Friday, October 31, 2014
Political-correctness 101 dictates that we should avoid gendered versions of job titles: We’re meant to use “server” instead of “waitress”, “actor” for women as well as men. (Thank God the nineteenth-century “doctoress” never caught on.) But sometimes, for valid and non-sexist reasons—like talking about the wage gap—writers need to identify a group of professionals by their gender. Writers who are keen not to offend face a conundrum. “Female” seems like a safe descriptor—“female boss,” “female lawyer,” etc.—but some complain it’s too “clinical.” “Lady” has made something of a come-back as a sort of retro descriptor—“Lady journo,” “lady blog”—but sounds condescending outside of a specific, ironic context. In The Guardian last week, sub-editor Maddie York points out that another word is catching on as an adjective: “woman.” According to York, “‘Woman’ and its plural seem to be taking over the role of modifier, so that now, there is no such thing, as far as much of the media is concerned, as a female doctor, a female MP or a female chef. Instead you hear or read about a woman doctor, a woman MP and so on.”
This is definitely an overstatement, but she has a point: When I started looking for it, I found that the opposite of “male boss” is often not “female boss” but “woman boss.” The BBC contrasts “women managers” with “male” ones. And the Harvard Business Review says: “Only 16% of Republicans prefer a woman boss … young people (18 to 34) are more likely to want a male boss.”
Or so argues one commentator. From the Jurist:
The Constitution provides no citizen of any gender or orientation a Constitutional right to marriage. The Constitution is silent on the issue of marriage. It is not mentioned, and therefore it is not a power delegated to the federal government to regulate. For lawyers, judges and in particular, Supreme Court justices, the inquiry on this issue should end there—right where silence demands judicial inaction.
Thursday, October 30, 2014
The North Dakota Supreme Court on Tuesday reversed a Fargo-based district judge’s ruling that had blocked a 2011 state law limiting drug-induced abortions, letting the law stand despite three of the court’s five justices saying it violates the U.S. Constitution.
Justices were split on whether the law was unconstitutional under both the state and federal constitutions.
The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded the state constitutional issue didn’t need to be decided.
Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.
Tuesday’s opinion hinged on the North Dakota Constitution’s requirement that at least four members of the Supreme Court be in agreement to declare a statute unconstitutional.
For those brave enough to tackle a 103-page opinion and double pluralities, the opinion MKB Management v. Burdick is here.
She The People, WaPo, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers
This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.
“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.
Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?
Indeed it is.
UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.
The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.
In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”
The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.
“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”
The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”
Erin Sheley (GW) has posted Double Jeopardy: The Condemned Woman as Historical Relic, 24 Law & Lit. 211 (2014)
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Wednesday, October 29, 2014
The diverse and robust pool of female founders and tech execs at Fortune’s 40 under 40 party proves positive for Silicon Valley’s future. Editing Fortune’s 40 Under 40 list is, every year, an education in ambition, disruption and extraordinary achievement. The process takes months of reporting, lots of debate and discussion and a healthy amount of handwringing as our deadline looms.
And then comes the fun. Every year, we hold a giant party for the 40 Under 40 and a few hundred other movers and shakers in the San Francisco area. This is always my favorite part of the process. Because our listers? They show up. This year, we had a record number join us, traveling from as far as India (Rahul Sharma, CEO of Micromax) and as close as upstairs (Brian Chesky, CEO of Airbnb, which hosted us in the lobby of the company’s headquarters in San Francisco’s SoMa district).
There were lots of local, Bay Area-based names, including Lyndon Rive, cofounder of SolarCity SCTY 3.82% , Josh Tetrick of plant-based food engineer Hampton Creek, Tristan Walker of Walker & Co/Bevel, Kabam’s Kevin Chou, Mason Morfit, president of ValueAct Capital (and youngest person on Microsoft’s board MSFT 1.26% ). Many more traveled to be there: SBE Entertainment Group’s Sam Nazarian, from Las Vegas; Nate Morris of waste-management disruptor Rubicon Global, in from Kentucky; Anthony Watson, CIO of Nike NKE 0.88% , who flew in from Beaverton, Ore; and President Obama’s deputy national security adviser Ben Rhodes, who was able to break away from his boss for a quick trip west. There was, of course, a healthy crew from New York, including VaynerMedia CEO Gary Vaynerchuk, NYSE president Tom Farley, Highbridge Principal Strategies’ Mike Patterson and Blackstone’s Peter Wallace.
THERE is much to be unhappy about in Iran. Depression, drug addiction and cancer are at record rates, while divorce is nearing Western levels. But most worrying are new attempts to control women. Restrictions in Iran may not rival Saudi Arabia—Iranian women are permitted to drive and openly socialise with male friends—but a political debate has broken out about how they should conduct themselves in public. It has gained more urgency after a spate of acid attacks against women in Isfahan, Iran’s third city, this month, apparently for not conforming to Iran’s Islamic dress code. In another blow, on October 25th Iran said it had executed Reyhaneh Jabbari, a 26-year-old woman who killed a man she said was trying to sexually abuse her.
Tuesday, October 28, 2014
Linda McClain at Balkinization on the Puerto Rico same-sex marriage decision and the gendered origins of "traditional marriage."
Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.
To illustrate the consistency of Puerto Rico’s marriage policy, the federal district court observes that, in 1899, when “royal decree brought Puerto Rico within the ambit of the Spanish Civil Code,” that Code governed marriage and the “rights and obligations of husband and wife.” The court traces Puerto Rico path to becoming a “possession” of the United States, observing that the underlying definition of marriage did not change. Thus, marriage, in the 1902 Civil Code, is “ a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife, and to fulfill for one another all the duties that the law imposes.”
But what were those duties imposed by law? The court attaches to its opinion a translation of an excerpt from the 1899 Civil Code, which include certain “rights and responsibilities” of husband and wife: “The husband must protect his wife and the latter obey the husband.” (Art. 57); “The wife is obliged to follow her husband wherever he may establish his residence” (Art. 58); “The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through a solicitor” (Art. 60). The husband is also “the administrator of the property of the conjugal partnership,” unless otherwise stipulated (Art. 59).
These provisions of the Civil Code, rooted in Spanish influence, have parallels in the English common law system of coverture, a system that, as the Supreme Court explained in Planned Parenthood v. Casey, is “no longer consistent with our understandings of the family, the individual, or the Constitution.” Challenging the idea of a consistent marriage policy is the fact that these hierarchical provisions no longer appear in the current version of the Civil Code. Instead, the “duties” of spouses “imposed by law” now take a mutual, gender neutral form: “The spouses shall protect themselves and satisfy their needs in proportion to their conditions and fortune” (Section 282); “The spouses shall decide by mutual agreement where to establish their domicile and residence for the attainment of the best interest of the family” (Section 283); “Both spouses shall be administrators of the community property, except when otherwise stipulated . . .” (Section 284); and “[E]ither of the spouses may legally represent the conjugal community” (Section 286).
These changes are similar to the abrogation of the common law model of marriage. They show how the law of marriage evolves over time. Thus, the “traditional marriage” to which Judge Juan M. Pérez-Giménez appeals has already departed in many ways from “tradition.
National Law J., Survey: Profession Still Struggling for Equal Opportunity
Legal careers have changed greatly since 2000 but the profession is still struggling to establish race and gender equality, according to a joint survey released by the American Bar Foundation and the National Association for Law Placement.
But “After the JD III: Third Results of a National Study of Legal Careers” also indicates that most lawyers remain moderately or extremely satisfied with their choice to pursue law. They represent 76 percent of respondents in surveys conducted in 2012, 2007 and 2003.
“You might think after the recession that people would dial back on that answer, but it’s pretty much the same,” American Bar Foundation director Robert Nelson said of the satisfaction number.
The so-called “Wave 3” survey, released Thursday, was based on 2012 interviews of 2,862 lawyers who passed the bar in 2000. That’s a 53 percent response rate for the 5,353 surveys sent to a pool of lawyers who had responded to either or both of the earlier surveys. The three surveys comprise a long-term study of a nationally representative group of lawyers at different stages in their careers.
The surveys collectively show striking gender differences in lawyers’ earning power. According to the latest survey, the income gap between men and women was 5 percent after two or three of practice, 15 percent after seven years and 20 percent after a dozen years of practice.
Most of that gap occurs in the private sector. Women in public sector jobs earned 96 percent to 98 percent of what men did in comparable jobs.
“It’s certainly nothing new [but] it’s profound that we have not made much progress on that front in the legal profession,” Nelson said.
Women, along with racial and ethnic minorities, are more likely to experience social isolation and firms can do more to integrate them into the fabric of the enterprise, he said. Women and minorities also are less likely to inherit a book of business from a senior partner than is the case for white males. “That seems to be the critical dynamic,” Nelson said.
Joseph Seiner (South Carolina), Title VII and Tort Law: A New Perspective at Jotwell reviews Martha Chammallas (Ohio State), Two Very Different Stories: Vicarious Liability under Tort and Title VII Law.
In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.
Monday, October 27, 2014
The story, and the excerpt:
RALEIGH, N.C. — An exclusive WRAL News poll shows North Carolinians are evenly divided about whether legislative leaders should fight to keep the state’s same-sex marriage ban in place, despite court rulings that have found it unconstitutional.
Saturday, October 25, 2014
From the program for the 2014 American Society of Legal History conference coming up Nov. 6 in Denver. Here are the presentations related to gender and the law. It is really great to see so many talks in this field.
On the panel "Gender in US Legal History"
Chair/Commentator: Serena Mayeri, University of Pennsylvania Law School
Kimberly A. Reilly, University of Wisconsin-Green Bay, “For Love or Money: Loss of Services Suits and the Transformation of Wives’ Household Labor, 1870-1920”
Larissa Werhnyak, University of Iowa, “To Make the World Safe For Men: The Anti-Heart Balm Campaigns of the 1930s”
Jeffrey D. Gonda, Syracuse University, “On a Different Home Front: Black Women & Shelley v. Kraemer, 1944-1948”
Lauren MacIvor Thompson, Georgia State University, “'An Outrage to Common Sense': Legal and Medical Conceptions of Female Disability in the Women's Rights Movement, 1870-1930”
On the panel "Contesting Custody, Creating Rights: Family Law and Equality Claims in Late 20th-Century America"
Chair:Commentator Karen M. Tani, University of California-Berkeley School of Law
Deborah Dinner, Washington University School of Law, “The Divorce Bargain: The Fathers’ Rights Movement and the Dual System of Family Law”
Serena Mayeri, University of Pennsylvania Law School, “Unmarried Fathers, Sex Equality, and Marital Supremacy, 1970-1983”
Marie-Amelie George, Yale University, “The Custody Crucible: The Centrality of Lesbian Mother Custody Cases in Gay Rights”
On the panel "Women Acting Locally, Women Acting Globally: Female Activists Trying to Shape a Modern World Across the 20th Century"
Chair/Commentator: Nupur Chaudhuri, Texas Southern University
Susan Hinely, Stony Brook University, “The Theory and Practice of International Justice in the Pre-War Suffrage Movement”
Kathleen Banks Nutter, Smith College, “‘Abundant life for all’: American YWCA Workers in Turkey, 1920-1935”
Gwen Jordan, University of Illinois-Springfield, “Building Transnational Coalitions of Women of Color During the Cold War: The Work of Edith Sampson and the National Council of Negro Women”
And presentations included on other panels:
Katrina Jagodinsky, University of Nebraska-Lincoln, "The Legal Pluralisms of Indigenous Women and their Daughters, 1854-1934”
Donna Schuele, University of California-Irvine, “California's Women's Rights Movement: The Promise and Perils of the 14th Amendment”
Nan Goodman, University of Colorado-Boulder, “'I hear no things laid to my charge': Oral and Written Discourse in Anne Hutchinson's Trial Transcript”
Sarah Bakkali, Université Panthéon-Assas (Paris II), “Female Impotence in Medieval Canon Law”
Alison L. Lefkovitz, NJIT/Rutgers University-Newark, “Husbands and Wives at Risk: Sexual Access, Household Labor, and Backlash, 1963-1984”
Evelyn Atkinson, University of Chicago (student), “The Telegraph Cases: Law, Gender, Family, and Corporate Responsibility in the Late 19th Century"
But to the professor Kevin Allred and 32 students at Rutgers University, Beyoncé is something more—a feminist, a gay icon, and a powerful political figure.
Allred teaches a wildly popular women’s studies course, Politicizing Beyonce: Black Feminism, US Politics, & Queen Bey.
The class is at capacity, and the room is cramped—especially because Allred encourages students to bring their friends. But that doesn’t stop them from rocking out to Beyonce’s greatest hits.
“They usually sign up because they're big fans of Beyoncé's music, but they quickly start to make connections beyond just being fans," Allred says.
Allred, 33, says he’s been a huge fan of Beyoncé for a long time, but he didn’t think of her as a political actor until he came across an essay by Yale Professor Daphne Brooks that linked the singer to black, female disempowerment. ***
In Allred’s course, Beyonce’s music is paired with black, feminists texts, another love of his.
“That way, students are getting an education in the history of black feminist theory in the US, just using Beyoncé as the focal point,” he says. “I let them be pretty fan-oriented on the first day, but urge them for the remainder of the semester to push past that and engage academically.”
The Miami-Dade chapter of the Florida Association for Women Lawyers has asked NBC to cancel a new comedy series about a hard-drinking, hard-partying female judge—appropriately titled Bad Judge, the Miami Herald reports.
“Our organization understands that Bad Judge may be intended to be hyperbole, but we nonetheless find it damaging to women in the legal profession,” Deborah Baker, president of FAWL’s Miami-Dade chapter, wrote in an Oct. 16 letter (PDF) to Steve Burke, NBC’s CEO.
The show depicts the judge as “unethical, lazy, crude, hypersexualized and unfit to hold such as esteemed position of power,” Baker wrote. ***
Baker, a name partner in Miami’s nine-lawyer Lipscomb, Eisenberg & Baker, does commercial litigation. In her letter to NBC, Baker noted that “the Archie Bunker show in the 1970s” was a comedy making fun of bigotry, using jokes “that included racist language.” She added that studies found the show was counterproductive in that area.
Friday, October 24, 2014
To identify a certain set of skills associated with manliness is always to traffic perilously in either incoherence or comedy, or both. (This is not to suggest that there are no virtues associated with manliness; courage, obviously, is chief among them according to societal convention.)
The Art of Manliness blog has a collection of "Manly Skills." It is not clear whether these purported skills are meant to be offered in the spirit of farce or earnestness; some are, I know, meant to be the former, but others aren't clear. Men, we are told, should know how to paddle a canoe, how to fake levitate, do Brazilian jujitsu, split wood with an ax, and make the world's best paper airplanes.
The litany of skills leads me to ask if manliness itself doesn't straddle the line between the comical and the earnest.
Thursday, October 23, 2014
So suggests the Korea Herald. The fertility rate (or lack thereof) among South Koreans is owing in part to the class inequality in the country and the demands of an industrial nation-state.
South Korea’s low birthrate is generating deep concern among policymakers.
The government is scrambling to shore up the falling birthrate, a threat that could jeopardize Asia’s fourth-largest economy, which is saddled with a rapidly aging population.
What many policymakers have failed to tackle is the underlying problem that forces Koreans to delay or forgo having children.
Just ask Kim Jin-ah, a 28-year-old Seoulite who still hasn’t been “properly” employed, despite her two university degrees.
“I don’t think marriage is an option for me right now,” said Kim, who currently works as a part-time tutor. “Having kids is just not even thinkable. I can’t even take care of myself right now. I am not sure if I deserve to be happy at this moment.”
After finishing her master’s degree in biology, Kim, at age 26, realized she didn’t want to be a scientist. She started looking for jobs ― a full-time position that would pay her enough to move out of her parents’ house and start a family of her own ― but never found one.
During one job interview, for a marketing position at a big firm, Kim was told that she was “too old” for the company’s entry-level positions.
Kim, who lives with her parents, is considering going back to school, or even overseas for job opportunities. She is putting off marriage until she gets a full time job.
“If you are not working full time and want to be married, you have to have wealthy parents,” she said. “That’s just not the case for me.”
I wrote an article, related to my current book project, on feminist icon Elizabeth Cady Stanton’s views on abortion. Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012). The article was triggered by a political misuse of Stanton for modern feminist-for-life anti-abortion advocacy, which claims she was a strong pro-life advocate. My research showed that Stanton said little about abortion per se. And what she did say about reproductive rights – women’s unilateral right to self-sovereignty in reproductive decisionmaking and justice and forgiveness for women’s crimes of infanticide—suggests the opposite. That to the contrary, her work provides historical support for a woman’s right to personal choice.
I’ve turned up a few more pieces of historical evidence since the publication of the article. Here’s an excerpt from the book chapter draft:
Stanton elaborated on this concern with enlightened motherhood, growing more melodramatic and emphatic. Writing to the Seventh Convention on Woman’s Rights, Stanton said polluted marital relations [with abuse, alcoholism, and misery] produced “the shocking monstrosities of . . . deformed and crippled offspring,” “miserable progeny conceived in disgust and brought forth in agony,” and often confined to asylums. Letter from Mrs. Stanton to Seventh National Woman’s Rights Convention, Nov. 24, 1856. Another consequence of the perversions of marriage was abortion, “What all these advertisements in our public prints, these family guides, these female medicines, these Madame Restells?” Abortion, asylums, and disabled children, Stanton argued, showed “what a depth of degradation the women of this Republic have fallen, how false they have been to the holy instincts of their nature, to the sacred trust given them by God as the mothers of the race?” Women, Stanton argued, had a higher duty to control and deliberate in reproduction, not simply propagate. Her solution was to “let Christians and moralists pause in their efforts at reform and let some scholar teach them how to apply the laws of science to human life.” To her readers in the Revolution, she emphasized the need to base the fundamentals of social and family life “on science and philosophy by educating women into the idea that to bear noble children to noble men with sound bodies and sound minds, is a worthy work and one that brings its own happiness and reward.” But, she continued, “to fill the world with idiots, lunatics, criminals, the blind, the deaf, the dumb,” and to “spend one’s days nursing muling, puling, limp-backed, hydrocephalic abortions of humanity, is not a work worth a Christian woman, but a sin against herself, the state, and a gross violation of the immutable laws of God.” ECS, Mrs. Stanton and the Chicago Tribune, Rev., Feb. 8, 1871.
The eugenic context, then considered an emerging science, is stocking to us today. And that is a story in and of itself. But what can we make of this from a feminist perspective? That Stanton endorsed women’s right, indeed moral duty to control reproduction. That she supported science to control birth. That she argued for a consideration of the health consequences to the child, as women do today when making difficult decisions about severe health defects shown in prenatal testing. And that she condemned religious moralists for their mandates to women on motherhood.
Wednesday, October 22, 2014
There are sundry differences between the two. One stands out: Sheldon supports the right of gay couples to marry; Bondi opposes their right--vigorously. Here is an excerpt from her defense:
Arguing against a lawsuit that says Florida discriminates by not recognizing gay marriages from other states, Attorney General Pam Bondi's office wrote: … disrupting Florida's existing marriage laws would impose significant public harm.
Which sure sounds like: Changing the law to allow gay marriage would hurt Florida.
And this eyebrow-raising passage: Florida's marriage laws … have a close, direct and rational relationship to society's legitimate interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who produced them in stable and enduring family units.