Gender and the Law Prof Blog

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

Thursday, November 3, 2016

Introduction to Women and the Law

Here is the Introduction to the terrific line-up of articles in the just published collection, Women and the Law (Thomson Reuters 2016). 

Download Women and Law Foreword 2016

OVERVIEW AND INTRODUCTION

The theme of this year’s edition of Women and the Law is captured best by contributor Deborah Brake’s article entitled, “On Not Having it All.”  The recent scholarly literature focuses on women’s so-called struggle to have it all and the difficult legal intersections of work and family.  For decades, women have been encouraged to be Superwomen, to “bring home the bacon,” and “fry it up in a pan,” all while taking primary responsibility for family care.  The structures of the law, workplace, and the family, however, have not accommodated this dual dynamic.  Male workplace norms, long grounded in assumptions of workers’ exclusive dedication to a job, supported by the unpaid home labor of wives and mothers, create an inadequate foundation for women’s full and equal entry.  Instead, we see women either “leaning in” to a 24/7 effort for workplace success, or “opting out” for a prioritization of family work.  All of which assumes the privilege of profession and ignores the economic reality that most women work in paid labor because they have to, whether due to basic need, recession, or marital status.

The focus of the scholarly literature and the related litigation reflects the equivocation in women’s coping strategies and in critiques of the legal systems that perpetuate gender inequality.  Much of the recent research overlaps the fields of employment, reproductive rights, and family law.  This intersection of legal thought mirrors women’s interwoven realities of work, family, and life, where the private and public spheres are merged, and conflicts are not easily settled within one traditional body of law.  Women’s first encounters with sex discrimination today are more often delayed to this point of work/family conflict.  Suddenly pregnancy accommodations, maternity leaves, workplace norms, sexual harassment, implicit bias in hiring and promotion, and equal pay take on new meaning.

The scholarship reflects this lived experience.  There is much discussion of pregnancy and maternity and how they interface with the workplace.  These intersections reveal conflicts in the law the sex equality battle assumed had been resolved.  Scholars are searching for new legal frameworks to address these situations, borrowing analogies from other equality, disability, and medical regimes.  This recent scholarship rejects the private/public binary and the assumption that private family life of health, children, pregnancy, and relationship exists isolated from the workplace.  And it pragmatically searches for alternative theories and solutions that can make a meaningful difference to women’s lives.

November 3, 2016 in Books, Scholarship | Permalink | Comments (0)

Wednesday, November 2, 2016

New Book: Women and the Law - The Year's Top Scholarship

Women and the Law, 2015 ed.

I have just published the annual edition of Women and the Law (Tracy A. Thomas, ed. Thomson 2016).  This is an edited collection of some of the "greatest hits" in scholarship affecting women's rights published over the last year.  The book reprints the articles as a collection as a resource book intended for practitioners to stay current on developing ideas and for academics to appreciate the breadth and depth of working theories.  

Table of Contents

Foreword, On Not Having it All, Tracy A. Thomas

Part A Reproductive Rights

Chapter 1 Abortion and the “Woman Question”: Forty Years of Debate, Reva B. Siegel

Chapter 2 Roe as We Know It, Cary Franklin

Chapter 3 Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty,  Mary Ziegler

Chapter 4 Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement, L. Camille Hébert

Part B Feminism and the Family

Chapter 5 Marriage Equality and the “New” Maternalism, Cynthia Godsoe

Chapter 6 Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, Rona Kaufman Kitchen

Chapter 7 The Bad Mother: Stigma, Abortion and Surrogacy, Paula Abrams

Chapter 8 The Fourth Trimester, Saru M. Matambanadzo

Part C Violence Against Women

Chapter 9 For the Title IX Civil Rights Movement: Congratulations and Cautions, Nancy Chi Cantalupo

Chapter 10 Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, Elizabeth Katz

Chapter 11 Constrained Choice: Mothers, the State, and Domestic Violence, Rona Kaufman Kitchen

Part D Women in the Workplace

Chapter 12 Taking Sex Discrimination Seriously, Vicki Schultz

Chapter 13 On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, Deborah L. Brake

Chapter 14 Employment Discrimination Class Actions after Wal-Mart v. Dukes, Michael Selmi and Sylvia Tsakos

Part E Feminist Legal Theory

Chapter 15 Review Essay: Why (Re)Write Judgments?, Heather Roberts and Laura Sweeney

Chapter 16 Domestic Disorders: Suffrage and New York's Constitutional Convention of 1867, Felice Batlan

Chapter 17 Marriage (In)Equality and the Historical Legacies of Feminism, Serena Mayeri

Chapter 18 Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey, Gina Viola Brown and Andrea Kupfer Schneider

 

 

November 2, 2016 in Books, Scholarship | Permalink | Comments (0)

Thursday, September 1, 2016

New Issue Yale Journal of Law & Feminism

Roman, Hannah. Foster parenting as work. 27 Yale J.L. & Feminism 179-225 (2016). [H]|[L]|[LA]|[W]|[WN]

Elengold, Kate Sablosky. Structural subjugation: theorizing racialized sexual harassment in housing. 27 Yale J.L. & Feminism 227-286 (2016). [H]|[L]|[LA]|[W]|[WN]

Abrams, Jamie R. The feminist case for acknowledging women's acts of violence. 27 Yale J.L. & Feminism 287-329 (2016). [H]|[L]|[LA]|[W]|[WN]

Nicolas, Peter. Fundamental rights in a post-Obergefell world. 27 Yale J.L. & Feminism 331-361 (2016). [H]|[L]|[LA]|[W]|[WN]

September 1, 2016 in Scholarship | Permalink | Comments (0)

Monday, July 25, 2016

Study Finds Men More Likely to Cite Their Own Science Papers

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

Why? Is it confidence? production? specialization?

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

 

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

 

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

 

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

 

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

 

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

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

Saturday, April 23, 2016

The Goal of the [Feminist] Academic is to Make Everything Less Simple

The Guardian, Interview with Mary Beard: "The Role of the Academic is to Make Everything Less Simple

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.”

April 23, 2016 in Education, Scholarship | Permalink | Comments (0)

Thursday, March 31, 2016

New Issue Journal of Women's History

Journal of Women's History (Spring 2016)

      Editorial Note

Law, Marriage, and Women’s Agency: Studies from the Anglo-American and Iranian Worlds

pp. 7-12 | DOI: 10.1353/jowh.2016.0009

Articles

Revisiting Ecclesiastical Adultery Cases in Eighteenth-Century England

pp. 13-37 | DOI: 10.1353/jowh.2016.0000

“Woman and Her Needs”: Elizabeth Oakes Smith and the Divorce Question

pp. 38-59 | DOI: 10.1353/jowh.2016.0002

Gender, Space, and Ritual: Women Barristers, the Inns of Court, and the Interwar Press

pp. 60-83 | DOI: 10.1353/jowh.2016.0004

Business and Politics as Women’s Work: The Australian Colonies and the Mid-Nineteenth-Century Women’s Movement

pp. 84-106 | DOI: 10.1353/jowh.2016.0006

Women Writing Women: Early Iranian Feminism and the Memoir of Tāj us-Saltanih

pp. 107-130 | DOI: 10.1353/jowh.2016.0007

Rejecting Reproduction: The National Organization for Non-Parents and Childfree Activism in 1970s America

pp. 131-156 | DOI: 10.1353/jowh.2016.0008

Book Reviews

The History of Marriage through the Lens of Case Studies

pp. 157-165 | DOI: 10.1353/jowh.2016.0010

Enterprising Women

pp. 166-171 | DOI: 10.1353/jowh.2016.0001

Lost Stories of Women’s Alliances and Networks

pp. 172-181 | DOI: 10.1353/jowh.2016.0003

Contributors

pp. 182-184 | DOI: 10.1353/jowh.2016.0005

March 31, 2016 in Legal History, Scholarship | Permalink | Comments (0)

Thursday, March 3, 2016

Special Issue on Feminist Legal Theory

Feminist Legal Theory

SPECIAL ISSUE, 69 STUDIES IN LAW, POLITICS AND SOCIETY (2016)
 
Half a century after the beginning of the second wave, feminist legal theorists are still writing about many of the subjects they addressed early on: money, sex, reproduction, and jobs. What has changed is the way that they talk about these subjects. Specifically, these theorists now posit a more complex and nuanced conception of power. Recent scholarship recognizes the complexities of power in contemporary society, the ways in which these complexities entrench sex inequality, and the role that law can play in reducing inequality and increasing agency. The feminist legal theorists in this volume are emblematic of this effort. They carefully examine the relationship between gender, equality, and power across an array of realms: sex, reproduction, pleasure, work, money. In doing so they identify social, political, economic, developmental, and psychological and somatic forces, operating both internally and externally, that complicate the expression and constraint of power. Finally, they give sophisticated thought to the possibilities for legal interventions in light of these more complex notions of power.
 
Maxine Eichner and Claire Huntington - Introduction  PDF

Susan Appleton and Susan Stiritz - Going Wild
PDF

Katharine Baker and Michelle Oberman - Women's Sexual Agency PDF

Angela Harris - Care and Danger PDF

Maxine Eichner - Market-Cautious Feminism PDF

June Carbone and Naomi Cahn - Unequal Terms PDF

Jennifer Hendricks - Schrodinger's Child PDF
 
 

March 3, 2016 in Scholarship, Theory | Permalink | Comments (0)

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

February 17, 2016 in Law schools, Scholarship | Permalink | Comments (0)

Tuesday, December 29, 2015

Why Feminism Matters to the Study of Law

Why Feminism Matters to the Study of Law

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.

December 29, 2015 in Law schools, Scholarship | Permalink | Comments (0)

Friday, December 18, 2015

Law Student Studies Gender Inequity in His Research

Law Student Studies Gender Inequity in His Research

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.”

 

December 18, 2015 in Equal Employment, Law schools, Scholarship | Permalink | Comments (0)

Thursday, December 10, 2015

A Study of The Promise--and Danger--of Victim Impact Statements for Sexual Assault Victims

Karen-Lee Miller, PhD Thesis, "You Can't Stop the Bell from Ringing": Protean, Unpredictable, and Persisting: The Victim Impact Statement in the Context of Sexually Assaulted Women

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.

 

December 10, 2015 in Scholarship, Violence Against Women | Permalink | Comments (0)

Monday, November 30, 2015

Women Academics, but Not Men, are Punished for Co-Authoring

Wash Post, Why Men Get All The Credit When They Work With Women

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.

 

November 30, 2015 in Law schools, Scholarship | Permalink | Comments (0)

Saturday, November 21, 2015

US Law Reviews' Dirty Game

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.

November 21, 2015 in Scholarship | Permalink | Comments (0)

Thursday, October 29, 2015

Gendering the Marriage Penalty in Tax

Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):

Abstract:

    

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.

October 29, 2015 in Family, Legislation, Scholarship | Permalink | Comments (0)

Tuesday, October 20, 2015

A Feminist Perspective on Children and Law

Laura Rosenbury, A Feminist Perspective on Children and Law: From Objectification to Relational Subjectivities

Abstract:     

This chapter presents a new framework for thinking about feminism and children. The chapter begins by chronicling feminist challenges to law’s objectification of children, highlighting the many ways that children remain the objects of adult and state authority despite the demise of the patriarchal family. Children’s dependencies are thought to justify such treatment, yet feminist analysis exposes the ways in which law constructs aspects of that dependency. Law’s role in constructing children’s dependency in turn provides a basis to question law’s continued treatment of children as objects rather than subjects.

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.
 
Law never simply reflects reality, however, but also always has regulatory effects. The final part of the chapter analyzes the ways in which law constructs subjectivity by relying on the category of “child”. The child is the empty space against which the category of the adult subject comes into being. Attempts to recognize children’s subjectivity therefore challenge the very meaning of subjectivity in law. This constitutive relationship between children and adults may create conflicts of interest for feminists, and otherwise make change difficult, but it also highlights another way that adults and children are interdependent. Subjectivity therefore need not hinge on autonomy or a lack of dependency. Instead, law might recognize children as subjects even amidst their dependency, thereby constructing children as participants in multiple relationships and settings mediated by law.

October 20, 2015 in Family, Scholarship, Theory | Permalink | Comments (0)

Tuesday, October 13, 2015

New Book Chapter on the Long History of the ERA

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.

 

October 13, 2015 in Books, Constitutional, Courts, Legal History, Scholarship | Permalink | Comments (0)

Wednesday, October 7, 2015

Keith Cunningham-Parmeter's new article

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.

October 7, 2015 in LGBT, Scholarship | Permalink | Comments (0)

Tuesday, September 29, 2015

Women and the Law: A "Greatest Hits" of Scholarship from the Past Year

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.

 

Table of Contents

Introduction and Summary, Tracy Thomas

Reproductive Rights

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

September 29, 2015 in Scholarship | Permalink | Comments (0)

Saturday, September 26, 2015

New issue Journal of Women's History

The new issue of the Journal of Women's History (Fall 2015).

TABLE OF CONTENTS

ARTICLES

"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          

Daphna Oren-Magidor

Sex Scandals and Papist Plots:The Mid-Nineteenth-Century World of an Irish Nurse in Quebec          

Lisa Chilton

Sanitizing the Domestic: Hygiene and Gender in Late Colonial Bengal          

Srirupa Prasad

Constructing Women's Citizenship: The Local, National, and Global Civic Lessons of Rajkumari Amrit Kaur         

EmIly Rook-Koepsel

 

BOOK REVIEWS

Single Girls and Working Women: Gender, Power, and Feminism in American History and Culture 

Elizabeth Fraterrigo

Sexual Labor and the Transnational Sphere          

Michelle K. Rhoades

Personal and Political: Love's Revolutions in Recent Historical Research          

Mark Seymour

New Views on Left Feminist Activism Before the 1960s          

Kate Weigand

September 26, 2015 in Legal History, Scholarship | Permalink | Comments (0)

Monday, September 7, 2015

The current issue of the Michigan J. of Gender & Law