Gender and the Law Prof Blog

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

Thursday, March 31, 2016

New Issue Journal of Women's History

Journal of Women's History (Spring 2016)

      Editorial Note

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

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

Articles

Revisiting Ecclesiastical Adultery Cases in Eighteenth-Century England

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

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

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

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

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

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

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

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

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

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

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

Book Reviews

The History of Marriage through the Lens of Case Studies

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

Enterprising Women

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

Lost Stories of Women’s Alliances and Networks

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

Contributors

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

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

Monday, March 28, 2016

The Origins of the Undue Burden Standard for Assessing Abortion Regulations

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

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

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

 

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

 

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

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

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

 

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

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

 

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

Friday, March 18, 2016

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

The book jacket!  Publication is one step closer!  

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

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

ECSBookJacket

 

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

Friday, March 4, 2016

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

         Dorothy Kenyon, Senator Joseph McCarthy’s First Case

 

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

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

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

Tuesday, March 1, 2016

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

Because every month is men's history.

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

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

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

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

Men Writing History, About Men, for Men

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

 

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

Tuesday, February 23, 2016

The Difference Women Jurors Made to Criminal Convictions

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

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

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

Tuesday, February 9, 2016

Books: The History of Women Lawyers in Maryland

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

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

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

H/t Legal History Blog, Sunday Book Roundup

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

Jewish Women Legal Practitioners and the History of Legal Aid

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

Abstract:     

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

 

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

Tuesday, February 2, 2016

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

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

Abstract:

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

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

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

Monday, February 1, 2016

Frederick Douglass and Elizabeth Cady Stanton

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

 

ECSStatuteNWRMuseum

 

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

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

 

NOTES

[1] DuBois, “On Labor,” 65.

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

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

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

 

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

Tuesday, January 12, 2016

Alice Paul's Legacy in the ERA

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

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

Monday, January 11, 2016

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

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

ECS2sons

 

    

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

The Gloria Steinem Chair in Feminist Studies

Rutgers Surpasses $2 Million Mark for Gloria Steinem Endowed Chair

A little more than a year after launching a campaign to create an endowed chair in honor of modern American feminist Gloria Steinem, Rutgers University officials announced they have surpassed the $2 million mark in donations.

 

The funds, totaling $2.1 million from more than 250 individuals and 12 foundations, put the university two thirds closer toward the $3 million required to finance the Gloria Steinem Endowed Chair in Media, Culture and Feminist Studies.

 

The chair,  a unique collaboration among Rutgers’ Institute for Women’s Leadership (IWL), School of Communication and Information (SCI)  and the Department of Women’s and Gender Studies in the School of Arts and Sciences, will focus on the creative and complex ways information technology and new media are reshaping culture and power relationships.

Rutgers seems particularly appropriate, given its locus as the birthplace of Justice Ruth Bader Ginsburg's academic work on women's rights, and the Stanton and Anthony Papers Project.

 

 

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

Thursday, January 7, 2016

Men Writing History, About Men, for Men

Slate, Why Are So Many History Books About Men, by Men?

A careful study of recent popular history books reveals a genre dominated by generals, presidents--and male authors.

In recent years, as academic history has taken a turn toward the cultural and social, producing more and more works about women, minorities, and everyday life, the kinds of history books you see on the New Releases table at a Barnes & Noble have begun to feel like throwbacks. A quick survey reveals naval battles, grand adventures, and biography after biography about the Founding Fathers. Call these “uncle books”—tomes that you give an older male relative, to take up residence by his wingback armchair.

 

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

 

Why does this matter? Academics are interested in cultural and social history because those approaches allow room for contemplation of what it was like to live life as an everyday person in a certain period, not just as a general or president or pioneer. Last year, historian Ann M. Little noted that the best-selling biographies of 2014 tended to be about men—and a particular kind of man, at that. Popular biographies of Founding Fathers and war heroes, wrote Little, “reflect our contemporary preoccupation with modern history themes: politics, economics, warfare, the nation-state. … These biographies are invested in a particularly modern kind of subjectivity, that of the heroic individual who bends history to his will.” In other words, the popularity of biographies of presidents and sports heroes reflects and reinforces the idea that interesting lives are lived in public, often defined by conflict and glory. Cultural and social histories make the meta-point that history is about communities, not just individuals.

Some of us are trying hard to swim against this tide:

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

 

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

 

Arissa Oh, To Save the Children of Korea:The Cold War Origins of International Adoption (Stanford 2015)

 

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

 

 

January 7, 2016 in Books, Legal History | Permalink | Comments (0)

Friday, December 11, 2015

Group Challenges AZ Susan B. Anthony-Frederick Douglass Selective Abortion Ban as Discrimination for Perpetuating Stereotypes

Asian American Group to Challenge Arizona's Sex Selection Abortion Ban

This Wednesday, the National Asian Pacific American Women’s Forum (NAPAWF) will  challenge Arizona’s ban on so-called race-selective and sex-selective abortions.

 

NAPAWF along with the Maricopa County Branch of the National Association for the Advancement of Colored People (MC-NAACP) argue the law “targets and stigmatizes Black and Asian American Pacific Islander (AAPI) women and is based entirely on racially motivated stereotypes and generalizations about Black and AAPI women’s reasons for deciding to terminate a pregnancy.”

 

Lawmakers in support of the ban cite high numbers of sex-selective abortions in Asian countries as a primary reason why the ban should be enacted.

 

The case will be heard in the Ninth Circuit Court of Appeals in San Francisco. In 2011, the Arizona legislature passed the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011.”

 

An earlier court ruling upheld the law on the grounds the NAACP and NAPAWF had no legal grounds to challenge it. The court said, in effect, that if there is no individual claiming that they were personally denied the ability to obtain an abortion, then there is no harm in this case to bring suit. Both groups are challenging that ruling in the Ninth Circuit Court this Wednesday.

 

” The Arizona law unconstitutionally and unequivocally discriminates against people of color, including Asian Americans,” Miriam Yeung, Executive Director of NAPAWF said to AsAmNews. “Specifically, lawmakers in support of the ban cite high numbers of sex-selective abortions in Asian countries as a primary reason why the ban should be enacted. The Arizona ban was passed based upon racist stereotypes about Asian Americans that have no basis in fact.”

 

I have written a bit about the Anthony-Douglass Act and the misappropriation of Susan B. Anthony's name for anti-abortion advocacy.  See Tracy Thomas Misappropriating Women's History in the Law and Politicis of Abortion, 36 Seattle L. Rev. 1, 8 (2012).

December 11, 2015 in Abortion, Legal History, Race | Permalink | Comments (0)

Wednesday, November 25, 2015

The Elizabeth Cady Stanton Bicentennial

Ms. The Elizabeth Cady Stanton Bicentennial: A Missed Opportunity for Study and Reflection

November 12 was the bicentennial of the birth of Elizabeth Cady Stanton, one of America’s most prominent and extraordinary women’s right leaders. The event passed largely un-noticed. We missed a chance to pause and reflect on her leadership and also on the issues she wrestled with, some of which are still with us.

 

Stanton deserves more recognition. She was, of course, the main organizer of the famous Seneca Falls women’s rights convention in 1848, which issued a ringing declaration demanding the right to vote. But there are several other reasons for studying her career.

We didn't miss it at the Con Law Colloquium at Akron Law.  The entire colloquium featured Stanton scholars of law and history delving into Stanton's contributions to gender equality and constitutional thinking of the vote, political economy, marriage, the family, and religious liberty. 

Here's my prior blog post and all the details from the program.

 

November 25, 2015 in Conferences, Constitutional, Law schools, Legal History | Permalink | Comments (0)

Tuesday, November 17, 2015

Colloquium on the Origins of Gender Equality

I had the fortune to participate in The Center for Constitutional Law at Akron's Colloquium last week, The Origins of Gender Equality.  The Colloquium scheduled for the 200th Anniversary of Elizabeth Cady Stanton's birth celebrated Stanton's vast intellectual and political contributions to the law. 

The New York Times Book Review often asks authors, if you could have dinner with any writers, who would it be?  Well the participants at the colloquium were my list of ideal dinner guests.  These scholars to me represented the best of the work on Stanton in law and history, characterized by original thinking, impeccable and thorough research, and ideas found nowhere elsewhere in the literature. It was a privilege to engage in conversation with these women and deepen our understanding of the legacy of women's rights still so unknown and unappreciated.

The papers from the Gender Equality Colloquium will be published in the spring in ConLawNOW.

Tracy Thomas, Introduction: The Origins of Gender Equality in the Life and Work of Elizabeth Cady Stanton

Lisa Tetrault (history, Carneige Mellon):  On the Meaning of the Vote

Felice Batlan (law, Chicago-Kent): Manhood Suffrage at the New York Constitutional Convention of 1867

Lisa Hogan (women's studies, Penn State):  Unveiling Gendered Notions of Marriage and Women's Sexuality

Kathi Kern (history, Kentucky): Religious Liberty Claims: From Kim Davis to Elizabeth Cady Stanton

 

November 17, 2015 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Remembering the Story of Woman's Suffrage

Huff Post, The Importance of Telling the Story--Crusade for the Vote

As we work to inspire, educate and empower others by integrating women's history as part of the distinctive culture of the United States, we applaud the writers and producers of Suffragette who recognized the need to expand awareness about this significant moment in Britain's history. Director Sarah Gavron, in a recent interview, talked about the timing for the movie, which had been six years in the making.

 

This story had never been told, the reason it's never been told before is because women keep being marginalized. What was on our side was there's a conversation now happening about the inequity in the film business, so people were aware. The story we wanted to tell had become more timely.

 Her explanation is not surprising. We know that for most Americans, their knowledge of how U.S. women won the right to vote is limited to major personalities like Susan B. Anthony and Elizabeth Cady Stanton. But the campaign stretched from the East to the West Coast, with dozens of women doing their part as local canvassers, state campaigners, White House picketers, and filling many other roles. The breadth of the suffrage story is still largely unknown.

November 17, 2015 in Constitutional, Legal History, Pop Culture | Permalink | Comments (1)

Tuesday, November 3, 2015

Lochner's Gendered Legacy

Muller-oregon

(Muller v. Oregon, 1908)

At the NE Ohio Faculty Colloquium last week, I presented on the topic derived from my forthcoming book chapter on the long history of the ERA. 

For this presentation, I focused on the early history of ERA, introduced by Alice Paul in the midst of the Supreme Court's detour into Lochnerism.  A close review of the Lochner cases on maximum hours law, shows how gendered these cases were.  The Court struck down laws like that in Lochner limiting men's work, while easily upholding the same limitation for women.  The advent of the Brandeis Brief (or more appropriately the Kelley Brief since it was mostly written by Florence Kelley) in Muller v. Oregon (1908) added sociological facts of women's weakness, primary material function, and need for protection research designed to justify the rationality of the state legislature's determination that women needed protection.

My takeaways on looking at Lochner through the gendered lends were:  

1.  It explains some of the flip-flops and seeming inconsistencies of Lochner to understand legalistic exceptions were made for women.

 

 2.  It shows how grounded Lochner was in masculinity: real mean don’t need “protection.”  Men were tough, strong, and could withstand or counter the abuse of workplace.  (Except maybe in the case of coal mining, see Holden v. Hardy, 1898)..

 

3.   And perhaps most importantly, it reveals the historical depth of what Joan Williams calls the “ideal worker.”  The ideal worker since industrialization was male, able to work unlimited hours at a moment's notice, needed the job as a family breadwinner, and never needs any accommodations like pregnancy leave, nursing breaks, or family leave.  Women are defined as "other" than the ideal, or even regular work.  Women themselves defined female workers this way, attuned to the realities of women's working class experience.  

 

 

November 3, 2015 in Constitutional, Courts, Equal Employment, Gender, Legal History | Permalink | Comments (0)

Tuesday, October 27, 2015

Remembering the Battle for Women's Suffrage

Lots in the media with the advent of the release of the movie Suffragette on the British women's suffrage movement.

Time, The Real Women's Suffrage Milestone that Just Turned 100

Remembering the mammoth women’s suffrage parade of October 1915

They came on horses and carriages. They marched on foot. There were old women with canes and young mothers with babies. They dressed in white and carried banners with phrases like “A vote for suffrage is a vote for justice” and “You trust us with the children; trust us with the vote.” It was Oct. 23, 1915, and tens of thousands of women flooded Fifth Avenue in a spectacular, five-mile suffrage parade that all but shut down New York City.
 
 

Pop quiz: when did women in the United States get the right to vote?

If you answered June 4, 1919, or Aug. 18, 1920 — the dates on which the 19th Amendment was passed and ratified — then you’re almost right. Yes, the Amendment guaranteed that the right to vote could not be denied on account of sex. But the right wasn’t fully secured until this day, Feb. 27, in 1922. That’s when the Supreme Court decided Leser v. Garnett.

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

NPR, American Women Who Were Anti-Suffragette

 

As the 19th century ended and the 20th began, the American wave of women pushing for access to the ballot box gathered momentum. But it wasn't until the 19th Amendment to the Constitution was ratified in 1920 that voting rights were guaranteed for all women.

 

Hard as it is to imagine today, there were certain women — mostly forgotten — during that period of duress who did not believe that women deserved the right to vote. Some called these naysayers "anti-suffragettes" or "anti-suffragists." Some called them "remonstrants" or "governmentalists." Some called them just plain "antis."

 

 
 
 

October 27, 2015 in Legal History, Pop Culture | Permalink | Comments (0)