Saturday, April 23, 2016
She is a feminist to her bones, and gives no quarter to the kind of historical relativism that ringfences the brutality of the past as something natural and unremarkable, like eating songbirds. “It’s very hard to get positive female role models in the history of the Roman empire. You think you’ve got one, and then, oh no. She’s been raped. And killed herself. If you’re going to remove the sexual violence, you cannot tell the story of Rome.”She is resolute on her purpose in public life, and has no qualms about the distinction of scholarship: “What is the role of an academic, no matter what they’re teaching, within political debate? It has to be that they make issues more complicated. The role of the academic is to make everything less simple.”
Thursday, March 31, 2016
Business and Politics as Women’s Work: The Australian Colonies and the Mid-Nineteenth-Century Women’s Movementpp. 84-106 | DOI: 10.1353/jowh.2016.0006
Rejecting Reproduction: The National Organization for Non-Parents and Childfree Activism in 1970s Americapp. 131-156 | DOI: 10.1353/jowh.2016.0008
Thursday, March 3, 2016
Feminist Legal Theory
Susan Appleton and Susan Stiritz - Going Wild
Katharine Baker and Michelle Oberman - Women's Sexual Agency
Angela Harris - Care and Danger
Maxine Eichner - Market-Cautious Feminism
June Carbone and Naomi Cahn - Unequal Terms
Jennifer Hendricks - Schrodinger's Child
Wednesday, February 17, 2016
Gender Differences in Post-Tenure Productivity Due to Fewer Solicited Invitations to Women Law Faculty
Albert Yoon (Toronto), Academic Tenure, J. Empirical Studies (forthcoming)
We also note that when limiting publications to articles and essays, the gender differences remain statistically significant across all three outcome measures, but are smaller than for the full sample of publications. This reduction in the gender gap suggests that male faculty are more likely to receive invitations to participate in symposia and other solicited venues for publication than female faculty. This disparity accounts for at least some of the observed gender gap in productivity. ***
The gender difference in productivity we consistently observe warrants additional comment. Women write fewer articles post-tenure, are cited less frequently, and place in lower-ranked journals than men. The point estimates on gender reflect general comparisons between female and male faculty, and do not identify differences before and after tenure. In separate specifications, not reported, we examine female and male faculty separately. We find that across the full sample of publications, female faculty exhibit roughly the same productivity on all three measures before and after tenure, while male faculty’ publication count increases by 24 percent (their citation rate and journal placement do not meaningfully change).
The underlying explanation for these gender differences goes beyond the scope of this Article and warrants closer examination. Other studies have examined men and women in law school, the entry-level law teaching market, and the legal profession, often identifying large differences between the genders. The limits of our data make it difficult to further explore possible explanations for the differences we observe. We do not, for example, observe which faculty – men and women – are married or have children during the first ten years of their academic careers, either of which could influence their productivity. Part of the differences, we observe, however, may be institutional, given that we observed that men publish in symposia – typically solicited publications – disproportionate to their numbers in the academy.
H/t Tax Prof Blog
Tuesday, December 29, 2015
Queen's University's Faculty of Law is home to Feminist Legal Studies Queen's (FLSQ), a research group that expands awareness and development of scholarship in feminist legal studies, enables the development of feminist legal scholars at Queen's, and fosters connections among feminists with an interest in law. In the fall of 2014, I had the privilege of returning to Queen's Law to give the first seminar in FLSQ's 2014–15 lecture series. I was tasked with providing some reflections on why feminist legal theory matters. Some of the people attending the talk were also enrolled in the Queen's Feminist Legal Studies Workshop. The readings assigned for those students were (1) Toni Pickard's (retired Queen's law faculty member) wonderful introduction to law students at Queen's from 1987, (2) Patricia Monture's (a graduate of Queen's) 2004 piece, “Women's Words,” and (3) Ruthann Robson's (lesbian legal theorist and class critic) piece “To Market, To Market.”What follows is the text from that talk.
Friday, December 18, 2015
UW Law student Harlan Mechling couldn’t go to his little sister’s graduation from Willamette University, but his father did call to tell him she was graduating as a member of Phi Beta Kappa, a nation-wide honor society, with 42 other women and 16 men. Those numbers stood out to Mechling, instigating his research on gender inequity.
“The more I thought about it, the more I realized that’s not surprising because it’s consistent with my experience,” Mechling said. “Throughout my life, girls have always been at the top of the class.”
Mechling’s research revealed that women account for more than 60 percent of students graduating with honors, 9 percent higher than their percent of the student population. Despite these feats, most women will likely be getting paid only 78 percent of what their male colleagues will earn.
Kellye Testy, dean of the UW School of Law, believes her students face persistent gender discrimination once they’re out in the work world.
“One of the areas I’ve always been interested in is legal education,” Testy said. “We’ve been admitting women in law school a roughly equal number as men for a few decades now.
But if you look at the world and the number of CEOs, governors, law school deans, etc., the percentage of women is much lower than it should be.”
She clarified that it is not just the UW law school that is graduating equal numbers of men and women.
Mechling’s research used statistics from Phi Beta Kappa. He gathered stats from emails sent out to those who qualified and the number of people in the society, from 27 private and public universities. Mechling wanted to measure academics because it was one of the only measurements that was consistent across universities in different states.
He began his research thinking maybe the high percentage of women in honors was just a Northwest thing, but was surprised to find consistency among schools.
The research paper Mechling created, titled “Follow California’s lead — help women recover damages for workplace sex/gender discrimination,” also states that even with the same amount of work experience, women teachers are paid 11 percent less than male teachers within a year of graduating college. In business and management jobs, women make 86 percent of what men are paid. In sales it is even less, with women earning 77 percent of what men get paid, according to Mechling.
Testy believes it is because of implicit bias. She said gender equity is certainly moving in the right direction, but there’s a long history in the United States of gender discrimination.
Mechling said one way to address these issues is for states to have better non-discrimination laws.
“The best solution is a federal law amending the Equal Pay Act of 1973,” Mechling said. “There have been attempts to do that, but House Republicans keep shooting it down. I think the state is the only way it’s going to work because Congress has shown repeatedly that it’s not going to happen on the federal level.”
States tend to interpret the Equal Pay Act very broadly, according to Mechling. Usually there are four defenses for unequal pay and gender inequity, one of which allows employers to justify pay disparity as long as it’s any factor other than sex.
Cited in his research, the American Bar Foundation found only 6 percent of employment discrimination filings between 1987 and 2003 went to trial. Only one-third of those cases were successful. Even for employment discrimination cases, 40 percent are dismissed or lost at summary judgment.
Martina Kartman, a UW law student who was an intake investigator at the Seattle Office for Civil Rights, did the initial interviews at the office to determine if a discrimination case would be taken or not.
“I think one of the things that was most difficult about discrimination laws and enforcing them is that they are from the ‘60s,” Kartman said. “Our laws haven’t always kept up with change.”
Thursday, December 10, 2015
Abstract:The victim impact statement (VIS) is a victim’s voluntarily written account of a range of harms experienced as a consequence of a crime. Rarely is the VIS investigated specific to sexual assault or from a theoretical perspective. This qualitative study was designed to address these gaps. Interviews were conducted with 44 participants who sought or provided VIS-related services in Canada. Findings were analyzed using insights from actor-network theory.
Findings of the overall study are presented through three distinct but interrelated papers. “Obliging Detours” (Miller, submitted) describes the development of the VIS in Canada, and its multiple, innovative, and unauthorized pathways of use. These pathways created novel opportunities, demands, and risks for sexual assault victims, particularly those who were mothers, female offenders, or had been excluded at trial. “Relational Caring” (Miller, 2014) identifies an ethic of care that underpinned use of the VIS by sexually assaulted women. Victims prioritized the well-being of others by constructing VIS narratives that privileged the harms experienced by others, protected future victims, and promoted the interests of intimate partner offenders. Victims who were mothers, especially those abused as minors, and those who were intimate partners of their offenders were particularly implicated. “Purposing and Repurposing Harms” (Miller, 2013) demonstrates how harm descriptions were manipulated by victims and others in keeping with, and contrary to, legislators’ design of the VIS. VIS repurposing occurred through victims’ practices of strategic disclosure, which was intended to effect changes in others’ behaviours, and harm peddling, which was the circulation of the VIS in nonsentencing arenas by victims and nonvictims to obtain compensation, child custody, and parole delay.
Taken together, the findings revealed that the VIS has a protean nature that is produced by structural and relational factors, and lends itself to multiple uses in multiple contexts. VIS-related outcomes and the effects on victims and others could neither be wholly predicted nor prevented, and involved interactions beyond the criminal court setting. The protean, unpredictable, and persisting positive and negative effects of the VIS hold promise — and danger — for sexual assault victims.
Monday, November 30, 2015
Heather Sarsons, a PhD candidate in economics at Harvard, recently compiled four decades of records on over 500 tenure decisions at the top 30 economics schools in the nation. During the tenure process at a university, young professors race to do as much research as possible to prove they deserve a permanent position on the faculty. The number of papers they publish in journals is one important measure of their performance.
According to Sarson’s preliminary results, it doesn’t affect a male economist’s chances at tenure if he publishes papers on his own, or with collaborators. But female economists are punished if they co-author. *
As further evidence that men are receiving credit for women's contributions, Sarsons shows that the penalty for co-authorship only exists when women work with men. When women work on a paper exclusively with other women, that penalty disappears. When men and women collaborate, however, men seem to soak up all the credit from the women.
Saturday, November 21, 2015
Times Higher Education, US Law Reviews' Dirty Game: Review by Student
Submissions for almost all American general law reviews and for more than half of the specialised ones are reviewed by law students, selected by more senior law students based on their first-year academic performance. Unfortunately, however intelligent and ambitious they are, students just don’t have the expertise to judge the quality of submissions. As a result, an article’s fate is determined by the application of several superficial criteria.
First is the author’s name and affiliation. If she is unknown to the students and either does not teach (but, for example, works at a law firm) or teaches at an institution that places lower in U. S. News and World Report’s most recent annual rankings of law schools, they generally disregard her submission. Never mind that the U. S. News rankings are based on algorithms that embed highly subjective and controversial judgements.
Second, if an author’s obligatory CV indicates prior publications in journals at schools ranked lower in U. S. News, many students will deem her current efforts to be unworthy of consideration.
Third, students feel obliged to accept submissions by their own professors. This much is forgivable, I suppose. What is less forgivable is the professors’ willingness to put them in this position to begin with. They are in effect compelling the students to publish their work, no matter how weak it may be, thereby monopolising the few available slots in their own schools’ journals. This is just one more reason to doubt the common assumption that the most original and insightful legal scholarship can be found in the highest-ranked law reviews.
Fourth, students typically prefer some areas of law over others, based not so much on informed legal judgement as on the politics of the day and what they happen to perceive as simpler, more “colourful” topics.
Thursday, October 29, 2015
Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):
In 1969 Congress amended the Internal Revenue Code to create a marriage penalty. The penalty was not felt by all married couples: Only those couples in which spouses earned roughly equal amounts and who filed joint tax returns paid a penalty. Thus, the 1969 change in law had a gendered effect of discouraging some wives from earning income, but the alternative was not without its own gendered results. If gender marks the impact of the 1969 legislation, was gender what motived the change in law? It would be easy to assume that at the end of the 1960s, a socially conservative legislature reacted to a developing women’s movement. From the legislative debates, sexism certainly pervaded congressional discussion of women’s role in the family and the economy. However, this only tells part of the story and does so by focusing on the result that remains of interest today. Economic forces were a larger part of the story. The context of the 1969 revision shows it as part of an economic movement evolving since the end of World War II as policymakers adopted tax legislation in an attempt to improve the economy and fight the Cold War. Not only policymakers in Washington but also many women’s groups shared this focus on national economics. The focus on economic issues resulted in a lack of analysis of how this change in tax policy would affect various groups of women. The development of the marriage penalty highlights the need to consider the consequences of legislation prior to its enactment. In this case, particular concerns (largely economic) drove legislation that imposed most of its cost on a segment of society that was not focused on this issue.
Tuesday, October 20, 2015
The second part of the chapter proceeds to articulate a relational approach to children’s subjectivity. Building on the work of Martha Minow, this approach highlights children’s experiences as active participants in multiple relationships directly and indirectly mediated by law. Children’s relationships are not confined to the family, nor do they solely involve hierarchal dynamics of development and control. Children instead experience a broad range of interactions as children, separate from or in addition to their interests in becoming adults, even as they remain dependent on adults for many aspects of their lives. Children’s relationships therefore blur the traditional distinction between subjects and objects, providing a foundation for law to acknowledge and foster children’s intrinsic interests as children.
Tuesday, October 13, 2015
I just posted TJ Boisseau & Tracy Thomas, After Suffrage Comes Equality? ERA as the Next Logical Step, forthcoming as a chapter in the book 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism edited by Lee Ann Banaszak and Holly McCammon (Oxford University Press 2016).
The chapter traces the long, and surprising, history of the Equal Rights Amendment, first proposed in 1923.
From the abstract:
Almost a full century in the making, the campaign for an ERA far exceeded in longevity the campaign for woman suffrage, however much a “logical next step” women's equality seemed to some following the spectacular achievement of the Nineteenth Amendment. The history of the amendment reveals how resistant to the idea of equality between men and women a political system—even one that includes women as voters—can be. In this chapter, we re-examine the route taken by the ERA through its many permutations in the century since the passage of woman suffrage. Proposed by Alice Paul in 1923 and immediately opposed by social feminists advocating protective labor laws, the ERA wound itself in and out of feminist, conservative, and public favor before its final defeat in 1982, three states short of adoption. Woven into the Supreme Court's analysis of Lochner and substantive due process, and the later evolution of equal protection law, women's equality--or difference--has been the foundation of much of the development of modern constitutional doctrine.
Wednesday, October 7, 2015
Prof. Keith Cunningham-Parmeter has uploaded a new article onto SSRN. The article is titled "Marriage Equality, Workplace Inequality: The Next Gay Rights Battle," and its abstract reads:
Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.
This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.
Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.
Tuesday, September 29, 2015
I just published the 2015 edition of Women and the Law for West.
This is an annual collection of what I call the "greatest hits" in legal scholarship from the past year on women's rights. It includes sections on reproductive rights, family, employment, domestic violence, feminist theory, and sometimes education.
Here's this year's awesome lineup.
Introduction and Summary, Tracy Thomas
Abortion Distortions, Caroline Mala Corbin
Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, Michele Goodwin
Abortion and the Constitutional Right (Not) to Procreate, Mary Ziegler
Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, Sara L. Ainsworth
Feminism and the Family Law
Unprotected Sex: The Pregnancy Discrimination Act at 35, Deborah L. Brake & Joanna L. Grossman
Reframing the Work-Family Conflict Debate by Rejecting the Ideal Parent Norm, Jennifer H. Sperling
Spousal Support in the 21st Century, Judith G. McMullen
Digging Beneath the Equality Language: The Influence of the Fathers' Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, Kelly Alison Behre
Violence Against Women
Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome, and Violence as Male Privilege,Mary Anne Franks
Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders, Jane K. Stoever
Love Matters, Tamara L. Kuennen
Financial Freedom: Women, Money, and Domestic Abuse, Dana Harrington Conner
A Home with Dignity: Domestic Violence and Property Rights, Margaret E. Johnson
Women in the Workplace
Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, Lynn Ridgeway Zehrt
Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Martha Chamallas
It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The United States and the U.K. as Examples, Susan Bisom-Rapp and Malcolm Sargeant
Feminist Legal Theory
State Responsibility for Gender Stereotyping, Barbara Stark
Rights of Belonging for Women, Rebecca E. Zietlow
The New Sex Discrimination, Zachary A. Kramer
Saturday, September 26, 2015
The new issue of the Journal of Women's History (Fall 2015).
TABLE OF CONTENTS
"I Wouldn't Be No Woman If I Didn't Hit Him": Race, Patriarchy, and Spousal Homicide in New Orleans, 1921 - 1945
Jeffrey S. Adler
"As Potent a Prince as Any Round About Her": Rethinking Weetamoo of the Pocasset and Native Female Leadership in Early America
Gina M. Martino-Trutor
Dode Akabi: A Reexamination of the Oral and Textual Narrative of a "Wicked" Female King
Harry N.K. Odamtten
From Anne to Hannah: Religious Views of Infertility in Post-Reformation England
Sex Scandals and Papist Plots:The Mid-Nineteenth-Century World of an Irish Nurse in Quebec
Sanitizing the Domestic: Hygiene and Gender in Late Colonial Bengal
Constructing Women's Citizenship: The Local, National, and Global Civic Lessons of Rajkumari Amrit Kaur
Single Girls and Working Women: Gender, Power, and Feminism in American History and Culture
Sexual Labor and the Transnational Sphere
Michelle K. Rhoades
Personal and Political: Love's Revolutions in Recent Historical Research
New Views on Left Feminist Activism Before the 1960s
Monday, September 7, 2015
Current Issue: Volume 22, Issue 1 (2015)
Anastasia M. Boles
Thursday, July 16, 2015
Vicki Schultz (Yale), Taking Sex Discrimination Seriously, 91 Denver L. Rev. (2015).
Abstract:The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that the primary limit on legal reform has been attitudinal. Since Title VII’s enactment, both private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles, and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.
How, then, has progress occurred under Title VII? The answer lay in reformers challenging essentialist claims about sex difference.
During Title VII’s first decade, this Article shows, agencies and courts adopted an expansive reading of Title VII’s first decade only because the leaders of the emerging women’s rights movement pulled activists together to mount a strong, clear, concerted challenge to the existence and relevance of sex difference. Crafting a new conception of equality that captured American women’s growing sense of discontent while promising greater freedom to both women and men, early feminists overcame governmental resistance and achieved genuine legal progress. By the mid-1970s, they secured favorable rulings from the agencies, the Supreme Court, and the lower courts under both Title VII and the Constitution and consolidated these gains in Congress.
Yet progress was not universal and the initial momentum did not last. Rather, this Article argues, in areas of the law where feminist groups failed to establish a significant presence, or where they began to take a divided or less decisive stance as the women’s movement fractured and faded, the activist void and resulting lack of accountability permitted courts to retain or revert back to older views attributing workplace inequality to women’s difference. Two areas of law illustrate these dynamics. In cases raising women’s lack of interest as a defense to sex discrimination, women’s rights groups’ failure to regularly contest this arcane defense in the courts and agencies, coupled with resurfaced internal division that sent mixed signals about the existence and sources of women’s allegedly different work preferences, freed conservative judges to accept this defense and legitimate the underlying stereotypes in a wide swath of cases. Pregnancy discrimination law provides a second example, showing how courts stalled, and later backpedaled, as feminists initially wavered and later split over whether to characterize pregnancy as uniquely female reproductive experience unlike other medical conditions or as a temporary disability comparable to others that may affect an employee’s ability to work. Despite federal laws and agency rulings adopting the latter approach, images of pregnancy as unique and distinct from other disabilities have continued to resurface, limiting the law’s capacity to address this persistent form of discrimination.
Progress under anti-discrimination law is thus difficult to achieve and sustain: It requires committed, cohesive efforts to contest difference as a rationale for inequality and galvanize public support for change. This Article suggests that, going forward, civil rights reformers can make further headway by challenging not only the existence and relevance of such alleged differences, but also their nature and sources. New evidence highlights that many sex, race, and other-group differences typically thought to explain and justify workplace inequalities are actually created and fostered there through employment policies and practices. The hope is that, by coming together to contest and change those practices, reformers can erode both enduring patterns of employment discrimination and the essentialist ideas about difference that have undermined the law’s promise.
Friday, June 26, 2015
The summer is available online:
|Feminism in Yellowface
|The Future of Polyamorous Marriage: Lessons From the Marriage Equality Struggle
Hadar Aviram & Gwendolyn M. Leachman
|A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers
Karen Oehme, Nat Stern & Annelise Mennicke
|The Long American Plan: The U.S. Government’s Campaign Against Venereal Disease and its Carriers
Scott Wasserman Stern
|Why Originalism Needs Critical Theory: Democracy, Language, and Social Power
Annaleigh E. Curtis
Monday, June 1, 2015
Keith Cunningham-Parmeter has published "(Un)Equal Protection: Why Gender Equality Depends on Discrimination." It's available for download here and its abstract reads as follows:
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses— laws that give families additional parental leave when fathers stay at home with their newborns—have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
On SSRN, Stuart Chinn has uploaded "Situating 'Groups' in Constitutional Argument: Interrogating Judicial Arguments on Economic Rights, Gender Equality, and Gay Equality." The abstract reads:
The New Deal transformation in Commerce Clause and Due Process jurisprudence marked, among other things, a shift in judicial attention from groups defined by economic relationships to groups defined by social status. Hence, one might plausibly see judicial activism in defense of freedom of contract during the Lochner era subsequently giving way, in part, to the judicial protection of racial minorities, women, and gay persons in the decades after Brown v. Board of Education.
In this paper, I attempt to illuminate this shift in judicial attention by examining the Supreme Court's rhetoric surrounding groups in the context of the Lochner era cases on wages and hours regulations and the post-Brown v. Board of Education era cases on gender and gay equality. I situate my inquiry in the context of broader themes in American political thought, with particular attention to the core concepts and principles of American liberalism. In examining the recurrent modes of argument surrounding groups in these Supreme Court cases, I discuss how the Court's concept of groups — and how its views of American society more broadly — has varied in different constitutional doctrinal contexts.
My examination of these cases yields two key findings. The first finding speaks to a similarity across these contexts of Supreme Court jurisprudence: when confronted by reforms calling for special or different legal treatment of specific groups, both pro-reform and anti-reform Supreme Court justices in these three doctrinal contexts put forth arguments about group-sameness and group-difference. That is, group-sameness and group-difference arguments were deployed by Justices on both sides of the various legal controversies in these doctrinal areas. The second finding speaks to a difference between these doctrinal contexts: while arguments in defense of special legal treatment for groups in the Lochner era cases on wages and hours regulations were linked to larger, broader, more systemic goals, no such sensibility informs the judicial protection of groups in the post-Brown cases on gender and gay equality. Rather, in more recent years, the judicial defense of groups largely proceeds from a judicial concern for only the groups in question. Thus, we see in the more contemporary cases examples of judicial arguments about “societal segmentation” — a significant mode of legal and political argument that, I assert, has appeared episodically throughout American history. In the final Part, I set forth a more general definition of societal segmentation arguments, and I discuss how notions of segmentation may be situated in relation to the principles of American liberalism.