Gender and the Law Prof Blog

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

Tuesday, February 9, 2016

Books: The History of Women Lawyers in Maryland

Law and Politics Book Review: FINDING JUSTICE: A HISTORY OF WOMEN LAWYERS IN MARYLAND SINCE 1642

This engaging volume was produced as part of the Finding Justice Project, a collaborative effort among a small group of judges, lawyers, and legal academics to recover and illuminate neglected histories of women in law in Maryland. Sponsored by the Maryland Women’s Bar Association Foundation, the project sought to identify and learn about the work and lives of as many women lawyers as possible practicing in Maryland since 1642. For this purpose, a research team collected information from many sources, including records of the names along with signatures of all who received bar admission, court records describing the cases in which women lawyers participated, birth and death certificates and census records of their families, and newspaper reports regarding the professional and personal lives of some women lawyers in the state. One product of these efforts is a list of nearly 25,000 women admitted to the Maryland bar through 2014, a list reproduced in an appendix organized by year of admission that is printed on nearly 100 pages (pp. 173-268).

We learn in the Preface that the Project initially hired an author to write a book based on the data collected. After the author withdrew, The Honorable Lynne A. Battaglia, the editor of this volume and a central advocate for the Project, developed a new plan to produce an edited collection to include several chapters written by a variety of women practitioners with different themes related to women in law, with emphasis on particular women in law, and with a focus on various historical moments. Although the chapters are generally brief in a book that includes only 167 pages of text prior to appendices, together they present a coherent and interesting portrait of the many challenges and opportunities experienced by diverse women interested in legal careers in Maryland over time. The chapters are well organized and conceived, and the details provided regarding legal careers in Maryland are often quite fascinating.

H/t Legal History Blog, Sunday Book Roundup

February 9, 2016 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Jewish Women Legal Practitioners and the History of Legal Aid

Felice Batlan (Chicago-Kent), Forging Identities: Jewish Women, Legal Aid, and the Secular Liberal State 1890-1930, Indiana J. Law & Social Equity (forthcoming).

Abstract:     

This article discusses an unexamined area of the history of the legal profession — the role that late nineteenth and early twentieth century Jewish women legal practitioners played in the delivery of free legal aid to the poor as social workers, lawyers, and, importantly, as cultural and legal brokers. It presents two such women who represented different types and models of legal aid — Minnie Low of the Chicago Bureau of Personal Service, a Jewish social welfare organization, and Rosalie Loew of the Legal Aid Society of New York. The article interrogate how these women negotiated their identities as Jewish professional women, what role being Jewish and female played in shaping their careers, understandings of law, and the delivery of legal aid, as well as the constrained professional possibilities, but at times, opportunities, both women confronted and embraced. By puzzling through these issues, we also see two contrasting understandings of the rule of law and the secular liberal state. 

 

February 9, 2016 in Legal History, Poverty | Permalink | Comments (0)

Monday, February 8, 2016

OH Bill to Remove Guns in Civil Domestic Violence Orders

Ohio Bill Allow Guns to be Removed by Protective Order

LEGISLATIVE HISTORY

A bill introduced by Democratic state lawmakers in 2013 would have required people subject to temporary protection orders in criminal or civil cases to surrender firearms to law enforcement agencies or sell them to federally licensed firearms dealers. The bill also spelled out how the guns could be returned after the protective order expired.

The bill, sponsored by former Rep. Bob Hagan, a Youngstown Democrat, was referred to the GOP-controlled House Judiciary Committee, where it languished after just one hearing.

———

THE NEW BILL

Rep. Nickie Antonio, a Democrat from Lakewood in suburban Cleveland, says her upcoming bill would give judges the discretion to order firearms removed when temporary protective orders have been issued. Antonio says the bill would also bring state law into line with federal law.

 

Arguably, a civil court has power to do so now: Ohio Rev. Code 3113.31

(h) Grant other relief that the court considers equitable and fair, including, but not limited to, ordering the respondent to permit the use of a motor vehicle by the petitioner or other family or household member and the apportionment of household and family personal property

 

See Conkle v. Wolfe, 131 Ohio App. 3d 375 (4th Dist. 1998); Woolum v. Woolum, 131 Ohio App.3d 818 (12th Dist. 1999).

 

February 8, 2016 in Violence Against Women | Permalink | Comments (0)

Prominent Historians Argue Coverture in SCOTUS Amicus Brief Opposing TX Abortion Law

The brief in Whole Woman's Health v. Cole is a beautiful summary of women's legal history, and the difference knowing such history can make today.  

Wash Post, Laws Written by Men to Protect Women Deserve Scrutiny, Supreme Court Told

History holds a lesson for the Supreme Court, the brief warns: Be skeptical of laws protecting women that are written by men.

 

The nation’s past is littered with such statutes, say the historians who filed the friend-of-the-court brief, and the motives were suspect.*** 

 

The brief is filed by professors from across the country in the court’s upcoming abortion case, Whole Women’s Health v. Hellerstedt. It urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.

 

“Any new law that claims to protect women’s health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women,” said the brief filed by 16 historians, 13 of whom are women.

 

 

February 8, 2016 in Abortion, SCOTUS | Permalink | Comments (0)

Friday, February 5, 2016

Intellectual Property and Gender: Retrospect and Future

Kara Swanson (Northeastern), Intellectual Property and Gender: Reflections on Accomplishments and Methodology, 24 American J. Gender, Soc. Policy & L. 175 (2015)

Abstract:     

This essay answers the invitation of the organizers of the annual Intellectual Property/Gender Symposium at American University Washington College of Law, after ten years of symposia, to consider how the next ten years of scholarship in the area of intellectual property (IP) “might open up new insights regarding the production of knowledge, commodification, definition and valuation of women’s work, and other areas of feminist and queer inquiry.” I do so by thinking retrospectively, using two investigative axes, both infused by a feminist frame.

The first axis is a literature review, less frequently seen as an end in itself in law than in other disciplines, perhaps to our loss. Examining the scholarship of IP and gender produced over the past ten years, I document what has been accomplished in terms of quantity and publication venues as evidence of shifting conversations and community building. Turning to the content of this work, I argue that with respect to traditional IP, that is, copyright, patent and trademark, considering gender and IP has yielded results in three areas: identifying gender disparity in participation in IP systems and its causes, identifying disparity in the application of IP doctrines to subject matter that involves gender and sexuality, and revealing the gendered nature of facially gender-neutral IP doctrines.

The second axis draws upon my personal experiences writing and publishing in the area of gender and IP to consider the methodologies of this project. As an interdisciplinary scholar using history to investigate law, I am frequently forced to confront issues of translation, transcendence and transmittal that I argue are relevant to all scholars interested in what the organizers describe as “creating intellectual property law that fosters social justice.” How do we translate the insights of feminist and queer theory into IP and information law, areas where gender has remained remarkably invisible? How do we transcend subject matter boundaries to create new insights? And perhaps most challenging of all, how do we transfer those insights to scholars who do not write or think about gender, to students in classrooms, and to those who write and pass laws so that we shape IP law to promote gender equality? I use the feminist approach of finding the political in the personal to integrate these two axes and identify the key challenges and opportunities for all of us who wish to contribute to the endeavor begun by these symposia.

 

February 5, 2016 | Permalink | Comments (0)

Admin: Proposals to Address Women's Disproportionate Burden of Administrative Labor

Elizabeth Emens (Columbia), Admin, 103 Georgetown L.J. (2015)

Abstract:     

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work — both managerial and secretarial — that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters.

Both equity and efficiency are at stake here. Admin raises distributional concerns about those people — often women — who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home aspire to equal distribution of household labor, it appears that the family’s admin is more often done by women. Appreciating the unequal distribution of this work helps us to see the costs of admin for everyone. These broader costs include wasted time, lost focus, and interpersonal tension. Though the types of admin demands that people face vary by gender, class, age, and culture, admin touches everyone.

The Article makes this form of labor more salient, both analytically, through an account of its features and costs, and practically, through proposals for public and private interventions. Admin is “sticky.” It frequently stays where it lands, whether with female partners of men, one member of a same-sex couple, an extended family member managing another’s affairs, or parents of some adult children of the so-called millennial generation. By demanding time and attention, admin impinges on leisure, sleep, relationships, and work.

Admin warrants a range of possible regulatory responses. Government should create less admin and possibly do more kinds of admin for people. Regulatory infrastructure should protect people’s time and spur technological innovations that reduce admin. Courts should allow parties in civil suits to claim damages for lost personal time. These and other initiatives should help to make admin more salient as a legal and cultural matter and to reduce its burdens overall. Reducing admin should benefit everyone and, in turn, disproportionately benefit those who bear its greatest burdens.

 

February 5, 2016 in Work/life | Permalink | Comments (0)

Thursday, February 4, 2016

Against Criminalizing Title IX Enforcement for Campus Sexual Violence

Nancy Chi Cantalupo (Barry), For the Title IX Civil Rights Movement: Congratulations and Cautions, Yale Law Journal Forum (forthcoming).

Abstract:     

The Yale Law Journal's September 25, 2015 Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. Movement leaders have wisely chosen Title IX as their particular banner and organizing point. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.

But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.

 

February 4, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Gender Equality and Women at Law in Cuba

Karin Paparelli, Gender Equality and Women at Law in Cuba

Gender equality and more specifically, the role of women in the legal profession in Cuba, presents a paradox of cultural restraint amid progressive policies. In a traditionally patriarchal society, Cuba has actually outpaced the United States and other nations when it comes to gender equality. Cuban women are found in  staggering numbers in the legal profession, politics and high-level ministerial positions. ***

 

Curiously, traditionally “male” professions in Cuba include  science, engineering, information technology, and mathematics and exclude medicine, education and law. Nearly 70 percent of health care workers including doctors, 80 percent of the education workforce, and surprisingly, 66 percent of all lawyers and judges in Cuba are women.

February 4, 2016 in Equal Employment, International, Women lawyers | Permalink | Comments (0)

CFP Feminist Judgments Tax Project

Call for Contributions - Feminist Judgments: Rewritten Tax Opinions 

Volume Editors

Bridget J. Crawford

Anthony C. Infanti

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Tax Opinions. This edited volume, to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, will be published in 2016 by Cambridge University Press. (That book’s Introduction and Table of Contents are available here.) Subsequent volumes in the series will focus on different courts or different subject matters. This call is for contributions to a volume of tax decisions rewritten from a feminist perspective.

Tax volume editors Bridget Crawford and Anthony Infanti seek prospective authors for 8 to 10 rewritten tax-related opinions covering a range of topics. Authors are welcome to suggest cases of their own choosing or to consult the editors or others for ideas. All tax-related cases are appropriate for rewriting. Possible cases from U.S. courts are listed here, but that is not an exhaustive list. Cases may come from any jurisdiction and any court, including non-U.S. jurisdictions. The volume editors conceive of feminism as a broad movement concerned with justice and equality, and welcome proposals to rewrite cases in a way that bring into focus issues such as gender, race, class, disability, sexual orientation, national origin, and immigration status.

As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case. Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000 word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000 word maximum for the commentary). Commentators and opinions writers who wish to work together are welcome to indicate that in the application.

In suggesting possible cases for rewriting, the volume editors have had the input and advice of an Advisory Panel of distinguished U.S. scholars including Alice Abreu (Temple), Patricia Cain (Santa Clara), Joseph Dodge (Florida State), Mary Louise Fellows (Minnesota), Wendy Gerzog (Baltimore), Steve Johnson (Florida State), Marjorie Kornhauser (Tulane), Ajay Mehrotra (American Bar Foundation, Northwestern), Beverly Moran (Vanderbilt), Richard Schmalbeck (Duke), Nancy Shurtz (Oregon), Nancy Staudt (Washington University), and Lawrence Zelenak (Duke).

The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship. There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); the Women’s Court of Canada; ongoing projects in Ireland, New Zealand, and a pan-European project; and other U.S.-based projects currently under way. 

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten tax cases should fill out an application here.

Applications are due by February 29, 2016 at 5:00 p.m. eastern. Editors expect to notify accepted authors and commentators by April 15, 2016. First drafts of rewritten opinions will be due on August 15, 2016. First drafts of commentary will be due on September 15, 2016.  

February 4, 2016 in Call for Papers | Permalink | Comments (0)

Wednesday, February 3, 2016

Challenge to Ohio's New Anti-Abortion Laws

Oral argument was held this past week in PreTerm Cleveland v. Kasich, challenging Ohio's new anti-abortion laws. 

House Bill 59 (known as H.B. 59) was the State of Ohio’s 2014-2015 biennial budget bill. The Ohio House of Representatives introduced H.B. 59 on February 12, 2013, and Governor Kasich signed the bill into law on June 30, 2013.  H.B. 59 is 3,747 pages long and contains 551 sections. The Bill amends 2,106, enacts 345, and repeals 174 sections of the Ohio Revised Code. Included in HB 59 were three provisions that restrict women’s access to abortion:

 

First, the Heartbeat and Informed Consent Provision requires doctors to perform ultrasounds at least 24 hours before performing an abortion to detect the presence of a heartbeat. If a doctor fails to perform the ultrasound and performs the abortion anyway, the patient may sue the doctor, and the doctor can be disciplined by the State Medical Board. If the doctor detects a heartbeat, she or he must provide specific information to the patient including the fact that a heartbeat was detected and the statistical probability of carrying the pregnancy to term. If the doctor fails to provide this information to a patient and performs the abortion, the doctor is subject to criminal prosecution.

 

Second, H.B. 59’s Written Transfer Agreement Provisions require all surgical facilities operating outside hospitals (known as ambulatory surgical facilities) to make written agreements with local hospitals. These agreements would establish a procedure for the hospital to take on patients from the outside facility. However, the Bill forbids public hospitals from entering into such agreements with facilities that perform non-therapeutic abortions. In addition, public hospitals are prohibited from permitting doctors who have privileges to work at the hospital to use their privileges to circumvent this requirement.

 

Third, the Parenting and Pregnancy Program Provisions of H.B. 59 create a new substantive program that would channel federal funding from the Temporary Assistance for Needy Families block grant to private, nonprofit organizations. The purpose of the program is to promote childbirth, parenting and alternatives to abortion. The private entities to be funded by this program may not participate in or be associated with abortion-related activities including abortion counseling or referrals, performing abortion-related medical procedures or engaging in “pro-abortion” advertising.

February 3, 2016 in Abortion, Courts | Permalink | Comments (0)

The Common Law Right to Abortion

Anita Bernstein (Brooklyn), Common Law Fundamentals of the Right to Abortion, 63 Buffalo L. Rev. 

Abstract:     

In an article relied on by Justice Blackmun in Roe v. Wade, a lawyer named Cyril Means, Jr., asserted that abortion had been “a common law liberty” back in the fourteenth century. Responding in part to criticisms of this thesis, this Article extends what Means contended. The prerogative to terminate one’s own pregnancy really is a common law liberty: what the common law provides to pregnant persons is in some respects broader than the privacy-related right sited in the Fourteenth Amendment. As expressed consistently for centuries through its doctrines of criminal law, torts, property, contract, and unjust enrichment, the common law takes a position on abortion that comports with the modern coinage “pro-choice.”

 

February 3, 2016 | Permalink | Comments (0)

Tuesday, February 2, 2016

Judge Weinstein's Feminist Jurisprudence

Anita Bernstein (Brooklyn), The Feminist Jurisprudence of Jack B. Weinstein, 64 DePaul L Rev. 2015

Abstract:     

As this Symposium demonstrates, Jack B. Weinstein continues to write decisional law that has edified and stimulated expert readers for many decades. The Weinstein trove also contains feminist jurisprudence. Starting no later than 1974 and into the current millennium, Judge Weinstein has been ameliorating the burdens of gender-oppression. This Article groups decisions published by the Judge into six gender-related themes: women of low income, sentencing female offenders, women’s civil rights, “the woman’s Constitution,” women’s redress for personal injury, and feminism beyond women. It also identifies what is feminist about this extraordinary compendium.

 

h/t Larry Solum

February 2, 2016 in Courts, Theory | Permalink | Comments (0)

Feminist Judgments Project: Who's Who of Law Profs Rewrite SCOTUS Decisions

Kathryn Stanchi, Linda Berger, Bridget Crawford, Introduction: US Feminist Judgments: Rewritten Opinions of the US Supreme Court (forthcoming Cambridge Press 2016)

Abstract:

What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? To begin to answer this question, we brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. While feminist legal theory has developed and even thrived within universities, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision-making. Doctrines of stare decisis and judicial language of neutrality can operate to obscure structural bias in the law, making it difficult to see what feminism could bring to judicial reasoning.

The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions show that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups. The remarkable differences evident in the rewritten opinions also open a path for a long overdue discussion of the real impact that judicial diversity has on law and of the influence that perspective has in judging.
 
Table of Contents
 
Chapter 1
Introduction to the U.S. Feminist Judgments Project Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford
 
Chapter 2 Talking Back: From Feminist History and Theory to Feminist Legal Methods and Judgments Berta Esperanza Hernández-Truyol
 
Chapter 3. Bradwell v. Illinois, 83 U.S. 130 (1873)
Commentary: Kimberly Holst
Judgment: Phyllis Goldfarb
 
Chapter 4. Muller v. Oregon, 208 U.S. 412 (1908)
Commentary: Andrea Doneff
Judgment: Pamela Laufer-Ukeles
 
Chapter 5. Griswold v. Connecticut, 381 U.S. 479 (1965)
Commentary: Cynthia Hawkins DeBose
Judgment: Laura Rosenbury
 
Chapter 6. Loving v. Virginia, 388 U.S. 1 (1967)
Commentary: Inga N. Laurent
Judgment: Teri McMurtry-Chubb
 
Chapter 7. Stanley v. Illinois, 405 U.S. 645 (1972)
Commentary: Nancy D. Polikoff
Judgment: Karen Syma Czapanskiy
 
Chapter 8. Roe v. Wade, 410 U.S. 113 (1973)
Commentary: Rachel Rebouché
Judgment: Kimberly M. Mutcherson
 
Chapter 9. Frontiero v. Richardson, 411 U.S. 677 (1973)
Commentary: Iselin M. Gambert
Judgment: Dara E. Purvis
 
Chapter 10. Geduldig v. Aiello, 417 U.S. 484 (1974)
Commentary: Maya Manian
Judgment: Lucinda M. Finley
 
Chapter 11. Dothard v. Rawlinson, 433 U.S. 321 (1977)
Commentary: Brenda V. Smith
Judgment: Maria L. Ontiveros
 
Chapter 12. City of Los Angeles Department Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978)
Commentary: Cassandra Jones Havard
Judgment: Tracy A. Thomas
 
Chapter 13. Harris v. McRae, 448 U.S. 297 (1980)
Commentary: Mary Ziegler
Judgment: Leslie C. Griffin
 
Chapter 14. Michael M. v. Superior Court, 450 U.S. 464 (1981)
Commentary: Margo Kaplan
Judgment: Cynthia Godsoe
 
Chapter 15. Rostker v. Goldberg, 453 U.S. 57 (1981)
Commentary: Jamie R. Abrams
Judgment: David S. Cohen
 
Chapter 16. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
Commentary: Kristen Konrad Tiscione
Judgment: Angela Onwuachi-Willig
 
Chapter 17. Johnson v. Transportation Agency, 480 U.S. 616 (1987)
Commentary: Deborah Gordon
Judgment: Deborah L. Rhode
 
Chapter 18. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Commentary: Dale Margolin Cecka
Judgment: Martha Chamallas
 
Chapter 19. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Commentary: Macarena Sáez
Judgment: Lisa R. Pruitt
 
Chapter 20. United States v. Virginia, 518 U.S. 515 (1996)
Commentary: Christine M. Venter
Judgment: Valorie K. Vojdik
 
Chapter 21. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
Commentary: Margaret E. Johnson
Judgment: Ann C. McGinley
 
Chapter 22. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998)
Commentary: Michelle S. Simon
Judgment: Ann Bartow
 
Chapter 23. United States v. Morrison, 529 U.S. 598 (2000)
Commentary: Shaakirrah R. Sanders
Judgment: Aníbal Rosario Lebrón
 
Chapter 24. Nguyen v. INS, 533 U.S. 53 (2001)
Commentary: Sandra S. Park
Judgment: Ilene Durst
 
Chapter 25. Lawrence v. Texas, 539 U.S. 558 (2003)
Commentary: Kris McDaniel-Miccio
Judgment: Ruthann Robson
 
Chapter 26. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)
Commentary: Patricia A. Broussard
Judgment: Maria Isabel Medina
 
Chapter 27. Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
Commentary: Erez Aloni
Judgment: Carlos A. Ball
 
 
SAVE THE DATE!!  Conference on Feminist Judgments Project and feminist judging-- October 20 & 21, 2016 at University of Akron School of Law sponsored by Center for Constitutional Law.  
 

February 2, 2016 in Books, Conferences, Constitutional, Courts, Legal History | Permalink | Comments (0)

Monday, February 1, 2016

Obergefell and the Return to Coverture

Allison Tait (Richmond), The Return of Coverture, First Impressions, Michigan Law Review.

Once, in the era of coverture, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Under coverture, a married woman had no legal persona—she could not sue or be sued, she could not form contracts, and she could not buy, sell, or own property apart from her husband. Gender hierarchy, separate spheres, and marital “unity” defined coverture and its rules.

 

Today, the prevailing narrative is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change. Coverture, for Justice Kennedy, exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. Coverture therefore provides an important example of how “[t]he history of marriage is one of both continuity and change.”

 

While celebrating the demise of coverture, however, the substantive image of marriage that Justice Kennedy set forth in the opinion subconsciously invokes marriage as coverture. The opinion uses conventional, historical tropes that construct marriage as a relationship of hierarchy, gender differentiation, and female disempowerment. While ostensibly rejecting old forms of marriage and setting forth a modern vision of marriage equality, the opinion subtly resurrects the presence of coverture.

February 1, 2016 in Constitutional, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Frederick Douglass and Elizabeth Cady Stanton

Today’s #GoogleDoodle celebrates abolitionist Frederick Douglass.  Douglass was one of the men present at the signing of the women’s rights Declaration of Sentiments in July 1848, and an early supporter of Elizabeth Cady Stanton and the women’s movement, though disagreements between the two over the Fifteenth Amendment emerged later. 

 

ECSStatuteNWRMuseum

 

Another connection between Stanton and Douglass was her support of his later interracial marriage.  Here’s an excerpt from my forthcoming book on Stanton, Tracy A. Thomas, “The Pivot of the Marriage Relation,” chap. 3, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP forthcoming 2016).

    For Stanton believed in the theoretical ideal of free love, resulting “whenever compulsion and restraint, whether of the law or of a dogmatic and oppressive public opinion, are removed.”[1] So when her friend Frederick Douglass remarried to Helen Pitts, a white woman, she sent her personal congratulations and support for his subversive act. She noted that “there’s much hostile criticism on your condescension in marrying a white woman. After all the terrible battles and political upheavals we have had in expurgating our Constitutions of that odious adjective ‘white’ it is really remarkable that you or all men should have stooped to do it honor. The ‘white’ feature of this contract is bad enough, but ‘the woman’ is still worse.” Stanton commented on the gender implications of the controversy in which his “large circle of admiring friends protest” against him risking his legacy as a black civil rights leader on white interests, especially those of a mere woman.[2] Stanton wanted to draft a public announcement of support for Douglass from both her and Anthony and invite him to speak at the next women’s rights convention. Anthony refused, concerned with the potential backlash on “the subject of amalgamation” against the growing consensus on women’s suffrage. Anthony wrote to Stanton, “I do hope you won’t put your foot into the question of intermarriage of the races. It has no place on our platform, any more than the question of no marriage at all, or of polygamy, and so far as I can prevent it, shall not be brought there.” She pleaded, do not “throw around that marriage the halo of a pure and lofty duty to break down race lines.[3] For Stanton had publicly supported interracial marriage before, attending legislative hearings in Boston to repeal colonial miscegenation laws and printing an editorial in her newspaper in support of interracial marriage.[4] But this time, she backed down.

 

NOTES

[1] DuBois, “On Labor,” 65.

[2] ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love Across Color Lines (1999).

[3] SBA to ECS, Jan. 27, 1884; Newman, 4.

[4] ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.

 

February 1, 2016 in Legal History, Race | Permalink | Comments (0)

Friday, January 29, 2016

President Proposes Company Pay Disclosure Rules on 7th Anniversary of Lilly Ledbetter Act

 NPR, To Shine a Light on Salary Gaps, Obama Wants Companies to Disclose Pay Data

The Obama administration is proposing a new rule to address unequal pay practices by requiring companies with more than 100 employees to submit salary data by race, gender and ethnicity. 

 

The announcement comes seven years after President Obama signed the Lilly Ledbetter Fair Pay Act — his first piece of legislation as president — which makes it easier for women to challenge discriminatory pay in court.

 

But a stubborn, substantial pay gap between men and women persists — and it affects black and Latina women the most, Obama said Friday as he introduced the proposal. The president said he'd continue to work to reduce the gap as long as he was in office."Social change never happens overnight," he said. "It is a slog and there are times when you just have to chip away and chip away ... it's reliant on all of us to keep pushing that boulder up the hill."

 

 "Social change never happens overnight," he said. "It is a slog and there are times when you just have to chip away and chip away ... it's reliant on all of us to keep pushing that boulder up the hill."

AAUW, Tell the Department of Labor to Finalize the New Pay Equity Proposed Rule

Seven years ago today, President Barack Obama signed into law his first piece of legislation as President, the Lilly Ledbetter Fair Pay Act. At today's event celebrating the anniversary, the president directed the Equal Employment Opportunity Commission (EEOC), in partnership with the U.S. Department of Labor (DOL), to publish a proposal to annually collect summary pay data by gender, race, and ethnicity from businesses with 100 or more employees. This step also expands on and replaces an earlier AAUW-supported plan DOL to collect similar information from federal contractors.


The new proposal will cover over 63 million employees, and the data collected would provide critical insights into the gender and racial pay gap. This step, stemming from a recommendation of the President's Equal Pay Task Force and a Presidential Memorandum issued on Equal Pay Day 2014, will help focus public enforcement of equal pay laws and provide better insight into discriminatory pay practices across industries and occupations.


DOL has identified the Equal Employment Opportunity Commission (EEOC) as the best collector of this summary data from employers. AAUW has long asserted that this kind of transparency is associated with a smaller gender pay gap, and that the implementation of this nationwide data collection is an important step in our efforts to ensure fair pay for all.

WaPo, Obama to Propose New Rule to Examine Gender Pay Inequality

White House Announces Actions to Advance Equal Pay

 

January 29, 2016 in Equal Employment | Permalink | Comments (0)

Wednesday, January 27, 2016

Accommodating Motherhood in the Workplace to Include Women's Unique Skills

Elizabeth Rose Schlitz (St. Thomas), Motherhood: Benefit or Burden to Business,  International Study Seminar on “Women and Work”, Pontifical Council for the Laity, Rome, Italy (2015)

Abstract:     

This essay is a contribution to an International Study Seminar on the topic of “Women and Work”, convened by the Pontifical Council for the Laity in Rome, Italy, on December 4-5, 2015, to be published with the complete proceedings of the conference.

In recent decades, the Catholic Church has come to share the widespread social consensus about the urgent need for the insights of the feminine genius in all sectors of society – in the home as well as the halls of government, schools and universities, and businesses. However, an argument for women in the workplace does not, in itself, furnish a compelling business case for mothers in the workplace. Is there something unique about the gifts, talents, and perspectives of women who are mothers, or something unique about what women who are mothers add to the dynamic of men and women working together?

This essay argues that persuasive arguments for accommodating mothers in workplace are crucial for two reasons: First, to ensure that employers who want to achieve gender balance do not follow the lead of companies such as Facebook and Apple, offering incentives for women to remain childless during their most productive years as ‘ideal workers’ rather than accommodating parenting. Second, to ensure the continued presence in workplaces and national and international governing bodies of people with personal stakes in advocating for policies to enable parents to balance their work and their caregiving responsibilities, and in reminding their nations and the world of the reality that the overwhelming proportion of the world’s poverty population is composed of women and children – across the globe, in countries of all stages of development.

The essay offers four arguments for the value of mother in the workplace: (1) businesses want women workers, and most women workers want to be mothers; (2) businesses benefit long term from the caregiving work of mothers, and should thus shoulder some of its cost; (3) accommodating motherhood is not, in fact, as much of a burden on businesses as is commonly thought; and (4) mothers offer some unique and valuable skills to the workplace.

 

January 27, 2016 in Equal Employment, Religion | Permalink | Comments (0)

Judge Admonished for Sexist Treatment of Women in his Courtroom, Including Asking Female DA to Get Coffee

ABA J, Judge's Coffee Request, Inappropriately Aimed Paper Bring Admonishment

A California judge has been admonished for his treatment of women in his courtroom, including an incident in which he asked a female prosecutor to get him a cup of coffee.

 

Judge Joseph Bergeron of San Mateo County was admonished (PDF) on Jan. 25, according to a press release. The coffee incident was one of three incidents cited by the California Commission on Judicial Performance. The Recorder (sub. req.) has a story.

 

The coffee incident occurred in December 2014, according to the commission. As a female deputy district attorney was leaving the courtroom, Bergeron asked if her office was across the hall and whether coffee was available. He conveyed that he would like the prosecutor to bring him coffee, though “the facts about how he inquired, including the point at which he handed her his empty coffee mug, are in dispute,” the commission said.

 

The prosecutor responded “in a sarcastic manner intended to convey the impropriety of his request what kind of coffee he would like and whether he would like cream and sugar,” the commission said. Bergeron responded he would make it easy and would take his coffee black. As she was leaving, Bergeron said that if he had cash, he would give the prosecutor a tip.

 

When the prosecutor returned with the coffee, she said, “Is there anything else I can do for you, Your Honor? Can I iron your shirts?”

Judge Joseph Bergeron Accused of Treating Women Inappropriately

The first incident happened on Aug. 28, 2014, when a clerk not regularly assigned to Bergeron’s courtroom was working.

 

As he was presiding over two criminal matters, the clerk went to retrieve a file from the judge. Bergeron asked her if she plays baseball, and then hit her in the chest with a crumpled calendar. He did the same thing later in the day.

Judicial Profile, Judge Joesph Bergeron.  Noted "Expectations" for his courtroom. "Please be on time and always be polite."

 

January 27, 2016 in Judges | Permalink | Comments (0)

Friday, January 22, 2016

On the 43rd Anniversary of Roe v. Wade: A Legal History Reading List

For the decision and oral argument, see Oyez, Roe v. Wade (Jan. 22, 1973)

 For the history and backstory of legalizing abortion, see:

For the anti-abortion advocacy, after Roe, see:

For today's commentary, see:

 

 

 

January 22, 2016 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, January 20, 2016

Women Sued for Women-Only Networking Meetings

These Men's Rights Activists Are Suing Women for Meeting Without Men

In April 2014, Stephanie Burns' company, Chic CEO, was gearing up for a networking event at an Italian restaurant in San Diego. Chic CEO hosts online resources for women starting their own businesses, and this spring evening it had teamed up with a local networking group to throw a mixer at Solare Lounge, where women could mingle over cocktails and appetizers while talking business.

 

During the event, Rich Allison, Allan Candelore, and Harry Crouch appeared at the restaurant door. They had each paid the $20 admission fee, and they told the hosts they wanted to enter the event. Chic CEO turned them away, saying that "the event was only open to women," according to the men's version of events, explained later in a legal complaint. Within two months, the three men had filed a discrimination lawsuit against Burns and her company alleging that the event discriminated against men. They are each members of the nation's oldest men's rights group, the National Coalition for Men, and Crouch is the NCFM's president.

 

The lawsuit is a recent example of a trend that several men's rights activists have repeatedly deployed in California, one made more successful by their strategic use of the Unruh Act, a decades-old civil rights law named after Jesse Unruh, the progressive former speaker of the California Assembly. The law is quite broad, outlawing discrimination based on markers such as age, race, sex, or disability. In dozens of lawsuits, several NCFM members have invoked it to allege discrimination against men by such varied groups as sports teams and local theaters. And the strategy has worked.

 

Since 2013, these men have used the law to file two lawsuits, and threaten several more, against groups encouraging gender diversity in tech and business, worlds that have been historically dominated by men, with women holding only about 4 percent of Fortune 500 CEO positions and making up only about 13 percent of computer engineers for the last 20 years. As the movement for more gender diversity in these fields has gained traction, some men's rights advocates have questioned the need for such a movement at all.

 

January 20, 2016 in Courts | Permalink | Comments (0)