Wednesday, October 18, 2017
Jena McGill & Daphne Gilbert, Of Promise and Peril: The Court and Equality Rights, 78 Supreme Court Law Review (2d) 235 (2017)
In this brief reflection, we look back on 32 years of equality advocacy and outcomes at the Supreme Court of Canada. We recount the fraught trajectory of the Supreme Court of Canada’s section 15 jurisprudence over the past decades, tracing the evolution of three distinct approaches to equality rights and highlighting the unique role that the Women’s Legal Education and Action Fund (LEAF) and its feminist equality advocacy has played in shaping the Court’s jurisprudence at each stage of section 15’s life. We then look to the future of section 15, suggesting that recent jurisprudence indicates the emergence of a new era in equality rights at the Supreme Court characterized by a distinct turning away from section 15 arguments. We offer some preliminary comments on what this trend might mean for the future of equality rights and for the future of feminist litigation strategies under the Charter, arguing that some of LEAF’s ideas about how to pursue substantive equality under section 15 that have not been acknowledged by the Court offer promising new directions for the next chapter of section 15 jurisprudence. We conclude that while under the current state of section 15 jurisprudence equality rights may be imperilled, the promise of section 15 remains.
Tuesday, October 17, 2017
Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts
Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.
From the Intro:
The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).
Thursday, October 12, 2017
Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).
Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.
According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * *
In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.
Friday, October 6, 2017
Once Stephanos Bibas is confirmed, the Third Circuit will have 12 active judges: 10 men and 2 women. That gender imbalance is appalling.
Two Third Circuit openings remain — one for Pennsylvania, one for New Jersey. We do need those seats filled, because the court has a crushing case load and we need the court back up to full strength.
We need both of those seats filled by women.
Senators, this is an air-raid-siren crisis. The shortage of women judges on the Third Circuit weakens the court and undercuts its legitimacy. It undermines public confidence in the federal judiciary at a moment in history when that confidence is needed urgently. It weakens our legal system and our democracy.
Nationwide, more than a third of active circuit judges are women. That’s double — double! — the Third Circuit’s proportion. If other circuits can do it, we can too.
We have done it in the past. The Third Circuit has a proud history of service by women on the bench. As recently as 2006, the court had four active judges who were women. But all four have since taken senior status, and from 2000 to 2012 10 Third Circuit seats in a row were filled by men.
Senators, you didn’t cause this problem, but it is a problem you can fix.
Nine of the 22 sitting federal district judges for the District of New Jersey are women. Thirteen of Pennsylvania’s sitting district court judges are women. Our law school faculties and practicing bars are brimming with qualified women who would bring credit to the court.
And this shouldn’t be a partisan issue. Four of President Trump’s 12 pending circuit nominees are women, right in line with the national rate. In the two most conservative circuits in the nation, the Fifth and Eleventh, 40% of the active judges — 10 of 25 — are women. Republicans are just as capable as Democrats of finding outstanding women to fill circuit judgeships.
President Obama nominated Rebecca Haywood last year, who would have been the first black woman to serve on the Third Circuit.
Wednesday, October 4, 2017
While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years—and rightly so—there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.
Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.
These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.
Criminal justice in the American South for decades following the Civil War was meted out unjustly, disproportionately affecting African Americans, regardless of gender. And, thanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant. In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household.
This report matches my own experience. In practice, I handled a pro bono class action on behalf of the women prisoners in D.C. See Women Prisoners of DC v. District of Columbia.
Thursday, September 28, 2017
It was the Government v. the Government on Whether Sexual Orientation Discrimination is Gender Discrimination
In the recent Second Circuit case, it was the Government - the Equal Employment Opportunity Commission v. the Government - the Department of Justice. The government bizarrely found itself on opposite sides of the issue.
Erin Mulvaney, US Agencies to Clash in Appeal Over Sexual Orientation Bias
The U.S. Court of Appeals for the Second Circuit will hear arguments in a high-profile case next week that could telegraph what’s to come in the ongoing legal battle over whether sexual orientation should be protected under federal civil rights law. Zarda v. Altitude Express is also notable in that it pits two government agencies—the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission—against each other in the courtroom.
After a three-judge panel of the Second Circuit ruled back in April that Title VII of the Civil Rights Act of 1964 does not protect LGBTQ workers, the full appeals court agreed to revisit the decision en banc. Arguments are scheduled for Sept. 26 in New York.
The ultimate answer to the question of whether Title VII should be expanded in scope to include workers from discrimination based on their sexual orientation will have widespread effects on companies across the country. So far, rulings on the issue have varied, and eventually the Supreme Court will almost certainly provide its own view. Lower court arguments will be crucial in setting the stage for a possible circuit split and an eventual high court showdown.
The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.
The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.
It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination doesprotect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.
Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’thappen—because the executive branch is expected to speak with one voice on legal affairs.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court
Wednesday, September 13, 2017
Taunya Lovell Banks, President Obama and the Supremes: Obama's Legacy -- The Rise of Women's Voices on the Court, (forthcoming), Drake Law Rev. (forthcoming)
For approximately two hundred years, all of the United States Supreme Court justices were male. Now there are three women on the Court, two appointed during the administration of President Barack Obama. With the appointment of Justices Sotomayor and Kagan to the Court, women’s voices literally are more prominent, especially during oral argument. This article speculates on whether the presence of these three women on the Court will influence the substance of decisions. It asks whether we are witnessing the emergence of a definable “women’s” voice, in the collective sense, or whether there is simply a greater representation of women on the Court; women justices, who like their male counterparts, sometimes agree and sometimes do not. In addition, this article asks whether the reaction of some commentators, and male justices, to the increased participation of women justices during oral argument suggests implicit gender bias, another possible by-product of President Obama’s legacy.
Monday, September 11, 2017
Patrick Dorrian, Breast-Feeding Alabama Police Officer Proved Sex, Leave Bias
An Alabama police officer was within her rights to quit when she was denied a desk job so she wouldn’t have to wear a ballistic vest that may have rendered her unable to breast-feed, a federal appeals court ruled.
Stephanie Hicks can keep her jury win on her constructive discharge claim because lactation is a medical condition related to pregnancy under federal sex discrimination law, the U.S. Court of Appeals for the Eleventh Circuit held on an issue of first impression for the court ( Hicks v. City of Tuscaloosa , 2017 BL 314674, 11th Cir., No. 16-13003, 9/7/17 ). Hicks is a former employee of the Tuscaloosa Police Department.
The Sept. 7 ruling is “very significant” because with it the Atlanta-based Eleventh Circuit became the second federal appeals court to recognize that “breastfeeding is covered under Title VII” of the 1964 Civil Rights Act, Galen L. Sherwin said Sept. 8. The New Orleans-based Fifth Circuit previously reached the same conclusion in 2013, she said.
Sherwin is a senior staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which supported Hicks as an amicus in the case. The New York-based lawyer said the Eleventh Circuit’s holding is also novel in two other important ways.
The court recognized that employers may be required to provide work accommodations to breast-feeding employees if they provide such accommodations to similarly situated non-breast-feeding workers, she told Bloomberg BNA. In other words, employers must treat accommodation requests from breast-feeding or lactating workers on the same terms as they treat other similar accommodation requests.
Friday, September 8, 2017
9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History
The full 9th U.S. Circuit Court of Appeals will revisit a panel’s ruling that men may be paid more than women based on salary histories, Law.com reported Thursday.
In April, a three-judge panel of the San Francisco-based court ruled (PDF) that the Equal Pay Act does not forbid employers from paying a woman less than a man for the same work if the man had made more money in a prior job and the employer had used that as a factor in setting salaries.
But the U.S. Equal Employment Opportunity Commission appealed that ruling, saying it created a split from other federal appeals courts and would perpetuate the gender pay gap. (The American Association of University Women says women make, on average, 80 percent of what men make for the same work.) The 9th Circuit granted that request and has scheduled oral arguments for early December.
The case was brought by Aileen Rizo, a math consultant for a school district in Fresno County, California. Rizo came to the district from a teaching position in Arizona, where she had earned nearly $10,000 less than the $62,733 Fresno County agreed to pay her.
But then she spoke to her colleagues, who said a newly hired man in the same job was being paid $79,000 a year. She later learned that all of her male colleagues earned more than she did. Rizo complained to human resources, but the county took no action. In court, it argued that Rizo’s salary would have been the same for a man who came from the same job, because it was determined by a policy that adds 5 percent to the candidate’s prior salary to determine starting pay.
Under the Equal Pay Act, employers may pay employees unequally if the unequal treatment is based on a factor other than sex, including seniority. The panel’s ruling had cited a 1982 ruling, also from the 9th Circuit, saying prior salary can be a factor other than sex if the employer can show that its policy “effectuate[s] some business policy” and was implemented reasonably in light of its stated purpose.
The panel had remanded the case to trial court, so it could investigate the business purpose for Fresno County’s salary policies.
For prior posts on this case, see:
Sandara Sperino & Suja Thomas, Unequal: How America's Courts Undermine Discrimination Law (Oxford Press)
It is no secret that since the 1980s, American workers have lost power vis-à-vis employers through the well-chronicled steep decline in private sector unionization. American workers have also lost power in other ways. Those alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer.
Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. The employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal that our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination still happens in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.
Wednesday, September 6, 2017
Jeff Sessions’ Justice Department plans to put a woman who laughed at the now-attorney general back on trial yet again, a federal prosecutor told a D.C. judge here on Friday.
Desiree Fairooz, a woman taken into custody after she laughed during Attorney General Jeff Sessions’ confirmation hearing, will go to trial in November for a second time.
Fairooz and her lawyer rejected a plea deal offered by the government in which she would have pleaded guilty to one of two charges in exchange for the government recommending a sentence of time served, Assistant U.S. Attorney Kimberly Paschall said in D.C. Superior Court on Friday.
Chief Judge Robert E. Morin previously tossed out a jury’s guilty verdict against Fairooz in July because the government had improperly argued that her laughter alone was enough to convict.
Here are some prior posts on the case:
Tuesday, September 5, 2017
Bruce Kaufman, Attorneys Faulted for Scarcity of Female Expert Witnesses
An astonishing 80 percent of expert witnesses chosen by attorneys are male, and those male experts get paid on average 60 percent more than their female counterparts, according to a leading provider of courtroom experts across the U.S. Judges, attorneys, service providers, and professors spoke to Bloomberg BNA about the wide gender gap and paint a troubling portrait of an industry that is wearing blinders when it comes to bias against female expert witnesses.
And though everyone agrees that the sparsity of female expert witnesses is worrisome, the likely explanations for the gender preference are equally troubling.
Chief among them: disparate treatment by the attorneys who make hiring decisions.
These predominantly male attorneys may be biased themselves.
Or they may believe that hiring female experts will put them at a competitive disadvantage when they appear before jurors with outdated views on gender roles, those who talked to Bloomberg BNA said.
Educating attorneys and jurors on their biases, both conscious and subconscious, and coaching experts on how to overcome those prejudices could lead to more female experts and reduce the stark pay gap for female experts, interviewees said.
Part 1 of this two-part series explores the scope of, and reasons behind, the gender gap for expert witnesses. Part 2 looks at possible solutions, all rife with uncertainty.
Bruce Kaufman, Gender Gap for Female Experts Won't Be Easily Narrowed
Friday, August 25, 2017
Pat Chew, Comparing the Effects of Judges' Gender and Arbitrators' Gender in Sex Discrimination and Why it Matters, 32 Ohio State J. Dispute Resolution (2017)
Empirical research substantiates that the judges’ gender makes a difference in sex discrimination and sexual harassment court cases. The author’s study of arbitration of sex discrimination cases administered by the American Arbitration Association between 2010 and 2014, however, finds that this judges’ “gender effect” does not occur. Namely, there is no significant difference in the decision-making patterns of female and male arbitrators as indicated by case outcomes.
The author proposes that characteristics of arbitrators, the arbitration process, and arbitration cases all combine to help explain the gender effect differences. Further, she suggests that this analysis reveals concerns about the arbitration process more broadly: do the employers’ advantages as a repeat player, the arbitrators’ competitive pressures, and the arbitrators’ unmonitored discretion in decision-making all combine to explain both the gender effect differences and problematic biases in the arbitration process?
Thursday, August 24, 2017
It is common for judges to publish guidance for lawyers who appear in their courtrooms on how to conduct themselves with regard to minor matters like how and when to file motions. But on Wednesday, Jack B. Weinstein, a senior federal judge in Brooklyn, used this typically mundane process to address an issue of growing concern to many in the legal profession: the lack of female lawyers in leading roles at trials and other court proceedings.
Following the lead of a handful of other federal judges, Judge Weinstein issued a court rule urging a more visible and substantive role for young female lawyers working on cases he is hearing.
The issuance of the rule was just one jurist’s effort to chip away at the traditional old-boy network that has dominated the legal profession for decades. While some women have, of course, ascended to the top of the legal field, serving on the United States Supreme Court, many still face challenges getting heard in court.
Judge Weinstein has informally encouraged young women and minorities to participate in court more actively over the years, but in an interview on Wednesday he said he decided to codify the guidance after a recent New York State Bar Association report found that female lawyers appear in court less frequently and that when they do, they are less likely to have a prominent role.
At least one other federal judge in Brooklyn, Ann M. Donnelly, has an analogous rule in place, but that sort of guidance is rare. Of the hundreds of other federal judges around the country, only about 20 have established similar provisions, according to the bar association.“I’ve been doing this on my own for some time, but not in a systematic way,” Judge Weinstein, who is 96, said. “It’s particularly important because we have so few trials these days so some of the youngsters don’t get the same training they used to. It’s important for everyone, and for the litigation process, that the upcoming generation understands the fundamentals and just gets up on their feet.”
Friday, August 4, 2017
Brooke D. Coleman, A Legal Fempire? Women in Complex Civil Litigation, 93 Indiana L.J. (2017)
This essay begins from the view that gender equity is important to the functioning and legitimacy of our legal system, and assesses gender equity—or rather the lack thereof—within the legal profession. First, the essay reflects on the gender bias task force movement that began almost four decades ago. Second, using a case study approach, the essay updates that work by examining the role of women on the Judicial Panel for Multidistrict Litigation, as judges, and in multidistrict litigation leadership roles. Finally, after assessing the ongoing barriers to gender equity in modern complex civil litigation as well as its modest gender equalizing reforms, the essay closes with a set of proposals for how to move toward gender equality.
Monday, July 17, 2017
While it is over 40 years since women won the right to be included on jury selection panels, men continue to dominate most juries in serious criminal trials.
An analysis by The Irish Times of 200 trials in the Central Criminal Court, which deals almost exclusively with rape and murder, shows that men dominated the jury in 57 per cent of cases.
Women dominated the jury in only 17 per cent of cases, while there was an even six/six split between the genders in 26 per cent of cases.
The gender imbalance was most noticeable in rape trials, where 61 of 100 juries were dominated by men compared to only 13 dominated by women. To put it another way, 723 men sat on the juries compared to 477 women.
In murder cases male jurors were in the majority in 52 cases compared to 23 with female-majority juries.
Both the reasons and consequences of the gender imbalance in Irish juries remain unclear, mainly due to the secretive nature of jury selection and jury deliberation.
Many studies suggest women are more likely to judge female rape complainants harshly and to acquit men accused of rape. In 2009, Irish academics who studied 108 rape trials found that male-dominated juries had the highest conviction rate. There was not a single conviction in the 17 cases which had female-dominated juries.
Friday, July 14, 2017
Instead of sentencing a woman to jail time for laughing during Jeff Sessions' confirmation hearing, a D.C. judge threw out the woman's conviction and called for a new trial.
Desiree Fairooz says her laughter during the attorney general's confirmation hearing in January was involuntary. (She was reacting to an assertion that Sessions treats all Americans equally.) Fairooz, who is an activist with the Code Pink organization, then protested as she was physically removed from the hearing. In May, she was convicted by a jury of disorderly, disruptive conduct and obstructing passage on U.S. Capitol grounds.
The charges carried up to a year in prison and a fine of up to $2,000. Two other protesters at Sessions' hearing faced similar charges.
But on Friday, the D.C. Superior Court judge overseeing Fairooz's sentencing called for a new trial instead.
Ryan Reilly of the Huffington Post reports that Chief Judge Robert Morin decided that the government improperly argued that Fairooz's laugh alone — not her reaction to being removed from the courtroom — would be enough to find her guilty.
Monday, July 10, 2017
Maggie Hennefeld, On the Criminalization of Female Laughter
On January 10 2017, Desiree Fairooz, a 61-year-old Code Pink protester, was forcibly removed and arrested for laughing at Jeff Sessions during his Attorney General confirmation hearings. Fairooz’s eruption was provoked by an extremely laughable punch line, when Republican Senator Richard Shelby stated that Sessions has an “extensive record of treating all Americans fairly under the law,” adding that this claim “is clear and well-documented.”
As a description of a man who was once denied a federal judgeship due to concerns about his racism, who openly advocates anti-immigrant and anti-LGBTQ policies, and who casually jokes about the Ku Klux Klan, Shelby’s utterance was patently absurd and very deserving of public mockery and voluble laughter. For her protest, Fairooz now faces up to a year in jail and $2,000 in fines.
Her conviction in early May elicited a viral storm of outraged responses, including headlines such as “A Woman Is on Trial for Laughing During a Congressional Hearing,” “Activist’s Giggle Leads to Conviction,” and a piece authored by the Medusan disruptor herself, “I’m Facing Jail Time After Laughing at Jeff Sessions. I Regret Nothing.
How unprecedented is Fairooz’s indictment? Women are held in contempt of court all the time for laughing out loud at devastatingly inappropriate moments. In February 2017, a woman was sentenced to 93 days in jail for her voluble mirth at the gruesome details of a man’s death in a DUI accident, while the family members of the deceased were present in the courtroom. Laughing in disrespect of the dead has a legacy of retributive punishment: in 1862, a Confederate woman named Eugenia was arrested for laughing at the funeral procession of a Union soldier (she had also encouraged her children to spit on the uniforms of Union officers).
However, it was not the fact of Fairooz’s laughter that caused her arrest, so much as what it signified: to “impede and disrupt then Senator Sessions’ confirmation hearing by drawing attention away from the hearing itself and directing it instead toward the Defendants’ perception of the nominee’s racist views, policies, and voting record” (from a government motion filed against her). Her laughter evokes the anti-patriarchal outbursts in the classic feminist film, A Question of Silence (Marleen Gorris, 1982), in which three unruly women laugh exuberantly at their own murder trial, in response to the prosecution’s outlandish pretense that they live in a post-sexist society. (The women are on trial for killing a male boutique owner, whom they beat to death in an unpremeditated outburst of joyful fury due to his harassment of a female shoplifter.) In the film’s courtroom, this “question of silence” refers to the tyranny of lacking a voice against routine injustice, which then can only be articulated through defiant and disruptive laughter. ***
If we’ve come a long way with our laughter since the English Civil Wars of the 1640s—learning to laugh in empathy, in playful recognition of absurdity, or out of sheer muscular relief—this message has since been lost on Donald Trump and Jeff Sessions. Catharine A. MacKinnon, Professor of Law at the University of Michigan and long-term visitor at Harvard Law School, has offered comment:
Criminally charging and potentially sentencing Ms. Fairooz for a brief spontaneous injection of political laughter as ‘disruptive’ when it, at least, so clearly was not looks like an overly thin-skinned reflex reaction to a woman appropriating what is usually a masculine form of power: ridicule, public humiliation by humor, in this case political speech against racism.
Tracy Thomas, Seiberling Chair of Constitutional Law at the University of Akron, suggests that being laughed at by a woman is perhaps “one of [men’s] greatest fears.” In a correspondence with her, Thomas referenced a survey from Nancy Dowd’s The Man in Question, “where women report their greatest fear is rape and murder, while men’s greatest fear is being laughed at.” Or, as the Canadian novelist Margaret Atwood has put it, “Men are afraid that women will laugh at them. Women are afraid that men will kill them.” To this point, the journalist and American humorist, Helen Rowland, wrote in 1922 that “a man will forgive his wife for committing robbery, or murder, or breaking the Ten Commandments, yet threaten to leave her for laughing at the wrong moment”—should she be so fortunate that he doesn’t beat or kill her. In 1893, a New Haven court heard the divorce petition of Emma B. Phelps, who described the time “she laughed at her husband…and he ‘knocked her senseless’” (another time he threatened to kill her with a carving knife because she would not give him her watch).
Thursday, July 6, 2017
Ellen Bublick, How Much is Your Injury Worth? First Tell me Your Race and Gender, JOTWELL, reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.
When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs. As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)
Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)
The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010), and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”