Wednesday, January 10, 2018
From Guest Blogger Catherine Dunham, Professor of Law, Elon University School of Law
Too Pretty: An Essay
The #MeToo moment is powerful and encouraging to those of us who have worked in uncomfortable environments for years. In my high school years, there were retail managers who made up reasons to brush behind you as you ran the cash register. Then, there were the college food service job years which included outright sexual propositions from same age colleagues and groping opportunities disguised as rides home (“let me reach across and get that door for you.”). Fast forward to my first professional environment with new shoes and proper clothes. I was asked to pick things up, to walk across the room, to sit with older male clients and keep them company as they waited for my boss. I knew it was creepy but I perceived myself as someone without power. Also, the men were much older and seemed harmless. To me, they were sad and unthreatening but, in retrospect, they probably saw themselves as first rate opportunities for a young gal like me. I spent eight post college years in subordinate professional roles and literally lost count of the times I was propositioned and of the men who made the overtures. At one particularly low point, a supervisor who positioned himself as my mentor, some 20 years my senior, made a full-scale play for me after months of uncomfortable flirting. The encounter ended with me saying, “please don’t do this – I need this job.” Thank goodness, he relented. I left that encounter thinking I need to get into a better professional position so as not be treated like the Gal Friday, possibly available for anything, for the rest of my career. So, I went to Law School. Certainly, after I became a lawyer, this would stop.
Law school was an oasis in my professional story. I had great male and female student colleagues and felt respected for my intellect and hard work. This calm faded as I entered the profession, particularly private practice where I was called upon for coffee runs in depositions when I was the only women in the room. I was mistaken for a paralegal, a court reporter, a clerk, with one time reprimanded by an out-of-county lawyer who demanded I remain behind the bar as the counsel tables were available only for licensed attorneys. I was called “honey,” “sweetie,” and “girl” by a person on every rung of the legal professional ladder. There were also appearance-based comments by judges and jurors and the occasional “you are just too pretty to be a lawyer.” For the record, I am not that pretty. I was simply female and young and offered an alternative version of what lawyers in my rural practice area were supposed to look like. But because I was a young woman, comments on my physical appearance were to be considered compliments.
I learned to manage this terrain. I refused coffee runs, openly chastised lawyers who called me “honey,” and responded to the “too pretty” comments with a good Southern comeback like, “thank you – you are much too old to be looking at women my age.” In fact, my small firm which was all male sans me remains the most gender balanced environment I have ever worked in. My male superiors were excellent trial lawyers who valued hard work and intelligence without a care about how you looked, who you slept with, and whether you had a life outside of the office. If you did well, you were celebrated. If you screwed up, you heard about it and received some direction to keep you from making the same mistake again. The firm environment was fair, which made up for the constant inequities of the rural southern courts where I practiced. Even so, those years were the time in my life when I was most often a woman among men and I got a glimpse of the ease the permeates a non-diverse world. The language was not modern but it was not all menacing. I had grown up with good people who used old-fashioned language to discuss women so learned not to be too quick to judge a gendered, albeit gracious, phrase.
I expected the switch to legal academia to expose me to the Holy Grail of gender equality. Law professors were progressive and would create and propagate fair and balanced environments. Wrong. Twenty years after that first brush up behind the cash register, I was still deciding how to deal with a creep. The only difference was the creep’s tactics. Law academia has included being told by a Dean that I should “just go home, take care of my kids, and let my husband pay the bills.” Another Dean promised to “take care of me” if I followed his lead on voting and retaliated when I did not. And I once had a student tell me he could not attend my class because it was against his personal beliefs for a man to learn from a woman. I have seen women colleagues painted as “shrill,” “passive,” “too aggressive,” “brash,” and just overall not good enough to play in the big leagues of real law teaching. I have sat in meetings trying to convince male colleagues that when viewing the teaching evaluations of women (and minority) faculty, particularly those who teach in predominantly male, white schools, you must account for the power differences, understanding that minority teachers do not get the benefit of the doubt. And I have watched male colleagues protect their territory against female interlopers by appointing themselves the junior female colleague’s unofficial mentor then using that access to offer an ostensibly credible assessment of the junior faculty member to the rest of the faculty. “I have really worked with her but she just isn’t getting there.” On this point, I have seen male colleagues praised for protecting the quality of instruction and women colleagues criticized for being territorial. Territorial men are protectors and providers. Territorial women are like my border collie when the repairman comes; a nasty bitch.
Why do we accept that women will deal with a certain amount of skirt chasing and “boys will be boys” behavior in the workplace? Because we view men as more and view women as less. Our cultural views come through in our language, public and private, whether we know it or not. For a woman of my age, raised in the culture of the American South, language was a complicated mix of the sweet and the cruel which offered few guiderails for my journey into professional adulthood. It took years for me to begin to challenge the words used to describe me and other women and the subtext beneath the conscious word choices of my peers. I must admit that when I was first told I was too pretty for something, it read as a compliment. It took time for me to understand that words which celebrated physical attractiveness when those traits are not relevant are words that diminish.
I have lovely memories of my Great Uncle holding my hand and telling me I looked like Snow White. However, a father, grandfather, or uncle could show the same affection with other words, words which do not connect physical appearance with value thus confounding those two things in a way that confuses young women on their personal value. In truth, members of my own family told me I was too pretty to be a lawyer, telegraphing the cultural assumption that attractive women can get husbands so don’t need careers. These messages sent me off into the world confused about my value and my role. When our cultural rhetoric focuses on the physical attributes of women, we devalue women and invite the aggressors. And we are all too pretty for that.
Catherine Dunham is a Professor of Law at Elon University School of Law where she teaches Civil Procedure, Civil Litigation, and Litigation Skills including Trial Practice. She has also served as a trial analyst for several major news outlets, including NBC and CNN. In addition to procedural topics, Prof. Dunham’s scholarship explores social psychology and legal education, as well as topics related to gender equity and unconscious bias. Prof. Dunham is also prior recipient of the ABA Smyth-Gambrell Award for Teaching Professionalism.
Sunday, December 17, 2017
Meet Tamar Frankel, 92, First Woman Law Professor at Boston U and Intellectual Godmother of the Fiduciary Rule
Ms. Frankel, a law professor at Boston University, is the intellectual godmother of the fiduciary rule, a regulation from the U.S. Department of Labor requiring anyone being paid to provide investment advice on a retirement account to act in the best interest of the client. At the age of 92, Ms. Frankel still commutes to work five days a week, teaches two courses—and is unfazed that the Labor Department announced on Nov. 27 that it would delay implementing key parts of the fiduciary rule until July 2019.
After all, Ms. Frankel has been advocating that brokers should put their clients first for more than 40 years. What’s another 18 months?
Born in what was then Palestine in 1925, Ms. Frankel joined the Haganah, the paramilitary movement for Israeli independence, at age 14. Her father was the first president of Israel’s bar association, and she apprenticed in his practice. In 1949, she became the first general counsel of the Israeli Air Force. Two years later, when she was 26, her father died, and she took over his law practice.
In 1963, Ms. Frankel came to study at Harvard Law School. She wrote her doctoral dissertation on variable annuities, those mashups of mutual funds and insurance.
“That was perfect, because I knew very little about mutual funds and very little about insurance,” she says. “There are two ways you can react to not knowing: one is to feel afraid of your ignorance, the other is to be consumed by the desire to understand. I felt almost drunk with how much I could learn.”
In 1968, as she was still studying to complete her dissertation, Ms. Frankel joined Boston University. The field was so male-dominated that, when she arrived as the law school’s first female professor, BU relegated her office to the basement of the library.
“I didn’t have to put the books back on the shelf!” she laughs. “The craving for being part of the group, being accepted, that wasn’t my priority.”
After she turns 93 next July 4, Ms. Frankel says, she will stop teaching—although she will continue to research and write.
What accounts for her longevity? “Caring less and less about what other people think,” she says, “and more and more about questions you don’t have answers to.”
The BU Law Faculty in 1972 when Prof. Frankel was the only woman professor.
Friday, November 17, 2017
Taja-Nia Y. Henderson, "I Shall Talk to My Own People": The Intersectional Life and Times of Lutie A. Lytle, 102 Iowa L. Rev. 1983 (2017).
In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments—her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school—have been largely lost to historians of legal education. She is not among those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.
As a genre, biography seeks to use the life of the individual to tell a larger story about the collective. Feminist biography—probably best understood as both subgenre and method—has the same goals, but moves gender “to the center of the analysis.” This methodology asks not only how gender as a social category has impacted the lives of historical actors, but also how the unequal distribution of power resulting from existing gender hierarchies has influenced epistemologies of scholarly inquiry.
A biographical sketch of Lutie A. Lytle, a woman coming of age in the second half of the nineteenth century, warrants such treatment. Lytle’s career in the law was certainly impacted by gender as she was among the earliest cadre of women lawyers in the nation. As a student, she was the only woman enrolled in the Law Department of Central Tennessee College. When she was appointed as an instructor at the College, moreover, she was the only woman among the law school’s faculty. As a woman of African descent born during Reconstruction, however, Lytle (and her story) “cannot be captured wholly by” a methodology that moves only gender to the center. The intersection (or overlap) of Lytle’s identities as a woman of color and the daughter of former slaves requires that gender and race (and arguably, status and class) move to the center. In other words, a biographical sketch of Lytle’s life cannot privilege gender in isolation; it must also grapple with the persistence of race, racism, and the myriad legacies of chattel slavery in the subject’s world.
Thursday, October 12, 2017
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).
Thursday, August 24, 2017
A pay discrimination lawsuit filed on behalf of women law professors against the University of Denver by the Equal Employment Opportunity Commission continues to grow.
Two more tenured female law professors are seeking to intervene in the 2016 suit, which alleges that the law school systematically underpaid women on the faculty for years. So far, six women professors claim disparate pay against the law school
Professors Joyce Sterling and K.K. DuVivier last week asked a federal judge to join the suit. If allowed, there will be six plaintiffs named in the suit, which the EEOC filed on behalf of longtime professor Lucy Marsh and other female law professors they determined were underpaid after conducting a study of faculty compensation. The university is not opposing their motion to intervene.
Each of the named plaintiffs and proposed intervenors were identified by the EEOC as receiving lower compensation than similarly situated male colleagues, and all six still work at the law school. ...
The pay dispute began in 2013 when Marsh approached then-dean Martin Katz to discuss discrepancies in faculty compensation. A 2012 memo from Katz disclosed that the average salary for women professors was nearly $16,000 less than that of men. Marsh then learned that she was the lowest paid full law professor on the faculty, despite having taught at the law school since 1976. She earned $16,800 in her first year of teaching, according to court filings, and in 2016 earned a salary of nearly $116,000. ...
Friday, July 14, 2017
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.
Thursday, June 8, 2017
Updated June 8, 2017
For awhile, it looked like the appointments of new law deans this year was trending women. For my thoughts as to possible explanations for this trend, see my quoted comments in Karen Sloan, If It's a New Law Dean, It's Likely a Woman.
However, now as we near the end of the 2017 hiring season, it seems that the trend is less to a gender preference, and more to equality of appointment.
To date in 2017, 14 of 28 (50%) new deans are women. Two are women of color.
In 2015, 46% of new law dean appointments were women. Annual List of New Women Law Deans.
Still, a new study of law school deans, US Law School Industry: Dean Positions 2015-2016, concludes that “Law programs and their leadership remain potentially gendered. . . . Women continue to be substantially under-represented at the highest levels of leadership, though we find that differences are significantly less pronounced at Assistant and Associate Dean positions.”
Here is the 2017 list:
Aviva Abramovsky, Buffalo (Associate Dean for International Initiatives, Syracuse)
Joan Bullock, Thomas Jefferson (Associate Dean for Academic Affairs, Florida A&M)
Marcilynn Burke, Oregon (Associate Dean for Academic Affairs, Houston)
Cathy Cox, Mercer (President, Young Harris College, former Secretary of State Georgia)
Megan Carpenter, New Hampshire (Co-Director, Intellectual Property, Texas A&M)
Darby Dickerson, John Marshall Chicago (Dean, Texas Tech)
Susan Duncan, Univ. of Mississippi (Interim Dean, Louisville)
Heather Gerken, Yale (Professor, Yale)
Judge Maureen Lally-Green, Duquesne (Judge, Interim Dean, Duquesne)
Rachel Janutis, Capital (Interim Dean, Capital)
Judge Madeline Landrieu, Loyola New Orleans (Judge, Louisiana Court of Appeal)
Lyrissa Lidsky, Univ. of Missouri (Associate Dean, Graduate Programs, Florida)
Hari Osofksy, Penn State (Professor, Minnesota)
Judge A. Gail Prudenti, Hofstra (Judge, Interim Dean Hofstra)
The men appointed to new deanships are:
Richard Bierschbach, Wayne State (Associate Dean, Cardozo)
Paul Caron, Pepperdine (Professor, Pepperdine)
Erwin Chemerinsky, Berkeley (Dean, UC Irvine)
Colin Crawford, Louisville (Professor, Tulane)
Dan Filler, Drexel (Associate Dean, Drexel)
Lee Fisher, Cleveland State (former Lt. Gov, Interim Dean CSU)
Michael Hunter Schwartz, McGeorge (Dean, Arkansas)
Michael Kaufman, Loyola Chicago (Professor, Loyola Chicago)
Gregory Mandel, Temple (Interim Dean, Temple)
John Manning, Harvard (Deputy Dean, Harvard)
Richard Moberly, Nebraska (Interim Dean, Nebraska)
Anthony Niedwiecki, Golden Gate (Associate Dean, John Marshall Chicago)
Jack Nowlin, Texas Tech (Senior Associate Dean, U Mississippi)
CJ Peters, Akron (Associate Dean for Scholarship, Baltimore)
Kristen Konrad Tiscione, “Best Practices”: A Giant Step Toward Ensuring Compliance with ABA Standard 405(c), a Small Yet Important Step Toward Addressing Gender Discrimination in the Legal Academy, 66 J. Legal Educ. (Spring 2017)
In March 2014, the American Bar Association (ABA) voted to leave Accreditation Standard 405 undisturbed.” The ABA’s decision required law schools to continue to grant tenure to traditional law faculty, yet permitted them to continue to deny tenure to clinical and legal writing faculty. At the same time, recognizing the need for increased professional skills training, the ABA voted to increase the number of experiential credits law students must
complete from one to six. As explained to the ABA Council in advance, these two decisions work together to increase the demands on skills faculty, who are predominantly female, yet keep them at a lower professional status with less security of position.
Regrettably, the long and tortured history of Standard 405 suggests that the vision of equal opportunity for all law faculty—traditional, clinical, legal writing, academic support, and teaching librarians—is not going to be realized anytime soon. The highest and best security of position most professional skills faculty can likely hope for in the near future is that embodied in current Standard 405(c).Thus, law schools’ adherence to established best practices is necessary if “reasonably similar to tenure” is to mean something for those who struggle to and ultimately achieve 405(c) status
The most disturbing aspect of the continued discrimination against skills faculty and the abuse of Standard 405(c) is its disparate impact on women. Women represent roughly forty-three percent of all full-time law faculty, yet, according to 2013 statistics available from the ABA, only thirty-six percent of tenured or tenure-track faculty are female.
In stark contrast, sixty-three percent of 405(c) faculty are women (an increase from fifty-six percent in 2008).29 Because this number may not include legal writing faculty with 405(c) status, the overall percentage of women with 405(c) status may be even higher. This means that, to the extent law schools fail to comply with Standard 405(c), they are nearly twice as likely to disadvantage a woman as a man.
Even more shocking is that seventy-one percent (and holding steady since 2001) of legal writing faculty are women, which usually means they have the least security of position under ABA Standard 405(d). To the extent law schools fail to renew legal writing contracts in a manner inconsistent with 405(d), they are almost 2½ times as likely to disadvantage a woman.
I have long advocated for tenure eligibility for all law faculty regardless of subject matter. That said, ensuring fair compliance with Standard 405(c) is at least a beginning to the work that needs to be done to improve the status of a predominantly female professional skills faculty. Ostensibly, 405(c) protects clinical faculty, but law schools often fail to comply with it, and, as Professor Kathryn Stanchi points out, it acts in practice to cabin faculty and discourage academic freedom.
Thursday, April 27, 2017
Carrie Menkel-Meadow, Feminist Legal Academics: Changing the Epistemology of American Law Through Conflicts, in Gender and Careers in the Legal Academy (Ulrike Schultz, ed. Hart Publishing-Onati Series, forthcoming)
In this Chapter I will describe the inter-generational contributions of the first few decades of women law professors who have created a contested “canon” of new understandings of legal concepts in American jurisprudence and legal practice. I describe here the way in which several generations of women law professors (some working with legal practitioners) have forged new legal ideas or “memes” (cultural units of understandings), and legal causes of action that have reframed not only “women’s issues” (reproductive rights, employment and labor rights, family law, violence, rape and criminal law, as well as constitutional jurisprudence and different conceptions of “equality”), but have also contributed new conceptions or interpretations of mainstream legal concepts (e.g. in contracts, property, and torts etc.).
Those of us who have written about these developments over the years all acknowledge the inter-generational differences in meanings attributed to our goals as participants in the making of new legal epistemology—the interpretation of law and doctrine, the creation of new concepts, causes of actions, or legal “memes,” the creation of new courses and methods for learning law, whether and how our new epistemology should be integrated (or more controversially “assimilated”) into mainstream American law doctrine and education, how we have or have not influenced the legal academy and legal thought generally, as well as legal practice and law reform measures, and what lessons we offer for future generations of “outsiders” who are increasingly populating our profession with more diverse bodies and ideas.
Monday, April 24, 2017
Deborah Jones Merritt, Ruth Colker, Ellen Deason, Monte Smith & Abigail Shoben, Formative Assessments: A Law School Case Study, Univ. Detroit Mercy L. Rev. (forthcoming)
Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.
Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.
In addition to exploring these relationships between formative assessment and academic achievement, we discuss several race and gender effects that emerged in our analyses. Women, for example, were significantly more likely than men to complete the formative assessment. Women also received significantly higher grades than men in a spring-semester course on Legal Analysis and Writing; men, conversely, received significantly higher grades than women in a Legislation course. A race effect, meanwhile, emerged for students with LSAT scores at or above the school median: Among those students, nonwhite students who completed the formative assessment achieved significantly higher grades in Constitutional Law than white students who submitted the same exercise.
All of these relationships deserve further empirical study. In particular, our results suggest the importance of examining the transfer effects of formative feedback, gender differences in law school learning, and paths for improving the academic experience of minority students.
Tuesday, February 28, 2017
It has been 27 years since the first black man, an older student by the name of Barack Obama, was elected president of the prestigious Harvard Law Review. It has been even longer — 41 years — since the first woman, Susan Estrich, was elected to the position. Since then, subsequent presidents have been female, Hispanic, Asian-American, openly gay and black.
Only now, for the first time in the history of the venerable 130-year-old journal, is the president a black woman.
ImeIme (pronounced “Ah-MAY-may”) Umana, 24, the third-oldest of four daughters of Nigerian immigrants, was elected on Jan. 29 by the review’s 92 student editors as the president of its 131st volume....
“It still feels like magic that I’m here,” Ms. Umana said in an interview, though her fellow students said it was not magic at all but her sharp legal mind, intense work ethic, leadership ability and generosity of spirit that catapulted her to the top.
Ms. Umana’s emergence now has raised questions about why it took so long for a black woman to reach the pinnacle of the review and how her perspective may influence a publication that has for most of its existence been led by white men.
When Ms. Umana talks about the law, she speaks through the prism of her race and gender. Not far from her mind are the black women who in recent years died after encounters with law enforcement.
Unlike the vast majority of graduates of the nation’s top law schools, Ms. Umana says she has no interest in joining a high-paying corporate firm. Her dream for now is to become a public defender, a goal she set after an eye-opening internship last summer in the public defender’s office in the Bronx. She plans to work this summer with the public defender in Washington.
“A lot of the clients I worked with that summer and since have looked a lot like me,” she said. “They are disproportionately represented on the unfortunate end of the legal system, so it struck a little closer to home.”***
So why did it take so long to elect a black woman?
In Ms. Umana’s view, the lag reflects a wide gulf between black women and law school — and the law in general, a profession in which minorities have historically been underrepresented.
“We’ve been systematically excluded from the legal landscape, the legal conversation, and we’re just now making some important inroads,” she said in her office at the law review, which occupies Gannett House, a creamy 19th-century Greek Revival building that amid the law school’s imposing brick and concrete edifices looks like a New England cottage.
A 2014 study found a wide gender disparity at many of the nation’s top law reviews. It suggests that women do not apply in the first place for a host of reasons: They prioritize other parts of their lives, do not want to put in the extra hours that law reviews demand and are less interested in conventional markers of success like law review membership.
Wednesday, February 22, 2017
Ruthy Lowenstein Lazar, Interdisciplinary Clinical Education--On Empowerment, Women, and a Unique Clinical Model, 23 Clinical L. Rev. 429 (2016)
For the past seven years, the Women’s Rights Clinic operatingwith in the Law School of the College of Management in Israel has been engaged in an “assistance project” of the women cleaners working at the campus. This Article presents a discussion of interdisciplinary clinical work and focuses on an empowerment model developed in the Women’s Rights Clinic. It argues that clinical work for marginalized populations requires a holistic approach that is not limited to legal work alone, but enables the use of a combination of legal and extra-legal tools. The holistic approach illustrated in the Article emphasizes the importance of integrating into lawyering models skills from the domains of social work and therapy rooted in empowerment theory: developing empathy and listening, giving clients a voice, avoiding paternalism, and using emotional discourse in communication with clients.
Monday, February 13, 2017
Susie Salmon, Reconstructing the Voice of Authority
Abstract:Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result.
This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.
Friday, November 11, 2016
Paula Monopoli, The Market Myth and Pay Disparity in Legal Academia, 52 Idaha L.Rev. (2016)
Abstract:The wage gap in academia — even when controlling for rank — has been clearly documented. This article focuses on the affirmative defenses to the Equal Pay Act that play a central role in perpetuating this pay gap in legal academia. These include exceptions for prior salary, competing offers, and negotiation. These affirmative defenses fall under the rubric of “market excuses” and their existence eviscerates the very law that was meant to make the practice of paying men and women differently illegal. The article describes case law that interprets these affirmative defenses and applies the analysis in those cases to two recent, high-profile cases in the legal academic workplace. It will describe the current state of play in legal academia in terms of compensation decisions, the disparate impact that these practices have on women faculty and possible solutions, including the Paycheck Fairness Act.
Wednesday, October 26, 2016
Ronald Rotunda, The ABA's New Rules Mandating "Diverse" CLE Panels. He speaks out against the new rule, arguing that it is poorly drafted and impractical to implement, among other things.
Here's what the new rules provide:
The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. The ABA implementation date for the new Diversity & Inclusion CLE Policy shall be March 1, 2017.
Monday, October 3, 2016
Charges that the University of Denver’s Sturm College of Law violated federal law by paying women full professors less than their male counterparts, which first surfaced in 2013, now have become a federal lawsuit filed on Friday by the Equal Employment Opportunity Commission.
DU law professor Lucy Marsh originally filed the charges with the EEOC. The agency engaged in talks with the university to remedy the situation, but those efforts failed in May, according to the filing.
The suit says that Marsh had worked for the university for 37 years at the time of the 2013 charge, but that her annual salary, $111,977, was less than every male full-time law professor, including many who were hired after she started. Among nine full-time female full professors, the average annual salary was nearly $20,000 less than the full-time male professors — a finding the suit claims is statistically significant.
Tuesday, July 19, 2016
Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.
As law schools nationwide prepare to implement the new ABA requirements governing experiential learning and assessment, it is also appropriate to revisit the gendered critiques of the Socratic dialogue. Scholars such as Professor Lani Gunier and Professor Elizabeth Mertz have studied its disproportionately marginalizing effect on women and minority law students. While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and core upper-level courses. Law schools continue to design their budgets, curricula, and student experience around some degree of case-based, Socratic law teaching in large-lecture style classrooms.
But the Socratic method admittedly has some advantages that none of the other curricular innovations have. It is repeated hundreds of times in different courses, whereas a typical student in a law clinic will represent just a handful of clients on discreet legal issues. It is delivered to a large and diverse group of students allowing for competing perspectives and critical inquiry. It has robust volumes of existing teaching materials built around it making it the most economical method of law teaching. It is comfortable for many professors and law faculties because they were taught this way and they have taught this way for decades, thus allowing greater buy-in and ease of adaptation.
The Socratic method can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms. Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward ways to better align with curricular innovations in legal education and to create a more positive student experience. These adaptations are consistently (1) positioning client(s) at the center of the Socratic dialogue; (2) positioning law students as attorneys considering legal research and weight of authority as a springboard to client counseling and outcomes; and (3) sensitizing students to varied lawyering skills such as client counseling, settlement, drafting, and discovery within the Socratic case-based approach.
These re-framings of the Socratic method would create a more inclusive law school experience for all. These approaches reduce the hierarchy of the professor over the students and invite inclusive participation. The participation that is sought is more collaborative and inviting of diverse perspectives because it is offered as a means to advance client interests and goals, rather than to challenge the professor or a classmate. This would role model collaborative, collegial, and productive lawyering for our students, not just adversarial competencies.
This entry is excerpted from my article on Reframing the Socratic Method previously published in the Journal of Legal Education.
Thursday, March 10, 2016
Meera Deo (Thomas Jefferson), A Better Tenure Battle: Fighting Bias in Teaching Evaluations, 31 Columbia J. Gender & Law 1 (2015).
This Article draws from the first systematic, comprehensive, mixed-method empirical law faculty diversity study to investigate how challenges in the classroom and bias in teaching evaluations affect female law faculty of color. The in-depth interviews of female law faculty of color are systematically analyzed using Atlas.ti software, finding that students directly challenge particular faculty in class, sometimes through verbal and even physical abuse, and write insensitive and irrelevant race- and gender-based comments on anonymous teaching evaluations. These encounters often have negative effects on the professional trajectory of women of color law professors, most notably when these individuals seek promotion and tenure. Instead of supporting these discriminatory barriers to advancement, legal institutions should do away with student evaluations altogether, modify them, or supplement them with more rigorous and less discriminatory forms of evaluation. This is the way to fight bias in teaching evaluations.
Tuesday, March 8, 2016
Challenging conventional wisdom is one thing; saying things that are historically inaccurate, inflammatory and racist is another. How much does academic freedom actually cover? If a history professor says something fundamentally wrong about a historical fact — such as misidentifying who staged the Sept. 11, 2001 terrorist attacks — is that person’s views covered by academic freedom or is that a question of professional competence? What if a poetry professor says the same thing?
While the real protections offered under the principle vary from campus to campus, faculty work is at least founded on the idea that there’s room to express even unpopular ideas or beliefs. But are arguably unacademic opinions — inflammatory falsehoods that have no apparent basis in fact — also covered? A recent case at Oberlin College raises questions about whether all ideas are created equal when it comes to academic freedom.
For the American Association of University Professors, the distinction is one of disciplinary expertise and professional competence, said Hans-Joerg Tiede, associate secretary in the department of academic freedom, tenure and governance. If, for example, a physics professor declared on Twitter that the Sept. 11 attacks were a hoax, AAUP would advocate for the professor’s right to free speech in extramural utterances (it doesn’t distinguish between free speech in person or online). But if the physics professor declared that the world is flat, denying all scientific evidence to the contrary, that could call into question his or her professional fitness.
“There’s a somewhat strange consequence that the less something relates to your discipline, the more protected you are on a general level,” Tiede said. “The closer something is to your area of expertise, you must in some sense be more careful that what you say doesn’t create concerns.”