Gender and the Law Prof Blog

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

Friday, September 15, 2017

Black Women in the Law: A History and Current Assessment

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

September 15, 2017 in Courts, Legal History, Race, Women lawyers | Permalink | Comments (0)

Friday, September 8, 2017

Gender and Law Talks at Legal History Conference

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

 

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

Wednesday, September 6, 2017

New Book Podcast: Elizabeth Cady Stanton and the Feminist Foundations of Family Law

Friday, August 25, 2017

The History of Abortion Law in Victoria

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’.

August 25, 2017 in Abortion, International, Legal History | Permalink | Comments (0)

Friday, August 18, 2017

Response: The Multiple Feminisms of a 19th Century Women's Rights Thinker

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.”

August 18, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Book Review: The Feminist Legacy of Elizabeth Cady Stanton

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.

August 18, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Monday, July 31, 2017

Book Podcast: After Roe: The Lost History of the Abortion Debate

New Legal History Podcast: Mary Ziegler's After Roe

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

July 31, 2017 in Abortion, Books, Legal History | Permalink | Comments (0)

Book Review: Gendered Law in American History

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.

July 31, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Friday, July 14, 2017

Judge Throws Out Conviction of Woman Who Laughed in Sessions Hearing

NPR, Judge Throws Out Conviction of Woman who Laughed at Jeff Sessions

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.

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

Wednesday, June 28, 2017

Books: New Directions in the History of Conservative Women

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?

June 28, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Friday, June 2, 2017

The Matriarchate: The Use of the Wonder Woman Image in the 19th Century Women's Movement

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.

 

The Matriarchate

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]

Notes 

[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).

June 2, 2017 in Books, Gender, Legal History | Permalink | Comments (0)

Friday, May 12, 2017

The Story of Ida Platt: The First Black Woman Lawyer in Illinois

Gwen Jordan, "A Woman of Strange, Unfathomable Presence": Ida Platt's Lived Experience of Race, Gender & Law, 1863-1939"

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.

 

May 12, 2017 in Legal History, Race, Women lawyers | Permalink | Comments (0)

Wednesday, May 3, 2017

Essays on Women, Gender, and Law in Medieval Studies

Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)

In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.

 

Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray 

Ecaterina Lung, Depictions of Women in the Works of Early Byzantine Historians and Chroniclers: Stereotype and Reality 

Niki Megalommati, Women and Family Law in Byzantium: Some Notes

Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage

Amy Livingstone, Pious Women in a "Den of Scorpions": The Piety and Patronage of the Eleventh-Century Countesses of Brittany

Teresa Phipps, Misbehaving Women: Trespass and Honor in Late Medieval English Towns

Miriam Shadis, The Personal and the Political in Testaments of the Portuguese Royal Family (12th & 13 c)

Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona

Stanley Chojnacki, Wives and Goods in the Venetian Palazzo

May 3, 2017 in Family, International, Legal History | Permalink | Comments (0)

Friday, April 28, 2017

Gender, Class, and Science in the 19th Century Patent Office

Kara Swanson, Rubbing Elbows and Blowing Smoke: Gender, Class, and Science in the 19th Century Patent Office, 108 J. History of Science 1 (2017)

The United States Patent Office of the 1850s offers a rare opportunity to analyze the early gendering of science. In its crowded rooms, would-be scientists shared a workplace with women earning equal pay for equal work. Scientific men worked as patent examiners, claiming this new occupation as scientific in opposition to those seeking to separate science and technology. At the same time, in an unprecedented and ultimately unsuccessful experiment, female clerks were hired to work alongside male clerks. This article examines the controversies surrounding these workers through the lens of manners and deportment. In the unique context of a workplace combining scientific men and working ladies, office behavior revealed the deep assumption that the emerging American scientist was male and middle class.

April 28, 2017 in Education, Legal History | Permalink | Comments (0)

Tuesday, April 25, 2017

Challenging the Idea that Feminism Occurred in Waves

The Future is Feminist: The new book Finding Feminism embraces queer women and argues that feminism does not occur in waves.

In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.

 

Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”

 

Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***

 

 

Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.

April 25, 2017 in Gender, Legal History, LGBT, Theory | Permalink | Comments (0)

Thursday, April 6, 2017

In 1783 Woman Petitions Former Slave Master's Estate for Pension

I'm always interested in new examples of women's historical agency and use of the law.  

Women Petitioners: Belinda Sutton, an Ex-Slave in Massachusetts

In February 1783, Belinda Sutton petitioned the Massachusetts General Court for a pension from the estate of Isaac Royall Jr, her late master. (In this petition she names herself simply ‘Belinda, an Affrican’, but in later documents she gave the surname Sutton, her married name.) She had been born in Ghana 70 years earlier and kidnapped by slavers when she was just 12 years old.  The petition is one of the earliest narratives by an African-American woman, and an early demand for reparations for the injustice and exploitation of slavery. The court ordered that she should have her pension, but she had to petition again a number of times in later years to continue receiving it.

 

The Petition of Belinda an Affrican, humbly shews.

That seventy years have rolled away, since she on the banks of the Rio da Valta received her existence. The mountains covered with spicy forests, the valleys loaded with the richest fruits, spontaneously produced, joined to that happy temperature of air to exclude excess, would have yielded her the most compleat felicity, had not her mind received early impressions of the cruelty of men, whose faces were like the moon, and whose bows and arrows were like the thunder and the lightning of the clouds. The idea of these, the most dreadful of all enemies, filled her infant slumbers with horror, and her noontide moments with cruel apprehensions! But her affrighted imagination, in its most alarming extension, never represented distresses equal to what she hath since really experienced. For before she had twelve years injoyed the fragrance of her native groves, and e’er she realized, that Europeans placed their happiness in the yellow dust which she carelessly marked with her infant footsteps, even when she, in a sacred grove, with each hand in that of a tender parent, was paying her devotions to the great Orisa who made all things, an armed band of white men, driving many of her countrymen in chains, rushed into the hallowed shades! Could the tears, the sighs and supplications, bursting from tortured parental affection, have blunted the keen edge of avarice, she might have been rescued from agony, which many of her countrys children have felt, but which none hath ever yet described. In vain she lifted her supplicating voice to an insulted father, and her guiltless hands to a dishonoured deity! She was ravished from the bosom of her country, from the arms of her friends, while the advanced age of her parents, rendering them unfit for servitude, cruelly separated her from them forever!

 

Scenes which her imagination had never conceived of – a floating world – the sporting monsters of the deep and the familiar meetings of billows and clouds strove but in vain to divert her melancholly attention, from three hundred Affricans in chains, suffering the most excruciating torments; and some of them rejoicing that the pangs of death came like a balm to their wounds.

 

Once more her eyes were blest with a continent – but alas! how unlike the land where she received her being! Here all things appeared unpropitious – she learned to catch the Ideas, marked by the sounds of language, only to know that her doom was slavery, from which death alone was to emancipate her. What did it avail her, that the walls of her lord were hung with splendor, and that the dust troden underfoot in her native country, crowded his gates with sordid worshipers? The laws had rendered her incapable of receiving property, and though she was a free moral agent, accountable for her actions, yet she never had a moment at her own disposal!

 

Fifty years her faithful hands have been compelled to ignoble servitude for the benefit of an Isaac Royall, untill, as if nations must be agitated, and the world convulsed for the preservation of that freedom which the Almighty Father intended for all the human race, the present war was commenced. The terror of men armed in the cause of freedom, compelled her master to fly and to breathe away his life in a land where lawless domination sits enthroned, pouring bloody outrage and cruelty on all who dare to be free.

 

The face of your petitioner is now marked with the furrows of time, and her frame feebly bending under the oppression of years, while she, by the laws of the land, is denied the injoyment of one morsel of that immense wealth, a part whereof hath been accumilated by her own industry, and the whole augmented by her servitude.

 

Wherefore casting herself at the feet of your honours, as to a body of men, formed for the extirpation of vassalage, for the reward of virtue, and the just returns of honest industry, she prays, that such allowance may be made her out of the estate of Colonel Royall, as will prevent her and her more infirm daughter from misery in the greatest extreme, and scatter comfort over the short and downward path of their lives

And she will ever pray.

Petition of an African slave, to the legislature of Massachusetts (full text of the printed version of Belinda’s petition, reprinted in William & Mary Quarterly)

April 6, 2017 in Legal History | Permalink | Comments (0)

Tuesday, March 21, 2017

Remembering Judge Shirley Hufstedler - One of the Famous Firsts

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

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

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

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

 

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

 


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

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

Following the Changes in the Supreme Court's Abortion Law

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

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

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

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

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

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

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

 

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

Thursday, March 16, 2017

Ambivalence and Embrace of Women's History Month

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

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

 

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

 

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

 

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

Tuesday, March 7, 2017

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

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

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

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

 

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

 

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

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