Gender and the Law Prof Blog

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

Monday, May 23, 2016

The Feminist Philosophy of Mary Wollstonecraft as both Equality and Complementarity

Paul Kerry (BYU, History), Mary Wollstonecraft on Reason, Marriage, Family Life, and the Development of Virtue in A Vindication of the Rights of Woman, 30 BYU J. Public Law 1 (2015)

The aim of the argument here is to show how A Vindication of the Rights of Woman presents a view of the equal dignity and intellectual capacity of the sexes embedded in the proposition that males and females are beholden to the same standard of virtue and chastity. Wollstonecraft further argues that both women and men have the same obligation to develop virtue by living lives that are ordered to duties by reason. Reason guides the passions and is exercised through the use of moral agency. Although her treatise calls for certain kinds of female independence, there are also spheres of interdependence and complementarity on which she insists in marriage, childrearing, and family life, but also in the development of virtue. Indeed, in the quest to develop virtue, men and women need each other: “The two sexes mutually corrupt and improve each other. This I believe to be an indisputable truth, extending it to every virtue.” Although Wollstonecraft accords religion a central teaching role as well, it is critical to the philosophical underpinnings of her treatise that human reason (God given, in her view) can derive the principles she puts forward and as such her arguments resonate with those made by natural law advocates. Without this set of arguments, Wollstonecraft's compelling philosophical insights are only partially understood if not largely missed, reduced as they are to calls for specific kinds of action rather than understood as reasoned contributions to political thought. A part of the work here must include restoring Wollstonecraft's argument through her own words by close reading.
This begs an important question: How could Wollstonecraft's many words on key elements of complementarity between man and woman in marriage, childrearing, family life, and the development of virtue and the role of reason go undetected or be neglected? Some of Wollstonecraft's ideas are explained away strategically by suggesting that she had to work within the accepted idioms of her time to revolutionize from within the prevalent discourse. On this view, Wollstonecraft is seen to pose her arguments “within a framework that was minimally acceptable to popular prejudices.” The implication is that she cloaked her real arguments inside of language and tropes that would allow other, less acceptable ideas of the time, to be granted passage into the public discourse. Yet, her ideas, those presented here, are strongly present, in some cases tirelessly omnipresent, in her treatise. She holds these up not as the husk in which to hide the real kernel of her meaning, but as essential to her argument--they are the root of her philosophical thinking. It is strangely myopic to classify her thinking on chastity, marriage, the family, and the complementarity of the sexes as mere window dressing because her views are not radical nor break decisively with traditional thinking.
Another answer to the question is that Wollstonecraft's insights are often placed onto a procrustean bed of feminist theory. Wollstonecraft's place in intellectual history has changed along with the political fortunes of the women's movement. Sometimes it appears as if A Vindication of the Rights of Woman is caught in an interpretative struggle over the meaning of feminism, rather than allowing the treatise to challenge and broaden what feminism means. It is tempting to confer on this text a status as a forerunner of modern feminism, but, depending on what a critic defines this to be, such a status can lead to distortions in understanding the text. The risk of “vile anachronism”is always present when studying any thinker from an ideological or theoretical perspective. Finely textured ideas of past thinkers run the risk of becoming flattened to fit an agenda. This apprehension is conveyed in the words of one critic: “One can see how the moral analysis and the social description in A Vindication could be appropriated for a more conservative social theory, which . . . would confine [women] to a desexualized domestic sphere as wives and mothers.” Certainly the multivalent meanings in A Vindication of the Rights of Woman might disturb a tidy reading that would grant it some kind of prototypical status or bind it to one end of a political spectrum. The high aim of scholarship, of course, is to attempt to understand Wollstonecraft's treatise without pressing it tendentiously into one's particular agenda, theoretical, political, or otherwise. Yet, warning about conservative appropriation can easily chill legitimate efforts to rehabilitate a key text in ways that might threaten the dominant feminist paradigms that have confined A Vindication of the Rights of Woman to a narrower reading than is borne out by the evidence. Rather than pre-emptively silencing or ignoring potentially “contradictory implications” it could be that the most interesting insights are to be found in exploring the tensions rather than in pulling or pushing the text in one ideological direction or another.

May 23, 2016 in Legal History, Theory | Permalink | Comments (0)

Tuesday, May 17, 2016

New $10 Bill Appropriately Features Elizabeth Cady Stanton, But She's About More than Suffrage

More from me blogging on why it is appropriate that Elizabeth Cady Stanton will appear on the new $10 bill.

Who is Elizabeth Cady Stanton and Why is She on the New $10 Bill

Elizabeth Cady Stanton, however, stands out from this respectable group [of women suffrage leaders on the new $10 bill] as the leading philosopher and advocate of the nineteenth-century women’s rights movement. As I discuss in my book Elizabeth Cady Stanton and the Feminist Foundations of Family Law, Stanton was the “radical conscience” and founding mother of feminism. She was also a leading legal thinker advancing a full array of women’s rights. Stanton is memorialized today at the National Women’s Rights Museum located in Seneca Falls, New York. There, a waterfall pours over her prophetic words written in the Declaration of Sentiments.

 

In Stanton’s Declaration, she laid out seventeen demands for women’s rights in addition to the vote. These included the right to equal opportunity in education, employment, and religion. And they included rights within the family designed to assure gender equality, such as joint marital property, no-fault divorce, domestic violence protections, maternal child custody, and equal access to lawmaking through women jurists, lawyers, and juries. Stanton rejected the prevalent idea of the separate sphere of domesticity confining women to the “protection” and isolation of the home. Instead, she saw integrating women into the public sphere of political action and employment as important, while also elevating women as an equal power in the family with rights to property, autonomy, and parenting.

 

 

Stanton’s advocacy for sex equality is integrated into the legal history of family law. She advocated for change to the laws of marital property, equal marital partnerships, no-fault divorce, domestic violence remedies, women’s reproductive control, maternal custody, and de-gendered parenting. It turns out that almost all of Stanton’s radical ideas for the family seem innocuous today only because they have become the law. Turns out she was right, even if she was one hundred years too early.

 

 

May 17, 2016 in Legal History | Permalink | Comments (0)

Beyond #TheNew10: A Better Process for Making Money

Genevieve Blake Tung (Rutgers) & Ruth Anne Robbins (Rutgers), Beyond #TheNew10: The Case for a Citizens Currency Advisory Committee

Abstract:

On April 20, 2016, ten months after promising to place a woman’s portrait on the $10 bill, Treasury Secretary Jacob J. Lew announced sweeping design changes in American currency. Citizens have been asking for these types of changes for at least 95 years, and we hope that Treasury will bring them to fruition rapidly. Until now, the portraiture and imagery featured on American currency has consistently asserted and reified the singular importance of one type of American: White, male politicians and statesmen, largely from the executive branch. This article explores the administrative framework that has enabled these representational shortcomings to persist as long as they have. From the beginning, the process for designing federal paper money has been characterized by arbitrary and arguably autocratic decision-making and resistance to open processes that consider the creativity and insights of the public. The way that Treasury approached its announcement was fraught with challenges for those citizens trying to have their voices heard in what they believed should be an authentic democratic process. It took a small, private organization, Women On 20s, to highlight this fact for the country - an organization that deserves pages in Treasury’s history books. After reviewing the history of the Treasury Department’s role in the design of currency - and coinage - and compare it with that of other agencies tasked with choosing the people and events worthy of commemoration. We argue that for an alternative process for future currency design that will permit meaningful citizen input.

This article also answers the question of when and how the decision was made to put Andrew Jackson on the $20 bill.
 

May 17, 2016 in Legal History | Permalink | Comments (0)

Thursday, May 12, 2016

Annette Gordon-Reed on Becoming a Lawyer and Historian

Last Lecture: Annette Gordon-Reed Traces Her Journey from Texas Childhood to Lawyer and Historian

[After working as a lawyer] she finally decided to enter academia. She felt, she said, that moment “was the only shot I had to be able to write, to be able to think about issues, to be able to use all of the things that I had been thinking about up to this moment—to be thinking about society, to be writing about society in a way that I thought would be useful.”

 

“Law is important. Obviously I believe that. But the kinds of human relations, the kinds of things we’re talking about in both of these books, transcend it,” Gordon-Reed said. “Sometimes you have to look beyond it, because the law is not put in place for everybody, is not made to work for everybody. It’s our hope that we can try to make it work for everybody, but the historian understands that there are moments when that just was not the case, and slavery was one of them."

May 12, 2016 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Friday, May 6, 2016

Republican Motherhood

  The law provides that Mother's Day is a ... flag day?

36 USC 117 - Mother's Day

(a)Designation.— The second Sunday in May is Mother’s Day.
 
(b)Proclamation.—
The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
Ah, Republican Motherhood.  See Linda Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (UNC Press 1997)
 
 

May 6, 2016 in Legal History, Theory | Permalink | Comments (0)

Thursday, April 28, 2016

New in Books: Gender Remade: Citizenship, Suffrage, and Public Power

From Legal History Blog, VanBurkleo's "Gender Remade", Abstract and TOC:

Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912 (Cambridge UP).

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored.

April 28, 2016 in Books, Legal History | Permalink | Comments (0)

New in Books: Gender Remade

From Legal History Blog, VanBurkleo's "Gender Remade", Abstract and TOC:

Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912 (Cambridge UP).

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored.

April 28, 2016 in Books, Legal History | Permalink | Comments (0)

Monday, April 25, 2016

Who is Elizabeth Cady Stanton and Why is she on the $10 Bill

The news focused on Harriet Tubman on the $20 bill, but more women will be featured on the $10 bill.  Five women suffrage leaders will appear on the back of the $5 bill.  These five are Susan B. Anthony, Lucretia Mott, Alice Paul, Elizabeth Cady Stanton, and Sojourner Truth.

ECSBookJacket

I have spent the last 10+ years researching and writing about Stanton.  My focus has been her contributions to the philosophical development of legal feminism and her work for legal reforms of gender equity in the private sphere of the family. 

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

From the abstract for the book:

Elizabeth Cady Stanton was the principal feminist thinker, leader, and “radical conscience” of the nineteenth-century woman’s rights movement. Stanton initiated the women’s rights movement on July 19, 1848, in Seneca Falls, New York, where she issued her feminist manifesto, the “Declaration of Sentiments,” demanding women’s right to vote. This is generally all that history has remembered of Stanton. Her Declaration, however, demanded seventeen other rights for political, religious, social, and civil rights equality. These included the right to public office, marital property, divorce, education, employment, reproductive control, and religious autonomy. As Stanton explained, the institutions of government, church, family, and industrial work constituted “a fourfold bondage” of women, with “many cords tightly twisted together, strong for one purpose” of woman’s subordination. They were all intertwined, so that “to attempt to undo one is to loosen all.” As Stanton later explained, to break down this complexity required women to have “bravely untwisted all the strands of the fourfold cord that bound us and demanded equality in the whole round of the circle.” Holistic reform was required to break down the complex system of women’s oppression. 

The family was one centerpiece of Stanton’s feminist agenda. The family, governed by patriarchal laws and sentimental gender norms, created and perpetuated women’s inferiority. “If the present family life is necessarily based on man’s headship,” Stanton argued, “then we must build a new domestic altar, in which the mother shall have equal dignity, honor and power.” The private sphere of the family was not segregated from the public sphere, as both nineteenth-century suffrage reformers and twentieth-century feminists often argued, but instead was intertwined with the other institutional strands strangling equality. As a result, radical concrete change to the family institution was required in the forms of egalitarian partnerships, economic rights, free divorce, and maternal autonomy. Stanton’s commitment to women’s equality in marriage and the family was longstanding -- from Seneca Falls to her last writings. As Stanton said, she “remained as radical on the marriage question at the age of eighty-six as [she] had been a half a century earlier.” 

Stanton’s family reforms seem less shocking today because most of them have become law. Her proposals to reconstruct marriage and the family, detailed in this book, are now mainstream. Women have separate and joint marital property rights. Spouses inherit equal shares of estates when one partner dies without a will. Common law marriage is prohibited in most states, and civil marriage requires procedural safeguards. Divorce is available for irreconcilable differences or for misconduct equally applicable to both spouses. The law supports domestic violence protections, reproductive choice, and maternal custody.

Recovering Stanton’s feminist thinking on the family reveals the longevity and persistence of women’s demands for family equality. Contrary to popular wisdom, these feminist ideas were not invented in the 1970s, but instead reach back more than a century earlier as part of the original conceptualization of women’s rights. This longer perspective bolsters the truth and credibility of such feminist demands, dispelling their characterization as a modern anomaly and demanding legitimization and consideration in the law. As these issues of family, marriage, work/life balance, pregnancy, and parenting continue to challenge the law and confound feminism, Stanton’s work adds historical evidence of important principles that should be part of the legal equation. Her work shows that feminism and the family have not been historically in opposition, as we usually think. To the contrary, feminists have existed not apart from the family, but within it. 

See also:

Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (on Stanton’s theory and advocacy of maternity)

Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Tracy A. Thomas & Tracey Jean Boisseau, eds. 2011) (on foundations of constitutional sex equality inquiry)

Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment: A Letter to the President, 22 Constitutional Commentary 137 (2005) (on marriage equality and divorce)

Tracy A. Thomas, Introduction to Symposium, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW 1 (2016)

Tracy A. Thomas, The New Face of Women's Legal History, 41 Akron L. Rev. 695 (2008) (on Truth and Stanton)

 

April 25, 2016 in Books, Legal History | Permalink | Comments (0)

Thursday, March 31, 2016

New Issue Journal of Women's History

Journal of Women's History (Spring 2016)

      Editorial Note

Law, Marriage, and Women’s Agency: Studies from the Anglo-American and Iranian Worlds

pp. 7-12 | DOI: 10.1353/jowh.2016.0009

Articles

Revisiting Ecclesiastical Adultery Cases in Eighteenth-Century England

pp. 13-37 | DOI: 10.1353/jowh.2016.0000

“Woman and Her Needs”: Elizabeth Oakes Smith and the Divorce Question

pp. 38-59 | DOI: 10.1353/jowh.2016.0002

Gender, Space, and Ritual: Women Barristers, the Inns of Court, and the Interwar Press

pp. 60-83 | DOI: 10.1353/jowh.2016.0004

Business and Politics as Women’s Work: The Australian Colonies and the Mid-Nineteenth-Century Women’s Movement

pp. 84-106 | DOI: 10.1353/jowh.2016.0006

Women Writing Women: Early Iranian Feminism and the Memoir of Tāj us-Saltanih

pp. 107-130 | DOI: 10.1353/jowh.2016.0007

Rejecting Reproduction: The National Organization for Non-Parents and Childfree Activism in 1970s America

pp. 131-156 | DOI: 10.1353/jowh.2016.0008

Book Reviews

The History of Marriage through the Lens of Case Studies

pp. 157-165 | DOI: 10.1353/jowh.2016.0010

Enterprising Women

pp. 166-171 | DOI: 10.1353/jowh.2016.0001

Lost Stories of Women’s Alliances and Networks

pp. 172-181 | DOI: 10.1353/jowh.2016.0003

Contributors

pp. 182-184 | DOI: 10.1353/jowh.2016.0005

March 31, 2016 in Legal History, Scholarship | Permalink | Comments (0)

Monday, March 28, 2016

The Origins of the Undue Burden Standard for Assessing Abortion Regulations

Meaghan Winter, Slate, Roe v. Wade Was Lost in 1992: How "Undue Burden" Has Eroded the Right to Choose

Remembering the day Planned Parenthood v. Casey (1992) was decided:

“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”

 

But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.

 

Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too?

And citing my work on the backstory of  Akron v. Akron Center for Reproductive Health (1983)  where Justice O'Connor first articulated the undue burden standard in dissent.  See Tracy A. Thomas, Back to the Future of Regulating Abortion in the First Term, 28 Wisc. J. Law,  Gender & Society 47 (2013).  

One attorney described the multipart ordinance as “a Christmas tree,” with everything possible hanging off it: a parental consent rule, a mandatory waiting period, and “informed consent” counseling. The attorneys designed it to be a national model. After Kapper proposed the law, experts from cities all over the U.S descended on Akron for four public hearings held over several weeks. Tracy Thomas, associate dean at University of Akron School of Law, later recounted how hundreds of divided locals watched John Willke of National Right to Life, a hero of the anti-abortion movement, present a slideshow of fetal life. (It’s hard to imagine now, but disturbing audiences with images of fetuses was then a cutting-edge tactic.) Gynecologists slated to appear at the hearings were so angered by the anti-abortion advocacy that they walked out without testifying. Shouting erupted in the hallway outside the hearing room.

 

Viewers watching an anti-abortion representative from Akron on the Today show might have been impressed with what seemed to be the anti-abortion movement’s grassroots organizing skills. But its advocacy wasn’t as homegrown as it appeared.

O'Connor took the position, in part, offered by Prexident Reagan's solicitor general, Rex Lee, adopting the deferential balancing approach of "undue burden."  See LeeAmicusBriefAkron.  The "unduly burdensome" standard had appeared in prior Supreme Court abortion decisions by Justices Powell (Maher v. RoeBelliotti v. Baird II (1979)) and Blackmun (Belliotti v. Baird (1976), but O'Connor converted it into a litmus test, rather than a conclusion.  And she utilized the test in order to uphold much government regulation, rather than strike down legislation, as the Court had previously used it in three out of four cases except funding.  Powell explicitly rejected the undue burden test in Akron, writing the majority opinion invalidating the 17 provisions of the Akron law on informed consent, waiting periods, and hospital regulations, suggesting that he did not intend his previous unduly burdensome language to be used as the constitutional standard.   

 

March 28, 2016 in Abortion, Constitutional, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, March 18, 2016

Books (Coming Soon): The Feminist Foundations of Family Law

The book jacket!  Publication is one step closer!  

For a preview of the first chapter, see Tracy A. Thomas, The "Radical Conscience" of Nineteenth-Century Feminism

See also Tracy A. Thomas, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW (2016)

ECSBookJacket

 

March 18, 2016 in Abortion, Books, Family, Legal History | Permalink | Comments (0)

Friday, March 4, 2016

Feminist Legal History: Dorothy Kenyon, McCarthy's First Target

         Dorothy Kenyon, Senator Joseph McCarthy’s First Case

 

Phillipa Strum, Dorothy Kenyon, Senator Joseph McCarthy's First Case, History Weekly (2015)

Scholars have documented the confusion, but for the most part historians of McCarthyism have not examined the role of Senator Joseph McCarthy in reflecting and adding to the tensions. This article examines the way in which the senator’s attack on what he called his “case number one”—the lawyer-activist Dorothy Kenyon —both reflected and contributed to the ongoing struggle about the proper role of women in the 1950s. While historians have written volumes about McCarthy, they have largely ignored the assumptions implicit in the choice of a woman as his first target. Kenyon’s case becomes a lens through which to view an important moment in the construction of gender.

March 4, 2016 in Legal History, Women lawyers | Permalink | Comments (0)

Tuesday, March 1, 2016

Why Isn't there a Men's History Month?

Because every month is men's history.

Why Isn't There a Men's History Month?

March is Women’s History Month, and some folks have asked: Why isn’t there a Men’s History Month? This is going to be a long month on this front since so many people will be sharing information about women’s history notables. There are 26 days left and I’m sharing this to save some of us time.

The 30-second answer is: Because men as a class are not symbolically annihilated in our media. Women’s History Month, like Black History Month, is a pragmatic, short-term response to persistent cultural marginalization and misrepresentation. It’s an antidote to systemic erasure. It’s an attempt to both create representation and explain why it’s important.

The 10-second answer is: We don’t have a Men’s History Month because we don’t need one.

Men Writing History, About Men, for Men

This state of affairs dismays many academic historians. Last year, at the American Historical Association’s annual meeting, a presenter in a session on “Buying and Selling History” included a slide listing the best-selling trade history books of 2014, as tallied by BookScan. The generous helping of politically conservative histories by Glenn Beck and Bill O’Reilly caused concern, but some historians noticed another troubling trend: The list was dominated by male authors. Of 23 titles, two were written by women

 

March 1, 2016 in Legal History | Permalink | Comments (0)

Tuesday, February 23, 2016

The Difference Women Jurors Made to Criminal Convictions

A Jury of Her Peers: The Impact of the First Female Jurors on Criminal Convictions

This paper uses an original data set of more than 3000 cases from 1918 to 1926 in the Central Criminal Courts of London to study the effect of the Sex Disqualification (Removal) Act of 1919. Implemented in 1921, this Act made females eligible to serve on English juries, providing a novel setting for studying the impact of female representation on jury verdicts. Results based on a pre-post research design imply that the inclusion of females had little effect on overall conviction rates but resulted in a large and significant increase in convictions for sex offenses and on the conviction rate differential between violent crime cases with female versus male victims. The inclusion of women also increased the likelihood of juries being discharged without reaching a verdict on all charges and the average time taken to reach a verdict. A complementary analysis of cases in which the jury was carried over from a previous trial also implies that the inclusion of female jurors on the seated jury sharply increased conviction rates for violent crimes against women versus men.

February 23, 2016 in Courts, Legal History | Permalink | Comments (0)

Tuesday, February 9, 2016

Books: The History of Women Lawyers in Maryland

Law and Politics Book Review: FINDING JUSTICE: A HISTORY OF WOMEN LAWYERS IN MARYLAND SINCE 1642

This engaging volume was produced as part of the Finding Justice Project, a collaborative effort among a small group of judges, lawyers, and legal academics to recover and illuminate neglected histories of women in law in Maryland. Sponsored by the Maryland Women’s Bar Association Foundation, the project sought to identify and learn about the work and lives of as many women lawyers as possible practicing in Maryland since 1642. For this purpose, a research team collected information from many sources, including records of the names along with signatures of all who received bar admission, court records describing the cases in which women lawyers participated, birth and death certificates and census records of their families, and newspaper reports regarding the professional and personal lives of some women lawyers in the state. One product of these efforts is a list of nearly 25,000 women admitted to the Maryland bar through 2014, a list reproduced in an appendix organized by year of admission that is printed on nearly 100 pages (pp. 173-268).

We learn in the Preface that the Project initially hired an author to write a book based on the data collected. After the author withdrew, The Honorable Lynne A. Battaglia, the editor of this volume and a central advocate for the Project, developed a new plan to produce an edited collection to include several chapters written by a variety of women practitioners with different themes related to women in law, with emphasis on particular women in law, and with a focus on various historical moments. Although the chapters are generally brief in a book that includes only 167 pages of text prior to appendices, together they present a coherent and interesting portrait of the many challenges and opportunities experienced by diverse women interested in legal careers in Maryland over time. The chapters are well organized and conceived, and the details provided regarding legal careers in Maryland are often quite fascinating.

H/t Legal History Blog, Sunday Book Roundup

February 9, 2016 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Jewish Women Legal Practitioners and the History of Legal Aid

Felice Batlan (Chicago-Kent), Forging Identities: Jewish Women, Legal Aid, and the Secular Liberal State 1890-1930, Indiana J. Law & Social Equity (forthcoming).

Abstract:     

This article discusses an unexamined area of the history of the legal profession — the role that late nineteenth and early twentieth century Jewish women legal practitioners played in the delivery of free legal aid to the poor as social workers, lawyers, and, importantly, as cultural and legal brokers. It presents two such women who represented different types and models of legal aid — Minnie Low of the Chicago Bureau of Personal Service, a Jewish social welfare organization, and Rosalie Loew of the Legal Aid Society of New York. The article interrogate how these women negotiated their identities as Jewish professional women, what role being Jewish and female played in shaping their careers, understandings of law, and the delivery of legal aid, as well as the constrained professional possibilities, but at times, opportunities, both women confronted and embraced. By puzzling through these issues, we also see two contrasting understandings of the rule of law and the secular liberal state. 

 

February 9, 2016 in Legal History, Poverty | Permalink | Comments (0)

Tuesday, February 2, 2016

Feminist Judgments Project: Who's Who of Law Profs Rewrite SCOTUS Decisions

Kathryn Stanchi, Linda Berger, Bridget Crawford, Introduction: US Feminist Judgments: Rewritten Opinions of the US Supreme Court (forthcoming Cambridge Press 2016)

Abstract:

What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? To begin to answer this question, we brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. While feminist legal theory has developed and even thrived within universities, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision-making. Doctrines of stare decisis and judicial language of neutrality can operate to obscure structural bias in the law, making it difficult to see what feminism could bring to judicial reasoning.

The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions show that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups. The remarkable differences evident in the rewritten opinions also open a path for a long overdue discussion of the real impact that judicial diversity has on law and of the influence that perspective has in judging.
 
Table of Contents
 
Chapter 1
Introduction to the U.S. Feminist Judgments Project Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford
 
Chapter 2 Talking Back: From Feminist History and Theory to Feminist Legal Methods and Judgments Berta Esperanza Hernández-Truyol
 
Chapter 3. Bradwell v. Illinois, 83 U.S. 130 (1873)
Commentary: Kimberly Holst
Judgment: Phyllis Goldfarb
 
Chapter 4. Muller v. Oregon, 208 U.S. 412 (1908)
Commentary: Andrea Doneff
Judgment: Pamela Laufer-Ukeles
 
Chapter 5. Griswold v. Connecticut, 381 U.S. 479 (1965)
Commentary: Cynthia Hawkins DeBose
Judgment: Laura Rosenbury
 
Chapter 6. Loving v. Virginia, 388 U.S. 1 (1967)
Commentary: Inga N. Laurent
Judgment: Teri McMurtry-Chubb
 
Chapter 7. Stanley v. Illinois, 405 U.S. 645 (1972)
Commentary: Nancy D. Polikoff
Judgment: Karen Syma Czapanskiy
 
Chapter 8. Roe v. Wade, 410 U.S. 113 (1973)
Commentary: Rachel Rebouché
Judgment: Kimberly M. Mutcherson
 
Chapter 9. Frontiero v. Richardson, 411 U.S. 677 (1973)
Commentary: Iselin M. Gambert
Judgment: Dara E. Purvis
 
Chapter 10. Geduldig v. Aiello, 417 U.S. 484 (1974)
Commentary: Maya Manian
Judgment: Lucinda M. Finley
 
Chapter 11. Dothard v. Rawlinson, 433 U.S. 321 (1977)
Commentary: Brenda V. Smith
Judgment: Maria L. Ontiveros
 
Chapter 12. City of Los Angeles Department Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978)
Commentary: Cassandra Jones Havard
Judgment: Tracy A. Thomas
 
Chapter 13. Harris v. McRae, 448 U.S. 297 (1980)
Commentary: Mary Ziegler
Judgment: Leslie C. Griffin
 
Chapter 14. Michael M. v. Superior Court, 450 U.S. 464 (1981)
Commentary: Margo Kaplan
Judgment: Cynthia Godsoe
 
Chapter 15. Rostker v. Goldberg, 453 U.S. 57 (1981)
Commentary: Jamie R. Abrams
Judgment: David S. Cohen
 
Chapter 16. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
Commentary: Kristen Konrad Tiscione
Judgment: Angela Onwuachi-Willig
 
Chapter 17. Johnson v. Transportation Agency, 480 U.S. 616 (1987)
Commentary: Deborah Gordon
Judgment: Deborah L. Rhode
 
Chapter 18. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Commentary: Dale Margolin Cecka
Judgment: Martha Chamallas
 
Chapter 19. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Commentary: Macarena Sáez
Judgment: Lisa R. Pruitt
 
Chapter 20. United States v. Virginia, 518 U.S. 515 (1996)
Commentary: Christine M. Venter
Judgment: Valorie K. Vojdik
 
Chapter 21. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
Commentary: Margaret E. Johnson
Judgment: Ann C. McGinley
 
Chapter 22. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998)
Commentary: Michelle S. Simon
Judgment: Ann Bartow
 
Chapter 23. United States v. Morrison, 529 U.S. 598 (2000)
Commentary: Shaakirrah R. Sanders
Judgment: Aníbal Rosario Lebrón
 
Chapter 24. Nguyen v. INS, 533 U.S. 53 (2001)
Commentary: Sandra S. Park
Judgment: Ilene Durst
 
Chapter 25. Lawrence v. Texas, 539 U.S. 558 (2003)
Commentary: Kris McDaniel-Miccio
Judgment: Ruthann Robson
 
Chapter 26. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)
Commentary: Patricia A. Broussard
Judgment: Maria Isabel Medina
 
Chapter 27. Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
Commentary: Erez Aloni
Judgment: Carlos A. Ball
 
 
SAVE THE DATE!!  Conference on Feminist Judgments Project and feminist judging-- October 20 & 21, 2016 at University of Akron School of Law sponsored by Center for Constitutional Law.  
 

February 2, 2016 in Books, Conferences, Constitutional, Courts, Legal History | Permalink | Comments (0)

Monday, February 1, 2016

Frederick Douglass and Elizabeth Cady Stanton

Today’s #GoogleDoodle celebrates abolitionist Frederick Douglass.  Douglass was one of the men present at the signing of the women’s rights Declaration of Sentiments in July 1848, and an early supporter of Elizabeth Cady Stanton and the women’s movement, though disagreements between the two over the Fifteenth Amendment emerged later. 

 

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Another connection between Stanton and Douglass was her support of his later interracial marriage.  Here’s an excerpt from my forthcoming book on Stanton, Tracy A. Thomas, “The Pivot of the Marriage Relation,” chap. 3, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP forthcoming 2016).

    For Stanton believed in the theoretical ideal of free love, resulting “whenever compulsion and restraint, whether of the law or of a dogmatic and oppressive public opinion, are removed.”[1] So when her friend Frederick Douglass remarried to Helen Pitts, a white woman, she sent her personal congratulations and support for his subversive act. She noted that “there’s much hostile criticism on your condescension in marrying a white woman. After all the terrible battles and political upheavals we have had in expurgating our Constitutions of that odious adjective ‘white’ it is really remarkable that you or all men should have stooped to do it honor. The ‘white’ feature of this contract is bad enough, but ‘the woman’ is still worse.” Stanton commented on the gender implications of the controversy in which his “large circle of admiring friends protest” against him risking his legacy as a black civil rights leader on white interests, especially those of a mere woman.[2] Stanton wanted to draft a public announcement of support for Douglass from both her and Anthony and invite him to speak at the next women’s rights convention. Anthony refused, concerned with the potential backlash on “the subject of amalgamation” against the growing consensus on women’s suffrage. Anthony wrote to Stanton, “I do hope you won’t put your foot into the question of intermarriage of the races. It has no place on our platform, any more than the question of no marriage at all, or of polygamy, and so far as I can prevent it, shall not be brought there.” She pleaded, do not “throw around that marriage the halo of a pure and lofty duty to break down race lines.[3] For Stanton had publicly supported interracial marriage before, attending legislative hearings in Boston to repeal colonial miscegenation laws and printing an editorial in her newspaper in support of interracial marriage.[4] But this time, she backed down.

 

NOTES

[1] DuBois, “On Labor,” 65.

[2] ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love Across Color Lines (1999).

[3] SBA to ECS, Jan. 27, 1884; Newman, 4.

[4] ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.

 

February 1, 2016 in Legal History, Race | Permalink | Comments (0)

Tuesday, January 12, 2016

Alice Paul's Legacy in the ERA

In honor of Alice Paul's birthday yesterday, it's important to remember not only her work for suffrage, most vividly captured in the movie Iron Jawed Angels.  But also Paul's first proposal of an Equal Rights Amendment in 1923 and her fifty-years of advocacy for that broader grant of equality.  See After Suffrage Comes Equality? The Nineteenth Amendment as the Next Logical Step, forthcoming in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Lee Ann Banaszak & Holly McCammon eds.) (Oxford Univ. Press 2016).

January 12, 2016 in Constitutional, Legal History | Permalink | Comments (0)

Monday, January 11, 2016

The "Radical Conscience" of Nineteenth-Century Feminism and the Law

I've posted Chapter 1 of my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, forthcoming this summer from NYU Press.  This chapter introduces Stanton, her legacy for the law and domestic relations, and her holistic legal feminism. See The "Radical Conscience" of Nineteenth-Century Feminism.

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January 11, 2016 in Books, Family, Legal History | Permalink | Comments (0)