Friday, June 2, 2017
From Chapter 6, "Our Girls," in Tracy A. Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016)
Toward the end of Elizabeth Cady Stanton's long career advancing women's rights and legal reform, she renewed her efforts to deconstruct the foundations of women's continued subordination. Why did many women themselves not endorse reform and equality? Why did so many women say "I have all the rights I want." Stanton located the source of social subordination in the teachings of the church, which women heard every week from the pulpit and every day in the papers. She dedicated her last decade of life to challenging the gendered interpretations of the Bible and offering alternative feminist understandings of religious doctrine.
As part of that, Stanton drew on new emerging ideas of anthropology of matriarchal societies which she used to show that female power and women-ruled societies were viable alternative ways to structure power. Almost a century later, at the 1977 National Women's Conference in Houston, Gloria Steinem embraced Stanton’s theory of the matriarchate, using it similarly to emphasize the viability of an alternative system of female power.
In the early 1890s, Elizabeth Cady Stanton added to her historical argument of the perversions of the church, by offering an alternative to this ordained gender structure of “the matriarchate.” She incorporated this theory of maternal power into addresses to national conventions, writings on Wyoming’s new grant of women’s suffrage, and in other essays on women’s rights.[i] Stanton drew on emerging anthropological theories of matriarchal societies, prehistoric cultures like the Amazons, Iroquois, and others in which women ruled as the creative force wielding power and peaceful governance. The theory of matriarchy was a popular idea that emerged in the late nineteenth century, originating with Swiss lawyer and jurist Johann Jakob Bachofen and advanced by Marxist thinker Friedrich Engels and others.[ii] The theory of a matriarchal prehistory held that earlier societies existed in which women controlled government and property, created the first families, developed agriculture, and were worshipped as goddesses because of their reproductive and caregiving abilities. A “patriarchy cataclysm” disrupted the peace, harmony, and ecological balance of these matriarchal systems with intervening wars and weapon development, after which patriarchy evolved as the superior social structure and provided survival and advancement.[iii]
Stanton wrote from England in 1890 that she had “been reading the whole year to glean these facts” about the matriarchate by studying British scholars.[iv] She was likely also influenced by her colleague, Matilda Joslyn Gage, who was developing similar theories about religion on matriarchy later published in her magnum opus, Woman, Church, and State.[v] Stanton, like Gage, appropriated the anthropological matriarchal theories of the nineteenth century for her own feminist purposes. For these theories had been developed to justify the converse, the superiority of patriarchy. They held that society had evolved from the unsophisticated, chaotic matriarchal systems into ordered and aggressive systems grounded in patriarchy. Stanton, interpreting the theory through her feminist lens, concluded that the matriarchate provided historical evidence of women’s ability and superior powers and the negative influence of the destructive forces of male aggression and patriarchy. “Thus, instead of being a ‘disability,’ as unthinking writers are please to call it, maternity has been the all-inspiring motive or force that impelled the first steps” toward “the birth of civilization.” Matriarchal theory was attractive because it freed women’s rights advocates from the “charge of their critics that male dominance was biological and eternal, and therefore inevitable and unchangeable.” Stanton used this evidence not to advocate a return to female supremacy, but rather as evidence of women’s capabilities sufficient to support an “Amphiarchate,” a shared power between women and men in the “as yet untried experiment of complete equality.[vi] Second-wave feminists of the late twentieth century resurrected these ideas of the matriarchate bolstered by archeological finds of prehistoric fertility goddesses and a strong current of feminism seeking support for alternative gender structures of power.[vii]
[i] “Matriarchate,” 227; “Her Political Status,” Evening Star, Feb. 25, 1891; “The Matriarchate Mother-Age,” Woman’s Tribune, Feb. 28, 1891; “The Matriarchate or Mother-Age,” National Bulletin, Feb. 1892; ECS, “Wyoming,” Woman’s Tribune, July 5, 1890; ECS, “Wyoming Admitted as a State into Union,” 134 Westminster Review 280 (Sept. 1890); “Antagonism”; Mrs. Stanton on Our Foremothers, Woman’s Journal, Dec. 29, 1894; ECS and SBA, “Women’s Rights,” in Johnson’s Universal Cyclopedia v. VIII (Charles Kendall Adams, ed. 1895).
[ii] Bachofen, Mother Right: A Study of the Religious and Juridical Nature of Gynecocracy in the Ancient World (1861); Friedrich Engels, Origin of the Family, Private Property, and the State (1884).
[iii] ECS, “Karl Pearson on the Matriarchate,” Women’s Penny Paper, Nov. 8, 1890; ECS, “The Matriarchate, or Mother-Age,” National Council of Women, Feb. 22-25, 1891; ECS, “The Antagonism of Sex,” National Bulletin, June 1893; ECS, “Then Woman Said: ‘I Will,’” Dec. 23, 1894; ECS, “Moral Power, or Brute Force?” Boston Investigator, Feb. 25, 1899; ECS, “The Antagonism of Sex,” Boston Investigator, Mar. 16, 1901; Woman’s Bible, 25; Cynthia Eller, Gentlemen and Amazons: The Myth of Prehistory, 1861-1900 6-7 (2011); Cynthia Eller, The Myth of Matriarchal Prehistory 3-15 (2000).
[iv] ECS to Clara Colby, Feb. 21, 1891; ECS, “Reminiscences,” Woman’s Tribune, Mar. 19, 1892.
[v] Fitzgerald, xxi; Kern, 67; HWS, v.I, 753; Matilda Joslyn Gage, “The Matriarchate,” 2 The Open Court 1480-81, Jan. 5, 1889. Gage’s son-in-law, Frank Baum, actualized Gage’s theory of matriarchal power in his “The Wizard of Oz” book series.
[vi] “Matriarchate,” 227; “Antagonism”; Woman’s Bible, 25; Eller, Amazons, 123, 130-32.
[vii] Gloria Steinem, Wonder Woman, in Eller, Myth, 1-2; Merlin Stone, When God Was a Woman (1976); Riane Eisler, The Chalice and the Blade (1987).
This weekend brings the release of the movie Wonder Woman. Feminists are taking the occasion to celebrate girl power.
Wonder Woman has been an icon of feminism since (at least) her adoption by Ms. magazine on its first cover in 1972.
The origins of Wonder Woman the comic-book hero created in 1941 trace to the feminist ideas of her creator, William Moulton Marston, a Harvard lawyer, professor, scientist and creator of the lie detector test (hence WW’s magic lasso of truth). The fascinating story of the origins of the Wonder Woman superhero character as created by Marston and the two women he lived with is told in Jill Lepore’s The Secret History of Wonder Woman (2014). Her account traces how Marston, and his wife Sadie Holloway and live-in paramour Olive Byrne (niece of Margaret Sanger), created WW from the Amazonia legend and feminist ideals of equality and birth control, even as their own polyamorous relationship challenged the women's own individual equality and power.
From Lepore (xiii-xiv):
Women Woman isn’t only an Amazonian princess with badass boots. She’s the missing link in a chain of events that begins with the woman suffrage campaigns of the 1910s and ends with the troubled place of feminism fully a century later. Feminism made Wonder Woman. And then Wonder Woman remade feminism, which hasn’t been altogether good for feminism.
But Wonder Woman is no ordinary comic-book superhero. The secrets this book reveals and the story it tells place Wonder Woman not only within the history of comic books and superheroes but also at the very center of the histories of science, law, and politics. . . . WW’s debt is to the fictional feminist utopia and to the struggle for women’s rights. Her origins lie in William Moulton Marston’s past, and in the lives of the women he loved; they created WW too.
As Lepore notes, the early suffragists used the Amazonian legends of powerful women to support their cause and provide anthropological evidence of a history of women’s rule. In particular, leading 19th century feminist Elizabeth Cady Stanton used the legend of women’s power or the “Matriarchate” to support her demands for women’s power. I traced this line of thought and advocacy in my recent book. An excerpt is here..
Friday, April 14, 2017
Jill Filipovic, Two Books Explore the Furor Over Rape on Campus
According to our last president, several sitting senators, feminist activists and female college students all over the country, sexual violence on campus is one of the most pressing issues facing young American women. Statistics promulgated by the Obama White House declare that an estimated one in five college women will be sexually assaulted. To combat this scourge, universities have hired new administrators, mandated anti-rape training sessions at freshman orientation and sped up the disciplinary process for accused assailants. Prominent feminists and lawyers say many schools are still doing too little to protect female students and far too much to protect male ones.
But according to the Northwestern professor and cultural critic Laura Kipnis, the opposite is true: It’s now men who are the victims of a nationwide sexual panic, one seated more in traditional views of women as vulnerable and sexually passive than in a feminism that recognizes young women to be self-sufficient independent actors (who are also human enough to make, and learn from, stupid sexual blunders).
Kipnis’s “Unwanted Advances: Sexual Paranoia Comes to Campus” focuses on one professor whose career was ruined by accusations of sexual assault and the ensuing Title IX investigation. Kipnis is drawn into this man’s professional drama after she too was on the receiving end of two Title IX complaints stemming from an essay she wrote deploring her university’s policy of frowning on relationships between teachers and students. Her book is a look at the secretive and largely unaccountable processes by which campus sexual assault allegations are investigated and adjudicated, using a handful of real incidents to illustrate her broader argument that complex interpersonal relationships and dumb drunken mistakes are now the quasilegal purview of well-paid administrators more interested in protecting a university’s reputation — even if it means ruining a few men’s lives — than seeking either truth or justice. The high-volume conversation about campus sexual assault, she says, is a kind of black-and-white gender traditionalism dressed up in feminist clothes, obscuring ambiguities and power plays inherent to human sexual desire, and instead casting adult women as innocent victims (or victims-in-waiting) and men as either rapists or potential predators.
And yet I loved reading it. Kipnis’s book is maddening; it’s also funny, incisive and often convincing. ***
If only the same could be said about “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by KC Johnson, a professor at the CUNY Graduate Center, and Stuart Taylor Jr., a contributing editor at National Journal. An in-depth look at how universities compromise due process norms in adjudicating sexual assault cases — and it is clear they do — is overdue; instead, the authors choose a handful of egregious examples to make the case that campus sexual assault isn’t all that common and that the bigger problem is innocent young men railroaded by promiscuous women who get drunk and regret their choices, or flat-out lie at the behest of conniving campus feminists. Instead of an honest analysis of the complex issues and competing values at play, the book teems with vastly overstated claims, questionable statistics and quotes massaged beyond their original meaning.
Thursday, April 13, 2017
The Organization of American Historians has announced it book awards for 2016. Those that may be of interest on gender and law include:
Darlene Clark Hine Award for the best book in African American women’s and gender history.
LaShawn D. Harris, Michigan State University, Sex Workers, Psychics, and Number Runners: Black Women in New York City's Underground Economy (University of Illinois Press).
Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.
Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press).
David Montgomery Award for the best book on a topic in American labor and working-class history, with cosponsorship by the Labor and Working-Class History Association (LAWCHA).
Ryan Patrick Murphy, Earlham College, Deregulating Desire: Flight Attendant Activism, Family Politics, and Workplace Justice (Temple University Press).
“Making feminism a universal pursuit might look like a good thing,” author Jessa Crispin writes, “but in truth it progresses, and I think accelerates, a process that has been detrimental to the feminist movement.”
Crispin has written a polemic titled Why I am Not a Feminist, in which she laments the banality of contemporary feminism. Her thesis is simple enough: At some point, feminism lost its political moorings; it became vapid and toothless in its quest for universality. Feminism became a catch-all term for self-empowerment, for individual achievement.
Feminists, she believes, forsook their values for the sake of assimilation, which is another way of saying they were co-opted by the system they once rejected.
Thursday, March 30, 2017
Linda Fenitmen, Blaming Mothers: American Law and the Risks to Children's Health (2017)
In Blaming Mothers, Professor Fentiman explores how mothers became legal targets. She explains the psychological processes we use to confront tragic events and the unconscious race, class, and gender biases that affect our perceptions and influence the decisions of prosecutors, judges, and jurors. Fentiman examines legal actions taken against pregnant women in the name of “fetal protection” including court ordered C-sections and maintaining brain-dead pregnant women on life support to gestate a fetus, as well as charges brought against mothers who fail to protect their children from an abusive male partner. She considers the claims of physicians and policymakers that refusing to breastfeed is risky to children’s health. And she explores the legal treatment of lead-poisoned children, in which landlords and lead paint manufacturers are not held responsible for exposing children to high levels of lead, while mothers are blamed for their children’s injuries.Blaming Mothers is a powerful call to reexamine who - and what - we consider risky to children’s health. Fentiman offers an important framework for evaluating childhood risk that, rather than scapegoating mothers, provides concrete solutions that promote the health of all of America’s children.
Tuesday, March 28, 2017
Kim Rubenstein & Katharine G. Young, eds. The Public Law of Gender: From the Local to the Global (Cambridge Univ. Press 2016)
With the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, it is timely to document the raft of legal reform and to critically analyse its effectiveness. In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame. Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.
The Table of Contents is here.
Friday, March 24, 2017
Geoffrey Stone, Sex & the Constitution (2017)
From the publisher:
Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.
Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.
The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.
The twentieth century gradually saw the emergence of bitter divisions over issues of sexual “morality” and sexual freedom. Fiercely determined organizations and individuals on both the right and the left wrestled in the domains of politics, religion, public opinion, and the courts to win over the soul of the nation. With its stirring portrayals of Supreme Court justices, Sex and the Constitution reads like a dramatic gazette of the critical cases they decided, ranging from Griswold v. Connecticut (contraception), to Roe v. Wade (abortion), to Obergefell v. Hodges (gay marriage), with Stone providing vivid historical context to the decisions that have come to define who we are as a nation.
Also of related interest might be Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford 2012).
Tuesday, March 21, 2017
Carol Sanger, Why, What, and Now: Writing on Abortion
I’ve just written a book called About Abortion: Terminating Pregnancy in 21st Century America. For years I hadn’t wanted to work on the issue of abortion because from an advocacy standpoint post-Casey v. Planned Parenthood, it meant being in a defensive posture, responding to whatever state legislatures had dished out. From a professorial perspective, abortion is most often taught in Con Law, usually in the sequence of privacy cases. This makes for interesting doctrinal lessons, but locating Roe v. Wade chronologically between Griswold v. Connecticut and Bowers v. Hardwick fails to capture abortion as a distinctively woman’s experience – and a highly regulated one at that.***
Nonetheless, my project was on, and I began with the question: Why, as we creep ever closer to the half-century mark of Roe v. Wade, is abortion still regarded as so unsettled, perhaps not illegal but certainly criminal-like? What makes this quasi-criminal status possible? I wanted to present the case that to the extent women feel guilty, ashamed, or reticent to speak about an abortion at the level of personal experience, they might be heartened to know that there is an entire structure of American law and culture aimed at bringing about just that result. Regulations that make abortion feel like a criminal act abound: mandatory ultrasounds and waiting periods; legislatively drafted statements that physicians must read to their patients; adoption brochures, and disclosure about paternal financial obligations. Each of these is intended to bring home to women that before they terminate an unwanted pregnancy they should think again, look harder, and not be so selfish.
Thursday, March 16, 2017
In a recent blog I wrote for NYU Press, I ruminated about my work in "women's" legal history, and my reluctant embrace of "women's history month." See Tracy Thomas, The Legal History of Elizabeth Cady Stanton, From the Square.
More aspirationally, my goal was that the book [Elizabeth Cady Stanton & the Feminist Foundations of Family Law] might help to mainstream women’s history. Women’s history has been confined to a niche area of study, a segregated “other” type of law and history that is deemed ancillary—and subordinate and irrelevant to, the dominant understanding. Even beginning in grade school, when I thrilled to read the girls’ biographies of famous women like Maria Mitchell and Elizabeth Blackwell, the girls’ books covered in burnt orange were segregated from the boys’ books bound in olive green and shelved separately in the school library. Long before the debate over pink and blue toy aisles in Target, the world of knowledge for me had been demarcated by sex.
That stark image of women’s historical segregation has stayed with me, and expanded as I studied women’s fiction in colleges and now women’s history in law. Yet the more one read’s women’s legal history, the more it is clear that women’s experience was not in fact this segregated or hidden from the popular understanding. For example, Stanton’s work was done in the New York state legislature, the leading national reform organizations, the leading national newspapers out of New York, and in decades of national lecture tours. This history was not hidden under a bush or in private diaries in an upstairs attic. It was public, known, with a clear record trail – and forgotten. Of course those in power are the ones to create history in the topics they chose to write about, remember, and revere.
We have a women’s history month to help us make sure we give due attention to the missing pieces. To pause in the dominant patriarchal view of history and law and find there are many other missing pieces that remain to be told and analyzed; narratives that significantly alter our accepted understanding of law and history. It remains jarring, however, that women’s history is considered important only 1/12th of the year. While I resist that marginalization, I resist even more the absence of women’s history in the discussion. Thus I join in the celebration of women’s history month. In my own work, the goal for what I teach and write is to mainstream women’s history so that it is no longer merely segregated into one month, but integrated as the default norm.
Tuesday, March 7, 2017
Gillian Thomas, NYT, "Four Days That Changed the World": Unintended Consequences of a Woman's Rights Conference, reviewing:
Marjorie Spruill, Divided We Stand: The Battle Over Women's Rights and Family Values
To answer these riddles requires understanding how we got here, and Marjorie J. Spruill’s “Divided We Stand” offers a detailed if sometimes dense primer. Spruill, a professor of women’s, Southern and modern American history at the University of South Carolina, convincingly traces today’s schisms to events surrounding the National Women’s Conference, a four-day gathering in Houston in November 1977. At the time, Ms. magazine called the event — a federally funded initiative to identify a national women’s rights agenda — “Four Days That Changed the World.” So why is it that today, as Gloria Steinem recently observed, the conference “may take the prize as the most important event nobody knows about”?
In Spruill’s telling, the Houston conference was world-changing, but not entirely for the reasons the organizers had hoped. The event drew an estimated 20,000 activists, celebrities and other luminaries for a raucous political-convention-cum-consciousness-raising session. The delegates enacted 26 policy resolutions calling not just for ratification of the Equal Rights Amendment (then just three states shy of the 38 needed) but a wide range of measures including accessible child care, elimination of discriminatory insurance and credit practices, reform of divorce and rape laws, federal funding for abortion and — most controversially — civil rights for lesbians. Those “planks” later were bundled as a National Plan of Action and presented to President Jimmy Carter, amid much fanfare, in a report entitled “The Spirit of Houston.”
The conference had an unintended, equally revolutionary consequence, though: the unleashing of a women-led “family values” coalition that cast feminism not just as erroneous policy but as moral transgression. Led by Phyllis Schlafly, a small but savvy coalition of foot soldiers mobilized against the conference’s aims. These activists found common cause in their deep religiosity and opposition to feminism’s perceived diminishment of “real” womanhood. And although their leadership denied it, the group also had ties to white supremacists. “Divided We Stand” argues that the potency of these advocates and their successors reshaped not just the nation’s gender politics, but the politics of the Democratic and Republican Parties as well.
Friday, March 3, 2017
Tracy Thomas was watching a Ken Burns documentary about Susan B. Anthony [& Elizabeth Cady Stanton] one night about 12 years ago when she heard him mention Elizabeth Cady Stanton in passing.
Thomas, director of the Center for Constitutional Law at the University of Akron, wanted to learn more about Stanton, a 19th century abolitionist.
“She was instrumental in making changes to divorce and domestic violence laws, but I wasn’t finding much online,” said Thomas. “I just started reading Stanton’s papers because I teach family law. The more I read I thought, `Someone needs to know about this.’ “
While Stanton’s contemporary, Susan B. Anthony, became focused just on women’s right to vote, Stanton became a social activist fighting for women’s issues as a whole. Her causes included parental and custody rights, property rights, employment and income rights, divorce and birth control.
“She was very much a holistic thinker – state, church and public,” Thomas said. “As the suffrage movement got more conservative, Stanton kept going. I used to call her the Oprah of Women’s Rights. Everyone knew her then. But people don’t really know her today.”
Thomas is hoping her new book, “Elizabeth Cady Stanton and the Feminist Foundation of Family Law” will change that.
The book explores Stanton’s intellectual and personal contributions to family law. Thomas argues that Stanton’s positions on divorce, working mothers, domestic violence, childcare and other topics were extremely progressive for her time.
“Stanton had seven children,” Thomas said. “Her husband, Henry Brewster Stanton, was an abolitionist who later became a state legislator. He was gone 10 months out of the year. He was always gone from their farm. Her own work was trying to raise the kids while trying to change the world, although she eventually hired a cook and a live-in housekeeper. She wrote important speeches while she was nursing babies. Susan B. Anthony had to baby-sit.”
Thomas became increasingly intrigued the more she read of Stanton’s writings.
“She very much illustrated feminist legal theory,” said Thomas. . . . .“She cared about work-life balance issues. Part of the concern is that we’re losing that message. For her, mothering was very important but she didn’t think it should define her. `Feminism’ is such a charged word, but it’s really just understanding things on a woman’s level.”
Stanton became interested in women’s causes while watching a lot of her attorney father’s cases and clients at their home.
“She didn’t like to do housework or needlepoint,” the professor said of Stanton. “As a woman, you had no rights to your personal property. Her father had money and property but her husband never did. She felt the frustrations herself and she heard the stories early. She would write how frustrating it was to stay here with the kids while her husband got to go out.”
Stanton proposed 22 different legal reforms including no-fault divorce, equal divorce, joint property rights and a woman’s rights to her own income, and all but two are laws today.
“She didn’t want people to be in marriages unless they wanted to be,” Thomas said. “She thought people should have to be 25 to get married, but that you should be at least 18. The age at the time was 13 or 14. Her reforms seemed very crazy at the time.”
New Books: The Trope of the Female Poisoner. How a Jury in an 1840 Murder Trial was Influenced by a Cultural Metaphor
Sara Crosby, Book Talk (audio), Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in America, New Books Network
In this episode of the H-Law Legal History Podcast I talk with Associate Professor of English at The Ohio State University at Marion, Sara L. Crosby about her new book, Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in Jacksonian America (University of Iowa Press, 2016). Crosby discusses how the trope of the female poisoner permeated popular literature in the mid-nineteenth century. In her analysis of the 1840 murder trial of Hannah Kinney, we see how the partisan press used the accused as a vessel through which to fight-out central political battles of the day. We then see how jury decisions may serve as a metric for determining which metaphors and cultural frames are prevailing at a point in time. Following a popular metaphor enables Crosby to track the cultural tides influencing law and politics in Jacksonian America.
Thursday, March 2, 2017
As we begin women’s history month, I thought I would share a women’s legal history reading list, recently updated. I've developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar.
This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting. It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was not illegal for a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s. The list goes on and on.
My scholarly goal is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books. But for now, at least, the history is being recovered and analyzed, and the transmission of that discovery has been started.
Women’s Legal History: A Reading List
Tracy A. Thomas
Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)
Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)
Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)
Understanding Feminist Legal Theory
Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)
Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)
Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)
Nancy Cott, The Grounding of Modern Feminism (1987)
Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)
Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)
EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)
Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)
Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)
Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)
Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)
Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)
Coverture, Marital Status in the Family, Marital Property
William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)
Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)
Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (2016)
Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)
Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).
Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)
Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651
Ken Burns, Not For Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)
Declaration of Sentiments, July 1848
History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Ellen DuBois, Feminism & Suffrage: The Emergency of an Independent Women's Movement in America, 1848-1869 (1978)
Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)
Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)
Minor v. Happersett, 88 U.S. 162 (1974)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)
Iron Jawed Angels (2004) (video)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)
Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
Muller v. Oregon, 208 US 412 (1908)
Adkins v. Children's Hospital, 261 US 525 (1923)
The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)
Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)
Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015)
Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)
James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)
Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)
Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)
Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).
Fred Strebeigh, Equal: Women Reshape American Law (2009)
Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)
Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)
TJ Boisseau & Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 YEARS OF THE NINETEENTH AMENDMENT: AN APPRAISAL OF WOMEN’S POLITICAL ACTIVISM (Lee Ann Banaszak & Holly J. McCammon, eds.)
Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)
Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)
Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (2010)
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)
Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)
Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)
Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)
Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)
Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work (2016)
Joanna Grossman, Nine to Five:How Gender, Sex, and Sexuality Continue to Define the American Workplace (2016)
Women in the Courts
Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)
Holly McCammon, The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (2012)
Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)
Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)
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Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)
Bradwell v. State, 83 U.S. 130 (1872)
In re Lockwood, 154 U.S. 116 (1894)
Women’s Legal History Biography Project, at http://wlh.law.stanford.edu
Thursday, February 23, 2017
Tracy A. Thomas, Book Talk: Elizabeth Cady Stanton & the Feminist Foundations of Family Law, University of Akron, Center for Constitutional Law (Feb. 9, 2017).
In this presentation, I talk about Stanton's impact on family law, the feminist reforms of family law in the 19th century, and broader goals of mainstreaming women's legal history.
Friday, February 3, 2017
New Books: Thinking About Prenuptial Agreements from a Feminist Perspective--Choice, Autonomy, and the Imbalance of Power
Sharon Thompson, Prenuptial Agreements and the Presumption of Free Choice (Hart Publishing 2015)
This book provides an alternative perspective on an issue fraught with difficulty – the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues, such as imbalance of power between the parties, become obscured.
This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Lastly, it explores how the court might address concerns regarding power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that 'prenups' can play in the judicial allocation of spousal property on the breakdown of marriage.
Jessica Lake, The Face that Launched a Thousand Lawsuits: The American Women Who Forged the Right to Privacy (Yale Law Library Press 2016)
Drawing on a wealth of original research, Jessica Lake documents how the advent of photography and cinema drove women—whose images were being taken and circulated without their consent—to court. There they championed the creation of new laws and laid the groundwork for America’s commitment to privacy. Vivid and engagingly written, this powerful work will draw scholars and students from a range of fields, including law, women’s history, the history of photography, and cinema and media studies.
A few blurbs:
"Jessica Lake’s The Face That Launched a Thousand Lawsuits is one of those rare books that truly upends conventional wisdom and changes the way readers understand an important subject. In a fascinating and well written account, Lake retells the history of the right to privacy. She shows how the activism of individual women played a central role in driving the legal recognition of that right. This book persuasively argues that we owe much to women who resisted the unauthorized circulation of photographic images of them. It is bracing and compelling from the first page to the last." -- Austin Sarat"Cybercrimes of visuality today have a prehistory uncovered in this book, which shows how far women aggrieved at having their images circulated without their consent brought the legal cases that built the right to privacy." --Nancy F. Cott
Thursday, February 2, 2017
Helen Irving, What is a Citizen?, the concluding chapter of the book, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016).
Explains the history of citizenship-stripping (“marital denaturalisation”) from women who married foreign men (and the parallel conferral, by many countries, of the husband’s citizenship: “marital naturalisation”), a legal practice that was followed in virtually every country in the world between the early-to-mid nineteenth and the mid-twentieth century (and ultimately repudiated in the 1957 UN Convention on the Nationality of Married Women). The book locates this practice in the formation of modern citizenship laws and explains it as an aspect of the emergence of modern international relations. Its concluding chapter is a reflection on what this history reveals about the nature of citizenship. It challenges theories of citizenship as rights and citizenship as participation, and offers an ‘existential’ defence of citizenship that prioritises protection of the citizen on the part of the state.
Friday, January 27, 2017
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction; Chp 1, "What do you Women Want?"; Chp 2 "The Pivot of the Marriage Relation"; Chp 3 "Divorce is not the Foe of Marriage"; and Chp 4 "The Incidental Relation of Mother."
Today's blog is on Chapter 5, "Our Girls" on Stanton's theories of feminist parenting and raising up a new generation free from gendered norms.
After decades of activism and proposed legal reform, Stanton grew increasingly frustrated with the lack of tangible progress. One continual sticking point was women themselves. Stanton repeatedly heard from women “I have all the rights I want.”
Women’s resistance, Stanton believed, was based on their own social and religious acculturation of female difference and inferiority. As she entered her sixties and then seventies, Stanton became convinced that these foundational norms needed to be changed if there was any hope of meaningful and sustainable change for women’s equality.
Her first strategy was to teach the next generation differently. Her goal was to raise children the same: tell girls to climb trees, play sports, and like science and teach boys to be kind, have manners, and like music. In the 1860s, Stanton toured the country 10 months of the year for 11 years, speaking to large crowds as part of the Lyceum tour. Here she featured two key speeches, “Our Girls” and “Our Boys.” These popular speeches appealed to mothers, as they gave philosophical and practical ways to raise children. She also advocated coeducation of the sexes from primary school through college, eschewing concerns that young men were too immoral to study alongside young women.
As part of this redirection of the next generation, Stanton advocate for legal reform of child custody laws. At common law, fathers were solely given custody rights, in the case of separation, but also to make decisions about apprenticeships or guardianships at his death. In this one area, the courts kept pace with Stanton’s demands. The courts had begun to evolve away from the paternal right of custody to stronger assumptions of the right of maternal custody especially for young children of “tender years.” This law matched the social norms of the reverence for mothers, although still rendering judgments about “unfit” mothers based on political views or personal relationships. The custody issue was an issue that triggered large grassroots support among the women Stanton spoke to, as many had experienced the legal loss of their own children.
Stanton’s second grand strategy was to extirpate the origins of the norms of gender inferiority which she located in religious doctrine. The problem, she said, was that women heard everything Sunday from the pulpits of how women was morally inferior, having succumbed to the temptation of evil in the Garden of Eden, and created second to man for the sole purpose of being his help mate. Women believed that their inferiority of law and society was God ordained, and thus fundamentally resisted other ideas.
Her work was to reinterpret the biblical texts that had been used to subordinate women. Having been trained in Greek, the eighty-year old Stanton set out to offer alternative interpretations of key portions of the Bible in her book The Woman's Bible. In what we might now call feminist theological interpretation, Stanton questioned the bias of the text, went to the original meaning of the Greek words, and read women’s experience and stories back into the biblical lessons. This work, however, was too radical even for the women suffrage reformers. They censored her and the book and cast her out from the organization she had founded and lead for fifty years. Stanton didn’t care: her goal was for meaningful and permanent change for women’s equality.
Friday, January 20, 2017