated on a level playing field, when they start and throughout their careers here," Eileen Naughton, Google's vice president of people operations said in a blog post.
An ongoing Department of Labor investigation found that Google systematically pays women less than men, according to department officials. The alleged pay gap was uncovered during a routine audit of Google which, as a federal contractor, is barred from discriminating against employees.
We have laws about paying people who do the same job different amounts because of their gender. Similarly we don't allow people doing the same job to be differentiated against (or in favour of) according to the melanin content of their skin, their national origin nor whichever expressed gender they prefer to chat up on date night. But all of that is about the same job.***
When we move the goalposts a bit and start talking about similar jobs then, well, then it's all different, isn't it? Is an HR manager doing the same job as a programming manager? No, obviously not--but are they doing a similar job?
Google is using a strict definition of "same job" to find no gender pay gap. The Department of Labor is using a looser definition of "similar job" to find that there is one. Who you think is right here is entirely up to you but that's where the disagreement is.
“Making feminism a universal pursuit might look like a good thing,” author Jessa Crispin writes, “but in truth it progresses, and I think accelerates, a process that has been detrimental to the feminist movement.”
Crispin has written a polemic titled Why I am Not a Feminist, in which she laments the banality of contemporary feminism. Her thesis is simple enough: At some point, feminism lost its political moorings; it became vapid and toothless in its quest for universality. Feminism became a catch-all term for self-empowerment, for individual achievement.
Feminists, she believes, forsook their values for the sake of assimilation, which is another way of saying they were co-opted by the system they once rejected.
Monday, April 10, 2017
Terry O'Neill, President, National Organization for Women, What Does the Minimum Wage Have to Do with Reproductive Rights?, 49 Akron Law Review 314 (2016)
In January of this year, I had the honor of delivering remarks at the AALS Section on Socio-Economics annual luncheon. The subject of my talk, What does the minimum wage have to do with reproductive rights?, undoubtedly struck many in the audience as attempting the impossible— linking two issues that, while each important and timely, are entirely separate. Surely, the argument goes, a woman’s right to choose abortion simply does not occupy the same analytical or policy space as a worker’s right to fair wages and terms of employment.
In this Essay, however, I will sketch out my reasons for claiming that these issues are inextricably interwoven—that in fact, the minimum wage issue is a women’s issue, while reproductive justice is an economic issue, not only for women but for their families as well. ***
The most immediate reason I hold this view, of course, is that I lead the National Organization for Women (NOW), which has long taken up economic justice and reproductive rights as “core issues” that are both intertwined and equally salient. Indeed, the organization’s bylaws declare its purpose as leading societal change through “intersectional grassroots activism,” and it has long identified six core issues, the four in addition to the two named above being: to end racism; win lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights; end violence against women; and amend the U.S. Constitution to include equality for women. Not only are these core issues viewed as deeply linked, but under NOW’s internal policies, one may not be prioritized over the others. As a result, should you ask any longtime NOW leader what the minimum wage has to do with reproductive rights, your most likely answer would be, “Well . . . that’s obvious!”
Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.
In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.
Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”
Jennifer Hendricks, Fathers and Feminism: The Case Against Genetic Entitlement, 91 Tulane L.Rev. 473 (2017)
This Article makes the case against a nascent consensus among feminist and other progressive scholars about men’s parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants.
These proposals disregard the mother’s existing parental rights and transfer too much power from women to men. Although they directly affect only a particular class of legal disputes about genetic fathers and adoption, their implications stretch not only to other kinds of custody disputes but also to the law’s treatment of sex and gender differences in reproduction more broadly. The principle of genetic entitlement that underlies these proposals is male-centered and therefore an undesirable basis for the law of reproduction and parentage.
Thursday, April 6, 2017
Renee Blocher, Sex Discrimination, Plain and Simple: A Corpus Analysis
From the Abstract:
“Sex” and “gender” are words that are often used interchangeably, but some argue that these terms have distinct meanings and insist they should be used carefully and deliberately. While linguistic intuition is useful and productive in some circumstances, it is not accurate when it comes to determining the most common usage of words. The best way to determine if gender and sex are near synonyms and interchangeable or else two distinguishable concepts is to examine how these terms are actually used in context. This paper uses corpus linguistics to analyze how the terms “sex discrimination” and “gender discrimination” are used in context.
One interesting anecdote:
To Justice Ruth Bader Ginsburg, however, the distinction is not as clear, and the
interchangeability of sex and gender is useful and important. While litigating key sex
discrimination cases in the 1970s, her secretary inquired about her use of the term. Her
I'm typing all these briefs and articles for you and the word sex, sex, sex is on every page. Don't you know that those nine men [on the Supreme Court], they hear that word and their first association is not the way you want them to be thinking? Why don't you use the word 'gender'? It is a grammatical term and it will ward off distracting associations.
Since then, Justice Ginsburg employed the term gender discrimination in her litigation,
but she has not used it exclusively; in her opinion in the VMI case, she used the term sex and sex discrimination.
I'm always interested in new examples of women's historical agency and use of the law.
In February 1783, Belinda Sutton petitioned the Massachusetts General Court for a pension from the estate of Isaac Royall Jr, her late master. (In this petition she names herself simply ‘Belinda, an Affrican’, but in later documents she gave the surname Sutton, her married name.) She had been born in Ghana 70 years earlier and kidnapped by slavers when she was just 12 years old. The petition is one of the earliest narratives by an African-American woman, and an early demand for reparations for the injustice and exploitation of slavery. The court ordered that she should have her pension, but she had to petition again a number of times in later years to continue receiving it.
The Petition of Belinda an Affrican, humbly shews.
That seventy years have rolled away, since she on the banks of the Rio da Valta received her existence. The mountains covered with spicy forests, the valleys loaded with the richest fruits, spontaneously produced, joined to that happy temperature of air to exclude excess, would have yielded her the most compleat felicity, had not her mind received early impressions of the cruelty of men, whose faces were like the moon, and whose bows and arrows were like the thunder and the lightning of the clouds. The idea of these, the most dreadful of all enemies, filled her infant slumbers with horror, and her noontide moments with cruel apprehensions! But her affrighted imagination, in its most alarming extension, never represented distresses equal to what she hath since really experienced. For before she had twelve years injoyed the fragrance of her native groves, and e’er she realized, that Europeans placed their happiness in the yellow dust which she carelessly marked with her infant footsteps, even when she, in a sacred grove, with each hand in that of a tender parent, was paying her devotions to the great Orisa who made all things, an armed band of white men, driving many of her countrymen in chains, rushed into the hallowed shades! Could the tears, the sighs and supplications, bursting from tortured parental affection, have blunted the keen edge of avarice, she might have been rescued from agony, which many of her countrys children have felt, but which none hath ever yet described. In vain she lifted her supplicating voice to an insulted father, and her guiltless hands to a dishonoured deity! She was ravished from the bosom of her country, from the arms of her friends, while the advanced age of her parents, rendering them unfit for servitude, cruelly separated her from them forever!
Scenes which her imagination had never conceived of – a floating world – the sporting monsters of the deep and the familiar meetings of billows and clouds strove but in vain to divert her melancholly attention, from three hundred Affricans in chains, suffering the most excruciating torments; and some of them rejoicing that the pangs of death came like a balm to their wounds.
Once more her eyes were blest with a continent – but alas! how unlike the land where she received her being! Here all things appeared unpropitious – she learned to catch the Ideas, marked by the sounds of language, only to know that her doom was slavery, from which death alone was to emancipate her. What did it avail her, that the walls of her lord were hung with splendor, and that the dust troden underfoot in her native country, crowded his gates with sordid worshipers? The laws had rendered her incapable of receiving property, and though she was a free moral agent, accountable for her actions, yet she never had a moment at her own disposal!
Fifty years her faithful hands have been compelled to ignoble servitude for the benefit of an Isaac Royall, untill, as if nations must be agitated, and the world convulsed for the preservation of that freedom which the Almighty Father intended for all the human race, the present war was commenced. The terror of men armed in the cause of freedom, compelled her master to fly and to breathe away his life in a land where lawless domination sits enthroned, pouring bloody outrage and cruelty on all who dare to be free.
The face of your petitioner is now marked with the furrows of time, and her frame feebly bending under the oppression of years, while she, by the laws of the land, is denied the injoyment of one morsel of that immense wealth, a part whereof hath been accumilated by her own industry, and the whole augmented by her servitude.
Wherefore casting herself at the feet of your honours, as to a body of men, formed for the extirpation of vassalage, for the reward of virtue, and the just returns of honest industry, she prays, that such allowance may be made her out of the estate of Colonel Royall, as will prevent her and her more infirm daughter from misery in the greatest extreme, and scatter comfort over the short and downward path of their lives
And she will ever pray.
Petition of an African slave, to the legislature of Massachusetts (full text of the printed version of Belinda’s petition, reprinted in William & Mary Quarterly)
With the Trump administration reportedly debating whether to reverse Obama administration guidance on how colleges should investigate sexual assault, a group of trial lawyers has released a report suggesting the current processes on many campuses are unfairly slanted against the accused.
The guidance, issued in a 2011 Dear Colleague letter, was meant to clarify areas of the law, the administration said at the time. It beefed up protections for victims of sexual assault and was a way to push colleges to more thoroughly respond to complaints. Such guidance does not carry the force of law, but it did contain a threat that colleges’ federal funding could be revoked should they fail to comply
The American College of Trial Lawyers, in a report last month, said this prospective loss of funding, combined with heavy media attention on cases of sexual assault, has resulted in colleges sometimes disregarding the rights of those accused and on occasion recklessly siding with someone making a complaint to avoid backlash.
It suggested that:
- All hearings in sexual misconduct cases be conducted keeping in mind even the appearance of partiality -- fact finders assigned to the cases should be vetted for any conflicts of interest or affiliations.
- Anyone accused in a case should be provided with full details of the allegations against them and kept abreast of all evidence as the case proceeds.
- Those accused should be advised of their right to a lawyer and be allowed to have one present at all stages of an investigation.
- Parties, including the one accused, should be allowed to do cross-examination of witnesses. (This could be particularly controversial, considering it is generally advised that victims do not interact with the alleged perpetrator. The lawyers' group notes that court systems have said there are alternate ways to see victim testimony, such as via a tape-recorded message or closed-circuit TV.)
- The accused should be provided with a written record in case they wish to appeal.
Thursday, March 30, 2017
Linda Fenitmen, Blaming Mothers: American Law and the Risks to Children's Health (2017)
In Blaming Mothers, Professor Fentiman explores how mothers became legal targets. She explains the psychological processes we use to confront tragic events and the unconscious race, class, and gender biases that affect our perceptions and influence the decisions of prosecutors, judges, and jurors. Fentiman examines legal actions taken against pregnant women in the name of “fetal protection” including court ordered C-sections and maintaining brain-dead pregnant women on life support to gestate a fetus, as well as charges brought against mothers who fail to protect their children from an abusive male partner. She considers the claims of physicians and policymakers that refusing to breastfeed is risky to children’s health. And she explores the legal treatment of lead-poisoned children, in which landlords and lead paint manufacturers are not held responsible for exposing children to high levels of lead, while mothers are blamed for their children’s injuries.Blaming Mothers is a powerful call to reexamine who - and what - we consider risky to children’s health. Fentiman offers an important framework for evaluating childhood risk that, rather than scapegoating mothers, provides concrete solutions that promote the health of all of America’s children.
Much ado in the news today about the Pence Rule of Working with Women. There are reports of Vice-President Mike Pence’s practice that he “that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side.” It was mentioned in the context of discussing he and his wife Karen have preserved their marriage. Pence’s rule is actually a version of the "Billy Graham Rule" adopted by the famous evangelist. Rev. Graham refused to meet, travel, or dine with a woman alone. A similar story about a similar practice among conservative members of Congress appeared in 2015. The rule is also sometimes thrown around (by non-lawyers) in sexual harassment training as a “best practice” and way for men to protect themselves against false accusations by women.
Commentary has pointed out how the Pence/Graham practice penalizes women by denying them access to fully do their job, as well as advancement. See How Mike Pence's Refusing to Eat with Women Hurts Women And that it is illegal sex discrimination because it denies women equal opportunity in the workplace. The current discussion serves as a reminder of the more subtle ways in which sex discrimination exists in the workplace today, evolved from the days of segregated help-wanted ads into segregated access to full workplace responsibilities.
Missing so far from the discussion is something more fundamental to understanding the law against sexism. What is discriminatory about the Pence-Graham practice is that it reinforces sexist ideas of women. It depicts women as sexual objects, regardless of context. As primarily sexual objects, they are controlled and dominated by male-led society. Systemically this is a legal problem because all women are treated as inferior based on subordinate ideals of women’s true nature as sexual object. This is the core of legal theorist Catharine MacKinnon’s work showing the deeper social and systemic nature of sexism when law and business practices allow it to continue.
MacKinnon made her argument initially in the context of sexual harassment. The Pence Rule is an overcorrection of the same problem. While not encouraging the sexual behavior of women, it still conveys the same message that women exist only for sex and control by men.
Moving from the theoretical to the practical, the Pence Rule also clearly reinforces the notion that women at work are not equally relevant. Men in power have no real need to meet with women in a confidential setting. The judge does not need to deliberate in confidence with a law clerk, the dean does not need to discuss confidential matters with the associate dean, and the president does not need to dine with the prime minister.
Tuesday, March 28, 2017
New data shows that women are underrepresented in the highest levels of leadership because they are being forced out by dated workplace structures. These structures, which do not represent the modern needs of a two-income household labor force, are causing millions of talented employees to fail, especially working mothers—and the result is massive attrition at every point in the leadership pipeline.
Contrary to popular belief, the majority of women who leave the corporate workforce actually want to stay. A recent Bain study showed that women value flexibility over and above any other factor in their career search, including compensation, title, and location. Of the 30 percent of credentialed women who drop out of the workforce, 70percent say they would have stayed if they had access to flexibility. This amounts to 6.6 million women—enough to dramatically increase the number of women in leadership and rapidly accelerate the advancement of corporate gender equality.
Strategic workplace flexibility is the easiest and most cost effective way to retain women in the workplace and advance them to positions of leadership over time.
While many companies have demonstrated a commitment to helping women advance to positions of leadership, they remain largely unsuccessful because strategic flexibility is not a key component of their programming. When companies do provide flexibility programs, they are often underutilized or fail entirely because flexibility is misunderstood. Women tend to not take advantage of existing flexibility policies due to a fear that their requests will make them appear less committed and a concern that flexibility policies will not be faithfully implemented.
Flexibility isn’t simply working from home via video conference or a lifestyle perk like free cereal; it’s a fundamental shift in the way we think about and expect our employees to work. Flexibility does not alter a job’s scope of responsibilities or expected results—it simply modifies the existing agreement between the employer and employee to increase compatibility. And when it’s negotiated in a standardized context, it normalizes the conversation around flexibility and eliminates the bias or discomfort women tend to feel during the interview and hiring process.