Friday, June 2, 2017
From Chapter 6, "Our Girls," in Tracy A. Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016)
Toward the end of Elizabeth Cady Stanton's long career advancing women's rights and legal reform, she renewed her efforts to deconstruct the foundations of women's continued subordination. Why did many women themselves not endorse reform and equality? Why did so many women say "I have all the rights I want." Stanton located the source of social subordination in the teachings of the church, which women heard every week from the pulpit and every day in the papers. She dedicated her last decade of life to challenging the gendered interpretations of the Bible and offering alternative feminist understandings of religious doctrine.
As part of that, Stanton drew on new emerging ideas of anthropology of matriarchal societies which she used to show that female power and women-ruled societies were viable alternative ways to structure power. Almost a century later, at the 1977 National Women's Conference in Houston, Gloria Steinem embraced Stanton’s theory of the matriarchate, using it similarly to emphasize the viability of an alternative system of female power.
In the early 1890s, Elizabeth Cady Stanton added to her historical argument of the perversions of the church, by offering an alternative to this ordained gender structure of “the matriarchate.” She incorporated this theory of maternal power into addresses to national conventions, writings on Wyoming’s new grant of women’s suffrage, and in other essays on women’s rights.[i] Stanton drew on emerging anthropological theories of matriarchal societies, prehistoric cultures like the Amazons, Iroquois, and others in which women ruled as the creative force wielding power and peaceful governance. The theory of matriarchy was a popular idea that emerged in the late nineteenth century, originating with Swiss lawyer and jurist Johann Jakob Bachofen and advanced by Marxist thinker Friedrich Engels and others.[ii] The theory of a matriarchal prehistory held that earlier societies existed in which women controlled government and property, created the first families, developed agriculture, and were worshipped as goddesses because of their reproductive and caregiving abilities. A “patriarchy cataclysm” disrupted the peace, harmony, and ecological balance of these matriarchal systems with intervening wars and weapon development, after which patriarchy evolved as the superior social structure and provided survival and advancement.[iii]
Stanton wrote from England in 1890 that she had “been reading the whole year to glean these facts” about the matriarchate by studying British scholars.[iv] She was likely also influenced by her colleague, Matilda Joslyn Gage, who was developing similar theories about religion on matriarchy later published in her magnum opus, Woman, Church, and State.[v] Stanton, like Gage, appropriated the anthropological matriarchal theories of the nineteenth century for her own feminist purposes. For these theories had been developed to justify the converse, the superiority of patriarchy. They held that society had evolved from the unsophisticated, chaotic matriarchal systems into ordered and aggressive systems grounded in patriarchy. Stanton, interpreting the theory through her feminist lens, concluded that the matriarchate provided historical evidence of women’s ability and superior powers and the negative influence of the destructive forces of male aggression and patriarchy. “Thus, instead of being a ‘disability,’ as unthinking writers are please to call it, maternity has been the all-inspiring motive or force that impelled the first steps” toward “the birth of civilization.” Matriarchal theory was attractive because it freed women’s rights advocates from the “charge of their critics that male dominance was biological and eternal, and therefore inevitable and unchangeable.” Stanton used this evidence not to advocate a return to female supremacy, but rather as evidence of women’s capabilities sufficient to support an “Amphiarchate,” a shared power between women and men in the “as yet untried experiment of complete equality.[vi] Second-wave feminists of the late twentieth century resurrected these ideas of the matriarchate bolstered by archeological finds of prehistoric fertility goddesses and a strong current of feminism seeking support for alternative gender structures of power.[vii]
[i] “Matriarchate,” 227; “Her Political Status,” Evening Star, Feb. 25, 1891; “The Matriarchate Mother-Age,” Woman’s Tribune, Feb. 28, 1891; “The Matriarchate or Mother-Age,” National Bulletin, Feb. 1892; ECS, “Wyoming,” Woman’s Tribune, July 5, 1890; ECS, “Wyoming Admitted as a State into Union,” 134 Westminster Review 280 (Sept. 1890); “Antagonism”; Mrs. Stanton on Our Foremothers, Woman’s Journal, Dec. 29, 1894; ECS and SBA, “Women’s Rights,” in Johnson’s Universal Cyclopedia v. VIII (Charles Kendall Adams, ed. 1895).
[ii] Bachofen, Mother Right: A Study of the Religious and Juridical Nature of Gynecocracy in the Ancient World (1861); Friedrich Engels, Origin of the Family, Private Property, and the State (1884).
[iii] ECS, “Karl Pearson on the Matriarchate,” Women’s Penny Paper, Nov. 8, 1890; ECS, “The Matriarchate, or Mother-Age,” National Council of Women, Feb. 22-25, 1891; ECS, “The Antagonism of Sex,” National Bulletin, June 1893; ECS, “Then Woman Said: ‘I Will,’” Dec. 23, 1894; ECS, “Moral Power, or Brute Force?” Boston Investigator, Feb. 25, 1899; ECS, “The Antagonism of Sex,” Boston Investigator, Mar. 16, 1901; Woman’s Bible, 25; Cynthia Eller, Gentlemen and Amazons: The Myth of Prehistory, 1861-1900 6-7 (2011); Cynthia Eller, The Myth of Matriarchal Prehistory 3-15 (2000).
[iv] ECS to Clara Colby, Feb. 21, 1891; ECS, “Reminiscences,” Woman’s Tribune, Mar. 19, 1892.
[v] Fitzgerald, xxi; Kern, 67; HWS, v.I, 753; Matilda Joslyn Gage, “The Matriarchate,” 2 The Open Court 1480-81, Jan. 5, 1889. Gage’s son-in-law, Frank Baum, actualized Gage’s theory of matriarchal power in his “The Wizard of Oz” book series.
[vi] “Matriarchate,” 227; “Antagonism”; Woman’s Bible, 25; Eller, Amazons, 123, 130-32.
[vii] Gloria Steinem, Wonder Woman, in Eller, Myth, 1-2; Merlin Stone, When God Was a Woman (1976); Riane Eisler, The Chalice and the Blade (1987).
This weekend brings the release of the movie Wonder Woman. Feminists are taking the occasion to celebrate girl power.
Wonder Woman has been an icon of feminism since (at least) her adoption by Ms. magazine on its first cover in 1972.
The origins of Wonder Woman the comic-book hero created in 1941 trace to the feminist ideas of her creator, William Moulton Marston, a Harvard lawyer, professor, scientist and creator of the lie detector test (hence WW’s magic lasso of truth). The fascinating story of the origins of the Wonder Woman superhero character as created by Marston and the two women he lived with is told in Jill Lepore’s The Secret History of Wonder Woman (2014). Her account traces how Marston, and his wife Sadie Holloway and live-in paramour Olive Byrne (niece of Margaret Sanger), created WW from the Amazonia legend and feminist ideals of equality and birth control, even as their own polyamorous relationship challenged the women's own individual equality and power.
From Lepore (xiii-xiv):
Women Woman isn’t only an Amazonian princess with badass boots. She’s the missing link in a chain of events that begins with the woman suffrage campaigns of the 1910s and ends with the troubled place of feminism fully a century later. Feminism made Wonder Woman. And then Wonder Woman remade feminism, which hasn’t been altogether good for feminism.
But Wonder Woman is no ordinary comic-book superhero. The secrets this book reveals and the story it tells place Wonder Woman not only within the history of comic books and superheroes but also at the very center of the histories of science, law, and politics. . . . WW’s debt is to the fictional feminist utopia and to the struggle for women’s rights. Her origins lie in William Moulton Marston’s past, and in the lives of the women he loved; they created WW too.
As Lepore notes, the early suffragists used the Amazonian legends of powerful women to support their cause and provide anthropological evidence of a history of women’s rule. In particular, leading 19th century feminist Elizabeth Cady Stanton used the legend of women’s power or the “Matriarchate” to support her demands for women’s power. I traced this line of thought and advocacy in my recent book. An excerpt is here..
Wednesday, May 31, 2017
Replacing the Masculine View of Leadership as Authority with a Feminist View of Leadership as a Bridge
As a scholar of the U.S. women’s movement, I have spent some of my intellectual time puzzling out the role of leaders in feminism. A historical perspective tells us that there were women who emerged as leaders — an oft recited list includes names such as Susan B. Anthony, Elizabeth Cady Stanton. Gloria Steinem, and Betty Friedan. A historical view also tells us that women’s leadership is often contentious, in retreat and ignored.
In quick review of feminist history, we can see these dynamics. For women in the early years of 1960s’ and 1970s’ feminist activism assuming a visible position as a leader brought personal loss as participants “trashed” those they thought were stepping into the public spotlight. Indeed this history is filled with stories of feminists attacking each other as they worked to create social change. The temptation in reviewing this history is to assume that women and cooperative and productive leadership do not mix. ***
Then comes the early 21st century, a time when the U.S. women’s movement is declared dead repeatedly. In my book, Everywhere and Nowhere, I investigate the state of the movement and find that at the community level a vibrant and distinct feminism exists, complete with women assuming leadership positions. Yet, at the national level when people are queried as to who is a feminist leader most times they cannot go beyond answering “Gloria Steinem.” As a result, the temptation (and inclination) is to declare U.S. feminism as dead.
This quick journey through feminist history acknowledges that leadership is a complicated concept, easily misunderstood and that our tools to study leadership need refining. One way that we can work to better conceptualize leadership is to acknowledge the ways in which gender, in particular masculinity, have become wedded to the notion of the leader. Many of the characteristics of what a leader is are formed around a more masculinist notion of control and authority. Leaders in the Weberian sense are charismatic, authoritative or bureaucratically assigned. They are in control, in the forefront and are accepting and even welcoming of the chance to lead. When this type of leadership is not present, scholars can conclude that leadership is not present. But what if we examine leadership differently? What if the gendered nature of the concept of leader is examined and deconstructed? We do have hints of this in scholarship such as Belinda Robnett’s 1997 conceptualization of a “bridge leader” born out of her study of women in the civil rights movement. Whereas a masculinist view of leadership sees it as publicly visible and clearly in control, the bridge leader works out of the spotlight, making connections between groups and networks and acquiring needed resources.
Donna Coker, Crime Logic, Campus Sexual Assault, and Restorative Justice, 49 Texas Tech L. Rev. 47 (2017)
The dominant campus sexual assault narrative that emerges from both media and regulatory accounts is that of a male “sexual predator” assaulter who penetrates without consent a white heterosexual female victim. In contrast to the paradigm case, LGBTQ students face considerable risk of experiencing campus sexual assault; campus administrators see a range of sexual misconduct with a dramatic range in severity, including at the low end “sexual coercion”; the conclusion that most campus assaulters are “predators” is based on misapplied research and is unsubstantiated by more sophisticated longitudinal research. Furthermore, the paradigm occludes the ways in which intersectional forms of oppression based in race, gender, class, sexual orientation, and sexual identity, define not only risks for assault, but risks for administrator bias (both with regard to those accused and those who claim to have been harmed).
Schools face intense political pressure to import “Crime Logic” into administrative regulations that address campus sexual assault. Crime Logic refers to a set of beliefs and attitudes characterized by a focus on individual culpability rather than institutional or collective accountability; disdain for policy attention to social determinants of behavior; and a preference for narratives that center on simplistic bad actors and innocent victims and for banishment/incapacitation over rehabilitation for those who harm others. The potential to use Civil Rights law as a means to change the social norms that promote sexual mistreatment is compromised when administrators employ punitive responses based in Crime Logic over responses that educate, rehabilitate, and better meet the varied needs of victims of assault.
An intersectional public health approach that avoids the punitive and simplistic individually-focused accounts dictated by Crime Logic will reap better results in intervening and lessening campus sexual assault. Such an approach should intervene in the social and psychological factors most frequently correlated with campus sexual assault.
Tuesday, May 30, 2017
1. Do nude pictures of parents help judges decide who should get custody?
2. A silly question?
3. Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?
4. And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?
5. If the objective was to humiliate the mother, undoubtedly the father succeeded
6. But how does humiliation help in family court?
7. How does irrelevant and scandalous information help a judge determine the best interests of the child?
8. More importantly -- from the child’s perspective -- what is the long-term impact of this needlessly hurtful approach to litigation?
12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:
Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
Intimidating and threatening behaviour often becomes self-evident in texts.
A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them.
13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.
14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.
15. But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.
29g. The Applicant has tried to turn this custody motion into a bit of a witch hunt: She’s done bad things. Maybe she’s a bad mother.
32d. All of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past.
[h/t Sonia Lawrence]
Jennifer Skeem, John Monahan & Christopher Lowenkamp, Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men, 40 Law & Human Behavior 580 (2017) [earlier draft available here.]
Increasingly, jurisdictions across the United States are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning. On the basis of a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders, but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest, which is based on combining both genders, is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d = .32, 99% CI = .29 -.35, or 87% overlap in scores); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.
The Unlikely Focal Point in the Title IX Campus Assault Debate: The Preponderance of Evidence Standard
Deborah Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 Montana L.Rev. 109 (2017)
In the heated controversy over the obligations Title IX places on colleges and universities to respond to sexual assault, no issue has been more contentious than the standard of proof used to make findings of responsibility in internal student misconduct processes. In 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education released a “Dear Colleague” letter (DCL) clarifying the obligations imposed on institutions of higher education to use fair and equitable grievances procedures in resolving allegations of sexual assault. Among numerous other requirements, the DCL alerted colleges and universities that it expected them to use the normal civil standard, a preponderance of the evidence (POE), in resolving internal complaints of alleged sexual assault. From the beginning, detractors of the DCL have decried the unfairness of forcing campuses to find students responsible for sexual assault based on a preponderance of the evidence, and the POE remains the singularly most controversial piece of the Title IX framework.
On the surface, the POE is an unlikely focal point in the debate over Title IX’s application to sexual violence. Notwithstanding the emphasis OCR’s critics have placed on the POE, the agency’s 2011 endorsement of the POE largely ratified the status quo. Most educational institutions were already using the POE for sexual misconduct cases well before OCR weighed in. Moreover, it is unclear how much distance separates the POE and its closest competitor, the clear and convincing evidence standard. Although this article defends the POE and argues against ratcheting up the standard to require proof by clear and convincing evidence, it contends that the actual impact of OCR’s endorsement of the POE standard is disproportionate to the pitched debate it has prompted. Understanding why the POE is so contentious requires an examination of the broader debate over Title IX’s application to campus sexual assault.
Tuesday, May 23, 2017
EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination
The EEOC has petitioned for rehearing en banc in the 9th Circuit's decision in Rizo v. Yovino (Apr. 27, 2017) holding that pay a woman less than men doing the same job because of their different salary histories was not gender discrimination.
Some of the highlights of the petition:
- The Commission, along with two circuit courts, takes the position that prior pay cannot be the sole factor causing the disparity because the practice perpetuates the gender pay gap that continues to exist nationally, in the field of education and elsewhere.
- A practice like the County’s undermines the purposes of the EPA because it institutionalizes the gender pay gap that studies confirm continues to exist and relies on the largely discredited market forces theory, which endorses paying women less than men because they will agree to work for less.
- The Tenth and Eleventh Circuits have held categorically that while there is no prohibition against relying on multiple factors including prior pay, prior pay alone cannot be considered a “factor other than sex” within the meaning of the EPA. See, e.g., Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (citing Angove, 70 F. App’x at 508); Irby, 44 F.3d at 955 (stating that “prior salary alone cannot justify pay disparity”). They reason that “if prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated.” Irby, 44 F.3d at 955.
- Courts similarly reject the related “market forces theory,” discredited by Corning Glass (417 U.S. at 205) — that an employer must offer more money to male applicants because they will not accept less but, conversely, may offer less money to female applicants because they will accept less. The Eleventh Circuit explained, “[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected.”
- We recognize that even if this Court adopts the rule from the Tenth and Eleventh Circuits, it will not entirely eliminate the circuit conflict. The Seventh Circuit takes the position that “prior wages are a ‘factor other than sex.’” Wernsing v. Ill. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) (citation omitted).
For a prior blog post about the Rizo decision, see Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less
For some of my additional thoughts on the case, see Erin Mulvaney, EEOC Fights Ninth Circuit Ruling That Institutionalizes Gender Pay Gap, Natl. L. J. (May 23, 2017)
Two important points to keep in mind are:
- How salary histories can be gendered: Historically women have been paid less than men because they could be. "Market forces" allowed employers to pay women less because women were willing to take jobs for less than men, usually because women had less options and less bargaining power. Women were also paid less because they were assumed to be working for "pin money," extra spending money rather than being a primary breadwinner or supporter of a family. It was also assumed that women were primarily dedicated to their families and children, and thus work was secondary, and family needs might interfere with dedication to work, thus justifying the lower pay. And, most obviously, if a woman was discriminated in a past job, that discrimination is perpetuated forwarded if it is continued to be used as a marker for future salaries. These are all workings of structural or systemic gender discrimination beyond any individual animus.
- There are easy non-gendered workarounds: As the EEOC points out, just base salary on the relevant factors, sometimes reflected in salary history and sometimes not in cases of discrimination. Consider the factors directly of work experience, number of years of experience, and education and degrees.
Thursday, May 18, 2017
The Humphrey School of Public Affairs at the University of Minnesota has created an online platform called The Gender Policy Report that will analyze the policies that will be proposed by the US federal government in this new administration through the lens of gender.
The goal is to be non-partisan and to consider how new policies may affect the welfare of women, gender, and sexual minorities in the US and around the world.
The GPR platform seeks collaborators and submissions.
Here is the CFP.
The Gender Policy Report
The Gender Policy Report (GPR) is a non-partisan, multidisciplinary effort to produce and disseminate timely, gender-focused analyses of emerging policy proposals and developments. GPR contributions will clarify the gendered bases of policy practices and conflicts. They will offer diverse public audiences informed perspectives on how policies matter for gender justice and constructions of gender itself. Working across varied media platforms, the GPR will seek to inform policy debates and improve public discourse. Our mission is to take the best insights from gender scholarship and research and make them accessible to broader communities in a way that is timely for addressing serious policy challenges.
The Violence Area of the GPR seeks to make visible the high prevalence of violence that occurs inside and outside of family contexts against women and sexual and gender minorities: intimate partner violence, harassment, rape and sexual assault, trafficking and female genital cutting. The GPR also seeks to explore the mechanisms that can explain the behaviors and available policy interventions. For instance, contributions might explore economic interventions that may give women subjected to intimate partner violence leverage to leave abusive relationships, or may explore the existing debates on the effectiveness of mediation in cases of intimate partner violence. Other lines of contribution may be current evidence on the relationships between and policies on child maltreatment and partner violence; or policies that are in place or should be in place to address violence in the workplace; or a comparison on the treatment of sexual assault on campus between Title IX and the criminal justice system. We welcome pieces that explore how violence and gender work intersectionally to affect more vulnerable communities and what policies may alleviate these disparities. Contributions to the area might offer comparisons with international cases and policies or how US policies may affect policies in an international context.
Call for Collaborators: We are actively seeking Research and Advocacy Collaborators to join the work of the Violence area and shape its trajectory going forward. We encourage potential collaborators to set their own pace, and we expect a lot of variation in terms of individual involvement. Please contact us at the email addresses below if you are interested.
Call for Submissions: The violence justice area of the GPR will seek to publish original content at least twice per month. We are eager to receive submissions and proposals from diverse perspectives across a broad spectrum of relevant issues. We are also committed to publishing work in a wide range of formats and communications styles.
Examples of Content include but are not limited to:
- Policy Analysis Blog Posts (500-1200 words): Short essays that weigh in on current policy, evidence on this policy and how policy proposals may affect the tools people from diverse and different communities have to respond to being victims of gender-based violence. Ideally, the essay would clarify gender implications of a policy that otherwise may not be evident.
- Research Summary Blogs (500-1200 words): Accessible, engaging summaries or reviews of existing research on gender-based violence. This public-friendly translation of a recent research article or book might use current debates in the field (i.e. to use mediation or not in cases of intimate partner violence) as a “hook.”
- Data posts on Policy that relates to issues of Violence (3-4 figures with explanatory text): Posts that focus on drawing attention to illuminating data visualizations in the form of charts, graphs, etc. Contributors would provide a short written introduction and a few lines to help readers interpret each data visual. Examples include prevalence rates of sexual assault on campus versus the wider community and intimate partner violence prevalence rates by race, ethnicity, gender and sexual orientation.
- Multimedia Contributions: Video presentations, powerpoint slide decks, audio podcasts, recordings of panel discussions…You name it, we’re interested. Send us your ideas and teach us some new tricks!
We hope you'll join us in this exciting and timely new project. If you have any questions about the violence area of the GPR, would like to become a Research Collaborator, or have ideas for contributing content, please contact via e-mail.
Greta Friedemann-Sánchez email@example.com
Leigh Goodmark firstname.lastname@example.org
The new French President has appointed women to 50% of his cabinet, as did Canadian prime minister Justin Trudeau.
French President Emmanuel Macron has unveiled a gender-balanced cabinet in accordance with an earlier pledge, with 11 of 22 posts taken by women.
I have written about the importance of these gender quotas in institutional power structures as important to rectifying systemic gender inequality. Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).
Wednesday, May 17, 2017
Noya Rimalt, When Rights Don't Talk: Abortion Law and the Politics of Compromise, 28 Yale J. Law & Feminism 328 (2017)
This Article draws attention to the significance of rights-talk in shaping proper abortion legislation. It engages with ongoing debates regarding the wisdom of Roe v. Wade’s judicially imposed, strict rights-based approach to legal abortion. As the issue of abortion remains extremely controversial in American politics, it has been argued that the Supreme Court’s rights-based rhetoric, coupled with its “undemocratic” judicial imposition of a resolution to the issue, played a central role in triggering the ongoing conflict over abortion. Legal scholars often rely on comparative examples in an attempt to argue in favor of legislative and conciliatory policy solutions to the issue of abortion.
This Article questions the superiority of legislative solutions to abortion by providing a critical comparative account of abortion legislation that seems to exemplify precisely the sort of compromise-based solution advocated by critics of Roe v. Wade’s judicially created right to abortion. It critically analyzes the give-and-take process in the Israeli legislature that gave birth to the country’s abortion law. The Article argues that the Israeli case study provides a cautionary tale of a legal system in which abortion regulation was decided exclusively by legislators, rather than judges, which resulted in legislation devoid of any concept of individual rights.
The Article concludes by exploring a number of additional comparative examples outside of Israel. Focusing specifically on Canada, Germany, and France, it illustrates how a broad comparative perspective is useful in drawing attention to the roles of courts and legislatures in shaping abortion policies, as well as to the disguised costs of abortion compromises.
Tuesday, May 16, 2017
Using data on 1,901 U.S. Supreme Court oral arguments between 1998 and 2012, we document that voice-based snap judgments based on lawyers’ identical introductory sentences, “Mr. Chief Justice, (and) may it please the Court?”, predict court outcomes. The connection between vocal characteristics and court outcomes is specific only to perceptions of masculinity and not other characteristics, even when judgment is based on less than three seconds of exposure to a lawyer’s speech sample. Consistent with employers irrationally favoring lawyers with masculine voices, perceived masculinity is negatively correlated with winning and the negative correlation is larger in more masculine-sounding industries. The first lawyer to speak is the main driver. Among these petitioners, males below median in masculinity are 7 percentage points more likely to win in the Supreme Court. Justices appointed by Democrats, but not Republicans, vote for less-masculine men. Female lawyers are also coached to be more masculine and women’s perceived femininity predict court outcomes. Republicans, more than Democrats, vote for more feminine-sounding females. A de-biasing strategy is tested and shown to reduce evaluators’ tendency to perceive masculine voices as more likely to win. Perceived masculinity explains 3-10% additional variance compared to the current best prediction model of Supreme Court votes.
The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty:
Mothers and the Constitution
The seminar will explore the relationship between the changing practice of motherhood and the law. Using Supreme Court cases, important state cases, and supplementary historical and statutory materials we will study the many ways that constitutional interpretation and government policy have regulated the lives of different kinds of mothers and occasionally of fathers too. We will organize our discussions around four key issues: Custody and Care, Reproduction, Work, and State Support, focusing on the twentieth century; and taking into account the influence of such factors as race, religion, migration, and sexuality on developing constitutional interpretation.
The dates the seminar will meet are: October 6, October 13, November 3, and November 10; Fridays from 2-5 p.m. The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City.
Alice Kessler-Harris is R. Gordon Hoxie Professor of American History, Emerita, at Columbia University where she was also Professor in the Institute for Research on Women and Gender, and held a faculty affiliate appointment in the Columbia University School of Law. Kessler-Harris specializes in the history of American labor and twentieth century social policy. Her books include In Pursuit of Equity: Women, Men and the Quest for Economic Citizenship in Twentieth Century America (2001), which won the Bancroft, Taft, Joan Kelly and Herbert Hoover prizes; Gendering Labor History (2007), which contains her essays on women, work and social policy, and A Woman’s Wage: Historical Meanings and Social Consequences (1990). She is perhaps best known for the now classic, Out to Work: A History of Wage-Earning Women in the United States (1982, 2001). She is co-editor, among other books of Protecting Women: Labor Legislation in Europe, Australia, and the United States, 1880-1920 (1995); Democracy and Social Rights in the ‘Two Wests’; and Democracy and the Welfare State, which explores the impact of expanding citizenship rights in Western Europe and the U.S.
Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School where she teaches Contracts, Family Law, and research seminars on “Meanings of Motherhood: Legal and Historical Perspectives” (with Alice Kessler-Harris) and “Abortion: Law in Context.” Prof. Sanger’s scholarship focuses on how law influences family formation in such areas as immigration, custody, and adoption, and particularly regarding relationships between mothers and children. Her book About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press, 2017) concerns the role of abortion in American culture, politics, and in women’s lives. Sanger’s 2012 article, The Birth of Death: Stillborn Birth Certificates and the Problem for Law won a prize for “exemplary legal writing” from the journal Green Bag. Sanger is also the senior editor of a leading law school casebook, Contracts: Cases and Materials (8th ed., 2013).
The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until May 22, 2017 Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.
There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.
The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.
An unnamed partner in Proskauer’s Washington, D.C., office has sued the firm in federal court, alleging she is a victim of discrimination and claiming “substantial gender disparities” in the firm’s partnership. The suit claims at least $50 million in damages.
Proskauer called the claims “groundless” and suggested that the partner sought to force a payout after her practice faltered.
The complaint was filed Friday in D.C. by lawyers at Sanford Heisler Sharp—which is also leading a high-profile gender bias lawsuit in New York on behalf of current and former female Chadbourne & Parke partners. Proskauer represents Chadbourne in that case.
The plaintiff in Friday’s lawsuit accuses Proskauer of paying her millions of dollars less than her male counterparts, despite her “standout performance” at the firm.
“Among other things, Proskauer excluded plaintiff from client matters, declined to allow plaintiff to pitch or to participate in any employment litigation matter for firm clients, rebuffed her efforts to assume a greater leadership role at the firm, tolerated and facilitated an environment where she was targeted for harassment and humiliation by firm leadership, demeaned and belittled her to her peers and clients, and refused to rectify pay disparities,” the suit alleges.
Friday, May 12, 2017
The Center for Con Law at Akron announces Call for Papers its fall Virtual Symposium on "Constitutional Remedies."
The Center for Constitutional Law at Akron seeks proposals from those interested in participating in its Fall Virtual Symposium on Constitutional Remedies.
Constitutional Remedies. The focus of this symposium is on the Constitution and Remedies, broadly defined. Topics for discussion might include issues of remedies for constitutional harms, constitutional concerns with remedies, or comparative constitutional remedies across countries. Such issues dominate the headlines—from immigration travel bans to religious liberty concerns to police force injunctions and national injunctions on executive power. The symposium is designed to be an interactive roundtable, allowing for deeper discussion and questioning beyond mere presentation.
Virtual Symposium. This symposium will be conducted virtually, that is by video web conferencing. The idea is to make it easier for scholars to participate and share ideas, without the barriers of travel such as limited university travel budgets, family obligations, or the demands of teaching and administration. Participants will just need a computer with a webcam and microphone to participate.
Symposium Papers. Proposals for the symposium should be related to the topic of constitutional remedies and intended to produce a final essay of about 15 published pages (@10,000 words). Proposals including an abstract and CV should be submitted to Professor Tracy Thomas, director of the Center for Constitutional Law at Akron at email@example.com by June 16, 2017. Accepted papers for the symposium should then be completed by October 27th in time for circulation to and review by participants in advance of the symposium. Finalized essays will then be published in a dedicated symposium issue in the Center for Constitutional Law’s online journal, ConLawNOW, an open access journal available to interdisciplinary scholars, journalists, as well as legal scholars (also available on Westlaw).
The New Hampshire state Legislature is deciding whether to discipline one of its members for his role in setting up a misogynistic online forum.
Two-term Republican Rep. Robert Fisher, 31, was identified last month by The Daily Beast as the creator of the Reddit community The Red Pill, which champions so-called "pickup artists" and blames feminism for societal woes. (The forum takes its name from a scene in the 1999 film The Matrix in which Keanu Reeves' character, Neo, is offered a choice between a red pill, which represents reality, and a blue pill, which represents illusion.)
Testifying before a state House committee Tuesday, Fisher argued that his online statements revealed by the Daily Beast investigation — including comments deriding women's intelligence, detailing ways for men to dodge rape accusations and questioning whether rape itself was wholly bad — have been misreported and misconstrued.
He has never "hated women," Fisher assured the Legislative Administration Committee and criticized the journalism that brought his comments to light.
The committee has until next week to make a recommendation. The state House will vote on the committee's decision June 1.
In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.
Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.
Friday, May 5, 2017
Mayor Bill de Blasio, a Democrat, signed a bill on Thursday that makes it unlawful for those involved in the hiring process to inquire about what an applicant currently makes -- a measure that takes aim at the gender pay gap.
"This is about fixing a broken history. This is about overcoming years and years of discrimination that held people back," de Blasio said at the signing ceremony.
More than 20 states, from California to Georgia to Vermont, are considering similar legislation that would bar employers from asking about a job applicant's pay history, according to the National Conference of State Legislatures. New York City joins Massachusetts and Philadelphia, which already have those laws on the books.
Such bills look to address a real problem. Women earned 79.6 cents for every dollar men made in 2015, according to data released by the Census Bureau last year.
A court decision last week has also renewed calls for local action. The 9th U.S. Circuit Court of Appeals overturned a lower court and ruled that employers are allowed to pay women less than men based on salary history if they have a legitimate business reason for using that information. [See the prior blog about the case here.]
Democratic members of Congress hope to take federal steps to address the issue too, even though they're the minority in both houses.
The Paycheck Fairness Act, which has been introduced by Sen. Patty Murray of Washington and Rep. Rosa DeLauro of Connecticut, would strengthen provisions in the Equal Pay Act of 1963. Part of the bill bans employers from asking about a job candidate's pay history during the interview process. [For recent scholarship on the PFA see the prior blog post here.]
NY state has proposed a similar bill:
2017 New York Assembly Bill No. 2040, New York Two Hundred Thirty-Ninth Legislative Session, Apr. 4, 2017
Section 1. Legislative intent. The legislature hereby finds that New York should lead the nation in preventing wage discrimination.The wage gap between men and women is one of the oldest and most persistent effects of inequality between the sexes in the United States.The 1963 Equal Pay Act and the 1964 Civil Rights Act in the United States established the legal right to equal pay for equal work and equal opportunity. Yet half a century later, women are still subjected to wage gaps and paid less then men.The concept of comparable worth attacks the problem of gender-based wage discrimination by mandating that jobs characterized by similar levels of education, skill, effort, responsibilities, and working conditions be compensated at similar wage levels regardless of the gender of the worker holding the job.The goal of pay equity is to raise the wages for undervalued jobs held predominantly by women. Today, women make only 77 cents per every dollar earned by a man for a comparable job, a gender wage gap of 23 percent.This translates into thousands of dollars of lost wages each year for each female worker, money that helps them feed their families, save for a college education and afford decent and safe housing.Pay disparities affect women of all ages, races, and education levels, but are more pronounced for women of color. Minority womenmake as little as 54 cents per dollar for a comparable job held by a man.Female-dominated jobs pay twenty to thirty percent less than male-dominated jobs classified as comparable in worth and more than one half of all women work in jobs that are over seventy percent female.Women are more likely to enter poverty in old age for several reasons: A lifetime of lower wages means women have less income to save for retirement, and less income that counts in their Social Security or pension benefit formula.The current life expectancy for women means they will, on an average of three years, outlive men. Yet they will have to stretch their retirement savings, which are less to begin with, over a longer period of time.The existence of pay inequity is a manifestation of deep-seated sex discrimination that prevents both equality of pay for women and equality of opportunity for both sexes.More women in the United States are obtaining college degrees and increasing their participation in the labor force and family-friendly legislation, including the Equal Pay Act, Family and Medical Leave Act, and Pregnancy Discrimination Act, and policies such as flex time and telecommuting, have increased options to create a win-win situation for women and their employers.Despite the progress, women continue to suffer the consequences of inequitable pay differentials: in 2010, the average college-educated woman working full-time earned $47,000 a year compared to $64,000 for a college-educated man.During 2012, median weekly earnings for female full-time workers were $691, compared with $854 per week for men, a gender wage gap of 19 percent.Fair pay strengthens the security of families and eases future retirement costs while also strengthening the American economy. In order to achieve fair pay, policymakers must enact laws that prevent gender based wage discrimination from when women enter the labor force.
In order to do so, it is necessary to prevent employers to base a woman's pay based on her previous pay history.Because the pay is already based on gender discrimination, allowing pay history to be requested by employers is equivalent to maintaining a standard of lower pay for women performing similar jobs as men. This practice of asking for pay history must be outlawed
Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)
We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.
Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.
Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.
Thursday, May 4, 2017
Darren Rosenblum, Sex Quotas and Burkini Bans, 92 Tulane L.Rev. (2017)
This Essay recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture, and how non-feminists began to appropriate those ideals. Parité, the 2000 law that requires half of all candidates for public office be women, saw French feminists first engineer a change in French universalism to respect sex difference; although not wholly successful, Parité advanced women’s political inclusion. Then, like a drop of water in a pond, these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into state norms, however, politicians began to use them to promote exclusions: first excluding Muslims from full participation in the Republic with veil and burqa bans; then supporting exclusions of sex and class with a corporate board quota (CBQ); most recently feminist ideas have been called upon to exclude French Muslims with proposed burkini bans.