Thursday, December 22, 2016
Deborah Weissman, The Community Politics of Domestic Violence, Brooklyn Law Rev (forthcoming)
Abstract:Gender violence has long been identified as a crisis of epidemic proportions that defies facile solution. Despite decades of law reform, and notwithstanding increased social services and public health interventions, the rates of gender violence have not appreciably declined. The field of domestic violence advocacy is itself in a crisis, and it has been difficult to discern the best way forward. Despite its intellectual and practical engagement, the domestic violence movement seems unable to shift from the neoliberal paradigm that emphasize the features associated with the carceral state while appearing indifferent to the structural sources of domestic violence as a social problem. Reliance on the criminal justice system has tended to fracture the domestic violence movement even as it marginalized itself from disenfranchised populations.
This Article offers a case study of an incident that occurred between the Sheriff of San Francisco and his wife in December 2011 that resulted in domestic-violence related criminal proceedings and additional charges of official misconduct and efforts by the Mayor to remove him from the office of Sheriff. The Sheriff had been recently elected largely as a result of a coalition of marginalized communities, immigrant rights advocates, environmental justice organizations, labor groups, and other progressive organizations. The case reached beyond the courts and city hall into neighborhoods and households, and community meeting places throughout the city. The legal and public citizen commentary offered throughout nine months of proceedings against the Sheriff set in relief the contradictions and tensions emblematic of the crisis that confronts the domestic violence movement. The case provide a unique opportunity to consider the problems of domestic violence anew, a way to interrogate old premises and presumptions, examine prevailing practices, and reconsider responses.
This Article addresses the perils attending over-reliance on criminal justice paradigms as remedy for domestic violence, that –- in fact -– deployment of law enforcement methods has acted not only to diminish the efficacy of domestic violence strategies but also to diminish the relevance of domestic violence advocacy to the social justice movement. To rely on models of victimhood as the means to obtain the intervention of criminal justice remedies implies loss of voice and agency, whereby the interests of the “victim” are preempted in discharge of larger logic of the criminal justice system. That domestic violence advocates identify with criminal justice remedies, moreover, at a time when law enforcement practices are under scrutiny and suspicion within marginalized communities, has acted to deepen the breach between domestic violence advocates and the social justice movement.
The Article offers an opportunity to reconsider the definition of domestic violence as well as the criminal justice and community response to this problem. It seeks to re-engage in dialogue about the private/public dichotomy without returning to a point in time where private abuse between intimate partners can be considered of little or no socio-political or legal import. Domestic violence persists as a manifestation of gender and other forms of inequality and social norms that oppress and repress its victims. But the mainstream responses often accomplish little to eliminate or repair the damage caused by intimate partner violence. The Article reiterates the recommendations scholars have offered in recent years as alternatives to criminal justice remedies and suggests that what is lacking is not prescriptives but rather political will.
Friday, December 16, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”
Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship. But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role.
Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.
This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations.
What Stanton did talk about was voluntary motherhood. Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands. It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.
Stanton also wrote a great deal about infanticide, rather than abortion. Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement. Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.
Wednesday, December 14, 2016
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform. Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage. Today is Chapter 3 on divorce reform and domestic violence.
From the Introduction to the chapter:
The “marriage question,” as it was called in the nineteenth century, was less about marriage and all about divorce. America inherited the divorceless legal tradition of England derived from canon law, prohibiting divorce but allowing separation and annulment. A few colonies and states experimented with divorce, slowly expanding the fault grounds for divorce by the middle of the nineteenth century, with a few states adopting broad grounds for any misconduct or cause. Legislatures were guided by legal concepts of individualism and contract theory, and influenced by temperance arguments for the protection of women. As the country grew through expansion, immigration, and industrialization, divorce increased. Numbers went from 9,937 in 1867, the first year a national census on divorce was taken, to 33,461 in 1890 and to 167,105 by 1920. The moral outcry was loud, as clergy and moral reformers predicted the deterioration of the family and the downfall of society.
Stanton was at the forefront of the very public debate on divorce. She viewed divorce as an important issue of women’s rights because it freed women from marriage, where their legal status was denied and their personal freedoms curtailed. Viewing marriage as a trap, she was supportive of any legal means for women to escape, including no-fault or “easy divorce.”Taking this a step further, Stanton argued that women had a duty, an obligation to divorce, in cases of domestic violence and intemperance, to protect themselves and their children.
Divorce had been seen historically and biblically as a way for men to “put away their wives,” but Stanton reframed it as a legal remedy for women. She “single-handedly shifted the age-old idea of divorce as a male prerogative to a right demanded by women on humanitarian grounds.” Women needed divorce, Stanton argued, to escape domestic violence, abuse, poverty, and simple unhappiness. “Liberal divorce laws for oppressed wives,” Stanton proclaimed, “are what Canada was for Southern slaves.” The majority of divorces, over two-thirds, were filed by women—a key fact for Stanton proving the importance of this issue for women and the propriety of including it within the women’s rights platform. Divorce was not a morality crisis, but simply a consequence of women’s assertion of rights. “This is woman’s transition period, from slavery to freedom, and all the social upheavings, before which the wisest and bravest stand appalled, are but necessary incidents in her progress to equality.” Divorce provided the self-help remedy that let women enforce their own rights and expectations of marriage, with the secondary effect of transforming marriage into a more egalitarian structure.
Stanton’s tenaciousness on divorce, however, alienated colleagues and divided the women’s rights movement. Her vocal support of divorce outraged reformers, increased opposition to women’s rights, and contributed to the split in the organized women’s movement. Stanton remained undeterred, convinced of the necessity of divorce to women’s full equality. As the eighty-year-old Stanton recalled, “[S]o bitter was the opposition to divorce for any cause that but few dared to take part in the discussion.” But, she said, “I was always courageous in saying what I saw to be true, for the simple reason that I never dreamed of opposition. What seemed to me to be right I thought must be equally plain to all other rational beings.”
Stanton initially presented divorce as woman’s duty to free herself and her children from an alcoholic husband and domestic violence.
She first wrote of her support for divorce in 1850 in a short article aptly titled “Divorce,” published under the pseudonym “Sun Flower” in the women’s temperance newspaper, the Lily. At this time, a New York legislative committee had proposed a bill to expand divorce beyond the cause of adultery to include desertion, imprisonment, drunkenness, and insanity. Stanton brought this to her readers’ attention and gave it her vote. “I see there is a bill before the Legislature providing some new doors, through which unhappy prisoners may escape from the bonds of an ill assorted marriage. . . . I hope that bill may pass.” She strongly endorsed divorce in the context of intemperance and abuse. “The Legislature, so far from placing any barrier in the way of a woman wishing to leave a drunken husband, ought to pass laws, compelling her to do so.” Divorce, she suggested, would be woman’s duty in such circumstances. Going further, Stanton proposed a broader right to no-fault divorce. “If, as at present, all can freely and thoughtlessly enter into the married state, they should be allowed to come as freely and thoughtfully out again.”
She later then wove divorce reform of no-fault divorce and equal fault divorce into her speeches to the New York legislature and to the public, “speaking wisdom to the popular ear.” But the notorious McFarland v. Richardson trial gave her a national stage on which to play out her critique of marriage and solution of divorce. McFarland, with premeditation, shot his ex-wife’s lover, a famous journalist. The jury acquitted on grounds that McFarland was entitled to defend his property of his home and his wife. Even though his wife had divorced him (out-of-state). And even though he had committed domestic violence against her.
Stanton then repeated her shocking demand for free and easy divorce a year later in the context of the Laura Fair trial in San Francisco. Fair was sentenced to death for shooting her longtime lover when he returned to his wife. Stanton argued the disparate inequalities in the law that would starkly excuse the murder by a husband, but condemn the same murder by a woman.
The Supreme Court affirmed the Fifth District Court of Appeals decision allowing a $3.6 million juryverdict in favor of Jessica Simpkins to be reduced to $500,000 when the trial court applied limits on “noneconomic damages,” which the Ohio General Assembly enacted as part of a 2005 “tort reform” law.
Simpkins and her father sued their church and former church leaders claiming that in March 2008 Brian Williams, the senior pastor of Sunbury Grace Brethren Church, forced oral and vaginal intercourse with Simpkins who was 15 years old at the time. Williams was convicted of two counts of sexual battery and sentenced to two four-year prison terms.
Simpkins argued the caps in R.C. 2315.18(B)(2) for noneconomic loss, which include “pain and suffering,” “loss of consortium,” “loss of companionship,” “disfigurement,” and ”mental anguish” are unconstitutional when it comes to minors because they suffer far more long-term consequences from the emotional damages of a sexual assault than they would from any “economic” damages. Writing the Court’s lead opinion, Justice Judith L. French wrote there may be a set of circumstances where the statutorydamages caps would prove unconstitutional, but the law “as applied to the facts before us” is constitutional.
In separate dissenting opinions, Justices Paul E. Pfeifer and William M. O’Neill argued that the General Assembly’s caps on jury awards are unconstitutional and can only be imposed by an amendment to the Ohio Constitution.
The Intimate State: Gender, Sexuality, and Governance in Modern U.S. HistoryCall for Proposals: Due April 10, 2017Editors: Margot Canaday, Nancy Cott, & Robert SelfWe are soliciting original history essays—archive-based research on specific topics, as well as conceptual essays addressing more abstract questions—regarding gender, sexuality and the state for a new edited volume. We seek to bring twenty-five years of scholarship on gender, sexuality, and the family to bear on the history of modern state authority in the United States (1865 to the present). While the volume will reach back to the Reconstruction era and value this history as such, we also hope to point toward a usable past in an uncertain present.The historical study of state power (its accumulation at various scales, its structures,and its modes of operation) is a longstanding field while that of gender, sex, and sexuality is relatively young though very vibrant. For the most part, these two fields have produced their profoundest insights and advancements without substantial dialogue with one another. Yet contemporary developments and recent scholarship have made it plain that government action at the local, state and federal levels is entwined with incentives, obligations and punishments related to gender and sexuality, and that decisions imagined as personal and intimate choices are almost always already structured by state rules.These collected essays will aim to demonstrate that the involvements of government authority in intimate life warrant greater historical analysis and theorization than they have generated to date. We envision a volume that encourages scholars whose primary intellectual commitment is to the history of gender and sexuality to leverage that scholarship in the service of new understandings of modern state power (whether at local, state, regional, national, or transnational scales) and that scholars of state authority will also be persuaded to attend more to the insights of gender and sexuality studies in their scholarship. How might the history of American state development—its periodization, its overall theorization—look different at every governmental level from the local to the federal when questions of gender and sexuality move to the center of the analytical frame? The volume invites intersectional approaches to that question, foregrounding the relationship of gender, sexuality, and state power to race, class, and other categories of analysis and experience, and also welcomes contributions that are transnational or comparative in their approach.Possible topics might include gender/sexuality and:--borders of the nation/immigration
--racism, racial violence
--penal power and incarceration
--militarization and war
--national securityAs well as state power/regulation and:--forms of marriage, nonmarriage, marital dissolution
--commercialized sex/sex work
--sexual science, eugenics
--reproduction, contraception, abortion
--transgender lives and experiencesPlease send an abstract of no more than 750 words, including references to major sources for the research if archive-based, to Margot Canaday (firstname.lastname@example.org), Nancy Cott (email@example.com), and Robert Self (firstname.lastname@example.org) by April 10, 2017, along with a one-page CV. Authors will be notified by June 1, 2017, of their selection to participate in a conference to be held at Brown University in January of 2018. Essays (of no more than 10,000 words) to be circulated for the conference will be due December 15, 2017.
Thursday, December 8, 2016
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform and Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage.
Sticking with Chapter 2, here is an excerpt I have been reading at book talks:
Stanton’s second goal was to offer a solution that would transform marriage into a relation respecting women’s equal individuality. Her proposal was to conceptualize marriage legally as a contract, rather than a sacrament or status, which would allow freedom to designate the terms and the termination of the marriage.[i] Socially, she advocated an egalitarian vision of marriage as a union of soul mates that fully respected the freedom of each individual as they worked together as partners in the joint enterprise of the family. This transformational vision of marriage required little state regulation, permitting free divorce and other restrictions on choice of marital partner. 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.”[ii]
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.[iii] 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.”[iv] 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.[v] But this time, she backed down.
Despite the suggestion that marriage was not a proper issue of women’s rights, for Stanton, it was central to her vision of equality. Changing the marriage relation, she wrote early in the movement, “is at the foundation of all reforms.”[vi]
[i] ECS, “Side Issues,” Rev., Oct. 6, 1870; ECS, “The Kernel of the Question,” Rev., Nov. 4, 1869.
[ii] DuBois, “On Labor,” 65.
[iii] ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love across Color Lines (New York: Hill and Wang, 1999).
[iv] SBA to ECS, Jan. 27, 1884; Newman, 4.
[v] ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.
[vi] ECS to SBA, Mar. 1, .
The new podcasts on Women in the Law have been released.
From their summary:
Over six weeks, this podcast mini-series will advance the conversation on the many challenges, both professional and personal, that women continue to face as members of the legal profession. Through first-person narratives, thoughtful conversations, and synthesis of economic and social science research, this show will add to the myriad of work fighting against decades of systemic problems.
We hope to empower both women and men to recognize and constructively address a wide range of workplace issues that negatively impact women, the organizations and firms they work for, the clients they represent, and the society we all live in.
The New York Times had a recent article on the leaky pipeline research highlighted in the podcasts: More Law Degrees for Women, but Fewer Good Jobs
Tuesday, December 6, 2016
Stanton, Feminism & the Family: “The whole question of women’s rights turns on the pivot of the marriage relation.”
I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform.
Today, is chapter 2.
Chapter 2, “The Pivot of the Marriage Relation” addresses Stanton’s key philosophical premise that equality in marriage was as important as equality in public, church, and state.
I do not know that the world is quite willing or ready to discuss the question of marriage. . . . It is in vain to look for the elevation of woman, so long as she is degraded in marriage. . . . The right idea of marriage is at the foundation of all reforms. . . . I feel this whole question of woman’s rights turns on the pivot of the marriage relation, and sooner or later it will be the question for discussion.
—Elizabeth Cady Stanton to Susan B. Anthony, Mar. 1, 
Marriage needed “pivot,” to do an about-face from the slave-like subordinated status of married women under coverture to an autonomous, individual partner of a marital partnership. For this first feminist, family was not opposed to women’s rights, but was a key site of needed change. The public and private spheres were not segregated as feminist theory first developed.
Stanton’s critiques and theories of marriage were colored by her own disappointing personal experience in marriage. She had dreamed, and often espoused, the idea of a close companion, a soulmate, with whom a woman shared family, work, and intimacy. Instead, she was married to abolitionist and some-time lawyer Henry Stanton who was fully absorbed in his own (unrealized) political ambition. Henry spent most of their married life living elsewhere, working on a political campaign or issue in another city or state, while Elizabeth raised their seven children. The two finally set up separately households in their fifties, visiting and remaining cordial for family events.
Philosophically, Stanton’s first objective was to establish that marriage was a problem. She made her point sometimes symbolically, using metaphors like slavery which her audience understood, and lamenting the wife’s duty to obey and take her husband’s name, “Mrs. Henry Stanton.”
Stanton’s radical “Man Marriage” critique presented in speeches and newspaper editorials conveyed this idea of the oppressive nature of marriage on a more sophisticated level. Like modern feminist legal theorists, she deconstructed the seeming objectivity of the law to show how the laws of marriage were made “by and for the benefit of men.” She applied this critique to the controversy over Mormon polygamy, subversively suggesting that polygamy was no worse than monogamy for women.
Stanton’s second objective was to offer a corrective solution to the problem of marriage. Her reconstructive ideal conceptualized marriage as a contract. Marriage as a contract, rather than a status, changed everything legally for Stanton. It supported the notion of a legal partnership of equals, free modification of termination of that contract by divorce, as well as state laws of higher age for marriage and abolition of common law marriage.
Friday, December 2, 2016
This is part of a continuing series blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Today, is chapter 1.
“What do you women want?” That was the question Elizabeth Cady Stanton was asked by the New York legislature in 1854. She responded with a long-list of demands for marital property, child custody, domestic violence protections, women on juries, tax exemptions for widows, and wholescale elimination of coverture.
These many goals were laid out by Stanton in her Declaration of Sentiments delivered at the Woman’s Rights Convention at Seneca Falls, New York in July 1848. (Now the site of the Women's Rights National Historical Park). The Declaration was Stanton’s road map for reform, in that she articulated 17 demands for reform of state, law, church, and the family in order to accomplish women’s full equality of opportunity.
Stanton began her fifty-years of legal and political advocacy for women’s rights on the issue of marital property. This was her starting point, and so it is the starting point for the book. In 1848, the NY legislature was considering reforms to the property laws that prevented married women from owning property, either separate, earned, inherited, or marital. It was supported by some expressed feminist concerns, but more by business concerns with recession, transferability of property, and family debt protection. But the issue was at the front and center, with Married Women’s Property Acts beginning to be passed across the nation, and grassroots advocacy happening in Stanton’s close circle.
Stanton also started with the issue of marital property as it was the one that involved her personally. Her father, Daniel Cady, was a respected property and equity lawyer, legislator, and jurist. He was in the inner group of those considering legal reform, reformers who interacted with Stanton. Stanton also learned the law from her father, in what I call a “de facto apprenticeship,” observing his clients and trials, reading law with his apprentices, and serving one year as his clerk. This legal training and ability to “think like a lawyer” would serve her well. But her own attempts to own and earn separate property, to make up for her under-employed husband, ran smack into the limitations of coverture.
After introducing Stanton’s personal training and experience with the law of marital property, this chapter traces her philosophies, speeches, and proposals for legal reform. These included marital property laws that envisioned joint ownership of martial property – an idea that was not on the table in the Married Women’s Property Acts that merely allowed a woman to retain separate ownership of premarital or separately inherited (and later earned) property. She also advanced ideas of “taxation without representation,” challenging the taxation of widows’ property without the corresponding right of a property owner to vote.
The chapter also explores Stanton’s attempt to capitalize on the newly-enacted Privileges & Immunities Clause of the Fourteenth Amendment, which Stanton though was self-evidently empowering for sex equality. The Supreme Court, however, quickly squashed the expected interpretation of the clause to apply to voting or a generalized sex equality. Had Stanton’s view prevailed, much on women’s legal equality would have been different.
Here is an excerpt: Download ExcerptStantonChap1
Tuesday, November 29, 2016
I'm excited to report that my new book is out today, after 12 years (!) in the making. I will be blogging and tweeting about it this week to provide a preview of the different chapters.
The book has several goals. First, it reveals new information about the legal advocacy of Stanton, the leading feminist of the nineteenth-century women's rights movement, for reform of the family and gender equality. We generally think of advances in sex equality in marriage and the family coming in the 1970s. This book shows that such reform was a major platform of Stanton's holistic feminist philosophy 120 years earlier, and that the private sphere was not divorced from the public sphere in her original feminist theorizing. The second goal of the book is to integrate women's experience and public advocacy into the mainstream thought of family law. Family law has been conceptualized as one type of narrative focused much on contract and property, oblivious to the very public advocacy of Stanton and others for rejecting the coverture laws subordinating women and demanding equality of law in marital property, marriage partnership, no-fault divorce, maternal custody, and domestic violence remedies.
The introduction is available here. This first part introduces Stanton to unfamiliar audiences (though she needed no introduction in her day -- I call her the "Oprah of the 19c"), outlines the framework for the book and the history of family law, and discusses a bit of the theoretical approach and what it means to engage in applied legal history.
Table of Contents
Introduction: The “Radical Conscience” of Nineteenth-Century Feminism
1. “What Do You Women Want?” [on marital property and privileges & immunities]
2. “The Pivot of the Marriage Relation” [on marital partnership]
3. “Divorce Is Not the Foe of Marriage” [on domestic violence and divorce]
4. The “Incidental Relation” of Mother [on reproductive rights]
5. Raising “Our Girls” [on maternal custody, parenting, and The Woman's Bible]
Conclusion: “Still Many Obstacles” [on Stanton's legacy in 21st century family law]
Tuesday, November 22, 2016
Bridget Crawford & Carla Spivack, Tampon Taxes, Equal Protection and Human Rights, Wisconsin L. Rev. (forthcoming):
Abstract:In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the so-called “tampon tax,” an umbrella term to describe sales, VAT and similar “luxury” taxes imposed on menstrual hygiene products. In response to pressure from constituents, five U.S. states and Canada have repealed their tampon tax. Active campaigns are underway in Australia, the United Kingdom and several other countries. Where public pressure has not been an effective technique, those seeking to challenge the tampon tax in the United States have turned to litigation. In four U.S. states, class action lawsuits have been filed seeking repeal of the tax and a refund for back taxes paid, alleging equal protection violations. In the international context, human rights law provides a promising foundation for similar legal challenges to the tampon tax because human rights law takes a capacious approach to gender equality. In the European Court of Human Rights, for example, there are several tax cases that recognize gender-differentiated taxes as a form of impermissible discrimination. This Article explains how the tampon tax violates equal protection and human rights norms. The tax also shows how deeply embedded gender is in matters of tax policy. Full realization of gender equality will require revision of tax laws.
Girls and women use tampons and sanitary napkins for multiple days every month for at least 30 years because of their biology. At first glance, the tampon tax might appear to be the result of a misclassification of menstrual hygiene products as luxuries, while items like Rogaine and condoms, for example, generally avoid taxation. But these comparisons are inapt, as it is difficult to find a precise male analog to the menstrual hygiene products that women use. Nor is it adequate to explain the existence of the tampon tax as the product of women’s historic absence from the legislature. This explanation is both simplistic and incomplete. Women’s bodies in general and menstruation in particular have been and continue to be the source of great cultural (and legal) unease. Women’s (involuntary) bleeding is meant to happen “out of sight, out of mind,” whereas men’s (voluntary) bleeding in war is meant to be celebrated.
Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L.Rev. 919 (2016)
This Article argues that theoretical and doctrinal advances in sex stereotyping cases have broad application, with the potential to reinvigorate employment discrimination litigation under Title VII as a whole. The Article suggests that precedent from pioneering sex discrimination cases can and should be applied to cases alleging discrimination on other bases, including race and national origin. It proposes a more coherent, unified approach to antidiscrimination law that capitalizes on recent courts’ recognition of the operation of sex stereotypes at work. In an era in which the advancement of equality has stalled in both the workplace and the Supreme Court, a unified approach to Title VII litigation framed around stereotype theory offers an important path forward for antidiscrimination law.
Wednesday, November 16, 2016
As part of the AHRC-funded project ‘Women Negotiating the Boundaries of Justice’, and in conjunction with Swansea University’s annual ‘Symposium by the Sea’, we are pleased to announce a two-day symposium on the female litigant in the medieval and early modern period (c.1100-c.1750). The intention is to bring scholars together in order to explore women’s access to legal redress and to shed new light on individuals’ lived experiences of the law. We are seeking 25-minute papers from researchers (of all career-stages) working on any aspect of the history of women litigating in the courts across the known world during this broad timeframe. We welcome work on all courts, regions, jurisdictions, ethnicities, languages and religious and confessional identities, and on any aspect of those histories or historiographies. Post-graduate students are encouraged to apply.
Topics and approaches might include:
- The operation of gender in the courts.
- The practicalities of litigation: travel, subsistence, accommodation, planning and expense.
- The impact of a woman’s life-stage, status or ethnicity on her experience at law.
- The woman’s voice and barriers to its ‘audibility’.
- Visual or textual representation of the female litigant.
- Specific case-studies and longue durée perspectives.
- Historiography and ‘where do we go from here?’.
Applicants are invited to submit by 21 January 2017 a proposal of c.500 words, together with a short biography for inclusion in the programme.
Michele Gilman, En-Gendering Economic Inequality, 32 Columbia J. Gender & Law 1 (2016)
Abstract:We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither inevitable nor intractable. Given that the government creates the rules of the market, it is essential to analyze the government’s role in perpetuating economic inequality.
This Article specifically examines the role of the Supreme Court in contributing to gender based economic inequality. The thesis is that the Supreme Court applies oversimplified economic assumptions about the market in its decision-making, thereby perpetuating economic inequality on the basis of gender. Applying insights of feminist economic theory, the Article analyzes recent Supreme Court jurisprudence about women workers, including Wal-Mart v. Dukes (denying class certification to female employees who were paid and promoted less than men), Burwell v. Hobby Lobby Stores, Inc. (granting business owners the right to deny contraception coverage to female employees on religious grounds), and Harris v. Quinn (limiting the ability of home health care workers to unionize and thereby improve their working conditions). In these cases, the Court elevates its narrow view of efficiency over more comprehensive understandings, devalues care work, upholds harmful power imbalances, and ignores the intersectional reality of the lives of low-wage women workers. The Article concludes that the Court is eroding collective efforts by women to improve their working conditions and economic standing. It suggests advocacy strategies for reforming law to obtain economic justice for women and their families.
Friday, November 11, 2016
On Veterans' Day, exploring some of the gendered effects of veterans' obligations and benefits:
Personnel Administration v. Feeney, 442 U.S. 256 (1979) (veterans' preferences in employment)
US v. Virginia, 518 U.S. 515 (1996) (women's enrollment at military institute)
Paula Monopoli, The Market Myth and Pay Disparity in Legal Academia, 52 Idaha L.Rev. (2016)
Abstract:The wage gap in academia — even when controlling for rank — has been clearly documented. This article focuses on the affirmative defenses to the Equal Pay Act that play a central role in perpetuating this pay gap in legal academia. These include exceptions for prior salary, competing offers, and negotiation. These affirmative defenses fall under the rubric of “market excuses” and their existence eviscerates the very law that was meant to make the practice of paying men and women differently illegal. The article describes case law that interprets these affirmative defenses and applies the analysis in those cases to two recent, high-profile cases in the legal academic workplace. It will describe the current state of play in legal academia in terms of compensation decisions, the disparate impact that these practices have on women faculty and possible solutions, including the Paycheck Fairness Act.
Wednesday, November 9, 2016
SCOTUS Hears Equal Protection Challenge to Different Citizenship Requirements for Child Born to Unwed Fathers v. Unwed Mothers
The case set for oral argument today is Lynch v. Morales-Santana
Whether sections 301 and 309 of the Immigration and Nationality Act of 1952 violate the Fifth Amendment’s guarantee of equal protection by requiring unwed citizen fathers to satisfy substantially more burdensome physical presence requirements than unwed citizen mothers in order to transmit derivative citizenship to their foreign-born children.
Whether the court of appeals properly remedied the equal protection violation by extending to unwed citizen fathers of foreign-born children the same rights available to similarly situated unwed citizen mothers.
Here is the Second Circuit's opinion below, finding an Equal Protection violation.
Tuesday, November 8, 2016
Many women tried to invade the polling place earlier. Among them was Elizabeth Cady Stanton, who sought to vote on a brilliant autumn day in November 1880. The great suffrage leader was sitting at her desk that morning preparing another essay on women’s exclusion from government.
Just then a “wagon and horses all decked with flags and evergreens” drew up to her Tenafly, N.J., home. The driver was in search of (male) Republican voters. All six men in Stanton’s household were away so Stanton decided that she would go instead. At the polling place, her driver explained that Stanton was there “to vote a clean Republican ticket.”
With that, the mood among election inspectors swiftly changed. One told Stanton firmly that voting was a male privilege. Stanton replied: “I am here as a United States citizen to vote for United States officers. It is not the duty of a town inspector to decide on my liberties.” When “no outstretched hand was ready to receive” her ballot, she left it on the ballot box whose opening was covered by a heavy Bible. “I leave my ballot here,” she told the election officials in departing. “With you rests the responsibility of refusing to count it.”
h/t Jane Moriarty
Ann Gordon, The Trial of Susan B. Anthony, Federal Judicial Center (2005)
United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”
Primarily a case about woman suffrage and sexual discrimination, United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.
Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote.
(Cartoon mocking SBA for wanting to vote)
Remarks by Susan B. Anthony in the Circuit Court of the Northern District of New York, June 19, 1873
As a matter of outward form the defendant was asked if she had anything to say why the sentence of the court should not be pronounced upon her.
"Yes, your honor," replied Miss Anthony, "I have many things to say. My every right, constitutional, civil, political and judicial has been tramped upon. I have not only had no jury of my peers, but I have had no jury at all."
Court—"Sit down Miss Anthony. I cannot allow you to argue the question."
Miss Anthony—"I shall not sit down. I will not lose my only chance to speak."
Court—"You have been tried, Miss Anthony, by the forms of law, and my decision has been rendered by law."
Miss Anthony—"Yes, but laws made by men, under a government of men, interpreted by men and for the benefit of men. The only chance women have for justice in this country is to violate the law, as I have done, and as I shall continue to do," and she struck her hand heavily on the table in emphasis of what she said. "Does your honor suppose that we obeyed the infamous fugitive slave law which forbade to give a cup of cold water to a slave fleeing from his master? I tell you we did not obey it; we fed him and clothed him, and sent him on his way to Canada. So shall we trample all unjust laws under foot. I do not ask the clemency of the court. I came into it to get justice, having failed in this, I demand the full rigors of the law."
See also Doug Linder, Famous American Trials: The Trial of Susan B. Anthony and Trial Record in the Case of Susan B. Anthony
Friday, November 4, 2016
Natalia Mehlman Petrzela, Politicizing and Practicing Motherhood
“I’d like to burn you at the stake,” pioneering feminist Betty Friedan famously spat at conservative activist Phyllis Schlafly during a 1973 debate about the Equal Rights Amendment. Her loathing reflected the recognition of a formidable opponent. Though our largely liberal profession took several decades to recognize Schlafly’s power in shaping political culture, the flurry of insightful reflections from historians in the wake of her recent death affirms Schlafly’s rightful place in the historical record even as her anti-feminist and anti-gay politics position her on what many agree is the wrong side of history.
A hallmark of Schlafly’s public persona was portraying the world as a series of stark opposites. Her feminist straw woman was joyless man-hater; in 1977, she contrasted a conservative, “positive woman” with the “miserable” who embraced the new feminist honorific “Ms.” But if we treat Schlafly exclusively as the conservative complement to this caricature, we miss important dimensions of her function in the history of feminism as more than a reactionary foil. An illuminating way to read Schlafly as a more complex figure is to look beyond her rich public life to explore how she perceived motherhood not just as a political symbol but also as a personal practice.
I’m not the first historian to suggest that Schlafly demands a nuanced approach. For one, the feminism Schlafly railed against ironically enabled her political career. Moreover, that illustrious career was constrained by the same misogyny that thwarted women of all political affiliations, as her unsuccessful attempts in the 1950s to break into the old-boys’ foreign policy network proved. For Schlafly’s homages to homemaking (and her frequent infuriating introductory anecdote that she had asked permission of her husband to speak publicly), she rivaled Friedan in her efforts to mobilize a generation of female political neophytes. She sent detailed handwritten notes to housewives, precisely instructing how to organize around “women’s issues” such as education, abortion, and “the homosexual agenda,” which made “family values” a central plank of contemporary conservatism and launched her into public life. Like her early-twentieth-century progressive foremothers, Schlafly used a form of “maternalism” to access the political arena, though in order to promote rather than challenge traditional gender roles even as her very participation embodied such a challenge.