In March 2015, lawyer Dora Monserrate-Peñagaricano was representing a client in a deposition hearing in the U.S. District Court for Puerto Rico when she complained aloud to a colleague that the room was hot.
Thursday, May 4, 2017
Deborah Brake, Reviving Paycheck Fairness: Why and How the Factor-Other-Than-Sex Defense Matters, 52 Idaho L.Rev. (2016)
Ever since the Supreme Court’s short-lived decision in Ledbetter v. Goodyear Tire Company, the equal pay movement has coalesced around the Paycheck Fairness Act as the legal reform strategy for addressing the gender wage gap. The centerpiece of the Act would tighten the Factor Other Than Sex defense (FOTS) to require the employer’s sex-neutral factor to be bona fide, job-related for the position in question, and consistent with business necessity. Even without the Paycheck Fairness Act, some recent lower court decisions have interpreted the existing Equal Pay Act to set limits on the nondiscriminatory factors that can satisfy the FOTS defense, effectively incorporating a business necessity standard to assess the strength of the employer’s justification for the pay disparity.
This move to heighten judicial scrutiny of the FOTS defense is not without controversy. Some critics of the Paycheck Fairness Act have charged that requiring an employer to use a bona fide, business-justified factor to defend a pay disparity would turn the equal pay claim into a disparate impact claim, leaving it unmoored from its doctrinal and normative foundations. Others question whether the strategy goes far enough to make a difference in plaintiffs’ poor success rates, since it does nothing to relieve the problem of courts requiring strict similarity between comparators, a problem that would remain as a roadblock to proving a prima facie equal pay case. This article surveys recent developments in the Equal Pay Act case law interpreting the FOTS defense and considers how these developments compare to the changes proposed in the Paycheck Fairness Act. It then argues that the Supreme Court’s recent pregnancy discrimination decision in Young v. UPS, which uses unjustified impact to infer discriminatory intent, can help respond to the criticism of the proposed changes to the FOTS. The Court in Young took a similar step in incorporating a business necessity test to smoke out employer intent in a disparate treatment framework. Finally, the article defends judicial scrutiny of the employer’s business justifications for unequal pay as a way to ensure that the equal pay laws move beyond a narrow understanding of pay discrimination as conscious animus to encompass implicit bias. In addition to making the equal pay claim more likely to succeed in litigation, the tightening of the FOTS defense brings to the forefront the core issue in the politics of pay equality: the legitimacy of market explanations for paying women less to do substantially equal work.
Wednesday, May 3, 2017
Extended Deadline: Call for Papers: "1977-2017: The IWY National Women's Conference in Retrospect" Nov. 5-7, 2017, University of Houston
This year marks the 40th Anniversary of the 1977 National Women’s Conference, the domestic answer to the United Nations’ International Women’s Year initiative. The Houston Conference, as it came to be known, was the largest federally mandated gathering of American women in history. On this occasion, 2000 delegates elected from fifty states and six territories and roughly 16,000 observers came together to craft a twenty-six plank National Plan of Action, submitted to President Jimmy Carter in 1978. The conference remains one of the most imaginative and wide-ranging exercises in civic engagement realized in the twentieth century, and we seek to draw attention to the diversity, ingenuity, and determination of participants who dared to dream up concrete policy goals of “what women want.” The recent global response to the Women’s March on Washington suggests just how much the issues debated at the Houston Conference still resonate.
During a three day conference, November 5-7, we aim to take stock of this momentous feat as well as consider the separate concerns articulated at a “pro-family” counter-convention held in Houston simultaneously. A scholarly academic symposium will coincide with a delegate and observer reunion. Commemorative activities will occur simultaneous to academic sessions and begin the prior weekend. In holding two events at once, we seek a cross-pollination of ideas and action, bringing together academics and activists, current and lifetime students and teachers, and those that remember being there alongside those who seek to carry the torch forward.
We would like to take the occasion of the 40th Anniversary of the National Women’s Conference to engage a fresh conversation about U.S. politics and society in the last quarter of the twentieth century. Issues debated at the Houston Conference have dominated American culture since: LGBTQ and racial civil rights; family planning and reproductive health; immigration and civil justice; access to education and childcare; welfare and government spending; poverty and wealth distribution; environmentalism; foreign policy priorities; globalization and a shifting workforce; and gender neutrality and protection in law. Likewise, we seek papers that engage these broad currents. Work that interrogates the conference itself, the context from which it developed, its prominent themes, and its legacy will be considered. Papers need not focus on the conference per se or women’s history in general. Rather, we aim to foster a dialogue about contemporary history and society using this conference—a barometer of its times—as a jumping off point. We seek the participation of scholars who explore institutional politics, social movements, cultural conflicts, global and transnational politics, and economic turmoil.
We welcome individual paper proposals as well as complete or partial session proposals. Format ranges from dynamic roundtable discussions to more traditional sessions with three papers and a chair/commentator. We are especially interested in sessions that mix academic research with the experience of activists. We envision this conference to be a forum for interdisciplinary thinking and encourage broad methodology, perspective, and disciplinary grounding (such as history, political science, public policy, English, economics, sociology, and the arts).
Questions that could be considered by participants include: Why did a policy forum that emerged from bi-partisanship become a caustic ideological battleground? What political, economic, and social changes underway manifested reaction and response at this conference and the coinciding counter-conference? In what ways do the issues considered at the National Women’s Conference still resonate? Is the leading question asked then—what do women want?—still relevant today?
Tentative schedule includes: Luncheon with Keynote Speaker, Dr. Marjorie Spruill, author of Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics.
Traditional paper session and roundtable proposals: Abstracts should include a short session description and title, individual paper titles, one page proposals of approximately 300 words for each paper, and one page CVs for all participants including chair/commentator.
Individual paper proposals: Abstracts should be 300 words, and should be accompanied by a one page CV.
Extended submission deadline: August 10, 2017
Please submit applications as one PDF at: email@example.com
For questions, please consult our website: http://classweb.uh.edu/iwynatlwomensconf/
Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)
In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.
Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray
Niki Megalommati, Women and Family Law in Byzantium: Some Notes
Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage
Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona
Stanley Chojnacki, Wives and Goods in the Venetian Palazzo
Tuesday, May 2, 2017
Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)
The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.
Monday, May 1, 2017
Daily Telegraph, The New Trend For Studying Gender, Apr. 24, 2017 (link not available).
A rise in the discussion about gender has led to a range of new courses, from celebrity-endorsed women studies to the world's first queer history course. Alice Barraclough finds out what they offer.Of course you don't need a master's degree in feminism to understand inequality between the sexes. But a postgraduate degree in gender studies - or indeed in sexuality or queer history - isn't just about understanding that inequality, but the theories behind it and how we can make a difference.Over the past few years, gender studies has become an increasingly popular cross-disciplinary postgraduate course. It taps into subjects ranging from history and law, to literature, politics and even science. While graduates go on to work for NGOs, charities and advocacy groups, the courses are also popular with professionals who already work in both the public and private sectors, and wish to develop a deeper understanding of gendered practice.The University of Oxford offers a MSt in women's studies while Cambridge offers an MPhil in gender studies. You can study for an MSc in gender and international relations at Bristol or an MA in women, violence and conflict at York.Dr Ann Kaloski Naylor, lecturer at the Centre for Women's Studies, University of York, says students choose women's studies because they want to make a difference to the world, "especially (not exclusively) to the position of women, and feel that this is not only necessary but possible; they want to lead useful lives inspired by, and grounded in, scholarly thought".But why, in 2017, are these courses gaining such interest? "There's definitely a renewed interest from young people. This is enhanced by social media, which has popularised feminism, in that when teenagers sense gender inequality and oppression there is somewhere easy to go to find out and to chat to others," says Dr Kaloski Naylor. "It's a 21stcentury version of 'consciousnessraising' groups, where many women (and some men) can discover that their own sense of injustice is shared, and that personal inequalities - for example, not being allowed to play football or netball, or being told to wear certain clothes - stem from much wider understandings of women and men. It's also clear that issues of abuse and violence motivate people of many genders, and our degree programmes and modules that address issues of violence and feminist cultural activism are really popular."Violence against women is increasingly recognised as a global issue. From September, a one-year MSc in women, peace and security will run at the London School of Economics (LSE) - the first of its kind. What's more, actor and director Angelina Jolie will join former foreign secretary William Hague as a "professor in practice". Last month, Ms Jolie led a postgraduate women, peace and security class at LSE as part of the one-term module currently offered to postgraduate degree students. She spoke about her experience in the field and what motivated her work as UN special envoy.
Travis R. Hollifield, Emerging Protections for Nursing Mothers in the Workplace
Working parents unquestionably have numerous, and often competing, priorities to manage. While balancing the needs of their careers with familial obligations, tensions between working parents and their employers can often arise. Regrettably, while both male and female parents can face difficult issues balancing work and childcare duties, certain persistent stereotypes and biases about a woman’s role in the workplace make some challenges unique to them. In the decades since the enactment of Title VII of the Civil Rights Act (Title VII) in 1964 and the Pregnancy Discrimination Act (PDA) in 1978, federal and state legislators have continued to address working women’s unique concerns and struggles in an attempt to achieve some semblance of equality of treatment in the labor force. Courts, in turn, have sought to apply the fruits of these legislative endeavors to factual circumstances that can present unique and vexing legal issues. This article focuses on one such issue, that of the emerging protections for nursing mothers in the workplace.
In recent years, courts have adjudicated claims involving allegations of discriminatory treatment based on the needs of new mothers who are lactating and need to express breast milk for their children during working hours. Three watershed moments in the development of legal protections for working and lactating mothers occurred in 2013 and 2015 respectively. First, in 2013, the Fifth Circuit Court of Appeals became the first federal appellate court to explicitly hold that lactation discrimination constitutes pregnancy and sex discrimination in violation of Title VII and the PDA. Second, in 2015, the U.S. Supreme Court recognized that working women who are pregnant or have pregnancy-related medical conditions may pursue a “failure to accommodate” theory against their employers under Title VII. Finally, and also occurring in 2015, the Equal Employment Opportunity Commission (EEOC) formally adopted the policy position that lactation is protected by Title VII/PDA. These seminal events addressing lactation discrimination evolved as follows.
The Fifth Circuit’s Lactation Discrimination Holding
In EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013)
The Duty to Accommodate Pregnant Workers
In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015)
EEOC Declares Lactation is Protected by Title VII/PDA
FLSA Mandates Break Time and Facilities for Lactating Employees
Florida’s Civil Rights Act’s Added Layer of Protection
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled Thursday that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy, the San Francisco Chronicle reports.
In the ruling in Rizo v. Yovino (PDF), the 9th Circuit cited and upheld its earlier ruling in a similar case in 1982. In that matter, Kouba v. Allstate Insurance Co., the appeals court said that an employee’s prior salary can be considered “a factor other than sex” under the federal Equal Pay Act if the employer can show that doing so “effectuate[s] some business policy” and is done “reasonably in light of [its] state purpose as well as its other practices.”
In that case and in the current one, the appeals court remanded the matter for the trial court to evaluate the business reasons put forth by the Fresno County school system in setting the salaries.
The case was brought by Aileen Rizo, who was hired by Fresno County schools in 2009 as a math consultant, a management position. She had previously worked as a schoolteacher in Arizona for 13 years and in Fresno County got a starting salary of $62,733, almost $10,000 more than at her last job, but at the bottom of the scale in her new one.
In 2012, Rizo learned in lunchtime conversation with colleagues that a man who had just been hired in the same position as hers was getting approximately $79,000 a year, and subsequently learned that others in the job, all men, made more than she did. She sued. ***
One prominent critic says the decision feeds rather than stems pay discrimination against women.
“This decision is a step in the wrong direction if we’re trying to really ensure that women have work opportunities of equal pay,” Deborah Rhode, who teaches gender equity at Stanford Law School, told the Associated Press. “You can’t allow prior discriminatory salary setting to justify future ones, or you perpetuate the discrimination.”
Daniel Siegel, Rizo’s lawyer, told the Associated Press that the case could reach the U.S. Supreme Court because other appeals courts have decided differently on the issue.
The decision is completely tone deaf as to understanding systemic and structural discrimination.
For the recent legislative trend to enact laws to specifically prohibit the use of salary histories, see:
Friday, April 28, 2017
The model rule, passed by the House of Delegates at the 2016 Annual Meeting, makes it a violation of professional responsibility to discriminate or harass on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. The rule was controversial both within and outside the ABA, although the Standing Committee on Ethics and Professional Responsibility worked to address concerns raised by other ABA sections.
Those changes may not have been enough for the Montana legislature, whose Joint Resolution No. 15 says the model rule infringes on the First Amendment rights of people licensed to practice law in Montana, and “seeks to destroy the bedrock foundations and traditions of American independent thought, speech, and action.”
The resolution is also critical of the Montana Supreme Court, which invited public comment on the model rule in October. The resolution says public comment was overwhelmingly opposed, but the court “relentlessly pursues adoption” of the rule by extending the time to consider it. This, the legislature said, overreaches the high court’s authority to regulate the conduct of attorneys—it says “the word ‘conduct’ clearly does not include the concept of ‘speech’”—and usurps the legislature’s power to make laws.
“Contrary to the ABA’s world view, there is no need in a free civil society, such as exists in Montana, for the cultural shift forced by the proposed rule, and even if such a need did exist, the Supreme Court has no constitutional power to enact legislation of any sort, particularly legislation forcing cultural shift,” the resolution says.
The resolution is at least the second statement of opposition to Model Rule 8.4(g) from a state government. In December, Texas Attorney General Ken Paxton issued an opinion saying the rule violates attorneys’ right to free speech and would not hold up in court. That opinion was submitted to the Montana Supreme Court for consideration.
The model rule has also been criticized by First Amendment scholar and UCLA law professor Eugene Volokh. He reiterated Wednesday at the Volokh Conspiracy that he believes the rule is so broad that it captures protected political speech, and that harassment and discrimination is better dealt with through employment law.
Kara Swanson, Rubbing Elbows and Blowing Smoke: Gender, Class, and Science in the 19th Century Patent Office, 108 J. History of Science 1 (2017)
The United States Patent Office of the 1850s offers a rare opportunity to analyze the early gendering of science. In its crowded rooms, would-be scientists shared a workplace with women earning equal pay for equal work. Scientific men worked as patent examiners, claiming this new occupation as scientific in opposition to those seeking to separate science and technology. At the same time, in an unprecedented and ultimately unsuccessful experiment, female clerks were hired to work alongside male clerks. This article examines the controversies surrounding these workers through the lens of manners and deportment. In the unique context of a workplace combining scientific men and working ladies, office behavior revealed the deep assumption that the emerging American scientist was male and middle class.
Task Forces and Best Practices Rather than Litigation to Achieve Gender Equity for University Faculty
This article focuses on the search for gender equity among women faculty in the university setting in the United States. The author advocates for the use of university task forces and the institutionalization of best practices for achieving gender equity as means to remove the persistent barriers to professional advancement experienced by many women faculty. Discriminatory treatment of faculty based on gender may be hidden and remain unacknowledged in some universities, so the process of uncovering such treatment and formulating recommendations for change is an important first step in the process of creating a work environment that is both fair and inviting to women. Many universities have achieved positive outcomes for faculty using this approach, which has the potential to benefit a wider group of women faculty in a more targeted fashion than a strategy that relies on the use of litigation and government agency proceedings. This article documents the disparities in employment status experienced by women faculty in U.S. universities compared to their male counterparts through the use of statistically based gender equity indicators, explores explanations for the existence of such inequities and proposes reasons for their elimination, develops a model framework for the structure and process to be used by a successful gender equity task force, and identifies best practices that have the greatest potential to advance the status of women university faculty. The author draws upon case studies of successful task forces at several U.S. universities, the work of professional organizations representing university faculty and administrators, and the academic literature on the employment status of women faculty in the United States.
This piece contributes to the literature on employment discrimination based on gender in the United States in a novel way by approaching the topic from the perspective of mechanisms for institutional change rather than from a litigation perspective.
Thursday, April 27, 2017
Judge Elinore Marsh Stormer, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Judge Stormer gave these remarks as part of a panel discussion on feminist judging at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. She offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.
I’m going to give you a brief history of my life, because I’m so old that I’ve experienced many of the things that you read about in articles that you have before you. When I went to law school in 1979, I had just taken a gap year, which did not involve me going to school. I was a waitress at the Brown Derby. I was just sick of school and that was very educational. It actually formed a lot of the things that have happened to me since then. I was a union worker. I was sexually harassed by my boss, who didn’t feel that I could say or do anything about that, but found that I could get more tips if I was flirtatious. I’d lived this kind of intellectual life before that, and it really was very helpful to me as I went forward with the rest of my life.
I came to law school where twenty percent of my class was women, so obviously everyone else was a man. We had gotten past the question of whether or not women being in law school worked with taking a man’s job, which is what Ruth Bader Ginsburg and Sandra Day O’Connor encountered. We were there, but to some extent there was still reluctance to perceive us as equals. We had very few women law professors, as a matter of fact, I can only remember one, but there may have been more than that. She taught contracts.
When I would go on job interviews, I interviewed with a number of firms in Cleveland, and at that time it was perfectly permissible for them to ask you questions like “do you expect to get married,” “how many children do you think you want,” and sometimes they would couch these questions in terms of “where do you see yourself in ten years” and my standard answer was “well as a partner in your firm, of course” and they would sit back and look kind of grim.
Carrie Menkel-Meadow, Feminist Legal Academics: Changing the Epistemology of American Law Through Conflicts, in Gender and Careers in the Legal Academy (Ulrike Schultz, ed. Hart Publishing-Onati Series, forthcoming)
In this Chapter I will describe the inter-generational contributions of the first few decades of women law professors who have created a contested “canon” of new understandings of legal concepts in American jurisprudence and legal practice. I describe here the way in which several generations of women law professors (some working with legal practitioners) have forged new legal ideas or “memes” (cultural units of understandings), and legal causes of action that have reframed not only “women’s issues” (reproductive rights, employment and labor rights, family law, violence, rape and criminal law, as well as constitutional jurisprudence and different conceptions of “equality”), but have also contributed new conceptions or interpretations of mainstream legal concepts (e.g. in contracts, property, and torts etc.).
Those of us who have written about these developments over the years all acknowledge the inter-generational differences in meanings attributed to our goals as participants in the making of new legal epistemology—the interpretation of law and doctrine, the creation of new concepts, causes of actions, or legal “memes,” the creation of new courses and methods for learning law, whether and how our new epistemology should be integrated (or more controversially “assimilated”) into mainstream American law doctrine and education, how we have or have not influenced the legal academy and legal thought generally, as well as legal practice and law reform measures, and what lessons we offer for future generations of “outsiders” who are increasingly populating our profession with more diverse bodies and ideas.
Tuesday, April 25, 2017
In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.
Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”
Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***
Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.
Monday, April 24, 2017
Deborah Jones Merritt, Ruth Colker, Ellen Deason, Monte Smith & Abigail Shoben, Formative Assessments: A Law School Case Study, Univ. Detroit Mercy L. Rev. (forthcoming)
Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.
Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.
In addition to exploring these relationships between formative assessment and academic achievement, we discuss several race and gender effects that emerged in our analyses. Women, for example, were significantly more likely than men to complete the formative assessment. Women also received significantly higher grades than men in a spring-semester course on Legal Analysis and Writing; men, conversely, received significantly higher grades than women in a Legislation course. A race effect, meanwhile, emerged for students with LSAT scores at or above the school median: Among those students, nonwhite students who completed the formative assessment achieved significantly higher grades in Constitutional Law than white students who submitted the same exercise.
All of these relationships deserve further empirical study. In particular, our results suggest the importance of examining the transfer effects of formative feedback, gender differences in law school learning, and paths for improving the academic experience of minority students.
Griffin Ferry, Oppression Through “Protection”: A Survey of Femininity in Foundational International Humanitarian Law Texts, 35 Law & Inequality: A Journal of Theory and Practice 57 (2017).
War is often assumed to be a space devoid of a regulatory framing—characterized as inherently contrary to and separate from the input of social and ethical values expressed in laws—but international humanitarian law (IHL) contradicts this mistaken assumption. A field as fluid as the conflicts it addresses, IHL has developed into a highly-regimented, value-driven framework that increasingly affects and constrains state behavior. Regulatory codifications of IHL are necessarily backwards-looking, arising in response to technological, political, and social developments that continuously change the nature of armed conflict. Despite this continual evolution, the oppression of women has been thematically constant over sixteen centuries of IHL evolution, an unfortunately consistent value that has far-reaching impacts for the field.
The foundational doctrines of IHL evidence the marginalization of women in various ways. Notably, the doctrines repeatedly use essentialized conceptualizations of women as weak, infantile persons requiring protection from physical violence above all else to justify oppressive codifications. Ostensibly progressive IHL codifications rest on theoretical underpinnings that modernize historic inequality and perpetuate IHL’s androcentric condition.
This Article unearths and analyzes the patriarchal roots of IHL and its essentialized conceptualizations of women with a gender-focused examination of the Summa Theologica, the Lieber Code, the Hague Conventions, and the Geneva Conventions. These foundational IHL texts contain recurring themes that marginalize, sexualize, and infantilize women under the guise of protection. The texts are fora in which the objectification and marginalization of women in conflict are surreptitiously endorsed and legitimized. Understanding the history and forms of female oppression is a critical first step toward ensuring the future of IHL does not perpetuate the shortcomings of the past.
Tuesday, April 18, 2017
Jane Murphy & Solangel Maldonado, Reproducing Gender and Race Inequality in the Blawgosphere, in The Fate of Legal Scholarship (forthcoming Cambridge Press)
Abstract: The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this emerging form of scholarship. Finally, we offer suggestions for reversing these trends and creating a more inclusive blogosphere and enriching its potential for lively, informed scholarship.
III. Gender and Legal Blogging: Why Don’t More Women Promote Their Scholarship Through Blogging?
Given all these benefits [of blogging], you would expect to see a broad and diverse range of law faculty bloggers, including a high percentage of women blogging on these oft cited, highly visible legal blogs. The opposite is true. While women are more active participants than men in social media generally and on some legal blogs, they are underrepresented in these highly rated law-related academic blogs.
The relative lack of female voices in the upper echelons of the legal blogosphere may be traced to gender patterns in traditional legal scholarship. A variety of studies have documented the gender disparity in law review publication.
Commentators have suggested a number of possible explanations for women’s underrepresentation in scholarship. They include the fact that women, overall, have been teaching in law schools for fewer years than men, they appear in fewer numbers in highly ranked schools, and they tend to be under represented in subjects like Constitutional Law that appear more frequently in prestigious law journals. And just as in traditional scholarship, it appears that the subjects most often discussed in the blogs viewed as most scholarly---Constitutional Law, Civil Procedure, Criminal Law—are subjects taught more often by men. While there are blogs focusing on Family Law, Trusts and Estates, and Feminist Jurisprudence and other areas where female scholars blog in greater numbers, these blogs do not have the visibility of the highly rated blogs.
Women faculty also tend to have less time for scholarship given that they devote more time to serving law schools in committee work and student contact. And women, including law school faculty, still take on greater share of family responsibilities than their male counterparts
While the ease of blogging may offer new opportunities for female scholars, at least one commentator has concluded that “[T]he online world of legal scholarship may ultimately replicate many of the hierarchical and gendered structures found in the offline world of legal scholarship.” The reasons for this prediction echo those that have contributed to women’s inability to keep pace with men in the world of traditional scholarship. It begins with having the time to blog. Even with the shorter, more informal style of blogging, being a regular contributor to a blog takes time.
A more speculative and less quantifiable reason for women’s lagging behind in both traditional scholarship and blogging is what has become known as the “confidence gap” between men and women. This term refers to the research findings that conclude a “vast confidence gap that separates the sexes. Compared with men, women don’t consider themselves as ready for promotions, they predict they’ll do worse on tests, and they generally underestimate their abilities.”
When women do assert themselves and express strong points of view, they expose themselves to negative, gender-based comments. This may also account for female scholars’ reluctance to blog. An increasingly well-documented body of research indicates that women face a disproportionate amount of gender-based online or “cyber harassment” in social media.
Recommendations from the authors for change:
- First, we should all be alert to the racial and gender disparities and explore ways to address them. For example, bloggers on general interest blawgs can blog about these disparities and explain why we should all be concerned when the perspectives of women and minorities are absent.
- Second, bloggers should look beyond their informal networks when inviting faculty to blog and when selecting books to review for online symposia.
- Third, law schools should recognize the contributions that bloggers make and support faculty who wish to blog by counting it as scholarship or service.
I remember when this issue first came to my attention years ago. A student in my Family Law class wrote his thesis paper on the topic. I couldn't believe this was the state of the law and asked him to check and recheck his research on the laws and cases. He just kept finding more evidence.
It seemed implausible to me that this was the state of the law given that biological fathers have a difficult time normally getting custodial rights when their only crime is being in a non-marital relationship. Biology is not the only factor for parental rights under the Constitution, the Supreme Court has said, but requires "biology plus." Biology plus the proper social relationship with the child and the mother in a unitary family status. It is hard to argue that rape is a "unitary family status."
Five Maryland legislators could have ended a policy that forces women to share child custody with their rapists. Instead the five legislators, all men, buried the bill.
Maryland is one of seven states without a law allowing women to terminate parental rights for their rapists, if their child was conceived as a result of sexual assault, according to reproductive rights organization NARAL. The state’s current policy forces survivors to negotiate child custody and adoption issues with their attacker. In a bid to update the draconian policy, Maryland Delegate Kathleen Dumais introduced legislation that would allow a woman to cut her rapist’s parental rights.
But while the bill passed both Maryland’s House and Senate, the bill’s text varied between the two legislative bodies. On Monday, the last day of legislative session, a five-person negotiating group was set to decide on the bill’s final text, the Baltimore Sun reported. Instead, the five-man group let the bill fall by the wayside, running out the legislative session’s clock without finalizing the bill’s text. ***
“For those who choose to carry to term, a woman who becomes pregnant through rape runs the risk that the rapist will assert his parental rights,” NARAL’s Maryland branch wrote in a statement of support for Dumais’s bill. “If she chooses to raise the child herself, it could mean her rapist inserting himself into her life for the next 18 years. The perpetrator may also hinder efforts to place the child up for adoption. In some extreme cases, rapists have only agreed to allow an adoption to go forward if the victim promised not to testify against him at Trial.
Here's some of the legal research on the subject:
Kara Bitar, The Parental Rights of Rapists, 19 Duke J. Gender L. & Pol'y 275 (2012)
Katherine Wendt, How States Reward Rape: An Agenda to Protect the Rape-Conceived Child Through the Termination of Parental Rights, 2013 Mich. St. L. Rev. 1763 [Westlaw link]
Jihye Yoo, Xiaohan Mei, Craig Hemmens, and Mary K. Stohr, Rapists' Parental Rights: Adding Insult to Injury, 52 Crim. L. Bull. (2016) [Westlaw link]
Friday, April 14, 2017
Jill Filipovic, Two Books Explore the Furor Over Rape on Campus
According to our last president, several sitting senators, feminist activists and female college students all over the country, sexual violence on campus is one of the most pressing issues facing young American women. Statistics promulgated by the Obama White House declare that an estimated one in five college women will be sexually assaulted. To combat this scourge, universities have hired new administrators, mandated anti-rape training sessions at freshman orientation and sped up the disciplinary process for accused assailants. Prominent feminists and lawyers say many schools are still doing too little to protect female students and far too much to protect male ones.
But according to the Northwestern professor and cultural critic Laura Kipnis, the opposite is true: It’s now men who are the victims of a nationwide sexual panic, one seated more in traditional views of women as vulnerable and sexually passive than in a feminism that recognizes young women to be self-sufficient independent actors (who are also human enough to make, and learn from, stupid sexual blunders).
Kipnis’s “Unwanted Advances: Sexual Paranoia Comes to Campus” focuses on one professor whose career was ruined by accusations of sexual assault and the ensuing Title IX investigation. Kipnis is drawn into this man’s professional drama after she too was on the receiving end of two Title IX complaints stemming from an essay she wrote deploring her university’s policy of frowning on relationships between teachers and students. Her book is a look at the secretive and largely unaccountable processes by which campus sexual assault allegations are investigated and adjudicated, using a handful of real incidents to illustrate her broader argument that complex interpersonal relationships and dumb drunken mistakes are now the quasilegal purview of well-paid administrators more interested in protecting a university’s reputation — even if it means ruining a few men’s lives — than seeking either truth or justice. The high-volume conversation about campus sexual assault, she says, is a kind of black-and-white gender traditionalism dressed up in feminist clothes, obscuring ambiguities and power plays inherent to human sexual desire, and instead casting adult women as innocent victims (or victims-in-waiting) and men as either rapists or potential predators.
And yet I loved reading it. Kipnis’s book is maddening; it’s also funny, incisive and often convincing. ***
If only the same could be said about “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by KC Johnson, a professor at the CUNY Graduate Center, and Stuart Taylor Jr., a contributing editor at National Journal. An in-depth look at how universities compromise due process norms in adjudicating sexual assault cases — and it is clear they do — is overdue; instead, the authors choose a handful of egregious examples to make the case that campus sexual assault isn’t all that common and that the bigger problem is innocent young men railroaded by promiscuous women who get drunk and regret their choices, or flat-out lie at the behest of conniving campus feminists. Instead of an honest analysis of the complex issues and competing values at play, the book teems with vastly overstated claims, questionable statistics and quotes massaged beyond their original meaning.
“You’re not getting menopause, I hope,” interjected the opposing lawyer, Camilo Salas, in front of 14 other, mostly male, lawyers.
Monserrate bridled at his comment. And in a sanctions hearing several months later, U.S. District Judge Francisco A. Besosa also chastised Salas for it, quoting the American Bar Association report First Chairs at Trial: More Women Need Seats at the Table to emphasize the comment’s discriminatory nature and negative impact: “An ABA report published this year,” stated the judge, “identified ‘inappropriate or stereotypical comments’ directed at female attorneys by opposing counsel as one of the causes of the marked underrepresentation of women in lead trial attorney roles.”
It’s not the only time that the First Chairs report—which examines why there is a dearth of women lawyers in lead counsel and trial counsel posts and what to do about it—has been cited in sanction hearings. Since its release in 2015, this first-of-its-kind study, published as a joint project of the American Bar Foundation and the ABA Commission on Women in the Profession (CWP), seems to be having the precise effect that its coauthors hoped it would.
“I think having judges call that behavior out, and having a study that they can rely on,” is a powerful tool for change, says coauthor Roberta D. Liebenberg, a former chair of the CWP and a senior partner at Philadelphia-based Fine, Kaplan and Black, R.P.C. Stephanie A. Scharf, who heads the litigation practice at the women-owned Chicago firm Scharf Banks Marmor LLC, served as Liebenberg’s coauthor.
The two began by taking a random sample (608 cases) of all the civil and criminal cases filed in 2013 in the U.S. District Court for the Northern District of Illinois. They examined the cases from the perspectives of (1) type of case, (2) type of practice setting, and (3) type of client. They found that women were consistently underrepresented in lead counsel roles in almost all types of legal settings. Notably, men were three times more likely than women to serve as lead counsel in civil cases. And when surveying criminal cases, the authors found that men were four times more likely than women to serve as trial lawyers.
“You could go into any courtroom and just by being there know that there are not enough women as first chair trial lawyers,” Liebenberg says. “But because we did the statistics, the thing has really taken off. It’s been cited by several courts in sanctioning lawyers for biased behavior, like during a deposition. It’s been cited in a law review article. It’s been cited by The Wall Street Journal and the New York Times. And it really shows you how important the statistical backup is—to validate what we can all see with our eyes.”
Thursday, April 13, 2017
The Organization of American Historians has announced it book awards for 2016. Those that may be of interest on gender and law include:
Darlene Clark Hine Award for the best book in African American women’s and gender history.
LaShawn D. Harris, Michigan State University, Sex Workers, Psychics, and Number Runners: Black Women in New York City's Underground Economy (University of Illinois Press).
Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.
Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press).
David Montgomery Award for the best book on a topic in American labor and working-class history, with cosponsorship by the Labor and Working-Class History Association (LAWCHA).
Ryan Patrick Murphy, Earlham College, Deregulating Desire: Flight Attendant Activism, Family Politics, and Workplace Justice (Temple University Press).