Thursday, September 29, 2016
Book Review: Harris on Sager, Marital Cruelty in Antebellum America, reviewing the book Robin C. Sager, Marital Cruelty in Antebellum America (Lousiana State University Press 2016)
In literature and the popular press, antebellum women were lauded for their virtue and piety; they maintained the sanctity of the home and were responsible for the moral training of the next generation. Yet, many homes were not idyllic sites of domestic tranquility. In Marital Cruelty in Antebellum America, Robin C. Sager uncovers the fascinating and disturbing account of “those spouses who were simply trying not to kill one another” (p. 12). Through an analysis of 1,500 divorce cases in Virginia, Texas, and Wisconsin, Sager chronicles the meanings and cultural significance of marital cruelty in the years 1840-60. Sager contends that regional scholarship has tended to label the South as particularly violent, connecting that violence to norms of Southern honor. To interrogate these assumptions, the author analyzes Virginia (often considered the archetypal Southern state), Texas (a frontier Southern state), and Wisconsin (a frontier state in the process of settlement). Sager finds that the cultural uncertainty of frontier Wisconsin perpetuated violent domestic cruelty, while greater stability of gender norms in Virginia and Texas mitigated violence in marriage.
Marital Cruelty is organized around types of cruelty: verbal, physical, sexual, and negligence. Within each chapter Sager compares divorce cases from Virginia, Texas, and Wisconsin. In the chapter on physical cruelty, for example, Sager identifies a fixation on the exact nature of the violence in each state’s attempt to determine the line between permissible violence and marital cruelty. Courts would attempt to determine the exact number of blows, the type of violence, and the emotional valences behind the violence. While there was no universal standard for what constituted cruelty, violence that reinforced gendered familial duty was more likely to be considered legitimate. As such, whipping tended to be more acceptable than punching, and the seemingly rational administration of violence was more acceptable than emotional or animalistic violence. Sager also identifies significant regional differences in physical violence, explaining that the unsettled frontier of Wisconsin led to “more permanent injuries and generalized brutality within marriages than can be seen in either Virginia or Texas for the period” (p. 39). This chapter is also notable because it includes instances of wives' cruelty toward their husbands, a particularly egregious violation of gender expectations. * * *
The unrelenting litany of domestic violence can be challenging to read, but the attention to regional difference and lower court marriage law makes the study valuable to researchers. While state and federal appeals and Supreme Court decisions from the antebellum era are more likely to be accessible, documents from lower-level divorce cases can be difficult to find. The vast majority of citizens seeking a divorce would have had their case only heard before a lower-level court, such as a circuit, district, or chancery court, and Sager’s meticulous research provides unique insight into the ways in which Americans used the state to negotiate marital conflict. However, as the author notes, not all Americans had equal access to the law, and Sager acknowledges that the choice to study divorce cases may obfuscate questions of race and class.
Tuesday, September 27, 2016
Kathy Stanchi, Why Are Feminist Judgments Necessary?
Feminist Judgments: Rewritten Opinions of the United States Supreme Court, the new book I edited with Linda Berger and Bridget Crawford, imagines what 25 key Supreme Court cases on gender might have looked like had the Justices used feminist reasoning to decide the cases. In essence,Feminist Judgments imagines a Supreme Court diverse in multiple ways – not just race, gender, socioeconomic class and sexual orientation, but also philosophy, experience and perspective. The United States Supreme Court has been remarkably homogeneous in all these ways throughout history.
Would Feminist Judgments have been necessary as a visionary project had we had an ERA? It is unclear. Perhaps the passage of the ERA would have changed the composition of the Court – but that seems unlikely. And when I ponder what the ERA would have meant for American anti-discrimination law in the hands of an entirely conservative, white, economically privileged male Supreme Court, questions linger. After all, Geduldig’s holding was based on the famous distinction between women and “pregnant persons.” If it isn’t sex discrimination to treat “pregnant persons” unequally, would an ERA have really made a difference? And Roe and its progeny might have fared no better. Feminist advocates have been largely unsuccessful in convincing the Supreme Court that anti-abortion laws are an equal protection violation based on sex. If “pregnant persons” are a different category from women, aren’t “persons who get abortions” a similarly limited category?
One mission of Feminist Judgments: Rewritten Opinions of the United States Supreme Court is to show that diversity – of sex, race, socioeconomic class, sexual orientation, among others – matters in our system of law. ERA or no ERA, the composition of the Court is critical, because the Justices are the last interpretive word on what the Constitutional text means. If the Justices saw the ERA as limited, or not covering pregnancy or abortion, all the grand words of equality would not have made a real difference in women’s lives. So, in some ways, Phyllis Schlafly made Feminist Judgments necessary, but we might have needed it anyway.
The related US Feminist Judgments Conference, Rewriting the Law, Writing the Future is October 20 & 21. Register here.
Tuesday, September 20, 2016
New Book Examines Working Women's Lifetime Disadvantage highlights the forthcoming book by Susan Bisom-Rapp and Malcolm Sargeant, Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Press).
From the publisher:
Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.
- Proposes a new model of lifetime discrimination suffered by women at work, leading to an holistic solution rather than the current incremental approach
- Examining how the law approaches each stage of women's working life cycle allows readers to identify the disjointed incremental approach and see its disadvantages
- Provides a new framework for discussing the issue of disadvantage that women suffer in employment
Wednesday, September 14, 2016
Ellen Mayock, Gender Shrapnel in the Academic Workplace
Female students and faculty members have often felt at odds with their institutions and other members of their workplaces when sexual harassment and assault enter the work environment. What is one to do when experiencing gender-based discrimination in the academic workplace? Ellen Mayock in her recent book Gender Shrapnel in the Academic Workplace (Palgrave Macmillan, 2016) seeks to put a name to the phenomenon that many women in academia face as well as provide solutions to institutional failures that allow for these experiences of harassment and assault to occur. Drawing upon feminist theory, linguistics, and the power of personal narratives, Mayock discusses how gender shrapnel occurs in the academic workplace. The later chapters of the book provide very tangible solutions to gender shrapnel that individuals and institutions can embark upon in order to curb the instances of gender shrapnel in academia.
Thursday, September 8, 2016
The life and times of a trailblazing feminist in American law. The first female Stanford law professor was also first director of the District of Columbia Public Defender Service, one of the first women to be an Assistant Attorney General of the United States, and the biographer of California’s first woman lawyer, Clara Foltz. Survivor, pioneer, leader, and fervent defender of the powerless and colorful mobsters alike, Barbara Babcock led by example and by the written word — and recounts her part ofhistory in this candid and personal memoir.
"For woman lawyers, Barbara Babcock has led the way. How? By being smarter and tougher than the men; also, more empathetic and self-aware. Funny, shrewd, and telling, her memoir Fish Raincoats is a joy to read.”
— Evan Thomas, author of Being Nixon: A Man Divided
“Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.”
— Dahlia Lithwick, Senior Editor, Slate
Here is also a book review I wrote of Babcock's key work on the biography of California's first lawyer Clara Foltz. Book Review: Woman Lawyer: The Trials of Clara Foltz (Stanford Press 2011).
Thursday, September 1, 2016
The book US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016), is now published.
My contribution was to rewrite the Supreme Court's decision in City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978) regarding sex discrimination in retirement benefits for women. The department had charged women extra for their retirement benefits because, on average, women live longer than men. The Court invalidated that practice as violating Title IX. By then the practice had stopped, due to intervening state law. The Court however refused to award reimbursement of the discriminatory surcharges.
Here's an excerpt on the remedies point:
Ubi Jus, Ibi Remedium
The question remains as to the appropriate relief in this case. It is a standard proposition of law that ubi jus, ibi remedium: “where there’s a right, there must be a remedy.” As we held in the early days of this Court, the very foundations of justice and jurisprudence require that violations of rights are vindicated with meaningful remedies. Marbury v. Madison, 5 U.S. 137 (1803). “It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.” Id. For in the absence of such tangible, meaningful relief, legal rights become empty, unenforceable aspirations that are not supported with concrete action forcing defendants to internalize the consequences of their wrongful behavior. Without specific consequences, defendants have no incentives to avoid such discriminatory misconduct.
That is the case here. The Department seeks to avoid all consequences for its history of sex discrimination. While injunctive relief and an intervening California law have ended the use of this discriminatory plan, they do not redress the years of overcharges and lost monies to the plaintiff class. The Civil Rights Act provides that a court in a Title VII case may “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . with or without back pay . . . or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5. Back pay is limited to two years prior to the filing of the case with the EEOC. Id. at 5(g). Courts also have discretion to award prevailing plaintiffs attorney’s fees. Id. at 5(k). In accordance with the statute, the District Court ordered the refund of all overcharges going back to April 5, 1972, the date of the EEOC regulations. Fair Emp. Prac. Case at 1625. This was a shorter period of time than permitted by the statute, which would have allowed retroactive relief to June 5, 1971. The court also awarded reasonable attorney’s fees.
While the Department challenges this retroactive refund as inappropriate, the Court has previously established a “presumption in favor of retroactive liability” in Title VII cases which “can seldom be overcome.” Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The strong presumption is that “the injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Id. at 418. Retroactive relief should be denied only “for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. at 421. Retroactive monetary relief makes plaintiffs whole and provides the consequences for discriminatory conduct and the incentives for required egalitarian treatment. Such retroactive relief is the usual default remedy in both Title VII and the law more generally. The only required showing is loss to the plaintiff. No heightened standard of bad faith or evil intent is required because the statutory purpose is compensatory, not punitive. “If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the ‘make whole’ purpose right out of Title VII for a worker’s injury is no less real simply because the employer did not inflict it in ‘bad faith.’” Id. at 422. Thus, it is immaterial whether the plan administrators were conscientious or recalcitrant in the face of intervening EEOC guidelines. What is relevant is the economic loss to the plaintiffs from the charges illegally withheld from their paychecks. We measure the amount of this loss by awarding the difference between contributions made by female employees and those made by male employees. While the inability to assess the discriminatory surcharge might have required the Department to adopt a different, undifferentiated actuarial table that would have reassessed contributions for both women and men, we cannot use this hypothetical past to calculate monetary relief nor can we rectify a precise accounting by deducting pay from the checks of the male employees who are not parties to this action. Instead, our goal is to ensure the “employee is placed in no worse a position than if” the conduct had not occurred, and the return of the improper contributions as actually paid is necessary required to provide that meaningful relief as envisioned by Title VII. Mt. Healthy City School District Board of Ed. v. Doyle, 429 U.S. 274, 286 (1977).
We recently approved such retroactive relief for a class of men in a Title VII case similarly challenging a retirement plan. Fitzpatrick v. Bitzer, 427 U.S. 455 (1976). In Fitzpatrick, the Court held that a state retirement plan that allowed women to retire five years earlier than men discriminated on the basis of sex and that the Eleventh Amendment did not bar retroactive payment of retirement benefits as an appropriate remedy. Denying this same retroactive relief in the case here when confronted with a similar discriminatory retirement plan would establish the perverse rule that allows damages for men, but not women. Such a result would clearly “frustrate the central statutory purposes of eradicating discrimination” under Title VII by re-inscribing sex inequality via the remedial mechanism. Albemarle Paper Co., 422 U.S. at 421.
Thursday, August 25, 2016
Here's the short list. More details on each in the attached article.
The Round House and Wide Sargasso Sea are two of my personal favorites, though there are several I have not yet read.
h/t Ruth Houghton
Tuesday, August 23, 2016
Table of Contents
Surveying the Singles Beat
Ain’t We All Women?
It’s Great to Be Young
Nancy F. Cott
The Urgent Need for a Singles Studies Discipline
Great Stories about Ladies without Partners
Barbara J. Risman
Our Work Is Never Done
Friday, August 12, 2016
Zoe Detsi, Review, European J. American Studies, Thomas A. Foster, ed. Women in Early America (NYU Press 2015)
Women in Early America is an intriguing collection of essays offering richly diverse readings of women’s lives and experiences in 17th- and 18th- century America. This volume is a significant contribution to the scholarship concerning the role of women in history and their participation in historical moments of political change and cultural negotiation. From Gerda Lerner’s seminal work on The Woman in American History (1971) to Linda Kerber’s enlightening book titled Women’s America: Refocusing the Past (6th ed., 2004), to Mary Beth Norton’s meticulous transatlantic study Separated by their Sex: Women in Public and Private in the Colonial Atlantic World (2011), scholarly efforts have been made to deepen our understanding of women’s history by initiating a shift of focus from their domestic role and dependent status to their active involvement in political, military, and economic affairs, as well as cultural production.
The scope of the volume’s methodological approach to the history of early women in America is very broad. The essays cover an impressive range of women’s experiences from the colonial period to the American revolutionary war offering a number of perspectives that embrace cultural history, gender theory, race studies, while resenting a multitude of women’s voices from different social, cultural, political, ethnic backgrounds, and geographical areas. All eleven essays provide scholars and researchers with a wealth of archival material – diaries, letters, narratives, documents – and with fresh insights into examining women in history as active agents in their own right challenging social conventions and political decisions. Either as aristocratic women in New Mexico or indentured servants in Virginia and Maryland, as slave owners in Jamaica or runaway slaves, as interpreters in Puritan Massachusetts or traders in French America and Detroit, as Loyalist women during the revolution or proponents of female education in the new nation, early women in America were deeply involved in (inter)cultural practices and greatly affected by economic policies and social changes.
The Table of Contents is here.
Monday, August 8, 2016
The Irish project Northern/Irish Feminist Judgments: Judges' Troubles and the Gendered Politics of Identity builds upon the work of the feminist judgment project completed at Durham and Kent and which integrated feminist theory and judicial method, re-writing influential judgments from feminist perspectives. The project will produce an anthology of re-written judgments from Northern/Ireland as well as innovative web resources with materials of use to both academics and civil society. Bringing together academic partners at institutions across the UK and Ireland including the Law Schools at Kent, LSE, UCD, UCC, Queen's Belfast, and the University of Ulster, with solicitors, barristers and civil society groups, the project creates a broad new community of Irish feminist scholars around an ambitious Northern/Irish Feminist Judgments Project. The project will create tangible resources which can be used to engender a societal dialogue about legal decision-making and social change, developing dynamic resources for future research and teaching in judicial studies. The project focuses on the gendered political roles of judges in contexts of transition from conflict, colonialism and religious patriarchy.
Friday, August 5, 2016
Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India (U. Cal. Press 2015) (with podcast):
Are solutions to marital problems always best solved through legal means? Should alternative dispute resolutions be celebrated? In her latest book The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015) Srimati Basu answers such questions and many more through explorations of "lawyer free" courts and questions surrounding understandings of domestic violence, analyses of the way rape intersects with marriage and how kinship systems change with legal disputes and by delineating the most important acts that frame marriage law in India. Theoretically and politically astute the book offers an ethnographic insight into legal sites of marriage trouble in India.
Tuesday, July 12, 2016
No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity
by Sarah Haley
The University of North Carolina Press, 2016, 360 pp. Link here.
Chained in Silence: Black Women and Convict Labor in the New South
by Talitha L. LeFlouria
The University of North Carolina Press, 2016, 280 pp. Link here.
When you think of convict labor in the postbellum South, you probably think of men. Consider the cultural touchstones: John Henry driving steel in West Virginia, Robert Burns’s I Am a Fugitive from a Georgia Chain Gang!, the manacled singers in Alan Lomax’s field recordings, Nat Adderley’s classic “Work Song” (“Breaking rocks out here on the chain gang/Breaking rocks and serving my time”). Or perhaps not—by far the finest rendition of “Work Song,” after all, is Nina Simone’s. By singing Adderley’s song, Simone made audible what has been systemically silenced: the historical experience of black women subjected to coerced labor and state violence. While the repression and coercion of black women have been constant features of American life in one form or another across the centuries, they are also today the site of a vital strand of political resistance. The appearance of two historical works on the subject, then, is significant. Talitha L. LeFlouria’s Chained in Silence: Black Women and Convict Labor in the New South, and Sarah Haley’s No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity, represent the most thorough historical accounting of the system of carceral labor inflicted on black women.
These are books for our moment. African-American women—queer, black women in particular—have been critical in local organizing against police violence, and have emerged as the leaders of the nation’s most significant national movement for racial justice, Black Lives Matter. Partly, this reflects a long tradition of black female political leadership; partly it is the product of the relative invisibility of state violence against black women.
Friday, July 8, 2016
ABA J, The Last Good Girl
Author Allison Leotta has used her 12 years of experience as a federal sex-crimes prosecutor in Washington, D.C., to bring real-world issues into her fiction. Leotta has written five novels chronicling the adventures of her protagonist, prosecutor Anna Curtis. The most recent, The Last Good Girl, takes on the issue of campus sexual assault at a fictional private college in Michigan.
The ABA Journal’s Lee Rawles spoke with Leotta about how she shifted her career from lawyer to author; why the issue of campus sexual assault is so timely; and what’s next for her intrepid heroine Anna Curtis.
In Choreographing Copyright: Race, Gender and Intellectual Property Rights in American Dance, Anthea Kraut wrestles mightily with these questions as she presents the first book by a dance scholar to focus explicitly on matters of copyright and choreography. Combining archival research with critical race and gender theory, Kraut offers new perspectives in this cross-genre history of American Dance. Professor Kraut’s research addresses the interconnections between American performance and cultural history and the raced and gendered dancing body.
Thursday, July 7, 2016
Abstract:A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their own lives must lead them refuse to sext (a widespread approach) deprives them of voice. Both books analyze law and propose legal reforms, and both also explore the relationship between social norms and legal regimes. Ross’s review finds commonality in the authors’ arguments that women “have a right to sexual expression without fear of moral or legal repercussions” and that both ultimately “look to greater self-policing by the technology industry,” and to promoting “cultural transformation” as much as legal change.
Tuesday, July 5, 2016
As a trailblazing attorney, Bessie Margolin lived a life of exceptional achievement. At a time when the legal profession consisted almost entirely of men, she earned the esteem of her colleagues and rose to become one of the most successful Supreme Court advocates of her era. Doing so, as Marlene Trestman demonstrates inFair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin(Louisiana State University Press, 2016), required overcoming not just the ingrained assumptions that men had towards professional women during that time but also the poverty of her early childhood and the loss of her mother when Margolin was only three years old. As Trestman reveals, Margolin exploited to the full the opportunities she was given as a ward of the Jewish Orphans Home in New Orleans, which provided her with a comfortable upbringing and a good education. From Newcomb College and Tulane University, Margolin went on to a fellowship at Yale University and a career in the federal government, which she began by participating in the defense of some of the most important laws to come out of President Franklin Roosevelt’s New Deal program and concluded by championing measures mandating equal pay and opposing age discrimination. And yet Trestman shows that for all of the sacrifices she made to establish a career for herself, Margolin did so on her own terms and in a way that many Americans can relate to today.
Wednesday, June 15, 2016
Concurring Opinions hosted a symposium of several book reviews on Joanna Grossman's new book Nine to Five. Reviews are provided by Sam Bagenstos, Naomi Cahn, Nancy Dowd, Kate Silbaugh, and Verna Williams.
Concurring Opinions is delighted to introduce Professor Joanna Grossman, and the participants in our online symposium on Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016).
I previously posted about the book here.
Friday, June 3, 2016
Linda Greenhouse, NYT, Bittersweet Victories of Women
In Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, Gillian Thomas focuses on the afterlife of the Smith amendment as part of the Civil Rights Act’s Title VII, which deals with employment. (Other titles concern voting, education, and access to public facilities and public “accommodations,” meaning hotels, restaurants, and other private businesses serving the public. Title IX, a law we hear much about these days, is not part of the Civil Rights Act but of a different law, the Education Amendments of 1972.) Thomas, a lawyer with the American Civil Liberties Union’s Women’s Rights Project who has litigated sex discrimination cases for many years, is interested not in how Title VII’s “because of sex” clause came to be, but in what has become of it since.
Thursday, May 12, 2016
[After working as a lawyer] she finally decided to enter academia. She felt, she said, that moment “was the only shot I had to be able to write, to be able to think about issues, to be able to use all of the things that I had been thinking about up to this moment—to be thinking about society, to be writing about society in a way that I thought would be useful.”
“Law is important. Obviously I believe that. But the kinds of human relations, the kinds of things we’re talking about in both of these books, transcend it,” Gordon-Reed said. “Sometimes you have to look beyond it, because the law is not put in place for everybody, is not made to work for everybody. It’s our hope that we can try to make it work for everybody, but the historian understands that there are moments when that just was not the case, and slavery was one of them."
Tuesday, May 10, 2016
Joanna Grossman (Hofstra/SMU), Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press, May 2016)
At the heart of this collection is a basic question: What is sex discrimination? The answer may seem obvious, but, in truth, it is complicated. Are all classifications on the basis of gender discriminatory, or are there times or places when sex differentiation, or even sex segregation, are permissible or desirable? Should seemingly benign classifications be prohibited because they might perpetuate damaging stereotypes and gender subordination? If so, when?
Check out the terrific Table of Contents showing an engaging style and wide range of issues covered in this new book.