Gender and the Law Prof Blog

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

Friday, August 5, 2016

President Obama on Feminism, Gender Roles and Being a Feminist Father

Glamour, President Obama Says, "This is What a Feminist Looks Like"

So we shouldn’t downplay how far we’ve come. That would do a disservice to all those who spent their lives fighting for justice. At the same time, there’s still a lot of work we need to do to improve the prospects of women and girls here and around the world. And while I’ll keep working on good policies—from equal pay for equal work to protecting reproductive rights—there are some changes that have nothing to do with passing new laws. In fact, the most important change may be the toughest of all—and that’s changing ourselves.

 

So I’d like to think that I’ve been pretty aware of the unique challenges women face—it’s what has shaped my own feminism. But I also have to admit that when you’re the father of two daughters, you become even more aware of how gender stereotypes pervade our society. You see the subtle and not-so-subtle social cues transmitted through culture. You feel the enormous pressure girls are under to look and behave and even think a certain way.

 

And those same stereotypes affected my own consciousness as a young man. Growing up without a dad, I spent a lot of time trying to figure out who I was, how the world perceived me, and what kind of man I wanted to be. It’s easy to absorb all kinds of messages from society about masculinity and come to believe that there’s a right way and a wrong way to be a man. But as I got older, I realized that my ideas about being a tough guy or cool guy just weren’t me. They were a manifestation of my youth and insecurity. Life became a lot easier when I simply started being myself.

 

So we need to break through these limitations. We need to keep changing the attitude that raises our girls to be demure and our boys to be assertive, that criticizes our daughters for speaking out and our sons for shedding a tear. We need to keep changing the attitude that punishes women for their sexuality and rewards men for theirs.

 

We need to keep changing the attitude that permits the routine harassment of women, whether they’re walking down the street or daring to go online. We need to keep changing the attitude that teaches men to feel threatened by the presence and success of women.

 

We need to keep changing the attitude that congratulates men for changing a diaper, stigmatizes full-time dads, and penalizes working mothers. We need to keep changing the attitude that values being confident, competitive, and ambitious in the workplace—unless you’re a woman. Then you’re being too bossy, and suddenly the very qualities you thought were necessary for success end up holding you back.

 

We need to keep changing a culture that shines a particularly unforgiving light on women and girls of color. Michelle has often spoken about this. Even after achieving success in her own right, she still held doubts; she had to worry about whether she looked the right way or was acting the right way—whether she was being too assertive or too “angry.”

 

As a parent, helping your kids to rise above these constraints is a constant learning process. Michelle and I have raised our daughters to speak up when they see a double standard or feel unfairly judged based on their gender or race—or when they notice that happening to someone else. It’s important for them to see role models out in the world who climb to the highest levels of whatever field they choose. And yes, it’s important that their dad is a feminist, because now that’s what they expect of all men.

 

August 5, 2016 in Gender | Permalink | Comments (0)

New in Books: A Feminist Proposal for Using ADR to Address Marital Problems and Violence in India

Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India (U. Cal. Press 2015) (with podcast):

Are solutions to marital problems always best solved through legal means? Should alternative dispute resolutions be celebrated? In her latest book The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015) Srimati Basu answers such questions and many more through explorations of "lawyer free" courts and questions surrounding understandings of domestic violence, analyses of the way rape intersects with marriage and how kinship systems change with legal disputes and by delineating the most important acts that frame marriage law in India. Theoretically and politically astute the book offers an ethnographic insight into legal sites of marriage trouble in India.

August 5, 2016 in Books, Family, International | Permalink | Comments (0)

Tuesday, August 2, 2016

A Public Health Approach to Rape and Sexual Culture

Angela Harris, American Sexual Culture as Public Health Crisis, JOTWELL

Reviewing:  Margo Kaplan, Rape Beyond Crime, 66 Duke L.J. (forthcoming 2017), available at SSRN. 

Not long ago, I was indulging in one of my favorite lazy-day pastimes – standing in my local bookstore, reading. The book was Girls and Sex, Peggy Orenstein’s latest, and I left the bookstore considerably more unsettled than when I walked in. Suddenly it seemed like a good idea, if not to forbid her to go to college altogether, at least to walk my 18-year-old daughter to the nearest feminist sex-toy store first. Now comes Margo Kaplan to offer a legal perspective on American “rape culture,” and a new plan for furthering the feminist project of healthy, happy sex lives for       everyone.* * * 

Kaplan concludes that “absent a broader change in this culture, criminal law faces a double bind: rape laws can be either ineffective or unjust.” Because there is such a mismatch between the world sexual equality feminists, at least, would like to live in and the world we actually do live in, scholars and actors in the criminal justice system struggling to apply statutory terms like “force” and “consent” find themselves either confirming social norms that preserve men’s sexual access to women (ignoring the needs of male and female victims), or promoting idealistic norms that feel alien and unreasonable to the ordinary person.

 

The answer, Kaplan proposes, is to supplement the criminal law of sexual assault with a public health approach to sexual culture. As she notes, “public health law” is a grab bag of doctrines and policies including educational initiatives, data collection, and public-private partnerships among government, nonprofit organizations, media outlets, and advocates, all underwritten by the police power of the states and the federal power of the purse. The cornerstone of a public health approach, according to Kaplan, is its focus on “populations and prevention” – the exact opposite of the criminal justice system, which focuses on individuals and, despite its aspirations to deterrence, requires a violation as a trigger.

 

Kaplan’s proposed public health approach to rape has two main prongs. First, government agencies would amass detailed data on sexual violence (and where possible, presumably, sexual encounters that are unwanted regardless of whether they are understood as “violent”). Second, government agencies would promote new cultural norms for sexual behavior, challenging the norm of male aggression/female passivity and promoting in its stead an ideal of “good sex—sex that involves communication, mutual respect, and mutual pleasure.” (On the model of Michelle Obama’s work on obesity, I imagine First Husband Bill Clinton traveling the country promoting good sex for all.) In addition, Kaplan would encourage rape prevention campaigns to look “upstream” at structural determinants of victimization, such as poverty.

August 2, 2016 in Healthcare, Violence Against Women | Permalink | Comments (0)

Cause-Lawyering, Gender and Transitional Justice

Anna Bryson & Kieran McEvoy, Women Lawyers and the Struggle for Change in Conflict and Transition, 42 Australian Fem. L.J. (2016)

Abstract:     

This article examines the particular experiences of female "cause lawyers" in conflicted and transitional societies. Drawn from an ongoing comparative project which involved fieldwork in Cambodia, Chile, Israel, Palestine, Tunisia and South Africa, the paper looks at opportunities, obstacles and the obduracy required from such lawyers to "make a difference" in these challenging contexts. Drawing upon the theoretical literature on the sociology of the legal profession, cause-lawyers, gender and transitional justice, and the structure/agency nexus, the article considers in turn the conflict\cause-lawyering intersection and the work of cause-lawyers in transitional contexts. It concludes by arguing that the case-study of cause-lawyers offers a rebuttal to the charge that transitional justice is just like ‘ordinary justice’. It also contends that, notwithstanding the durability of patriarchal power in transitional contexts, law remains a site of struggle, not acquiescence, and many of these cause-lawyers have and continue to exercise both agency and responsibility in ‘taking on’ that power.

 

August 2, 2016 in International, Women lawyers | Permalink | Comments (0)

Monday, August 1, 2016

More on Manciting

I previously posted about a study on "manciting," men's greater likellihood of self-promoting by citing their own work.  Study Finds Men More Likely to Cite Their Own Science Papers

The Washington Post picked up the study as well, here below.  .  

Wash Post, New Study Finds Men are Often Their Own Favorite Experts on Any Given Subject

And in recent decades, men have stepped up their self-citation game relative to women: "In the last two decades of our data, men self-cite 70 percent more than women.

 

This self-citation gap held true across every major academic field the authors studied, including biology, sociology, philosophy and law. In a footnote, the paper's authors — three women and two men — dryly note that the pattern holds among themselves as well: "The men authors of this paper cite themselves at nearly three times the average rate of the women authors."

 

King and her colleagues offer a number of hypotheses for why men may be more likely to cite themselves. For starters, studies have shown that mengenerally have a higher opinion of their own abilities than women do. And they typically face fewer social penalties for self-promotion. "Gendered perceptions of self-promotion likely influence perceptions of self-citation, which could be viewed as a form of self-promotion in the academic workplace," King and her colleagues write.

The authors suggest it may also be the impact of maternity leave early in academic women's careers.  Maybe... but only about 40% of women academics have children.  

Nor do I think it is that easy to game the system by citing one's self. My own school has not relied heavily on citation counts for promotion decisions, but where it has made use of those numbers, it has omitted counts for self-citation.

August 1, 2016 | Permalink | Comments (0)

Appellate Court Rules that Male Student Suspended for Alleged Campus Assault may go Forward with Title IX Claim for Anti-Male Bias

Wash Post, Former Ivy League Athlete Suspended for Alleged Sexual Assault Wins Important --and Surprising--Court Victory

Can a male student held responsible by a university for an alleged sexual assault successfully make the case that his fate was the result of sex discrimination against him?

 

Many have tried and many have failed. Indeed, some have been all but laughed out of court.

 

But now the First Circuit U.S. Court of Appeals has opened the door to just such a scenario. Reversing a U.S. District Court decision, the panel ruled Friday that a former athlete’s suit against Columbia University, which suspended him for a year for “sexual assault: non-consensual sexual intercourse,” may go forward based on his claim that university officials acted with anti-male bias, in violation of Title IX, the federal education law that bars discrimination by schools receiving federal funds.

***

 

But the ruling is likely to be a source of great concern among women’s rights activists, who have spent years trying to get universities to act more aggressively in sexual assault cases.

 

“The idea that vigilance to victims is a ‘pro woman bias’ potentially amounting to discrimination is a concerning perspective,” said Jamie Abrams, of the University of Louisville Brandeis School of Law. “Any defendants should be entitled to due process, without question. It is important that universities continue to recognize their obligations to investigate and act fairly such that this decision will not temper or stagnate the critical cultural and institutional changes that were underway.”

Professor Abrams wrote more about this in a prior post here Critiquing "Crisis" In Sexual Assault Responses

August 1, 2016 | Permalink | Comments (0)

Senior Women Lawyers Leave Big Law Because of Unequal Pay and Bias, Not Kids

Why Are Older Women Leaving Big Law?

Recent research by ALM Intelligence seems to confirm my hunch. Besides the usual dreadful news about how women make up only 18 percent of equity partners and only 8 percent of lawyers earning more than $500,000 (yes, that’s not a typo), the research shows that women are steadily leaving firms, including those who are past their child-bearing years. As Nicholas Bruch, senior analyst at ALM Legal Intelligence, writes:

 

“What is known is that women do not leave the law disproportionately at a specific time in their lives or careers. The analysis of ALM’s Rival Edge database below reveals that women trickle out of Big Law by a few percentage points per year of age. The analysis shows that among 30-year-old lawyers at Big Law firms, women comprise 45 percent. Among lawyers who are 40 years old, however, women only comprise 41 percent, a decrease of 4 percentage points. By age 50, women only make up 27 percent of the lawyers, a change of 14 percentage points.”

 

This is stunning: By age 50, women only make up 27 percent of lawyers in big firms. That means a stampede of women are leaving in their menopausal years. So much for the cozy myth that women are dropping out to pop out babies and drive the carpool.

 

That also means that, while their male counterparts are at the top of their game and raking in big bucks, many women are quietly throwing in the towel. I say “quietly” because you don’t hear about these women who stick it out at firms, only to leave when they should be enjoying the fruits of their labor.

 

I find this shocking, but Hastings Law School professor Joan Williams says she is not surprised. “Women lawyers in their 50s are really upset about compensation. They have the sense that men and women are not treated fairly,” she says.

 

The inequity in pay between male and female partners is a huge sore point for women, explains Williams, who says her preliminary study about pay gaps in law firms and corporations confirms a troubling, continuing trend. (Williams’ study is being done in conjunction with the ABA Commission on Women, Minority Corporate Counsel Association and WorkLife Law.) Indeed, the pay gap is well-documented; according to National Association of Women Lawyers (NAWL), female partners make only 80 percent of what men do. (Bruch says ALM’s finding that only 8 percent female lawyers earn more than $500,000 fit with NAWL’s finding; both indicate “that very few women are at the very top of the earning pyramid.”)

 

Another reason older women are leaving is that they are fed up with the game. “They get weary of decades and decades of proving themselves and being service partners, getting penalized being for that role, then getting penalized more if they protest,” Williams says.

 

“They just get worn down faster than men,” says Paula Monopoli, a law professor at the University of Maryland whose scholarship focuses on gender issues. A former law firm associate herself, Monopoli adds, “It’s not like making partner solves all the implicit bias. It can actually become more pronounced when you have fewer women in your cohort.”

August 1, 2016 in Women lawyers | Permalink | Comments (0)

Friday, July 29, 2016

Studies Show Women Legislators Get More Work Done

The Research is Clear: Electing More Women Changes How Government Works

Hillary Clinton clinching the Democratic nomination is, on one level, a symbolic breakthrough. Yesterday we lived in a country where no woman had ever won a major political party’s presidential nomination. Today that's no longer true. This is a huge and momentous step forward.

 

But it’s not purely symbolic. As more and more women start to occupy the White House and Congress, we should expect them to govern differently.

 

Political science research has found this over and over again: Women legislators are more likely to introduce legislation that specifically benefits women. They’re better at bringing funding back to their home districts. And, to put it bluntly, they just get more shit done: A woman legislator, on average, passed twice as many bills as a male legislator in one recent session of Congress.

 

Women bring a different background to Congress. They face different obstacles to success — and sometimes more obstacles to winning office. That shapes how they govern and what issues they choose to focus their time on.

July 29, 2016 in Legislation | Permalink | Comments (0)

Colorado Adds Pregnancy and Post-Partum to Anti-Discrimination Laws

Colorado Amends Discrimination Law to Accommodate Pregnant and Post-Partum Employees

On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .

 

[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:

  •  provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
  • not take adverse actions against employees who request or use a reasonable accommodation;
  • hire applicants despite the need to make a reasonable accommodation;
  • not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
  • not require leave if the employer can provide another reasonable accommodation.

July 29, 2016 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Tuesday, July 26, 2016

People Unfazed by All-Gender Restroom at DNC

People Were Unfazed by This All-Gender Restroom at the Democratic Convention

Hundreds of men and women shared a big, busy “all-gender restroom” at the Democratic National Convention on Monday — and were seemingly unfazed by the experience.

 

“It doesn’t make me nervous at all,” Lula Dualeh, a delegate for Bernie Sanders, told BuzzFeed News. “I just need to use the restroom. I don’t care who’s next to me.”

 

But restrooms have been a hot-button issue for many Republicans. State and federal politicians have politicized bathroom access, saying that allowing transgender women — whom they call “men” — to use the women’s restroom poses a safety threat.

 

At the Wells Fargo Center, which also had single-sex restrooms, a sign at the entrance of the all-gender restroom featured a figurine in a dress and another figurine without a dress.

 

Inside, everyone took turns using stalls; then women and men washed their hands side-by-side at a bank of sinks. Nobody who spoke to BuzzFeed News found the situation troubling.

July 26, 2016 | Permalink | Comments (1)

Monday, July 25, 2016

Study Finds Men More Likely to Cite Their Own Science Papers

Study Finds Men are More Likely to Cite Their Own Science Papers

Why? Is it confidence? production? specialization?

A new study led by sociologists at Stanford University and uploaded to the Arxiv preprint server shows that, since the 18th century, male academics cite their own papers on average 56 percent more than their female counterparts. And although you might expect this trend to level off as women occupy more tenure track positions and publish more papers, the opposite appears to be true: In the past two decades, the rate of self-citation among men was 70 percent higher than that of women....

 

An increased propensity to point to one’s own work—“manciting,” if you will—is no small thing when the number of citations a paper has is often used as a proxy to measure a scientist’s importance by both peers and employers....

 

Self-citation, or referencing a work that has an author in common with your own paper, makes up nearly 10 percent of total citations across all 1.5 million papers on the academic database JSTOR, which the researchers used for their study. King noted that a previous study looking at over half a million scientific papers concluded that each self-citation leads to nearly three additional total citations of an author’s work over the next few years, due to increased visibility—meaning that pointing people to your own work can have a multiplicative effect.

 

“Women aren't getting the credit from themselves, or the credit that accrues to them from others, and that's a pretty significant gap,” said King

 

The researchers speculate that men may self-cite more because they tend to evaluate their own abilities more positively than women, and because women may face a social penalty for self-promoting....

 

King says male academics tend publish more papers, possibly leaving them with more work to cite. And men also tend to be more specialized, meaning that with a narrower range of literature available they have no choice but to point to their own work.

July 25, 2016 in Scholarship | Permalink | Comments (0)

Making A Big Deal of the Gender Reveal

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Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.

“Gender reveal” parties are a popular trend among expecting parents.  One website describes these parties as “a new trend that’s sweeping across the baby world.”  The “gender reveal” is described online as one of the “most thrilling parts of pregnancy.”  Expecting parents are accordingly encouraged to make this event “a big, wonderful, landmark event in your life.”  Parents then tuck their ultrasound in an envelope and plan a grand event around its opening.  The party reveals to family and friends – and to the couple themselves – the gender of the baby.

If you have not been invited or involved in one (I had not . . . and surely after this blog post, I will not be in the future!), it’s worth a quick online search.  You will find an endless array of products emphasizing a whimsical gender binary from banners to straws to stickers.  You can have buttons and voting materials for “Team He” versus “Team She.”  You can have cupcakes and cake toppers for “Team Lashes “versus “Team Stashes.”   

The emergence of gender reveal parties in this modern era is most perplexing.  First, the use of the word gender itself defies a general movement toward greater sophistication and nuance between the terms sex and gender and an expanded recognition that gender is not binary.  In this sense, the “gender” reveal is really not a gender reveal at all; it is really a “biological sex” reveal.  The American Psychological Association describes sex as one’s biological sex, which is indicated by external genitalia, internal reproductive organs, and chromosomes.  In contrast, gender “refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex.”  Other dimensions of gender include one’s gender identity and one’s gender expression.  Gender is not determined by one’s physical genitalia and it is not binary.

Even if the “gender reveal” party were most awkwardly renamed as a “genitalia reveal” party or a “biological sex reveal,” that too would inaccurately pretend that all bodies fit on “Team He” or “Team She” as the merchandise suggests.  Sex – unlike gender – may be described on a male-female binary, but critically not all bodies conform to that binary; others are intersex.  Making a big deal of the gender reveal wrongly presumes that the child’s gender is fixed in utero and that all bodies fit on “Team He” or “Team She.”  Ironically, the parties themselves are premised on inclusivity.  The planning sites suggest that they are to be celebrated because “male guests are allowed” and because “husbands can be involved.”  So, these parties are celebrating the inclusivity of the party, while the party is framed around exclusivity.

This whimsical in utero trend of the big “gender reveal” defies the increased political, legal, and social recognition that biological sex does not define one’s gender and that gender is not binary.  So, if I’m invited to a gender reveal party, I will happily engage in a tasty protest enjoying a cupcake for both “Team Lashes” and “Team Stashes” to quietly contest outdated and inaccurate depictions of gender.

    

July 25, 2016 in Gender | Permalink | Comments (0)

Tuesday, July 19, 2016

Solving the Policing Problem with More Women Cops

Wash Post, One Way to Curb Police Brutality that No One is Talking About

Law enforcement remains one of the least gender-diverse professions in the United States — and that could be a major factor in the questionable shootings and excessive force complaints against police. Female officers have fewer of these problems than their male colleagues, which could make gender diversity a key to addressing the breakdown in the relationship between the nation's police and the community.

 

Studies have found female officers tend to place more importance on de-escalation and community trust building. “Female officers are better at defusing potentially violent confrontations before those encounters turn deadly,” wrote Katherine Spillar, executive director of the Feminist Majority Foundation, in an essay for The Washington Post last year.

 

Male police officers, meanwhile, are disproportionately more likely than their female colleagues to draw citizen complaints about excessive force, wind up in excessive force lawsuits and be in involved in lawsuits that lead to significant victim payouts. Of the 54 officers charged with fatally shooting someone while on duty in the past decade, only two were women.

Ms, Our Policing Problem is Also a Diversity Problem

Before Philando Castile and Alton Sterling were shot by police officers within days of each other,and our country erupted yet again into complex conversations about race and police violence, I called all of the largest local police departments in the country to compile data on the gender and race breakdown of their departments as part of a research study for the Feminist Majority Foundation.

 

What I found corroborates published research on the subject: Women of color and other minority officers are significantly underrepresented in these departments. According to the Bureau of Justice statistics, only 27 percent of all police officers in local police departments in 2013were racial or ethnic minorities. Women of color are even more underrepresented, accounting for only 4.8 percent of full-time sworn personnel, according to a 2001 study from the National Center for Women and Policing. The most recent Bureau of Justice statistics on the breakdown of gender in the largest local police departments were published in 2008, and they range from 9 percent female officers in the Las Vegas Metro Police Department to 27 percent female officers in the Detroit Police Department.

 

Why is this a problem? Well, let’s consider the recently released audio recording, taping the two officers who shot Philando Castile. The taping suggests that they pulled Castile over not because of a broken taillight but because he matched the characteristics of an armed robber due to his “wide-set nose.” This information is disturbing to say the least. It indicates that Castile was stopped and subsequently shot not because he was committing a crime but because he was racially profiled by two white police officers.

 

Violence is what we have come to expect from a police system that hires primarily white men, who are proven to be more violent and to commit more crimes than their female and non-white counterparts. In order to change police culture, we must improve hiring practices and recruit more women officers and more officers of color.

July 19, 2016 | Permalink | Comments (0)

Revisiting Gendered Critiques of the Socratic Method

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Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.

 

As law schools nationwide prepare to implement the new ABA requirements governing experiential learning and assessment, it is also appropriate to revisit the gendered critiques of the Socratic dialogue.  Scholars such as Professor Lani Gunier and Professor Elizabeth Mertz have studied its disproportionately marginalizing effect on women and minority law students.  While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and core upper-level courses.  Law schools continue to design their budgets, curricula, and student experience around some degree of case-based, Socratic law teaching in large-lecture style classrooms.    

But the Socratic method admittedly has some advantages that none of the other curricular innovations have.  It is repeated hundreds of times in different courses, whereas a typical student in a law clinic will represent just a handful of clients on discreet legal issues.  It is delivered to a large and diverse group of students allowing for competing perspectives and critical inquiry.  It has robust volumes of existing teaching materials built around it making it the most economical method of law teaching.  It is comfortable for many professors and law faculties because they were taught this way and they have taught this way for decades, thus allowing greater buy-in and ease of adaptation.

The Socratic method can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms.  Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward ways to better align with curricular innovations in legal education and to create a more positive student experience. These adaptations are consistently (1) positioning client(s) at the center of the Socratic dialogue; (2) positioning law students as attorneys considering legal research and weight of authority as a springboard to client counseling and outcomes; and (3) sensitizing students to varied lawyering skills such as client counseling, settlement, drafting, and discovery within the Socratic case-based approach.  

These re-framings of the Socratic method would create a more inclusive law school experience for all.  These approaches reduce the hierarchy of the professor over the students and invite inclusive participation. The participation that is sought is more collaborative and inviting of diverse perspectives because it is offered as a means to advance client interests and goals, rather than to challenge the professor or a classmate. This would role model collaborative, collegial, and productive lawyering for our students, not just adversarial competencies.

This entry is excerpted from my article on Reframing the Socratic Method previously published in the Journal of Legal Education. 

July 19, 2016 in Education, Law schools | Permalink | Comments (0)

Thursday, July 14, 2016

Gender and the Marital Presumption of Parentage

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Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.  

Despite rapid and enduring transformations in family structures, it has been decades since many states significantly amended their parentage laws.  A Uniform Parentage Act (UPA) Drafting Committee is hard at work preparing a 2017 revision to the uniform act last updated in 2002.  These revisions do important work to fix problematic gendered framings of the marital presumption in a post-Obergefell world. 

Most states continue to follow a marital presumption that presumes that when a wife gives birth to a child her husband is the legal parent of the resulting child.  One high profile example of this presumption was when Kim Kardashian became pregnant with Kanye West’s child, the marital presumption would have presumed that Kris Humphries was the legal father because he was still married to Kim at the time.  This gendered language, however, problematically presumes that a married couple is one man and one woman.  This, of course, is no longer the case.  Many state laws need to be updated to reflect this modern reality.  In fact, only seven states have so far amended their marital presumption laws after Obergefell.  Other states may, however, be interpreting the gender specific language of their parentage laws in a way that is inclusive of same-sex couples at the judicial level or on a case-by-case level. 

The 2017 UPA would extend that marital presumption to either a male or female spouse of the woman who gave birth.  Notably, the 2017 UPA does not propose a completely gender-neutral standard.  The drafting committee acknowledged that the State of Washington, for example, had adopted a completely gender-neutral approach.  It noted, however, that this could produce unusual results.  For example, it might mean that a wife would be presumed to be the legal parent of a child birthed by another woman if a husband impregnated a woman that was not his wife during an affair.  The gender-neutral marital presumption, in that instance, might then override the birthing woman’s parentage.  Washington was the only state to adopt an entirely gender-neutral presumption.  The UPA Drafting Committee explained that the other six states that had amended their parentage laws had done so in a manner similar to the 2017 UPA’s proposed approach, which expands the marital presumption to the female spouse of a birthing wife. 

This blog post only summaries changes to the marital presumption’s gendered framing.  The 2017 UPA would also modify surrogacy provisions, provide certain rights to access information about gamete donors, and modify the handling of competing presumptions.   To learn more about the drafting process visit the Drafting Committee’s site of the Uniform Law Commissioners or to view a comparison between the 2002 and 2017 UPA see the Committee’s chart.

July 14, 2016 in Constitutional, Family | Permalink | Comments (0)

Tuesday, July 12, 2016

From Standing With Planned Parenthood to Moving Forward

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Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.   

 

Unqualifiedly, “I stand with Planned Parenthood,” consistent with the viral social media hashtag that so mobilized the reproductive rights movement this year.   I’ve made my donations.  I’ve changed my Facebook status picture.  I’ve defended the reputation and profound importance of Planned Parenthood.   

I also celebrated last month’s decision in Whole Woman's Health v. Hellerstedt  . . . but I did so more privately and discreetly, a point this blog seeks to explore.  Whole Woman’s Health challenged the motive and methodology of state legislatures enacting restrictive laws regulating abortion and abortion providers.  It concluded that the state does impose an “undue burden” on a woman’s right to choose when it enacts laws that are not medically justified and that restrict access to as many women as the Texas provisions did.  I celebrate this decision for its affirmation of the undue burden standard, its demand for sound legislation supported by medicine and science, and the potential it offers to push back on the increasing frequency and intensity of restrictive measures.

Yet, for the most significant Supreme Court decision protecting a woman’s right to choose in decades, what form of mobilized and energized support could be seen away from the Supreme Court steps?  I, for one, did not change my social media imagery.  In fact, I did not post anything on social media at all, not even a simple link to the decision or news coverage of it.  It seemed that only a small handful of my colleagues and friends who are active in this area posted anything other than a few vague social media posts best characterized as  “phew” points, more than substantive or celebratory posts.     

Interestingly, who was busy blogging and posting about women and what they need and what their rights are . . . . opponents to abortion access!  Notably, opponents to the decision were not characterizing this as judicial overreach or inconsistency – like the dissenting justices had – rather, they were tweeting and blogging about how the Supreme Court failed to protect women and make abortion safer for women. 

As we breathe a sigh of relief from this legislative and Supreme Court term, we now stand poised to assess the carnage of the past years, and the last year particularly, and to assess the reproductive rights movement’s trajectory.  Social movements, like the reproductive rights movement, are about collective action to bring change.  They require an oppositional frame and they develop a collective identity.  This collective identity defines what it means to join the movement and how its members recognize themselves and are recognized externally.  This creates a shared sense of oneness or we-ness.  Historic framings of reproductive rights were broadly tethered to larger understandings of women’s equal citizenship and participation in public and private life, including women’s health, women’s autonomy, and women’s freedom.

Contrasting the social and political responses to attacks on Planned Parenthood over the past year to responses to the Whole Woman’s Health decision or even contrasting social and political responses to Whole Women’s Health to historic reproductive rights successes, it merits thoughtful reflection on what the consequences have been to the reproductive rights social movement in having spent so much time in a defensive posture.  The movement’s defensive posture in the past year has forced us to shift our emphasis to the myopic focus on defending an institution instead of defending the people and issues that it protects, serves, and saves.  When I declare that “I stand with Planned Parenthood,” I am not declaring more directly the politically and historically grounded points that I stand for women’s equal autonomy to make medical decisions and the central importance of women’s reproductive autonomy to control their political, social, professional selves as men do.  This focus arose out of necessity, but centralizing a social or political movement so squarely around one institution a worrisome long-term strategy that places too much weight and pressure on the institution’s leaders?  Does this institutional focus compromise the collective action or “oneness” of women supporting reproductive rights more broadly?

As I defend the relevance and importance of Planned Parenthood, I worry that its four walls limit me and perhaps the movement’s trajectory.  As we stand and defend the four walls of Planned Parenthood and its access to funding, there is reason to worry that the opposition is swiftly co-opting the gendered framing of abortion and the broader rights at stake for women. 

I worry that the muted reaction to Whole Woman’s Health reveals a deeper shift and narrowing of the framing of the reproductive rights movement.  I write, not to be critical of the past, but looking to the future.  There was a critical time and need to “stand with Planned Parenthood.”  But we cannot maintain a movement for reproductive justice and women’s bodily autonomy just by defending the necessity and credibility of one institution or even one procedure.  I do stand with Planned Parenthood.  I also stand with midwives.  I also stand with birthing women . . . at home and in hospitals.  I stand with women seeking birth control, just as I stand with those not using birth control for reasons religious or otherwise.  As we move forward, now is the time to expand the base, expand the conversation, and reach for new allies, not narrow and institutionalize the conversation.  We stood in defense of a fortress when we needed to do so.  Now we must move forward in ways that restore a sense of “oneness” that is tethered to issues and people. 

July 12, 2016 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Book Review: Black Women and the Carceral State

Black Women and the Carceral State

Reviewing:    

No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity
by Sarah Haley
The University of North Carolina Press, 2016, 360 pp. Link here

 

Chained in Silence: Black Women and Convict Labor in the New South
by Talitha L. LeFlouria
The University of North Carolina Press, 2016, 280 pp. Link here.

 

When you think of convict labor in the postbellum South, you probably think of men. Consider the cultural touchstones: John Henry driving steel in West Virginia, Robert Burns’s I Am a Fugitive from a Georgia Chain Gang!, the manacled singers in Alan Lomax’s field recordings, Nat Adderley’s classic “Work Song” (“Breaking rocks out here on the chain gang/Breaking rocks and serving my time”). Or perhaps not—by far the finest rendition of “Work Song,” after all, is Nina Simone’s. By singing Adderley’s song, Simone made audible what has been systemically silenced: the historical experience of black women subjected to coerced labor and state violence. While the repression and coercion of black women have been constant features of American life in one form or another across the centuries, they are also today the site of a vital strand of political resistance. The appearance of two historical works on the subject, then, is significant. Talitha L. LeFlouria’s Chained in Silence: Black Women and Convict Labor in the New South, and Sarah Haley’s No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity, represent the most thorough historical accounting of the system of carceral labor inflicted on black women.

 

These are books for our moment. African-American women—queer, black women in particular—have been critical in local organizing against police violence, and have emerged as the leaders of the nation’s most significant national movement for racial justice, Black Lives Matter. Partly, this reflects a long tradition of black female political leadership; partly it is the product of the relative invisibility of state violence against black women.

July 12, 2016 in Books, Race | Permalink | Comments (0)

Monday, July 11, 2016

Abortion Politics in the Age of Zika

Carol Sager, Abortion Politics in the Age of Zika, US News

It seems clear then that neither Zika transmission nor pregnancy can be wholly prevented. Despite the most diligent attempts to contracept, unwanted pregnancy happens, whether through contraceptive failure, a partner's refusal to cooperate or bad luck. (Forty-five percent of pregnancies in the U.S. are unintended.) All this procreation takes place against the background of the mosquito season now upon us.

 

This is where public health runs smack into the politics of reproduction. The CDC advises pregnant women with the virus to seek a medical diagnosis for microcephaly and have it confirmed after their baby is born. But some women may wonder whether they want to continue their pregnancies at all under these circumstances. Here, three facts stand out. First, not all Zika-infected women transmit the virus to their fetuses. Second, if the virus is transmitted, common results are serious birth defects – hearing and vision impairment, seizures, intellectual and physical disability – for which there is no cure. Third, at present doctors are unable to confirm microcephaly until around the 20th week of pregnancy. On these facts, decisions about what course to follow may well be complicated, though at least women in the U.S. have a choice. Unlike most of Central and South America where abortion remains a crime, women in the U.S. have a constitutional right to decide whether or not to terminate a pregnancy.

 

Yet in a number of U.S. states, exercising that right has been made increasingly difficult. In attempts to create abortion-free zones, states have been hacking away at the abortion right any way they can. The general strategy is to make abortion harder to get – harder legally, financially, emotionally and practically. Common tactics include waiting periods, mandatory ultrasounds and burdensome requirements on clinics and providers. Last week the Supreme Court struck down two such provisions in Texas on the ground that neither advanced the health of pregnant women. But among the Texas regulations still in effect is a total ban on abortion after 20 weeks. Recall that microcephaly cannot be definitively diagnosed until after 20 weeks. This means pregnant women may be timed out of legal abortion in Texas, and may not have the resources to go elsewhere.

 

Timing isn't the only legal problem. Indiana and North Dakota ban abortions sought on the basis of fetal disability, claiming that such abortions are a form of discrimination. Babies born with microcephaly will certainly be disabled.

July 11, 2016 in Abortion, Healthcare | Permalink | Comments (0)

Books: Women as Aggressors of Marital Violence in Antebellum American

Robin Sager, Marital Cruelty in Antebellum America (LSU Press 2016)

In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles of aggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty. * * *

 

Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.

h/t Legal History Blog

 

July 11, 2016 in Family, Legal History, Violence Against Women | Permalink | Comments (0)

Friday, July 8, 2016

Books: Fiction on Campus Sexual Assault by and about a Woman Prosecutor

ABA J, The Last Good Girl

Author Allison Leotta has used her 12 years of experience as a federal sex-crimes prosecutor in Washington, D.C., to bring real-world issues into her fiction. Leotta has written five novels chronicling the adventures of her protagonist, prosecutor Anna Curtis. The most recent, The Last Good Girl, takes on the issue of campus sexual assault at a fictional private college in Michigan.

The ABA Journal’s Lee Rawles spoke with Leotta about how she shifted her career from lawyer to author; why the issue of campus sexual assault is so timely; and what’s next for her intrepid heroine Anna Curtis.

July 8, 2016 in Books, Violence Against Women | Permalink | Comments (0)