Friday, September 22, 2017
Recent popular and scholarly interest has highlighted the complex and brutal system of mass incarceration in the United States. Much of this interest has focused on recent developments while other scholars have revealed the connections between the development of the prison system after Reconstruction and the legacies of slavery. In her new book, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (University of North Carolina Press, 2016), Sarah Haley points to an often under recognized part of this history. Haley, an associate professor of gender studies and African American Studies at the University of California, Los Angeles, focuses on the Southern criminal justice system’s treatment and exploitation of black women during the Jim Crow era. Though black women were caught up in the criminal justice system in smaller numbers than men were, Haley shows their treatment was very important to the development of Jim Crow modernity. The brutal and violent treatment, the ideological narratives surrounding black women, and the exploitation of their labor were all key in creating the ideologies of racial capitalism and patriarchy. Haley also discusses the ways black women resisted this treatment and contented the related ideologies.
In this episode of New Books in History, Haley discusses No Mercy Here and this history of gender, criminal justice, and race.
It doesn't matter where in the world you live. Lessons about gender start early, and they have lifelong consequences.
A new study in the Journal of Adolescent Healthfound many norms around gender, what's expected of boys and girls, become entrenched in adolescence and have negative impacts that carry into adulthood.
We knew some of this already. Existing research shows gender roles can harm both sexes. But the Global Early Adolescent Study — which looked at girls and boys between 10-14 years old in 15 countries with varying income levels — found many of these stereotypes are universal, and they become entrenched before 10 years old.
"We were actually anticipating more differences than similarities, and one of the big findings is that there are still very consistent forms of patriarchy around the world," said Kristin Mmari, an associate professor at Johns Hopkins Bloomberg School of Public Health and the lead qualitative researcher on the study.
The ideas girls and boys have about gender, the study found, form earlier in adolescence than had previously been measured, Mmari said.
"There seems to be a shift as soon as girls and boys enter this stage, where their attitudes and beliefs about the opposite sex change dramatically," she said. "And they talked about how this was not so in childhood. That they could have these friends — opposite sex friends — and they were given equal amounts of freedom. They were treated the same, they thought. But once they began puberty, and their bodies developed, their worlds changed."
The biggest myth perpetuated about gender, researchers found, is that once girls hit puberty, they are vulnerable and in need of protection to preserve their sexual and reproductive health, while boys are seen as strong and independent. It's this myth, Mmari said, that changes how the world sees both sexes during adolescence, and how it continues to treat them throughout their lives.
"How you perceive girls and boys is socially driven," Mmari said. "It's not biologically driven."
Consequences when girls conform to gender stereotypes:
- Child marriage
- Leaving school early
- Exposure to violence
Consequences when boys conform to gender stereotypes:
- Engaging in physical violence to a much greater extent than girls
- Dying more frequently from unintentional injuries
- Being more prone to substance abuse and suicide
- Having a shorter life expectancy than womenMmari said one of the major takeaways from the study is that it's important to challenge gender stereotypes when children are young.
"You can look at it as a window of opportunity to really address these attitudes and beliefs before they become cemented later on," she said.
"We need to view gender as more of a system," Mmari said. "One of the problems ... is we typically look at things on an individual level. So we feel like if we just empower girls, make them feel good, then we'll change. But the problem is they go back to their homes where they're given messages from their parents that are contradictory. They go to the schools where they're given messages from their teachers that are contradictory. They look at the media — it's a whole system out there that's transmitting these inequitable norms, and so we have to think of it more on that level."
Monday, August 28, 2017
The Center for Constitutional Law at the University of Akron School of Law will host Professor Julie Suk as the featured Constitution Day speaker on September 18, 2017.
Professor Suk's talk is entitled "The Constitution of Mothers: Gender Equality and Social Reproduction in the United States and the World."
One of the largest mobilizations in recent American history was the Women’s March of 2017, with millions of participants in U.S. cities and in concurrent events throughout the world. Despite diverse backgrounds and agendas, the marchers unified around the general theme of equality for women. It was a constitutional moment: The unity principles included a call for a new Equal Rights Amendment to the U.S. Constitution, and in March 2017, Nevada became the first state to ratify the ERA 35 years after the 1982 deadline had lapsed. Nevada’s ratification raises questions about the legitimacy of post-deadline ratification of a Congressionally adopted constitutional amendment, as well as deeper normative questions about the desirability and meaning of constitutionalizing equal rights for women in the 21st century. If Nevada’s ratification is valid or can be made valid by Congressional action, two additional states’ ratifications will put the ERA in the U.S. Constitution. Would such an amendment change what the law does, or would it be merely symbolic?
This lecture will argue that an ERA is needed in the twenty-first century, but for reasons different from those that motivated the 1972 adopters. Meanwhile, most constitutions around the world explicitly guarantee sex equality, and many of these constitutions also guarantee special protections for mothers. Drawing on global constitutionalism, this lecture argues that constitutional equality for women must go beyond prohibiting sex distinctions in the law, and reach the disadvantages faced by largely by women due to the burdens of raising the next generation of citizens. The challenge of making the constitution regulate social reproduction, however, is illustrated by the history of women’s participation in advocating for the Prohibition Amendment and its repeal, both of which engaged the politics of the home and child-rearing. The legacy of women’s past struggles to change the Constitution, in light of contrasting narratives outside the United States, should inform our present gender equality efforts.
Full details here: Download ConLawSpeakerSukF2017
Julie Suk is a Professor of Law at the Cardozo School of Law – Yeshiva University in New York, where she has taught since 2005. She is a leading scholar of comparative equality law. Her research brings a transnational perspective to equality and antidiscrimination law in the United States, drawing on primary legal materials in multiple languages from multiple jurisdictions. Professor Suk's articles compare European and American approaches to a broad range of issues in law and public policy, such as the enforcement of antidiscrimination norms in various legal systems around the world, holocaust denial, maternity leave, and women’s equal representation in political and corporate leadership positions. Professor Suk’s current research projects focus on women, work, and family in comparative constitutional law, as well as education rights in the context of socioeconomic inequality. Representative publications include: An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home (Yale Journal of Law and Feminism), Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict (Columbia Law Review), Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict (Stanford Law Review), Gender Parity and State Legitimacy: From Public Office to Corporate Boards (International Journal of Constitutional Law).
Friday, August 25, 2017
Pat Chew, Comparing the Effects of Judges' Gender and Arbitrators' Gender in Sex Discrimination and Why it Matters, 32 Ohio State J. Dispute Resolution (2017)
Empirical research substantiates that the judges’ gender makes a difference in sex discrimination and sexual harassment court cases. The author’s study of arbitration of sex discrimination cases administered by the American Arbitration Association between 2010 and 2014, however, finds that this judges’ “gender effect” does not occur. Namely, there is no significant difference in the decision-making patterns of female and male arbitrators as indicated by case outcomes.
The author proposes that characteristics of arbitrators, the arbitration process, and arbitration cases all combine to help explain the gender effect differences. Further, she suggests that this analysis reveals concerns about the arbitration process more broadly: do the employers’ advantages as a repeat player, the arbitrators’ competitive pressures, and the arbitrators’ unmonitored discretion in decision-making all combine to explain both the gender effect differences and problematic biases in the arbitration process?
Wednesday, August 23, 2017
Deborah Brake, Back to Basics: Excavating the Sex Discrimination Roots of Campus Sexual Assault, Tenn. J. Race, Gender & Soc. Justice (2017)
This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and mutually reinforcing strategies for dislodging the social practices that separate women from power. Sexual assault is just such a practice, and sex discrimination law has long recognized it as a form of sex discrimination. And yet, the current controversy over Title IX’s approach to campus sexual assault has become mired in the weeds of procedural discourse and de-gendered narratives of alcohol and campus partying culture, obscuring the gendered reality – and gender inequality – at the root of the problem. This article traces the evolution of Title IX’s current framework for regulating institutional responses to campus sexual assault with the goal of shoring up the sex discrimination roots underlying that framework. It begins this work by acknowledging that neither courts nor the enforcing agency has fully explained how and why the requirements in the Office for Civil Rights 2011 Dear Colleague Letter (DCL) stem from the statutory ban on sex discrimination. It proceeds to sketch the contours of the sex discrimination grounding for the principles in the DCL, moving beyond sexual assault itself as a gendered practice to focus on how gender scripts and rape myths affect institutional responses to it. The article concludes with a call for further work connecting the statutory ban on sex discrimination to the DCL’s specific requirements for institutional responses to campus sexual assault.
Monday, August 21, 2017
Mary Anne Franks, Augmented Inequality, UC Davis Law Review (forthcoming)
The world we all live in is structured by inequality: of gender, race, class, sexual orientation, disability, and more. The promoters of virtual and augmented reality often claim that they offer a more perfect world, one that offers more stimulation, more connection, more freedom, more equality. For such technologies to be considered truly innovative, they should in some sense move us beyond our current limitations and prejudices. But when existing inequalities are unacknowledged and unaddressed in the “real” world, they tend to be replicated and augmented in virtual realities. We make new worlds based on who we are and what we do in old ones. All of our worlds, virtual and physical, are the product of human choice and human creation. The developers of virtual and augmented reality make choices about which aspects of our lived history they want to replicate, enhance, or change. The design – and design flaws - of new virtual and augmented reality technologies reveal much about the values of their developers and their consumers, providing a unique opportunity to evaluate just how innovative new technologies are with regard to social inequality.
Friday, August 4, 2017
Brooke D. Coleman, A Legal Fempire? Women in Complex Civil Litigation, 93 Indiana L.J. (2017)
This essay begins from the view that gender equity is important to the functioning and legitimacy of our legal system, and assesses gender equity—or rather the lack thereof—within the legal profession. First, the essay reflects on the gender bias task force movement that began almost four decades ago. Second, using a case study approach, the essay updates that work by examining the role of women on the Judicial Panel for Multidistrict Litigation, as judges, and in multidistrict litigation leadership roles. Finally, after assessing the ongoing barriers to gender equity in modern complex civil litigation as well as its modest gender equalizing reforms, the essay closes with a set of proposals for how to move toward gender equality.
Thursday, August 3, 2017
An oldie but goodie.
NYT, Ms: Explaining the Origins of Ms. (2009)
In the Nov. 10, 1901, edition of The Sunday Republican of Springfield, Mass., tucked away in an item at the bottom of Page 4, an unnamed writer put forth a modest proposal. “There is a void in the English language which, with some diffidence, we undertake to fill,” the writer began. “Every one has been put in an embarrassing position by ignorance of the status of some woman. To call a maiden Mrs. is only a shade worse than to insult a matron with the inferior title Miss. Yet it is not always easy to know the facts.”
How to avoid this potential social faux pas? The writer suggested “a more comprehensive term which does homage to the sex without expressing any views as to their domestic situation,” namely, Ms. With this “simple” and “easy to write” title, a tactfully ambiguous compromise between Miss and Mrs., “the person concerned can translate it properly according to circumstances.” The writer even gave a pronunciation tip: “For oral use it might be rendered as ‘Mizz,’ which would be a close parallel to the practice long universal in many bucolic regions, where a slurred Mis’ does duty for Miss and Mrs. alike.”
The item in the Springfield paper made a minor splash, getting picked up and discussed over the next few weeks in other newspapers around the country, from Iowa to Minnesota to Utah. As 1901 drew to a close, however, the Ms. proposal faded from the public eye — though it seems to have made enough of an impression to lurk just below the radar for decades to come. In 1932, it reappeared: a letter writer in The New York Times wondered if “a woman whose marital status is in doubt” should be addressed as M’s or Miss. And in 1949, the philologist Mario Pei noted in his book “The Story of Language” that “feminists, who object to the distinction between Mrs. and Miss and its concomitant revelatory features, have often proposed that the two present-day titles be merged into a single one, ‘Miss’ (to be written ‘Ms.’).”
The genesis of Ms. lay buried in newspaper archives until earlier this year, when after much painstaking hunting through digitized databases I found The Sunday Republican article that started it all. A few years ago I stumbled upon a mention of the article in another newspaper, The New Era, of Humeston, Iowa, on Dec. 4, 1901. Fred Shapiro, the editor of “The Yale Book of Quotations,” then found an excerpt from The Sunday Republican article in The Salt Lake Tribune. After discovering that The Sunday Republican had recently been scanned and digitized by Readex, a publisher of digital historical materials, I was finally able to zero in on this forgotten document.
It was certainly unknown, in 1961, to Sheila Michaels, a 22-year-old civil rights worker in New York City, who one day spotted it on a piece of mail that her roommate received. In fact, she initially took it as a typo, albeit a felicitous one. Fiercely independent, Michaels abhorred having her identity defined by marriage. Struck by Ms., she became a one-woman lobbying force for the title as a feminist alternative to Miss and Mrs. She even unwittingly replicated The Republican’s rationale for pronouncing Ms. as “mizz,” since she had noticed this ambiguous spoken form when she was a child growing up in St. Louis.
For several years her fellow activists evinced little interest. The turning point, Michaels told me recently, came when she was interviewed on the progressive New York radio station WBAI in late 1969 or early 1970. The program “Womankind” invited her on with other members of a radical group known simply as the Feminists, and during a lull in the show she plunged into her impassioned plea for Ms. Her advocacy finally paid off. The following August, when women’s rights supporters commemorated the 50th anniversary of suffrage with the Women’s Strike for Equality, Ms. became recognized as a calling card of the feminist movement.
Heath Fogg Davis, How We're Redefining Gender in the 21st Century
In the United Kingdom, the gender-neutral honorific "Mx" is increasingly being used on driver's licenses and bureaucratic forms such as banking statements. Americans, however, have been slower to use Mx in lieu of Mr. or Ms.
The honorific "Ms." was first introduced in 1901, but it took several decades for it to be adopted by linguistic gatekeepers such as the New York Times, which only began using it in 1986 alongside "Mrs." and "Miss." How long will it take for Mx to take hold on our side of the pond?
New policies, language and forms of address recognizing nonbinary gender identities and classifications are prompting Americans to move beyond the assumption that everyone should assimilate into the categories of male or female. The times are changing, and so is our language. ***
Even the bureaucracy of gender is changing. Washington, DC and the state of Oregon now offer a nonbinary gender option on their driver's licenses, and New York has proposed similar legislation. Instead of M for male or F for female, these policies allow drivers to choose X for "unspecified." California lawmakers have proposed adding a third unspecified gender designation not only to driver's licenses but to birth certificates, too. If passed into law, parents in that state will be able to override the longstanding practice of letting medical professionals decide and record on birth certificates whether their children are male or female based upon the appearance of their genitals at birth.
Wednesday, July 19, 2017
Bridget Crawford & Anthony Infanti, Introduction to Feminist Judgments, to Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., Cambridge University Press, 2017, Forthcoming).
Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings together a group of scholars and lawyers to rewrite tax decisions in which a feminist emphasis would have changed the outcome or the court’s reasoning. The volume includes cases that implicate gender on their face (like medical expense deductions for fertility treatment or gender confirmation surgery as well as special tax benefits for married individuals), as well as cases that require a more nuanced understanding of history, politics and economics (such as the tax treatment of tribal lands and the business expense deduction). This book opens the way for a discussion of how viewpoint is a key factor in statutory interpretation.
Monday, July 17, 2017
Academics are set to explore whether a person’s gender is still relevant in modern law.
Experts in law, political theory and social psychology will begin a comprehensive three-year project in May 2018, to investigate how sex and gender are defined and regulated for legal purposes.
They will look at the problems the current system raises for many people who do not identify with the limited male and female categories, and the team will explore different models for reforming gender classification.
Reforming Legal Gender Identity will examine the effects on English law if the ways of determining people’s gender changed, particularly if gender became self-determined, as well as the wider implications of reform for advancing equality and diversity.
The project will investigate the implication which when gender is no longer assigned at birth, what implications this might have for single-sex schools, and gender-specific shelters and community organisations – where entry and participation are based on having a particular sex.
Professor Elizabeth Peel, of Loughborough’s School of Social, Political and Geographical Sciences, said: “The research aims to assess and generate public debate about our current system for determining legal gender.
“I am particularly excited about understanding people’s attitudes towards our gender system and whether and how people think gender could be legally recognised in different ways, or perhaps not at all.”
Friday, July 14, 2017
Melina Constantine Bell, Gender Essentialism and American Law: Why and How to Sever the Connection
American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.
We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses. When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation. After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques.
In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements. The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord. Law schools are notably implementing these pedagogical reforms in a time of great political division. From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity. University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.
Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content. This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog. How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers? The stakes are high. In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods. This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.
This is a pedagogical conversation that gender faculty should lead and engage. In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback. Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing. We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.
Monday, July 10, 2017
Maggie Hennefeld, On the Criminalization of Female Laughter
On January 10 2017, Desiree Fairooz, a 61-year-old Code Pink protester, was forcibly removed and arrested for laughing at Jeff Sessions during his Attorney General confirmation hearings. Fairooz’s eruption was provoked by an extremely laughable punch line, when Republican Senator Richard Shelby stated that Sessions has an “extensive record of treating all Americans fairly under the law,” adding that this claim “is clear and well-documented.”
As a description of a man who was once denied a federal judgeship due to concerns about his racism, who openly advocates anti-immigrant and anti-LGBTQ policies, and who casually jokes about the Ku Klux Klan, Shelby’s utterance was patently absurd and very deserving of public mockery and voluble laughter. For her protest, Fairooz now faces up to a year in jail and $2,000 in fines.
Her conviction in early May elicited a viral storm of outraged responses, including headlines such as “A Woman Is on Trial for Laughing During a Congressional Hearing,” “Activist’s Giggle Leads to Conviction,” and a piece authored by the Medusan disruptor herself, “I’m Facing Jail Time After Laughing at Jeff Sessions. I Regret Nothing.
How unprecedented is Fairooz’s indictment? Women are held in contempt of court all the time for laughing out loud at devastatingly inappropriate moments. In February 2017, a woman was sentenced to 93 days in jail for her voluble mirth at the gruesome details of a man’s death in a DUI accident, while the family members of the deceased were present in the courtroom. Laughing in disrespect of the dead has a legacy of retributive punishment: in 1862, a Confederate woman named Eugenia was arrested for laughing at the funeral procession of a Union soldier (she had also encouraged her children to spit on the uniforms of Union officers).
However, it was not the fact of Fairooz’s laughter that caused her arrest, so much as what it signified: to “impede and disrupt then Senator Sessions’ confirmation hearing by drawing attention away from the hearing itself and directing it instead toward the Defendants’ perception of the nominee’s racist views, policies, and voting record” (from a government motion filed against her). Her laughter evokes the anti-patriarchal outbursts in the classic feminist film, A Question of Silence (Marleen Gorris, 1982), in which three unruly women laugh exuberantly at their own murder trial, in response to the prosecution’s outlandish pretense that they live in a post-sexist society. (The women are on trial for killing a male boutique owner, whom they beat to death in an unpremeditated outburst of joyful fury due to his harassment of a female shoplifter.) In the film’s courtroom, this “question of silence” refers to the tyranny of lacking a voice against routine injustice, which then can only be articulated through defiant and disruptive laughter. ***
If we’ve come a long way with our laughter since the English Civil Wars of the 1640s—learning to laugh in empathy, in playful recognition of absurdity, or out of sheer muscular relief—this message has since been lost on Donald Trump and Jeff Sessions. Catharine A. MacKinnon, Professor of Law at the University of Michigan and long-term visitor at Harvard Law School, has offered comment:
Criminally charging and potentially sentencing Ms. Fairooz for a brief spontaneous injection of political laughter as ‘disruptive’ when it, at least, so clearly was not looks like an overly thin-skinned reflex reaction to a woman appropriating what is usually a masculine form of power: ridicule, public humiliation by humor, in this case political speech against racism.
Tracy Thomas, Seiberling Chair of Constitutional Law at the University of Akron, suggests that being laughed at by a woman is perhaps “one of [men’s] greatest fears.” In a correspondence with her, Thomas referenced a survey from Nancy Dowd’s The Man in Question, “where women report their greatest fear is rape and murder, while men’s greatest fear is being laughed at.” Or, as the Canadian novelist Margaret Atwood has put it, “Men are afraid that women will laugh at them. Women are afraid that men will kill them.” To this point, the journalist and American humorist, Helen Rowland, wrote in 1922 that “a man will forgive his wife for committing robbery, or murder, or breaking the Ten Commandments, yet threaten to leave her for laughing at the wrong moment”—should she be so fortunate that he doesn’t beat or kill her. In 1893, a New Haven court heard the divorce petition of Emma B. Phelps, who described the time “she laughed at her husband…and he ‘knocked her senseless’” (another time he threatened to kill her with a carving knife because she would not give him her watch).
Wednesday, July 5, 2017
Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)
Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.
Friday, June 30, 2017
Sonia Katyal, The Numerus Clauses of Sex, U. Chicago L. Rev. (forthcoming)
There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.
Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.
Wednesday, June 28, 2017
Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)
In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***
To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
Friday, June 16, 2017
The Atlantic, The Push for Gender-Inclusive Curricula Marches On
In 1971, groundbreaking research quantified just how underrepresented and misrepresented women were in U.S. high-school history textbooks, finding, for instance, that there was more textbook space devoted to the length of women’s skirts than to the suffrage movement.
Big textbook publishers like McGraw-Hill, Macmillan Publishers, and the American Psychological Association printed guidelines about how to publish less sexist material. Universities funneled money into new women’s-studies courses; San Diego State University launched the first department of women’s studies in 1970. Congress passed the Women’s Education Equity Act in 1974, which funded more research and the creation of national resource centers to help school districts that wanted to deliver bias-free educations.
Even the Texas State Board of Education, which has long had a disproportionate and conservative influence on what information gets included in national textbooks, hopped on the gender-equality train, issuing a proclamation that textbooks should include “women in leadership and other positive roles with which they are not traditionally identified” and offer “goal choices and lifestyles for girls and women in addition to marriage and homemaking.”
For a while, textbooks and teaching at the secondary and university levels improved. Sexism became more subtle, and women’s stories more common. Scholars pushed not only for gender analysis, but for intersectional analysis along lines of race, class, ability, and sexual orientation, and called women’s-studies pioneers out for “the white-middle class, heterosexual bias of academic feminism [that] pervades research and teaching about women.”
But then, in the mid-90s, the movement stalled—particularly in the K-12 setting. Since then, says David Sadker, a pioneering researcher in the field, “things have been frozen in time … in two decades, there’s been very little progress, and some retrenchment.” Though some research shows that the omission of women is not as great as it once was—and that textbooks have significantly improved when it comes to the inclusion and treatment of women and gender since the 1960s—the subject is still underrepresented.***
The goal of the movement was not to simply hold women leaders up as heroines or societal anomalies, to paraphrase the 18th-century feminist author and activist Mary Wollstonecraft; its advocates wanted women and gender to be treated as more than “sidebar history.” Though showcasing women’s stories on their own is important, women’s-history pioneers also saw unearthing and integrating women’s stories as a gateway to better understand the laws, institutions, systems, and movements that are most familiar to Americans—and to correct and complicate them.
Thursday, June 15, 2017
Linda Berger, Bridget Crawford & Kathy Stanchi have posted Using Feminist Theory to Advance Equal Justice Under Law, 17 Nevada L.J. 539 (2017). Their essay provides an overview of the Feminist Judgments Conference held in October 2016 at the Center for Constitutional Law at Akron. Papers from the conference are forthcoming in the Nevada Law Journal and the Akron Law Review. A talk by Judge Elinore Marsh-Stormer from the conference is available here, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Progress toward gender justice faces multiple and growing challenges, not only in the United States Supreme Court but at every level of political and cultural debate and decision making. Within this context, feminist theory and methods are more necessary than ever.
It is therefore timely and fitting that more than 200 hundred lawyers, judges, professors, students, and members of the public gathered for The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at The University of Akron School of Law. The conference had several purposes. First and foremost was to celebrate the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court.1 Both this volume, the first in a series, and its organizing focus, the United States Feminist Judgments Project, grew out of the work of the Women’s Court of Canada and the U.K. Feminist Judgments Project. * * *
A second purpose of the conference at the Center for Constitutional Law was to provide a forum for asking (and attempting to answer) a series of discrete questions about judges and the judicial function. Prime among these questions is whether judicial diversity matters—that is, whether it is important to have judges who are representative of many different groups of people as well as many different ways of thinking. On a simplistic level, our reaction might be that of course diversity on the bench matters. As Sally Kenney, our conference keynote speaker, eloquently argues, diversity in positions of power in all branches and all levels of government, including representation by women, is a reflection of the health of our nation’s democracy. In Kenney’s view, diversity on the bench is a requirement of a representative democracy—it is a civic right and responsibility.
The conference also sought to raise the “woman question”—the baseline feminist question of the 1980s and 1990s. The “woman question” asks whether women are represented in decision-making positions and how the law affects women. * * *
The third purpose of the conference was to showcase the work of an international group of professors, attorneys, and other researchers who rely on, challenge, complicate, or extend feminist legal theory. The panels at the conference represented a dazzling array of subject matters, methodologies, and inquiries. Evident throughout the conference presentations were what Martha Chamallas has called some of the recurring “moves” of feminist legal theory: treating women’s experiences as an appropriate subject for legal scholarship, exploring complex identities, challenging implicit bias, and unpacking women’s choices.* * *
The fourth and final goal of the conference—and one that extends to the pages of this issue of the Nevada Law Journal—is to create a community. For two days in Akron, Ohio, the assembled group came together to think in a sustained way about the highest and best aspirations for what the law could be, especially as the law relates to the unfinished promise of economic, social, and political equality between and among women, men, and people of all gender identities.
A summary from SCOTUSblog:
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Here's more from Debbie Brake, Remedial Grief:
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. ***
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
And Brake, Remedial Grief, Part 2:
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.