Saturday, March 22, 2014
Tuesday, March 18, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.
Whom are we studying when we study the history of gender and the law? Some answers to this question seem obvious. We study pioneers like Elizabeth Cady Stanton and Alice Paul. We celebrate the accomplishments of thinkers like Ruth Bader Ginsburg and Catharine MacKinnon. In researching my book, I often found the answer to this question much less clear-cut. In contemporary politics, the identities of the pro-choice and pro-life movements seem stable and straightforward. In the immediate aftermath of the Roe decision, things were far less simple. An influential committee in the ACLU worked to identify fetal rights compatible with reproductive liberty for women. Feminists viewed issues like fetal tissue research with ambivalence. Influential antiabortion activists fought for federal legislation banning pregnancy discrimination. Indeed, some pro-lifers argued for what they saw as women’s right to choose, claiming that women did not enjoy true reproductive freedom unless the State protected them against both pregnancy discrimination and the perils of poverty.
A rapidly shifting gender politics forced many of these lawyers and grassroots activists to make painful choices. The mobilization of the New Right and Religious Right, the focus of abortion-rights activists on electoral politics, and the realignment of both political parties helped to create the “pro-choice” and “pro-life” categories we now know. So too did difficult and hotly debated strategy decisions made by members of each opposing movement. For many, the creation of contemporary abortion politics was a painful change, forcing women to choose between two identities when neither accurately reflected their fundamental beliefs about gender or sex discrimination.
Part of the task for historians of women and the law is to remain open to the stories of those who don’t always come to mind when we think about feminist legal history. These stories may not change our politics or our views of the relationship between gender and the law today. Just the same, these stories powerfully illustrate why gender matters and how gender changes. They remind us how entrenched political and legal realities once seemed—and may once again seem—far from inevitable
Thursday, March 13, 2014
The quote has been attributed to everyone from Marilyn Monroe to Eleanor Roosevelt, but its origin comes from an academic paper by Pulitzer Prize-winning historian Laurel Thatcher Ulrich, who in 1976 was a student at the University of New Hampshire. Her focus was on the history of early American women who were not featured in history books of the past. Her paper began,Cotton Mather called them "The Hidden Ones." They never preached or sat in a deacon's bench. Nor did they vote or attend Harvard. Neither, because they were virtuous women, did they question God or the magistrates. They prayed secretly, read the Bible through at least once a year, and went to hear the minister preach even when it snowed. Hoping for an eternal crown, they never asked to be remembered on earth. And they haven't been. Well-behaved women seldom make history; against Antinomians and witches, these pious matrons have had little chance at all.By 2007 her phrase became what now would be called a "meme," and in a newspaper interview, Ulrich said,It was a weird escape into popular culture. I got constant e-mails about it, and I thought it was humorous. Then I started looking at where it was coming from. Once I turned up as a character in a novel -- and a tennis star from India wore the T-shirt at Wimbledon. It seemed like a teaching moment -- and so I wrote a book using the title.
Tuesday, March 11, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. Her post last week introduced her topic of exploring feminist legal history.
What do we mean when we talk about feminism? My book project has forced me to reconsider how I would answer this question. My scholarship fits comfortably within any classic definition of feminist legal history: I focus on the intersection of law and history in the context of reproductive health, divorce, marriage, and abortion. I consider myself a feminist and a historian. I brought these understandings of myself and my work to the book and the question at its core: how did Roe v. Wade impact social-movement debate and what can the history of the decision teach us about law as a tool for social change, in the context of gender relations more broadly? Research for the project took me to over seventeen archives, to the basement of convents, and the offices of anti-feminists. The most fun came in the oral histories I conducted with over 100 of those who participated in the abortion wars in the decade after Roe. I spoke with men and women, doctors and homemakers, lawyers and activists, abortion opponents and population controllers, and feminists of every stripe. What I learned made me wonder what it meant to be “pro-choice” or “pro-life.” As importantly, the research made me question who should count as a proper object of study for women’s legal history.
At the beginning of my research, I had treated pro-choice activism as synonymous with the women’s movement—unquestionably a core subject for feminist legal historians. I learned that the relationship between women’s rights and the legalization of abortion was much more contested than I had predicted. Identifying a cause with women’s rights had profound ideological and strategic ramifications. Physicians, population controllers, and even feminists wondered if embracing the rhetoric of women’s rights would set back the progress of abortion reform.
Law also played a surprising and unanticipated role in the creation of the abortion-rights cause. On the one hand, feminists could use the Roe decision in arguing that their movement should frame abortion as an issue of women’s rights. The Supreme Court’s approval made the idea of abortion as a woman’s right more legitimate, more mainstream, and more politically palatable. On the other hand, feminists’ wish to preserve that victory created damaging internal debates about the proper scope of a reproductive-justice agenda, about protections against sterilization abuse, and about what counted as true reproductive liberty.
I wonder how often causes and social movements we identify as feminist have a more troubled history. Did different legal movements once count as feminist? Might social causes associated with feminism today once have had a radically different meaning, both legally and politically? It is questions like these that make Women’s History Month more exciting than ever for feminist legal historians.
Saturday, March 8, 2014
Take a look at Hein's new Women and the Law Collection. It "brings together books, biographies and periodicals dedicated to women’s roles in society and the law. This unique collection of materials provides a platform to research the progression of women’s roles and rights in society over the past 200 years. Also included are more than 70 titles from Emory University Law School’s Feminism and Legal Theory Project which provide a platform to view the effect of law and culture on the female gender."
[Hat tip to Kyle Passmore]
Thursday, March 6, 2014
As we begin women’s history month, I thought I would share a women’s legal history reading list. I've developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar. This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting. It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was legal fro a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s. The list goes on and on. My hope is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books. But for now, at least, the history is being recovered and analzyed, and the transmission of that discovery has been started.
Women’s Legal History: A Reading List
Tracy A. Thomas
Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)
Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)
Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)
Tracy A. Thomas, The New Face of Women’s Legal History, 41 Akron L. Rev. 695 (2008).
Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)
Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)
Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)
Nancy Cott, The Grounding of Modern Feminism (1987)
Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)
Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)
EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)
Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)
Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)
Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)
Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)
Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)
Coverture, Marital Status in the Family, Marital Property
William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)
Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)
Tracy A. Thomas, Elizabeth Cady Stanton on the Marriage Amendment: A Letter to the President, 22 Const. Comment. 137 (2005)
Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)
Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).
Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)
Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651
Ken Burns, Not For Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)
Declaration of Sentiments, July 1848
History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)
Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)
Minor v. Happersett, 88 U.S. 162 (1974)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)
Iron Jawed Angels (2004) (video)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)
Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
Muller v. Oregon, 208 US 412 (1908)
Adkins v. Children's Hospital, 261 US 525 (1923)
The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)
Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)
James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)
Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)
Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)
Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)
Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).
Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)
Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)
Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)
Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)
Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)
Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)
Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)
Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)
Women in the Courts
Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)
Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)
Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).
Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)
Bradwell v. State, 83 U.S. 130 (1872)
In re Lockwood, 154 U.S. 116 (1894)
Women’s Legal History Biography Project, at http://wlh.law.stanford.edu
This week I have been rereading Jill Hasday’s article on the history of the marital rape exception for its discussion of the 19th century voluntary motherhood advocacy. Voluntary motherhood was the demand of the women's rights community for the right of the wife to control sexual intercourse against the husband's marital privilege of forced sex. This time I picked up more clearly on Hasday's distinction between what she sees as the feminists' emphasis on bodily autonomy versus what Linda Gordon in her seminal work, The Moral Property of Women, sees as a mechanism for birth control. Hasday points out this was more than a practical birth control method of abstentience, but was a demand for a legal right and a structural shift in marriage of a gender-specific right to women. “right to her self,” “the sacred right to her own person,” the right to control men and unilaterially make the decision to engage in marital intercourse and pregnancy. My own work on Elizabeth Cady Stanton for a forthcoming book explores Stanton’s leadership and advocacy of this right to her own person
Tuesday, March 4, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.
If it’s March, it’s time once again to celebrate Women’s History Month. With the rise of important new scholarship, we also have a perfect reason to assess the state of women’s legal history itself. When New York University Press published a volume of essays on feminist legal history in 2011 (co-edited by Tracy Thomas), feminist legal history was still relatively new. At its heart was a narrative about the history of feminism, starting with the Seneca Falls Convention of 1848, continuing through the battle for the Equal Rights Amendment, suffrage, and temperance in the early twentieth century, the rise of the “second-wave” in the 1960s and 1970s, and the backlash to it in the 1980s. Three years later, feminist legal history is unquestionably alive and well—the subject of many books, law review articles, and symposium events. The flourishing of the field makes it more important than ever to question what we mean by both “law” and “feminism.”
Over the course of the month, I’m hoping to blog about the ways in which scholars are testing the boundaries of current understandings of women’s legal history. Some historians have found law in unconventional places: in the stories of those operating in administrative agencies, legislative hearings, abortion clinics, doctors’ offices, and grassroots organizations. These histories invite us to rethink whether women make law even when they do not transform existing doctrine, relate their claims to a lawyer, or change black-letter rules. In this way, women’s legal history stands at the forefront of a larger reevaluation of the relationship between law and social change. How we view that relationship, as women’s legal historians increasingly recognize, depends on how much we recognize something as law even when it fails to conform to our expectations.
Other historians have tested the relationship between feminism and the law. Whom should we consider a feminist? Should we treat as feminist any historical actor who identified herself (or himself) as such, or can we recognize feminists from their substantive commitments? Should feminist legal historians study those who obstructed legal progress for women? Can feminist politics obscure as well as illuminate our understanding of where we are and how we got here?
I am not sure I’ll answer these questions by the end of women’s history month, but it’s crucial to start a conversation about them. Women’s legal history teaches us not to take for granted legal rules, relationships, and institutions that now seem natural. It is a history of society’s blind spots and forgotten opportunities. For that reason, Women’s History Month seems to be as good a time as ever to consider what we as historians might have missed.
Saturday, February 22, 2014
From Slate, The Accidental Feminist:
Fifty years ago this week, on Feb. 8, 1964, Rep. Howard W. Smith, a segregationist Democrat from Virginia, stood on the floor of the House to propose an amendment to the Civil Rights Act. Title VII of the bill, which the chamber had been debating for a week, was written to ban employment discrimination because of race, color, religion, and national origin. To the list, Smith added one more category: sex.
The House, which counted just a handful of female members, erupted in laughter. “I am serious,” Smith drawled. “It is indisputable fact that all throughout industry women are discriminated against.”
In that moment Smith helped catalyze the modern feminist movement—even though, or perhaps because, his motives were hardly feminist.
Thursday, February 20, 2014
I appreciate the idea that for we need to move beyond remembering the famous firsts in understanding history and racial and gender oppression. But that assumes that we already know those firsts. I'm embarrassed to say I only knew 6 of 11 here. How Many of These Early Black Feminists Do You Know?
Mary Triece (Akron-Communication) has published Tell it Like it Is: Women in the National Welfare Rights Movement (SC Press 2013).
In Tell It Like It Is, Mary E. Triece brings to light a lesser known yet influential social movement of the late 1960s and early 1970s—the welfare rights movement, led and run largely by poor black mothers in the National Welfare Rights Organization (NWRO). Her study combines theory and critical analysis to explore rhetorical strategies and direct actions women employed as they argued for fair welfare legislation in both formal policy debates and in the streets. Triece focuses on how welfare recipients spoke for themselves in forums often marked by widely held stereotypes.
Triece explains the influence of racism on welfare legislation throughout the early 1900s and explores how welfare recipients cultivated agency while challenging stereotypes such as the "welfare cheat" and the "welfare mother." To illuminate her study, Triece uses historical documents including pamphlets, flyers, position statements, and convention materials. She examines the official newspaper of the NWRO, the Welfare Fighter, and draws on the congressional testimonies of welfare recipients, providing the first in-depth look at the ways that these women represented themselves in this formal political forum.
Tell It Like It Is presents an interdisciplinary study touching on communication, rhetoric, politics, feminist theory, and the intersections of race, class, gender, and sexuality. It also engages in ongoing scholarly debate regarding language, knowledge, reality, and the potential for social change. Triece contributes to each of these disciplines as she explores how a marginalized and beleaguered people managed to mobilize a nationwide movement.
Tuesday, February 18, 2014
Finally, completing today's thoughts on writing great and relevant legal scholarship, a perfect example.
The LA Times has Annie Shield's review of Estelle Freedman, (Stanford) Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation
The evolution of how rape has been defined in the United States is the subject of the historian Estelle B. Freedman’s Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation. In this book, Freedman tells the story of the many disparate social movements whose efforts brought about changes in the social and legal constructions of rape from the end of the Civil War until the early 20th century. Not unlike the “Rape is Rape” campaign, most efforts to redefine rape throughout the country’s history have relied on both long-term organizing and unpredictable shifts in the political climate. The impact of anti-rape activism, like that of all movements for social change, is influenced by the fickle public attention span. The FBI’s decision to discard the category of “forcible rape” in favor of a more inclusive definition of assault was a big victory, but it went largely unnoticed by the public. Getting people to sign on was easy, but getting the media to cover an esoteric definitional change by a bureaucratic agency was a struggle. ...
Freedman’s thesis is a simple one: throughout the history of the term “rape,” its changing definition has been inextricably bound to changing definitions of citizenship. She traces the evolution of rape as a social and political concept from the end of the Civil War to the mid-20th century. Through historical records, court transcripts, and newspaper archives, Freedman shows how, since the country’s founding, ideas about sexual violence have traditionally been informed — and enforced — by and for a ruling class of white men. She also outlines the history of anti-rape movements that challenged white supremacy and male supremacy. The presentation of these disparate movements, which were often at odds with one another despite having seemingly similar goals, is among the most fascinating aspects of Freedman’s narrative.
Thursday, January 30, 2014
This is why I love women's history - there is just always more to the story. The Untold Story of Jewish Feminist Pioneers provides a Q&A with Historian Melissa R. Klapper who recently won a National Jewish Book Award for Ballots, Babies, and Banners of Peace: American Jewish Women’s Activism, 1890-1940. Klapper's book discusses the birth control battles of the 1870s, the Jewish push for suffrage, and why peace was once considered a women's issue.
Saturday, January 25, 2014
Thursday, January 23, 2014
Today’s anniversary of Roe v. Wade renewed the debate over abortion and feminism. One group, Feminists for Life says that feminists should oppose abortion because it devalues motherhood. FFL rests much of its strategy both in the press and in the courts on a claimed historical record of "feminist foremothers" against abortion. It has, quite literally, adopted Elizabeth Cady Stanton and Susan B. Anthony as their poster children, claiming these famous women were “strongly opposed to abortion.” (See also the Susan B. Anthony List, a PAC to elect pro-life women to Congress).
I wrote an article challenging this conclusion as to Stanton, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012). Scholars of Anthony have similarly refuted the claim on her legacy. Ann Gordon & Lynn Sherr, Sarah Palin is No Susan B. Anthony. For Stanton, the historical evidence is flimsy at best. FFL reluctantly admitted this and at least temporarily stopped selling the Stanton anti-abortion coffee mugs. More importantly, Stanton advocated a woman's “right to her own self.” What she called “the right of self-sovereignty” was woman’s singular right to control her own body, sexual relations and reproductive decisions.