Wednesday, September 13, 2017
I have just published the edited collection, Women and the Law (Thomson Reuters 2017 ed.). This annual reference book collects the leading scholarship in the field of women and law from the prior year -- kind of a "greatest hits" of law review scholarship on litigated topics in this field.
This year's articles:
A. Violence Against Women: The Campus Sexual Assault Debate
Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kan. L. Rev. 891 (2016)
Jacob Gersen & Jeannie Suk, The Sex Bureucracy, 104 Cal. Law Rev. 881 (2016)
Deborah L. Brake, The Trouble with "Bureaucracy", 7 Cal. L. Rev. Online 66 (2016)
Suzanne B. Goldberg, Is There Really a Sex Bureaucracy?, 7 Cal. L. Rev. Online 107 (2016)
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. Forum 281 (2016)
Katharine K. Baker, Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, 64 Kan. L. Rev. 861 (2016)
Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kan. L. Rev. 963 (2016)
Aya Gruber, Consent Confusion, 38 Cardozo L. Rev. 415 (2016)
Eric R. Carpenter, Patriarchy, not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. 225 (2017)
B. Gendered Immigration
Joanna J. Kallinosis, Refugee Roulette: A Comparative analysis of Gender-Related Persecution in Asylum Law, 6 DePaul J. Women, Gender & L. 55 (2017)
Blaine Bookey, Gender-Based Asylum Post-Matter of ARCG: Evolving Standards and Fair Application of the Law, 22 Southwestern J. Int'l Law 1 (2016)
C. Reproductive Rights
Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L.J. Forum 149 (2016)
Saru M. Matambanadzo, Reconstructing Pregnancy, 69 SMU L. Rev. 187 (2016)
D. Women in the Workplace
Joanna L. Grossman, Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law, 95 B.U. L. Rev. 1029 (2015)
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Georgetown L.J. 559 (2017)
Jennifer Bennett Shinall, The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, 101 Minnesota L. Rev. 1099 (2017)
E. Feminist Legal Theory
Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016)
Stephanie Bornstein, Unifying the Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L. Rev. 919 (2016)
Jamie R. Abrams, Debunking the Myth of Universal Male Privilege, 49 U. Mich. J. L. Reform 303 (2016)
Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 Boston College L. Rev. 1287 (2016)
For the list of articles from the 2016 editions of Women and the Law, see here.:
Friday, September 8, 2017
Sandara Sperino & Suja Thomas, Unequal: How America's Courts Undermine Discrimination Law (Oxford Press)
It is no secret that since the 1980s, American workers have lost power vis-à-vis employers through the well-chronicled steep decline in private sector unionization. American workers have also lost power in other ways. Those alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer.
Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. The employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal that our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination still happens in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.
Wednesday, September 6, 2017
My book podcast for the New Books Network is now live. Check it out here at Thomas on Elizabeth Cady Stanton & the Feminist Foundations of Family Law
For past blogging about the book, chapter by chapter, see:
Wednesday, August 30, 2017
New Books Network, Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray (Oxford 2017)
Rosalind Rosenberg‘s book Jane Crow: The Life of Pauli Murray (Oxford University Press, 2017) is a multi-layered and rich biography of Pauli Murray, an activist, lawyer and Episcopal priest whose life intersected with the most significant civil and human rights issues of the twentieth century. As a mixed raced woman who felt that her identity was at odds with her body before transsexual had become part of the popular consciousness, Murray’s life provides insight into a lived intersectionality of race, class, gender, and sexuality. Beginning with her southern upbringing, we follow Murray through multiple educational, vocational and identity challenges she suffered. In a journey through a dislocated life, she contributed to multiple movements and institutions working with many key social leaders such as Thurgood Marshall, Eleanor Roosevelt and Betty Friedan. Appearing as a one-person social movement with a deep religious faith she pursued justice not only for herself but also for others. Rosenberg has provided sympathetic insight into the personal cost that Murray incurred on the road to a more equitable society. Rosalind Rosenberg is Professor of History Emerita at Barnard College.
Friday, August 25, 2017
New Book Podcast, Liana Christin Landivar, Mothers at Work: Who Opts Out?
A big question in Sociology regarding work and gender is: which mothers opt out of the labor force to take care of children? Popularly known as “opting out,” this trend is often seen as a mother’s personal choice rather than a decision made within a set of cultural and structural constraints in women’s everyday lives. Building upon previous work, Liana Christin Landivar‘s new book Mothers at Work: Who Opts Out? (Lynne Rienner Publishers, 2017) uses nationally representative data to inquire into who exactly is opting out and who is staying in the labor force. Most media coverage on the topic focuses on women who work in management or other professional level occupations, but Landivar’s book looks at a wide spectrum of occupations and finds that the question of who opts out is much more nuanced. She finds that investigating occupation is key for answering who is opting out. She also delves into the categorizations of work hours, giving consideration not only to part-time work and how that varies by occupation, but also women who scale back, or reduce work hours but not to part-time levels. Additionally, age of the mother, as well as the child, alongside race and educational attainment all help to better understand which mothers are opting out. Landivar gives careful consideration to the structural factors across and between occupations and how they may influence mothers opting out. Finally, this book provides some important methodological insights for the reader, including emphasizing the variations within work hours and the key importance of reference groups used to answer research questions.
This book will be enjoyed by Sociologists broadly, but is key reading for work/family and gender scholars. Folks in gender studies as well as business leaders might enjoy this book and find important insights into which mothers opt out of the labor force. This book would be useful in a gender/work/family class as well as a graduate level methods course, with its careful explanation of modeling and fantastic graphics.
Friday, August 18, 2017
Paula Monopoli’s point in her recent review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law, is well taken. She notes that “[t]he only arguable weakness in this book is that after the trenchant introduction, Thomas does not do much to connect back to the different strands of feminist theory per se.”
This actually was one of the earliest ideas I had for the book, and one that interested the editor the most in the original proposal. But in looking back at it now, it seems that this part of the manuscript ended up on the cutting room floor. (Along with a background discussion of Protestant ideas of no-fault divorce which I still miss as it placed Stanton’s idea in greater historical and religious context).
The generality of the point of multiple feminisms survived in the book, challenging the characterization of Stanton as a simplistic thinker, a mere “first generation” advocate seeking to treat women the same as men. (And Sue Davis makes a similar point in her book The Political Thought of Elizabeth Cady Stanton about the multiple feminisms seen in Stanton’s political theory).
However, the specifics of contexts illustrating each type of feminism must be pieced together by the reader herself through the book. So let me try and explain better here.
Liberal feminism. This is the most known about Stanton, that she support a formal equality approach to treating women the same as men. This meant reversing laws of coverture which denied women equal rights to property, inheritance, and child custody. It meant giving women the same right to vote, hold public office, and enter the professions by college and work. Women should be lawyers, reverends, and medical doctors. Women should be able to own their own bank accounts. She would have eliminated all instances where law created a separate rule based on gender, much like Ruth Bader Ginsburg advocated during her years of women’s rights work with the ACLU Women’s Rights Project.
Difference feminism. However, Stanton did not only advocated formal equality between genders. She also advocated specific legal and social rules for women only, for situations where women were differently situated. Stanton advocated a maternal custody rule, giving child custody to women only. She supported a widow’s exception for dower, tax and bankruptcy due to women’s different need. And she advocated a women-only right to control sexual relations and procreation through abstinence, challenging the existing standard of male sexual prerogative.
Her justification for these was an understanding that it was women who biologically bore children, and socially raised them. She considered women’s role in raising children to be a powerful one. Indeed, she argued that women should use this power to raise the next generation of children up with equal virtues and coeducation, so that women could transform society by their feminist parenting.
While society used the maternal role to “protect” and restrict women’s rights, Stanton used maternity as a basis for power and a justification for right. It’s not that men could not share in parenting, which she also advocated, but that they simply did not. As such, women were differently situated and needed rights that corresponded to that reality.
Radical feminism. Stanton also appreciated that the structures of law, society, and the family themselves were barriers to women’s full autonomy. Like modern legal theorist Catharine MacKinnon, she attacked the sexualization of women -- in romantic Victorian notions and revealing décolletages -- and advocated dress reform and coeducation. Stanton endorsed an equal moral sexual standard, that idea of men as needing to indulge their sexual passions by affairs, adultery, and command of marital relations was wrong, and that men should be restrained and liable for consequences, and that women also entitled to sexual express and sexual control. And she would also restructure marriage from hierarchy to joint partnership. Not just that women would retain their own separate property earned or inherited, but that marriage would have joint property belonging to both partners regardless of where obtained.
Finally, Stanton quite radically took on the structure of the church. After fifty years of work for women’s rights, Stanton learned that the foundational sticking point was that the basis of social and legal gender norms of women’s subordination were based in religious teachings. She took on the Christian church’s doctrines and teachings, reinterpreting biblical passages and deconstructing the male bias in those rules.
Overall, Stanton’s use of feminist methodology of deconstruction, critical suspicion of seemingly objective rules, and understanding of male privilege allowed her to approach legal and social critique with an all-encompassing feminist theory that shows her to be an advance and radical legal thinker.
Monopoli concludes in her review, that “the main strength of the book lies in Thomas as legal historian pulling together the arguments out of Stanton’s own writings, making them available to us and linking them to Stanton’s surprisingly modern legal theories. This book should be included on reading lists for upper-level seminars in jurisprudence, family law, and legal history, in addition to gender and the law. Reading it will introduce students to a significant legal mind, albeit an informally trained one, not traditionally included in the canon of prominent American legal thinkers.”
Thanks to Paula Monopoli for her great (and thorough) review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law in the Journal of Legal Education.
Mother. Author. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton
Tracy Thomas’s new book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, provides extensive support for the claim that Stanton was “the intellectual giant of the [women’s rights] movement.” In this eminently readable yet deeply substantive work, Professor Thomas argues that Stanton was a foundational theorist for modern feminism. Until recently, Stanton’s intellectual contributions have not been widely explored, and Thomas aims to rectify that oversight. She situates Stanton in her rightful place by focusing on Stanton’s writings and advocacy in the area of family law. Thomas does a persuasive job, using Stanton’s views on marital property law, divorce, voluntary and involuntary maternity, and the custody of children as a lens through which to examine broader themes about women’s status as equal citizens in our republic. She also documents Stanton’s intellectual contributions in a way that informs current debates about gender equality.
While Stanton’s writings ranged broadly on the subordination and emancipation of women, Thomas narrows in on Stanton’s views on the subjugation of women within marriage. She also reveals Stanton’s extensive, if de facto, training in law through her father’s practice, law library and clerks. “As a young woman, Stanton had read widely in her father’s law library and discussed cases with him . . . . [H]er legal training allowed Stanton to bring to the early women’s rights movement a keen sense of the role of law in creating inequality between the sexes.” Thomas argues that this understanding of the common law itself and her understanding of how to construct legal arguments were central to Stanton’s efficacy as a theorist and an advocate.
Thomas begins by examining Stanton’s personal story. Stanton was a harried mother of three children under the age of ten when she convened the first women’s rights convention in Seneca Falls in 1848. In the decade that followed, she went on to have four more children and to advocate tirelessly for women’s equality. Thomas points out how much the adage “the personal is the political” applied to Stanton, as she wrote to her partner in advocacy, Susan B. Anthony, for help:
Can you get any acute lawyer . . . sufficiently interested in our movement
to look up just eight laws concerning us—the very worst in all the code? I
can generalize and philosophize easily enough myself; but the details of the
particular law I need, I have not time to look up. You see, while I am about
the house, surrounded by my children, washing dishes, baking, sewing, etc.,
I can think up many points, but I cannot search books, for my hands as well
as my brains would be necessary for that work . . . . Men who can, when they
wish to write a document, shut themselves up for days with their thoughts
and their books, know little of what difficulties a woman must surmount.
These words would resonate with many female scholars today. After this first letter, Stanton again wrote to Anthony to tell her that the legislative testimony she was trying to finish was not nearly done and that her deadline was rapidly approaching. Anthony responded by coming to babysit while Stanton finished the address. Having a public voice requires time and energy. But bearing a disproportionate share of family caregiving makes such public participation difficult and remains a structural barrier to gender equality today.
Thomas integrates these and similar examples of the connection between the nineteenth-century Stanton and modern-day feminists. She begins her book with an introduction that gives the reader a thumbnail sketch of modern feminist theory. Thomas outlines the distinctions among liberal feminism, with its focus on formal equality; difference feminism, with its focus on resolving subordination by recognizing women’s biological, relational, and cultural differences; and radical or dominance feminism, which situates subordination in the victimization of women as sexual objects and emphasizes the need for structural reforms. Thomas argues that Stanton’s views on family law reform informed modern feminist theory.
As Thomas notes, many of the reforms that Stanton wrote about and advocated for in terms of property, marriage, divorce, and custody have become the legal status quo. But in these turbulent times, Thomas’s book reminds us how fragile those gains are and how radical they still seem to many in our society. As Stanton lamented, after “years of untiring effort” to obtain guarantees of property and custody, those statutes were “repealed in States where we supposed all was safe.”Her cautionary note to be vigilant rings as loudly in 2017 as it did in 1876, and we would do well to heed it. Professor Thomas’s excellent new book has given us additional intellectual tools to do just that.
Monday, July 31, 2017
In this special summer episode, we take a step back from reviewing to introduce listeners to H-Law's new legal history podcast. Robert interviews H-Law's podcast producer and host Siobhan Barco and we run in full her first episode, an interview with legal scholar Mary Ziegler, author of After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015). From Siobhan's description of the episode:
Ziegler’s work uses the landmark American abortion rights case, Roe vs. Wade to explore litigation as a vessel for social change and the role the court plays in democracy. In addition to traditional archival research, Ziegler recorded over one hundred oral histories of people in the pro-life and pro-choice camps, allowing her to move beyond caricatures and delve more precisely into the catalysts for these individual’s points of view.
Topics we discuss include:
(1)Whether Roe is overstated as a cautionary tale for judicial intervention
(2)How the bright line divide between the pro-life and pro-choice movements had not yet coalesced in the 1970s.
(3)Roe as a canvas onto which activists could project different strategic aims
Janet Halley, Book Review: Richard Chused & Wendy Williams, Gendered Law in American History (2016), JOTWELL
Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what didhappen with this issue or that in the transformative-yet-reactionary 19th Century?
But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours. But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!
The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths.
One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.
Wednesday, July 19, 2017
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..
Wednesday, June 28, 2017
Karen Patricia Heath, New Directions in the History of Conservative Women
Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).
As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?
Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen. Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922). So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her. Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point.
As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges. I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away. My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role.
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).