Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, April 16, 2018

Ninth Circuit En Banc Rules that Women's Salary Histories Cannot be Used to Justify Unequal Pay

ABA J, Salary History Doesn't Justify Paying Women Less, 9th Circuit Rules in Opinion Written by Late Judge

An en banc federal appeals court ruled Monday that salary history cannot be used to justify paying less to women in comparable jobs.

 

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that salary history is not relevant in a suit under the Equal Pay Act, report the Recorder, the Los Angeles Times and Courthouse News ServiceHow Appealing links to additional coverage and to the opinion.

 

The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” The defendants had argued salary history was a factor “other than sex.”

 

The appeals court ruled that “a factor other than sex” is limited to legitimate, job-related factors such as experience, educational background, ability or prior job performance.

 

Prior salary, whether considered alone or with other factors, is not job-related, and relying on it perpetuates discrimination, the appeals court said.

 

Federal appeals courts are split on the issue, according to the National Law Journal. The U.S. Courts of Appeals for the Denver-based 10th Circuit and for the Atlanta-based 11th Circuit have held that prior pay can’t be considered alone as an exemption to equal pay laws. The Chicago-based 7th U.S. Circuit Court of Appeals has ruled salary history can be considered.

The decision is here at Rizo v. Yovino (9th Cir. en banc April 9, 2018)

There were three concurrences (5 judges of 11), with two of the concurrences reserving the option for businesses to use salary histories as a relevant, but not determinative, factor in pay decisions.  Three of the four women on the en banc panel joined a concurrence (only one of whom is a Republican appointee). 

For prior coverage of the earlier panel decision on this blog, see 

9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History (Sept. 2017)

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination (May 2017)

Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less (May 1, 2017)

April 16, 2018 in Courts, Equal Employment | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Sixth Circuit Recognizes Possible Title IX Erroneous-Outcome Claim in Campus Sexual Assault

Justia Opinion Summary: Doe v. Miami U

John attended a party, drank six beers, then proceeded to a bar and drank more beer and alcohol. He left the bar in the early morning, sufficiently intoxicated that he cannot remember what happened for the remainder of the night. Based on text messages he later found on his cellphone, John knows that he called Jane. The two had engaged in several prior physical encounters. Jane, who had also been drinking, joined John in his bed. According to Jane’s subsequent statement, the two engaged in some consensual sexual acts, but Jane stopped consenting and John continued to engage in non-consensual sexual acts. John was found responsible for violating Miami University’s sexual assault policy and was suspended for four months. John sued Jane, Miami University, and individual University employees. John and Jane reached a settlement. The court dismissed John’s remaining claims. The Sixth Circuit affirmed the dismissal of John’s Title IX hostile-environment claim, Title IX deliberate-indifference claim, and 42 U.S.C. 1983 substantive-due-process claim. The court reversed, in part, finding that John sufficiently pleaded procedural-due-process and equal protection claims against one employee based on the claims that she was not an impartial adjudicator and did not fully disclose the evidence against him. The court also reversed a finding of qualified immunity as to that employee and held that John sufficiently pled his Title IX erroneous-outcome claim.

Doe v. Miami University (6th Cir. Feb. 9, 2018) (opinion by Karen Nelson Moore)

We agree with the district court that John has pleaded sufficient facts to cast “some articulable doubt on the accuracy” on the outcome of his disciplinary hearing. He alleges that he was so intoxicated that he cannot recall the critical events in question.  Thus, John’s only knowledge of what occurred is drawn from Jane’s description.  In her written statement, Jane describes a series of sexual acts between herself and John, some of which were consensual and some of which were not.
She states that she initially agreed to digital penetration, but at some point told John to stop. Id. John did stop, but only after some period of time had passed. Then John asked Jane if he could engage in oral sex. According to Jane, she said no, but John proceeded anyway and Jane responded by pushing him away, rather than re-verbalizing her denial of consent.  John then stopped. Jane also states, however, that “I never said no.”

[John was suspended by Miami for three terms].

Taken together, the statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the motion-to dismiss stage a reasonable inference of gender discrimination. John alleges facts showing a potential pattern of gender-based decision-making that “raise a reasonable expectation that discovery will reveal” circumstantial evidence of gender discrimination. He asserts that every male student accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible for the alleged violation, and that nearly ninety percent of students found responsible for sexual misconduct between 2011 and 2014 have male first-names. Additionally, John incorporated an affidavit from an attorney who represents many students in Miami University’s disciplinary proceedings, which describes a pattern of the University pursuing investigations concerning male students, but not female students. Lastly, John points to his own situation, in which the University initiated an investigation into him but not Jane, as evidence that Miami University impermissibly makes decisions on the basis of a student’s gender. Discovery may reveal that the alleged patterns of gender-based decisionmaking do not, in fact, exist. That information, however, is currently controlled by the defendants, and John has sufficiently pleaded circumstantial evidence of gender discrimination.

...

John also alleges that the two other members of his Administrative Hearing Panel (Van Gundy-Yoder and Elliott) and the two individuals who decided his appeals (Ward and Brownell) were not neutral decision-makers.  He argues that Van Gundy-Yoder and Ward were biased due to their research interests. But merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased. John also alleges that all of these individual defendants faced institutional pressures to find him responsible due to external influence from the federal government and lawsuits brought by private parties. 

April 10, 2018 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Tuesday, April 3, 2018

Public Perceptions of Gender Bias in the Decisions of Female State Court Judges

Michael P. Fix & Gbemende E. Johnson, Public Perceptions of Gender Bias in the Decisions of Female State Court Judges, 70 Vanderbilt L. Rev. 1845 (2017)

How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial outcomes. Does the public perceive the decisions of female state court judges as being “biased” by their gender identity, particularly in cases involving reproductive rights/family law? Also, does the public view female judges on state courts as more likely to rely on ideology when ruling in cases? Using a survey experiment that varies judge gender in a state child custody case, we examine whether respondents exhibit less support for judicial decisions authored by female state court judges. Additionally, we test whether respondents are more likely to perceive the decisions of female state court judges as ideologically biased or as a product of gender influences (as compared to male judges). Finally, we assess whether these effects are conditional on or exacerbated by respondent characteristics such as gender, race, and religiosity. The influence of gender on public response to state court decisions has important implications for our understanding of why certain court decisions find public support and acceptance.

April 3, 2018 in Courts, Judges | Permalink | Comments (0)

State Civil Rights Remedies for Gender Violence

Julie Goldscheid & Rene Kathawala, State Civil Rights Remedies for Gender Violence: A Tool for Accountability

This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that.

In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable. 

In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.

April 3, 2018 in Courts, Violence Against Women | Permalink | Comments (0)

Tuesday, March 27, 2018

Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities

Charles Craver, Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining process and how it operates, such information greatly enhances their likelihood of interacting effectively. Well-prepared minorities and women should thus be able to seek advantageous terms for themselves in ADR, even when dealing with white-male counterparts. Conversely, there is no guarantee that members of ethnic groups or women would achieve more advantageous outcomes in judicial proceedings. Even the formal rules of judicial proceedings may be influenced by subconscious stereotypes that still influence the ways that judges, jurors, and arbitrators assess litigant situations. Therefore, this article posits that adjudication is not clearly preferable to ADR procedures for minority group members and women.

March 27, 2018 in Courts, Gender | Permalink | Comments (0)

Monday, March 26, 2018

Doubting the Testimony and Dismissing the Experience of Domestic Violence Survivors and Other Women

Deborah Epstein & Lisa Goodman, Discounting Credibility: Doubting the Testimony and Dismissing the Experience of Domestic Violence Survivors and Other Women, 167 U. Penn. L. Rev. (forthcoming)

In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.

We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.

Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury--an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.

March 26, 2018 in Courts, Violence Against Women | Permalink | Comments (0)

Thursday, March 22, 2018

Evaluating Leadership Patterns of Modern Canadian Chief Justices

Cindy Ostberg & Matthew Wetstein, Strategic Behavior and Leadership Patterns of Modern Chief Justices

This study uses theories of strategic behaviour, leadership change and feminist theory to examine patterns of judicial activity by the three post-Charter chief justices. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973-2014 period. While Chief Justice Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin after her promotion to chief. She moved from a prolific dissenter as an associate justice to a chief that exhibited behaviour of both a task and social leader, which scholars see as highly uncommon. Her efforts to solidify her central role as a collegial leader within her own court are remarkable, and took place during a period of increasing panel sizes and a shrinking court docket.

March 22, 2018 in Courts, International, Judges | Permalink | Comments (0)

Friday, March 9, 2018

Where are the Women on the European Court of Justice?

Rebecca Gills & Christian Jensen, Where are the Women? Legal Traditions and Descriptive Representation on the European Court of Justice, in Politics, Groups, and Identities (Feb. 2018)

What constrains the representation of women on the European Court of Justice (ECJ)? In this paper, we investigate how gender-based double standards can diminish the likelihood that the member state will select a female candidate. We find that the appointment of women to the ECJ depends upon the relationship between the appointee's policymaking backgrounds and the degree to which legal traditions in the member state provide policymaking experience to ordinary judges. The fact that this configuration has a disparate impact by candidate gender reflects the fact that female candidates are expected to demonstrate partisan neutrality or policymaking expertise, while male candidates are assumed to have these traits. Our findings demonstrate the importance of informal job requirements and institutional constraints on the ability of governments to achieve their representation goals.

March 9, 2018 in Courts, Gender, International, Judges | Permalink | Comments (0)

Wednesday, February 28, 2018

Book Review: Justice Claire L’Heureux-Dubé: A Life

Kim Brooks, Justice for Equality, JOTWELL, reviewing Constance Backhouse, Claire L’Heureux-Dubé: A Life (2017).

Claire L’Heureux-Dubé was Canada’s second woman to join our Supreme Court of Canada. She was famous for her strong personality, her charm, her directness, and eventually her willingness to dissent. She was loved by some, loathed by others.

My opening paragraph so dramatically understates the significance of Justice L’Heureux- Dubé. It pretends that the life of one woman – a woman who faced substantial personal and professional challenges – can be adequately captured in a few words.

Enter Constance Backhouse’s brilliant biography. Biography is an art. How to render a person visible? To be appropriately honest about her failings and reflective about her successes? To situate her life within its broad context – social, political, economic, and scientific? To reflect her social character – her relationships and the effects of those relationships on the path of her life?

Backhouse’s considerable work answers these questions.

In over 700 meticulously researched pages, she takes us on a magnificent journey. ***

These opening twenty-eight chapters (in a book with thirty-eight chapters) are gorgeously written with specificity that leaves the reader feeling like she is standing right beside L’Heureux-Dubé as her life unfolds. That’s credit to Backhouse’s use of detail, her reliance on hundreds and hundreds of hours of interviews with L’Heureux-Dubé and those who know her, and her fierce analytical skill, which renders plain the subtle.

Unconventionally, but useful especially to the legally trained reader, the biography then looks carefully at six of Justice L’Heureux-Dubé’s Supreme Court of Canada decisions – decisions she rendered on sexual assault, spousal support, human rights for same-sex couples, tax law, Quebec secession, and immigration. These decisions are presented as signature moments in Justice L’Heureux-Dubé’s self-expression. Backhouse situates each decision in its broader social context. Each of these last six chapters has its own story to tell and each should be included in any course materials that include the underlying decision. Each is dazzling.

February 28, 2018 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Tuesday, February 27, 2018

Trying Campus Rape in a Court of Law

NYT, At Yale, Trying Campus Rape in a Court of Law

There is no log of how many campus rape cases go to trial each year, but experts and victim advocates agree that the number is vanishingly small. The Department of Justice estimates that between 4 percent and 20 percentof female college students who are raped report the attack to law enforcement. Of reported cases, only a fraction lead to arrests, let alone a trial.

 

The one at Yale, then, might seem like a perfect case to test the fiercely debated question of whether college rape accusations are best handled by internal university panels or by law enforcement.***

 

“This isn’t about which institution is better,” said Janet Halley, a Harvard Law School professor who has written about the legal implications of Title IX enforcement. “It’s about what happens when you put two institutions into the same process and they have different rationalities, different institutional cultures — but above all different rights attached to them.

 

“This is oil and water flowing in together.” ***

 

The debate around who should handle investigations seems unlikely to fade. Even as Ms. DeVos has permitted universities to more closely align their hearing processes with those the criminal justice system, she has also retained the requirement that schools investigate claims of sexual misconduct, rather than simply hand them off to law enforcement.

February 27, 2018 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Wednesday, February 14, 2018

Book: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession

Book Review: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, by Elaine Craig

Dalhousie law professor Craig’s impeccably researched book, which analyzes how Canada’s criminal justice system contributes to the trauma of sexual assault victims, is an outstanding work that dovetails perfectly with the #MeToo movement. Working from interviews with legal professionals, analyses of problematic judicial decisions, and reproductions of stomach-turning trial transcripts, Craig (Troubling Sex) skewers the still prevalent notion that Canadian sexual assault survivors enjoy a free pass in the courts. By reproducing contemporary accounts of aggressive cross-examinations that “whack the complainant,” unsavory defense strategies intended to intimidate complainants into withdrawing their cases, and reliance on rape myths—revealing clothing, alcohol use, past sexual history—in criminal trials, Craig expertly makes the case that, despite progressive law reforms, the legal system remains predominantly unsafe for survivors. Combining academic rigor with an eminently readable style that is cohesive and fearless (prominent lawyers and judges are pointedly called to account), Craig makes several proposals—including improved education and training for all judicial system participants, public reporting of all decisions, and making courtroom culture less imposing—that would mitigate harm without impinging on the rights of the accused. This is a must-read title for judges, lawyers, politicians, courtroom staff, and anyone concerned about sexual violence.

February 14, 2018 in Books, Courts, International, Violence Against Women | Permalink | Comments (0)

Thursday, February 8, 2018

Examining Feminist Legal Briefs to SCOTUS for Their Use of Race–Gender Analogical Legal Framing

Holly McCammon, Brittany N. Hearne, Allison R. McGrath, Minyoung Moon,  Legal Mobilization and Analogical Framing: Feminist Litigators' Use of Race-Gender Analogies, 40 Law & Policy 57 (2018).

From the Introduction:

In an effort to contribute to our understanding of social movement judicial legal mobilization, our paper explores legal briefs submitted to the US Supreme Court in gender-equality cases since 1970. We focus particularly on the use of a specific type of legal framing in these briefs: analogical legal framing. As Sunstein (1993) points out, this is a commonly used form of reasoning in litigation, and some (Mayeri 2001; Rush 1997) argue that it is a dominant form, particularly in civil rights litigation. In analogical legal framing, a litigant argues that similarities exist, for instance, between two groups, and developments in law regarding one group should be considered in adjudication concerning the other group (Mayeri 2001; Sunstein 1993).2 Here we specifically investigate feminist litigators' use of race–gender analogies in their cause lawyering. Feminist cause lawyers have pursued a substantial number of cases before the high court over the last several decades in an effort to achieve greater gender equality under the law. In such cases, with some frequency, the feminist party to the case (that is, the party seeking greater gender equality) draws an analogy between racial and gender discrimination as they argue in favor of broadening gender equality. In fact, MacKinnon (1991, 1281) goes so far as to state that “the judicial interpretation of sex equality … has been built on the racial analogy.” Mayeri (2011, 3), who examines in rich detail “reasoning from race,” states that “‘second-wave’ feminists conscripted legal strategies developed to combat race discrimination into the service of women's rights.”

 

Various scholars explore whether and how movement activists invoke the law generally (e.g., Pedriana 2006; Andersen 2005; McCann 1994), yet few examine how cause lawyers articulate their demands in court. Our investigation contributes to the larger literature on legal mobilization by taking a number of steps. First, we explore the use of analogical legal framing by activists, a type of litigation reasoning commonly used but not yet investigated as a form of movement framing. We examine the frequency and trends in the use of such arguments in feminist briefs presented to the Supreme Court in gender-equality cases from 1970 to the present. In addition, we provide insight into the various forms the race–gender analogy takes. Second, we consider how social movement framing concepts, such as frame bridging and transformation (Snow et al. 1986), can be understood in combination with analogical legal framing.

 

Finally, our research also contributes to the understanding of why activists choose to deploy particular types of frames. A handful of scholars have investigated the circumstances shaping why movements articulate certain types of frames (e.g., McCammon 2012; Coe 2011; Maney, Woehrle, and Coy 2005), but few have considered the circumstances leading to the use of specific frames in movement litigation (for exceptions, see Goldberg 2014; Fuchs 2013; Ziegler 2011). Our investigation of analogic framing by feminist legal activists will enrich our understanding not only of movement framing but also (in particular) of framing as practiced by activists engaged in legal mobilization. By examining why shifts in the overall use and in the varying types of the analogic frame occur, our research furthers understanding of this particular form of legal mobilization strategy.

February 8, 2018 in Courts, Legal History, Race, SCOTUS | Permalink | Comments (0)

Tuesday, January 30, 2018

MeToo in the Courts: An Investigation into the Complaints

Joan Biskupic, #MeToo in the Courts: Sexual Misconduct Kept Under Wraps,  CNN Investigation

The abuse women have suffered in the nation's courthouses has been a largely untold story. And its system for complaints -- where judges police fellow judges -- is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.***

 

Rarely do sexual misconduct allegations against federal judges become public, . . . as they did in late 2017, with myriad complaints against California-based US Appeals Court Judge Alex Kozinski that drew national attention in the current #MeToo moment, forcing his resignation....

 
CNN compiled and reviewed nearly 5,000 judicial orders related to misconduct complaints and available online over the past 10 years. The documents, covering an array of misbehavior beyond sexual misconduct, are remarkably short on details.
  
The CNN analysis found that:
  • Very few cases against judges are deeply investigated, and very few judges are disciplined in any way. In many years, not a single judge is sanctioned.
  • None of the actual complaints (more than 1,000 are filed annually) are made public. In the public judicial orders, claims are sparingly summarized, and accused judges' names rarely appear. Some orders refer to "corrective action" by a judge without saying what happened.
  • Judicial orders are dumped onto circuit court websites as a series of numbered files with no indication of the allegations, person complaining or outcome. The practice makes it even more difficult to identify the most serious misconduct cases hidden among the opaque lists of documents because each order must be opened and individually read to gain even minimal information about the nature of the complaint.
In the 12-month period that ended September 30, 2016, there were 1,303 complaints filed. Of those, only four were referred to a special committee for the most serious level of investigation, according to the Administrative Office of the US Courts. In 2015, of the 1,214 complaints, four went to a special committee.
  
Going back to 2006, fewer than 10 cases annually were deeply investigated and even fewer resulted in disciplinary action. In six of the past 11 years, not a single judge was reprimanded, suspended or otherwise sanctioned for misconduct.

January 30, 2018 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Thursday, January 25, 2018

Using the Courtroom for Restorative Justice in the Gymnastics Sexual Assault Case

 The Doctor and the Judge (podcast)

Dr. Lawrence G. Nassar was lauded as the go-to doctor for the United States’ best gymnasts. After he pleaded guilty to multiple sex crimes, Judge Rosemarie Aquilina cleared her docket to give each of his accusers a chance to speak at the sentencing hearing. More than 150 women, including several Olympians, confronted Dr. Nassar in the courtroom and spoke of their abuse. It took seven days.

 

It was an extraordinary use of the courtroom — and a new way of thinking about justice.

 

On today’s episode: Emily Bazelon, who covers legal issues for The New York Times Magazine.; Makayla Thrush, a former gymnast who made a statement at the sentencing, spoke to Sabrina Tavernise, a Times reporter.

Victims in Larry Nassar Case Find a Fierce Advocate: The Judge

Judge Aquilina, who has now allowed nearly 140 girls and women, including several prominent Olympic gymnasts, to give statements against Dr. Nassar, leaned forward from the bench. She smiled at the gymnast, Bailey Lorencen, and delivered her own heartfelt statement in a manner and tone befitting a therapist.

 

“The military has not yet come up with fiber as strong as you,” Judge Aquilina told Ms. Lorencen, calling her a “heroine” and a “superhero.” She added: “Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.’ Thank you so much for being here, and for your strength.”

 

Belying the stone-faced image of dispassionate jurists, Judge Aquilina has emerged as an unusually fierce victims’ advocate in a sentencing hearing that has drawn national attention for the scope of Dr. Nassar’s abuse and for the role that institutions like U.S.A. Gymnastics and Michigan State University played in employing him for decades.

 

Judge Aquilina’s vow to let every victim speak has also unexpectedly turned the hearing into a cathartic forum that has emboldened dozens of women who had remained silent to come forward with accounts of abuse by Dr. Nassar. Court officials initially had expected 88 young women to speak when the hearing began last week, but the number is expected to top 150 by the time these proceedings conclude.

 

Judge Aquilina, 59, who has written crime novels and served 20 years in the Michigan Army National Guard, has offered encouragement, consolation and tissues. She has made no secret that she wants Dr. Nassar to spend the rest of his life suffering in prison.

 

And, in an extraordinary session streamed live on the internet over several days, she has opened her courtroom to any victim who wishes to speak, for however long she wishes to speak. That goes for their coaches and parents, too.

 

“Leave your pain here,” Judge Aquilina told one young woman, “and go out and do your magnificent things.”

 

Stephen Gillers, a professor of law at New York University, said that although judges are often thought of as unbiased and impartial, it is important to remember that this is a sentencing hearing, not a trial. Dr. Nassar, who has already received a 60-year federal sentence for a child pornography conviction, pleaded guilty to several state sexual assault charges and will be sentenced after the “victim impact statements” are finished.

The Transformative Justice of Judge Aquilina

For survivors of rape and abuse, testifying about what they’ve experienced can be a brutal ordeal. They can be badgered and disoriented by defense attorneys on the stand, and have their characters closely prodded and maligned. But Judge Aquilina, again, upended this ritual, enabled by the fact that it was a sentencing hearing, not a trial. She turned obligation into empowerment. She told the women speaking, again and again, how strong they were, how powerful, how full of potential. After Mattie Larson spoke about how Nassar turned “the sport I fell in love with as a kid into my personal living hell,” Judge Aquilina commended her courage. “You are so strong and brave and you are not broken,” she said. “You are glued back together perfectly. Thank you for being part of the sister survivors. Your voice means everything.”

Judge Aquilina Garners Praise, Some Criticism in Larry Nassar Case

Though many have commended Aquilina for giving victims a forum to speak, one judge who has known her for years criticized her as showing favoritism.

 

Ingham County Circuit Judge William Collette said Nassar’s sentencing was “the most violative” sentencing proceeding he can recall. Collette questioned why Aquilina would allow women who are not part of the criminal case to address Nassar in court. He also found it inappropriate for her to tell Nassar, “I just signed your death warrant.”

 

“There has to be some semblance of fairness, no matter how much you hate the person,” Collette said.

 

“Doing justice is one thing," he said. "It is not a judge’s function to get people healed.”

January 25, 2018 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Wednesday, January 10, 2018

Fourth Circuit Allows Pay Gap Case to Move Forward over Dissent on State Sovereignty Grounds

EEOC Wins Battle Over Maryland Insurance Regulator Pay

A federal appeals court has put a pay discrimination suit against the Maryland Insurance Administration back in action.

 

A three-judge panel at the 4th U.S. Circuit Court of Appeals has ruled, 2-1, that the U.S. Equal Opportunity Employment Commission (EEOC) can move forward with a lawsuit alleging that the insurance regulatory agency may have paid female employees less than it paid male employees holding comparable jobs.

 

The EEOC has presented evidence in the case, EEOC v. Maryland Insurance Administration (Case Number 16-2408), suggesting that the agency paid three former fraud investigators who are women less than it paid four former fraud investigators with comparable credentials and experience who are men.

 

The EEOC showed that the female investigators ended up earning $45,503 to $50,300 per year. The male investigators earned from $47,194 to $51,561 per year.

 

A judge at the U.S. District Court in Baltimore granted summary judgment in favor of the Maryland Insurance Administration.

 

Two judges at the 4th Circuit, Circuit Judge Barbara Milano Keenan and Circuit Judge Henry Floyd, overturned the lower-court ruling and agreed to let the EEOC move ahead with the suit.

Judge Wilkinson dissent on state sovereignty grounds.

J. Harvie Wilkinson III, the third judge on the panel, voted to uphold the lower-court ruling. In a dissenting opinion, he blasted his colleagues for ignoring Maryland's sovereign rights.

"The majority refuses to so much as mention a state's sovereign interest in its own civil service," Wilkinson writes. "The place of state governments in our Republic has quite passed it by. Respect for states [as] states fails to merit even the slight courtesies of lip service."

Given that, legally, the United States still has a federal system, and states still have rights, the EEOC should not have brought such a marginal case against a state, Wilkinson writes.

"State workforces are highly regulated and regimented, and state law provides remedies for gender discrimination in all its forms," Wilkinson writes. "Simply put, state civil service systems are not hotbeds of gender bias, as this feeble suit makes all too clear."

The Maryland Insurance Administration suit puts Maryland's sovereign interest in its own workforce entirely in the hands of federal authorities, Wilkinson writes.

"Here, a federal agency is bringing suit, the federal courts are deciding the suit, and federal law is providing the applicable rule of decision," he writes. "In combination, this assertion of federal authority diminishes to an unacceptable extent the proper role of states in our constitutional system."

The majority opinion and the dissent are available here

 

January 10, 2018 in Courts, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, January 9, 2018

Oregon Justices Share Experience of Sitting on Majority Female Bench

Justices of the Oregon Supreme Court

Oregon Justices Share Experiences of Sitting on Majority Female Bench (video)

For the first time in state history, there are more women than men sitting on the Oregon Supreme Court.***

 

Justice Rebecca Duncan was the female justice to tip the scale after being appointed to the bench by Governor Kate Brown in May of 2017.

 

Duncan told FOX 12 the fact that the majority of justices are women is very meaningful, not only for her and the other women on the court, but also for women and girls across the state.

 

“It sends the signal that times do change and progress can be made,” she said. “I heard from people who were incredibly excited, and there were people who had gone to law school, or where law school wasn’t even really an option for them at the time they were entering their professional lives just because of what was viewed as available career paths for women, and they were so excited to see what had been a limit no longer existing.”

 

Justice Martha Lee Walters, Justice Lynn Nakamoto and Justice Meagan Aileen Flynn said they too have heard similar stories since that momentous day.

 

“Everybody wants to know that they’re going to be heard if they appear before a court of law.  What’s the most important thing to them? That they’re going to be listened to, that they think they’re going to have a fair hearing,” Walters explained. “So, if people see people on the bench who they think are similar to them in some way, it makes them think, ‘Oh, there’s someone who I think will listen to me.’ So, we need to have great diversity.”***

 

 

 

The four justices say they are honored to sit on Oregon’s highest court and hope this historic appointment encourages other young women to pursue similar interests.

 

“It’s nice to see that women have now gotten into more senior positions,” Nakamoto said. “That they are in a position to be on a high court."

 

There will soon be a fifth female justice in Oregon after Governor Brown announced Monday that Judge Adrienne Nelson from the Multnomah County Circuit Court will be replacing the retiring Justice Jack Landau.

 

The four current justices also told FOX 12 they are hopeful that majority-female supreme courts will one day be nothing notable at all and instead will be common.

January 9, 2018 in Courts, Judges | Permalink | Comments (0)

Thursday, January 4, 2018

Steps the Judiciary Needs to Take to Redress Sexual Harassment in its Own Courts

Lara Bazelon, After #MeToo Comes to the Courts

Chief Justice John G. Roberts Jr. took a long overdue step toward answering that question on Sunday when he announced that a working group would assess whether the judiciary’s disciplinary procedures are capable of addressing sexual harassment complaints and taking corrective action. The governing statute, passed by Congress in 1980, holds federal judges responsible for disciplining one another, save for the nine Supreme Court justices who are immune from any oversight.

 

But this process is shrouded in secrecy, with embarrassing allegations swept under the rug and sanctions that are inadequate to the offense. If the judiciary is going to better police itself, it must overcome its historical impulse to shield bad actors from consequences they would not hesitate to mete out to people who don’t wear black robes.

 ***

 

This ordeal makes it clear that the chief justice’s working group must overhaul the process to make it more robust and transparent. This is no easy task. The law mandates that all evidence, testimony and hearings relating to misconduct investigations be kept secret. But judges can — and should — publish detailed, well-reasoned opinions about the outcome of those cases to inform the public and maintain confidence in the integrity of the proceedings.

 

Also crucial to ensuring fairness is giving both sides the same procedural rights. The statute allows for equal treatment, but as enforced it is biased against the person who brings the complaint. An accused judge has the right to be present at a disciplinary hearing, to present testimony and witnesses, and to have a lawyer in any disciplinary case that is subject to investigation. The working group should provide the same rights to the person accusing the judge.

 

Sexual misconduct cases should also be automatically transferred from the circuit where they arose to a court in a different region of the country so that judges won’t have to pass judgment on a close colleague whom they see on a regular basis. (Before he resigned, Judge Kozinski was set to be judged by his colleagues on the Second Circuit, but only because Chief Justice Roberts had ordered that transfer.)

 

Finally, the working group should hold the nine Supreme Court justices accountable under the same standards. The fact that Congress exempted them when it passed the disciplinary law in 1980 is no excuse for refusing to play by the same rules as everyone else.

January 4, 2018 in Courts, Workplace | Permalink | Comments (0)

Saturday, December 30, 2017

Judges' Rules Help Establish Diverse Attorney Voices in Court

ABA J, Judges Push for Diverse Voices in Court

On the day U.S. District Judge Elizabeth Wolford received a copy of a New York State Bar Association report revealing that women participate in court at lower rates than men, the judge had a meeting to discuss a pending breach-of-contract case.

 

In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.

 

“It was one of the best arguments I have had the privilege of presiding over,” Wolford recalls.

 

According to the July report, female attorneys account for just 25 percent of counsels appearing in commercial and criminal New York state and federal cases. In more complex matters, the percentage declines further. A 2015 ABA report found similar numbers in a study of the Northern District of Illinois.

 

In August, Wolford implemented a standing rule that encouraged young attorney participation. Such rules, which often offer oral argument as incentive, are one way the NYSBA report recommends the bench help address litigation’s gender disparities.

 

Wolford’s rule was inspired by similar guidelines set forth by Judge William Alsup of the U.S. District Court for the Northern District of California. He implemented his rule soon after taking the bench in 1999, but he also requires large firms to document how they will integrate junior attorneys into a case. Alsup says he does so for the good of the profession, as well as for up-and-coming lawyers.

 

“If we don’t train the next generation, then lawyering will suffer and the public will lose confidence” in the system, he says.

 

None of the rules mentions gender or race. But the measures can have the effect of increasing opportunities for women and minorities because they now make up a greater share of young attorneys. In 2016, according to ABA data, women composed more than half of matriculating students at all law schools, and minorities made up more than a third of such students. In 2009, 47 percent of all enrolled students were women and 23 percent were minorities.

 

Attorney Sharon Porcellio, who worked on the New York bar report, says she thinks the rules are an innovative way to address an age-old problem.

 

“Those of us who have been practicing for a long time had hoped that the pipeline theory”—the idea that increasing numbers of women and minorities in law school would lead to equal representation in practice—“would work,” she says. “The pipeline theory has not proven to work.”

December 30, 2017 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, December 19, 2017

The Judge Kozinski Sexual Harassment Saga: From Beginning to End

Initially, seven women -- three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

 

The first accuser, Heidi Bond's responded further on the details on her allegation.

Bond made two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counseled against the potential consequences of steering women away from prestigious clerkships.

 

Additional women, including national reporter Dahlia Lithwick shared their metoo stories about Judge Kozinski.

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Acccomplices

Nine More Women Say Judge Subjected Them to Inappropriate Behavior Including Four Who Say He Touched or Kissed Them

 

Attorney Susan Estrich, also a feminist law scholar and professor at USC who wrote "Sex and Power" and "Sex at Work," represented Judge Kozinski.  She also formerly represented Roger Ailes in his sexual harassment case.  See NYT, The Curious Case of Susan Estrich

 

The case triggered much thought and commentary:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

Catharine Crump, Clerkships are Invaluable for Young Lawyers. They Can Also be a Setup for Abuse.

Debra Weiss, Will Complaints of Inappropriate Sexual Conduct by Kozinski have any Impact Impact

Judge Alex Kozinski's Opinion in a 2001 Sexual Harassment Case is Alarming 

 

As a result:

An inquiry was initiated.  Chief Judge Initiates Judicial Review of Allegations Against Alex Kozinski

Judge Kozinski retired on December 18, 2017. Alex Kozinski Announces Immediate Retirement Following Accusations of Sexual Misconduct

Chief Justice Roberts amended the law clerk handbook.  Newly Amended Law Clerk Handbook Affirms Harassment Complaints are Permitted.  "Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official," the handbook now says.

December 19, 2017 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)