Gender and the Law Prof Blog

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

Tuesday, March 21, 2017

Remembering Judge Shirley Hufstedler - One of the Famous Firsts

Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)

Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.

 
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***

Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.

 

California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.” 

 


In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.

March 21, 2017 in Judges, Legal History, Women lawyers | Permalink | Comments (0)

Following the Changes in the Supreme Court's Abortion Law

Mary Ziegler,  The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

 

March 21, 2017 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Thursday, March 16, 2017

Ambivalence and Embrace of Women's History Month

In a recent blog I wrote for NYU Press, I ruminated about my work in "women's" legal history, and my reluctant embrace of "women's history month." See Tracy Thomas, The Legal History of Elizabeth Cady Stanton, From the Square.

More aspirationally, my goal was that the book [Elizabeth Cady Stanton & the Feminist Foundations of Family Law] might help to mainstream women’s history. Women’s history has been confined to a niche area of study, a segregated “other” type of law and history that is deemed ancillary—and subordinate and irrelevant to, the dominant understanding. Even beginning in grade school, when I thrilled to read the girls’ biographies of famous women like Maria Mitchell and Elizabeth Blackwell, the girls’ books covered in burnt orange were segregated from the boys’ books bound in olive green and shelved separately in the school library. Long before the debate over pink and blue toy aisles in Target, the world of knowledge for me had been demarcated by sex.

 

That stark image of women’s historical segregation has stayed with me, and expanded as I studied women’s fiction in colleges and now women’s history in law.  Yet the more one read’s women’s legal history, the more it is clear that women’s experience was not in fact this segregated or hidden from the popular understanding.  For example, Stanton’s work was done in the New York state legislature, the leading national reform organizations, the leading national newspapers out of New York, and in decades of national lecture tours. This history was not hidden under a bush or in private diaries in an upstairs attic.  It was public, known, with a clear record trail – and forgotten. Of course those in power are the ones to create history in the topics they chose to write about, remember, and revere.

 

We have a women’s history month to help us make sure we give due attention to the missing pieces.  To pause in the dominant patriarchal view of history and law and find there are many other missing pieces that remain to be told and analyzed; narratives that significantly alter our accepted understanding of law and history.  It remains jarring, however, that women’s history is considered important only 1/12th of the year.  While I resist that marginalization, I resist even more the absence of women’s history in the discussion.  Thus I join in the celebration of women’s history month.  In my own work, the goal for what I teach and write is to mainstream women’s history so that it is no longer merely segregated into one month, but integrated as the default norm.

 

March 16, 2017 in Books, Legal History | Permalink | Comments (0)

Tuesday, March 7, 2017

Book Review: The 1977 National Women's Rights Conference as the Start of the Political Divide

Gillian Thomas, NYT, "Four Days That Changed the World": Unintended Consequences of a Woman's Rights Conference, reviewing:

Marjorie Spruill, Divided We Stand: The Battle Over Women's Rights and Family Values

To answer these riddles requires understanding how we got here, and Marjorie J. Spruill’s “Divided We Stand” offers a detailed if sometimes dense primer. Spruill, a professor of women’s, Southern and modern American history at the University of South Carolina, convincingly traces today’s schisms to events surrounding the National Women’s Conference, a four-day gathering in Houston in November 1977. At the time, Ms. magazine called the event — a federally funded initiative to identify a national women’s rights agenda — “Four Days That Changed the World.” So why is it that today, as Gloria Steinem recently observed, the conference “may take the prize as the most important event nobody knows about”?

 

In Spruill’s telling, the Houston conference was world-changing, but not entirely for the reasons the organizers had hoped. The event drew an estimated 20,000 activists, celebrities and other luminaries for a raucous political-convention-cum-consciousness-raising session. The delegates enacted 26 policy resolutions calling not just for ratification of the Equal Rights Amendment (then just three states shy of the 38 needed) but a wide range of measures including accessible child care, elimination of discriminatory insurance and credit practices, reform of divorce and rape laws, federal funding for abortion and — most controversially — civil rights for lesbians. Those “planks” later were bundled as a National Plan of Action and presented to President Jimmy Carter, amid much fanfare, in a report entitled “The Spirit of Houston.”

 

The conference had an unintended, equally revolutionary consequence, though: the unleashing of a women-led “family values” coalition that cast feminism not just as erroneous policy but as moral transgression. Led by Phyllis Schlafly, a small but savvy coalition of foot soldiers mobilized against the conference’s aims. These activists found common cause in their deep religiosity and opposition to feminism’s perceived diminishment of “real” womanhood. And although their leadership denied it, the group also had ties to white supremacists. “Divided We Stand” argues that the potency of these advocates and their successors reshaped not just the nation’s gender politics, but the politics of the Democratic and Republican Parties as well.

March 7, 2017 in Books, Legal History, Religion | Permalink | Comments (0)

Friday, March 3, 2017

Akron Law Professor Publishes Book on Women's Rights Pioneer

Akron Law Professor Publishes Book on Women's Rights Pioneer

Tracy Thomas was watching a Ken Burns documentary about Susan B. Anthony [& Elizabeth Cady Stanton] one night about 12 years ago when she heard him mention Elizabeth Cady Stanton in passing.

 

Thomas, director of the Center for Constitutional Law at the University of Akron, wanted to learn more about Stanton, a 19th century abolitionist.

 

“She was instrumental in making changes to divorce and domestic violence laws, but I wasn’t finding much online,” said Thomas. “I just started reading Stanton’s papers because I teach family law. The more I read I thought, `Someone needs to know about this.’ “

 

While Stanton’s contemporary, Susan B. Anthony, became focused just on women’s right to vote, Stanton became a social activist fighting for women’s issues as a whole. Her causes included parental and custody rights, property rights, employment and income rights, divorce and birth control.

 

“She was very much a holistic thinker – state, church and public,” Thomas said. “As the suffrage movement got more conservative, Stanton kept going. I used to call her the Oprah of Women’s Rights. Everyone knew her then. But people don’t really know her today.”

 

Thomas is hoping her new book, “Elizabeth Cady Stanton and the Feminist Foundation of Family Law” will change that.

 

The book explores Stanton’s intellectual and personal contributions to family law. Thomas argues that Stanton’s positions on divorce, working mothers, domestic violence, childcare and other topics were extremely progressive for her time.

 

“Stanton had seven children,” Thomas said. “Her husband, Henry Brewster Stanton, was an abolitionist who later became a state legislator. He was gone 10 months out of the year. He was always gone from their farm. Her own work was trying to raise the kids while trying to change the world, although she eventually hired a cook and a live-in housekeeper. She wrote important speeches while she was nursing babies. Susan B. Anthony had to baby-sit.”

 

Thomas became increasingly intrigued the more she read of Stanton’s writings.

 

“She very much illustrated feminist legal theory,” said Thomas. . . . .“She cared about work-life balance issues. Part of the concern is that we’re losing that message. For her, mothering was very important but she didn’t think it should define her. `Feminism’ is such a charged word, but it’s really just understanding things on a woman’s level.”

 

Stanton became interested in women’s causes while watching a lot of her attorney father’s cases and clients at their home.

 

“She didn’t like to do housework or needlepoint,” the professor said of Stanton. “As a woman, you had no rights to your personal property. Her father had money and property but her husband never did. She felt the frustrations herself and she heard the stories early. She would write how frustrating it was to stay here with the kids while her husband got to go out.”

 

Stanton proposed 22 different legal reforms including no-fault divorce, equal divorce, joint property rights and a woman’s rights to her own income, and all but two are laws today.

 

“She didn’t want people to be in marriages unless they wanted to be,” Thomas said. “She thought people should have to be 25 to get married, but that you should be at least 18. The age at the time was 13 or 14. Her reforms seemed very crazy at the time.”

March 3, 2017 in Books, Legal History | Permalink | Comments (0)

New Books: The Trope of the Female Poisoner. How a Jury in an 1840 Murder Trial was Influenced by a Cultural Metaphor

Sara Crosby, Book Talk (audio), Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in America, New Books Network

In this episode of the H-Law Legal History Podcast I talk with Associate Professor of English at The Ohio State University at Marion, Sara L. Crosby about her new book, Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in Jacksonian America (University of Iowa Press, 2016). Crosby discusses how the trope of the female poisoner permeated popular literature in the mid-nineteenth century. In her analysis of the 1840 murder trial of Hannah Kinney, we see how the partisan press used the accused as a vessel through which to fight-out central political battles of the day. We then see how jury decisions may serve as a metric for determining which metaphors and cultural frames are prevailing at a point in time. Following a popular metaphor enables Crosby to track the cultural tides influencing law and politics in Jacksonian America.

March 3, 2017 in Books, Legal History | Permalink | Comments (0)

Thursday, March 2, 2017

The History of Women's History Month

Library of Congress, Women's History Month

Women’s History Month honors and celebrates the struggles and achievements of American women throughout the history of the United States. American women have struggled throughout our history to gain rights not simply for themselves but for many other under represented and disenfranchised groups in America.

 

Women’s History Month had its origins in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as “Women’s History Week".  As requested by Congress, President Reagan issued Presidential Proclamation 4903 proclaiming the week beginning on March 7, 1982 as the first "Women’s History Week" and recognizing the vital role of women in American history.

 

Throughout the next five years, Congress continued to pass joint resolutions designating a week in March as "Women’s History Week" and authorizing the President to issue a proclamation to inform the country of this recognition and urge the people to study the contributions of women to U.S. history.  In 1987 after being petitioned by the National Women’s History Project, Congress passed Pub. L. 100-9 which designated the month of March 1987 as “Women’s History Month.”  This law requested the President to issue a proclamation calling upon the people of the United States to observe this month with appropriate activities and ceremonies.  President Reagan then issued Presidential Proclamation 5619 proclaiming March 1987 as "Women’s History Month" and calling upon all Americans to mark the month with observances to honor the achievements of American women.  Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.

 

Since 1995, Presidents Clinton, Bush and Obama have issued a series of annual proclamation designating the month of March as “Women’s History Month.”  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.

 NWHP, Why March is National Women's History Month

As recently as the 1970’s, women’s history was virtually an unknown topic in the K-12 curriculum or in general public consciousness. To address this situation, the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.

 

The week March 8th, International Women’s Day, was chosen as the focal point of the observance....

 

In 1979, Molly Murphy MacGregor was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.

 

The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981.

 

President Jimmy Carter’s Message to the nation designating March 2-8, 1980 as National Women’s History Week.  As Dr. Gerda Lerner has noted, “Women’s History is Women’s Right.” – It is an essential and indispensable heritage from which we can draw pride, comfort, courage, and long-range vision.

 See also WomensHistoryMonth.gov:  (photo collection). The Library of Congress, National Archives and Records Administration, National Endowment for the Humanities, National Gallery of Art, National Park Service, Smithsonian Institution and United States Holocaust Memorial Museum join in commemorating and encouraging the study, observance and celebration of the vital role of women in American history.

March 2, 2017 in Legal History | Permalink | Comments (0)

Women's Legal History: A Reading List

As we begin women’s history month, I thought I would share a women’s legal history reading list, recently updated. I've  developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar.  

This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting.  It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was not illegal for a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s.  The list goes on and on.  

My scholarly goal is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books.  But for now, at least, the history is being recovered and analyzed, and the transmission of that discovery has been started. 

 

Women’s Legal History: A Reading List

Tracy A. Thomas

General

Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)

Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)

Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)

Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)

Understanding Feminist Legal Theory

Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)

Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)

Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)

Nancy Cott, The Grounding of Modern Feminism (1987)

Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)

Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)

EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)

Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)

Colonial Period

Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)

Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)

Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)

Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)

Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)

Coverture, Marital Status in the Family, Marital Property

William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)

Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)

Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)

Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (2016)

Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)

Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).

Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)

Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651

Ken Burns, Not For Ourselves Alone:  The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)

 Suffrage

Declaration of Sentiments, July 1848

History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)

Ellen DuBois, Feminism & Suffrage: The Emergency of an Independent Women's Movement in America, 1848-1869 (1978)

Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)

Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)

Minor v. Happersett, 88 U.S. 162 (1974)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)

Iron Jawed Angels (2004) (video)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)

Labor

Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)

Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)

Muller v. Oregon, 208 US 412 (1908)

Adkins v. Children's Hospital, 261 US 525 (1923)

The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)

 Reproductive Rights

Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)

Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015) 

Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)

James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)

Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)

Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)

Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)

Equality

Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).

Fred Strebeigh, Equal: Women Reshape American Law (2009)

Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)

TJ Boisseau & Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 YEARS OF THE NINETEENTH AMENDMENT: AN APPRAISAL OF WOMEN’S POLITICAL ACTIVISM (Lee Ann Banaszak & Holly J. McCammon, eds.)

Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)

Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)

Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (2010)

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).

Pregnancy Discrimination

Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)

Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)

Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)

 Employment

Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)

Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)

Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)

Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work (2016)

Joanna Grossman, Nine to Five:How Gender, Sex, and Sexuality Continue to Define the American Workplace (2016)

 Women in the Courts

Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)

Holly McCammon, The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (2012)

Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)

Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)

Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).

Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)

Bradwell v. State, 83 U.S. 130 (1872)

In re Lockwood, 154 U.S. 116 (1894)

Women’s Legal History Biography Project, at http://wlh.law.stanford.edu

 

March 2, 2017 in Books, Legal History, Scholarship | Permalink | Comments (0)

Thursday, February 23, 2017

Book Talk (video): Elizabeth Cady Stanton and the Feminist Foundations of Family Law

ECSBookJacket

 

Tracy A. Thomas, Book Talk: Elizabeth Cady Stanton & the Feminist Foundations of Family Law, University of Akron, Center for Constitutional Law (Feb. 9, 2017).

In this presentation, I talk about Stanton's impact on family law, the feminist reforms of family law in the 19th century, and broader goals of mainstreaming women's legal history.

 

February 23, 2017 in Books, Legal History | Permalink | Comments (0)

Tuesday, February 14, 2017

St. Valentine's Greeting to The Lady Judge

From the archives of Judge Florence Allen.  Allen was the first woman judge elected to a state supreme court (Ohio in 1922), appointed to a US Court of Appeals (6th Circuit), and shortlisted for the US Supreme Court. She saved this card sent to her from friends. 

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February 14, 2017 in Legal History, Women lawyers | Permalink | Comments (0)

An Alternative Interpretation of America First, Circa 1924

From the archives of Judge Florence Allen's papers.  Allen was the first woman judge elected to a state supreme court, appointed to a US Court of Appeals, and shortlisted for the US Supreme Court. She saved this pamphlet from the peace movement.

This "America First" poster appears to be part of a campaign by schools, churches, and organizations to turn "the old slogan 'America First'" into a "new American Creed that voices the faith of the broader patriotism that American should be in the forefront of the movement for world cooperation." Peace, not war.  Globalism, not localism.

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   Excerpts from the poster:

    America First: not flaunting her strength as a giant, but bending in helpfulness over a sick and wounded world like a Good Samaritan.

    Not in splendid isolation, but in courageous cooperation.

    Not in pride, arrogance, and disdain of other races and peoples, but in sympathy, love, and understanding

From the explanatory pamphlet:

How the Creed Came to be Spoken

    On Sept. 7, 1924, the Rev. George Ashton Oldham, Bishop Coadjutor of the Diocese of Albany NY preached . . . the Sunday before "Defense Day." He delivered a strong peace sermon. Toward its close he spoke of the old slogan "America First," and told how he thought it should be interpreted. He was listed to with breathless interest and with evident approval.

How It Came to be Published

    Among some who heard Bishop Oldham's sermon and some who read reports of it in the papers the idea arose of giving this new interpretation of "American First" a wider circulation by issuing it in poster form. The enthusiasm of the public was immediate and great. Cards and postcards were next issued, and then, to meet an urgent demand, a poster large enough for outdoor or classroom use.

A "Baerfact"

"As a statement of principles to which every forward-looking American can subscribe, 'America First' would be hard to beat. It makes the noisy rantings of all the professional patriots sound pretty mean and cheap and silly, and recalls the noble ideas of liberty, justice, helpfulness, and cooperation in which the nation was conceived and which it must follow to attain its high destiny."--JM Baer, the "Congressman Cartoonist"

Former Supreme Court Justice Sees Possiblility of New Heaven and New Earth (John H. Clarke)

Noted Editor Counsels his Fellow Countrymen

"It does not agree with the materialistic philosophy of the cry 'My country, right or wrong!' It does not exalt any part of humanity above the whole. It does not accord with the ugly, selfish, and ignoble appeal, 'March on American, and march alone!' It does not pander to a single fear or prejudice or hatred, but it sets a task and reveals a goal for our dear country which should arouse the fervent love and increasing service of every true patriot." 

February 14, 2017 in Legal History | Permalink | Comments (0)

Monday, February 13, 2017

Teaching Seneca Falls

Movements that Move the Teaching of History

For those of us who teach, and especially those who teach courses in women’s and gender studies, the question is key, perhaps even foundational: Is the women’s and gender movement home, and, if so, does that underscore the significance and importance of teaching about Seneca Falls? Does the ribbon of women’s movement history roll out across time and space from Seneca Falls? Is this the place where it all happened, as some like to say? Does this place teach us the function of myth and its mythmaking power for social change, as Lisa Tetrault, associate professor of history at the University of Wisconsin at Madison, ventures in her history of Seneca Falls? Or do the questions posed this way open up the history of women’s movements as a contest over meaning, ritual and re-enactments for feminist futures?

 

Surely, this is, in part, what Saturday Night Live was driving at with its recent sketch featuring millennials conjuring the ghost of Susan B. Anthony at the Susan B. Anthony House in Rochester, N.Y., only to quickly lose interest in her presence. Surely, this also means (re)considering how, just a few months earlier, on Nov. 8, 2016, people lined up for hours on end to pay tribute to this suffragist, abolitionist and women’s rights campaigner on a day they imagined would be historic in its election of the first woman president of America. The SNL millennials’ short attention span disclosed their faint and passing interest in the history of the women’s movement until Susan B. Anthony uttered her opposition to abortion.

 

The point was not lost on college students watching this clip in my class. What did they know -- really know -- of women’s history? And what difference, if any, does that knowing effect in the world today? How does millennials’ seemingly fleeting or ambivalent relation to feminist history tell us more about the failures of romanticizing the past and about our own inability to see or imagine how they take up feminist history’s possibilities to act in the world?

 

One other message in SNL’s short satire really hit home. Women’s rights legacies are not simply and only about upholding the past as some quaint object of interest: see my desk, hold a pair of my shoes and touch the stove where I cooked my meals. Rather, historical moments such as the women’s rights movement in upstate New York need to be thought about as having the capacity to stage the future over and over, a future we continue to grapple with, worry over and teach about.

February 13, 2017 in Legal History | Permalink | Comments (0)

Wednesday, February 8, 2017

A Timeline of Women's Legal History in the US

Came across this again while doing some research, and wanted to make sure to save it for future reference.  It is not complete, but quite useful.

A Timeline of Women's Legal History in the US

This webpage contains a history of significant events for women in the United States regarding their experience with the law: using it, making it, practicing it as a profession, profiting or suffering from it. It ranges from 1619 to the present, covering jury rights, voting rights, marriage rights, the right of a woman to pass on the status of free or slave to her children, the right of a woman to control her own body, the right of a woman to choose her own profession -- particularly the profession of law or lawmaker.

February 8, 2017 in Legal History | Permalink | Comments (0)

Friday, February 3, 2017

How Women's Legal Activism Developed the Right to Privacy

      

 

Jessica Lake, The Face that Launched a Thousand Lawsuits: The American Women Who Forged the Right to Privacy (Yale Law Library Press 2016)

Lake on "The American Women Who Forged a Right to Privacy"

Drawing on a wealth of original research, Jessica Lake documents how the advent of photography and cinema drove women—whose images were being taken and circulated without their consent—to court. There they championed the creation of new laws and laid the groundwork for America’s commitment to privacy. Vivid and engagingly written, this powerful work will draw scholars and students from a range of fields, including law, women’s history, the history of photography, and cinema and media studies.

 

A few blurbs:

 

"Jessica Lake’s The Face That Launched a Thousand Lawsuits is one of those rare books that truly upends conventional wisdom and changes the way readers understand an important subject. In a fascinating and well written account, Lake retells the history of the right to privacy. She shows how the activism of individual women played a central role in driving the legal recognition of that right. This book persuasively argues that we owe much to women who resisted the unauthorized circulation of photographic images of them. It is bracing and compelling from the first page to the last." -- Austin Sarat

"Cybercrimes of visuality today have a prehistory uncovered in this book, which shows how far women aggrieved at having their images circulated without their consent brought the legal cases that built the right to privacy." --Nancy F. Cott

February 3, 2017 in Books, Legal History | Permalink | Comments (0)

Thursday, February 2, 2017

The Gendered History of Citizenship by Marriage

Helen Irving, What is a Citizen?, the concluding chapter of the book, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016).

Explains the history of citizenship-stripping (“marital denaturalisation”) from women who married foreign men (and the parallel conferral, by many countries, of the husband’s citizenship: “marital naturalisation”), a legal practice that was followed in virtually every country in the world between the early-to-mid nineteenth and the mid-twentieth century (and ultimately repudiated in the 1957 UN Convention on the Nationality of Married Women). The book locates this practice in the formation of modern citizenship laws and explains it as an aspect of the emergence of modern international relations. Its concluding chapter is a reflection on what this history reveals about the nature of citizenship. It challenges theories of citizenship as rights and citizenship as participation, and offers an ‘existential’ defence of citizenship that prioritises protection of the citizen on the part of the state.

February 2, 2017 in Books, Constitutional, International, Legal History | Permalink | Comments (0)

Friday, January 27, 2017

19th Century Feminist Theory of Raising "Our Girls"

I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  See IntroductionChp 1, "What do you Women Want?"; Chp 2 "The Pivot of the Marriage Relation"; Chp 3 "Divorce is not the Foe of Marriage"; and Chp 4 "The Incidental Relation of Mother." 

Today's blog is on Chapter 5, "Our Girls" on Stanton's theories of feminist parenting and raising up a new generation free from gendered norms.

After decades of activism and proposed legal reform, Stanton grew increasingly frustrated with the lack of tangible progress. One continual sticking point was women themselves. Stanton repeatedly heard from women “I have all the rights I want.”

Women’s resistance, Stanton believed, was based on their own social and religious acculturation of female difference and inferiority. As she entered her sixties and then seventies, Stanton became convinced that these foundational norms needed to be changed if there was any hope of meaningful and sustainable change for women’s equality.

Her first strategy was to teach the next generation differently. Her goal was to raise children the same: tell girls to climb trees, play sports, and like science and teach boys to be kind, have manners, and like music. In the 1860s, Stanton toured the country 10 months of the year for 11 years, speaking to large crowds as part of the Lyceum tour. Here she featured two key speeches, “Our Girls” and “Our Boys.” These popular speeches appealed to mothers, as they gave philosophical and practical ways to raise children. She also advocated coeducation of the sexes from primary school through college, eschewing concerns that young men were too immoral to study alongside young women.

ECSThomasFig6.1

As part of this redirection of the next generation, Stanton advocate for legal reform of child custody laws. At common law, fathers were solely given custody rights, in the case of separation, but also to make decisions about apprenticeships or guardianships at his death. In this one area, the courts kept pace with Stanton’s demands. The courts had begun to evolve away from the paternal right of custody to stronger assumptions of the right of maternal custody especially for young children of “tender years.” This law matched the social norms of the reverence for mothers, although still rendering judgments about “unfit” mothers based on political views or personal relationships.  The custody issue was an issue that triggered large grassroots support among the women Stanton spoke to, as many had experienced the legal loss of their own children.

Stanton’s second grand strategy was to extirpate the origins of the norms of gender inferiority which she located in religious doctrine. The problem, she said, was that women heard everything Sunday from the pulpits of how women was morally inferior, having succumbed to the temptation of evil in the Garden of Eden, and created second to man for the sole purpose of being his help mate. Women believed that their inferiority of law and society was God ordained, and thus fundamentally resisted other ideas.

Her work was to reinterpret the biblical texts that had been used to subordinate women.  Having been trained in Greek, the eighty-year old Stanton set out to offer alternative interpretations of key portions of the Bible in her book The Woman's Bible.  In what we might now call feminist theological interpretation, Stanton questioned the bias of the text, went to the original meaning of the Greek words, and read women’s experience and stories back into the biblical lessons. This work, however, was too radical even for the women suffrage reformers.  They censored her and the book and cast her out from the organization she had founded and lead for fifty years. Stanton didn’t care: her goal was for meaningful and permanent change for women’s equality.

 

January 27, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Monday, January 23, 2017

Elizabeth Cady Stanton on Law, Constitutional Intent, and Human Rights

Elizabeth Cady Stanton testifying before the House Judiciary Committee in 1872 on women's right to vote:

Some object that it was not the "intention" of the framers of the original Constitution, nor of the amendments, to enfranchise woman. When ordinary men, in their ordinary condition, talk of the "intentions" of great men specially inspired to utter great political truths, they talk of what they can not know or understand. When by some moral revolution men are cut loose from all their old moorings, and get beyond the public sentiment that once bound them, with no immediate selfish interest to subserve as, for instance, our fathers in leaving England, or the French Communes in the late war in hardship and suffering they dig down to the hard-pan of universal principles, and in their highest inspirational moments proclaim justice, liberty, equality for all.

Visiting Chicago not long since, I saw great pieces of rock of the most wonderful mineral combination gold, silver, glass, iron, layer after layer, all welded beautifully together, and that done in the conflagration of a single night which would have taken ages of growth to accomplish in the ordinary rocky formations. Just so revolutions in the moral world suddenly mould ideas, clear, strong, grand, that centuries might have slumbered over in silence; ideas that strike minds ready for them with the quickness and vividness of the lightning's flash. It is in such ways and under such conditions that constitutions and great principles of jurisprudence are written; the letter and spirit are ever on the side of liberty; and highly organized minds, governed by principle, invariably give true interpretations; while others, whose law is expediency, coarse and material in all their conceptions, will interpret law, Bible, constitution, everything, in harmony with the public sentiment of their class and condition. And here is the reason why men differ in their interpretations of law. They differ in their organizations ; they see everything from a different standpoint. Could ideas of justice, and liberty, and equality be more grandly and beautifully expressed than in the preamble to our Federal Constitution?

It is an insult to those Revolutionary heroes to say that, after seven years' struggle with the despotic ideas of the old. world, in the first hour of victory, with their souls all on fire with new-found freedom, they sat down like so many pettifogging lawyers, and drew up a little instrument for the express purpose of robbing women and negroes of their inalienable rights. Does the preamble look like it? Women did vote in America at the time the Constitution was adopted. If the framers of the Constitution meant they should not, why did they not distinctly say so? The women of the country, having at last roused up to their rights and duties as citizens, have a word to say as to the "intentions" of the fathers. It is not safe to leave the "intentions" of the Pilgrim fathers, or the Heavenly Father, wholly to masculine interpretation, for by Bible, and Constitution alike, women have thus far been declared the subjects, the slaves of men.

But able jurists tell us that the "intention'' of the framers of a document must be judged by the letter of the law. Following this rule the Supreme Court of the District of Columbia has decided that the XIV. Amendment does affect the status of women; that it advances. Amendment does affect the status of women; that it advances them to full citizenship, and clothes them with the capacity to become voters. The exact language of Judge Cartter, who spoke for the court, is as follows:

All that has been accomplished by this amendment to the Constitution, or its previous provisions, is to distinguish them (women) from aliens, and make them capable of becoming voters. In giving expression to my judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters.

If so much has been done, we have already gone beyond the "intention" of the framers of the amendments, if, as some say, they did not intend to touch the status of woman at all. But with or without intent, a law stands as it is written "Lex ita scripta est." The true rule of interpretation, says Charles Sumner, under the National Constitution, especially since its additional amendments, is that anything for human rights is constitutional. "No learning in the books, no skill in the courts, no sharpness of forensic dialectics, no cunning in splitting hairs, can impair the vigor of the constitutional principle which I announce. Whatever you enact for human rights is constitutional, and this is the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding." 

History of Woman Suffrage, v.2:511-13; The Selected Papers of Elizabeth Cady Stanton & Susan B. Anthony, v.6:92-93 (Ann D. Gordon ed.)

 

 

January 23, 2017 in Constitutional, Legal History | Permalink | Comments (0)

Friday, January 20, 2017

Book Talk on the Legal History of Feminist Reform of Family Law

Hudson Book Talk ECS

January 20, 2017 in Books, Legal History | Permalink | Comments (0)

Monday, January 16, 2017

Sex v. Race, Again

A few years ago, I wrote an essay Sex v. Race, Again later included in the book Who Should Be First? Feminists Speak Out on the 2008 Presidential Campaign.  The book was about the perceived battle between race and sex seen in the political campaign between Hillary Clinton and Barack Obama for the Democratic presidential nomination.

The essay connected that presidential context to the historic context of the battle for suffrage rights and how race and sex were set against each other. It showed how historically in law, we have spent time arguing "which is worse," discrimination on the basis of race or gender.

On this MLK Day of reflection on race, and as the March for Women's Rights is planned -- attracting criticism for being both too little and too much about race -- it may be useful to revisit one small piece of this history.     

Sex v. Race, Again

The struggle between Hillary Clinton and Barack Obama to make history as either the first woman or first African-Americanpresident resurrects the unfortunate historic battle between sex and race. The current debate presents striking parallels to the battle for voting rights after the Civil War when infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. The potential fallout from this false dichotomy today threatens political credibility and social justice and demands a rethinking of the alleged opposition.


In the late nineteenth century, the debate over the constitutional right to vote became a clash of race versus sex. Women’s rights leaders, most notably Elizabeth Cady Stanton and Susan B. Anthony, battled black men for the right to vote. Rather than unifying against the shared concern of the white male monopolization of political power and legal rights, the representatives of the disenfranchised classes fought each other to obtain rights first.


It began with the Fourteenth Amendment to the U.S. Constitution, ratified in 1868, which precluded the rights of women voters by expressly penalizing states that improperly excluded male citizens from voting.2 This subordination of women’s rights continued in the debate over the Fifteenth Amendment when civil rights leaders abandoned the universal suffrage platform of voting rights for all citizens, temporarily advanced in 1866 by the combined forces of feminists and abolitionists, in favor of prioritized rights for black men. Frederick Douglass, previously one of the staunchest supporters of women’s suffrage, rejected the women’s issues as less urgent and asserted that the failure to grant strategic priority to black male suffrage was a major betrayal of the former slave and constituted outright racism.3 Douglass insisted:

I must say I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro. With us, the matter is a question of life and death, at least, in fifteen States of the Union When women, because they are women, are hunted down through the cities of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of outrage and insult at every turn; . . . then they will have an urgency to obtain the ballot equal to our own.

Douglass acknowledged that the same persecution was true for a black woman, “but not because she is a woman, but because she is
black.”

Stanton had earlier taken up the cause of black women when abolitionists began narrowing their focus on the rights of black men: “May I ask just one question based upon the apparent opposition in which you place the negro and the woman? Do you believe the African race is composed entirely of males?” The women’s rights leaders tried to highlight the plight of black women to expose the erroneous opposition of race and gender. A similar point was made one hundred years later by author and black activist bell hooks, who argued that the forced opposition between black power and women’s liberation ignored the reality of black women and unfairly narrowed the social and political debate.

Women in the nineteenth century lost the battle for universal suffrage, and were told that it was the “Negro’s hour” and that they must wait patiently for their time to come (which would be fifty years later). Some women’s rights leaders, like Lucy Stone, eventually acquiesced, and split from the nationalorganization for women’s rights. Others, like Stanton, refused to support a law that discriminated against women and granted preferential power to black men. As Phoebe Couzins, a law student and associate of Stanton’s proclaimed, “I repudiate the Fifteenth Amendment, because it asks me to acquiesce in an assertion to which I utterly refuse to assent, i.e., the inferiority of women.” 

January 16, 2017 in Books, Legal History, Race | Permalink | Comments (0)

Tuesday, January 10, 2017

Rediscovering Queen Victoria as a Feminist Icon

Queen Victoria is trending these days with 2 new books and an upcoming TV series.  I have just finished both books, the fictional Victoria by Daisy Goodwin and the non-fiction Victoria: The Queen by Julia Baird.  I am always interested in books that show us how we have been getting it all wrong.  See also Queen Victoria's Story is More Inspiring, and More Badass, Than We've Seen Before

These books argue that the myth around Queen Victoria as a moralistic, strict leader of women's domestic role was manufactured by men -- particularly those male editors of her papers. These editors omitted all letters to and about women, on grounds that women's issues were irrelevant and not of interest to posterity. They rewrote Victoria's language to reflect the demure, submissive status expected of women. Victoria's youngest daughter Beatrice later edited her mother's papers to omit any signs of the intimate and volatile relationship with her husband, Albert. Modern author Julia Baird argues that the "Victorian" era would have been better named the "Albertine era" as it was Prince Albert who was more moralistic and leading of the domestic sphere and women's inferiority, even for his own wife and Queen. The books also present Victoria as a passionate, engaged, and hot tempered woman who demanded respect, power, and control.

 My interest in Queen Victoria stems from her name repeatedly invoked by Elizabeth Cady Stanton as the model of a strong woman. During my research for my book on American feminist and legal thinker Stanton, I came across many references where Stanton cited Victoria as the ideal strong woman -- a woman with power, employment, but also domestic authority as the mother of nine children. Stanton told mothers they should act "queenly" and she used the history of queens as evidence of women's capacity for political power. I was puzzled by Stanton's continued reverence for Victoria, who is typically depicted as the role model for the domestic, not feminist. She is known as being obsessed and grieved by her husband's early death, the bearer of strict Victorian morality, and the icon for motherhood and domestic sphere (even a Queen should relegate to her domestic role).

I concluded that Stanton must have used Victoria simply because she was the most well-known figure to her audiences and that as Queen she generically illustrated women's potential for power. It may have also been that Stanton saw a little of herself in Queen Victoria. They were about the same age and lived almost the same 80 years (Stanton 1815-1902, Victoria 1819-1901), both were very short (Victoria was 4'11), both had large families (Stanton 7 children, Victoria 9). Stanton visited England in 1840 when Victoria was at the height of her popularity as the new queen and recently married, and Stanton visited England again in the late years of the century as Victoria continued as the longest serving monarch (until Queen Elizabeth II in 2015).

As I learn more about Victoria, I understand Stanton's references better. Stanton's theory of feminism was holistic. She envisioned equality for women in all spheres, both private and public. To her, feminism meant equal autonomy for women in all aspects of life -- public, politics, employment, religion, and family. Significantly, it also meant embracing and elevating the power of motherhood.  Victoria represented this public and private power harmonized with the role of motherhood as authority, not subservience.

 

January 10, 2017 in Books, Legal History, Pop Culture | Permalink | Comments (0)