Wednesday, December 17, 2014
Lynn Paltrow (Nat'l Advocates for Pregnant Women) and Jeanne Flavin (Fordham Law) have uploaded "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health." The abstract reads:
In November 2011, the citizens of Mississippi voted down Proposition 26, a “personhood” measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for their deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty. First, we describe key characteristics of the women and the cases, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.
Stewart Chang, Whittier Law, has uploaded Dreams of My Father, Prison for My Mother: The H-4 Nonimmigrant Visa Dilemma and the Need for an "Immigration-Status Spousal Support." The abstract reads:
This article uses the situation of H-4 visa derivatives in the Asian Indian immigrant community as a case study to expose and critique larger incongruities within current American immigration policy, which on the one hand has historically extolled individuality, equality, and workforce participation as avenues to the American Dream, while enforcing gender hierarchy and dependency through requirements that prioritize family unity on the other. These incongruities remain largely unnoticed because the culture of dependency is often attributed to traditional ethnic culture, which then becomes the site of scrutiny and blame. The H-4 visa dilemma in the Asian Indian community illustrates how the legal restrictions stipulated in immigration law often produce and perpetuate recursions of ‘traditional culture’ within immigrant American families that ultimately consign Asian Indian women to perpetually occupy the place of the foreign ‘Other’ in American society. The ‘Othering’ of the ethnic alien culture perpetuates the illusion that America is not patriarchal in comparison, which concurrently promotes the idea that the foreign culture is inferior, behind, and incompatible. This constructed inferiority further forecloses these women from other avenues of justice in America, such as family law, which is similarly configured as to be culturally incompatible with the dependent immigrant subject. Thus, these women of- ten voluntarily choose to exclude themselves from the process, as did many of my Asian Indian clients. These are the assumptions and hierarchies regarding the mythos of independence in American identity that this article seeks to overcome, which then open avenues for some nonconventional solutions.
Tuesday, December 16, 2014
WaPo, What's Fair Treatment for Pregnant Workers? The US Isn't Sure. Other Countries Are. Other countries provide better work accommodations. But its more complicated than that, as there is still prevalent pregnancy discrimiination and ambivalence about accommodating work and family for women.
In the United States, pregnancy discrimination claims grew by 31 percent between 2005 and 2010, the ILO report said, faster than all other job bias claims. Though pregnant workers are supposed to be treated fairly, the same as other “similarly situated” workers, under the 1978 Pregnancy Discrimination Act, U.S. courts have paid out $150 million in pregnancy- discrimination-related damages since 2001.
TaxProfBlog, TED-Style Videos on Law Teaching
- Jamie Abrams (Louisville), The Socratic Method, Revisited
- Renee Allen (Florida A&M), Metacognition and the Value of Reflection in Learning
- Christine Bartholomew (SUNY-Buffalo), Finding Time
- Sydney Beckman (Lincoln), Using Technology for Engagement and Assessment
- John Bickers (N. Kentucky), How Non-Bar Tested Electives Can Teach Lawyering
- Shawn Marie Boyne (Indiana), Teaching Through Simulations
- Andrea Curcio (Georgia State), Assessing Ourselves as Law Professors
- Aaron Dewald (Utah), Improving Presentations With Learning Sciences (Parts 1 & 2)
- Aaron Dewald (Utah), Why Flip/Blend a Law School Classroom?
- Victoria Duke (Indiana Tech), Bringing Exercises into Large Classes
- Vicenç Feliú (Villanova), Clinics and Librarians Collaborating
- Doni Gewirtzman (New York Law School), Teaching and Theater: The Craft of Law Teaching
- Michele Gilman (Baltimore), Why Use Clickers? To Provide Students Real Time Feedback
- Leigh Goodmark (Baltimore), How to Use a Drafting Exercise in a Doctrinal Course
- Margaret Hahn-Dupont (Northeastern), Learning Through Reflection and Self-Assessment
- Kim Hawkins (New York Law School), What Law Professors Need to Know About Visual Arts
- Jeremiah Ho (UMass), Not Your Father's Case Method
- Dan Jackson (Northeastern), Designing Lawyers: Leading an Experiential Law School Design Lab
- Brett Johnson (Harvard), H2O Project: Remixing the Casebook
- Elizabeth Keyes (Baltimore), Teaching Narrative
- Stefan Krieger (Hofstra) & Theodor Liebmann (Hofstra), Teaching Storytelling
- Laurie Levenson (Loyola-L.A.), A Better Way to Teach Law School
- Michele Pistone (Villanova), The Future of Higher Education
- Michele Pistone (Villanova), Why Law School Needs to Change
- Michele Pistone (Villanova) & Beryl Blaustone (CUNY), Teaching 21st Century Law Students: Autonomy, Mastery and Purpose
- Wes Reber Porter (Golden Gate), A Better Class to Class Process to Accompany Flipping
- Jeffrey Ritter (Georgetown), Mapping the Law: Building and Using Visual Mindmaps for Legal Education
- Jennifer Rosa (Michigan State), Legal Writing on Steroids: The Art of Flipping Your Classroom
- William Slomanson (Thomas Jefferson), Why Flip? & Macro Design
- Victoria Szymczak (Hawaii), Using Video to Convert Student Into Teachers
- Debora Threedy (Utah), Flipping Contracts: The Making of the Videos
- Frank Valdes (Miami), LatCrit and the Legal Academy
- Leah Wortham (Catholic), Student Motivation and Sense of Well Being
The U.S. District Judge presiding over all federal Yaz lawsuits and Yasmin lawsuits has identified 33 cases that will be prepared for trials to begin by the middle of next year, involving claims for injuries that the manufacturer of the popular birth control pills has refused to settle.
Since 2009, all product liability lawsuits filed throughout the federal court system involving side effects of Yaz, Yasmin or other related birth control pills have been consolidated for pretrial proceedings before U.S. District Judge David R. Herndon in the Southern District of Illinois, as part of an MDL or Multidistrict Litigation.
At one time, the litigation included around 12,000 cases filed on behalf of women who suffered various different injuries. However, Bayer has reached Yasmin and Yaz settlements to resolve the majority of all cases involving gallbladder problems and venous clot injuries, such as a deep vein thrombosis or pulmonary embolism.
Sunday, December 14, 2014
Since Kerry Devine, 32, and her friends began having children, she has noticed a stark difference between her female friends in Auburn, Wash., where she lives, and those in England and Cyprus, where she grew up. In the United States, they almost all stopped working outside the home, at least until their children were in school. Yet, she says, she can’t think of a friend in Europe who left work after her children were born.
Ms. Devine quit her job after she had her first child, a girl, four years ago, because she thought 12 weeks of maternity leave was too short. “I just didn’t want to leave her in day care or pay for the expenses of it,” she said. When she gave birth to twin boys this year, a return to work — she had been a property manager for apartment buildings — looked even less plausible.
Her story would have played out differently, she said, if she had been living in her native England. Like many European countries, Britain offers a year of maternity leave, much of it paid, and protections for part-time workers, among other policies aimed at keeping women employed.
A randy Brooklyn judge turned the hallowed halls of justice into a seedy sleaze pit — sexually harassing his Orthodox Jewish secretary with lurid tales about his erotic adventures with a mistress, proudly striding shirtless around his chambers, and forcing her to pick up his soiled underwear, a new lawsuit charges.
Brooklyn civil court Judge David Schmidt, 61, tormented veteran court secretary Sharon Sabbagh, 57, by stroking her face, forcing her to give him hugs before she went home, and regaling her with explicit tales of sex with his mistress, the lawsuit alleges.
“When I have sex with my wife, I think of her,” Schmidt said, adding that he buys his fling underwear from Victoria’s Secret and that they have daily phone sex, the Brooklyn Supreme Court suit claims.
Saturday, December 13, 2014
An effort to create a National Women’s History Museum is heading to President Barack Obama’s desk after the Senate passed the measure 16 years after it was first introduced.
The legislation for a women’s history museum will establish a privately funded commission to study and report how a museum could be created and maintained in Washington.
The Website for the National Women's History Museum
Friday, December 12, 2014
BOULDER, Colo. — He was suspended for three semesters by the University of Colorado Boulder for “sexual misconduct,” even though police filed no charges against him and his accuser admitted she wanted to scare him when she made the complaint.
So John Doe, as he is known in court records, filed a lawsuit last week against the university saying his rights had been violated under Title IX, the 1972 law that forbids universities from discriminating on the basis of sex.
“CU Boulder has created an environment in which an accused male student is effectively denied fundamental due process by being prosecuted through the conduct process under the cloud of a presumption of guilt,” says the Nov. 21 lawsuit filed in U.S. District Court in Colorado. “Such a one-sided process deprived John Doe, as a male student, of education opportunities at CU Boulder on the basis of his sex.”
The grooming tropes of manliness, according to one expert....
Ever the psychology professor, I have looked high and low for a scientific, evidence based, argument to convince my wife that beards are healthy and sexy on men. And lo, my search has not been in vain. Scientists have found two very good reasons that all adult men should grow beards.
First, beards are the result of a post-pubescent level of testosterone production in the male body, and testosterone has a ton of physical benefits. Testosterone makes men strong. It makes men fast. It makes men big. So having a beard is basically nature's advertisement that a male adult body has the testosterone it should have and that the man sporting the beard is full grown. Beards mark the men from the boys.
Thursday, December 11, 2014
A new study says women law professors are cited slightly more often than men. NLJ, Study: Women Law Professors Cited More Often. Citation suggests some measure of good or relevant work being done by women. But juxtapose that against the fact that women are published less often than men (32% of law reviews, 20% in top journals), a disparity that begins with student notes. (And similar to other disciplines where studies have shown, women are published less and cited less.) Is this the professional equivalent of the neighborhood kickball game, where the girl has to be twice as good to get picked?
Nancy Leong in Discursive Disparities details the consequences of women being left out of the writing game:
Such harms include economic loss, damage to career, and diminished public influence. These harms are serious in themselves. Perhaps more importantly, however, the discursive gender disparity means that men's words dominate public discourse, and to control discourse is to control reality. When men's words, thoughts, ideas, and arguments constitute the overriding public narrative, the result is that men determine the texture of daily life on matters both trivial and grave. The result of the discursive disparity is that male discourse exercises a disproportionate influence on our collective consciousness.
Many in academia have long known about how the practice of student evaluationsof professors is inherently biased against female professors. Students, after all, are just as likely as the public in general to have the same ugly, if unconscious, biases about women in authority. Just as polling data continues to show that a majority of Americans think being a man automatically makes you better in the boss department, many professors worry that students just automatically rate male professors as smarter, more authoritative, and more awesome overall just because they are men. Now, a new study out North Carolina State University shows that there is good reason for that concern.
One of the problems with simply assuming that sexism drives the tendency of students to giving higher ratings to men than women is that students are evaluating professors as a whole, making it hard to separate the impact of gender from other factors, like teaching style and coursework. But North Carolina researcher Lillian MacNell, along with co-authors Dr. Adam Driscoll and Dr. Andrea Hunt, found a way to blind students to the actual gender of instructors by focusing on online course studies. The researchers took two online course instructors, one male and one female, and gave them two classes to teach. Each professor presented as his or her own gender to one class and the opposite to the other.
The results were astonishing. Students gave professors they thought were male much higher evaluations across the board than they did professors they thought were female, regardless of what gender the professors actually were. When they told students they were men, both the male and female professors got a bump in ratings. When they told the students they were women, they took a hit in ratings. Because everything else was the same about them, this difference has to be the result of gender bias.
“The difference in the promptness rating is a good example for discussion,” MacNell explains in the press release for the study. "Classwork was graded and returned to students at the same time by both instructors. But the instructor students thought was male was given a 4.35 rating out of 5. The instructor students thought was female got a 3.55 rating.” Considering that professors were rated on a five-point scale, losing an entire point on the "promptness" question just because students think you're female is a major hit.
“The ratings that students give instructors are really important, because they’re used to guide higher education decisions related to hiring, promotions and tenure,” says Lillian MacNell, lead author of a paper on the work and a Ph.D. student in sociology at NC State. “And if the results of these evaluations are inherently biased against women, we need to find ways to address that problem.”
Legal History Blog, Ziegler on Young v. UPS in Historical Context
Mary Ziegler, Florida State University College of Law, has posted Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty. Here is the abstract:
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Wednesday, December 10, 2014
Disturbing story from the New Republic:
The most stirring art has the ability to make us stop, think, and even act, but a new interactive documentary made in Peru may just help decide the political future of the whole country. Created as a result of collaboration between the University of Bristol and London-based Chaka Studio, the Quipu project relays the story of a recent and very dark moment in Peruvian history. As many as 300,000 women in rural areas of Peru were possibly hoodwinked into being sterilized during the mid-to-late 1990s, all in the name of bringing an end to poverty.
The scale of the heinous medical campaign remained buried until recently, as the village areas most affected did not know that both neighboring and far-flung areas had also been hit. Various legal cases on the issue brought against right-wing former-president Alberto Fujimori have hit the buffers and the local headlines, but the story has largely remained unknown outside the urban centers of Peru.
Tuesday, December 9, 2014
I was cited recently by the Second Circuit in Central States SE & SW Areas Health & Welfare Fund v. Gerber Life Ins., 771 F.3d 150 (2d Cir. Nov. 14, 2014), for my prior work criticizing the Supreme Court for its interpretation of statutory remedies and restitution under ERISA. It reminded me of of the Supreme Court's current consternation in interpreting the Pregnancy Discrimination Act in the Young case and the great risk of reading meaning out of congressionally-intended relief through the guise of statutory interpretation.
III. In the Circumstances Presented by This Case, ERISA Plans May Have No Remedy
The line of cases culminating in Great–West has been heavily criticized for unnecessarily reviving the historical division between law and equity, ignoring the background principles of trust remedy law against which Congress enacted ERISA, and adopting an unnecessarily narrow interpretation of § 502(a)(3) that excludes forms of relief Congress intended to make available under ERISA.Commentators have repeatedly noted that as a result of this case law ERISA plans and beneficiaries are, in some circumstances, deprived of remedies. See, e.g., Aetna Health, Inc. v. Davila, 542 U.S. 200, 222–23, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004)(Ginsburg, J., concurring) (collecting cases); John H. Langbein, What ERISA Means by “Equitable”: The Supreme Court's Trail of Error in Russell, Mertens, and Great–West, 103 Colum. L.Rev. 1317 (2003); Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind. L.J. 223, 256–71 (2003); Tracy A. Thomas, Justice Scalia Reinvents Restitution,36 Loy. L.A. L.Rev. 1063, 1081 (2003).
The TV show "The Newsroom" (admittedly one of my favorites) "in an astonishing case of prescience, created a plot that hewed closely to the recent article in Rolling Stone magazine about an accusation of gang rape at the University of Virginia."
The New Yorker, The Newsroom's Crazy-Making Campus-Rape Episode
From Legal History Blog, New Release: Pliley, Policing Sexuality: The Mann Act and the Making of the FBI
New from Harvard University Press: Policing Sexuality: The Mann Act and the Making of the FBI (Nov. 2014), by Jessica R. Pliley(Texas State University). A description from the Press:
America’s first anti–sex trafficking law, the 1910 Mann Act, made it illegal to transport women over state lines for prostitution “or any other immoral purpose.” It was meant to protect women and girls from being seduced or sold into sexual slavery. But, as Jessica Pliley illustrates, its enforcement resulted more often in the policing of women’s sexual behavior, reflecting conservative attitudes toward women’s roles at home and their movements in public. By citing its mandate to halt illicit sexuality, the fledgling Bureau of Investigation gained entry not only into brothels but also into private bedrooms and justified its own expansion.
Monday, December 8, 2014
Op-Ed from the Boston Globe:
Well, this is awful.
The Web blew up Friday afternoon with the news that Rolling Stone magazine no longer stands behind last month’s horrific, explosive story of a gang rape at a University of Virginia fraternity. A report in The Washington Post cast central elements of her story into serious doubt. Her friends and supporters now say they’re dubious, too.
It’s disastrous for everybody involved. At this writing, the victim, Jackie, insists she was telling the truth about being raped by seven students. Whatever the truth, she must be in a world of pain right now, particularly if she tried to extricate herself from the magazine story before it was published, as she now maintains.
The destructive fallout goes beyond one woman’s suffering. The Rolling Stone story, which had helped make it all but impossible to ignore the scourge of campus sexual assault, is now going to do the opposite. Because now, emboldened by this one possibly fabricated story of rape, the chorus of people who believe women routinely make these things up will grow louder.
In one short paragraph of a 34-page memo released on Dec. 1, the Department of Education articulated a clear stance on gender identity, saying transgender students in public schools should be enrolled in single-sex classes that align with how they live their lives day-to-day.
“We’re thrilled,” says Shannon Minter, the legal director for the National Center for Lesbian Rights. “It’s so critical to the health and well-being of those students, and it’s going to be so helpful to have that guidance in writing so that schools understand what their obligations are.”
The memo is explicit that federal law protects students’ decisions made in accordance with their gender identity. “Under Title IX,” it reads, a school “must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes