Gender and the Law Prof Blog

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

Wednesday, July 19, 2017

Rewritten Feminist Judgments: The Tax Opinions

Bridget Crawford & Anthony Infanti, Introduction to Feminist Judgments, to Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., Cambridge University Press, 2017, Forthcoming).

Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings together a group of scholars and lawyers to rewrite tax decisions in which a feminist emphasis would have changed the outcome or the court’s reasoning. The volume includes cases that implicate gender on their face (like medical expense deductions for fertility treatment or gender confirmation surgery as well as special tax benefits for married individuals), as well as cases that require a more nuanced understanding of history, politics and economics (such as the tax treatment of tribal lands and the business expense deduction). This book opens the way for a discussion of how viewpoint is a key factor in statutory interpretation.

July 19, 2017 in Gender | Permalink | Comments (0)

Book Review of Sanger's About Abortion

David Pozen, The Abortion Closet

An enormous amount of information and insight is packed into Carol Sanger’s About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is  anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

 

The panoramic ambition of the book, and its correspondingly multi-disciplinary method, are established in the first chapter, in a section titled “What Abortion Is About.” By the end of this section, the reader has learned something about: Roe v. Wade; various international treaties on the rights of women; abortion training protocols in medical schools; the neurological development of a fetus; the 2004 and 2012 presidential primaries; a 1995 papal encyclical; a 1984 lecture by the New York Governor; a 2001 concurrence by a Mississippi Supreme Court Justice; the 2003 recommendation by a Food and Drug Administration advisory committee to approve the “morning-after-pill” for over-the-counter sale; the anti-abortion turn within certain Protestant denominations in the 1970s and 80s; sociological research on pro-life activists and their views on sex; anthropological research on pregnancy termination decisions following a diagnosis of fetal disability; prostitution laws in New York; abstinence-only programs in Texas; President George W. Bush’s Culture of Life; the rise and rise of parental involvement statutes and personhood amendments; the rise and fall of federal support for family planning organizations and abortion services to pregnant soldiers; the intensifying politics of abortion in state judicial elections; the recent Hobby Lobby litigation over the Affordable Care Act; and the Supreme Court’s decision last Term in Whole Woman’s Health.


This section lasts fourteen pages. It is a testament to Sanger’s skill as a writer and to
her synthetic capacities as a thinker that one comes away from this whirlwind tour feeling not vertigo, but rather an enhanced sense of clarity about the arc of abortion regulation. While the pace soon slows down, the rest of the book maintains a relentless inquisitiveness, ever collecting and connecting data points to help guide the reader through complex socio-legal terrain.

An earlier blog post about Sanger's book is here.

July 19, 2017 in Abortion, Books | Permalink | Comments (0)

Monday, July 17, 2017

Women Under Represented on Irish Juries in Serious Criminal Trials, Especially Rape Trials

Irish Times, Women Under Represented on Juries in Serious Criminal Trials: Gender Imbalance is Most Noticeable in Rape Trials

While it is over 40 years since women won the right to be included on jury selection panels, men continue to dominate most juries in serious criminal trials.

 

An analysis by The Irish Times of 200 trials in the Central Criminal Court, which deals almost exclusively with rape and murder, shows that men dominated the jury in 57 per cent of cases.

 

Women dominated the jury in only 17 per cent of cases, while there was an even six/six split between the genders in 26 per cent of cases.

 

The gender imbalance was most noticeable in rape trials, where 61 of 100 juries were dominated by men compared to only 13 dominated by women. To put it another way, 723 men sat on the juries compared to 477 women.

 

In murder cases male jurors were in the majority in 52 cases compared to 23 with female-majority juries.

 

Both the reasons and consequences of the gender imbalance in Irish juries remain unclear, mainly due to the secretive nature of jury selection and jury deliberation.

 

Many studies suggest women are more likely to judge female rape complainants harshly and to acquit men accused of rape. In 2009, Irish academics who studied 108 rape trials found that male-dominated juries had the highest conviction rate. There was not a single conviction in the 17 cases which had female-dominated juries.

July 17, 2017 in Courts, Human trafficking | Permalink | Comments (0)

Judge Narrows Scope of Government Data Request in Google Gender Pay Audit

Google Must Cough Up Contact Info for 8000 Employees in Gender Discrimination Case: But Judge Narrows Scope of US Labor Dept Request 

Google has been ordered to hand over personal details of 8,000 employees as part of an ongoing US Labor Department investigation into equal pay.

 

A judge provisionally ruled Friday that Google must provide names, personal addresses, telephone numbers and email addresses to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) for 5,000 employees, upon request. After the OFCCP has interviewed a selection of these employees, it may request an additional 3,000.

 

The case began in January, when the OFCCP filed a lawsuit requesting salary structure details and employee information from Google in order to verify that the company is meeting Executive Order 11246, which prohibits federal contracts from discrimination based on race, colour, religion, sex or national origin, and gives the OFCCP authority to verify.

 

Google insists it has "closed the gender pay gap globally" and according to its *cough* internal *cough* annual analysis, provides "equal pay across races in the US".

 

But the Labor Department has said that it had "found systematic compensation disparities against women pretty much across the workforce" and requires additional information from the tech giant.

The judge's order is here, at Dept of Labor v. Google, Recommended Decision and Order (July 14, 2017). It explains the nature of the administrative audit.

I begin with an explanation of what this case is and what it is not. The Office of Federal
Contract Compliance Programs is the agency of the Department of Labor charged with auditing government contractors to determine whether they are complying with certain contractually imposed anti-discrimination and affirmative action obligations. OFCCP’s auditing activities generally are not “complaint-driven”; rather, OFCCP opens audits of federal contractors based on neutral criteria. That is how OFCCP selected Google for this audit, not because any of the more than 25,000 potentially affected employees (or anyone else) filed a complaint with OFCCP.

When OFCCP determines after an audit that a government contractor is discriminating or failing to meet affirmative action obligations, it must try to resolve the violation voluntarily and without litigation. According to OFCCP’s Regional Director (Pacific Region), these efforts lead to voluntary resolutions of about 99 percent of OFCCP’s cases.

See also:

July 17, 2017 in Business, Equal Employment, Pop Culture | Permalink | Comments (0)

New Project to Explore Whether Traditional Female/Male Distinctions are Outdated in Modern Law

Is Male/Female Gender an Outdated Concept in Law?

Academics are set to explore whether a person’s gender is still relevant in modern law.

The study will examine how gender is relevant to legal interactions and documents such as passports and birth certificates

Experts in law, political theory and social psychology will begin a comprehensive three-year project in May 2018, to investigate how sex and gender are defined and regulated for legal purposes.

They will look at the problems the current system raises for many people who do not identify with the limited male and female categories, and the team will explore different models for reforming gender classification.

Reforming Legal Gender Identity will examine the effects on English law if the ways of determining people’s gender changed, particularly if gender became self-determined, as well as the wider implications of reform for advancing equality and diversity.

The project will investigate the implication which when gender is no longer assigned at birth, what implications this might have for single-sex schools, and gender-specific shelters and community organisations – where entry and participation are based on having a particular sex.

Professor Elizabeth Peel, of Loughborough’s School of Social, Political and Geographical Sciences, said: “The research aims to assess and generate public debate about our current system for determining legal gender.

“I am particularly excited about understanding people’s attitudes towards our gender system and whether and how people think gender could be legally recognised in different ways, or perhaps not at all.”

July 17, 2017 in Gender, International | Permalink | Comments (0)

Friday, July 14, 2017

Gender Essentialism & American Law: Why and How to Sever the Connection

Melina Constantine Bell, Gender Essentialism and American Law: Why and How to Sever the Connection

American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.

July 14, 2017 in Gender, Theory | Permalink | Comments (0)

Judge Throws Out Conviction of Woman Who Laughed in Sessions Hearing

NPR, Judge Throws Out Conviction of Woman who Laughed at Jeff Sessions

Instead of sentencing a woman to jail time for laughing during Jeff Sessions' confirmation hearing, a D.C. judge threw out the woman's conviction and called for a new trial.

Desiree Fairooz says her laughter during the attorney general's confirmation hearing in January was involuntary. (She was reacting to an assertion that Sessions treats all Americans equally.) Fairooz, who is an activist with the Code Pink organization, then protested as she was physically removed from the hearing. In May, she was convicted by a jury of disorderly, disruptive conduct and obstructing passage on U.S. Capitol grounds.

The charges carried up to a year in prison and a fine of up to $2,000. Two other protesters at Sessions' hearing faced similar charges.

But on Friday, the D.C. Superior Court judge overseeing Fairooz's sentencing called for a new trial instead.

July 14, 2017 in Courts, Legal History | Permalink | Comments (0)

Modern Pedagogical Challenges (and Opportunities) in Teaching Gender Courses

 

We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

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As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses.  When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation.  After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques. 

In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements.  The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord.  Law schools are notably implementing these pedagogical reforms in a time of great political division.  From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity.  University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.  

Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content.  This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog.  How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers?  The stakes are high.  In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods.  This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.  

This is a pedagogical conversation that gender faculty should lead and engage.  In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback.  Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing.  We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.

July 14, 2017 in Education, Gender, Guest Bloggers, Law schools | Permalink | Comments (0)

Tuesday, July 11, 2017

Analyzing the Impact of Catharine MacKinnon's Key Work, Toward a Feminist Theory of the State

Max Waltman, Appraising the Impact of Toward a Feminist Theory of the State: Consciousness-Raising, Hierarchy Theory, and Substantive Equality Laws, 35 Law & Inequality (2017)

The philosophical, political, and legal impact of Catharine MacKinnon's groundbreaking work Toward a Feminist Theory of the State (1989) is discussed, specifically the merging of consciousness-raising of subordinated groups with critically informed scholarship, producing a problem-driven approach engaging in informed policy-making. As a comprehensive political theory of the relationship between male dominance and the state, one of Toward's central features was to draw from consciousness-raising as a feminist research method to further ground its approach to equality, particularly in its prescription for substantive equality laws. The article illustrates how such central concepts have influenced real changes in the world, specifically using legal challenges to pornography and prostitution as examples.

Parts I and II demonstrates how Toward departed from conventional epistemologies, in part explaining its revolutionary appeal to students, practitioners, and scholars. Part III continues the analysis by using real world applications of its approach to pornography and prostitution, beginning with the anti-pornography civil rights ordinances drafted by Catharine A. MacKinnon and writer Andrea Dworkin in 1983, six years before the publication of Toward a Feminist Theory of the State. Part III illustrates how the ordinances mobilized MacKinnon’s same cutting-edge approach to advancing women’s legal substantive equality about which she later theorized. A similar approach was instrumental in grounding a substantive equality prostitution law, proposed by MacKinnon in a public speech in Stockholm, Sweden, November 2, 1990, situating that law within her broader approach to equality. The Swedish national umbrella organization for women’s shelters, ROKS, lobbied for the law and rallied other actors to support it, precipitating its passing in Parliament in 1998, with the law taking effect in 1999. Similar laws have now been adopted by many more countries (attesting to MacKinnon’s extraordinary influence as a legal and social theorist), although not until ten years or more after Sweden’s law, which makes Sweden’s unique data availability a “revelatory case.” Part III concludes by analyzing its comparative impact in terms of reducing sexual exploitation and abuse and offering an exit for people in prostitution, thus promoting substantive equality.

July 11, 2017 in Theory | Permalink | Comments (0)

Appointed Legal Counsel for Victims of Campus Sexual Assault

Merle Weiner, Legal Counsel for Survivors of Campus Sexual Assault, 29 Yale J. L & Feminism 123 (forthcoming 2017)

Abstract

This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so. The Article then argues that potential institutional concerns do not relieve colleges and universities of their existing legal obligation to provide some survivors with free legal services. This Article suggests that schools would best meet their legal obligation by providing all survivors with free legal services. The Article then puts its theoretical discussion into perspective by describing the University of Oregon’s unique on-campus program that provides free legal counsel to student survivors. The Article concludes by recommending that the Office for Civil Rights clarify campuses’ legal obligation to provide free attorneys for some survivors and by suggesting that campuses offer all survivors this service. The result would be a better campus response to sexual violence, a decline in the overall rate of post-assault traumatic distress, a likely reduction in the rate of campus sexual violence, and greater progress toward the goal of gender equality.

July 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Gender Biases in Cyberspace

Shlomit Yanisky-Ravid & Amy Mittelman, Gender Biases in Cyberspace: A Two-Stage Model, the New Arena of Wikipedia and Other Websites, 26 Fordham IP, Media & Entertainment LJ (2016) 

Abstract

Increasingly, there has been a focus on creating democratic standards and norms in order to best facilitate open exchange of information and communication online―a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution for which social activists, intellectual property opponents, and feminist theorists have been waiting. Unfortunately, we are now realizing that this utopian dream does not exist as anticipated: the Internet is neither neutral nor open to everyone. More importantly, these websites are not egalitarian; rather, they facilitate new ways to exclude and subordinate women. This Article innovatively argues that the virtual world excludes women in two stages: first, by controlling websites and filtering out women; and second, by exposing women who survived the first stage to a hostile environment. Wikipedia, as well as other cyber-space environments, demonstrates the execution of the model, which results in the exclusion of women from the virtual sphere with all the implications thereof.

July 11, 2017 in Media, Pop Culture | Permalink | Comments (0)

Monday, July 10, 2017

Criminalizing Female Laughter: The Sessions Hearing Case

Image result for Desiree Fairooz

Maggie Hennefeld, On the Criminalization of Female Laughter

On January 10 2017, Desiree Fairooz, a 61-year-old Code Pink protester, was forcibly removed and arrested for laughing at Jeff Sessions during his Attorney General confirmation hearings. Fairooz’s eruption was provoked by an extremely laughable punch line, when Republican Senator Richard Shelby stated that Sessions has an “extensive record of treating all Americans fairly under the law,” adding that this claim “is clear and well-documented.”

 

As a description of a man who was once denied a federal judgeship due to concerns about his racism, who openly advocates anti-immigrant and anti-LGBTQ policies, and who casually jokes about the Ku Klux Klan, Shelby’s utterance was patently absurd and very deserving of public mockery and voluble laughter. For her protest, Fairooz now faces up to a year in jail and $2,000 in fines.

 

Her conviction in early May elicited a viral storm of outraged responses, including headlines such as “A Woman Is on Trial for Laughing During a Congressional Hearing,” “Activist’s Giggle Leads to Conviction,” and a piece authored by the Medusan disruptor herself, “I’m Facing Jail Time After Laughing at Jeff Sessions. I Regret Nothing.

 

How unprecedented is Fairooz’s indictment? Women are held in contempt of court all the time for laughing out loud at devastatingly inappropriate moments. In February 2017, a woman was sentenced to 93 days in jail for her voluble mirth at the gruesome details of a man’s death in a DUI accident, while the family members of the deceased were present in the courtroom. Laughing in disrespect of the dead has a legacy of retributive punishment: in 1862, a Confederate woman named Eugenia was arrested for laughing at the funeral procession of a Union soldier (she had also encouraged her children to spit on the uniforms of Union officers).

 

However, it was not the fact of Fairooz’s laughter that caused her arrest, so much as what it signified: to “impede and disrupt then Senator Sessions’ confirmation hearing by drawing attention away from the hearing itself and directing it instead toward the Defendants’ perception of the nominee’s racist views, policies, and voting record” (from a government motion filed against her). Her laughter evokes the anti-patriarchal outbursts in the classic feminist film, A Question of Silence (Marleen Gorris, 1982), in which three unruly women laugh exuberantly at their own murder trial, in response to the prosecution’s outlandish pretense that they live in a post-sexist society. (The women are on trial for killing a male boutique owner, whom they beat to death in an unpremeditated outburst of joyful fury due to his harassment of a female shoplifter.) In the film’s courtroom, this “question of silence” refers to the tyranny of lacking a voice against routine injustice, which then can only be articulated through defiant and disruptive laughter. ***

 

If we’ve come a long way with our laughter since the English Civil Wars of the 1640s—learning to laugh in empathy, in playful recognition of absurdity, or out of sheer muscular relief—this message has since been lost on Donald Trump and Jeff Sessions. Catharine A. MacKinnon, Professor of Law at the University of Michigan and long-term visitor at Harvard Law School, has offered comment:

Criminally charging and potentially sentencing Ms. Fairooz for a brief spontaneous injection of political laughter as ‘disruptive’ when it, at least, so clearly was not looks like an overly thin-skinned reflex reaction to a woman appropriating what is usually a masculine form of power: ridicule, public humiliation by humor, in this case political speech against racism. 

 

Tracy Thomas, Seiberling Chair of Constitutional Law at the University of Akron, suggests that being laughed at by a woman is perhaps “one of [men’s] greatest fears.” In a correspondence with her, Thomas referenced a survey from Nancy Dowd’s The Man in Question, “where women report their greatest fear is rape and murder, while men’s greatest fear is being laughed at.” Or, as the Canadian novelist Margaret Atwood has put it, “Men are afraid that women will laugh at them. Women are afraid that men will kill them.” To this point, the journalist and American humorist, Helen Rowland, wrote in 1922 that “a man will forgive his wife for committing robbery, or murder, or breaking the Ten Commandments, yet threaten to leave her for laughing at the wrong moment”—should she be so fortunate that he doesn’t beat or kill her. In 1893, a New Haven court heard the divorce petition of Emma B. Phelps, who described the time “she laughed at her husband…and he ‘knocked her senseless’” (another time he threatened to kill her with a carving knife because she would not give him her watch).

July 10, 2017 in Courts, Gender | Permalink | Comments (0)

Thursday, July 6, 2017

New Study Provides Insights of Sexual Harassment of Graduate Students by University Faculty

Nancy Chi Cantalupo & William C. Kidder have posted A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, Utah Law Review (forthcoming)

One in ten female graduate students at major research universities reports being sexually harassed by a faculty member. Many universities face intense media scrutiny regarding faculty sexual harassment, and whether women are being harassed out of academic careers in scientific disciplines is currently a subject of significant public debate. However, to date, scholarship in this area is significantly constrained. Surveys cannot entirely mesh with the legal/policy definition of sexual harassment. Policymakers want to know about serial (repeat) sexual harassers, where answers provided by student surveys are least satisfactory. Strict confidentiality restrictions block most campus sexual harassment cases from public view. 

Taking advantage of recent advances in data availability, this article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. It also situates this review within the available and most relevant social science literature on sexual harassment and violence in education and the workplace, as well as on methodological limitations of litigated case data, which tend to contain a higher concentration of high-severity cases compared to a random sample.

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

July 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Abandoning Race and Gender Based Calculations for Compensatory Damages

Ellen Bublick, How Much is Your Injury Worth? First Tell me Your Race and Gender, JOTWELL, reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.

When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs.  As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)

 

Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)

 

The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010),  and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”

July 6, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Guest Blog: MothersEsquire: A Professional Community for Lawyer Moms

We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

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MothersEsquire:  An Introduction to a Supportive Community

As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession.  I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained.  I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups.  The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life.  The same outsider phenomenon can also describe the role of students attending these events.  I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.  

This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession:  MothersEsquire.  This year has been an important one for the organization of women’s groups.  From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year.  The MothersEsquire organization stands out in a couple of key ways. 

First, it is not limited to geographical boundaries or bar licensure borders.  For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside.  This is an obstacle, or at least a deterrent, to my participation in local bar events.   The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner. 

Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc.  As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities.  For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time.  The organization is also working on breastfeeding accommodations.  It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.

Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations.  Certainly, not all women lawyers are mothers or identify as mothers.  Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession.   For those that do, however, this group provides an outlet, an information source, a networking portal, and more.  Its website explains:

“We are Moms.  We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school.  We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night.   And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”

Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin.  Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so.  This group is distinctively inclusive.  It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that.  Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers. 

For more information about MothersEsquire join the Facebook group or check out its website:  I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.     

July 6, 2017 in Family, Guest Bloggers, Women lawyers, Work/life | Permalink | Comments (0)

Wednesday, July 5, 2017

Iceland Passes Law Requiring Equal Pay for Women

Iceland Law Closes Gender Gap, Pays Women as Much as Men

Now, in a major stride towards trying to close the gap in pay once and for all, the Iceland government passed a new law that requires all of their public and private companies employing above 25 people, to pay employees equally “regardless of gender, ethnicity, sexuality, or nationality,” according to a report on The Associated Press (AP) 

 

These companies will be certified by the government after they provide proof that they pay men and women, and people of all races, religions and nationalities equally, for work of equal value. There are a few other countries that have “equal-salary certificate policies,” but the AP report points out that Iceland is the first such country to mandate this for both private and public firms.
 
In Iceland, the current gender pay gap is somewhere between 14 to 18% , according to the World Economic Forum. With this new legislation, Iceland hopes to close its gender pay gap by 2022. And if the legislation is cleared by their Parliament, its Equal Pay Standard will be in force by 2020.
 
In fact, in protest of this injustice, thousands of women across Iceland staged peaceful resistance by shutting shop at work 2.38pm, because the stats about the gap suggest that their pay only technically covers their work up to that time, compared to the boys.

“Equal rights are human rights,” he said. “We need to make sure that men and women enjoy equal opportunity in the workplace. It is our responsibility to take every measure to achieve that,” said Equality and Social Affairs Minister Thorsteinn Viglundsson.

Iceland has made significant progress in trying to close their gender gap, through policies such as quotas on corporate boards and government committees, and 48 percent female representation in the Icelandic Parliament.

July 5, 2017 in Equal Employment, International | Permalink | Comments (0)

Australia: Abortion and Human Rights

Ronli Sifris & Suzanne Belton, Australia: Abortion and Human Rights, 19 Health & Human Rights J. 209 (2017)

This article adopts a human rights lens to consider Australian law and practice regarding elective abortion. As such, it considers Australian laws within the context of the right to equality, right to privacy, right to health, and right to life. After setting out the human rights framework and noting the connected nature of many of the rights (and their corresponding violations), the article shifts its focus to analyzing Australian law and practice within the framework of these rights. It considers the importance of decriminalizing abortion and regulating it as a standard medical procedure. It discusses the need to remove legal and practical restrictions on access to abortion, including financial obstacles and anti-abortion protestors. Further, it comments on the importance of facilitating access; for example, by keeping accurate health data, securing continuity of health care, increasing the availability of medical abortion, and ensuring appropriate care is provided to the most marginalized and vulnerable women.

July 5, 2017 in Abortion, International | Permalink | Comments (0)

How Female and Minority Judges Have Changed (or not Changed) Over Time

Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)

Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.

July 5, 2017 in Gender, Judges | Permalink | Comments (0)

Friday, June 30, 2017

Sex is to Gender as Property is to Intellectual Property

Sonia Katyal, The Numerus Clauses of Sex, U. Chicago L. Rev. (forthcoming)

Abstract

There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.

Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.

June 30, 2017 in Gender, Theory | Permalink | Comments (0)

Thursday, June 29, 2017

Call for Papers: Feminist Judgments: Rewritten Family Law Opinions

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

DEADLINE:  FRIDAY, JULY 21, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  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, was published in 2016 by Cambridge University Press.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes.  Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same.  A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).     

Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here: 

https://goo.gl/forms/9JYv7GtR2gJMDVbY2

Applications are due no later than Friday, July 21, 2017.  The editor will notify accepted authors and commentators by Monday, July 31, 2017.

First drafts of rewritten opinions will be due on Friday, February 2, 2018.  First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at rebouche@temple.edu

June 29, 2017 in Call for Papers, Courts, Family | Permalink | Comments (0)