Tuesday, November 21, 2017
In Last Year, 40 Lawmakers in 20 States Publicly Accused by 100 People of Sexual Misconduct or Harassment
Since last year, at least 40 lawmakers – nearly all men – in 20 states have been publicly accused by more than 100 people of some form of sexual misconduct or harassment, a USA TODAY NETWORK analysis found.
The total, which doesn’t include confidential or anonymous complaints or government staffers who have been accused of sexual misdeeds, reflects unprecedented levels of scrutiny on statehouses across the country.
Swift action has been taken against high-profile men, including Hollywood producer Harvey Weinstein, and others accused of sexual harassment. There have been varying degrees of punishment for lawmakers.
Two weeks ago, Kentucky House Speaker Jeff Hoover resigned from his leadership position amid growing pressure over a report that he settled a sexual harassment complaint made by a staff member.
Florida's Senate president earlier this month ordered an investigation into allegations that Sen. Jack Latvala, who is running for governor, made inappropriate comments or touched six women. Latvala has denied the claims.
Earlier this year, Rep. Mark Lovell, a freshman Tennessee lawmaker, resigned amid allegations of sexual harassment. The resignation followed last year's expulsion of former Rep. Jeremy Durham, who had inappropriate sexual contact with at least 22 women, according to an attorney general's investigation.The ways lawmakers have handled sexual harassment and assault allegations has left some experts looking for change.
“The consequence must fit the transgression,” said Jennifer A. Drobac, an Indiana University law professor and expert on sexual harassment cases. “You have to withdraw the privileges, kick them out of Congress or out of the statehouse. Take away the privileges of their employ and their health care benefits.”
Debbie Dougherty, a professor in the Department of Communication at the University of Missouri who has written several reports on sexual harassment, said the latest wave of sexual harassment allegations against powerful men follows a slow but steady stream of similar accusations against officials at FOX News, Uber and the National Park Service.
“It’s like a stone rolling downhill. You see some and then you see some more and then you see a lot,” said Dougherty.
“The problem has been ignored and minimized for so, so many years that I think we’re just seeing the tip of the iceberg.”
ABA J, Girls' Courts Under Scrutiny
As courtrooms specializing in girls’ cases crop up around the country, the U.S. Department of Justice is examining whether they actually work.
Since the early 2000s, an estimated 20 specialty girls’ courts have been created nationwide, though these gender-specific courts mean different things in different places. Sometimes it’s simply a docket dedicated to cases for girls. Others specialize in linking young female defendants with social services. There are even courts that hear only sex trafficking cases.
Leading the examination is the Office of Juvenile Justice and Delinquency Prevention’s National Girls Initiative. “The study is a chance to look at where they are, what do they look like and how do we define their effectiveness,” says Jeannette Pai-Espinosa, president of the National Crittenton Foundation in Portland, Oregon, which coordinates the National Girls Initiative with the office.
The major concern is whether these courts are bringing more girls into the system and keeping them in detention and in prison longer or offering alternatives to incarceration.
The researchers are meeting with judges around the country, including Jennifer L. Ching, presiding judge of the Hawaii Girls Court. Established in 2004 as part of the Family Court of the First Circuit in Honolulu, it’s one of the country’s first such courts. It focuses on girls brought in on status charges, such as running away, skipping school or breaking curfew.
“Girls’ court is about the actual court hearings but also about supporting gender-specific, empowering activities,” says Karen Radius, founding judge of the Hawaiian court.
For a related prior post, see Girls' Court
Monday, November 20, 2017
We are seeing an endless parade of new allegations of sexual harassment made daily against powerful men in entertainment, news, and business industries. While doing much to elevate the public discourse of sexual harassment, they are also triggering the backlash accusations of “witch hunt.”
One piece of this accusation is that in many of these cases, the incidents now reported and alleged go back five, ten or twenty years. There seems to be an inherent unfairness in bringing up such old claims now. Advocates, of course, understand victims’ reluctance to come forward with claims, since such claims are rarely taken seriously or investigated and more often than not, cause substantial negative consequences to the woman professionally, financial, and emotionally.
The law, however, is quite concerned about these types of old claims, and has several doctrines designed to address this potential unfairness to the accused.
First, are statutes of limitations, which are relatively short for sexual harassment lawsuits. Most harassment suits are filed under the federal statute Title VII, and require that complaints be filed with the EEOC within 180 days of the incident (or sometimes deferred to 300 days where state action is first sought). Statutes of limitations for sexual assault are longer, most commonly 2-3 years for civil claims of sexual assault and 5-10 years for criminal sexual assault, or even no time limit for certain crimes like sexual assault of a minor. Statutes of limitations generally help preserve evidence needed for both plaintiffs and defendants to accurately present their case, and provides timely notice and resolution of disputes. In the sexual harassment context, it also may help ensure that the perpetrator stops his continued conduct against other women.
There is an exception to the statute of limitations for sexual harassment when the incident is part of a continuing pattern of conduct. When old incidents are part of the same pattern of more recent conduct, the most recent incident triggers the clock, and the old incidents can still be brought in as evidence. Mandel v. M&Q Packaging Corp., 3d. Cir. 2013.
Laches is as second doctrine seeking to avoid old claims from being actionable. Laches is an equitable notion that bars a plaintiff from seeing a remedy when she has unreasonably delayed in filing an action, or unreasonably delayed in prosecuting the action after filing it. Here, the known reluctance and harm to victims from filing might help mitigate the unreasonableness of the delay. But the core of the laches inquiry is whether the delay caused prejudice to the defendant. Prejudice can be economic, monetary or investment harm, or procedural, such as loss of evidence and witnesses. Thus, in the law, foundational precepts of due process and fairness prohibit litigating old claims, and place the obligation squarely on the plaintiff to bring forward her claims within a short time of the incident.
Of course the media revelations of alleged past incidents are not bound by these doctrines of timeliness. Nor, apparently, are internal organizational investigations of misconduct. See NPR, Legal Landscape Shifts as More Sexual Harassment Allegations Surface Online
"It is a much sweeter and faster form of justice to out a harasser than to go through many years of legal battle, which is psychically, emotionally and financially exhausting," says Debra Katz, an attorney who specializes in harassment and discrimination in Washington, D.C. ***
More accusers are also coming forward online because "sex harassment cases have historically been difficult to prove" on legal grounds, says Deborah Rhode, a law professor at Stanford University.
More than half of sexual harassment claims made to the Equal Employment Opportunity Commission last year resulted in no charge. There is a consistent pattern in which accusers are unsuccessful, according to data from the past six years.
In addition, fewer than 5 percent of sexual harassment cases actually get to court, Rhode told Here & Now's Jeremy Hobson earlier this month.
"Fewer than those are actually litigated. And what normally happens when the cases are filed is they're settled with a confidentiality clause that prevents the victim from disclosing any details," she says.
Victims can also get around the legal statute of limitations [online], Rhode says.
"You can see people losing their jobs for conduct that occurred well before the statute of limitations," she says. "They may not have a legal claim, but they have an audience. And the reputational injuries — as we've seen with someone like Kevin Spacey — could be substantial."
An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.
The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.
The amendment was proposed by New Jersey Democratic Senator Bob Menendez.
The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.
"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."
Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.
"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."
So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.
The question is what impact what tax restrictions might have on settlements. The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.
Only a handful of scientific studies have tested the effectiveness of sexual harassment training, which is nearly ubiquitous in American workplaces and intended to help protect workers as well as minimize an employer’s own legal and financial risks.
[R]esearchers don’t have much evidence that sexual harassment training is effective at certain key goals: reducing the number of incidents in a workplace; or helping to shift its culture toward one that takes the issue seriously.
Last year, the Equal Employment Opportunity Commission published a reportthat found only two research papers based on large-scale studies of anti-harassment training in workplaces (rather than in lab settings).
The research showed that the training does have benefits — particularly in increasing awareness of what constitutes sexual harassment and how it should be reported. But it also showed that some efforts had a negative effect, such as a study where male participants were more likely to blame the victim and less likely to report harassment.
That sentiment has also reached Capitol Hill, where harassment allegation reports recently emerged. "Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff,” House Speaker Paul Ryan (R-WI) said in a statement Tuesday. “Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution.”
There’s just one problem with this initiative: It’s probably not going to do anything to curb sexual harassment.
The research from sociology and organizational psychology on the billion-dollar anti-harassment training industry suggests these programs aren’t actually effective at stopping or preventing abuse.
“Over 90 percent of large US employers have harassment trainings in place, but it’s having very little effect, if no discernible effect, on the overall number of harassment complaints that are reported,” Harvard sociologist Frank Dobbin told Vox. “I don’t think we can sit around and wait for training to solve the problem.”
Experts who study workplace harassment view these trainings as more of a strategic defense against future lawsuits than a solution to a pervasive problem.
Now that we’ve had something of an awakening about the pervasiveness of sexual harassment in the American workplace, the conversation is shifting to what to do about it. In many workplaces, the answer seems to be that we need mandatory training and clearer policies.
That seems to be the dominant thinking on Capitol Hill. After more than 1,500 former congressional aides signed a letter calling for action, the House and Senateadopted mandatory anti-harassment training for all lawmakers and staffers. This “sends a clear message: harassment of any kind is not and will not be tolerated in Congress,” Sen. Amy Klobuchar (Minn.), the ranking Democrat on the Senate Rules Committee, said in a statement.
Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment. And the clearest message they send is to the courts: Nothing to see here, folks.
Friday, November 17, 2017
Taja-Nia Y. Henderson, "I Shall Talk to My Own People": The Intersectional Life and Times of Lutie A. Lytle, 102 Iowa L. Rev. 1983 (2017).
In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments—her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school—have been largely lost to historians of legal education. She is not among those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.
As a genre, biography seeks to use the life of the individual to tell a larger story about the collective. Feminist biography—probably best understood as both subgenre and method—has the same goals, but moves gender “to the center of the analysis.” This methodology asks not only how gender as a social category has impacted the lives of historical actors, but also how the unequal distribution of power resulting from existing gender hierarchies has influenced epistemologies of scholarly inquiry.
A biographical sketch of Lutie A. Lytle, a woman coming of age in the second half of the nineteenth century, warrants such treatment. Lytle’s career in the law was certainly impacted by gender as she was among the earliest cadre of women lawyers in the nation. As a student, she was the only woman enrolled in the Law Department of Central Tennessee College. When she was appointed as an instructor at the College, moreover, she was the only woman among the law school’s faculty. As a woman of African descent born during Reconstruction, however, Lytle (and her story) “cannot be captured wholly by” a methodology that moves only gender to the center. The intersection (or overlap) of Lytle’s identities as a woman of color and the daughter of former slaves requires that gender and race (and arguably, status and class) move to the center. In other words, a biographical sketch of Lytle’s life cannot privilege gender in isolation; it must also grapple with the persistence of race, racism, and the myriad legacies of chattel slavery in the subject’s world.
Wednesday, November 15, 2017
A lawsuit filed by an anonymous former student claiming that Colgate University unlawfully expelled him in his senior year based on accusations of sexual abuse by three female students was dismissed Wednesday by a federal judge for the U.S. District Court for the Northern District of New York.
U.S. District Judge Lawrence Kahn granted the small liberal arts university in Hamilton summary judgment with respect to each cause of action in the lawsuit brought on by John Doe in August 2015, Doe v. Colgate University, 5:15-cv-1069.The plaintiff’s attorney said he planned to appeal the ruling to the U.S. Court of Appeals for the Second Circuit.
The anonymous plaintiff in the lawsuit attended the university from 2011 until he was expelled during his senior year in April 2015, after being found responsible for three instances of sexual misconduct against the unnamed students that occurred during the 2011-12 academic year. He contended the touching was consensual and not reported to college officials until much later. The plaintiff alleges that in his expulsion, Colgate University violated Title IX—a federal law that prohibits sex-based discrimination in education—and the state’s Human Rights Law. The plaintiff also claimed that the university was in breach of contract, breach of the covenant of good faith and fair dealing, violated the New York General Business Law, as well as demonstrated liability based on equitable estoppel theory and was negligent.
Kahn granted the plaintiff anonymity in April 2016 after a magistrate judge had earlier denied the request. The plaintiff successfully argued that the potential harm he faced outweighed the public’s interest in his being identified.
In his decision released Tuesday, Kahn wrote that the plaintiff “fails to provide sufficient evidence that gender bias motivated Colgate’s decision to expel him.”
The plaintiff had argued that the school was biased in favor of women due to student activism and the reaction to what occurred in Columbia University, when a female student carried a mattress throughout the campus after an inquiry by the university found a lack of evidence that she was raped by a male student. The plaintiff also claimed that Colgate’s investigation was tainted because the primary investigator, Val Brogan, once worked in the Abused Persons Unit at the Onondaga County Sheriff’s Department, and might be biased against men.
President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that reflects the nation’s diversity.
So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.
The shift could prove to be one of Trump’s most enduring legacies. These are lifetime appointments, and Trump has inherited both an unusually high number of vacancies and an aging population of judges. That puts him in position to significantly reshape the courts that decide thousands of civil rights, environmental, criminal justice and other disputes across the country. The White House has been upfront about its plans to quickly fill the seats with conservatives, and has made clear that judicial philosophy tops any concerns about shrinking racial or gender diversity.
Trump is anything but shy about his plans, calling his imprint on the courts an “untold story” of his presidency.
“Nobody wants to talk about it,” he says. “But when you think of it ... that has consequences 40 years out.” He predicted at a recent Cabinet meeting, “A big percentage of the court will be changed by this administration over a very short period of time.”
Advocates for putting more women and racial minorities on the bench argue that courts that more closely reflect the demographics of the population ensure a broader range of viewpoints and inspire greater confidence in judicial rulings.
Ido Katri (Toronto), Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation, U. Penn. J. Law & Social Change 20.1
This article will puts a gender variant perspective on anti-discrimination law and litigation. It analyze trans right claims by synthesizing queer theory’s concept of performativity and critical race theory’s concept of intersectionality, to offer a new and original concept of legal “intrasectionality”, with far-reaching implications for rights-based litigation. Instead of considering how “legal men” are treated different than “legal women”, this article will ask whether a given gender variant individual is treated differently than one whose gender performance coheres to social standards. These inquiries into the intrasectionality of the sex category with respect to equality will set the stage for the claim that anti-discrimination law and litigation intertwines with performativity.
Ido Katri, The Banishment of Isaac: Racial Signifiers of Gender Performance, Univ. Toronto L.J. 68.1
This article suggests that a performative reading of discrimination cases allows for recognition of intersectional harms and facilitates a broader systemic account of exclusion from resources and opportunities. Revealing the protected category of sex as a prohibition against discrimination on the basis of gender performance, the article considers how signifiers marked on the gendered body constitute the protected categories relating to race and ethnicity as well. The article suggests that racial/ethnic signifiers and sex/gender performance function reciprocally to construct material realities of exclusion from resources and opportunities. Drawing on the trans position in anti-discrimination, the article offers a nuanced reading of discrimination suffered by Jews of Arab decent, the Mizrahim, under Israeli law. It shows that courts could address systemic aspects of individual claims by looking for the intersecting differentiating logics at the root of private discrimination. The article argues that protected legal categories do not reflect pre-legal truths but constitute them; that when the law prohibits discrimination on the basis of sex it prohibits discrimination on the basis of gender performance; and that gendered performance is always already marked by racial signifiers. Thus, by turning the legal gaze to racial signifiers of gender performance, intersecting harm can be accounted for.
Monday, November 13, 2017
Today the US Supreme Court granted cert in National Institute of Family and Life Advocates v. Becerra
The petition for a writ of certiorari is granted and limited to the following question: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."
For a prior post on the case see Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech
See also USA Today, Abortion, Contraception Return to Supreme Court in Free Speech Case
The Ninth Circuit's decision below upholding the law and disclosures is here.
The decision in Feminist Majority Foundation v. University of Mary Washington, 2017 Wl 4158787 (E.D. Va. Sept. 19, 2017)
This case arises from the cyberbullying of a student-run feminist organization at the University of Mary Washington (“UMW”). The cyberbullying occurred primarily through a social media smartphone application called Yik Yak. Yik Yak allowed users to anonymously share messages—called “yaks”—with other users within a certain radius (e.g., with users at or around UMW). Other users could then anonymously comment on yaks or could vote up or down on the yaks. During the 2014–2015 school year, users on Yik Yak harassed the plaintiffs by posting insulting, derogatory, and threatening yaks. The plaintiffs complained to UMW about the harassment, and eventually filed a complaint against UMW under Title IX.The plaintiffs have now sued UMW, along with its current and former presidents, for violations of Title IX and the Equal Protection Clause. The defendants have moved to dismiss. Because UMW has limited, if any, control over Yik Yak, the plaintiffs' Title IX discrimination claim fails. Their Title IX retaliation claim fails because UMW took no retaliatory action against the plaintiffs. Finally, because no constitutional violation occurred, let alone a clearly establish or continuing violation, the plaintiffs have not stated claims under the Equal Protection Clause. Accordingly, the Court will grant the defendants' motion to dismiss
Recently, I have worked with a number of professional services firms committed to equality, diversity and inclusion. Many offer diversity training and leadership development programs, and many support affinity groups for traditionally underrepresented groups.
However, none has been able to crack what sometimes feels like a code set in stone: significantly increased diversity at the entry level, but very little change at the top.
This divide is particularly salient in law firms. At many law schools, more women than men graduate, leading to an increase in the proportion of female lawyers in the United States from about 3 percent in 1970 to almost 40 percent today. Similarly, about one-third of law school graduates are minorities, but fewer than 10 percent of equity partners are nonwhite and fewer than 20 percent are female. These numbers have been fairly stable for a while and have even backtracked in some instances.
However, there is reason for optimism. As a behavioral economist, I look for data, as it typically tells the tale. Instead of throwing money at the problem, we need to understand what is broken before we try to fix anything. For example, when looking at promotion data, the picture is clear: There is a promotion gap between white men and traditionally disadvantaged groups.
This may be the result of flawed promotion procedures at some firms where committees spend time guessing a candidate’s potential. These appraisals are fertile ground for biases, since people tend to predict the future by extrapolating from the past — and the past looks rather white and rather male.
What are the ways in which we can combat these biases in performance appraisals and narrow the promotion gap? One study we have underway at Harvard looks at whether potential bias will go away when we use data analytics to offer more concrete and more objectively measurable criteria for such traits as analytical skills, emotional intelligence, people skills or client interaction. Generally, the arsenal of evidence-based insights that help address flaws in the promotion process is steadily increasing. Still, fixing the process alone won’t be enough.
We will also need to tackle something called the “thin file,” a term I came across only recently. When explaining to me why a person was not promoted to partner, promotion committee members repeatedly said that a candidate simply didn’t have what it takes, based on a file summarizing his or her work over the past eight years.
The candidate had not been on enough, if any, important deals, and, making matters worse, had received little feedback over the years. Associates with these “thin files” tended to be minorities and women.
Although the promotion process might have some flaws, the flaws of the system had affected these candidates from the time they joined the firm as first-year associates. They were victims of what has become known as performance-support bias, in which some employees receive less support from the start.
Friday, November 10, 2017
Study after study shows that, among heterosexual parents, fathers — even the youngest and most theoretically progressive among them — do not partake generously of the workload at home. Employed women partnered with employed men carry 65 percent of the family’s child-care responsibilities, a figure that has held steady since the turn of the century. Women with babies enjoy half as much leisure time on weekends as their husbands. Working mothers with preschool-age children are 2 1/2 times as likely to performmiddle-of-the-night care as their husbands. And in hours not so easily tallied, mothers remain almost solely in charge of the endless managerial care that comes with raising children: securing babysitters, filling out school forms, sorting through hand-me-downs.
Empirical research shows that no domestic arrangement, not even one in which Mother works full time and Father is unemployed, results in child-care parity between heterosexual spouses. The story we tell ourselves, the one about great leaps toward the achievement of gender equality between parents, is a glass-half-full kind of interpretation. But the reality is a half-empty glass: While modern men and women espouse egalitarian ideals and report that their decisions are mutual, outcomes tend to favor fathers’ needs and goals much more than mothers’.
The result of this covert power imbalance is not a net zero. A growing body of research in family and clinical studies demonstrates that spousal equality promotes marital success and that inequality undermines it. And the disparity creates not only undue emotional, physical and financial strain on mothers, but also perpetuates attitudes about what is and should be acceptable — or even desirable — between a woman and a man, with children as their eager audience
Ideals are no substitute for behavior. What are kids to make of their father sitting on his phone reading Facebook while their mother scrambles to prepare them for the day? It’s not hard to predict which parent’s personhood those offspring will conclude is more valuable. Children are gender detectives, distinguishing between the sexes from as early as 18 months and using that information to guide their behavior, for example by choosing strongly stereotyped toys. And family research shows that men’s attitudes about marital roles, not women’s, are ultimately internalized by both their daughters and their sons. This finding is a testament to kids’ ability to identify implicit power, to parse whose beliefs are more important and therefore worth adopting as their own.
Rethinking Campus Response to Sexual Violence: Betsy DeVos, Title IX, and the Continuing Search for Access to Justice
Friday, January 5, 2018 from 8:30 -10:15 am
- Hannah Brenner, California Western School of Law
- Mary M. Penrose, Texas A&M University School of Law
- Verna Williams, University of Cincinnati College of Law
- Cory Rayburn Young, University of Kansas School of Law
- Nancy Chi Cantalupo, Barry University Dwayne O. Andreas School of Law
- Ben Trachtenberg, University of Missouri School of Law
The Trump Administration recently revised the Title IX process addressing sexual violence on college campuses. These revisions, coupled with a Sixth Circuit decision finding due process protections lacking in a university’s Title IX hearing, underscore the importance of ensuring that both victims and accused receive access to justice following allegations of sexual violence. Against the backdrop of these and other current events, this panel considers strategies for rethinking the response from a legal access to justice perspective. As lawyers and legal academics, this topic is important to us, our students, institutions, and society as we strive to find balance between the rights of victims and accused. The voices on this panel offer diverse viewpoints regarding Title IX’s role in addressing sexual violence. Panelists will discuss necessary protections for those bringing claims of sexual violence to ensure fair resolution that causes limited harm to these individuals and their educational opportunities, and protections for those accused of perpetrating sexual violence, recognizing that consequences may extend far beyond the classroom. We challenge attendees to return to their campuses and respectfully engage one another to find meaningful solutions to an issue that, thus far, has failed to adequately guarantee access to justice for all.
For other programs coming up at AALS, see Law and Gender Programs at AALS 2018
Wednesday, November 8, 2017
Elizabeth Sheehy, A Feminist Reflection on Domestic Violence Death Reviews , in Myrna Dawson, ed. Domestic Homicides and Death Reviews: An International Perspective (Hampshire: Palgrave Macmillan, 2017) 373-398.
This paper interrogates what contribution feminist knowledge and praxis might make to assessing and deepening the work of Domestic Violence Death Review Committees (DVDRCs). While DVDRCs may be struck by governments or civil society and may differ in terms of the form and content of their governance, all DVDRCs have their origins in the work of frontline feminist activists who documented the unique features that differentiate woman killing from other forms of homicide and demonstrated that intimate femicide is predictable and therefore preventable. Another uniting characteristic of DVDRCs is that their work is overwhelmingly focused on the deaths of women, since women account for the vast majority of domestic violence deaths -- 83% of such deaths in Canada.
DVDRCs build on the important work of frontline feminists by studying domestic violence homicides, identifying risk factors, ascertaining points of contact with legal and social structures that might have intervened, and making recommendations for change in law, policy, and practice for the purpose of preventing such deaths in the future. Yet when one reads the reports of DVDRCs, feminists, feminist analysis, and feminist practice are almost entirely absent from the overwhelming majority. This paper will investigate what imperatives a feminist framework might bring to this work.
This paper examines the demographics of federal district court judges in the 10th Circuit. Consistent with the glass-ceiling effect literature in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that minority judges are over-represented in the Circuit. The paper next explores the relationship between under-representation, over-representation and discrimination. Under-representation that cannot be explained in terms of merit criteria or informed opting out, such as the under-representation of women on the 10th Circuit, strongly suggests the lingering effects of past exclusion and discrimination, as well as the current effects of implicit bias. As demonstrated by the over-representation of minority judges, the political commission process can break through the gender glass-ceiling by over-representing qualified women judges in the short run until their overall numbers better reflect equality.
Justice Department prosecutors have dropped their case against a woman who laughed at now-Attorney General Jeff Sessions during his confirmation hearing. Desiree Fairooz was scheduled to face trial for a second time next week, but a DOJ prosecutor entered a nolle prosequi filing in the case on Monday indicating the department is dismissing the charges.
Fairooz, a retired children’s librarian and demonstrator affiliated with the organization Code Pink, let out a laugh during a Senate hearing back in January after Sen. Richard Shelby (R-Ala.) said Sessions had a “clear and well-documented” record of “treating all Americans equally under the law.” (Sessions had faced strong opposition from civil rights organizations and was rejected as a federal judge in the 1980s over concerns about his past comments on race.)
For prior blog posts on the case, see
Tuesday, November 7, 2017
C.D. Christensen, The "True Man" and His Gun: On the Masculine Mystique of Second Amendment Jurisprudence, 23 William & Mary J. Women & Law (2017)
The Supreme Court’s recent Second Amendment jurisprudence raises serious normative questions for the use of self-defense with a firearm. This jurisprudence also implicates our prevailing social norms with respect to socially constructed and structurally pervasive gender roles. I argue that a peculiarly American conception of masculinity underpins the judicial construction of the Second Amendment’s core purpose as guaranteeing the right to armed defense of one’s self and one’s home. The Court’s recent Second Amendment rulings create an individual protection for gun ownership and incorporate the same against the States. But the Court’s reasoning entangles this protection with an implicit valuation of manhood that reifies the notion that “true men” do not retreat in the face of danger. In so entangling, the Court establishes a right to gun ownership that is politically free but legally male. This Article explores the socio-legal structures that underpin the Court’s reasoning to explain (a) how the right to keep and bear arms arises from a dubious ideal of the American “man,” and thus how (b) the purposes for which one may keep and bear arms galvanizes a particular masculine type within our Second Amendment jurisprudence. That type establishes a problematic cultural narrative of and ethos for manhood in America; consequently, this jurisprudence establishes a dominant masculinity predicated upon firearm ownership. That masculinity complicates, and may even impede, the social evolution of subordinated masculinities and shifts the social hierarchy of masculinities to empower and privilege gun-owning males.
The Impediments to Effective Enforcement of the Convention of Elimination of All Forms of Discrimination Against Women
Ruman Islam, CEDAW -- The Promise and the Pain of the Promise, ELCOP Yearbook of Human Rights (2017)
The Convention on Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) is one of the core international legal instrument aiming at the protection and promotion of women’s rights. It is considered as the most comprehensive code of women’s rights at international level, with its overwhelming focus on socioeconomic, civil, political and cultural rights in all spheres of women’s life. However with the inherent weak enforcement mechanism and with the numerous number of reservations made by the State Parties it is sometime doubted how far the Convention serves as an effective tool for promoting and protecting women’s right, since such reservations jeopardizes the very essence of the convention−to ensure ‘substantive equality’ both at public and private life of the women. This article examines these different aspects of the CEDAW Convention, namely what it promises to achieve and in reality what are the impediments to materialization of those promises−the pain of the promise.
Coulibaly v. Stevance, decided Wednesday by the Indiana Court of Appeals, considers whether Indiana courts should honor a Malian child custody decree (involving Malian citizens). Indiana has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), under which state courts must enforce out-of-state and out-of-country custody decrees.
[T]the question was whether Malian child custody law violates human rights principles as Indiana courts understand them; the Indiana court of appeals said no, even though aspects of the law involved sex discrimination, and even though Malian law more generally doesn’t ban Female Genital Mutilation. (One of the couple’s children is a 15-year-old daughter.)
Mother notes that Mali’s divorce law is fault-based, and … argues that Mali’s marital laws evince a preference for men such that women will more often be found at fault for a divorce, resulting in a de facto paternal preference in child custody decisions. Specifically, Mother notes that statutory law in Mali expressly provides that “[t]he husband owes protection to his wife, the wife obedience to her husband.” The law provides further that the husband is the head of the household, that the household expenses “fall principally on him,” that he has the right to choose the family residence, and that the wife must live with him and he must receive her.. Additionally, a woman is prohibited from running a business without her husband’s permission.
In light of the prevailing fault-based divorce system, it is unsurprising that the Malian court made a number of findings with respect to the parties’ conduct during the marriage. The court expressly found Mother’s physical abuse allegation to be unsupported. The court also noted that under Malian law, a husband is entitled to choose the family residence and that Mother’s dispute regarding Father’s decision to live in Mali was therefore grounds for divorce. The Malian court further found that Mother admitted that she had “a habit of uttering insulting and offensive remarks toward” Father, which constituted “serious abuse”, and also that Mother’s persistence in her plan to emigrate with the children without Father’s knowledge or consent was a violation of her duty of loyalty, a mutual duty imposed by Malian marital law upon both spouses irrespective of gender. In light of these findings, the trial court granted Father’s petition for divorce and dismissed Mother’s counter petition.
Further, although Mali’s marriage laws impose different duties on husbands and wives based on gender, either spouse may be granted a divorce based on the other spouse’s failure to fulfill his or her respective duties. Whatever we might think about the wisdom of Mali’s marital and custody laws in this regard, we simply cannot say that they are so utterly shocking to the conscience or egregious as to rise to the level of a violation of fundamental principles of human rights.
Mother’s remaining arguments suffer the same infirmity — she essentially asks us to look beyond Mali’s custody law to conclude that Mali’s legal system and culture are, on the whole, so oppressive to women that no custody order issued in that country could be enforceable in the United States. [Footnote moved: Mother … notes that men in Mali are permitted to have multiple wives, while women may have only one husband. Mother notes further that the marital laws permit (but do not require) the payment of nominal dowry by the husband upon marriage “where required by custom.”] We are in no position to make such a judgment, and the language of the UCCJEA prohibits us from attempting to do so. Mother has not established that Mali’s child custody laws violate fundamental principles of human rights, and she is consequently unable to avoid enforcement of the Malian custody decree.