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)
Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).
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
Monday, January 16, 2017
A few years ago, I wrote an essay Sex v. Race, Again later included in the book Who Should Be First? Feminists Speak Out on the 2008 Presidential Campaign. The book was about the perceived battle between race and sex seen in the political campaign between Hillary Clinton and Barack Obama for the Democratic presidential nomination.
The essay connected that presidential context to the historic context of the battle for suffrage rights and how race and sex were set against each other. It showed how historically in law, we have spent time arguing "which is worse," discrimination on the basis of race or gender.
On this MLK Day of reflection on race, and as the March for Women's Rights is planned -- attracting criticism for being both too little and too much about race -- it may be useful to revisit one small piece of this history.
Sex v. Race, Again
The struggle between Hillary Clinton and Barack Obama to make history as either the first woman or first African-Americanpresident resurrects the unfortunate historic battle between sex and race. The current debate presents striking parallels to the battle for voting rights after the Civil War when infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. The potential fallout from this false dichotomy today threatens political credibility and social justice and demands a rethinking of the alleged opposition.
In the late nineteenth century, the debate over the constitutional right to vote became a clash of race versus sex. Women’s rights leaders, most notably Elizabeth Cady Stanton and Susan B. Anthony, battled black men for the right to vote. Rather than unifying against the shared concern of the white male monopolization of political power and legal rights, the representatives of the disenfranchised classes fought each other to obtain rights first.
It began with the Fourteenth Amendment to the U.S. Constitution, ratified in 1868, which precluded the rights of women voters by expressly penalizing states that improperly excluded male citizens from voting.2 This subordination of women’s rights continued in the debate over the Fifteenth Amendment when civil rights leaders abandoned the universal suffrage platform of voting rights for all citizens, temporarily advanced in 1866 by the combined forces of feminists and abolitionists, in favor of prioritized rights for black men. Frederick Douglass, previously one of the staunchest supporters of women’s suffrage, rejected the women’s issues as less urgent and asserted that the failure to grant strategic priority to black male suffrage was a major betrayal of the former slave and constituted outright racism.3 Douglass insisted:
I must say I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro. With us, the matter is a question of life and death, at least, in fifteen States of the Union When women, because they are women, are hunted down through the cities of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of outrage and insult at every turn; . . . then they will have an urgency to obtain the ballot equal to our own.
Douglass acknowledged that the same persecution was true for a black woman, “but not because she is a woman, but because she is
Stanton had earlier taken up the cause of black women when abolitionists began narrowing their focus on the rights of black men: “May I ask just one question based upon the apparent opposition in which you place the negro and the woman? Do you believe the African race is composed entirely of males?” The women’s rights leaders tried to highlight the plight of black women to expose the erroneous opposition of race and gender. A similar point was made one hundred years later by author and black activist bell hooks, who argued that the forced opposition between black power and women’s liberation ignored the reality of black women and unfairly narrowed the social and political debate.
Women in the nineteenth century lost the battle for universal suffrage, and were told that it was the “Negro’s hour” and that they must wait patiently for their time to come (which would be fifty years later). Some women’s rights leaders, like Lucy Stone, eventually acquiesced, and split from the nationalorganization for women’s rights. Others, like Stanton, refused to support a law that discriminated against women and granted preferential power to black men. As Phoebe Couzins, a law student and associate of Stanton’s proclaimed, “I repudiate the Fifteenth Amendment, because it asks me to acquiesce in an assertion to which I utterly refuse to assent, i.e., the inferiority of women.”
Tuesday, January 10, 2017
Queen Victoria is trending these days with 2 new books and an upcoming TV series. I have just finished both books, the fictional Victoria by Daisy Goodwin and the non-fiction Victoria: The Queen by Julia Baird. I am always interested in books that show us how we have been getting it all wrong. See also Queen Victoria's Story is More Inspiring, and More Badass, Than We've Seen Before
These books argue that the myth around Queen Victoria as a moralistic, strict leader of women's domestic role was manufactured by men -- particularly those male editors of her papers. These editors omitted all letters to and about women, on grounds that women's issues were irrelevant and not of interest to posterity. They rewrote Victoria's language to reflect the demure, submissive status expected of women. Victoria's youngest daughter Beatrice later edited her mother's papers to omit any signs of the intimate and volatile relationship with her husband, Albert. Modern author Julia Baird argues that the "Victorian" era would have been better named the "Albertine era" as it was Prince Albert who was more moralistic and leading of the domestic sphere and women's inferiority, even for his own wife and Queen. The books also present Victoria as a passionate, engaged, and hot tempered woman who demanded respect, power, and control.
My interest in Queen Victoria stems from her name repeatedly invoked by Elizabeth Cady Stanton as the model of a strong woman. During my research for my book on American feminist and legal thinker Stanton, I came across many references where Stanton cited Victoria as the ideal strong woman -- a woman with power, employment, but also domestic authority as the mother of nine children. Stanton told mothers they should act "queenly" and she used the history of queens as evidence of women's capacity for political power. I was puzzled by Stanton's continued reverence for Victoria, who is typically depicted as the role model for the domestic, not feminist. She is known as being obsessed and grieved by her husband's early death, the bearer of strict Victorian morality, and the icon for motherhood and domestic sphere (even a Queen should relegate to her domestic role).
I concluded that Stanton must have used Victoria simply because she was the most well-known figure to her audiences and that as Queen she generically illustrated women's potential for power. It may have also been that Stanton saw a little of herself in Queen Victoria. They were about the same age and lived almost the same 80 years (Stanton 1815-1902, Victoria 1819-1901), both were very short (Victoria was 4'11), both had large families (Stanton 7 children, Victoria 9). Stanton visited England in 1840 when Victoria was at the height of her popularity as the new queen and recently married, and Stanton visited England again in the late years of the century as Victoria continued as the longest serving monarch (until Queen Elizabeth II in 2015).
As I learn more about Victoria, I understand Stanton's references better. Stanton's theory of feminism was holistic. She envisioned equality for women in all spheres, both private and public. To her, feminism meant equal autonomy for women in all aspects of life -- public, politics, employment, religion, and family. Significantly, it also meant embracing and elevating the power of motherhood. Victoria represented this public and private power harmonized with the role of motherhood as authority, not subservience.
Thursday, December 22, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).
And coming soon, the rest of the book:
Chapter 5 "Our Girls" (Feminist parenting, maternal custody, and shifting societal norms of gender)
Chapter 6 "Still Many Obstacles" (Stanton's legacy to feminism and the modern reform of domestic relations law)
Friday, December 16, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”
Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship. But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role.
Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.
This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations.
What Stanton did talk about was voluntary motherhood. Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands. It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.
Stanton also wrote a great deal about infanticide, rather than abortion. Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement. Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.
Wednesday, December 14, 2016
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform. Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage. Today is Chapter 3 on divorce reform and domestic violence.
From the Introduction to the chapter:
The “marriage question,” as it was called in the nineteenth century, was less about marriage and all about divorce. America inherited the divorceless legal tradition of England derived from canon law, prohibiting divorce but allowing separation and annulment. A few colonies and states experimented with divorce, slowly expanding the fault grounds for divorce by the middle of the nineteenth century, with a few states adopting broad grounds for any misconduct or cause. Legislatures were guided by legal concepts of individualism and contract theory, and influenced by temperance arguments for the protection of women. As the country grew through expansion, immigration, and industrialization, divorce increased. Numbers went from 9,937 in 1867, the first year a national census on divorce was taken, to 33,461 in 1890 and to 167,105 by 1920. The moral outcry was loud, as clergy and moral reformers predicted the deterioration of the family and the downfall of society.
Stanton was at the forefront of the very public debate on divorce. She viewed divorce as an important issue of women’s rights because it freed women from marriage, where their legal status was denied and their personal freedoms curtailed. Viewing marriage as a trap, she was supportive of any legal means for women to escape, including no-fault or “easy divorce.”Taking this a step further, Stanton argued that women had a duty, an obligation to divorce, in cases of domestic violence and intemperance, to protect themselves and their children.
Divorce had been seen historically and biblically as a way for men to “put away their wives,” but Stanton reframed it as a legal remedy for women. She “single-handedly shifted the age-old idea of divorce as a male prerogative to a right demanded by women on humanitarian grounds.” Women needed divorce, Stanton argued, to escape domestic violence, abuse, poverty, and simple unhappiness. “Liberal divorce laws for oppressed wives,” Stanton proclaimed, “are what Canada was for Southern slaves.” The majority of divorces, over two-thirds, were filed by women—a key fact for Stanton proving the importance of this issue for women and the propriety of including it within the women’s rights platform. Divorce was not a morality crisis, but simply a consequence of women’s assertion of rights. “This is woman’s transition period, from slavery to freedom, and all the social upheavings, before which the wisest and bravest stand appalled, are but necessary incidents in her progress to equality.” Divorce provided the self-help remedy that let women enforce their own rights and expectations of marriage, with the secondary effect of transforming marriage into a more egalitarian structure.
Stanton’s tenaciousness on divorce, however, alienated colleagues and divided the women’s rights movement. Her vocal support of divorce outraged reformers, increased opposition to women’s rights, and contributed to the split in the organized women’s movement. Stanton remained undeterred, convinced of the necessity of divorce to women’s full equality. As the eighty-year-old Stanton recalled, “[S]o bitter was the opposition to divorce for any cause that but few dared to take part in the discussion.” But, she said, “I was always courageous in saying what I saw to be true, for the simple reason that I never dreamed of opposition. What seemed to me to be right I thought must be equally plain to all other rational beings.”
Stanton initially presented divorce as woman’s duty to free herself and her children from an alcoholic husband and domestic violence.
She first wrote of her support for divorce in 1850 in a short article aptly titled “Divorce,” published under the pseudonym “Sun Flower” in the women’s temperance newspaper, the Lily. At this time, a New York legislative committee had proposed a bill to expand divorce beyond the cause of adultery to include desertion, imprisonment, drunkenness, and insanity. Stanton brought this to her readers’ attention and gave it her vote. “I see there is a bill before the Legislature providing some new doors, through which unhappy prisoners may escape from the bonds of an ill assorted marriage. . . . I hope that bill may pass.” She strongly endorsed divorce in the context of intemperance and abuse. “The Legislature, so far from placing any barrier in the way of a woman wishing to leave a drunken husband, ought to pass laws, compelling her to do so.” Divorce, she suggested, would be woman’s duty in such circumstances. Going further, Stanton proposed a broader right to no-fault divorce. “If, as at present, all can freely and thoughtlessly enter into the married state, they should be allowed to come as freely and thoughtfully out again.”
She later then wove divorce reform of no-fault divorce and equal fault divorce into her speeches to the New York legislature and to the public, “speaking wisdom to the popular ear.” But the notorious McFarland v. Richardson trial gave her a national stage on which to play out her critique of marriage and solution of divorce. McFarland, with premeditation, shot his ex-wife’s lover, a famous journalist. The jury acquitted on grounds that McFarland was entitled to defend his property of his home and his wife. Even though his wife had divorced him (out-of-state). And even though he had committed domestic violence against her.
Stanton then repeated her shocking demand for free and easy divorce a year later in the context of the Laura Fair trial in San Francisco. Fair was sentenced to death for shooting her longtime lover when he returned to his wife. Stanton argued the disparate inequalities in the law that would starkly excuse the murder by a husband, but condemn the same murder by a woman.
Thursday, December 8, 2016
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform and Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage.
Sticking with Chapter 2, here is an excerpt I have been reading at book talks:
Stanton’s second goal was to offer a solution that would transform marriage into a relation respecting women’s equal individuality. Her proposal was to conceptualize marriage legally as a contract, rather than a sacrament or status, which would allow freedom to designate the terms and the termination of the marriage.[i] Socially, she advocated an egalitarian vision of marriage as a union of soul mates that fully respected the freedom of each individual as they worked together as partners in the joint enterprise of the family. This transformational vision of marriage required little state regulation, permitting free divorce and other restrictions on choice of marital partner. Stanton believed in the theoretical ideal of free love, resulting “whenever compulsion and restraint, whether of the law or of a dogmatic and oppressive public opinion, are removed.”[ii]
So when her friend Frederick Douglass remarried to Helen Pitts, a white woman, she sent her personal congratulations and support for his subversive act. She noted that
there’s much hostile criticism on your condescension in marrying a white woman. After all the terrible battles and political upheavals we have had in expurgating our Constitutions of that odious adjective “white” it is really remarkable that you or all men should have stooped to do it honor. The “white” feature of this contract is bad enough, but “the woman” is still worse.
Stanton commented on the gender implications of the controversy, in which his “large circle of admiring friends protest” against him risking his legacy as a black civil rights leader on white interests, especially those of a mere woman.[iii] Stanton wanted to draft a public announcement of support for Douglass from both her and Anthony and invite him to speak at the next women’s rights convention. Anthony refused, concerned with the potential backlash on “the subject of amalgamation” against the growing consensus on women’s suffrage. Anthony wrote to Stanton, “I do hope you won’t put your foot into the question of intermarriage of the races. It has no place on our platform, any more than the question of no marriage at all, or of polygamy, and so far as I can prevent it, shall not be brought there.” She pleaded, do not “throw around that marriage the halo of a pure and lofty duty to break down race lines.”[iv] For Stanton had publicly supported interracial marriage before, attending legislative hearings in Boston to repeal colonial miscegenation laws and printing an editorial in her newspaper in support of interracial marriage.[v] But this time, she backed down.
Despite the suggestion that marriage was not a proper issue of women’s rights, for Stanton, it was central to her vision of equality. Changing the marriage relation, she wrote early in the movement, “is at the foundation of all reforms.”[vi]
[i] ECS, “Side Issues,” Rev., Oct. 6, 1870; ECS, “The Kernel of the Question,” Rev., Nov. 4, 1869.
[ii] DuBois, “On Labor,” 65.
[iii] ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love across Color Lines (New York: Hill and Wang, 1999).
[iv] SBA to ECS, Jan. 27, 1884; Newman, 4.
[v] ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.
[vi] ECS to SBA, Mar. 1, .
Tuesday, December 6, 2016
Stanton, Feminism & the Family: “The whole question of women’s rights turns on the pivot of the marriage relation.”
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform.
Today, is chapter 2.
Chapter 2, “The Pivot of the Marriage Relation” addresses Stanton’s key philosophical premise that equality in marriage was as important as equality in public, church, and state.
I do not know that the world is quite willing or ready to discuss the question of marriage. . . . It is in vain to look for the elevation of woman, so long as she is degraded in marriage. . . . The right idea of marriage is at the foundation of all reforms. . . . I feel this whole question of woman’s rights turns on the pivot of the marriage relation, and sooner or later it will be the question for discussion.
—Elizabeth Cady Stanton to Susan B. Anthony, Mar. 1, 
Marriage needed “pivot,” to do an about-face from the slave-like subordinated status of married women under coverture to an autonomous, individual partner of a marital partnership. For this first feminist, family was not opposed to women’s rights, but was a key site of needed change. The public and private spheres were not segregated as feminist theory first developed.
Stanton’s critiques and theories of marriage were colored by her own disappointing personal experience in marriage. She had dreamed, and often espoused, the idea of a close companion, a soulmate, with whom a woman shared family, work, and intimacy. Instead, she was married to abolitionist and some-time lawyer Henry Stanton who was fully absorbed in his own (unrealized) political ambition. Henry spent most of their married life living elsewhere, working on a political campaign or issue in another city or state, while Elizabeth raised their seven children. The two finally set up separately households in their fifties, visiting and remaining cordial for family events.
Philosophically, Stanton’s first objective was to establish that marriage was a problem. She made her point sometimes symbolically, using metaphors like slavery which her audience understood, and lamenting the wife’s duty to obey and take her husband’s name, “Mrs. Henry Stanton.”
Stanton’s radical “Man Marriage” critique presented in speeches and newspaper editorials conveyed this idea of the oppressive nature of marriage on a more sophisticated level. Like modern feminist legal theorists, she deconstructed the seeming objectivity of the law to show how the laws of marriage were made “by and for the benefit of men.” She applied this critique to the controversy over Mormon polygamy, subversively suggesting that polygamy was no worse than monogamy for women.
Stanton’s second objective was to offer a corrective solution to the problem of marriage. Her reconstructive ideal conceptualized marriage as a contract. Marriage as a contract, rather than a status, changed everything legally for Stanton. It supported the notion of a legal partnership of equals, free modification of termination of that contract by divorce, as well as state laws of higher age for marriage and abolition of common law marriage.
Friday, December 2, 2016
This is part of a continuing series blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Today, is chapter 1.
“What do you women want?” That was the question Elizabeth Cady Stanton was asked by the New York legislature in 1854. She responded with a long-list of demands for marital property, child custody, domestic violence protections, women on juries, tax exemptions for widows, and wholescale elimination of coverture.
These many goals were laid out by Stanton in her Declaration of Sentiments delivered at the Woman’s Rights Convention at Seneca Falls, New York in July 1848. (Now the site of the Women's Rights National Historical Park). The Declaration was Stanton’s road map for reform, in that she articulated 17 demands for reform of state, law, church, and the family in order to accomplish women’s full equality of opportunity.
Stanton began her fifty-years of legal and political advocacy for women’s rights on the issue of marital property. This was her starting point, and so it is the starting point for the book. In 1848, the NY legislature was considering reforms to the property laws that prevented married women from owning property, either separate, earned, inherited, or marital. It was supported by some expressed feminist concerns, but more by business concerns with recession, transferability of property, and family debt protection. But the issue was at the front and center, with Married Women’s Property Acts beginning to be passed across the nation, and grassroots advocacy happening in Stanton’s close circle.
Stanton also started with the issue of marital property as it was the one that involved her personally. Her father, Daniel Cady, was a respected property and equity lawyer, legislator, and jurist. He was in the inner group of those considering legal reform, reformers who interacted with Stanton. Stanton also learned the law from her father, in what I call a “de facto apprenticeship,” observing his clients and trials, reading law with his apprentices, and serving one year as his clerk. This legal training and ability to “think like a lawyer” would serve her well. But her own attempts to own and earn separate property, to make up for her under-employed husband, ran smack into the limitations of coverture.
After introducing Stanton’s personal training and experience with the law of marital property, this chapter traces her philosophies, speeches, and proposals for legal reform. These included marital property laws that envisioned joint ownership of martial property – an idea that was not on the table in the Married Women’s Property Acts that merely allowed a woman to retain separate ownership of premarital or separately inherited (and later earned) property. She also advanced ideas of “taxation without representation,” challenging the taxation of widows’ property without the corresponding right of a property owner to vote.
The chapter also explores Stanton’s attempt to capitalize on the newly-enacted Privileges & Immunities Clause of the Fourteenth Amendment, which Stanton though was self-evidently empowering for sex equality. The Supreme Court, however, quickly squashed the expected interpretation of the clause to apply to voting or a generalized sex equality. Had Stanton’s view prevailed, much on women’s legal equality would have been different.
Here is an excerpt: Download ExcerptStantonChap1
Tuesday, November 29, 2016
I'm excited to report that my new book is out today, after 12 years (!) in the making. I will be blogging and tweeting about it this week to provide a preview of the different chapters.
The book has several goals. First, it reveals new information about the legal advocacy of Stanton, the leading feminist of the nineteenth-century women's rights movement, for reform of the family and gender equality. We generally think of advances in sex equality in marriage and the family coming in the 1970s. This book shows that such reform was a major platform of Stanton's holistic feminist philosophy 120 years earlier, and that the private sphere was not divorced from the public sphere in her original feminist theorizing. The second goal of the book is to integrate women's experience and public advocacy into the mainstream thought of family law. Family law has been conceptualized as one type of narrative focused much on contract and property, oblivious to the very public advocacy of Stanton and others for rejecting the coverture laws subordinating women and demanding equality of law in marital property, marriage partnership, no-fault divorce, maternal custody, and domestic violence remedies.
The introduction is available here. This first part introduces Stanton to unfamiliar audiences (though she needed no introduction in her day -- I call her the "Oprah of the 19c"), outlines the framework for the book and the history of family law, and discusses a bit of the theoretical approach and what it means to engage in applied legal history.
Table of Contents
Introduction: The “Radical Conscience” of Nineteenth-Century Feminism
1. “What Do You Women Want?” [on marital property and privileges & immunities]
2. “The Pivot of the Marriage Relation” [on marital partnership]
3. “Divorce Is Not the Foe of Marriage” [on domestic violence and divorce]
4. The “Incidental Relation” of Mother [on reproductive rights]
5. Raising “Our Girls” [on maternal custody, parenting, and The Woman's Bible]
Conclusion: “Still Many Obstacles” [on Stanton's legacy in 21st century family law]
Thursday, November 3, 2016
These are dangerous times for judicial appointments, according to Sally J. Kenney, an expert on judicial selection and social movements.
Kenney, the author of the book “Gender and Justice: Why Women in the Judiciary Really Matter," was the keynote speaker for “The U.S. Feminist Judgments Project."
. . . .
Kenney said it is important that more women and minority men serve on the bench, and that it is no longer enough that judges are well qualified.
“We need to know what their positions are on domestic violence and sexual assault,” she said. “Do they believe boys need their fathers even if those fathers were batterers? And joint custody puts mothers at risk? Do they believe women routinely lie about domestic violence in divorce cases or sexual assault in general? Do they easily dismiss women’s fear of stalkers and harassers? Do police officers and those serving in the military who are more likely than the general population to be batterers deserve to retain their firearms even after threatening intimates?”
Judges should consistently uphold rules even when those rules go against the political party of the president who appointed them, Kenney said, adding that senators should be held accountable for failing to do their job.
“No one disputes whether Merrick Garland is qualified. No one thinks he has extreme political views,” she said. “Now it appears senators can just say ‘no.’”
Kenney also said it is important that judges be willing to change positions when confronted with social facts.
“I think we should be able to demand that judges be the most distinguished members of the legal profession, without having to turn them into deductive machines or robots or think of them as neutrals,” she said.
“I also believe the issue is not the difference women make on the bench, but the message their absence sends,” she added. “It is important to have women and minority men on the bench.
Here is the Introduction to the terrific line-up of articles in the just published collection, Women and the Law (Thomson Reuters 2016).
OVERVIEW AND INTRODUCTION
The theme of this year’s edition of Women and the Law is captured best by contributor Deborah Brake’s article entitled, “On Not Having it All.” The recent scholarly literature focuses on women’s so-called struggle to have it all and the difficult legal intersections of work and family. For decades, women have been encouraged to be Superwomen, to “bring home the bacon,” and “fry it up in a pan,” all while taking primary responsibility for family care. The structures of the law, workplace, and the family, however, have not accommodated this dual dynamic. Male workplace norms, long grounded in assumptions of workers’ exclusive dedication to a job, supported by the unpaid home labor of wives and mothers, create an inadequate foundation for women’s full and equal entry. Instead, we see women either “leaning in” to a 24/7 effort for workplace success, or “opting out” for a prioritization of family work. All of which assumes the privilege of profession and ignores the economic reality that most women work in paid labor because they have to, whether due to basic need, recession, or marital status.
The focus of the scholarly literature and the related litigation reflects the equivocation in women’s coping strategies and in critiques of the legal systems that perpetuate gender inequality. Much of the recent research overlaps the fields of employment, reproductive rights, and family law. This intersection of legal thought mirrors women’s interwoven realities of work, family, and life, where the private and public spheres are merged, and conflicts are not easily settled within one traditional body of law. Women’s first encounters with sex discrimination today are more often delayed to this point of work/family conflict. Suddenly pregnancy accommodations, maternity leaves, workplace norms, sexual harassment, implicit bias in hiring and promotion, and equal pay take on new meaning.
The scholarship reflects this lived experience. There is much discussion of pregnancy and maternity and how they interface with the workplace. These intersections reveal conflicts in the law the sex equality battle assumed had been resolved. Scholars are searching for new legal frameworks to address these situations, borrowing analogies from other equality, disability, and medical regimes. This recent scholarship rejects the private/public binary and the assumption that private family life of health, children, pregnancy, and relationship exists isolated from the workplace. And it pragmatically searches for alternative theories and solutions that can make a meaningful difference to women’s lives.
Wednesday, November 2, 2016
I have just published the annual edition of Women and the Law (Tracy A. Thomas, ed. Thomson 2016). This is an edited collection of some of the "greatest hits" in scholarship affecting women's rights published over the last year. The book reprints the articles as a collection as a resource book intended for practitioners to stay current on developing ideas and for academics to appreciate the breadth and depth of working theories.
Table of Contents
Foreword, On Not Having it All, Tracy A. Thomas
Part A Reproductive Rights
Chapter 1 Abortion and the “Woman Question”: Forty Years of Debate, Reva B. Siegel
Chapter 2 Roe as We Know It, Cary Franklin
Chapter 3 Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty, Mary Ziegler
Chapter 4 Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement, L. Camille Hébert
Part B Feminism and the Family
Chapter 5 Marriage Equality and the “New” Maternalism, Cynthia Godsoe
Chapter 6 Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, Rona Kaufman Kitchen
Chapter 7 The Bad Mother: Stigma, Abortion and Surrogacy, Paula Abrams
Chapter 8 The Fourth Trimester, Saru M. Matambanadzo
Part C Violence Against Women
Chapter 9 For the Title IX Civil Rights Movement: Congratulations and Cautions, Nancy Chi Cantalupo
Chapter 10 Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, Elizabeth Katz
Chapter 11 Constrained Choice: Mothers, the State, and Domestic Violence, Rona Kaufman Kitchen
Part D Women in the Workplace
Chapter 12 Taking Sex Discrimination Seriously, Vicki Schultz
Chapter 13 On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, Deborah L. Brake
Chapter 14 Employment Discrimination Class Actions after Wal-Mart v. Dukes, Michael Selmi and Sylvia Tsakos
Part E Feminist Legal Theory
Chapter 15 Review Essay: Why (Re)Write Judgments?, Heather Roberts and Laura Sweeney
Chapter 16 Domestic Disorders: Suffrage and New York's Constitutional Convention of 1867, Felice Batlan
Chapter 17 Marriage (In)Equality and the Historical Legacies of Feminism, Serena Mayeri
Chapter 18 Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey, Gina Viola Brown and Andrea Kupfer Schneider
Monday, October 31, 2016
Which means the Salem Witch Trials.
Most of the victims of the trials were women. And most of the accusers. Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power. They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.
Stacy Schiff, The Witches: Salem, 1692 (2015)
Carol Karlsen, The Devil in the Shape of a Woman (1998)
Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)
Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)
Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)