Thursday, September 20, 2018
Darren Rosenblum, When Does Board Diversity Benefit Firms?
Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a “diversity dividend” depends on three key factors: (1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its governance; and (3) the jurisdiction(s) in which the firm operates. Only by further investigating the precise conditions under which diversity will have an effect can we estimate the potential instrumental benefits of sex diversity.
The College of New Jersey is among a small but growing number of institutions that now offer alternatives to trial-like investigations that critics say can be traumatic for everyone involved. The U.S. education secretary, Betsy DeVos, has indicated, through Title IX guidance issued in 2017 and then in draft regulations obtained and reported last month by The New York Times, that the Trump administration welcomes alternative ways of handling sexual-misconduct disputes.
Approaches that start with the offender admitting responsibility and agreeing to repair the harm appeal to some students who aren’t interested in seeing someone suspended or expelled. Proponents see alternative resolution agreements as a way to cut down on Title IX investigations, save colleges money, and potentially be fairer to the accused.
But skeptics worry students will feel pressured to bypass a formal investigation and will regret it later on if offenders get off too easily. And asking a student to sit down with an assailant and work out an agreement is not only unrealistic, they argue, but possibly retraumatizing.
The agreement reached by the two students at the New Jersey college didn’t require face-to-face conversations, but they did have to agree on certain stipulations. He would attend a workshop on consent and alcohol-education classes. She wanted him to know how different people’s bodies react to alcohol and how it affects their ability to consent to sex. He would view an online seminar on the neurobiology of sexual assault. The seminar, by Rebecca Campbell, a professor of psychology at Michigan State University, had helped her make sense of her confusing emotional reaction to what she later considered an assault.
Both students had a few days to view and suggest changes in the two-page agreement.
"We don’t want this to be seen as a get-out-of-jail-free card," said Jordan L. Draper, dean of students and Title IX coordinator. "It’s an educational opportunity."
Draper is a proponent of what’s known as restorative justice, an umbrella term that covers a variety of interventions aimed at healing rather than assessing blame and punishing.
Chao-Ju Chen, Catharine A. MacKinnon and Equality Theory in Robin West and Cynthia Bowman eds, Research Handbook on Feminist Jurisprudence (2018, Edward Elgar), Forthcoming
This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.
Wednesday, September 19, 2018
The Impact of Liberal Feminism and Critical Race Theory on Reproductive Rights and Justice in the U.S.
Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming)
This chapter examines the impact of liberal feminism and critical race theory on reproductive rights and justice in the United States. Liberal feminism has played a key role in this fight. Other feminist theories, including, prominently, critical race theory, have taken the mainstream reproductive rights movement to task for marginalizing the voices and experience of women of color and low-income women, thus reinforcing stratified reproduction. This work has put issues like surrogacy, coerced sterilization, welfare family caps and criminal prosecution of pregnant women on the reproductive rights and justice agenda. Interaction among feminist theories has produced a dialectic and evolution that enable them to meet new challenges. Similarly, a multi-theory account of reproductive rights and justice issues produces a more useful analysis and range of strategies than a single theory approach.
Linda McClain, Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects, 67 Emory L. J. (2018)
This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In evaluating Fineman’s call to move beyond identities and antidiscrimination law, the essay explores the rhetoric of vulnerability in the briefs in the recent Masterpiece Cakeshop litigation. This essay also charts my own critical engagement with Fineman’s critique of liberalism and the liberal subject in my constructing a form of liberal feminist legal and political theory. The essay identifies parallel concerns about the role of the state and civil society, comparing a liberal feminist formative project of fostering capacity and vulnerability theory’s project of building resilience.
The UK's highest court is to have a female majority hear a case for the first time in 600 years.
Almost one hundred years after a law was passed allowing women to practice as barristers, three women and two men will decide a case in the highest court in the country.
Three of the five judges who are set to hear a Supreme Court case on October 3 about a 16-year-old with Asperger's Syndrome and learning difficulties are female.
Lady Hale, the court's first female president, has previously spoken out about the need for more women at the top of the judiciary. Earlier this year she said women were "seriously underrepresented" among senior judges, warning that women were forced to move into the public sector because of the difficulty of combining high-flying legal jobs with family and caring responsibilities.
Tuesday, September 18, 2018
Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)
Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.
Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in policy review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through investigation and decision-making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This article addresses change considering campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay limits discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.
The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticisms raised by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on Title IX processes. Part of this exploration will include the ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations, although to date it has not. As of this publication, Secretary of Education, Betsy DeVos, met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. The Secretary also accepted comments on deregulation, which included a review of Title IX regulations. The proposed regulation review was part of the administration’s “Enforcing the Regulatory Reform Agenda.” We can anticipate change, although when and what change is undetermined now. To date, the primary action taken by Secretary DeVos was the rescission of the Obama Era “Dear Colleague” letter discussed early in this article. Incorporated throughout this discussion are the changes, as well as the complications, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student.
More changes from the Secretary of Education are expected, which makes consideration of the concerns addressed in this article vital.
In cities across America, calling 911 can get you evicted. This week, a city less than 10 miles outside of St. Louis agreed to stop enforcing this inhumane policy as part of an extensive settlement.
Last year, we filed a federal lawsuit on behalf of Rosetta Watson, a domestic violence survivor who was kicked out of her home and city because she called the police. Under a local ordinance in Maplewood, Missouri, anyone making more than two calls to the police for domestic violence was designated a “nuisance,” with no exception for victims. Ms. Watson called the police four times, when her ex-boyfriend kicked in her front door, punched her, and strangled her. Based on those calls, Maplewood revoked her occupancy permit, and she was banished from living in Maplewood for six months. For years afterwards, she struggled with fear of her abuser, distrust of law enforcement, and the inability to keep a stable home. * * *
The case against Maplewood is just the latest in our fight against nuisance ordinances. The Metropolitan St. Louis Equal Housing & Opportunity Council found 69 similar ordinances in the St. Louis region, and we estimate there are thousands across the country. For example, the ACLU published a report with the New York Civil Liberties Union last month, showing how different cities in New York often enforced these kinds of ordinances in communities of color and where poor people live, imposed harsh penalties for low-level offenses, and harmed domestic violence survivors and those in need of emergency aid.
Monday, September 10, 2018
Justices Ginsburg, Sonia Sotomayor, Elena Kagan and their male colleagues saw fewer women arguing before them in the 2017-18 term, and the fewest to participate in oral argument in at least seven years.
During the recently completed term, there were 19 appearances at oral argument by women, or about 12 percent of the total 163 appearances, according to statistics kept by Kedar Bhatia for SCOTUSblog. (There were 113 different advocates who argued for parties or amici in the 63 argued cases, with several lawyers appearing more than once.)
The 12 percent figure was a steep drop from the previous term (2016-17), when 21 percent of appearances at oral argument were by women. In the previous five years to that term, the participation rate for women ranged from a low of 15 percent to a high of 19 percent.
“The thing that’s most disturbing to me is the consistency in the data,” says Jennifer Crystal Mika, an adjunct professor at American University’s Washington College of Law in the nation’s capital, who has studied the issue of female advocates before the high court. “There has never been much more than 20 percent female advocates over the last 20 years.”
Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association.
The survey, which proposes strategies for employers to eliminate the barriers, was conducted by the Center for WorkLifeLaw at the University of California, Hastings College of the Law, for the bar association’s Commission on Women in the Profession and the Minority Corporate Counsel Association. ***
The researchers had 2,827 lawyers fill out online surveys in spring 2016 about their experiences at work. The surveys were distributed by the bar association’s email list and other professional networks. The association has 400,000 members.
They found that many women and people of color felt they were held to a higher standard than white men. That feeling was most prevalent among women of color, who reported the highest levels of bias in almost every category.
About half of the women of color said they felt they had equal access to the kind of “high-quality” assignments that lead to exposure and advancement in an organization. Among white men, that number was 81 percent.
Women of all races said they had to walk a “tightrope” in their behavior. They reported pressure to behave “in feminine ways” and a backlash for exhibiting stereotypically male behaviors. They were more often saddled with “office housework,” like taking notes, ordering lunch or comforting a co-worker in distress.
In a law firm, that kind of work reduces billable hours, which can hurt compensation. And while it takes up time and energy and helps the organization, it often does not lead to career advancement. The report states that a lack of opportunities to take on challenging work also contributes to high attrition rates among women in law firms.
Many women said they felt they were paid less than their colleagues with similar experience. (Almost 70 percent of women of color said so, compared with 60 percent of white women and 36 percent of white men.)
And a quarter of female lawyers reported that they had experienced sexual harassment at work, including unwanted sexual comments, physical contact and romantic advances. Those episodes sometimes had career costs. About one in eight white women, and one in 10 women of color, said they had lost opportunities because they rejected sexual advances.
Among all respondents, about 70 percent said they had heard sexist comments, stories or jokes at work. And while the numbers were higher among women, lawyers of both genders felt that taking parental leave would have a negative impact on their career.
“You’ve got systemic barriers in place,” said Ms. Mayes, who is the chief legal counsel for the New York Public Library. “If you don’t think a woman with children should be promoted, if the woman has children of a certain age or expects to, that’s a huge impediment.”
According to the latest report from the bar association’s Commission on Women in the Profession, only 35 percent of active American lawyers in 2016 were women, and they earned less than their male colleagues. Of the top lawyers for Fortune 500 companies, just 26 percent were women. And while women graduate from law schools in large numbers, they made up only 32 percent of law school deans.
The report lays out methods and practices for organizations to counter bias, with an emphasis on using metrics to track and encourage fairness. They include abolishing questions about prior salary in job interviews, having boilerplate questions and policies for interviews and performance evaluations, and monitoring supervisors to ensure there are no consistent disparities by demographic group.
In her forthcoming article Lactation Law, Meghan Boone answers no, at least as such statutes are currently written. From the opening paragraphs, she poses a startlingly counterintuitive example of a Maine teacher whose child was stillborn. In the following days, she began lactating, an understandably traumatic process for someone mourning a stillbirth. As she grieved, she learned of nonprofit organizations that collected donated breast milk and distributed it to babies who would otherwise not be fed breast milk and decided to participate. The school where she worked, however, refused to accommodate her pumping breast milk because the Maine statute that required employers to accommodate lactation only applied to mothers nursing or pumping milk for their own children. Because the teacher’s breast milk would be donated to other babies, the school was not required to accommodate her desire to pump breast milk while she was at work.
From this difficult puzzle, Boone identifies a troubling feature of statutes protecting the right to pump breast milk at work or breastfeed in public: such laws do not protect women qua women. They protect infants, justified by the current medical opinion that infants fed breast milk enjoy health advantages that are not available to formula-fed infants. The significance of breastfeeding and pumping breast milk, in other words, has little to do with the lactating woman. Rather, lactation is a service that a mother provides to her child.***
This may seem like a distinction without a difference, but Boone persuasively outlines how legal protections for lactation reject decisions that characterize breastfeeding as an autonomy interest that shapes women’s decisions about how to mother, and instead underscore societal perceptions of what mothers should be.
On this reading, Boone argues, the current state of lactation law further entrenches gendered expectations, which, at least in some respects, is worse than having no lactation law at all. Existing statutes reinforce the idea of breastfeeding as something that women should do if they are the right kind of mother, but not for too long, and not in ways that fall outside of the norm. Boone proposes fundamental changes to lactation law: focusing on the physiological experience of lactation rather than a maternal relationship, removing the justification tied to an infant biologically related to the lactating woman, and recognizing that promoting women’s health is also a public goal supported by lactation law. Her reforms are a thoughtful and comprehensive solution to the deep-rooted issues with current flawed protections of lactating women. My only quandary is that Boone’s demonstration of the gender and maternal stereotypes embodied in lactation law is so thoroughly persuasive that it makes the prospect of reform seem very unlikely.
Tuesday, September 4, 2018
L. Camille Hebert, Is "MeToo" Only a Social Movement or a Legal Movement Too?, 22 Employee Rights & Employment Policy J. (2018)
This essay discusses some of the effects of the “MeToo” movement as a social movement, bringing issues of sexual assault and sexual harassment to the forefront. The essay then raises the question of whether that movement might also have implications for the law of sexual harassment. The essay discusses three elements of the law of sexual harassment—the “because of sex” requirement, the requirement that the harassment be subjectively hostile and objectively severe or pervasive, and the standard for employer liability for harassment—and explores the way that the “MeToo” movement might affect the way in which courts apply those elements. The essay then discusses other ways in which the law relevant to sexual harassment claims has been and may be changed by the movement, including with respect to mandatory pre-dispute arbitration agreements and nondisclosure agreements.
Wednesday, August 29, 2018
Call for Papers: Sunday September 16 Deadline
The Feminist Legal Theory
Collaborative Research Network
Seeks submissions for the
Law and Society Association Annual Meeting
May 30 – June 2, 2019 in Washington, D.C., USA
Dear friends and colleagues,
We invite your participation in the panels organized and sponsored by the Feminist Legal Theory Collaborative Research Network (FLT-CRN) at the Law and Society Annual Meeting in Washington, D.C. May 30 – June 2, 2019. The Feminist Legal Theory CRN brings together
law and society scholars across a range of fields who share an interest in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org. We seek proposals that explore feminist legal theory across any substantive area.
If you would like to present a paper as part of a CRN panel, submit your 500 word abstract here by the deadline of Sunday, September 16, 2018.
You must also sign up to join the FLT-CRN Slack page by September 16, 2018 (information on Slack is included at the end of this letter). We are migrating from TWEN to Slack, which is a user-friendly and free platform that will allow those in our community who do not have access to TWEN to participate.
Our goal is to stimulate focused discussion of papers on which scholars are currently working. While you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide. We are also interested in hearing from junior scholars, and welcome submissions from scholars in VAPs, fellowship programs, non-tenure and pre-tenure positions. Furthermore, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.
The Planning Committee will group accepted papers into panels of four, based on subject
matter. Each invited presenter will commit to presenting for no more than 10 minutes to allow ample time for discussion consistent with the FLT-CRN norms and expectations. A chair or discussant will provide feedback on each paper. If you would like to propose a pre-formed panel of four papers with a chair, please message us on Slack or email firstname.lastname@example.org.
In addition to traditional panels, we are open to some of the other formats that the LSA allows; including Author meets Reader, Salon, or Roundtable. If you have an idea that you think would work well in one of these formats, please email us at the addresses above. Please note that for roundtables, organizers must provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once, either as a paper panelist or as a roundtable participant.
As a condition of participating as a Feminist Legal Theory CRN panelist, you must agree to also serve as a discussant or discussant/chair for another Feminist Legal Theory CRN panel. This requirement helps us to create and sustain a supportive community of scholars. We will take into account expertise and topic preferences.
Chairs organize the panel, as well as moderate. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before the anticipated deadline of mid-October. This will ensure that each panelist can submit their proposal, using the panel number assigned.
Discussants read at least one paper assigned to them and prepare a short commentary to offer feedback and serve as a basis for discussion among the panelist and audience members.
Proposals are due Sunday, Sept. 16th to https://form.jotform.com/82105470592959. All Feminist Legal Theory CRN participants must also sign up for Slack by September 16th in order to access information and papers for the conference, even if you are not submitting a proposal (instructions for Slack below).
For proposal submissions, the Jotform requires the following information:
- The title of your proposal;
- A 500 word abstract or summary;
- Your name and title;
- Number of years you have been a law teacher/scholar;
- Your areas of interest and expertise within feminist legal theory;
- Whether this paper is part of a group of papers submitted together as a pre- formed panel.
This information will permit us to organize panels and submit them prior to the LSA’s anticipated deadline in mid-October. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit your proposal independently to LSA.
We hope you will join us in Washington, D.C. to share your current scholarship and connect with this vibrant community of feminist legal theorists.
2019 LSA Feminist Legal Theory CRN Planning Committee
Maya Manian & Jamie Abrams (Co-Chairs); Ayelet Blecher-Prigat; Yael Braudo (Chief Technology Officer); Daniela Kraiem (Washington, D.C. local host liaison); Seema Mohapatra (2018 co-chair liaison); Eylem Umit; Dara Purvis; Jordan Woods
How to sign up for Slack:
Effective September 16th, we are moving to Slack for all of our CRN communications. We will no longer use the longstanding TWEN platform after that date. Slack is a messaging app where we can talk, share files, and work together. To join our workspace on Slack, please follow this link: https://join.slack.com/t/fltcrn2019/shared_invite/enQtMzk2NjMyNTY5NTU4LWY2ZjgwNGFhY2ZjZWJmMmY1N2M1ZmI0N2JiY2FhZTQ3NmRhNDZiMDE1YmUwN2VhYzlmYWFiMWU3OGY5MTY0OWY
Why are we moving to Slack?
We want to use the best communication tools to make our lives easier and be more productive. Having everything in one place will help us work together better and faster, rather than jumping around between emails, IMs, texts and a bunch of other programs. Everything you share in Slack is automatically indexed and archived, creating a searchable archive of all our work. This platform is more accessible to scholars throughout the world and at different stages of their careers.
Here’s what Slack can help us with:
- Communicating transparently across the CRN
- Quicker feedback and better decision making
- Easy access to information, documents, and files – all papers that are accepted will be available for every CRN member who joins our Slack workspace.
- After constructing all panels, each panel will have a separate channel in which the panelists and chair will be able to discuss all details, share drafts, etc.
Please register with Slack by September 16th to ensure continuous access to all updates and communications regarding future events and programs.
Every year, thousands of people are accused of witchcraft and face persecution, abuse, and even death. Now the United Nations is organizing to defend victims of witch hunts.
According to the UN, reports of witch hunts are on the rise, and cases are becoming more violent and prevalent across the globe. Experts and academics hope that the conference will raise awareness of the phenomenon so that it can be better understood as a human rights problem and integrated into the UN's approach to humanitarian issues.
"Witchcraft beliefs are encountered on virtually all continents," explains Dr. Charlotte Baker, who launched the upcoming meeting with funding from Lancaster University. "Globally, witchcraft accusations and persecution have resulted in serious violations of human rights including beatings, banishment, cutting of body parts, amputation of limbs, torture and murder."
The UN has identified women, children, the elderly, and people with disabilities as those most at risk of witch-related abuse. Foxcroft says that the violence can look different from country to country, from "elderly women being beaten, tortured, and killed in places like Kenya, Papua New Guinea, and India" to abuse in Nigeria and the Democratic Republic of Congo, where it is "mainly children who are targeted." According to the WHRN, those with albinism, autism and Down's syndrome have been targeted by such accusations, while a claim against an older woman is often used as an excuse to acquire her land and property.
What these cases share in common, however, is the startling lack of response from local judicial systems and the resulting impunity for the perpetrators. Branding someone a witch has historically been used to justify abuse, particularly by patriarchal religious leaders (see: the infamous Salem witch trials of the 1690s), and experts like Foxcroft believe that the spread of witchcraft-related human rights abuses is exacerbated once more by faith leaders who spread malevolent beliefs in witchcraft to exploit people or extract money from the fearful public.
Sara Dehm & Jenni Millbank, Witchcraft Accusations as Gendered Persecution in Refugee Law, Social & Legal Studies (2018)
Witchcraft-related violence (WRV), in particular directed towards women and children, has become a source of increasing concern for human rights organisations in the current century. Yet for those fleeing WRV this heightened attention has not translated across into refugee status. This research examines how claims of WRV were addressed in all available asylum decisions in English, drawn from five jurisdictions. We argue that WRV is a manifestation of gender-related harm; one which exposes major failings in the application of refugee jurisprudence. Inattention to the religious and organisational elements of witchcraft practices, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges, or family or community disputes, such that they were not cognisable harms within the terms of the Refugee Convention; or they were simply disbelieved as far-fetched. The success rate of claims was low, compared to available averages, and, when successful, claims were universally accepted on some basis other than the witchcraft element of the case. This article focuses in particular upon cases where the applicant feared harm as an accused witch, while a second related article addresses those fearing persecution from witches or through the medium of witchcraft
Jenni Milbank & Anthea Vogl, Adjudicating Fear of Witchcraft Claims in Refugee Law, J of Law & Society (2018)
This research examines claims of witchcraft related violence (WRV) in asylum decisions. In refugee applications involving WRV those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. We argue that WRV is a manifestation of gender-related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of Religion, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside of what is understood to be objective, verifiable, or Convention-related. Male applicants struggled to make their claims comprehensible as a result of the feminised and ‘irrational’ characterization of witchcraft fears and beliefs.
Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture
Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)
International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.
I. India Thusi, Harm, Sex, and Consequences, Utah L. Rev. (forthcoming)
At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for re-examining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly-impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reigning in a system that seems to be ever-expanding, and reframing a criminal legal theory that has grown ambivalent about this expansion.
Monday, August 27, 2018
I really resist rankings and other attempts to impose hierarchy (reflecting some of the broader takeaways from feminist legal theory), but . . . here weighed in favor of recognizing these women for their work.
Jack Balkin, The Most Cited Women in American Legal Scholarship
Age in 2018
Union Theological Seminary
University of Chicago
Washington University, St. Louis
University of Michigan
New York University
University of California-Berkeley
New York University
University of Pennsylvania
University of Pennsylvania
Danielle Keats Citron
University of Maryland
George Washington University
Study Documents Persistent Employment Discrimination Against Older Women and Ineffective Legal Redress
Joanna Song McLaughlin, Falling Between the Cracks: Discrimination Laws and Older Women
Theories and evidence suggest that older women may experience unique discrimination for being both old and female in the workplace. To provide remedy for this type of discrimination – known as intersectional discrimination – legal scholars argue that age and sex discrimination laws must be used jointly and acknowledge intersectional discrimination (age-plus-sex or sex-plus-age discrimination) as a separate cause of action. Nonetheless, in general, courts have declined to do so even though older women are protected under both age and sex discrimination laws. This raises a concern that age discrimination laws may be ineffective, or less effective in protecting older women. I test this implication by estimating the differential effect of age discrimination laws on labor market outcomes between older women and older men. My findings show that age discrimination laws did far less to improve labor market outcomes for older women than for older men. This may explain one reason for persistent discrimination against older women found in existing literature and supports the legal scholars’ argument that older women’s intersectional discrimination must be recognized as a separate cause of action.
Felice Batlan, Deja Vu and the Gendered Origins of the Practice of Immigration Law: The Immigrants’ Protective League, 1907-1940, Law & History Rev. (2018)
This essay from Felice Batlan was written after she spent days protesting at Chicago's O'Hare airport in response to Trump's "Muslim Ban." The article is posted on Law and History Review's multi-media digital platform which provides hyperlinks to both primary and secondary sources making it freely accessible and ideal for classroom use.
Donald Trump’s administration has provoked crisis after crisis regarding the United States’ immigration policy, laws, and their enforcement. This has drastically affected millions of immigrants in the U.S. and those hoping to immigrate. Stemming from this, immigration lawyers and immigrant advocacy organizations are challenging such policies and providing an extraordinary amount of direct pro bono legal services to immigrants in need. Yet the history of the practice of immigration law has been largely understudied. This article addresses this history by closely examining Chicago’s Immigrants’ Protective League between 1910 and 1940. The League provided free counsel to tens of thousands of poor immigrants facing a multitude of immigration-related legal issues during a time when Congress passed increasingly strict immigration laws often spawned by xenophobia and racism. The League, always headed by women social workers, created a robust model of immigration advocacy at a time when only a handful of women were professionally trained lawyers. A close and thick reading of the League’s archival documents, manifests how the events of Trump’s immigration policies have a long and painful history. U.S. immigration law and its enforcement have consistently been cruel, inhumane, arbitrary, and capricious. Told from the ground up and focusing upon the day-to-day problems that immigrants brought to the League, one dramatically sees how immigration laws and practices were like quicksand, thwarting the legitimate expectations of migrants, and, at times, leaving people in an endless legal limbo. The League, in response, participated in creating what would become the practice of immigration law, engaging, and quickly responding to changing laws, rules, policies, and the needs of migrants.