Thursday, June 18, 2015
Ronald Collins, Concurring Opinions, More on the Roberts Court & the First Amendment--the Women Justices
How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.
In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:
- Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
- Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
- Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).
Rebecca Gill, Michael Kagan, & Fatma Marouf (UNLV), Chivalry, Masculinity, and the Importance of Maleness to Judicial Decision Making.
Abstract:Social science research on gender in the legal system has largely focused on the woman as the "other." This research has looked for ways in which women judge or are judged differently from the norm. The results of this line of research have been mixed. Male-centered theories of masculinity and chivalry provide promising tools to help researchers understand the contribution that maleness has on outcomes in the legal system. Immigration appeals provide an ideal test of these theories, which predict that male judges will be harder on male immigrants and easier on female litigants than will female judges. In this paper, we implement a research design that takes seriously both female-centric and male-centric explanations of decision outcomes. Using an original database of immigration appeals in the U.S. Courts of Appeal, we find evidence to support the research of maleness on its own terms. We find that elements of chivalry and masculinity theory both operate to frame the decisions made by male judges. The introduction of women on the panel of judges is associated with significant changes in the relative success of male and female petitioners, but not in a way that is consistent with theories of women judges as representatives. In addition to providing support for masculinity theory to explain the behavior of male judges, our data raise new questions about how females temper the reaction of mixed-gender panels toward male and female parties in court.
Monday, June 8, 2015
Do women and men have different brains?
Back when Lawrence H. Summers was president of Harvard and suggested that they did, the reaction was swift and merciless. Pundits branded him sexist. Faculty members deemed him a troglodyte. Alumni withheld donations.
But when Bruce Jenner said much the same thing in an April interview with Diane Sawyer, he was lionized for his bravery, even for his progressivism.
“My brain is much more female than it is male,” he told her, explaining how he knew that he was transgender.
Saturday, June 6, 2015
The new issue of the Hastings Women's Law Journal, summer 2015.
Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother by Rona Kaufman Kitchen
Medicaid as Coverture by Thomas E. Simmons
Mitigating the Employer's Exposure to Third-Party Claims of a Hostile Work Environment by John A. Pearce II and Ilya A. Lipin
Monday, June 1, 2015
On SSRN, Stuart Chinn has uploaded "Situating 'Groups' in Constitutional Argument: Interrogating Judicial Arguments on Economic Rights, Gender Equality, and Gay Equality." The abstract reads:
The New Deal transformation in Commerce Clause and Due Process jurisprudence marked, among other things, a shift in judicial attention from groups defined by economic relationships to groups defined by social status. Hence, one might plausibly see judicial activism in defense of freedom of contract during the Lochner era subsequently giving way, in part, to the judicial protection of racial minorities, women, and gay persons in the decades after Brown v. Board of Education.
In this paper, I attempt to illuminate this shift in judicial attention by examining the Supreme Court's rhetoric surrounding groups in the context of the Lochner era cases on wages and hours regulations and the post-Brown v. Board of Education era cases on gender and gay equality. I situate my inquiry in the context of broader themes in American political thought, with particular attention to the core concepts and principles of American liberalism. In examining the recurrent modes of argument surrounding groups in these Supreme Court cases, I discuss how the Court's concept of groups — and how its views of American society more broadly — has varied in different constitutional doctrinal contexts.
My examination of these cases yields two key findings. The first finding speaks to a similarity across these contexts of Supreme Court jurisprudence: when confronted by reforms calling for special or different legal treatment of specific groups, both pro-reform and anti-reform Supreme Court justices in these three doctrinal contexts put forth arguments about group-sameness and group-difference. That is, group-sameness and group-difference arguments were deployed by Justices on both sides of the various legal controversies in these doctrinal areas. The second finding speaks to a difference between these doctrinal contexts: while arguments in defense of special legal treatment for groups in the Lochner era cases on wages and hours regulations were linked to larger, broader, more systemic goals, no such sensibility informs the judicial protection of groups in the post-Brown cases on gender and gay equality. Rather, in more recent years, the judicial defense of groups largely proceeds from a judicial concern for only the groups in question. Thus, we see in the more contemporary cases examples of judicial arguments about “societal segmentation” — a significant mode of legal and political argument that, I assert, has appeared episodically throughout American history. In the final Part, I set forth a more general definition of societal segmentation arguments, and I discuss how notions of segmentation may be situated in relation to the principles of American liberalism.
Saturday, May 30, 2015
It may be possible to reduce biases regarding race and gender while a person sleeps, according to a new study published in the journal Science.
Prior research has shown that biases can be reduced with a technique called counter-stereotype training. Neuroscientists at Northwestern University wondered whether sleep might bolster the effect.
Wednesday, May 27, 2015
The May issue of the Atlantic dwells on "The Confidence Gap".
Evidence shows that women are less self-assured than men—and that to succeed, confidence matters as much as competence. Here's why, and what to do about it.
The statistics are well known: at the top, especially, women are nearly absent, and our numbers are barely increasing. Half a century since women first forced open the boardroom doors, our career trajectories still look very different from men’s.
.....Other commentators point to cultural and institutional barriers to female success. There’s truth in that, too. But these explanations for a continued failure to break the glass ceiling are missing something more basic: women’s acute lack of confidence.
Saturday, May 23, 2015
Directions from the College Common Application.
Ms. and Miss
If you are describing an unmarried woman, please select Ms. as your choice. This title can be used for a married or unmarried woman (like Mr. refers to a married or unmarried man).
Wednesday, May 20, 2015
An article by Jim Lindgren so argues.
How diverse are tenured and tenure-track law faculties? Which ethnic and gender groups are now the most under- and over-represented in law teaching compared to a very broad measure of the pool: English-fluent, full-time working lawyers of a similar age?
In “Measuring Diversity: Law Faculties in 1997 and 2013,” which can be downloaded from SSRN, I explore tenure-track law school diversity in 1997 and 2013. For the gender and ethnicity of law professors in 2013, I use data released by the ABA, representing the 2013-2014 academic year. For the lawyer population, I use data from the government’s 2011-2013 American Communities Surveys.
This study finds that diversity hiring in law schools has been a great success, at least as to ethnicity and gender. All large traditional affirmative-action groups in law teaching are now at or above parity with full-time lawyers, and such groups as women, minorities, and minority women are significantly over-represented in law teaching compared to working lawyers. Indeed, the only ethnic and gender groups that are more than a half slot short of parity on a typical tenure-track faculty of about forty are non-Hispanic whites, males, and non-Hispanic white males, the groups typically thought of as over-represented.
Tuesday, May 19, 2015
Jane Bailey, Gendering Big Brother: What Should a Feminist Do?
Set in the context of an imaginary dialogue between a straight, white, middle-aged radical feminist law professor and her Cyberfeminism student, this paper explores various theories about stereotypes and other tools of discrimination, as well as the emancipatory potential of digitized communications for equality-seeking groups. It suggests that the Snowden revelations about widespread government surveillance of citizens and concerns around “big data” present an opportunity for coalition between feminists and civil libertarians on the issue of surveillance. In the final analysis though, the paper cautions that this context may simply reflect a moment of interest convergence in which collaboration is unlikely to produce real change for subordinated groups unless the discriminatory tropes that disproportionately expose members of subordinated groups to surveillance are first addressed.
Friday, May 15, 2015
Women for Men....is the website run by Fox News commentator Suzanne Venker.
Its mission statement reads:
America is at war with masculinity. For years, prominent women in media and government have used their perch to belabor the false notion that women are in need of perpetual justice and focus.
In fact, it is males that need attention.
Women for Men (WFM) is committed to providing much-needed support for the American male who’s tired of being told there’s something fundamentally wrong with him and who’s mentally drained from being shafted in family courts and college tribunals, where men are assumed guilty until proven innocent.
Decades of feminist propaganda have landed us in a place where women are hailed as heroes, and men are viewed as perpetrators—or just plain losers. That’s what WFM seeks to remedy.
The battle of the sexes will begin to erode only when America stops making men pay for the modern woman’s so-called oppression. If we do, marriages and relationships will improve—as will the health of the American family.
And some recent news about Ms. Venker in Salon is here. She raises what she believes is a crippling paradox in feminist discourse:
“There’s no question that [feminists] are disdainful of masculinity,” Venker said. “That’s just not debatable. But at the same time, you’re saying to women, ‘You don’t need a man … because you’re basically capable of everything he is capable of, and you should aspire to be like a man in your life. That’s what makes you powerful and of value and equal to them.’”
Sunday, May 10, 2015
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
Thursday, May 7, 2015
In what could be an exciting linguistic turn for trans and gender-nonconforming folks, the Oxford English Dictionary isconsidering adding the gender-neutral honorific Mx. to future editions.
Pronounced “mix” or “mux,” the term has been gaining mainstream traction in the U.K. in the last several years. According toBritish newspaper The Sunday Times, government departments, the postal service, and some universities and banks all accept the term on official forms.
Said OED assistant editor Jonathan Dent, “This an example of how the English language adapts to people’s needs, with people using language in ways that suit them rather than letting language dictate identity to them.”
Mx. is used less frequently in the U.S., but given that we may have reached what TIME magazine called a “transgender tipping point,” the stateside use of the term could be on the horizon.
Saturday, April 25, 2015
My colleagues and I have been discussing this issue. In the family law context, there is a rise of law firms that represent only male parties, often due to an affiliation with the father's rights movement.
We didn't come up with any answers, just flagged some of the questions:
Does the civil rights law apply? Are law firms "public accommodations" under the Civil Rights Act? They are defined as public accommodations under the ADA - any relevance? Is the licensing of lawyers sufficient state action? Maybe the commerce clause?
Don't lawyers have the right to choose their own clients? A First Amendment right of association? Or what about a religious right under Hobby Lobby?
What about ethical rules for lawyers against discrimination?
Here is an older law review article on the topic: Samuel Stonefield, Lawyer Discrimination Against Clients (1998)
Thursday, April 23, 2015
Why are biased acts against women — even religiously motivated ones — considered so much less toxic than biased acts of any other kind? Why do women often demur and accept humiliation rather than make a fuss? Why does respect even for admittedly extreme religious beliefs trump respect for half the human race?
My encounter came to mind again as I pondered recent stories of ultra-Orthodox Jewish men refusing to take airline seats next to women. Several cases were reported in the New York Times this month. Others have appeared in the Israeli press as far back as 2012.On some flights women reportedly moved when asked. Some men switched places with women to eliminate the adjacency problem. Some flight attendants assisted the Orthodox men in relocating. Yet when others did not, some flights were delayed as men refused to be seated. The incidents have spawned lively discussions among Jews and non-Jews alike.
Yet I wonder: Why are we even discussing this?
Would such blatant behavior be treated merely as a social choice, a courtesy issue or an awkward airline customer-service problem if the targets were anyone other than women?
Let’s test it. What if we recast my encounter, giving me a different race and gender. How do I react now if someone says, “I don’t touch black men.” Do I quietly move on? How would this young man have reacted had the tables been turned? What if I had done something I could never imagine myself doing? Would he have treated it as a social issue if I had refused his hand, saying: “I don’t shake hands with Jews?”
Tuesday, April 21, 2015
A middle-school student at Clermont Northeastern Middle School in Ohio is fighting back after a T-shirt she wore for a class photo was censored. The offending word? Feminist.
Principal Kendra Young chose to black out the word from student Sophie's shirt after being alerted to it by the school's alarmist photographer. "Some people might find it offensive," Young said.
MSNBC reports that after discovering the doctoring of her image, Sophie took to Instagram to ask classmates to join her in a protest last Friday:
EVERYONE PARTICIPATING WILL BE WEARING A SHIRT WITH A PHRASE LIKE “I DESERVE FREEDOM OF EXPRESSION” OR “FEMINISM ISN’T OFFENSIVE” OR ANYTHING THAT YOU BELIEVE FITS! PLEASE MAKE A SHIRT AND JOIN US AND HELP TAKE CARE OF THIS ISSUE.
After enough local-media scrutiny, Ms. Young reached out to Sophie's mother with an apology. She also apologized to Sophie herself, asking, "What do you want from this?"
Sophie, official new feminist teen idol, reportedly replied:
I want everyone to realize that we need feminism ... I want you to have someone come into the school and educate everyone about feminism. I want us to go to the news station together and show the people that we are working together to make this school and our community a better place for everyone. I don’t think that’s too much to ask.
We'll be eager to see whether the school does indeed "hold larger discussions with students regarding feminism.
Saturday, April 11, 2015
Over the past three decades, an increasing number of women have joined the legal profession. Since 1992, women’s representation in law school classes has approached 50%. Despite record numbers of female judicial nominees and confirmations, the percentage of female federal judges, however, is far lower. It is of critical importance to increase the representation of women on the federal bench.
When women are fairly represented on our federal courts, those courts are more reflective of the diverse population of this nation and women, and men, may have more confidence that the court understands the real-world implications of its rulings. The increased presence of women on the bench improves the quality of justice: women judges can bring an understanding of the impact of the law on the lives of women and girls to the bench, and enrich courts’ understanding of how best to realize the intended purpose and effect of the law that the courts are charged with applying. For example, one recent study demonstrated that male federal appellate court judges are less likely to rule against plaintiffs bringing claims of sex discrimination, if a female judge is on the panel.
President Obama has appointed 129 female judges – more than any President to date. But to obtain true gender diversity, the number of women in the federal judiciary, including the Supreme Court, must be increased.
- Upon the confirmation of Associate Justice Elena Kagan, the Supreme Court counts three women among its nine Justices for the first time in history, still only one-third of the members of that Court. Only four of the 112 Justices ever to serve on the highest court in the land have been women.
- Sixty of the 171 active judges currently sitting on the thirteen federal courts of appeal are female (almost 35%). When broken down by circuit, women’s representation on several of these individual courts is even lower than on the courts of appeals overall:
- In particular, women are underrepresented on the Third Circuit (where they make up about 23% of judges) and the Eighth Circuit (18%).
- Thirty-three percent of active United States district (or trial) court judges are women.
- But there are still 7 district courts around the country where there has never been a female judge.
- For women of color, the numbers are even smaller.
- There are 80 women of color serving as active federal judges across the country, including 42 African-American women, 25 Hispanic women, 10 Asian-American women, one Native American woman, one woman of Hispanic and Asian descent, and one women of Hispanic and African-American descent.
- There are only 11 women of color on the U.S. courts of appeals. Five of those women sit on the Ninth Circuit Court of Appeals, two sit on the DC Circuit, and one woman of color sits on each of the First, Fourth, Sixth and Seventh Circuits. Therefore, there are seven federal courts of appeals without a single active minority woman judge.
Plenty of people say they believe in equal rights for women, but when you ask those same people if they're feminists, most of them will say no.
That's what we found in a new Vox poll, which explores the public's view on feminism, abortion, and the Affordable Care Act.
The poll, conducted by research and communications firm PerryUndem, shows that a strong majority of Americans agree on gender equality. Eighty-five percent, for example, say they believe in "equality for women."
But many fewer want to put the feminist label on their beliefs. Eighteen percent of poll respondents said they consider themselves feminist. Fifty-two percent said they were not feminist, 26 percent were not sure, and 4 percent refused to answer the question.
The findings suggest a divide in how Americans see their worldview, with many more supporting the idea of equality between genders than those who would describe that as a "feminist" viewpoint
Tuesday, April 7, 2015
In the Egalia, a preschool in Stockholm, there are no male or femalestudents. Instead, all children are referred to as 'hen' – a gender-neutral pronoun that has become so established in Sweden that it will be recognized next month in the newest edition of the country's official dictionary.
The Swedish Academy's SAOL dictionary, which is updated every 10 years and will be republished April 15, will feature 'hen' as an alternative to the male pronoun 'han' and the female 'hon.' The revised edition will also include thousands of other new words.
According to linguistic expert Sofia Malmgård, the gender-neutral term can be used in two ways. "First, if the gender is unknown or not relevant (as in: "If anyone needs to smoke, 'hen' may do so outside"). Second, it can be used as a pronoun for inter-gender people (as in: "Kim is neither boy or girl, 'hen' is inter-gender")," she explained.
To many Swedes, the decision of the Swedish Academy reflects how quickly their society has embraced gender-neutral language. "Over the last few years, the word 'hen' has more and more found its way into the Swedish language," Malmgård told The Washington Post.
Five years ago, barely anyone in Sweden was aware of the word. The decision to now include 'hen' in the authoritative SAOL dictionary is expected to facilitate an even more frequent use of it in everyday conversations. Set up in 1785, the academy was established with the aim to adapt the Swedish languages to changing cultural and societal influences – a role the institution still feels committed to.
According to experts, the 'hen'-revolution in Sweden has two primary origins: LGBT groups have promoted the pronoun as a way to raise awareness for their cause. However, support for the idea has also come from a more unexpected side: Nurseries, kindergartens and preschools such as Egalia increasingly argue that the pronoun's usage allows children to grow up without feeling the impact of gender biases. "The public debate over the pronoun actually only started after the publication of the country's first gender-neutral children's book", Lann Hornscheidt, an professor of Scandinavian languages and gender studies at Berlin's Humboldt University explained.
Saturday, March 7, 2015
Julie Greenberg (Thomas Jefferson), Interacting in the Workplace with Individuals Who Have an Intersex Condition, Bloomberg BNA
This chapter explores societal assumptions about sex and gender. It begins with an introduction to intersexuality and compares intersexuality to transgenderism and sexual orientation. It then discusses the most pressing issues facing the intersex community and compares them to the concerns of people who are lesbian, gay, bisexual, or transgender (LGBT). It next examines how the law affects people in the intersex community. Finally, it concludes with advice for employment lawyers and human resource managers about how to address issues that may arise in the workplace involving people with an intersex condition.