Gender and the Law Prof Blog

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

Friday, July 14, 2017

Judge Throws Out Conviction of Woman Who Laughed in Sessions Hearing

NPR, Judge Throws Out Conviction of Woman who Laughed at Jeff Sessions

Instead of sentencing a woman to jail time for laughing during Jeff Sessions' confirmation hearing, a D.C. judge threw out the woman's conviction and called for a new trial.

Desiree Fairooz says her laughter during the attorney general's confirmation hearing in January was involuntary. (She was reacting to an assertion that Sessions treats all Americans equally.) Fairooz, who is an activist with the Code Pink organization, then protested as she was physically removed from the hearing. In May, she was convicted by a jury of disorderly, disruptive conduct and obstructing passage on U.S. Capitol grounds.

The charges carried up to a year in prison and a fine of up to $2,000. Two other protesters at Sessions' hearing faced similar charges.

But on Friday, the D.C. Superior Court judge overseeing Fairooz's sentencing called for a new trial instead.

July 14, 2017 in Courts, Legal History | Permalink | Comments (0)

Modern Pedagogical Challenges (and Opportunities) in Teaching Gender Courses

 

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

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As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses.  When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation.  After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques. 

In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements.  The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord.  Law schools are notably implementing these pedagogical reforms in a time of great political division.  From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity.  University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.  

Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content.  This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog.  How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers?  The stakes are high.  In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods.  This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.  

This is a pedagogical conversation that gender faculty should lead and engage.  In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback.  Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing.  We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.

July 14, 2017 in Education, Gender, Guest Bloggers, Law schools | Permalink | Comments (0)

Tuesday, July 11, 2017

Analyzing the Impact of Catharine MacKinnon's Key Work, Toward a Feminist Theory of the State

Max Waltman, Appraising the Impact of Toward a Feminist Theory of the State: Consciousness-Raising, Hierarchy Theory, and Substantive Equality Laws, 35 Law & Inequality (2017)

The philosophical, political, and legal impact of Catharine MacKinnon's groundbreaking work Toward a Feminist Theory of the State (1989) is discussed, specifically the merging of consciousness-raising of subordinated groups with critically informed scholarship, producing a problem-driven approach engaging in informed policy-making. As a comprehensive political theory of the relationship between male dominance and the state, one of Toward's central features was to draw from consciousness-raising as a feminist research method to further ground its approach to equality, particularly in its prescription for substantive equality laws. The article illustrates how such central concepts have influenced real changes in the world, specifically using legal challenges to pornography and prostitution as examples.

Parts I and II demonstrates how Toward departed from conventional epistemologies, in part explaining its revolutionary appeal to students, practitioners, and scholars. Part III continues the analysis by using real world applications of its approach to pornography and prostitution, beginning with the anti-pornography civil rights ordinances drafted by Catharine A. MacKinnon and writer Andrea Dworkin in 1983, six years before the publication of Toward a Feminist Theory of the State. Part III illustrates how the ordinances mobilized MacKinnon’s same cutting-edge approach to advancing women’s legal substantive equality about which she later theorized. A similar approach was instrumental in grounding a substantive equality prostitution law, proposed by MacKinnon in a public speech in Stockholm, Sweden, November 2, 1990, situating that law within her broader approach to equality. The Swedish national umbrella organization for women’s shelters, ROKS, lobbied for the law and rallied other actors to support it, precipitating its passing in Parliament in 1998, with the law taking effect in 1999. Similar laws have now been adopted by many more countries (attesting to MacKinnon’s extraordinary influence as a legal and social theorist), although not until ten years or more after Sweden’s law, which makes Sweden’s unique data availability a “revelatory case.” Part III concludes by analyzing its comparative impact in terms of reducing sexual exploitation and abuse and offering an exit for people in prostitution, thus promoting substantive equality.

July 11, 2017 in Theory | Permalink | Comments (0)

Appointed Legal Counsel for Victims of Campus Sexual Assault

Merle Weiner, Legal Counsel for Survivors of Campus Sexual Assault, 29 Yale J. L & Feminism 123 (forthcoming 2017)

Abstract

This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so. The Article then argues that potential institutional concerns do not relieve colleges and universities of their existing legal obligation to provide some survivors with free legal services. This Article suggests that schools would best meet their legal obligation by providing all survivors with free legal services. The Article then puts its theoretical discussion into perspective by describing the University of Oregon’s unique on-campus program that provides free legal counsel to student survivors. The Article concludes by recommending that the Office for Civil Rights clarify campuses’ legal obligation to provide free attorneys for some survivors and by suggesting that campuses offer all survivors this service. The result would be a better campus response to sexual violence, a decline in the overall rate of post-assault traumatic distress, a likely reduction in the rate of campus sexual violence, and greater progress toward the goal of gender equality.

July 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Gender Biases in Cyberspace

Shlomit Yanisky-Ravid & Amy Mittelman, Gender Biases in Cyberspace: A Two-Stage Model, the New Arena of Wikipedia and Other Websites, 26 Fordham IP, Media & Entertainment LJ (2016) 

Abstract

Increasingly, there has been a focus on creating democratic standards and norms in order to best facilitate open exchange of information and communication online―a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution for which social activists, intellectual property opponents, and feminist theorists have been waiting. Unfortunately, we are now realizing that this utopian dream does not exist as anticipated: the Internet is neither neutral nor open to everyone. More importantly, these websites are not egalitarian; rather, they facilitate new ways to exclude and subordinate women. This Article innovatively argues that the virtual world excludes women in two stages: first, by controlling websites and filtering out women; and second, by exposing women who survived the first stage to a hostile environment. Wikipedia, as well as other cyber-space environments, demonstrates the execution of the model, which results in the exclusion of women from the virtual sphere with all the implications thereof.

July 11, 2017 in Media, Pop Culture | Permalink | Comments (0)

Monday, July 10, 2017

Criminalizing Female Laughter: The Sessions Hearing Case

Image result for Desiree Fairooz

Maggie Hennefeld, On the Criminalization of Female Laughter

On January 10 2017, Desiree Fairooz, a 61-year-old Code Pink protester, was forcibly removed and arrested for laughing at Jeff Sessions during his Attorney General confirmation hearings. Fairooz’s eruption was provoked by an extremely laughable punch line, when Republican Senator Richard Shelby stated that Sessions has an “extensive record of treating all Americans fairly under the law,” adding that this claim “is clear and well-documented.”

 

As a description of a man who was once denied a federal judgeship due to concerns about his racism, who openly advocates anti-immigrant and anti-LGBTQ policies, and who casually jokes about the Ku Klux Klan, Shelby’s utterance was patently absurd and very deserving of public mockery and voluble laughter. For her protest, Fairooz now faces up to a year in jail and $2,000 in fines.

 

Her conviction in early May elicited a viral storm of outraged responses, including headlines such as “A Woman Is on Trial for Laughing During a Congressional Hearing,” “Activist’s Giggle Leads to Conviction,” and a piece authored by the Medusan disruptor herself, “I’m Facing Jail Time After Laughing at Jeff Sessions. I Regret Nothing.

 

How unprecedented is Fairooz’s indictment? Women are held in contempt of court all the time for laughing out loud at devastatingly inappropriate moments. In February 2017, a woman was sentenced to 93 days in jail for her voluble mirth at the gruesome details of a man’s death in a DUI accident, while the family members of the deceased were present in the courtroom. Laughing in disrespect of the dead has a legacy of retributive punishment: in 1862, a Confederate woman named Eugenia was arrested for laughing at the funeral procession of a Union soldier (she had also encouraged her children to spit on the uniforms of Union officers).

 

However, it was not the fact of Fairooz’s laughter that caused her arrest, so much as what it signified: to “impede and disrupt then Senator Sessions’ confirmation hearing by drawing attention away from the hearing itself and directing it instead toward the Defendants’ perception of the nominee’s racist views, policies, and voting record” (from a government motion filed against her). Her laughter evokes the anti-patriarchal outbursts in the classic feminist film, A Question of Silence (Marleen Gorris, 1982), in which three unruly women laugh exuberantly at their own murder trial, in response to the prosecution’s outlandish pretense that they live in a post-sexist society. (The women are on trial for killing a male boutique owner, whom they beat to death in an unpremeditated outburst of joyful fury due to his harassment of a female shoplifter.) In the film’s courtroom, this “question of silence” refers to the tyranny of lacking a voice against routine injustice, which then can only be articulated through defiant and disruptive laughter. ***

 

If we’ve come a long way with our laughter since the English Civil Wars of the 1640s—learning to laugh in empathy, in playful recognition of absurdity, or out of sheer muscular relief—this message has since been lost on Donald Trump and Jeff Sessions. Catharine A. MacKinnon, Professor of Law at the University of Michigan and long-term visitor at Harvard Law School, has offered comment:

Criminally charging and potentially sentencing Ms. Fairooz for a brief spontaneous injection of political laughter as ‘disruptive’ when it, at least, so clearly was not looks like an overly thin-skinned reflex reaction to a woman appropriating what is usually a masculine form of power: ridicule, public humiliation by humor, in this case political speech against racism. 

 

Tracy Thomas, Seiberling Chair of Constitutional Law at the University of Akron, suggests that being laughed at by a woman is perhaps “one of [men’s] greatest fears.” In a correspondence with her, Thomas referenced a survey from Nancy Dowd’s The Man in Question, “where women report their greatest fear is rape and murder, while men’s greatest fear is being laughed at.” Or, as the Canadian novelist Margaret Atwood has put it, “Men are afraid that women will laugh at them. Women are afraid that men will kill them.” To this point, the journalist and American humorist, Helen Rowland, wrote in 1922 that “a man will forgive his wife for committing robbery, or murder, or breaking the Ten Commandments, yet threaten to leave her for laughing at the wrong moment”—should she be so fortunate that he doesn’t beat or kill her. In 1893, a New Haven court heard the divorce petition of Emma B. Phelps, who described the time “she laughed at her husband…and he ‘knocked her senseless’” (another time he threatened to kill her with a carving knife because she would not give him her watch).

July 10, 2017 in Courts, Gender | Permalink | Comments (0)

Thursday, July 6, 2017

New Study Provides Insights of Sexual Harassment of Graduate Students by University Faculty

Nancy Chi Cantalupo & William C. Kidder have posted A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, Utah Law Review (forthcoming)

One in ten female graduate students at major research universities reports being sexually harassed by a faculty member. Many universities face intense media scrutiny regarding faculty sexual harassment, and whether women are being harassed out of academic careers in scientific disciplines is currently a subject of significant public debate. However, to date, scholarship in this area is significantly constrained. Surveys cannot entirely mesh with the legal/policy definition of sexual harassment. Policymakers want to know about serial (repeat) sexual harassers, where answers provided by student surveys are least satisfactory. Strict confidentiality restrictions block most campus sexual harassment cases from public view. 

Taking advantage of recent advances in data availability, this article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. It also situates this review within the available and most relevant social science literature on sexual harassment and violence in education and the workplace, as well as on methodological limitations of litigated case data, which tend to contain a higher concentration of high-severity cases compared to a random sample.

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

July 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Abandoning Race and Gender Based Calculations for Compensatory Damages

Ellen Bublick, How Much is Your Injury Worth? First Tell me Your Race and Gender, JOTWELL, reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.

When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs.  As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)

 

Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)

 

The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010),  and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”

July 6, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Guest Blog: MothersEsquire: A Professional Community for Lawyer Moms

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

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MothersEsquire:  An Introduction to a Supportive Community

As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession.  I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained.  I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups.  The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life.  The same outsider phenomenon can also describe the role of students attending these events.  I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.  

This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession:  MothersEsquire.  This year has been an important one for the organization of women’s groups.  From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year.  The MothersEsquire organization stands out in a couple of key ways. 

First, it is not limited to geographical boundaries or bar licensure borders.  For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside.  This is an obstacle, or at least a deterrent, to my participation in local bar events.   The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner. 

Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc.  As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities.  For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time.  The organization is also working on breastfeeding accommodations.  It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.

Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations.  Certainly, not all women lawyers are mothers or identify as mothers.  Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession.   For those that do, however, this group provides an outlet, an information source, a networking portal, and more.  Its website explains:

“We are Moms.  We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school.  We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night.   And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”

Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin.  Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so.  This group is distinctively inclusive.  It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that.  Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers. 

For more information about MothersEsquire join the Facebook group or check out its website:  I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.     

July 6, 2017 in Family, Guest Bloggers, Women lawyers, Work/life | Permalink | Comments (0)

Wednesday, July 5, 2017

Iceland Passes Law Requiring Equal Pay for Women

Iceland Law Closes Gender Gap, Pays Women as Much as Men

Now, in a major stride towards trying to close the gap in pay once and for all, the Iceland government passed a new law that requires all of their public and private companies employing above 25 people, to pay employees equally “regardless of gender, ethnicity, sexuality, or nationality,” according to a report on The Associated Press (AP) 

 

These companies will be certified by the government after they provide proof that they pay men and women, and people of all races, religions and nationalities equally, for work of equal value. There are a few other countries that have “equal-salary certificate policies,” but the AP report points out that Iceland is the first such country to mandate this for both private and public firms.
 
In Iceland, the current gender pay gap is somewhere between 14 to 18% , according to the World Economic Forum. With this new legislation, Iceland hopes to close its gender pay gap by 2022. And if the legislation is cleared by their Parliament, its Equal Pay Standard will be in force by 2020.
 
In fact, in protest of this injustice, thousands of women across Iceland staged peaceful resistance by shutting shop at work 2.38pm, because the stats about the gap suggest that their pay only technically covers their work up to that time, compared to the boys.

“Equal rights are human rights,” he said. “We need to make sure that men and women enjoy equal opportunity in the workplace. It is our responsibility to take every measure to achieve that,” said Equality and Social Affairs Minister Thorsteinn Viglundsson.

Iceland has made significant progress in trying to close their gender gap, through policies such as quotas on corporate boards and government committees, and 48 percent female representation in the Icelandic Parliament.

July 5, 2017 in Equal Employment, International | Permalink | Comments (0)

Australia: Abortion and Human Rights

Ronli Sifris & Suzanne Belton, Australia: Abortion and Human Rights, 19 Health & Human Rights J. 209 (2017)

This article adopts a human rights lens to consider Australian law and practice regarding elective abortion. As such, it considers Australian laws within the context of the right to equality, right to privacy, right to health, and right to life. After setting out the human rights framework and noting the connected nature of many of the rights (and their corresponding violations), the article shifts its focus to analyzing Australian law and practice within the framework of these rights. It considers the importance of decriminalizing abortion and regulating it as a standard medical procedure. It discusses the need to remove legal and practical restrictions on access to abortion, including financial obstacles and anti-abortion protestors. Further, it comments on the importance of facilitating access; for example, by keeping accurate health data, securing continuity of health care, increasing the availability of medical abortion, and ensuring appropriate care is provided to the most marginalized and vulnerable women.

July 5, 2017 in Abortion, International | Permalink | Comments (0)

How Female and Minority Judges Have Changed (or not Changed) Over Time

Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)

Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.

July 5, 2017 in Gender, Judges | Permalink | Comments (0)

Friday, June 30, 2017

Sex is to Gender as Property is to Intellectual Property

Sonia Katyal, The Numerus Clauses of Sex, U. Chicago L. Rev. (forthcoming)

Abstract

There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.

Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.

June 30, 2017 in Gender, Theory | Permalink | Comments (0)

Thursday, June 29, 2017

Call for Papers: Feminist Judgments: Rewritten Family Law Opinions

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

DEADLINE:  FRIDAY, JULY 21, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes.  Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same.  A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).     

Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here: 

https://goo.gl/forms/9JYv7GtR2gJMDVbY2

Applications are due no later than Friday, July 21, 2017.  The editor will notify accepted authors and commentators by Monday, July 31, 2017.

First drafts of rewritten opinions will be due on Friday, February 2, 2018.  First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at rebouche@temple.edu

June 29, 2017 in Call for Papers, Courts, Family | Permalink | Comments (0)

Wednesday, June 28, 2017

Breaking the Gendered Nature of Parenthood

Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)

In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***

To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.

June 28, 2017 in Constitutional, Family, Gender | Permalink | Comments (0)

Books: New Directions in the History of Conservative Women

Karen Patricia Heath, New Directions in the History of Conservative Women

Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).
 
Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).
 
Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).
 
Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).

As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?

June 28, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Reading Judicial Biographies of Women

JudicialBooks2

Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen.  Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922).  So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her.  Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point. 

As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges.  I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away.  My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role. 

June 28, 2017 in Books, Judges, Women lawyers | Permalink | Comments (0)

Thursday, June 22, 2017

Can an Employer Provide Fathers with Less Paid Paternity Leave than Mothers

Jon Hecht, The Surprising Sexism of Maternity Leave

Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.

“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.

"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.

"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle

The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.

The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.

"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."

However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."

However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time.  It is only the time for caregiving and bonding that must be the same.  Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.

June 22, 2017 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Justice Ginsburg and the Price of Equality

Linda Greenhouse, Justice Ginsburg and the Price of Equality, NYT, discussing Ginsburg's opinion in the recent case Sessions v. Morales-Santana finding a citizenship rule that treated unwed fathers differently than mothers to violate equal protection, but denying the remedy of extending the beneficial mother's rule to fathers.

And what about Justice Ginsburg? Can we assume she’s happy with the outcome of the case, or do we suppose she wrote the remedial section with gritted teeth? Twenty-four years ago, in July 1993, she was President Bill Clinton’s first Supreme Court nominee, and I covered her Senate confirmation hearing. I had met Judge Ginsburg several times, but didn’t know her well. I found her Judiciary Committee testimony enlightening, and I wrote an analysis that appeared under the headline “A Sense of Judicial Limits.” I described her as “something of a rare creature in the modern judicial lexicon: a judicial restraint liberal.” By that I meant that while her own commitments were to liberal outcomes, she displayed an equally strong commitment to letting Congress take the lead. “In her view, equality — or any other goal — is best achieved if all branches of government have a stake in achieving it.”

 

So I’m ready to assume that if the remedial portion of her opinion last week was a compromise, it was one she offered willingly. Her “over to you, Congress” handoff may seem naïve in the present political climate, but it conforms with her deepest beliefs about the appropriate judicial role.

 

And it’s worth remembering that from her earliest years as a nervous young lawyer standing before the nine men of the Supreme Court, Ruth Ginsburg has always played a long game, with the ultimate goal, equality of the sexes, constantly in view. As this case turned out, the price for equality was high. But I don’t doubt that for Justice Ginsburg, it was a price worth paying for being able to strike a blow against still another law based on a generalization about the way “men and women are.”

 

I have previously blogged about my thoughts on Ginsburg's decision leveling down the remedy for equal protection.  See SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?

 

June 22, 2017 in Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, June 20, 2017

San Fran Latest City to Ban Salary Histories to Counter Gender Discrimination

SF to Prohibit Employers Asking Salary History To Close Gender Wage Gap

Supervisor Mark Farrell introduced legislation that would prohibit private employers in San Francisco from asking for and considering past salary information when deciding what salary to offer applicants. The proposal also applies to city government and its contractors.

 
“If women are always held back and down by their salary history, they are prevented from ever catching up with men,” Farrell said. “We have to stop it.”

 

The legislation was praised during Wednesday’s Board of Supervisors Government Audit and Oversight Committee. Some amendments were made during the hearing, such as postponing the initial implementation date from January 2018 to July 2018 to give time for businesses and The City’s enforcement wing, the Office of Labor Standards Enforcement, to prepare. It is also timed for when the minimum wage increase occurs.

 

The committee is expected to hold a hearing June 21 on the proposal with a full board vote on June 27.

 

For the first year, OLSE would only issue warnings if there are violations, but beginning in July 2019, fines could be assessed beginning at $100, and for egregious cases the City Attorney’s Office can sue the employer.

 

A job applicant would be able to voluntarily disclose their salary if they are seeking a better offer, but an employer couldn’t ask an applicant for salary history. An employer could ask for the applicant’s salary expectations.

 

Last year, Massachusetts became the first state to adopt a similar law. New York City and Philadelphia followed suit this year.

 

For additional background on why salary histories contribute to discrimination, see here.

 

 

June 20, 2017 in Equal Employment | Permalink | Comments (0)