Gender and the Law Prof Blog

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

Thursday, May 18, 2017

Gender Policy Report Online Platform to Analyze New Proposed Government Policies

The Humphrey School of Public Affairs at the University of Minnesota has created an online platform called The Gender Policy Report that will analyze the policies that will be proposed by the US federal government in this new administration through the lens of gender.  

The goal is to be non-partisan and to consider how new policies may affect the welfare of women, gender, and sexual minorities in the US and around the world. 

The GPR platform seeks collaborators and submissions.  

Here is the CFP. 

 

The Gender Policy Report

 

The Gender Policy Report (GPR) is a non-partisan, multidisciplinary effort to produce and disseminate timely, gender-focused analyses of emerging policy proposals and developments. GPR contributions will clarify the gendered bases of policy practices and conflicts. They will offer diverse public audiences informed perspectives on how policies matter for gender justice and constructions of gender itself. Working across varied media platforms, the GPR will seek to inform policy debates and improve public discourse. Our mission is to take the best insights from gender scholarship and research and make them accessible to broader communities in a way that is timely for addressing serious policy challenges.

The Violence Area of the GPR seeks to make visible the high prevalence of violence that occurs inside and outside of family contexts against women and sexual and gender minorities: intimate partner violence, harassment, rape and sexual assault, trafficking and female genital cutting. The GPR also seeks to explore the mechanisms that can explain the behaviors and available policy interventions. For instance, contributions might explore economic interventions that may give women subjected to intimate partner violence leverage to leave abusive relationships, or may explore the existing debates on the effectiveness of mediation in cases of intimate partner violence. Other lines of contribution may be current evidence on the relationships between and policies on child maltreatment and partner violence; or policies that are in place or should be in place to address violence in the workplace; or a comparison on the treatment of sexual assault on campus between Title IX and the criminal justice system. We welcome pieces that explore how violence and gender work intersectionally to affect more vulnerable communities and what policies may alleviate these disparities. Contributions to the area might offer comparisons with international cases and policies or how US policies may affect policies in an international context.

Call for Collaborators: We are actively seeking Research and Advocacy Collaborators to join the work of the Violence area and shape its trajectory going forward. We encourage potential collaborators to set their own pace, and we expect a lot of variation in terms of individual involvement. Please contact us at the email addresses below if you are interested.

Call for Submissions: The violence justice area of the GPR will seek to publish original content at least twice per month. We are eager to receive submissions and proposals from diverse perspectives across a broad spectrum of relevant issues. We are also committed to publishing work in a wide range of formats and communications styles.

Examples of Content include but are not limited to:

  • Policy Analysis Blog Posts (500-1200 words): Short essays that weigh in on current policy, evidence on this policy and how policy proposals may affect the tools people from diverse and different communities have to respond to being victims of gender-based violence. Ideally, the essay would clarify gender implications of a policy that otherwise may not be evident.
  • Research Summary Blogs (500-1200 words): Accessible, engaging summaries or reviews of existing research on gender-based violence. This public-friendly translation of a recent research article or book might use current debates in the field (i.e. to use mediation or not in cases of intimate partner violence) as a “hook.”
  • Data posts on Policy that relates to issues of Violence (3-4 figures with explanatory text): Posts that focus on drawing attention to illuminating data visualizations in the form of charts, graphs, etc. Contributors would provide a short written introduction and a few lines to help readers interpret each data visual. Examples include prevalence rates of sexual assault on campus versus the wider community and intimate partner violence prevalence rates by race, ethnicity, gender and sexual orientation.
  • Multimedia Contributions: Video presentations, powerpoint slide decks, audio podcasts, recordings of panel discussions…You name it, we’re interested. Send us your ideas and teach us some new tricks!

We hope you'll join us in this exciting and timely new project. If you have any questions about the violence area of the GPR, would like to become a Research Collaborator, or have ideas for contributing content, please contact via e-mail.

Greta Friedemann-Sánchez gfs@umn.edu

Leigh Goodmark  lgoodmark@law.umaryland.edu  

May 18, 2017 in Call for Papers, Gender | Permalink | Comments (0)

French Cabinet is Fifty Percent Women

The new French President has appointed women to 50% of his cabinet, as did Canadian prime minister Justin Trudeau.

Macron Cabinet: Women are Half of France's New Ministers

French President Emmanuel Macron has unveiled a gender-balanced cabinet in accordance with an earlier pledge, with 11 of 22 posts taken by women.

Macron's Cabinet Gives Glimpse of How He Plans to Govern France

I have written about the importance of these gender quotas in institutional power structures as important to rectifying systemic gender inequality.  Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

May 18, 2017 in Gender, International | Permalink | Comments (0)

Tuesday, May 16, 2017

Preferring the Male Voice in Supreme Court Arguments

Covering: Mutable Characteristics and Perceptions of Voice in the US Supreme Court

Using data on 1,901 U.S. Supreme Court oral arguments between 1998 and 2012, we document that voice-based snap judgments based on lawyers’ identical introductory sentences, “Mr. Chief Justice, (and) may it please the Court?”, predict court outcomes. The connection between vocal characteristics and court outcomes is specific only to perceptions of masculinity and not other characteristics, even when judgment is based on less than three seconds of exposure to a lawyer’s speech sample. Consistent with employers irrationally favoring lawyers with masculine voices, perceived masculinity is negatively correlated with winning and the negative correlation is larger in more masculine-sounding industries. The first lawyer to speak is the main driver. Among these petitioners, males below median in masculinity are 7 percentage points more likely to win in the Supreme Court. Justices appointed by Democrats, but not Republicans, vote for less-masculine men. Female lawyers are also coached to be more masculine and women’s perceived femininity predict court outcomes. Republicans, more than Democrats, vote for more feminine-sounding females. A de-biasing strategy is tested and shown to reduce evaluators’ tendency to perceive masculine voices as more likely to win. Perceived masculinity explains 3-10% additional variance compared to the current best prediction model of Supreme Court votes.

May 16, 2017 in Courts, Gender, Masculinities | Permalink | Comments (0)

Friday, May 5, 2017

How Women Could Save the World: Questions of International Law, Equality Theory, and Feminism

Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)

Abstract

We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.

Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.

Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.

May 5, 2017 in Gender, International, Theory | Permalink | Comments (0)

Tuesday, May 2, 2017

Gender Quotas for Judges on International Courts

Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.

May 2, 2017 in Gender, International, Judges | Permalink | Comments (0)

Thursday, April 27, 2017

A Judge's Thoughts on What it Means to be a "Feminist" Judge

Judge Elinore Marsh Stormer, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).

Judge Stormer gave these remarks as part of a panel discussion on feminist judging at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. She offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.

 

I’m going to give you a brief history of my life, because I’m so old that I’ve experienced many of the things that you read about in articles that you have before you. When I went to law school in 1979, I had just taken a gap year, which did not involve me going to school. I was a waitress at the Brown Derby. I was just sick of school and that was very educational. It actually formed a lot of the things that have happened to me since then. I was a union worker. I was sexually harassed by my boss, who didn’t feel that I could say or do anything about that, but found that I could get more tips if I was flirtatious. I’d lived this kind of intellectual life before that, and it really was very helpful to me as I went forward with the rest of my life.

 

I came to law school where twenty percent of my class was women, so obviously everyone else was a man. We had gotten past the question of whether or not women being in law school worked with taking a man’s job, which is what Ruth Bader Ginsburg and Sandra Day O’Connor encountered. We were there, but to some extent there was still reluctance to perceive us as equals. We had very few women law professors, as a matter of fact, I can only remember one, but there may have been more than that. She taught contracts.

 

When I would go on job interviews, I interviewed with a number of firms in Cleveland, and at that time it was perfectly permissible for them to ask you questions like “do you expect to get married,” “how many children do you think you want,” and sometimes they would couch these questions in terms of “where do you see yourself in ten years” and my standard answer was “well as a partner in your firm, of course” and they would sit back and look kind of grim.

April 27, 2017 in Gender, Judges, Technology | Permalink | Comments (0)

Tuesday, April 25, 2017

Challenging the Idea that Feminism Occurred in Waves

The Future is Feminist: The new book Finding Feminism embraces queer women and argues that feminism does not occur in waves.

In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.

 

Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”

 

Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***

 

 

Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.

April 25, 2017 in Gender, Legal History, LGBT, Theory | Permalink | Comments (0)

Thursday, April 6, 2017

Is "Gender" the Same thing as "Sex" Discrimination?

Renee Blocher, Sex Discrimination, Plain and Simple: A Corpus Analysis

    From the Abstract:

“Sex” and “gender” are words that are often used interchangeably, but some argue that these terms have distinct meanings and insist they should be used carefully and deliberately. While linguistic intuition is useful and productive in some circumstances, it is not accurate when it comes to determining the most common usage of words. The best way to determine if gender and sex are near synonyms and interchangeable or else two distinguishable concepts is to examine how these terms are actually used in context. This paper uses corpus linguistics to analyze how the terms “sex discrimination” and “gender discrimination” are used in context.

    One interesting anecdote: 

    To Justice Ruth Bader Ginsburg, however, the distinction is not as clear, and the
interchangeability of sex and gender is useful and important. While litigating key sex
discrimination cases in the 1970s, her secretary inquired about her use of the term. Her
secretary said:


I'm typing all these briefs and articles for you and the word sex, sex, sex is on every page. Don't you know that those nine men [on the Supreme Court], they hear that word and their first association is not the way you want them to be thinking? Why don't you use the word 'gender'? It is a grammatical term and it will ward off distracting associations.

 

Since then, Justice Ginsburg employed the term gender discrimination in her litigation,
but she has not used it exclusively; in her opinion in the VMI case, she used the term sex and sex discrimination.

April 6, 2017 in Gender | Permalink | Comments (0)

Friday, March 24, 2017

Judicial Interactions at SCOTUS Oral Arguments are Highly Gendered

Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia L. Rev. (forthcoming 2017).

This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

For another report reaching a similar conclusion, see Study Shows Male Justices Interrupt Female Justices More During Oral Argument

March 24, 2017 in Courts, Gender, SCOTUS | Permalink | Comments (0)

Tuesday, March 14, 2017

The Limitations of the Gender Indicators in the World Bank's Women, Business and the Law Program

Catherine Powell, Gender Indicators as Global Governance: Not Your Father's World Bank, 17 Geo. J. Gender & L. 777 (2016)

As feminism has come of age, it has powerfully instantiated itself into global governance. What are the tools feminism has borrowed – even co-opted – to embed itself within governance? Do these tools enhance or diminish the libratory potential of feminism? This paper looks at one tool – the use of quantitative indicators to advance gender equality in global governance. The paper focuses on the World Bank’s relatively new Women, Business and the Law program, as a microcosm of the recent explosion and popularity of gender indicators. *

 

Gender indicators are quantitative metrics that measure progress in securing gender equality. While this article views gender indicators as potentially powerful tools for reframing the discourse of law and development, it argues that in the context of the World Bank WBL program, indicators fall somewhat short, at least on feminist terms. Rather than transforming the development paradigm, the WBL gender indicators insert feminism into the prevailing (male-oriented) framework. As the WBL program itself admirably acknowledges, due to methodological limitations, its gender indicators focus on formal (not substantive) equality, the formal economy (without addressing the informal sector), and positive law (with limited coverage of customary law). By emphasizing the formal legal and economic spheres in this way, the WBL gender indicators largely ignore the private realm--(re)entrenching the public/private divide that feminist scholars have long criticized.

March 14, 2017 in Gender, International | Permalink | Comments (0)

Tuesday, March 7, 2017

NV Prepares to Ratify ERA

Nevada is About to be the First State in More Than Three Decades to Ratify the Equal Rights Amendment

Nevada is about to do something no state has done in three-and-a-half decades: Ratify the Equal Rights Amendment.

Dusting off a decades-old debate about whether to enshrine women's rights in the Constitution is of questionable value to the amendment's prospects, say analysts. But that doesn't mean it's a meaningless gesture, and its revival certainly says a lot about the women's rights movement in 2017.

Even if Nevada becomes the 36th state to ratify the amendment, its entry into the Constitution is a loooong shot. The deadline to ratify the amendment ended long ago — in 1982 to be exact. And even if Congress reopened it, it's not clear any other state is seriously interested in playing along.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.***

A quick history/civics recap: Changing the Constitution is one of the most difficult things in all of governing, but Equal Rights Amendment supporters have come tantalizing close. In 1972, after a decade or so of debate, Congress passed it and sent it to the states for ratification. (Under one process to change or add a constitutional amendment,  38 states -- or three-quarters -- must ratify it, whether via their legislatures or a state convention.)

Congress gave the states an entire decade for 38 states to get that done. In the end, 35 did.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.

Until now. The Democratic-controlled Nevada State Senate passed it mostly along party lines on Wednesday. The Democratic-controlled State Assembly will pick it up from there, where it's expected to sail through on party lines.

"It's like a no-brainer. Equal Rights Amendment," said state Nevada Sen. Pat Spearmen (D), the author of the bill. "Equal rights. That's what it is. It's just equal rights."

Nevada's governor is a Republican, and he hasn't commented on the amendment. But Democrats in Nevada say the parliamentary logistics of this mean the legislation doesn't need Gov. Brian Sandoval's signature.

Most Republicans in the state legislature aren't impressed. Their objections to the amendment in 2017 are similar to objections in the '70s and '80s: It could require women to enlist in the draft. It's not necessary. It's symbolic.

"An equal rights amendment that doesn’t have exclusions to protect families is something I can’t support," state Sen. Beck Harris, a Republican and the sole woman to vote against the amendment, told the Reno Gazette-Journal.

March 7, 2017 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Monday, March 6, 2017

President Obama's Executive Orders on Women's Rights Issues

Mary Pat Treuthart, Feminist-in-Chief? Examining President Obama's Executive Orders on Women's Rights Issues, 91 Chicago-Kent LRev 171 (2016)

"I didn't run for President so that the dreams of our daughters could be deferred or denied. I didn't run for President to see inequality and injustice persist in our time. I ran for President to put the same rights, the same opportunities, [and] the same dreams within the reach for our daughters and our sons alike. I ran for President to put the American Dream within the reach of all of our people, no matter what their gender, or race, or faith, or station." President Barack Obama, Remarks by the President and the First Lady at International Women's Day Reception (Mar. 8, 2010) * * * 

 
Initially  . . .  a report card of sorts on President Obama's first 100 days in office concluded “[t]he Obama Administration has taken giant strides for women in terms of employment, reproductive health[,] and elevation of women's rights domestically and globally.” Particular early achievements noted by the editors included (1) overturning the global gag rule; (2) appointing seven women to cabinet-level positions; (3) creating the position of ambassador-at-large for women's global issues; (4) establishing the White House Council on Women and Girls (CWG); and (5) restarting the contributions by the United States to the United Nations Population Fund (UNFPA). All of this seemed like a propitious start, but the question posed by some observers was: Would the momentum continue?
 
 A year later, the reaction from prominent women leaders to President Obama's progress on gender equality was decidedly more mixed. Terry O'Neil, president of the National Organization for Women (NOW) opined that “[t]he administration is not taking enough of an initiative to change the reality for women.”***

 

What are women's rights issues? Certain topics may be more readily associated with the concept of women's rights in the policy arena, but there is no single unassailable definition of the term “women's rights issues.” A common description is a “set of policies that concern women as women.” Another approach is to characterize women's rights issues as those “where policy consequences are likely to have a more immediate and direct impact on significantly larger numbers of women than of men.” At least one scholar proposes that a degree of intentionality is a prerequisite and that women should be the “intended beneficiary, constituency, or object” of a particular action. Mere heightened interest by women in a specific topic would not necessarily categorize it as a women's rights concern; rather, the promotion of greater equality and opportunity for women while recognizing their differences from men is an essential part of the equation. Here, being mindful of the aforementioned explanation, this examination will concentrate primarily on executive orders that involve the empowerment of women, gender-based violence, reproductive rights, and employment.

March 6, 2017 in Constitutional, Gender | Permalink | Comments (0)

Thursday, February 16, 2017

Making Peace Negotiations Responsive to Gender

Aisling Swaine, Law and Negotiation: A Role for a Transformative ApproachGlobal Policy Volume 7, Issue 2, May 2016, 282-287

Abstract:     

Feminist critique of negotiations that aim to bring about peaceful political settlements has consistently pointed to the glaring absence of the critical analysis of and response to gender relations as part of both the modus operandi and substantive output of those processes. Just as war is a gendered phenomenon (working off gender relations that subordinate women), so too the processes that respond to it and aim to negotiate its end and create an aftermath, are inherently gendered. Where the goal is a peace that works for ‘everyone’, then negotiation needs to respond to structural gendered conditions that limit the potential that negotiation holds for women. The concept of transformation has been espoused by feminists as key to altering the structural inequalities that determine a systemic gendered order that works to deprivilege women and women’s interests. As a concept, ‘transformation’ holds great potential to regenerate processes of negotiation towards promoting women’s ability to have agency over their lives. This article begins a consideration of what transformation might mean for the practice of negotiation and how it might be advanced to make negotiations responsive to gender relations so that a peace that serves women as well as men is worked towards.

 

February 16, 2017 in Gender, International | Permalink | Comments (0)

Tuesday, February 14, 2017

Gender and the Structural Constitution

Paula Monopoli, Gender and the Structural Constitution, 76 Maryland L.Rev. Endnotes 17 (2016)

Abstract:      

This paper is based on remarks delivered by the author for the Constitution Day Lectures at the University of Maryland Carey School of Law. The paper draws on the author’s prior scholarship on gender and constitutional design to explore why more than eighty-five countries have already had female prime ministers or presidents while the United States has not. The paper’s thesis is that this puzzle may be explained, in part, by what some have called the “structural constitution.” Two design choices by the Founders made it less likely that a woman would ascend to the presidency. The first of these structural features is the choice of a singular or unitary executive that combines the head of state, head of government and commander-in-chief function in one person. The impact of that choice can be amplified by executive activism and the power of the courts via judicial review to define the scope of the executive as more or less expansive. The second structural feature is the choice of direct presidential selection, filtered through the Electoral College. With Hillary Clinton as the first viable female nominee of a major American party, this paper considers these structural constitutional choices, how they construct our politics and their impact on the likelihood that Clinton will be elected.

 

February 14, 2017 in Constitutional, Gender | Permalink | Comments (0)

Monday, February 13, 2017

Reinforcing Masculine Legal Authority in the Way We Teach Moot Court

Susie Salmon, Reconstructing the Voice of Authority

Abstract:      

Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result. 

This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.

 

February 13, 2017 in Education, Gender, Law schools, Women lawyers | Permalink | Comments (0)

Friday, February 3, 2017

New Books: Thinking About Prenuptial Agreements from a Feminist Perspective--Choice, Autonomy, and the Imbalance of Power

Sharon Thompson, Prenuptial Agreements and the Presumption of Free Choice (Hart Publishing 2015)

This book provides an alternative perspective on an issue fraught with difficulty – the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues, such as imbalance of power between the parties, become obscured.

This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Lastly, it explores how the court might address concerns regarding power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that 'prenups' can play in the judicial allocation of spousal property on the breakdown of marriage. 

February 3, 2017 in Books, Family, Gender | Permalink | Comments (0)

Wednesday, February 1, 2017

Women Lawyers Face More Personal and Gender Attacks than the Usual Lawyer Hate

 Alice Woolley & Elysa Darling, Nasty Women and the Rule of Law, Univ. San Fran. (forthcoming)

No one enters the legal profession expecting social popularity – or, at least. no one should. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-­‐lawyer criticisms. For women lawyers, attacks and criticism are role-­‐related (arising from her occupation of the professional role) but also personal, specific and gendered. Lawyers in general are labeled as morally troubling; women lawyers risk being specifically and personally identified as morally transgressive, even when performing acts expected of a person in their role. Women who take on law firm leadership, advocate in notorious trials, lead teams in complex corporate transactions, demonstrate political ambitions or political leadership – that is, women who do things that lawyers might normally be expected to do– risk particularly gendered and hostile forms of criticism. They risk being labeled unlikable, unattractive, unfeminine, unpleasant, immoral–a bitch. Such attacks are not certain to occur. They may be more likely for some women than for others; the form and tone they take almost certainly varies with context. But a woman who chooses to enter the legal profession does not just risk generic unpopularity. She also risks being labeled a “nasty woman”.


That, at least, is the premise of this paper. We do not prove that women lawyers risk being attacked in this way, although we note some examples of women lawyers who have been, consider some objections to the premise, and discuss the extent to which gender equality has eluded the legal profession to date, even in comparison to other professions. Instead, we focus on why gendered and personal attacks on women might occur....

 

Our thesis is that attacks on women lawyers arise from the intersection between the normative structure of the lawyer's role and sexist stereotypes. The lawyer's function in achieving the social settlement of law, including maintaining the rule of law, requires lawyers to occupy positions of moral ambiguity and power.  Lawyers have the privilege and responsibility to pursue the interests of their clients within the bounds of legality, even where doing so inflicts harm or violates valued norms of ordinary morality. That role makes all lawyers unpopular, but when combined with prescriptive gender stereotypes about appropriate conduct for women, it makes women lawyers seem not merely morally dubious, but also personally dangerous. That is, the danger presented by a woman lawyer connects to the woman herself; she presents the danger rather than simply being a part of a group or category of dangerous people; she invites moral outrage.

February 1, 2017 in Gender, Women lawyers | Permalink | Comments (0)

Gender Parity at the Human Rights Council

Claudia Martin, Update on Gender Parity at the Human Rights Council

On November 8, I published Taking-stock: The Human Rights Council and Gender Parity in Special Procedures after 10 years in this blog. The Article was also cross-posted at the Human Rights Brief. To complement my article, the Human Rights Brief recently interviewed Ambassador Marta Maurás Pérez from Chile. Ambassador Maurás is a pioneer for gender parity in the UN Human Rights Council (HRC). As the only woman in the 2015 HRC Consultative Group, she was a leader in the Consultative Group’s creation of the 2015 Gender Parity Guidelines. She continues to work to increase the number of women holding special procedures positions. The interview with Ambassador Maurás discusses her dedicated work on closing the gender gap within the UN and around the world. In addition, she discusses the challenges ahead to ensure that gender parity becomes mandatory in the work of the HRC. The full interview is posted at the Human Rights Brief. I hope her words encourage us to continue our advocacy to promote gender parity at the HRC and other international tribunals and organs.

February 1, 2017 in Gender, International | Permalink | Comments (0)

Tuesday, January 24, 2017

Study Concludes Law Fails to Grasp the Reality of Workplace Discrimination and Condones Gender Inequality

Laura Edelman, Aaron Smyth, Asad Rahim, Legal Discrimination:Empirical Sociolegal and Critical Race Perspectives on AntiDiscrimination Law, 12 Annual Rev. Law & Social Science 395 (2016)

Abstract:     

The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions.
 
In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.

 

January 24, 2017 in Equal Employment, Gender, Race | Permalink | Comments (0)

Thursday, January 19, 2017

A Genderless Olympics

Erin Buzuvis, Hormone Check: Critique of Olympic Rules on Sex and Gender, 31 Wis.J. Gender & Law 29 (2016)

Abstract:     

Most sports, including all Olympic sports, are divided into two categories: men's and women's. This Article first presents a history of gender testing in Olympic and international sports to illustrate why past attempts to define eligibility for women's sports have proven unfair to women with intersex conditions. It then describes the shortcomings of the International Olympic Committee’s (IOC) first effort to articulate standards of eligibility for transgender athletes. In its second Part, this Article explains the more recent efforts of the IOC and the International Association of Athletics Federations (IAAF) to define eligibility for women's sports solely on the basis of testosterone. That effort is temporarily suspended by the Court of Arbitration for Sport as applied to hyperandrogenism, but, as Part Ill explains, on grounds that could permit the rule's reinstatement if a stronger justification is presented by the IAAF.

Finally, this Article evaluates the concept of a unified hormone rule that the IOC appears to propose. After considering the strengths and weakness of alternatives to such a rule, including genderless sports and a uniform gender identity rule, this Article proposes a hybrid rule that applies a hormone standard to transgender athletes and a gender identity standard for women. This final Part seeks to rationalize the different treatment of transgender and intersex women in ways that minimize the potential for such a rule to contribute negatively to society's understanding of both gender and athletic fairness.

 

January 19, 2017 in Gender, Sports | Permalink | Comments (0)