Gender and the Law Prof Blog

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

Wednesday, August 16, 2017

Gender and Political Discourse

By Guest Blogger Jamie Abrams

This is my third summer guest blogging with the Gender and Law blog.  In prior years, I have comfortably crafted an idea, polished the text, and published the blog for critique and discussion.  I have always received thoughtful engagement on the blog posts and the process of writing them has made me a better writer, scholar, and teacher.  For some reason, however, this approach has not worked this summer.  I have struggled greatly with why that is so, particularly in a year in which the battle for gender equality seems to be slipping so far in the wrong direction.  Indeed there are endless articles and current events on which I could be writing.   

In struggling to understand this newfound writer’s block, I came across the article The Believing Game – Methodological Believing by Peter Elbow.  This article resonated with me on a deep level in thinking about the status of modern political discourse and its relevance to gender equality.  In summary, the author argues that we are born as methodological “believers.”  We begin life inherently believing the things our parents and those in authority tell us.  We are welcome to new ideas and open to listening eagerly and sincerely.  Over time, we are taught to engage instead in what Elbow calls “The Doubting Game.”  This, Elbow explains, “represents the kind of thinking more widely honored and taught in our culture” in which we learn the “disciplined practice of trying to be as skeptical and analytic as possible with every idea we encounter.”  This doubting game dominates modern thinking and indeed it dominates the traditional law school curriculum.  Applying Elbow’s thesis to modern times, the doubting game seems to govern how we process news, how we vote, how we interact with others in nearly every political and social respect.

As a culture, however, Elbow argues that we have not developed methodological believing to match our skills for doubting.  By this he means that we don’t know how to use belief as a tool to decide whether to accept or reject a particular position.  Yet the believing game offers critical additional tools to help us find flaws in our own thinking.  It allows us to test our very assumptions by trying to understand what is valid and worthy of belief in a different viewpoint.  It allows us to find “hidden virtues” in positions as a tool to strengthen our own thinking.  The “believing game” pushes us to “dwell in an idea” to try to understand it.  The question of rejecting or accepting the idea is another matter entirely, but it is through belief in the idea that we process and understand the idea in the first instance.

These methodological approaches are also closely connected to gender norms.  The doubting game – which dominates so much of our political and social discourse today – is associated with masculinity, Elbow notes, in its emphasis on arguing, challenging, resisting, pushing back.  Whereas the believing game is much more associated with femininity in that it emphasizes listening, relating, understanding. 

Elbow ultimately concluded in 2008 that we are losing the lens and the language to engage in methodological believing.  This thesis seems even truer today.  As I absorbed this article, a lot of things began to fall into place for me.  I wondered if my struggle to blog, or even to engage in any political discourse on social media since the election comes from the painful realization that such efforts are largely futile to the extent that they try to promote a greater understanding. 

This article leads me to a few conclusions.  First, it reminds me that the stagnant role of women in politics is deeply concerning for the longstanding critique of who is governing and the representativeness of our political leadership.  But also that gender inclusion and diversity more broadly in politics stands to shape how we are governing and engaging in political discourse generally.  Second, it reminded me that rather than digging in deeper on defending and supporting our views, we need to better frame the rigor of political discourse.  How to do that, of course, is the bigger question to which I have no answers.  All that I share here is that diagnosing the problem as one rooted in our very approach to the methodology of critical thought helped me for a moment to see past the “fake news” and ideological divides that govern the headlines today.  It helped me to realize that the gender equality project is about more than just a group of individual legislative reforms or initiatives.  It is connected to the very values that we embrace and idealize in political discourse.

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Guest blogger Professor Jamie Abrams 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.

August 16, 2017 in Guest Bloggers, Theory | Permalink | Comments (0)

Monday, August 7, 2017

The N.F.L.’s Domestic Violence Policy:  Revealing the Limits of an Internalities Approach to Domestic Violence

From Guest blogger, Jamie Abrams:

The National Football League’s (NFL’s) response to domestic violence provides a good example of the limits of internalities and the expansive and transformative power of externalities to apply a framework introduced in my last blog entry.  In August 2014, the NFL Commissioner Roger Goodell announced a new Personal Conduct Policy. The policy was enacted after a high profile case of domestic abuse involving Ray Rice and his then-fiancée.  Commissioner Goodell faced harsh criticism for allegations against him ranging from giving Rice an inappropriately light punishment to attempting to cover up the scandal by ignoring the existence of the security camera footage until the media released it.  The revised policy stated that assault, battery, domestic violence or sexual assault involving physical force would be subject to a suspension of six games without pay for the first offense.  The suspension would apply regardless of whether the player was formally charged.  A second qualifying offense would lead to a lifetime ban from professional football.    The NFL sought to ensure a “fair and consistent process for player and employee discipline” that would “set a higher standard.”

The NFL’s response, however, rested entirely on internalities.  It depended on the victim coming forward to report the allegations of assault.  It added an additional punitive and professional outcome to the existing criminal and civil consequences.  In its application, the policy only raised the stakes for the victim in coming forward to report domestic violence against prominent athletes.  This approach is inherently limited in its efficacy and insulates the NFL (which is a proxy for the state in this example) from accountability.

When understood in the context of externalities and broader political framings, the NFL could have dramatically reframed its approach in actually using its power as the NFL to change behaviors.  The culture of the NFL could have been more closely examined to see the ways in which it acts as a provoker of domestic violence and the ways in which it could better prevent domestic violence.  For example, in a highly masculine environment, might the publicity, threatened job loss, and income loss embedded in the NFL policy – particularly when initiated by the victim – actually exacerbate the risk of domestic violence?  Might the NFL work to change its culture of masculinity in ways that effectively address the medical, social, and statistical risks of domestic violence that are unique to NFL culture? 

Expanding the lens to include externalities offers an insightful contrast to consider what might be missing from an internalities approach.  It reveals how the NFL camaraderie and the team atmosphere of the NFL might be leveraged to create positive peer associations and stronger cultural values and beliefs about healthy relationships.  It reveals how the NFL might also provide more support for its players who are prior victims of abuse or witnesses of abuse or hold other risk factors.  With the power and resources of the NFL expanded to an externalities approach, perhaps stronger lasting change could be achieved.

 

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Guest blogger Professor Jamie Abrams 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

August 7, 2017 in Guest Bloggers, Sports, Violence Against Women | Permalink | Comments (0)

Friday, August 4, 2017

Moving Beyond the Internalities of Domestic Violence

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Guest blogger Professor Jamie Abrams 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

 

Imagine if domestic violence activists could reframe its politicization and present the issue for public response anew.  How would the issue be framed and described?  What legal solutions would be identified?  Who would be accountable for effective results?  I suggest that such an exercise would reveal that the domestic violence movement is politicized around the internalities of victims and perpetrators in ways that collaterally restrain efforts to end domestic violence. 

Internalities are the condition of being internal or contained within.  This term describes the ways in which domestic violence is politicized as a problem internal to the relationship in which it occurs.  In this internalities framing, there are two actors – the victim and the perpetrator.  Other actors, such as law enforcement, social support services, and lawyers, all intervene to assist once initiated, but the problem and legal responses to it are understood and defined by its internalities.  The internalities framing puts our focus on the victim and the perpetrator as a contained unit:  How can this victim be protected?  How at risk is this victim for future violence?  How will the perpetrator be prevented from contact with this victim?   The “crisis” of domestic abuse is built around the victim and her needs, an understandable point of emphasis from a public safety and health standpoint,  but a narrow one from the perspective of ending domestic violence.

There are considerable strengths to an internalities framing, particularly when understood in historical context.  It uniquely grew out of understandings of domestic violence as discerned from women victims and the consciousness-raising dialogues that brought these individual experiences together collectively. This framing gave powerful voice to a silent epidemic historically insulated in the family with minimal state intervention or response.   Giving voice to the experiences of survivors and developing social, political, and legal interventions to those experiences is one of the greatest accomplishments of the second-wave feminist movement.

There are also inherent limitations to this approach.  From a politicization perspective, an internalities framing risks politicizing domestic violence as if it spontaneously erupts out of the relationship, which insulates the state from accountability.  Consider, for example, the iconic “Cycle of Violence.”  It visually depicts and explains abuse as a single victim and a single perpetrator on a continuous cycle without externalities or collateral harms to family, community, employers, the economy, etc.  It pretends that abuse just erupts and sustains itself on this cycle within the internal family unit, without consideration of the political, economic, social, legal, medical triggers that also play a role.  Lethality risk assessments likewise ask victims about internalities only, such as victim pregnancies, perpetrator drug/alcohol abuse, perpetrator weapon access, and recent violent incidents between the two.

There is an interesting power paradox embedded in this internalities approach.  Victims gain autonomy by shaping law reform approaches and framing domestic violence in the public arena, but they, in turn, hold implicit accountability for the effectiveness of those interventions.  This autonomy paradoxically immunizes the state and perpetrators from accountability, which was the exact goal of the early battered women’s movement.  This creates an insider-outsider politics that positions the victim as the insider party accountable for effective interventions and risk assessments.  The state is cast merely in a supporting role coming to her aid as an outsider.  This insulates the state from accountability and casts the crisis and accountability for effective solutions around the victim, rather than the perpetrator. 

This framework ignores the ways in which state actors in the judicial and law enforcement process might provoke or exacerbate risks of family violence or might exercise more proactive risk assessments and accountability.  It also ignores the ways in which those externalities will likely lead the perpetrator to recidivist behaviors with a new partner even if the state were able to successfully break the cycle of violence in the preceding relationship.

Missing from this framing of violence are the ways in which externalities can play a critical role in exacerbating, triggering, and facilitating domestic violence.  Some examples of relevant externalities systemically excluded from our politicization of domestic violence are economic distress, the perpetrator’s own history of prior abuse, job loss or dissatisfaction, mental illness, larger gender inequality and cultural norms, and changes in custody/parenting status.  Ignoring externalities compromises the extent of state interventions; fictionalizes the family as an isolated unit separated from other political and social systems; and reveres state actors as universally working to end family violence, ignoring the possibility that state action can also sometimes provoke or exacerbate violence.

Note:  This blog post previews arguments that I make in a forthcoming chapter in the book The Politicization of Safety (N.Y.U. Press) following a conference on The Politicization of Safety organized by Jane Stoever at the University of California–Irvine School of Law this April

August 4, 2017 in Guest Bloggers, Violence Against Women | Permalink | Comments (0)

Friday, July 14, 2017

Modern Pedagogical Challenges (and Opportunities) in Teaching Gender Courses

 

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

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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.

July 14, 2017 in Education, Gender, Guest Bloggers, Law schools | Permalink | Comments (0)

Thursday, July 6, 2017

Guest Blog: MothersEsquire: A Professional Community for Lawyer Moms

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

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MothersEsquire:  An Introduction to a Supportive Community

As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession.  I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained.  I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups.  The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life.  The same outsider phenomenon can also describe the role of students attending these events.  I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.  

This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession:  MothersEsquire.  This year has been an important one for the organization of women’s groups.  From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year.  The MothersEsquire organization stands out in a couple of key ways. 

First, it is not limited to geographical boundaries or bar licensure borders.  For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside.  This is an obstacle, or at least a deterrent, to my participation in local bar events.   The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner. 

Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc.  As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities.  For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time.  The organization is also working on breastfeeding accommodations.  It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.

Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations.  Certainly, not all women lawyers are mothers or identify as mothers.  Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession.   For those that do, however, this group provides an outlet, an information source, a networking portal, and more.  Its website explains:

“We are Moms.  We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school.  We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night.   And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”

Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin.  Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so.  This group is distinctively inclusive.  It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that.  Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers. 

For more information about MothersEsquire join the Facebook group or check out its website:  I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.     

July 6, 2017 in Family, Guest Bloggers, Women lawyers, Work/life | Permalink | Comments (0)

Friday, July 8, 2016

Re-Entrenching Stereotypes About Gendered Violence?

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 In thinking about new ways to end gendered violence, it may be time to reconsider the ways in which the law normalizes male violence and marginalizes women’s violence and how this binary treatment re-entrenches stereotypes. Consider, for example, the standards in the Kentucky Batterer’s Intervention Program (BIP). Many aspects of the Kentucky BIP requirements are the same for men and women, such as the requirements to provide content defining domestic violence, discussing the cycle of violence, and developing nonviolent methods for resolving conflict. 920 Ky. Admin. Regs. 2:020 (1)(10) (2015). Male abusers, however, are uniquely instructed in the: “confrontation of rigid sex role stereotyping” and “development of a relapse prevention technique.” Importantly, the focus on relapse prevention is in addition to the requirements of challenging a male client’s “pattern of aggression in a conflict with a victim” and exploring “a constructive and nonviolent method for resolving conflict in a relationship” that already apply to both men and women’s BIP programs.

Women share the male curriculum, except for the provisions cited above, which do not apply to women. Women do not consider sex stereotyping or the prevention of relapse. Instead, women’s programs focus on the following areas unique to women’s BIPs: “[e]xploration of life experiences and belief systems that have fostered choices for violent behavior;” and “[s]afety planning and knowledge of domestic violence resources.”

This suggests that women must uniquely account for their violence. It suggests that something went wrong for women in their lives and experiences, whereas men were expected to commit violence. Men’s violence is framed as uncontrollable and relapses are expected. Women’s violence is an aberration and a choice. Women do not plan to relapse; they prepare to be future victims accessing domestic violence resources. Instruction on safety planning and resources is a startling requirement for perpetrators of domestic violence, particularly after women under this statute are already uniquely required to qualify for eligibility.

These gendered differences in BIPs suggest that some life experience fostered violence as an aberration for women. Why should women not study the sex stereotypes that underlie their use of violence as well? Why should men not also explore the life experiences and belief systems that fostered their behavior? Is not men’s violence a choice as well? Seemingly, these differences might send a message of despair and pessimism to victims of men’s violence and a message of incredulity to victims of women’s violence. Is the law here re-entrenching gendered stereotypes about violence in problematic ways?

This blog is adapted from my research originally published in The Feminist Case for Acknowledging Women’s Acts of Violence available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790940.

July 8, 2016 in Guest Bloggers, Violence Against Women | Permalink | Comments (0)