Friday, November 3, 2017
Claire L'Heureux-Dubé: A Life by Constance Backhouse
From the publisher:
Both lionized and vilified, Claire L’Heureux-Dubé has shaped the Canadian legal landscape – and in particular its highest court. The second woman appointed to the Supreme Court, and the first Québécoise, she was known as “the great dissenter,” making judgments that were applauded and criticized in turn.
Who was this energetic, risk-taking woman? L’Heureux-Dubé stands out as one of the most dynamic and controversial judges on a controversial court. Did she consciously position herself for success in a discriminatory milieu, or was she oblivious to power?
L’Heureux-Dubé anchored her innovative legal approach to cases in their social, economic, and political context. Constance Backhouse employs a similar tactic. Rather than focusing exclusively on jurisprudential legacy, she explores the rich sociopolitical and cultural setting in which L’Heureux-Dubé’s career unfolded, while also considering her personal life.
This compelling biography covers aspects of legal history that have never been so fully investigated. Changing gender norms are traced through the experience of a francophone woman within the male-dominated Quebec legal profession – and within the primarily anglophone world of the Supreme Court. Claire L’Heureux-Dubé enhances our understanding of the Canadian judiciary, the creation of law, the Quebec socio-legal environment, and the nation’s top court.
Thursday, November 2, 2017
Brooke Coleman & Elizabeth Porter, Reinvigorating Commonality: Gender & Class Actions
The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961—one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman—the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation. Simultaneously—at least in part in response to the civil rights movement and the Civil Rights Act —an (all-male) Judicial Conference and Supreme Court in 1966 ushered in the modern era of collective litigation by promulgating Federal Rule of Civil Procedure 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil rights plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women—and men—across many industries.
In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four “waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law.
This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits—whether brought by individuals of any gender or by physicians—have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a critique of the technology sector, “Class action lawsuits can force industry-wide change, even in the most entrenched, male-dominated industries.”
Tuesday, October 31, 2017
It's Halloween... which for law and gender means time to remember the Salem Witch Trials.
Most of the victims of the trials were women. And most of the accusers. Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power. They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.
Stacy Schiff, The Witches: Salem, 1692 (2015)
Carol Karlsen, The Devil in the Shape of a Woman (1998)
Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)
Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)
Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)
Wednesday, October 4, 2017
While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years—and rightly so—there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.
Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.
These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.
Criminal justice in the American South for decades following the Civil War was meted out unjustly, disproportionately affecting African Americans, regardless of gender. And, thanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant. In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household.
This report matches my own experience. In practice, I handled a pro bono class action on behalf of the women prisoners in D.C. See Women Prisoners of DC v. District of Columbia.
Tuesday, October 3, 2017
An Originalist Defense of the Privileges or Immunities Clause for Gender Nondiscrimination in Bradwell v. Illinois
M. Frances Rooney, Note, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination, Geo. J. Law & Public Policy (forthcoming).
The Privileges or Immunities Clause of the Fourteenth Amendment provides a constitutional right not to be discriminated against on the basis of gender. Original public meaning originalism provides the structure to find that the clause includes a right to practice a lawful profession that extends to all citizens, irrespective of gender. The clause is a guarantee of rights to every “citizen of the United States,” not every male citizen; because of that, the clause is a positive grant of rights to all citizens in the United States.
The central thesis of this Note is that women who are citizens of the United States have rights guaranteed by the Privileges or Immunities Clause, specifically the right to practice a profession. This right cannot be denied on the basis of gender, because adult women have the same capacity as men to practice law. Had this been recognized in 1873, the time The Slaughter-House Cases and Bradwell v. Illinois were decided, and had the erroneous interpretation of the clause in Slaughter-House not prevailed, Bradwell would have recognized this right. Given the contemporary knowledge of the capacities of women and an originalist approach to constitutional interpretation and construction, the decision in Bradwell should be overruled. Taking this step would lead to the development of an originalist gender equality jurisprudence.
Feminist pioneer Elizabeth Cady Stanton made a similar argument against Bradwell (and Minor v. Happersett) at the time using the P&I Clause. Although her arguments were more textualist than originalist per se. I discuss these early equality interpretations of the Privileges or Immunities Clause in my recent book Elizabeth Cady Stanton & the Feminist Foundations of Family Law. A blog post summarizing the relevant part, chapter 2, is here, at What do You Women Want?: The 19th Century Demand for Reform of Marital Property.
Monday, October 2, 2017
This book is sitting near the top of my pile of books-to-read.
Linda Greenhouse, Who Killed the ERA?, NYT Book Review, reviewing:
Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics, by Marjorie J. Spruill
Marjorie J. Spruill’s Divided We Stand is the most recent effort to probe the feminist/antifeminist struggle of the 1970s for what it might tell us about today’s polarized America. It’s an ambitious book, built around a close study of an event that Self treats in only a few pages and Mansbridge in a single passing reference: the congressionally mandated, federally funded National Women’s Conference that took place in Houston in November 1977. The conference was organized by the National Commission on the Observance of International Women’s Year, set up by the Ford administration in 1975 to coordinate American participation in the United Nations–sponsored Decade for Women. From May to July 1977, some 130,000 people—all but a few hundred of them women—took part in state-level meetings to select delegates and debate the conference’s agenda. The idea was to come up with a “plan of action” for the national delegates to adopt and present to the White House and Congress.
The path to this goal was intensely contested, with a number of the state conventions becoming ideological battlegrounds over issues like federally funded child care, gay rights, and abortion. Two thousand delegates and nearly 20,000 observers eventually attended the official conference in Houston, while a similar number gathered across town in a conservative counter-convention organized by Schlafly. Both sides emerged highly mobilized and ready for continued battle.
The events of 1977 are often portrayed merely as one episode in a decade of feminist conflicts, gains, and setbacks. Spruill, a historian of southern and women’s history at the University of South Carolina, makes the rather stronger claim that the competing conferences “ushered in a new era in American politics—the beginning rather than the end of a protracted struggle over women’s rights and family values.” Whereas in the early 1970s Democrats and Republicans had, in Spruill’s view, “both…supported feminist goals,” the events of 1977 created two polarized and increasingly partisan camps. The plan of action that emerged from the official convention in the end included support for the ERA, abortion rights, and gay rights. It called for equal access to credit, which banks routinely denied to married women on the premise that the husband was in control of the family finances. One plank called for reform “based on the principle that marriage is a partnership in which the contribution of each spouse is of equal importance and value.” The counter-conference was dominated by Christian and anti-abortion delegates united under a “pro-family” banner. Spruill notes that the official delegates were so “caught up in their own conference experience” that they had “little sense” of how equally empowering the Houston weekend had proved to be to the other side.
Nonetheless, Spruill’s project of historical reclamation is an important one. While the National Women’s Conference and the competing Pro-Life, Pro-Family Rally did not quite amount to “Four Days That Changed the World” (as it was described in a Ms.magazine headline the following March), they were signal events that drew thousands of women into political engagement and offered clearly defined—if opposing—arguments in which these new activists could discover sympathies. Gloria Steinem may well have been right in a recent interview to call the National Women’s Conference “the most important event nobody knows about.”
There is another book review of the book by Gillian Thomas posted here.
Monday, September 25, 2017
Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)
It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed.
This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized.
The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce.
Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.
Friday, September 22, 2017
Recent popular and scholarly interest has highlighted the complex and brutal system of mass incarceration in the United States. Much of this interest has focused on recent developments while other scholars have revealed the connections between the development of the prison system after Reconstruction and the legacies of slavery. In her new book, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (University of North Carolina Press, 2016), Sarah Haley points to an often under recognized part of this history. Haley, an associate professor of gender studies and African American Studies at the University of California, Los Angeles, focuses on the Southern criminal justice system’s treatment and exploitation of black women during the Jim Crow era. Though black women were caught up in the criminal justice system in smaller numbers than men were, Haley shows their treatment was very important to the development of Jim Crow modernity. The brutal and violent treatment, the ideological narratives surrounding black women, and the exploitation of their labor were all key in creating the ideologies of racial capitalism and patriarchy. Haley also discusses the ways black women resisted this treatment and contented the related ideologies.
In this episode of New Books in History, Haley discusses No Mercy Here and this history of gender, criminal justice, and race.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court
Friday, September 8, 2017
Here are the presentations on gender and law and the upcoming annual conference of the American Society of Legal History. The full preliminary program is here.
Lauren Thompson, Kennesaw State University, “Not for Physicians to Decide”: Medicine, Law, and Mary Ware Dennett in the Early Birth Control Movement
Cookie Woolner, University of Memphis, “Framing Women in Harlem”: Regulating Black Women’s Sexuality in the Prohibition Underworld
Katherine Luongo, Northeastern University, Mens Rea as a Cultural Matter: Adjudicating Witch-Killings in Nigeria and Tanzania
Stephanie Jones-Rogers, University of California, Berkeley, Women, American Slavery, and the Law
Luisa Stella de Oliveira Coutinho Silva, Universidade de Lisboa, Women in Colonial Paraíba: A Feminist Postcolonial Study of Brazilian Legal History, 1580s–1822
Hannah Francis, Rice University, The Impact of American Law on Free Women of Color in Nineteenth Century New Orleans
Jeffrey Gonda, Syracuse University, “All the Feeling of Being a Lady Had Been Crushed”: Black Women and Jim Crow Transportation in the 1940s
Roundtable: Making Reproductive Rights Law from Griswold to Whole Woman’s Health
Chair: Kate Shaw, Cardozo Law School
Reva Siegel & Linda Greenhouse, Yale Law School, The Story of Roe v. Wade
Serena Mayeri, University of Pennsylvania, The Story of Planned Parenthood v. Casey
Cary Franklin, Yale Law School, The Story of Whole Woman’s Health v. Hellerstedt
Khiara Bridges, Boston University School of Law, The Story of Harris v. McRae
Wednesday, September 6, 2017
My book podcast for the New Books Network is now live. Check it out here at Thomas on Elizabeth Cady Stanton & the Feminist Foundations of Family Law
For past blogging about the book, chapter by chapter, see:
Friday, August 25, 2017
Bronwyn Taylor, Judge-Made Law: The "Menhennit Ruling" and Abortion Law Reform in Victoria, 88 Victorian Historical J. (June 2017)
Women’s right to access abortion has historically been seen as controversial by lawmakers, secular and religious. Th is article examines the sources of change in Victoria’s abortion laws, and in particular the role of judicial law making. Th e late 1960s was a time of challenges to class, gender and political inequalities, locally and internationally. In Victoria during this period, with politicians unwilling to introduce abortion law reforms despite substantial community support, a conventional — even conservative — judicial ruling in 1969 changed the law in Victoria at one stroke and provided a model of legal access to abortion for other jurisdictions for the next 40 years. Th e article examines the context for, and consequences of, the decision of Mr Justice Menhennit in R v Davidson, the ‘Menhennit ruling’.
Friday, August 18, 2017
Paula Monopoli’s point in her recent review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law, is well taken. She notes that “[t]he only arguable weakness in this book is that after the trenchant introduction, Thomas does not do much to connect back to the different strands of feminist theory per se.”
This actually was one of the earliest ideas I had for the book, and one that interested the editor the most in the original proposal. But in looking back at it now, it seems that this part of the manuscript ended up on the cutting room floor. (Along with a background discussion of Protestant ideas of no-fault divorce which I still miss as it placed Stanton’s idea in greater historical and religious context).
The generality of the point of multiple feminisms survived in the book, challenging the characterization of Stanton as a simplistic thinker, a mere “first generation” advocate seeking to treat women the same as men. (And Sue Davis makes a similar point in her book The Political Thought of Elizabeth Cady Stanton about the multiple feminisms seen in Stanton’s political theory).
However, the specifics of contexts illustrating each type of feminism must be pieced together by the reader herself through the book. So let me try and explain better here.
Liberal feminism. This is the most known about Stanton, that she support a formal equality approach to treating women the same as men. This meant reversing laws of coverture which denied women equal rights to property, inheritance, and child custody. It meant giving women the same right to vote, hold public office, and enter the professions by college and work. Women should be lawyers, reverends, and medical doctors. Women should be able to own their own bank accounts. She would have eliminated all instances where law created a separate rule based on gender, much like Ruth Bader Ginsburg advocated during her years of women’s rights work with the ACLU Women’s Rights Project.
Difference feminism. However, Stanton did not only advocated formal equality between genders. She also advocated specific legal and social rules for women only, for situations where women were differently situated. Stanton advocated a maternal custody rule, giving child custody to women only. She supported a widow’s exception for dower, tax and bankruptcy due to women’s different need. And she advocated a women-only right to control sexual relations and procreation through abstinence, challenging the existing standard of male sexual prerogative.
Her justification for these was an understanding that it was women who biologically bore children, and socially raised them. She considered women’s role in raising children to be a powerful one. Indeed, she argued that women should use this power to raise the next generation of children up with equal virtues and coeducation, so that women could transform society by their feminist parenting.
While society used the maternal role to “protect” and restrict women’s rights, Stanton used maternity as a basis for power and a justification for right. It’s not that men could not share in parenting, which she also advocated, but that they simply did not. As such, women were differently situated and needed rights that corresponded to that reality.
Radical feminism. Stanton also appreciated that the structures of law, society, and the family themselves were barriers to women’s full autonomy. Like modern legal theorist Catharine MacKinnon, she attacked the sexualization of women -- in romantic Victorian notions and revealing décolletages -- and advocated dress reform and coeducation. Stanton endorsed an equal moral sexual standard, that idea of men as needing to indulge their sexual passions by affairs, adultery, and command of marital relations was wrong, and that men should be restrained and liable for consequences, and that women also entitled to sexual express and sexual control. And she would also restructure marriage from hierarchy to joint partnership. Not just that women would retain their own separate property earned or inherited, but that marriage would have joint property belonging to both partners regardless of where obtained.
Finally, Stanton quite radically took on the structure of the church. After fifty years of work for women’s rights, Stanton learned that the foundational sticking point was that the basis of social and legal gender norms of women’s subordination were based in religious teachings. She took on the Christian church’s doctrines and teachings, reinterpreting biblical passages and deconstructing the male bias in those rules.
Overall, Stanton’s use of feminist methodology of deconstruction, critical suspicion of seemingly objective rules, and understanding of male privilege allowed her to approach legal and social critique with an all-encompassing feminist theory that shows her to be an advance and radical legal thinker.
Monopoli concludes in her review, that “the main strength of the book lies in Thomas as legal historian pulling together the arguments out of Stanton’s own writings, making them available to us and linking them to Stanton’s surprisingly modern legal theories. This book should be included on reading lists for upper-level seminars in jurisprudence, family law, and legal history, in addition to gender and the law. Reading it will introduce students to a significant legal mind, albeit an informally trained one, not traditionally included in the canon of prominent American legal thinkers.”
Thanks to Paula Monopoli for her great (and thorough) review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law in the Journal of Legal Education.
Mother. Author. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton
Tracy Thomas’s new book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, provides extensive support for the claim that Stanton was “the intellectual giant of the [women’s rights] movement.” In this eminently readable yet deeply substantive work, Professor Thomas argues that Stanton was a foundational theorist for modern feminism. Until recently, Stanton’s intellectual contributions have not been widely explored, and Thomas aims to rectify that oversight. She situates Stanton in her rightful place by focusing on Stanton’s writings and advocacy in the area of family law. Thomas does a persuasive job, using Stanton’s views on marital property law, divorce, voluntary and involuntary maternity, and the custody of children as a lens through which to examine broader themes about women’s status as equal citizens in our republic. She also documents Stanton’s intellectual contributions in a way that informs current debates about gender equality.
While Stanton’s writings ranged broadly on the subordination and emancipation of women, Thomas narrows in on Stanton’s views on the subjugation of women within marriage. She also reveals Stanton’s extensive, if de facto, training in law through her father’s practice, law library and clerks. “As a young woman, Stanton had read widely in her father’s law library and discussed cases with him . . . . [H]er legal training allowed Stanton to bring to the early women’s rights movement a keen sense of the role of law in creating inequality between the sexes.” Thomas argues that this understanding of the common law itself and her understanding of how to construct legal arguments were central to Stanton’s efficacy as a theorist and an advocate.
Thomas begins by examining Stanton’s personal story. Stanton was a harried mother of three children under the age of ten when she convened the first women’s rights convention in Seneca Falls in 1848. In the decade that followed, she went on to have four more children and to advocate tirelessly for women’s equality. Thomas points out how much the adage “the personal is the political” applied to Stanton, as she wrote to her partner in advocacy, Susan B. Anthony, for help:
Can you get any acute lawyer . . . sufficiently interested in our movement
to look up just eight laws concerning us—the very worst in all the code? I
can generalize and philosophize easily enough myself; but the details of the
particular law I need, I have not time to look up. You see, while I am about
the house, surrounded by my children, washing dishes, baking, sewing, etc.,
I can think up many points, but I cannot search books, for my hands as well
as my brains would be necessary for that work . . . . Men who can, when they
wish to write a document, shut themselves up for days with their thoughts
and their books, know little of what difficulties a woman must surmount.
These words would resonate with many female scholars today. After this first letter, Stanton again wrote to Anthony to tell her that the legislative testimony she was trying to finish was not nearly done and that her deadline was rapidly approaching. Anthony responded by coming to babysit while Stanton finished the address. Having a public voice requires time and energy. But bearing a disproportionate share of family caregiving makes such public participation difficult and remains a structural barrier to gender equality today.
Thomas integrates these and similar examples of the connection between the nineteenth-century Stanton and modern-day feminists. She begins her book with an introduction that gives the reader a thumbnail sketch of modern feminist theory. Thomas outlines the distinctions among liberal feminism, with its focus on formal equality; difference feminism, with its focus on resolving subordination by recognizing women’s biological, relational, and cultural differences; and radical or dominance feminism, which situates subordination in the victimization of women as sexual objects and emphasizes the need for structural reforms. Thomas argues that Stanton’s views on family law reform informed modern feminist theory.
As Thomas notes, many of the reforms that Stanton wrote about and advocated for in terms of property, marriage, divorce, and custody have become the legal status quo. But in these turbulent times, Thomas’s book reminds us how fragile those gains are and how radical they still seem to many in our society. As Stanton lamented, after “years of untiring effort” to obtain guarantees of property and custody, those statutes were “repealed in States where we supposed all was safe.”Her cautionary note to be vigilant rings as loudly in 2017 as it did in 1876, and we would do well to heed it. Professor Thomas’s excellent new book has given us additional intellectual tools to do just that.
Monday, July 31, 2017
In this special summer episode, we take a step back from reviewing to introduce listeners to H-Law's new legal history podcast. Robert interviews H-Law's podcast producer and host Siobhan Barco and we run in full her first episode, an interview with legal scholar Mary Ziegler, author of After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015). From Siobhan's description of the episode:
Ziegler’s work uses the landmark American abortion rights case, Roe vs. Wade to explore litigation as a vessel for social change and the role the court plays in democracy. In addition to traditional archival research, Ziegler recorded over one hundred oral histories of people in the pro-life and pro-choice camps, allowing her to move beyond caricatures and delve more precisely into the catalysts for these individual’s points of view.
Topics we discuss include:
(1)Whether Roe is overstated as a cautionary tale for judicial intervention
(2)How the bright line divide between the pro-life and pro-choice movements had not yet coalesced in the 1970s.
(3)Roe as a canvas onto which activists could project different strategic aims
Janet Halley, Book Review: Richard Chused & Wendy Williams, Gendered Law in American History (2016), JOTWELL
Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what didhappen with this issue or that in the transformative-yet-reactionary 19th Century?
But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours. But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!
The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths.
One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.
Friday, July 14, 2017
Instead of sentencing a woman to jail time for laughing during Jeff Sessions' confirmation hearing, a D.C. judge threw out the woman's conviction and called for a new trial.
Desiree Fairooz says her laughter during the attorney general's confirmation hearing in January was involuntary. (She was reacting to an assertion that Sessions treats all Americans equally.) Fairooz, who is an activist with the Code Pink organization, then protested as she was physically removed from the hearing. In May, she was convicted by a jury of disorderly, disruptive conduct and obstructing passage on U.S. Capitol grounds.
The charges carried up to a year in prison and a fine of up to $2,000. Two other protesters at Sessions' hearing faced similar charges.
But on Friday, the D.C. Superior Court judge overseeing Fairooz's sentencing called for a new trial instead.
Ryan Reilly of the Huffington Post reports that Chief Judge Robert Morin decided that the government improperly argued that Fairooz's laugh alone — not her reaction to being removed from the courtroom — would be enough to find her guilty.
Wednesday, June 28, 2017
Karen Patricia Heath, New Directions in the History of Conservative Women
Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).
As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?
Friday, June 2, 2017
From Chapter 6, "Our Girls," in Tracy A. Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016)
Toward the end of Elizabeth Cady Stanton's long career advancing women's rights and legal reform, she renewed her efforts to deconstruct the foundations of women's continued subordination. Why did many women themselves not endorse reform and equality? Why did so many women say "I have all the rights I want." Stanton located the source of social subordination in the teachings of the church, which women heard every week from the pulpit and every day in the papers. She dedicated her last decade of life to challenging the gendered interpretations of the Bible and offering alternative feminist understandings of religious doctrine.
As part of that, Stanton drew on new emerging ideas of anthropology of matriarchal societies which she used to show that female power and women-ruled societies were viable alternative ways to structure power. Almost a century later, at the 1977 National Women's Conference in Houston, Gloria Steinem embraced Stanton’s theory of the matriarchate, using it similarly to emphasize the viability of an alternative system of female power.
In the early 1890s, Elizabeth Cady Stanton added to her historical argument of the perversions of the church, by offering an alternative to this ordained gender structure of “the matriarchate.” She incorporated this theory of maternal power into addresses to national conventions, writings on Wyoming’s new grant of women’s suffrage, and in other essays on women’s rights.[i] Stanton drew on emerging anthropological theories of matriarchal societies, prehistoric cultures like the Amazons, Iroquois, and others in which women ruled as the creative force wielding power and peaceful governance. The theory of matriarchy was a popular idea that emerged in the late nineteenth century, originating with Swiss lawyer and jurist Johann Jakob Bachofen and advanced by Marxist thinker Friedrich Engels and others.[ii] The theory of a matriarchal prehistory held that earlier societies existed in which women controlled government and property, created the first families, developed agriculture, and were worshipped as goddesses because of their reproductive and caregiving abilities. A “patriarchy cataclysm” disrupted the peace, harmony, and ecological balance of these matriarchal systems with intervening wars and weapon development, after which patriarchy evolved as the superior social structure and provided survival and advancement.[iii]
Stanton wrote from England in 1890 that she had “been reading the whole year to glean these facts” about the matriarchate by studying British scholars.[iv] She was likely also influenced by her colleague, Matilda Joslyn Gage, who was developing similar theories about religion on matriarchy later published in her magnum opus, Woman, Church, and State.[v] Stanton, like Gage, appropriated the anthropological matriarchal theories of the nineteenth century for her own feminist purposes. For these theories had been developed to justify the converse, the superiority of patriarchy. They held that society had evolved from the unsophisticated, chaotic matriarchal systems into ordered and aggressive systems grounded in patriarchy. Stanton, interpreting the theory through her feminist lens, concluded that the matriarchate provided historical evidence of women’s ability and superior powers and the negative influence of the destructive forces of male aggression and patriarchy. “Thus, instead of being a ‘disability,’ as unthinking writers are please to call it, maternity has been the all-inspiring motive or force that impelled the first steps” toward “the birth of civilization.” Matriarchal theory was attractive because it freed women’s rights advocates from the “charge of their critics that male dominance was biological and eternal, and therefore inevitable and unchangeable.” Stanton used this evidence not to advocate a return to female supremacy, but rather as evidence of women’s capabilities sufficient to support an “Amphiarchate,” a shared power between women and men in the “as yet untried experiment of complete equality.[vi] Second-wave feminists of the late twentieth century resurrected these ideas of the matriarchate bolstered by archeological finds of prehistoric fertility goddesses and a strong current of feminism seeking support for alternative gender structures of power.[vii]
[i] “Matriarchate,” 227; “Her Political Status,” Evening Star, Feb. 25, 1891; “The Matriarchate Mother-Age,” Woman’s Tribune, Feb. 28, 1891; “The Matriarchate or Mother-Age,” National Bulletin, Feb. 1892; ECS, “Wyoming,” Woman’s Tribune, July 5, 1890; ECS, “Wyoming Admitted as a State into Union,” 134 Westminster Review 280 (Sept. 1890); “Antagonism”; Mrs. Stanton on Our Foremothers, Woman’s Journal, Dec. 29, 1894; ECS and SBA, “Women’s Rights,” in Johnson’s Universal Cyclopedia v. VIII (Charles Kendall Adams, ed. 1895).
[ii] Bachofen, Mother Right: A Study of the Religious and Juridical Nature of Gynecocracy in the Ancient World (1861); Friedrich Engels, Origin of the Family, Private Property, and the State (1884).
[iii] ECS, “Karl Pearson on the Matriarchate,” Women’s Penny Paper, Nov. 8, 1890; ECS, “The Matriarchate, or Mother-Age,” National Council of Women, Feb. 22-25, 1891; ECS, “The Antagonism of Sex,” National Bulletin, June 1893; ECS, “Then Woman Said: ‘I Will,’” Dec. 23, 1894; ECS, “Moral Power, or Brute Force?” Boston Investigator, Feb. 25, 1899; ECS, “The Antagonism of Sex,” Boston Investigator, Mar. 16, 1901; Woman’s Bible, 25; Cynthia Eller, Gentlemen and Amazons: The Myth of Prehistory, 1861-1900 6-7 (2011); Cynthia Eller, The Myth of Matriarchal Prehistory 3-15 (2000).
[iv] ECS to Clara Colby, Feb. 21, 1891; ECS, “Reminiscences,” Woman’s Tribune, Mar. 19, 1892.
[v] Fitzgerald, xxi; Kern, 67; HWS, v.I, 753; Matilda Joslyn Gage, “The Matriarchate,” 2 The Open Court 1480-81, Jan. 5, 1889. Gage’s son-in-law, Frank Baum, actualized Gage’s theory of matriarchal power in his “The Wizard of Oz” book series.
[vi] “Matriarchate,” 227; “Antagonism”; Woman’s Bible, 25; Eller, Amazons, 123, 130-32.
[vii] Gloria Steinem, Wonder Woman, in Eller, Myth, 1-2; Merlin Stone, When God Was a Woman (1976); Riane Eisler, The Chalice and the Blade (1987).
Friday, May 12, 2017
In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.
Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.