Thursday, September 18, 2014
Anita Bernstein (Brooklyn) has published Gender in Asbestos Law: Cui Bono? Cui Pacat?, 88 Tulane L.Rev. 1211 (2014).
The large literature about liability for asbestos exposure has, for the most part, omitted gender. This omission matters. Men and women who sought redress in court fared very differently, and the two genders have shared unequally in the spoils of asbestos litigation and regulation. Here I ask: Cui bono? Cui pacat? In other words—English words—this Article investigates who has gained from and who has paid for the transfer of wealth put in motion by asbestos law.
* * *
The paradigm here starts with a married woman who inhales fibers that her husband, an asbestos worker, brought home from his job. Typically she did not encounter asbestos from any other source. She develops mesothelioma or asbestosis--both diseases bespeak asbestos exposure19--and seeks redress in court. Not all courts have said no to this plaintiff; some of the decisional law that comes out against wives treats them fairly. But the pattern of hostility is striking, especially in light of how comparatively well men injured by asbestos have fared in court.
Tuesday, September 16, 2014
I have published the 2014 edition of Women and the Law (Thomas Reuters). This annual edition collects selected top scholarship in women's legal rights from the past year. A sort of greatest hits of women and the law articles compiled for the researcher and practitioner to stay up on both current trends and the breadth of work in the field.
The Table of Contents:
Tracy A. Thomas, Back to the Future of Abortion Rights in the First Term, 29 Wis. J. Law, Gender & Soc’y 47 (2014)
Feminism and the Family
Melissa L. Breger, The (In)Visibility of Motherhood in Family Court Proceedings, 36 N.Y.U. Rev. of Law & Social Change 555 (2012)
Lauren Sudeall Lucas, A Dilemma of Doctrinal Design: Rights, Identity and the Work-Family Conflict, 8 FIU L. Rev. 379 (2013)
Violence Against Women
Carolyn B. Ramsey, The Exit Myth: Family Law, Gender Roles, and Changing Attitudes Toward Female Victims of Domestic Violence" 20 Michigan Journal of Gender & Law 1 (2013)
Sarah Lynnda Swan, Triangulating Rape, 37 NYU Review of Law and Social Change 403 (2013)
Women in the Workplace
Joan C. Williams, Double Jeopardy? An Empirical Study with Implications for the Debates over Implicit Bias and Intersectionality, 37 Harv. J. Gender & Law 185 (2014)
Kimberly Yuracko, Soul of a Woman: The Sex Stereotyping Prohibition at Work, 161 U. Penn. L. Rev. 757 (2013)
Laura Rosenbury, Work Wives, 36 Harv. J. Law & Gender 345 (2013)
Kimberley D. Krawiec, John M. Conley, Lissa L. Broome, The Danger of Difference: Tensions in Directors’ Views of Corporate Board Diversity", 2013 University of Illinois Law Review 919 (2013)
Women as Economic Actors
Linda Coco, Visible Women: Locating Women in Financial Failure, Bankruptcy Law, and Bankruptcy Reform, 8 Charleston L. Rev. 191 (2013)
Amy Schmitz, Sex Matters: Considering Gender in Consumer Contracts, 19 Cardozo Journal of Law & Gender 437 (2013)
Feminist Legal Theory
Rebecca Zietlow, Rights of Belonging for Women, 1 Indiana Journal of Law & Social Equality 64-99 (2013)
Aya Gruber, Neofeminism, 50 Houston L. Rev. 1325 (2013)
Thursday, September 11, 2014
When the curtain fell on California's legislative session, Assembly Speaker Toni Atkins released a bland statement celebrating its accomplishments. In it, she singled out a water bond, an on-time budget, and a bill that would cut down plastic bag use. What Atkins failed to mention: The state's first openly gay speaker had just wrapped up one of the most women-friendly legislative sessions ever. ***
Here's what passed:
- A bill requiring the state's commercial airports to offer a clean, private space for mothers to breastfeed or pump.
- A bill barring the sterilization of prison inmates
- A bill establishing timelines for local law enforcement to process rape kits.
- A bill expanding the definition of the word "harm" for the purposes of a restraining order to include and protect minors who were present during an act of domestic violence.
- A bill making it easier for pregnant graduate students to finish their studies.
- A bill bolstering Title IX enforcement.
- A bill strengthening the California attorney general’s oversight of hospital mergers (mergers that could limit access to abortion services).
- A bill requiring colleges to adopt an “affirmative consent” model in their sexual assault policies.
- A bill ensuring all California workers have the right to earn and use three paid sick days a year.
Friday, January 2nd
WILE Business Meeting (and Networking Event), 6:30-7:30 p.m.
(Note: This is a change in date and time from the printed program you likely received last month.)
Come to the WILE Business Meeting to learn more about how to get involved with WILE and to network with your colleagues from around the country. Chair-Elect Wendy Greene, Cumberland Law, is working to make this a fun networking event!
Saturday, January 3
Co-Sponsored Program, Liberty-Equality: Gender, Sexuality, and Reproduction—Griswold v. Connecticut Then and Now, 8:30 a.m. – 10:15 a.m.
Presented by the Section on Constitutional Law and co-sponsored by the Sections on Women in Legal Education and Legal History, this program marks the 50th anniversary of Griswold v. Connecticut, the ground-breaking Supreme Court decision recognizing a right to privacy that protected individuals in making decisions about the use of contraceptives from the reach of state criminal law, but spoke implicitly to the constitutional underpinnings of an individual’s rights or interests in intimacy, marriage, procreation, sexuality, and sexual conduct. Panelists will place the case in historical context, and explore the development of the Griswold doctrine, as well as its implications for current constitutional controversies over access to reproductive health care, marriage, sexuality and sexual conduct.
Section on Women in Legal Education Luncheon, 12:15 – 1:30 p.m.
We are pleased to announce that this luncheon honors both Justice Ruth Bader Ginsburg, who is scheduled to attend and for whom the Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award is named, and this year’s Award recipient, Herma Hill Kay, UC Berkeley. Join us to spend some time with and hear from our honorees.
Joint Program: Engendering Equality: A Conversation with Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and New Voices in Legal History, 1:30 – 3:15 p.m.
This Section on Legal History and Women in Legal Education Joint Program, co-sponsored by the Section on Constitutional Law, explores the history of women’s equality and the legacy of Justice Ginsburg. The first portion of the program will, through a conversation between Justice Ginsburg and Wendy Williams, consider the ideas and strategies shaping Justice Ginsburg’s efforts as an advocate, an academic, and a Justice to equal citizenship for women. The second portion of the program will present a panel of new voices in Women’s Legal History who study the complex and often contradictory ways in which social, political, and legal actors have appealed to gender and equality in movements of the past, and suggest how such studies might engender/inform equality’s future.
AALS Crosscutting Program: The More Things Change . . . Exploring Solutions to Persisting Discrimination in Legal Academia, 2:00 – 3:45 p.m.
This program, spearheaded by WILE Member Meera Deo, draws from empirical data, legal research, litigation strategy, and personal experience to both further conversations about the persistence of discrimination in the legal academy and activate strategies for addressing ongoing structural and individual barriers. Intersectional bias compounds many of these challenges, which range from the discriminatory actions of colleagues and students, to the marginalization of particular subject areas in the curriculum, to structural hierarchies in the profession.
By creating an avenue for direct personal exchange regarding these topics, the program seeks to build community between like-minded individuals who are diverse across characteristics of race, gender, class, teaching status, institution, and age. The focus of the participants is to share best practices and explore new approaches for overcoming ongoing discrimination, with the hope that these strategies may be more broadly employed.
The program follows an innovative format. After short presentations by three speakers, the program transitions to an “open microphone” session of speakers (selected in advance from a “call for remarks”) including those who are untenured, women of color, allies to marginalized faculty, clinical, legal writing and library faculty, and others with perspectives that may differ from the majority. The final thirty minutes are reserved for questions and conversation.
Monday, January 5
Co-Sponsored Program: Emotions at Work: The Employment Relationship During An Age of Anxiety, 10:30 a.m. -12:15 p.m.
This program, presented by the Section on Labor Relations and Employment Law and co-sponsored by the Sections on Socio-Economics and on Women in Legal Education, recognizes that in uncertain economic times that translate into uncertain times in the workplace, many individuals are experiencing a greater range and intensity of emotions at work, both as employees and as employers. Employees may be anxious about job security even when they have an employment contract or other job protections, may feel more pressure with respect to their work responsibilities, and may be emotionally (and not just financially) unprepared for sudden changes to their employment relationships and changes in career plans. Employers also are experiencing heightened pressure as they try to steer their work organizations safely past the rough economic waves while needing to make some hard decisions along the way. Are these emotions in the workplace openly recognized and managed, and if so, how? This panel explores the emotional aspects of the employment relationship and how employment law or workplace policy should address these concerns.
This year WILE established a subcommittee to organize an oral history project so that we might capture the law school experiences of women professors who have retired or are close to retiring before we lose touch with them in the profession. The subcommittee, headed by Marie Failinger at Hamline, has been working on an interview packet (invitation letter, release, tips for interviews, and sample questions) and on inviting senior law professors to be interviewed. Justice Ginsburg will be interviewed this month, but we still have several interviewees who need to be matched with an interviewer; we hope to have as many as 12 videotaped interviews on the Saturday and Sunday of AALS.
We could use your help as an interviewer for this project. Those who have done oral histories know that it's a great opportunity to forge a bond and learn a lot about what a previous generation of women law professors experienced. As mentioned, interviewers would be matched with an interviewee and supplied with the materials you need to do a good interview. All that is required of interviewers is a small amount of prep time and about an hour for the interview at AALS. If you are willing to interview, please contact Marie Failinger at firstname.lastname@example.org<mailto:email@example.com>, 651-523-2124, or Kerri Stone at firstname.lastname@example.org, 305 348-1154. Many opportunities to do interviews at future conferences or at home schools will be available, so even if you're not coming to AALS or have a full schedule there, please let us know if you'd be interested in interviewing at some point.
See you at AALS!
The AALS Section on Women in Legal Education Executive Committee
Kirsten Davis, Chair
Wendy Greene, Chair-Elect
Bridget Crawford, Immediate Past-Chair
Rebecca Zietlow, Secretary
Kerri Stone, Treasurer
Cindy Fountaine, Member-At-Large
Tuesday, September 9, 2014
Celebrate Constitution Day with The Constitutional Sources Project (ConSource), The Institute for Constitutional History at the New-York Historical Society and the George Washington University Law School. Tune in to a live webcast of Justice Ruth Bader Ginsburg's Constitution Day Lecture on September 12, 2014 at 1 p.m. ET: http://bit.ly/1ystgOc
Saturday, September 6, 2014
Russell Robinson (Berkeley) has posted Unequal Protection, 67 Stanford L. Rev. (2015)
During the last 30 years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a “racial classification.” It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefited from “animus” review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is LGBT claims. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this re-ordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny.
Specifically, I identify three advantages that LGBT people enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a “classification” as a gate keeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) LGBT cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation — quite unlike the Court’s adverse resolution of these questions in race cases.
These findings demand that law professors and legal scholars reconsider how they teach and write about equal protection.
Thursday, September 4, 2014
Ian Farrell and Nancy Leong (Denver) have posted, Gender Diversity and Same-Sex Marriage.
Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow opposite-sex marriage while banning same-sex marriage — even if the ban triggers heightened scrutiny under equal protection or due process — because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.
The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah's same-sex marriage ban in the Tenth Circuit and Kentucky's same-sex marriage ban in the Sixth Circuit.
Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.
Tuesday, August 26, 2014
Slate, Why It Felt So Amazing When Beyonce Stood in Front of that Glowing "Feminist" Sign at the Video Music Awards.
Thursday, August 14, 2014
Last week a Council on Contemporary Families online symposium provided new data suggesting that the stall in progress on gender egalitarian attitudes and behaviors has ended. Evidence has accumulated, and a stall in attitudes that started around 1994 may have turned around after 2004.
Thursday, August 7, 2014
From Justice Ginsburg's interview:
Justice Ruth Bader Ginsburg, fresh off a bruising loss in the Hobby Lobby birth control case last month, told Yahoo Global News Anchor Katie Couric in an exclusive interview that she believes the male Supreme Court justices who voted against her have a "blind spot" when it comes to women.
"Do you believe that the five male justices truly understood the ramifications of their decision?" Couric asked Ginsburg of the 5-4 Hobby Lobby ruling, which cleared the way for employers to deny insurance coverage of contraceptives to female workers on religious grounds.
"I would have to say no," the 81-year-old justice replied. Asked if the five justices revealed a "blind spot" in their decision, Ginsburg said yes.
The feisty leader of the court's minority liberal bloc compared the decision of her five male peers to an old Supreme Court ruling that found discriminating against pregnant women was legal.
Tuesday, July 29, 2014
Harper Jean Tobin and Jennifer Levi have posted Securing Equal Access to Sex-Segregated Facilities for Transgender Students, 28 Wisconsin J. Law, Gender & Soc'y 301 (2013).
If Title IX is to have any real meaning for transgender students, it must protect a student's ability to live and participate in school as a member of the gender with which they identify. This means that students must be permitted to use gender-segregated spaces, including restrooms and locker rooms, consistent with their gender identity, without restriction. Denial of equal access to facilities that correspond to a student's gender identity singles out and stigmatizes transgender students, inflicts humiliation and trauma, interferes with medical treatment, and empowers bullies. A student subjected to these conditions is, by definition, deprived of an equal opportunity to learn because of his or her transgender status, and therefore, because of his or her sex. Arguments against equal access reflect broader animus and stereotypes about transgender people, and rely on justifications that have been rejected by courts in related contexts. Access consistent with a student's gender identity is widely practiced, and is the only workable and nondiscriminatory approach that is consistent with Title IX's requirement of equal educational opportunity.
Kristin Collins (Boston U) has posted A Short History of Sex and Citizenship: The Historians' Amicus Brief in Flores-Villar v. US.
The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last thirteen years – was whether the gender asymmetry in this statutory scheme is consistent with constitutional sex-equality principles. The goal of the historians’ amicus brief in Flores-Villar was to explain to the Court how this ostensibly obscure citizenship law is part of a larger historical phenomenon: the persistence of gender-based sociolegal norms in determining citizenship. The introductory essay provides an overview of the account provided in the brief and discusses how generic conventions shaped the amicus brief’s presentation of the history of sex-based citizenship laws.
Tuesday, July 15, 2014
According to new research published in Archives of Sexual Behavior, the attitude that women shouldn’t be having sex can at least partly be traced back to the idea that women are supposed to be economically dependent on men. The researchers suggest that this link may drive conservative religious communities’ insistence on sexual purity....
The researchers conclude that this outdated attitude toward women’s pregnancy risks and financial needs hasn’t totally gone away, despite the fact that modern contraception, legal abortion rights, and greater workplace equality have created an entirely different society.
“The beliefs may persist due to cultural evolutionary adaptive lag, that is, because the environment has changed faster than the moral system,” the paper concludes. “Religious and conservative moral systems may be anti-promiscuity because they themselves arose in environments where females depended heavily on male investment.”
Thursday, July 10, 2014
[T]he Daily Beast published a thought-provoking post–Hobby Lobbypiece by Jay Michaelson pondering why women are losing legal battles while gay people keep winning. Michaelson gives 10 reasonable hypotheses, but leaves out the two most overwhelmingly obvious possibilities. The first is that Justice Anthony Kennedy likes gay rights more than women’s rights. The second is that feminism, as insidiously framed by the Christian right, is all about sex—while LGBTQ equality has become a battle not for sex, but for dignity.
Thursday, June 26, 2014
From the Legal History blog: New Release: Clément on "Sex Discrimination and British Columbia's Human Rights State, 1953-84"
In Equality Deferred, Dominique Clément traces the history of sex discrimination in Canadian law and the origins of human rights legislation, demonstrating how governments inhibit the application of their own laws, and how it falls to social movements to create, promote, and enforce these laws.
Focusing on British Columbia -- the first jurisdiction to prohibit discrimination on the basis of sex -- Clément documents a variety of absurd, almost unbelievable, acts of discrimination. The province was at the forefront of the women's movement, which produced the country's first rape crisis centres, first feminist newspaper, and first battered women's shelters. And yet nowhere else in the country was human rights law more contested. For an entire generation, the province's two dominant political parties fought to impose their respective vision of the human rights state. This history of human rights law, based on previously undisclosed records of British Columbia's human rights commission, begins with the province’s first equal pay legislation in 1953 and ends with the collapse of the country's most progressive human rights legal regime in 1984.
This book is not only a testament to the revolutionary impact of human rights on Canadian law but also a reminder that it takes more than laws to effect transformative social change.
Tuesday, June 17, 2014
It turns out that judges with daughters are more likely to vote in favor of women’s rights than ones with only sons. The effect, a new study found, is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist....
There was no relationship between having daughters and liberal votes generally. Daughters made a difference in only “civil cases having a gendered dimension....”
The most likely explanation, Professor Sen said, was the one offered by Justice Ginsburg. “By having at least one daughter,” Professor Sen said, “judges learn about what it’s like to be a woman, perhaps a young woman, who might have to deal with issues like equity in terms of pay, university admissions or taking care of children.”
Wednesday, May 28, 2014
Gianmarco Monsellato is a partner at the No. 5 law firm in France. His firm also has 50/50 gender balance at every level--including equity partnership.
How did he do it? Dramatically differently than most law firms. Most of his competitors have spent years organizing women’s initiatives, networks, or mentoring programs that have done little to increase the percentage of women reaching the top. The National Association of Women Lawyers’ recent report is pretty clear: These “fix the women” approaches have not delivered.
Monsellato puts the burden squarely on the partner himself to be extremely proactive:
Instead, Monsellato tackled the problem personally. He was involved in every promotion discussion. “For a long time,” he says, “I was the only one allocating cases.” He insisted on gender parity from the beginning. He personally ensured that the best assignments were evenly awarded between men and women. He tracked promotions and compensation to ensure parity. If there was a gap, he asked why. He put his best female lawyers on some of his toughest cases. When clients objected, he personally called them up and asked them to give the lawyer three months to prove herself. In every case, the client was quick to agree and managed to overcome the initial gender bias.
The idea is intriguing. It is also an idea that probably requires the right combination of corporate culture, amenable clients, and, most importantly, a highly deft corporate leader who also possesses an unusal charisma and great foresight about business productivity. Not easy to duplicate this model.
Saturday, May 24, 2014
From the Daily Iowan: Editorial: Time to Redecorate Kinnick's Pink Locker Room
When opponents of the Iowa football team walk into their locker room on any given autumn Saturday, they are met with a tradition that is unique even by the somewhat off-kilter standards of college sports traditions. The locker room, the walls, the stalls, the towels, the floor, even the urinals, rather than displaying the shade of white common in most Iowa facilities, are bright pink.
The famous pink locker room, started in 1979 by legendary football coach Hayden Fry and garishly renovated in 2005, have become ingrained into the university’s DNA. There is a time when all trends must die, however: The pink locker room should be redecorated.
It’s blatantly obvious that the pink locker room is a rather childish example of a destructive and anachronistic culture. As University of Iowa Professor Kembrew McLeod pointed out in the Des Moines Register last week, the governing philosophy behind the color arrangement is that pink is a “girl” color; forcing the über-masculine opponents of the Hawkeyes to prepare themselves in the presence of a “feminine” color will disturb the opposing players’ minds so much that they will fail to conquer the Hawkeyes.
Thursday, May 22, 2014
Saurabh Vishnubhakat (Postdoc, Duke & NIH), has posted Gender Diversity in the Patent Bar, 14 John Marshall L. Rev. __ (2014). From the abstract:
This article describes the state of gender diversity across technology and geography within the U.S. patent bar. The findings rely on a new gender-matched dataset, the first public dataset of its kind, not only of all attorneys and agents registered to practice before the United States Patent and Trademark Office, but also of attorneys and agents on patents granted by the USPTO. To enable follow-on research, the article describes all data and methodology and offers suggestions for refinement. This study is timely in view of renewed interest about the participation of women in the U.S. innovation ecosystem, notably the provision of the Leahy-Smith America Invents Act directing the USPTO to study diversity, including gender diversity, among patent applicants, and of related research by the National Women’s Business Council on usage of the U.S. patent and trademark systems by U.S.-based female entrepreneurs. Analysis of gender data on the patent bar complements these studies and begins to provide a more complete picture of diversity in the U.S. patent system.