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)
Thursday, October 27, 2016
Call for Authors for Volume of Rewritten Reproductive Justice Opinions
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Reproductive Justice (working title). This edited volume, proposed to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press (that book’s cases and authors are available here). Subsequent volumes in the series will focus on different courts or different subject matters. This call is for contributions to a volume of reproductive justice (RJ) decisions rewritten from a feminist perspective.
Reproductive Justice volume editor Kimberly Mutcherson seeks prospective authors for 15 rewritten RJ-related opinions covering a range of topics. With the help of an advisory committee, the editor has already selected 15 cases to be rewritten. Potential authors are welcome to suggest other cases, but given certain constraints (including a preference for avoiding cases that have already or soon will be rewritten for other volumes in this series), it is unlikely that the list of cases will change. The current list of cases and a list of cases that the editor and advisory committee considered, but that (sadly) did not make the final cut, can be found here. Cases may come from any jurisdiction and any court, including non-U.S. jurisdictions. As is necessary in a text focused on RJ, the volume editor conceives of feminism broadly as multiple movements concerned with justice and equality. Further, as befits an RJ focused volume, authors should be prepared to rewrite cases in a way that brings into focus intersectionality, gender, race, class, disability, gender identity, age, sexual orientation, national origin, histories of incarceration, immigration status, and beyond.
As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case. Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000 word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000 word maximum for the commentary). Commentators and opinions writers who wish to work together are welcome to indicate that in the application.
The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship. There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); the Women’s Court of Canada; ongoing projects in Ireland, New Zealand, and a pan-European project; and other U.S.-based projects currently under way.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten RJ cases should complete the submission form found here.
Applications are due by November 21, 2016 at 5:00 p.m. (EST). The editor expects to notify accepted authors and commentators no later than December 16, 2016. First drafts of rewritten opinions will be due on June 2, 2017. First drafts of commentaries will be due on August 4, 2017.
Friday, October 14, 2016
Andrea J. Nichols, Sex Trafficking in the United States (Columbia Press 2016)
Sex Trafficking in the United States is a unique exploration of the underlying dynamics of sex trafficking. This comprehensive volume examines the common risk factors for those who become victims, and the barriers they face when they try to leave. It also looks at how and why sex traffickers enter the industry. A chapter on buyers presents what we know about their motivations, the prevalence of bought sex, and criminal justice policies that target them. Sex Trafficking in the United States describes how the justice system, activists, and individuals can engage in advocating for victims of sex trafficking. It also offers recommendations for practice and policy and suggestions for cultural change.
Andrea J. Nichols approaches sex-trafficking-related theories, research, policies, and practice from neoliberal, abolitionist, feminist, criminological, and sociological perspectives. She confronts competing views of the relationship between pornography, prostitution, and sex trafficking, as well as the contribution of weak social institutions and safety nets to the spread of sex trafficking. She also explores the link between identity-based oppression, societal marginalization, and the risk of victimization. She clearly accounts for the role of race, ethnicity, immigrant status, LGBTQ identities, age, sex, and intellectual disability in heightening the risk of trafficking and how social services and the criminal justice and healthcare systems can best respond. This textbook is essential for understanding the mechanics of a pervasive industry and curbing its spread among at-risk populations.
Please visit our supplemental materials page (https://cup.columbia.edu/extras/supplement/sex-trafficking-united-states) to find teaching aids, including PowerPoints, access to a test bank, and a sample syllabus
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.