Tuesday, January 17, 2017
NEH Summer Seminar on Gender, the State and the 1977 International Women's Year Conference -- Call for Applications
A National Endowment for the Humanities Summer Seminar for College & University Faculty
June 12-18, 2017
Blurring the Boundaries of Unjustified Impact and Disparate Treatment in Employment Sex Discrimination Cases
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, Georgetown L.J. (forthcoming)
Abstract:In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and relaxing the strictness of the similarity required between comparators in order to establish discriminatory intent.This article situates the newly-minted pregnancy discrimination claim in Young against the backdrop of employment discrimination law generally and argues that the Court’s hybrid treatment-by-impact claim is in good company with other outlier cases in which courts blur the boundaries of the impact/treatment line. The article defends the use of unjustified impact to prove pregnancy discrimination as well-designed to reach the kind of implicit bias against pregnant workers that often underlies employer refusals to extend accommodations to pregnant workers.While Young is not likely to prompt an earthquake in employment discrimination doctrine, this article identifies and defends a parallel development in the law governing pay discrimination that similarly incorporates unjustified impact into a disparate treatment framework. This move has already begun in some lower courts and is a central feature of the primary focal point of legislative reform, the proposed Paycheck Fairness Act. As is the case with pregnancy discrimination, pay discrimination largely stems from implicit judgments devaluing women as workers rather than conscious decisions to disfavor women because of their sex. Importing the Young theory of unjustified impact into the pay claim is necessary to make it a more viable tool for reaching the kind of bias that manifests as pay discrimination in the modern workforce. The insights developed in this article from exploring the theory and doctrine in Young provide support for the parallel development that is on the cusp of taking hold in the equal pay claim.The article concludes with some thoughts about why, given the malleability in fact, if not in judicial rhetoric, of the treatment and impact categories, disparate treatment provides the preferable grounding for these developments. Doctrinal advantages aside, the disparate treatment framing of pregnancy and pay discrimination claims best resonates with the social movement work of contesting the gender ideologies at the heart of these injustices.
Female Judges Alone are Not a Sufficient Condition for Promoting Women's Rights: The Example of Ghana
Josephine Dawuni, To Mother or Not to Mother: The Representative Roles of Women Judges in Ghana, J. of Africa Law.
Abstract:Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.
Monday, January 16, 2017
A few years ago, I wrote an essay Sex v. Race, Again later included in the book Who Should Be First? Feminists Speak Out on the 2008 Presidential Campaign. The book was about the perceived battle between race and sex seen in the political campaign between Hillary Clinton and Barack Obama for the Democratic presidential nomination.
The essay connected that presidential context to the historic context of the battle for suffrage rights and how race and sex were set against each other. It showed how historically in law, we have spent time arguing "which is worse," discrimination on the basis of race or gender.
On this MLK Day of reflection on race, and as the March for Women's Rights is planned -- attracting criticism for being both too little and too much about race -- it may be useful to revisit one small piece of this history.
Sex v. Race, Again
The struggle between Hillary Clinton and Barack Obama to make history as either the first woman or first African-Americanpresident resurrects the unfortunate historic battle between sex and race. The current debate presents striking parallels to the battle for voting rights after the Civil War when infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. The potential fallout from this false dichotomy today threatens political credibility and social justice and demands a rethinking of the alleged opposition.
In the late nineteenth century, the debate over the constitutional right to vote became a clash of race versus sex. Women’s rights leaders, most notably Elizabeth Cady Stanton and Susan B. Anthony, battled black men for the right to vote. Rather than unifying against the shared concern of the white male monopolization of political power and legal rights, the representatives of the disenfranchised classes fought each other to obtain rights first.
It began with the Fourteenth Amendment to the U.S. Constitution, ratified in 1868, which precluded the rights of women voters by expressly penalizing states that improperly excluded male citizens from voting.2 This subordination of women’s rights continued in the debate over the Fifteenth Amendment when civil rights leaders abandoned the universal suffrage platform of voting rights for all citizens, temporarily advanced in 1866 by the combined forces of feminists and abolitionists, in favor of prioritized rights for black men. Frederick Douglass, previously one of the staunchest supporters of women’s suffrage, rejected the women’s issues as less urgent and asserted that the failure to grant strategic priority to black male suffrage was a major betrayal of the former slave and constituted outright racism.3 Douglass insisted:
I must say I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro. With us, the matter is a question of life and death, at least, in fifteen States of the Union When women, because they are women, are hunted down through the cities of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of outrage and insult at every turn; . . . then they will have an urgency to obtain the ballot equal to our own.
Douglass acknowledged that the same persecution was true for a black woman, “but not because she is a woman, but because she is
Stanton had earlier taken up the cause of black women when abolitionists began narrowing their focus on the rights of black men: “May I ask just one question based upon the apparent opposition in which you place the negro and the woman? Do you believe the African race is composed entirely of males?” The women’s rights leaders tried to highlight the plight of black women to expose the erroneous opposition of race and gender. A similar point was made one hundred years later by author and black activist bell hooks, who argued that the forced opposition between black power and women’s liberation ignored the reality of black women and unfairly narrowed the social and political debate.
Women in the nineteenth century lost the battle for universal suffrage, and were told that it was the “Negro’s hour” and that they must wait patiently for their time to come (which would be fifty years later). Some women’s rights leaders, like Lucy Stone, eventually acquiesced, and split from the nationalorganization for women’s rights. Others, like Stanton, refused to support a law that discriminated against women and granted preferential power to black men. As Phoebe Couzins, a law student and associate of Stanton’s proclaimed, “I repudiate the Fifteenth Amendment, because it asks me to acquiesce in an assertion to which I utterly refuse to assent, i.e., the inferiority of women.”
Wednesday, January 11, 2017
FOR IMMEDIATE RELEASE
JAN 10, 2017
EEOC SEEKS PUBLIC INPUT ON PROPOSED ENFORCEMENT GUIDANCE ON HARASSMENT
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has voted to release for public input a proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. The proposed Enforcement Guidance on Unlawful Harassment is available for input until February 9, 2017 at https://www.regulations.gov/docket?D=EEOC-2016-0009.
This proposed guidance, which is the product of extensive research, analysis, and deliberation, explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.
Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.
“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces,” said Chair Jenny R. Yang. “The Commission looks forward to hearing public input on the proposed enforcement guidance.”
Preventing systemic harassment has been one of EEOC’s national enforcement priorities since 2013. The Commission reaffirmed this priority in its Strategic Enforcement Plan for 2017-2021. At a public meeting in January 2015, the Commission established a Select Task Force on the Study of Harassment in the Workplace to analyze workplace harassment and identify innovative and creative prevention strategies. Chaired by Commissioners Chai R. Feldblum and Victoria A. Lipnic and comprised of academic experts, legal practitioners from the plaintiff and defense sides, employers, employee advocacy groups, and organized labor, the Select Task Force met 10 times between April 2015 and June 2016 to hear and consider testimony and public comments. At a June 2016 public meeting, Commissioners Feldblum and Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace (“Harassment Prevention Report”) with findings and recommendations about harassment prevention strategies.
“I am pleased that we are able to follow up on the recommendations in our Harassment Prevention Report with this release of the draft enforcement guidance on unlawful harassment,” said Feldblum. “This guidance clearly sets forth the Commission’s positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report. I believe it will be a helpful resource for employers and employees alike, and I look forward to receiving comments from the public.”
“As we learned from the Harassment Prevention Report this past year, 30 years after the U.S. Supreme Court laid down the law in this area, harassment charges and cases remain a far too dominant part of the work of the Commission,” said Lipnic. “I am pleased the Commission is offering an updated version of its positions on the important legal issues on this topic and look forward to the public input.”
The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number. The deadline for submission of public input is February 9, 2017.
After reviewing the public input, the Commission will consider appropriate revisions to the proposed guidance before finalizing it.
EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.
A Tennessee sheriff is named in a civil lawsuit after he denied a 29-year-old inmate access to an abortion, saying the woman's life was not in danger and her pregnancy was not the result of a crime, according to recently filed court papers.
The woman, Kei'Choura Cathey, was not released until it was too late for the procedure and had the child in April, the court filing says. Her lawsuit alleges Maury County Sheriff Bucky Rowland illegally denied her access to an abortion, which the nation's top court has protected as a woman's right for decades.
The case, and others around the country, pose questions about what obligations top law enforcement officers have when women who are incarcerated request abortions.
"Courts have generally said prisoners retain their right to access abortion even if they’re incarcerated," said Brigitte Amiri, senior staff attorney for the ACLU's Reproductive Freedom Project.
Tuesday, January 10, 2017
Queen Victoria is trending these days with 2 new books and an upcoming TV series. I have just finished both books, the fictional Victoria by Daisy Goodwin and the non-fiction Victoria: The Queen by Julia Baird. I am always interested in books that show us how we have been getting it all wrong. See also Queen Victoria's Story is More Inspiring, and More Badass, Than We've Seen Before
These books argue that the myth around Queen Victoria as a moralistic, strict leader of women's domestic role was manufactured by men -- particularly those male editors of her papers. These editors omitted all letters to and about women, on grounds that women's issues were irrelevant and not of interest to posterity. They rewrote Victoria's language to reflect the demure, submissive status expected of women. Victoria's youngest daughter Beatrice later edited her mother's papers to omit any signs of the intimate and volatile relationship with her husband, Albert. Modern author Julia Baird argues that the "Victorian" era would have been better named the "Albertine era" as it was Prince Albert who was more moralistic and leading of the domestic sphere and women's inferiority, even for his own wife and Queen. The books also present Victoria as a passionate, engaged, and hot tempered woman who demanded respect, power, and control.
My interest in Queen Victoria stems from her name repeatedly invoked by Elizabeth Cady Stanton as the model of a strong woman. During my research for my book on American feminist and legal thinker Stanton, I came across many references where Stanton cited Victoria as the ideal strong woman -- a woman with power, employment, but also domestic authority as the mother of nine children. Stanton told mothers they should act "queenly" and she used the history of queens as evidence of women's capacity for political power. I was puzzled by Stanton's continued reverence for Victoria, who is typically depicted as the role model for the domestic, not feminist. She is known as being obsessed and grieved by her husband's early death, the bearer of strict Victorian morality, and the icon for motherhood and domestic sphere (even a Queen should relegate to her domestic role).
I concluded that Stanton must have used Victoria simply because she was the most well-known figure to her audiences and that as Queen she generically illustrated women's potential for power. It may have also been that Stanton saw a little of herself in Queen Victoria. They were about the same age and lived almost the same 80 years (Stanton 1815-1902, Victoria 1819-1901), both were very short (Victoria was 4'11), both had large families (Stanton 7 children, Victoria 9). Stanton visited England in 1840 when Victoria was at the height of her popularity as the new queen and recently married, and Stanton visited England again in the late years of the century as Victoria continued as the longest serving monarch (until Queen Elizabeth II in 2015).
As I learn more about Victoria, I understand Stanton's references better. Stanton's theory of feminism was holistic. She envisioned equality for women in all spheres, both private and public. To her, feminism meant equal autonomy for women in all aspects of life -- public, politics, employment, religion, and family. Significantly, it also meant embracing and elevating the power of motherhood. Victoria represented this public and private power harmonized with the role of motherhood as authority, not subservience.
Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Connect.L.Rev. (2016)
Abstract:This Article argues that a significant strand of feminist theory in the1970s and 1980s — socialist feminism — has largely been ignored by feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialist feminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialist struggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, and Iris Young, as well as their predecessors in the U.K., and in the practice of socialist feminist groups in the United States during the same period. Although many American feminist legal theorists themselves participated in or were influenced by the progressive movements of the 1960s and 1970s, socialist feminism is virtually absent from their writings, except for those of Catharine MacKinnon, who, despite sympathy with the approach, disagreed with it and went on to develop her own version of feminist equality theory. The author argues that the time is now ripe to recapture this strand of feminism and explore what it would add to the study and pursuit of women’s equality.
Monday, January 9, 2017
The Supreme Court today denied cert in The Geo Group v. EEOC allowing the Ninth Circuit's decision to stand allowing the class action to go forward.
According to EEOC's suit, Alice Hancock and a class of 20 female employees were sexually harassed at the Arizona State Prison-Florence West Facility and the Central Arizona Correctional Facility in Florence, Ariz.; both entities were managed by GEO under contract with the Arizona Department of Corrections. The physical sexual harassment allegedly included an incident where a male GEO manager grabbed and pinched the breasts and crotch of a female correctional officer. Also, EEOC claimed that at least one female employee was forced onto a desk, where a male GEO employee shoved apart her legs and kissed her. EEOC charged that the sexual harassment also included sexual comments and gestures, including a male officer calling a female officer "bitch" and "f---ing bitch" on a daily basis and making other lewd remarks and suggestions.
The complaint further charged that the female employees were subjected to retaliation when they reported or otherwise sought help from GEO management.
EEOC filed its lawsuit in U.S. District Court for the District of Arizona, CIV2:10-cv-02088 MHM, in September 2010, after first attempting to reach a pre-litigation settlement through its conciliation process. A similar suit was filed by the Arizona attorney general's office (ACRD), the agency that conducted the administrative investigation in this case, and the Ninth Circuit also reinstated that suit.
The trial court dismissed the claims of the women who were not identified until after EEOC filed suit. The court also dismissed the claims of two women which the court said were untimely, and another claim of one woman whose harassment was not actionable, according to the court. EEOC and ACRD appealed.
I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016). It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.
Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.
“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.
A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).
This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.
Gender quotas have been highlighted in several places recently, including:
The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"
The ABA Rule mandating diverse CLE panels
Sarah Boonin, Ten Years Too Long: Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence, 39 Harv. J. Gender & Law 369 (2016)
Abstract:Social Security's retirement program has evolved over time to become a major source of economic security in older age for workers' family members, including spouses and ex-spouses. To qualify for derivative retirement benefits as an ex-spouse, the applicant must have been married to the wage earner for at least ten years. This Article explores in-depth this so-called "ten-year rule" and critiques its application in cases involving domestic violence. Drawing on a gut-wrenching case study, the rule's legislative history, as well as social science and feminist literature on the impacts of domestic violence, this piece argues that the ten-year rule unfairly punishes and imperils victims of domestic violence. It serves as the final blow, felt long after the abuse has ended. The Article proposes and defends an amendment to the Social Security Act that would extend vital retirement benefits to victims divorced from shorter-term marriages.
Friday, January 6, 2017
The West Virginia Supreme Court will have a female majority for the first time when Beth Walker takes the bench next week.
Walker will join Justices Margaret Workman and Robin Davis in making West Virginia one of 11 top courts that will have a majority of justices who are women in 2017.
Other states with a female majority are Arkansas, California, Maryland, Massachusetts, Minnesota, New Mexico, New York, Tennessee, Washington and Wisconsin.
Tuesday, January 3, 2017
Wednesday, January 4
8:30 am – 5:15 pm Why Law Matters: Health and Social Justice (Joint Program of Disability Law, Insurance Law, Medicine and Health Care and Minority Groups, Co-sponsored by Poverty Law and Women in Legal Education)
10:30 am – 12:15 pm AALS President’s Program on Diversity
Much recent scholarship has addressed important diversity issues surrounding gender, religion, race, viewpoint, disability, and sexual orientation. Some inquiries been prompted by reflection on issues such as our criminal justice system; protests, including Black Lives Matter, have also spurred greater focus. This President’s Program will seek to answer questions related to on-campus challenges and opportunities around equity and inclusion
Thursday, January 5
8:30 am – 10:15 am: Cultivating Empathy (sponsored by Women in Legal Education and Balance in Legal Education)
Moderator: Rebecca E. Zietlow, University of Toledo College of Law
Speakers: Susan L. Brooks, Drexel University Thomas R. Kline School of Law
Jamila Jefferson-Jones, University of Missouri-Kansas City School of Law
Rhonda Magee, University of San Francisco School of Law
Lisa R. Pruitt, University of California, Davis, School of Law
Tirien Steinbach, University of California, Berkeley School of Law
Howard M. Wasserman, Florida International University College of Law
This panel will discuss how best to teach students about sensitive issues related to topics of gender, race, poverty, sexual orientation, and other defining characteristics . The panel starts from the premise that professors’ identities affect how we teach and how our teaching is perceived by students. Students’ identities also affect how they learn and how they react when confronted with issues that trigger special sensitivities, or, conversely, issues and topics about which they have no personal experience. How can professors cultivate empathy among the students and raise the students’ emotional intelligence? How can professors best teach students to understand and tolerate differing viewpoints? This is important not only to teaching and learning, but also to the effective representation of clients and practice of law.
@10:15am Women in Legal Education, Business Meeting (following the program at 10:15)
8:30 am – 10:15 am Addressing Implicit Bias in Teaching (sponsored by Section on Clinical Legal Education)
Moderator: Carol L. Izumi, University of California, Hastings College of the Law
Speakers: Rachel Godsil, Seton Hall University School of Law
Verna Myers, Founder and President, Verna Myers Consulting Group
Victoria Plaut, University of California, Berkeley School of Law
According to the Perception Institute, “most Americans believe in racial and gender equality and reject discrimination in any form. Yet, stereotypes embedded in our brains, shaped over time by history and culture, can lead us to view the world through a biased lens and behave contrary to our deeply held egalitarian values.” We are increasingly faced with the realities of the impact that biases have in society, but have we been reflective enough about the role that implicit bias plays in our lives as legal educators? How do implicit biases affect our teaching, and affect us as advocates for justice? How are we addressing the challenges inherent in the effect of biases on our individual and institutional interactions? How do these implicit biases affect students’ perceptions of justice and the law? Where is the line between personal bias and ideology? This session will explore the influence of implicit bias on legal educators: what are our respective biases, and how do they impact our teaching and advocacy; how do they affect students and their ability to challenge them; can we promote our sense of justice without asserting our own biases; and how can we control for implicit bias
8:30am to 10:15am Sex, Death, and Taxes: The Unruly Nature of the Laws of Trusts and Estates (section on Trusts & Estates)
Moderator: Lee-ford Tritt, University of Florida Fredric G. Levin College of Law
Trusts and Estates is a broad-based discipline that impacts private citizens’ decisions about sex, death, and taxes. In individuals’ lives, this field is like an operating system that quietly runs in the background, but in reality organizes and informs the end user’s experience, often without the end user’s full awareness. In practice, the field sits at the crossroads of other legal disciplines such as family law, property law, elder law, and tax law. In the academy, it is caught between the practical and theoretical—a microcosm of the questions at the heart of debates about the value and normative objectives of a legal education. Yet, T&E seems to be under–theorized and marginalized in the academy. Therefore, this panel will interrogate T&E’s unruly nature, entertaining inquiries about the intersectionality of gender, race, sexual orientation, and class; the pervasiveness of succession law in aligned fields; its history of adaptation to changing social norms; and the development and evolution of law reform in this area. The panel will explore new visions for the field and frameworks that disrupt and reimagine the field.
12:00 pm – 1:30 pm – WILE Luncheon and presentation of Ruth Bade Ginsburg Lifetime Achievement Award to Professor Martha Albertson Fineman
1:30 p.m.-3:15 p.m. AALS Academy Program—Still Victims: Continuing the Trauma of Victims of Military Sexual Assault
Moderator: Marie A. Failinger, Mitchell | Hamline School of Law
Speakers: Bradford Adams, Manager of Direct Legal Services, Swords to Plowshares
Eric R. Carpenter, Florida International University College of Law
Janet Mansfield, Policy Attorney and Legal Advisor to the Army Sexual Harassment/Assault Response and Prevention Program, Office of the Judge Advocate General of the United States Army
Alison Parker, Director of the U.S. Program, Human Rights Watch
Evan R. Seamone, Mississippi College School of Law
In response to the tragedy of sexual assault in the military, Congress and the Department of Defense have recently made several statutory and regulatory reforms to the military justice system to protect victims of sexual assault. However, sexual assault victims continue to run into roadblocks that complicate healing and future opportunities, especially those who experience retaliation for reporting. This program will summarize the 2015 and 2016 Human Rights Watch investigations into sexual assault in the military, and discuss recent changes in legislation and policy in response to these problems. Sexually assaulted servicemen and women continue to face professional retaliation and criminalization for uniquely military offenses like fraternization, resulting in discipline and less than honorable discharges. Many also face lifetime difficulties in obtaining employment, adequate physical and mental health care including disability benefits, and other veterans’ services. The panel will probe military culture factors that contribute to these problems, and difficulties that survivors’ lawyers encounter in representing their clients’ interests. Finally, the program will discuss possible new legal and organizational changes that can contribute to a safer and healthier culture for military assault victims and their advocates, and how law schools can participate in seeking justice for these victims.
1:45 pm – 2:45 pm Concurrent Session, Socio-Economics, Gender, and Family Formation
Moderator: June Rose Carbone, University of Minnesota Law School
Speakers: Margaret Friedlander Brinig, Notre Dame Law School
Michele Goodwin, University of California, Irvine School of Law
Joan S. Meier, The George Washington University Law School
Every recent study of the family observes that marriage has become a marker of class, with whites and Asians, the collegeeducated and the financially secure more likely to raise their children within stable two-parent relationships than others. The question is why? This panel will look at the intersection of gender, law and the changing economy in considering why family arrangements differ by race and class, and the implications for growing inequality in society more generally.
5:30 – 6:30 pm - University of Georgia School of Law Roundtable Discussion on Women's Leadership in Legal Academia – cosponsored by Section on Women in Legal Education.
Women who are or wish to become leaders in academia-as deans or as directors of centers, clinics, or libraries-are invited to join Georgia Law for discussion.
Friday, January 6
10:30 am – 12:15 pm New Horizons: Navigating the Complex Landscape of Title IX Compliance (sponsored by Section on Education Law)
Moderator: Laura McNeal, University of Louisville, Louis D. Brandeis School of Law
Speakers: Deborah L. Brake, University of Pittsburgh School of Law
John Clune, Attorney, Hutchinson Black and Cook LLC
Tanya M. Washington, Georgia State University College of Law
Robin Fretwell Wilson, University of Illinois College of Law
This panel will explore emerging institutional challenges in complying with Title IX, in both K-12 and higher education. Title IX of the Education Amendments of 1972 protects people from discrimination “on the basis of sex … under any education program or activity receiving Federal financial assistance.” Although originally seen primarily as an initiative to promote gender equity in athletics, the broad language of the law leaves it substantially open to interpretation. Today, a great deal of controversy surrounds the application and breadth of Title IX among educators, administrators, policy makers, and stakeholders in education. This panel will discuss the current challenges in institutional compliance with Title IX such as:
- The recent Dear Colleague letter on transgender students issued by the U.S. Department of Education, in both its procedural and substantive dimensions;
- The Dear Colleague letter on sexual harassment issued by the U.S. Department of Education, in both its procedural and substantive dimensions, including its implications for due process rights of accused persons;
- The effects of Title IX on student and faculty expression, and its interaction with academic freedom and principles of free speech.
1:30 pm – 3:15 pm Setting the Post-Obergefell Agenda (sponsored by Section on Sexual Orientation and Gender Identity Issues)
Moderator: Steven J. Macias, Southern Illinois University School of Law
Speakers: Courtney G. Joslin, University of California, Davis, School of Law
Kate Kendell, Executive Director, National Center for Lesbian Rights
Craig Konnoth, University of Pennsylvania Law School
Peter Nicolas, University of Washington School of Law
Since the 2015 Obergefell decision, LGBT legal issues have run the gamut from the actual enforcement of marriage equality to religious freedom challenges to trans rights in the public schools to bans on conversion therapy—at least according to major media accounts. This panel seeks to gauge the current interests of scholars as to the most pressing post-marriage-equality issues and how those issues stand in the wake of Obergefell. Is Obergefell’s reach felt throughout the range of current litigation, or is it proving to be more limited, or perhaps even a hindrance?
Saturday, January 7
8:30 am – 10:15 am – SpeedMentoring – Sponsored by Section on Women in Legal Education.
Thursday, December 22, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).
And coming soon, the rest of the book:
Chapter 5 "Our Girls" (Feminist parenting, maternal custody, and shifting societal norms of gender)
Chapter 6 "Still Many Obstacles" (Stanton's legacy to feminism and the modern reform of domestic relations law)
FRIDAY, FEBRUARY 3, 2017
9:00 a.m. – 5:00 p.m.
Thomas Jefferson School of Law
1155 Island Ave, San Diego, CA 92101
Thomas Jefferson School of Law’s 17th Annual Women and the Law Conference, Pursuing Inclusion: Diversity in the Workplace, will be held on Friday, February 3, 2017 at Thomas Jefferson School of Law.
This conference brings together leading experts and practitioners to examine the challenges to and strategies for achieving workplace diversity and inclusion. At a time of polarized public discourse on matters involving race, ethnicity, national origin, gender, religion, sexual orientation and identity, disability, age, and socio-economic status, this event will highlight a number of critically important topics, including: developing cultural competency; the strengths and weaknesses in employment and civil rights law; identifying and overcoming unconscious bias; how strategic efforts can inform public policy; and how other countries confront diversity at a time when work is changing rapidly.
Professor Leticia Saucedo, Professor of Law at UC Davis School of Law, will deliver the Ruth Bader Ginsburg Lecture. A cum laude graduate of Harvard Law School and member of the American Law Institute, Saucedo was previously Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas, a Visiting Professor at Duke University School of Law, and a staff attorney at the Mexican American Legal Defense and Education Fund. She is an expert in employment, labor, and immigration law. Saucedo continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.
Other speakers include: Mario Barnes, Associate Dean and Professor of Law, UC Irvine; Zahra Billoo, Executive Director, Council on American-Islamic Relations, San Francisco Chapter; Susan Bisom-Rapp, Associate Dean and Professor of Law, Thomas Jefferson School of Law; Julie Greenberg, Professor Emerita, Thomas Jefferson School of Law; Anne Koenig, Associate Professor of Psychology, University of San Diego; Rebecca Lee, Associate Professor of Law, Thomas Jefferson School of Law; Doreen Mattingly, Associate Professor of Women’s Studies, San Diego State University; Miranda McGowan, Professor of Law, University of San Diego School of Law; Patti Perez, Shareholder, Ogletree Deakins; Camille Gear Rich, Associate Provost and Professor of Law and Sociology, University of Southern California; Malcolm Sargeant, Professor of Labour Law, Middlesex University Business School, London; Susan Tiefenbrun, Professor of Law, Thomas Jefferson School of Law.
CFP DEADLINE 1/1/17
Deborah Weissman, The Community Politics of Domestic Violence, Brooklyn Law Rev (forthcoming)
Abstract:Gender violence has long been identified as a crisis of epidemic proportions that defies facile solution. Despite decades of law reform, and notwithstanding increased social services and public health interventions, the rates of gender violence have not appreciably declined. The field of domestic violence advocacy is itself in a crisis, and it has been difficult to discern the best way forward. Despite its intellectual and practical engagement, the domestic violence movement seems unable to shift from the neoliberal paradigm that emphasize the features associated with the carceral state while appearing indifferent to the structural sources of domestic violence as a social problem. Reliance on the criminal justice system has tended to fracture the domestic violence movement even as it marginalized itself from disenfranchised populations.
This Article offers a case study of an incident that occurred between the Sheriff of San Francisco and his wife in December 2011 that resulted in domestic-violence related criminal proceedings and additional charges of official misconduct and efforts by the Mayor to remove him from the office of Sheriff. The Sheriff had been recently elected largely as a result of a coalition of marginalized communities, immigrant rights advocates, environmental justice organizations, labor groups, and other progressive organizations. The case reached beyond the courts and city hall into neighborhoods and households, and community meeting places throughout the city. The legal and public citizen commentary offered throughout nine months of proceedings against the Sheriff set in relief the contradictions and tensions emblematic of the crisis that confronts the domestic violence movement. The case provide a unique opportunity to consider the problems of domestic violence anew, a way to interrogate old premises and presumptions, examine prevailing practices, and reconsider responses.
This Article addresses the perils attending over-reliance on criminal justice paradigms as remedy for domestic violence, that –- in fact -– deployment of law enforcement methods has acted not only to diminish the efficacy of domestic violence strategies but also to diminish the relevance of domestic violence advocacy to the social justice movement. To rely on models of victimhood as the means to obtain the intervention of criminal justice remedies implies loss of voice and agency, whereby the interests of the “victim” are preempted in discharge of larger logic of the criminal justice system. That domestic violence advocates identify with criminal justice remedies, moreover, at a time when law enforcement practices are under scrutiny and suspicion within marginalized communities, has acted to deepen the breach between domestic violence advocates and the social justice movement.
The Article offers an opportunity to reconsider the definition of domestic violence as well as the criminal justice and community response to this problem. It seeks to re-engage in dialogue about the private/public dichotomy without returning to a point in time where private abuse between intimate partners can be considered of little or no socio-political or legal import. Domestic violence persists as a manifestation of gender and other forms of inequality and social norms that oppress and repress its victims. But the mainstream responses often accomplish little to eliminate or repair the damage caused by intimate partner violence. The Article reiterates the recommendations scholars have offered in recent years as alternatives to criminal justice remedies and suggests that what is lacking is not prescriptives but rather political will.
Friday, December 16, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”
Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship. But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role.
Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.
This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations.
What Stanton did talk about was voluntary motherhood. Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands. It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.
Stanton also wrote a great deal about infanticide, rather than abortion. Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement. Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.
Wednesday, December 14, 2016
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform. Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage. Today is Chapter 3 on divorce reform and domestic violence.
From the Introduction to the chapter:
The “marriage question,” as it was called in the nineteenth century, was less about marriage and all about divorce. America inherited the divorceless legal tradition of England derived from canon law, prohibiting divorce but allowing separation and annulment. A few colonies and states experimented with divorce, slowly expanding the fault grounds for divorce by the middle of the nineteenth century, with a few states adopting broad grounds for any misconduct or cause. Legislatures were guided by legal concepts of individualism and contract theory, and influenced by temperance arguments for the protection of women. As the country grew through expansion, immigration, and industrialization, divorce increased. Numbers went from 9,937 in 1867, the first year a national census on divorce was taken, to 33,461 in 1890 and to 167,105 by 1920. The moral outcry was loud, as clergy and moral reformers predicted the deterioration of the family and the downfall of society.
Stanton was at the forefront of the very public debate on divorce. She viewed divorce as an important issue of women’s rights because it freed women from marriage, where their legal status was denied and their personal freedoms curtailed. Viewing marriage as a trap, she was supportive of any legal means for women to escape, including no-fault or “easy divorce.”Taking this a step further, Stanton argued that women had a duty, an obligation to divorce, in cases of domestic violence and intemperance, to protect themselves and their children.
Divorce had been seen historically and biblically as a way for men to “put away their wives,” but Stanton reframed it as a legal remedy for women. She “single-handedly shifted the age-old idea of divorce as a male prerogative to a right demanded by women on humanitarian grounds.” Women needed divorce, Stanton argued, to escape domestic violence, abuse, poverty, and simple unhappiness. “Liberal divorce laws for oppressed wives,” Stanton proclaimed, “are what Canada was for Southern slaves.” The majority of divorces, over two-thirds, were filed by women—a key fact for Stanton proving the importance of this issue for women and the propriety of including it within the women’s rights platform. Divorce was not a morality crisis, but simply a consequence of women’s assertion of rights. “This is woman’s transition period, from slavery to freedom, and all the social upheavings, before which the wisest and bravest stand appalled, are but necessary incidents in her progress to equality.” Divorce provided the self-help remedy that let women enforce their own rights and expectations of marriage, with the secondary effect of transforming marriage into a more egalitarian structure.
Stanton’s tenaciousness on divorce, however, alienated colleagues and divided the women’s rights movement. Her vocal support of divorce outraged reformers, increased opposition to women’s rights, and contributed to the split in the organized women’s movement. Stanton remained undeterred, convinced of the necessity of divorce to women’s full equality. As the eighty-year-old Stanton recalled, “[S]o bitter was the opposition to divorce for any cause that but few dared to take part in the discussion.” But, she said, “I was always courageous in saying what I saw to be true, for the simple reason that I never dreamed of opposition. What seemed to me to be right I thought must be equally plain to all other rational beings.”
Stanton initially presented divorce as woman’s duty to free herself and her children from an alcoholic husband and domestic violence.
She first wrote of her support for divorce in 1850 in a short article aptly titled “Divorce,” published under the pseudonym “Sun Flower” in the women’s temperance newspaper, the Lily. At this time, a New York legislative committee had proposed a bill to expand divorce beyond the cause of adultery to include desertion, imprisonment, drunkenness, and insanity. Stanton brought this to her readers’ attention and gave it her vote. “I see there is a bill before the Legislature providing some new doors, through which unhappy prisoners may escape from the bonds of an ill assorted marriage. . . . I hope that bill may pass.” She strongly endorsed divorce in the context of intemperance and abuse. “The Legislature, so far from placing any barrier in the way of a woman wishing to leave a drunken husband, ought to pass laws, compelling her to do so.” Divorce, she suggested, would be woman’s duty in such circumstances. Going further, Stanton proposed a broader right to no-fault divorce. “If, as at present, all can freely and thoughtlessly enter into the married state, they should be allowed to come as freely and thoughtfully out again.”
She later then wove divorce reform of no-fault divorce and equal fault divorce into her speeches to the New York legislature and to the public, “speaking wisdom to the popular ear.” But the notorious McFarland v. Richardson trial gave her a national stage on which to play out her critique of marriage and solution of divorce. McFarland, with premeditation, shot his ex-wife’s lover, a famous journalist. The jury acquitted on grounds that McFarland was entitled to defend his property of his home and his wife. Even though his wife had divorced him (out-of-state). And even though he had committed domestic violence against her.
Stanton then repeated her shocking demand for free and easy divorce a year later in the context of the Laura Fair trial in San Francisco. Fair was sentenced to death for shooting her longtime lover when he returned to his wife. Stanton argued the disparate inequalities in the law that would starkly excuse the murder by a husband, but condemn the same murder by a woman.
The Supreme Court affirmed the Fifth District Court of Appeals decision allowing a $3.6 million juryverdict in favor of Jessica Simpkins to be reduced to $500,000 when the trial court applied limits on “noneconomic damages,” which the Ohio General Assembly enacted as part of a 2005 “tort reform” law.
Simpkins and her father sued their church and former church leaders claiming that in March 2008 Brian Williams, the senior pastor of Sunbury Grace Brethren Church, forced oral and vaginal intercourse with Simpkins who was 15 years old at the time. Williams was convicted of two counts of sexual battery and sentenced to two four-year prison terms.
Simpkins argued the caps in R.C. 2315.18(B)(2) for noneconomic loss, which include “pain and suffering,” “loss of consortium,” “loss of companionship,” “disfigurement,” and ”mental anguish” are unconstitutional when it comes to minors because they suffer far more long-term consequences from the emotional damages of a sexual assault than they would from any “economic” damages. Writing the Court’s lead opinion, Justice Judith L. French wrote there may be a set of circumstances where the statutorydamages caps would prove unconstitutional, but the law “as applied to the facts before us” is constitutional.
In separate dissenting opinions, Justices Paul E. Pfeifer and William M. O’Neill argued that the General Assembly’s caps on jury awards are unconstitutional and can only be imposed by an amendment to the Ohio Constitution.