Friday, February 28, 2014
Anthony Infanti, Pitt Law, has a new paper uploaded on SSRN, and what he says is arresting:
Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA).
In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS’s implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with “certainty and clear, coherent tax-filing guidance.” To the contrary, I have explained that the IRS’s guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS’s guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes.
Kelly Alison Behre, WVU Law, has a paper uploaded to SSRN.
The abstract intrigued me:
In 2004, a fathers’ rights group formed in West Virginia to promote “Truth, Justice, and Equality in Family Law.” They created a media campaign including billboards and radio spots advocating for male victims of intimate partner abuse and warning about the dangers of false allegations of domestic violence, sexual assault and child abuse, even offering a $10,000 award to anyone who could prove false allegations of abuse were used against a parent in a custody case. In 2007, they released a study concluding that 76% of protection order cases were based on false allegations or were unnecessary, and warned that protection orders were often filed to gain leverage in divorce and custody cases. They coupled their research with language created by a national fathers’ rights group to propose a new law to sanction parents making false allegations of intimate partner violence during custody cases. The Governor signed the bill into law in 2011.
To anyone unfamiliar with the fathers’ right movement, this story may not cause concern, let alone outrage. But another look at the research and the law may raise red flags. In spite of its dissemination between and beyond the fathers’ rights movement, the evaluation conclusions bear little rational relationship to the findings. The research is at best misguided and confused, and at worst, a deliberate attempt to mislead the public in order to promote a political agenda. The new law is inexplicably redundant, as both the domestic relations code and criminal code already provide sanctions for parents who make false allegations of abuse. The law was essentially a solution created to prove a problem by shifting the public policy focus from protecting victims to questioning their motives and potentially silencing them.
At first glance, the modern fathers’ rights movement and law reform efforts appear progressive, as do the names and rhetoric of the “father’s rights” and “children’s rights” groups advocating for the reforms. They appear a long way removed from the activists who climbed on bridges dressed in superhero costumes or the member martyred by the movement after setting himself on fire on courthouse steps. Their use of civil rights language and appeal to formal gender equality is compelling. But a closer look reveals a social movement increasingly identifying itself as the opposition to the battered women’s movement and intimate partner violence advocates. Beneath a veneer of gender equality language and increased political savviness remains misogynistic undertones and a call to reinforce patriarchy.
Thursday, February 27, 2014
Teri McMurtry-Chubb (Mercer), guest blogs today in response to Lisa McElroy (Drexel), Are Legal Writing Professors Like Nurses? Professor McMurty-Chubb serves as a member of the Association of Legal Writing Directors (ALWD) Board of Trustees, and Chair of the Legal Writing Institute (LWI) Diversity Initiatives Committee.
In the lodestar history of African American female nurses, Black Women In White: Racial Conflict and Cooperation in the Nursing Profession, 1890-1950 (Indiana University Press, 1989), Darlene Clark Hine discusses the racism Black nurses encountered in their professionalization as nurses. Hines' work is a sweeping tome that chronicles the hurdles Black nurses faced not only in caring for members of their communities, but also from the white women who shared their profession. Although Hines' work is an historical study, history oft repeats itself. A little over a year ago, in February 2013, an African American female nurse filed a lawsuit against Hurley Medical Center in Flint, Michigan after a new father (white) gave orders to her charge nurse that he did not want any Black nurses caring for his white baby (link to news story here: ). White nurses, however, were welcome. It seems that not all nurses are created equal.
As it is in nursing, so too it is in the academy. A 2002 study in the Chronicle of Higher Education stated that 39% of all full-time professors are women. Of this percentage 8% are African American and Hispanic women. See Black Professors On The Track. Recent works chronicling the experiences of these women, such as the highly praised Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Utah State University Press, 2012), note that professors of color are isolated in university communities and lack allies in white women who wholeheartedly take up gendered battles, but shy away from those where race and gender collide in the bodies of their sisters of color. Of the 39% of women employed full-time in the academy, just over half are employed as instructors or lecturers. This necessarily means that African American and Hispanic women are represented disproportionately at the lower levels of employment status. A study published in 2003 by Deborah Jones Merritt and Barbara F. Reskin reported that 30.3% of tenure-track positions at law schools were occupied by white women as compared to 7.6% by women of color, New Directions for Women in the Legal Academy, 53 J. Legal Educ. 489 (2003), which brings us back to legal writing.
The experiences of women legal writing professors are not all the same. Women of color law professors who teach legal writing have a deeply textured, multi-layered experience in which privilege, power, and status operate differently than in the lives of white women law professors who teach legal writing. White women in the legal academy must build bridges to us, acknowledge our differences, and address how we can all advance together. If, as female law professors of color who teach legal writing, we are like Black nurses, then our white sisters in the academy must acknowledge their own race privilege as an impediment to our collective progress.
Despite the popular notion that the sky's the limit for smart, ambitious females, new research finds that many college women doubt their ability to achieve.Many are more pessimistic than young women in the past about having a significant career and a personal life. Just as Facebook COO Sheryl Sandberg is telling women to "lean in" to their careers, they are wondering if this is possible.A recent study of undergraduates at the Wharton School of Business at the University of Pennsylvania finds that "young women's hopes for and expectations of equitable sharing on the work and home fronts are on the wane." Management professor Stewart D. Friedman reports that "young women today believe that something has to give, even if that means adopting more traditional roles at points along life's journey."
Wednesday, February 26, 2014
From Arizona, Rev. Elizabeth Rambikur of First United Methodist Church Tucson responds to SB 1062 and HB 2153--the law that permits businesses to discriminate against gay patrons:
Our call as human beings, made in the image of God, is “You shall love the Lord your God with all your heart, and with all your soul, and with all your might” (Deuteronomy 6:5) and Jesus reminds those who would strive for the title of Christian that the second commandment is, “you shall love your neighbor as yourself” (Matthew 22:38). The teachings of Jesus remind us that there is no law greater than the love of God and the love of ones neighbor as the self. It is here that all law — whether perceived as given by God or written by human beings - must begin.
In the most basic way Arizona SB 1062 and HB 2153 prohibit the full practice of Christianity because the fundamental teaching of love by Jesus Christ is violated when we practice discrimination against others. The United Methodist Church has shaped its discipline and faith practices through the crucible of the human rights movements of the last 231 years, as we have moved beyond slavery, beyond discrimination against women, past discrimination based on race, and beyond the denial of access to differently abled people. There is no question that the practice of discrimination is a violation of our faith as Christians....
And Michael Sean Winters wrote an editorial in the National Catholic Reporter:
...those who support this Arizona law must be challenged to explain why the “Selma analogy” is not apt....[M[any people in this vast country have sincerely held religious beliefs that are destructive of what I like to call the commonhealth of the nation, specifically the moral health of the nation. Bishops, of all people, should be aware of this.
How much stronger the Arizona bishops statement would be if they had coupled their support for the law with a clear statement that no Catholic businessman or businesswoman should claim warrant in the Gospels or the teachings of the Church for discriminating against gays. Instead, once again, we have aligned our preaching of the Gospel with a political agenda that is championed by hateful bigots.
And the essay concludes with what I think is a great rhetorical question:
And, then we wonder why young people want nothing to do with us? When bishops gather to bemoan the secularization of our society, they should start by looking in the mirror. If the face of Christianity is an angry hotelier who wants to place a “straights only” sign outside his inn, then we have no one but ourselves to blame for the decline of Christian faith.
Prof. Susan Apel of Vermont Law School, who has guest blogged on this site, has penned a poignant narrative. Part of it reads:
I have been waiting some time to comment on my choice to be childless. Threats of the draft and leaving for Canada are relics of the Vietnam War era of over 40 years ago. That makes me a woman of a certain age and on the cusp of retirement.
It seems appropriate to comment on my life choices at this point because I have lived with those choices for some decades. It situates me, with some authority that only years can bestow, to weigh in on the question of choosing, or not choosing, motherhood.
The rest can be read here.
Tuesday, February 25, 2014
The Seventh Circuit decided Hayden v. Greensburg Community Schools, ___F.3d___ (7th Cir. Feb. 24, 2014).
On behalf of their son, [parents] challenge a policy which requires boys playing interscholastic basketball at the public high school in Greensburg, Indiana, to keep their hair cut short. The Haydens make two principal arguments: (1) the hair-length policy arbitrarily intrudes upon their son's liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and (2) because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination. The district court rejected both claims and granted judgment to the Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 2013 WL 1001947 (S.D.Ind. Mar. 13, 2013). We reverse in part. Because the hair-length policy on its face treats boys and girls differently, and because the record tells us nothing about any comparable grooming standards applied to girls playing basketball, the evidence entitles the Haydens to judgment on their sex discrimination claims.
It's Hard to Call Myself a Male Feminist at University. I Blame Lad Culture. The perspective of a male student.
I think the main reason so few male students identify as feminists is because of the spreading virus of lad culture at university. Lad culture is the idea that overt acts of masculinity prove some form of superiority over others.
The reality is that lad culture is a prominent part of university life. Club nights often encourage the sexualisation and degradation of women through dress code, and lad values tell male students it's important to get drunk, pull women and act like a noteworthy lad.
Lad culture means that male students are less likely to call themselves feminists for fear of embarrassing themselves, even if they believe in gender equality.
It's hardly laddish to try and deconstruct a patriarchal system. Lad culture at university makes many potential male feminists feel demeaned; it can be hard to fit in if you don't keep up with "the lads".
Finding more help in "What Works for Women at Work" than in "Lean In."
We’re closing in on the anniversary of the publication of “Lean In: Women, Work, and the Will to Lead,” the ubiquitous women-at-work manifesto penned by Facebook COO Sheryl Sandberg, which has sold 1.5 million copies and will also become a movie. And while “Lean In” offers important feedback to women in pithy and useful phrases like “Don’t Leave Before You Leave,” the book has a bit of a rarefied air to it. It’s hard to imagine a single working-class mother, for instance, believing she has the kind of clout and privilege that Sandberg, who is worth more than $1 billion, enjoys
When President Obama signed the Violence Against Women Reauthorization Act (VAWA) in 2013, he enacted legislation that allows Native American tribes to use their own courts to prosecute non-Natives accused of committing dating and domestic violence against Natives on tribal land. The jurisdictional changes take effect in March 2015 but a pilot program, coordinated by the Department of Justice (DOJ), has authorized three tribes to exercise the prosecutions starting this week.
Tribal authority over non-Natives is not new but was completely halted in 1978. Five years previously, a non-Native named Mark David Oliphant was arrested for assaulting a Suquamish tribal policeman on the Port Madison Indian Reservation in Washington state. Oliphant argued that the tribe didn’t hold criminal jurisdiction in the matter. The Suquamish tribe held that its inherent tribal sovereignty allowed it to maintain law and order on its land, up to and including arresting and prosecuting non-Native suspects.
The Supreme Court sided with Oliphant, however, gutting tribal jurisdiction over non-Natives for crimes committed on tribal land. It did so not just for the Suquamish, but for all federally recognized tribes. And because local and state agencies don’t hold criminal jurisdiction on tribal lands, all non-Natives suspected of committing crimes on those lands for the last 40 years or so have been held accountable only by federal prosecutors. U.S. Attorneys are few in comparison to the number of cases that pile up so only the most serious of charges are ever investigated and prosecuted.
The Supreme Court’s decision in Oliphant v. Suquamish Tribe, however, did rule that Congress could authorize criminal jurisdiction for Native tribes. It would take Congress 35 years to pass such legislation, through VAWA. By 2015 all 566 federally recognized Native tribes and nations will be eligible to exercise criminal jurisdiction over non-Natives for dating and domestic violence.
Sunday, February 23, 2014
1/ For every woman who is tired of acting weak when she knows she is strong, there is a man who is tired of appearing strong when he feels vulnerable.
2/ For every woman who is tired of being called “an emotional female”, there is a man who is denied the right to weep and to be gentle.
3/ For every woman who is tired of being a sex object, there is a man who must worry about his potency.
4/ For every woman who is called unfeminine when she competes, there is a man for whom competition is the only way to prove his masculinity.
5/ For every woman who takes a step toward her own liberation, there is a man who finds the way to freedom has been made a little easier.
I've rehearsed some of these musings as well.
Religionists deserve to practice their faiths, and the Constitution protects their right to do so. If there ever comes a day when state authorities will prohibit Christian fundamentalists from congregating in their churches and their homes for worship service, I will proudly be the first liberal to fight such encroachment against their religious rights.
On the other hand, no religious group has the constitutional authority to enact hate against another group. The Arizona bill permits private businesses to refuse services to gay consumers. These business owners, I am sure, are good people, people who are responsible citizens in their neighborhoods.
And that's what worries me. The thugs and the bullies and homophobic murderers are partly inspired by the legitimized hatred from the good citizens, from the store owners, from the legislators, and from the governors.
Senator John McCain has excoriated Russia for its homophobia; I hope that good man also shows the same courage in his own home state.
Arizona..... don't sell out your humanity.
Saturday, February 22, 2014
From Slate, The Accidental Feminist:
Fifty years ago this week, on Feb. 8, 1964, Rep. Howard W. Smith, a segregationist Democrat from Virginia, stood on the floor of the House to propose an amendment to the Civil Rights Act. Title VII of the bill, which the chamber had been debating for a week, was written to ban employment discrimination because of race, color, religion, and national origin. To the list, Smith added one more category: sex.
The House, which counted just a handful of female members, erupted in laughter. “I am serious,” Smith drawled. “It is indisputable fact that all throughout industry women are discriminated against.”
In that moment Smith helped catalyze the modern feminist movement—even though, or perhaps because, his motives were hardly feminist.
Jennifer Sperling (Villanova) has posted, Reframing the Work-Family Conflict Debate by Rejecting the Ideal Parent Norm, 22 Amer. U.J. Gender, Soc. Pol'y & Law (2013)
Feminist legal theory has exhaustively documented the ways in which being a female parent creates a very different set of expectations, opportunities, and responsibilities than being a male parent, and has demonstrated how these differences often translate into, and are experienced as, substantive inequalities for women across a range of race, class, educational and working backgrounds. This article exposes how an idealized conception of what parenting requires, which I call the “Ideal Parent Norm,” is often taken for granted in these discussions, and has led legal feminist theorists to place undue emphasis on workplace structure or the distribution of labor within the home as the primary source of inequality for female parents.
While quick to identify how an “ideal worker norm” contributes to the difficulty of addressing women’s equality in the workplace and at home, somehow the “Ideal Parent Norm” -- which, I argue, contributes equally, if not more, to the same problem -- has escaped notice. This leaves uncontested the huge emotional, economic, social, psychological and physical burden that is currently conceived of as the normative expectation for modern caretakers, and mothers in particular, who are routinely cast as the ideal parent. By identifying this “Ideal Parent Norm,” and examining parenting philosophies in historical context, I submit that the requirements of parenting are mutable and negotiable, and should be recognized and critiqued as such by feminist legal theorists engaged with the challenges affecting families in the “Work-Life” balance debate.
The U.S. Department of Justice says it has uncovered "substantial evidence" that sexism in a Montana county attorney's office has led to prosecutors dropping rape cases and belittling victims.
In a 20-page letter sent to Missoula County Atty. Fred Van Valkenburg, federal attorneys said rape victims had been "treated with disrespect, not informed of the status of their case, and re-victimized by the process."
Friday, February 21, 2014
From the Guardian UK:
A woman in Saudi Arabia has been appointed editor-in-chief of a national newspaper, the first female journalist to be promoted to such a public position in a country with an appalling record on women's rights.
Somayya Jabarti, a former deputy editor, has become the new boss at the helm of the Jeddah-based English daily Saudi Gazette, the paper's departing head has announced.
The Good Men Project has another earnest, but rather boring, post about what it means to be a gentleman. The adjectives marshaled are mundane and unhelpful even as they endeavor to wear their virtues on their respective sleeves.
A quote from the Spanish writer Antonio de Guevara begins the post:
“A gentleman is to be measured in his speech, generosity in giving, sober in eating, honesty in living, kindness in forgiving, and courageousness in fighting.”
Measured in speech? Generosity in giving? Sober in eating? Honesty in living? Kindness? These seem to be virtues which we commend in women as well, right?
The only descriptor that has been traditionally ascribed to men has been the last one: courageousness in fighting. It is, alas, a most vexing and paradoxical virtue.
Thursday, February 20, 2014
From Nancy Leong (Denver), Discursive Disparities, Fla. Int'l L. Rev. (2013)
Both within and beyond the legal profession, men write more than women. Men publish more books; the books men write are reviewed more often in the most widely read forums; men write more of the reviews; men dominate the opinion pages of major news outlets; men write more of the articles in the most widely read magazines; and more men blog on the most widely read websites. Even on Wikipedia — widely hailed as a cyber-utopia open to anyone — more than 85% of entries are primarily authored by men. This is true also in the legal realm. Men write more judicial opinions. Men author more legislation. Men write more briefs — both for parties and as amici — before the Supreme Court. Men write more law review articles, and their articles are published in more prominent journals. Indeed, the disparity in legal scholarship begins in law school, where men publish a disproportionate percentage of student notes.
This Essay begins by suggesting several explanations for the gender disparity in the amount of discursive space men and women occupy. It then examines the consequences of that disparity. It first emphasizes the harms to women that the disparity causes, with an emphasis on the legal profession. Such harms include economic loss, damage to career, and diminished public influence. These harms are serious in themselves. Perhaps more importantly, however, the discursive gender disparity means that men’s words dominate public discourse, and to control discourse is to control reality. When men’s words, thoughts, ideas, and arguments constitute the overriding public narrative, the result is that men determine the texture of daily life on matters both trivial and grave. The result of the discursive disparity is that male discourse exercises a disproportionate influence on our collective consciousness.
From the Washington Post: Large Law Firms are Failing Women Lawyers:
For a profession whose guiding tenets include equity in treatment and the elimination of bias, law is failing its women.
As an adviser to corporate women’s networks, I am hard pressed to name an industry that simultaneously has more progressive policies and yet more of an old-school culture than the large law firm environment does. You can draft as many pro-employee policies as you like, but unless women are co-creators in the firm’s strategy, they will not shape the culture. Women must hold positions―I’d argue half of them―on the influential, high-ranking committees that make everyday decisions.