Tuesday, October 9, 2018
Lawsuits Against Harvard and NYU Law Reviews Allege Illegal Racial and Gender Preferences for Editors and Articles Harm White Men
A Texas-based group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) sued the Harvard Law Review on Oct. 6 and the New York University Law Review on Sunday, claiming that their racial and gender preference policies violate federal anti-discrimination laws. The lawsuits come at a time when law reviews—the traditional bastion of white males—are celebrating the increased diversity of their membership ranks. Harvard Law School, for example, had its first black women editor-in-chief in 2017. The Columbia Law Review has its first black male editor-in-chief ever this year.***
The new suits allege that policies at both law reviews violate the rights of students by giving women and minorities an unlawful advantage in getting onto those sought-after organizations. Moreover, the suits allege policies that give a preference to articles written by women and minority scholars violate the rights of others hoping to place articles there.
“Harvard Law School and Harvard University are violating Title VI and Title IX by allowing the Harvard Law Review to use race and sex preferences when selecting its members, editors, and articles—in direct contravention of the Law School’s supposed non-discrimination policy,” read the Harvard Law Review suit.
Tuesday, June 19, 2018
Leading Law Scholars on MeToo and Sexual Harassment Law in Joint Collaboration of Yale and Stanford Law Reviews
The #MeToo movement has prompted a national dialogue about sexual harassment. This Companion Collection, launched in collaboration with the Stanford Law Review, aims to draw lessons from the #MeToo movement for activists, scholars, policymakers, lawyers, and judges. Across the two journals, the Collection offers twelve scholars’ insights on the ways sexual harassment produces and is produced by broader forms of inequality. Companion Essays can be found at the Stanford Law Review Online.
Articles in Yale Law Journal
Vicki Schultz, Reconceptualizing Sexual Harassment, Again
The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz's previous work to explore those institutional drivers of harassment.
Brian Soucek, Queering Sexual Harassment Law
Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World
Angela Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement
Tristin K. Green, Was Sexual Harassment Law a Mistake? The Stories We Tell
Essays in Stanford Law Review
Tuesday, March 6, 2018
#TBT in honor of Women's History Month:
I've developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar.
This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting. It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was not illegal for a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s. The list goes on and on.
My scholarly goal is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books. But for now, at least, the history is being recovered and analyzed, and the transmission of that discovery has been started.
Women’s Legal History: A Reading List
Tracy A. Thomas
Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)
Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)
Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)
Understanding Feminist Legal Theory
Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)
Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)
Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)
Nancy Cott, The Grounding of Modern Feminism (1987)
Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)
Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)
EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)
Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)
Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)
Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)
Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)
Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)
Coverture, Marital Status in the Family, Marital Property
William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)
Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)
Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (2016)
Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)
Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).
Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)
Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651
Ken Burns, Not For Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)
Declaration of Sentiments, July 1848
History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Ellen DuBois, Feminism & Suffrage: The Emergency of an Independent Women's Movement in America, 1848-1869 (1978)
Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)
Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)
Minor v. Happersett, 88 U.S. 162 (1974)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)
Iron Jawed Angels (2004) (video)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)
Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
Muller v. Oregon, 208 US 412 (1908)
Adkins v. Children's Hospital, 261 US 525 (1923)
The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)
Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)
Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015)
Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)
James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)
Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)
Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)
Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).
Fred Strebeigh, Equal: Women Reshape American Law (2009)
Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)
Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)
TJ Boisseau & Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 YEARS OF THE NINETEENTH AMENDMENT: AN APPRAISAL OF WOMEN’S POLITICAL ACTIVISM (Lee Ann Banaszak & Holly J. McCammon, eds.)
Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)
Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)
Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (2010)
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)
Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)
Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)
Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)
Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)
Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work (2016)
Joanna Grossman, Nine to Five:How Gender, Sex, and Sexuality Continue to Define the American Workplace (2016)
Women in the Courts
Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)
Holly McCammon, The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (2012)
Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)
Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)
Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).
Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)
Bradwell v. State, 83 U.S. 130 (1872)
In re Lockwood, 154 U.S. 116 (1894)
Women’s Legal History Biography Project, at https://wlh.law.stanford.edu
Tuesday, December 19, 2017
Men Invited to Give Twice as Many Academic Talks as Women--and its not Because Women Turn them Down or That There Aren't Enough Qualified Women
Colloquium talks, where academics are invited to discuss their research, give speakers a chance to publicize their work, build collaborations with new colleagues, and boost their reputations. The talks can lead to promotions or job offers. They are big opportunities. But as Hebl’s student Christine Nittrouereventually found, they are opportunities that are predominantly extended to men.
Nittrouer and her team scanned the websites of the top 50 U.S. universities, as ranked by U.S. News, to build a database of every colloquium speaker from six departments: biology, bioengineering, political science, history, psychology, and sociology. They chose those six to represent a breadth of disciplines, and to exclude departments with either a very low or very high proportion of women. And they found that men gave more than twice as many talks as women: 69 percent versus 31 percent.
That result should not be too surprising. Several studies have shown that menoutnumber women among the speakers of several scientific conferences. There’s even a site that collates examples of all-male panels.
Why does this happen? Hebl accounted for several of what she calls “yeah-but explanations,” which underplay these figures as the result of anything other than discriminatory biases. For example, some might argue that men outnumber women in many fields, and so any equitable selection process would naturally lead to more male speakers. But the team estimated the full pool of available speakers by counting every professor in their six chosen fields at each of the top 100 U.S. universities. And even after adjusting for the relative numbers of men and women in the various fields or ranks, they found that men are still 20 percent more likely to be invited to give colloquium talks than women.
Skeptics might also argue that the problem is a generational one: Science, for instance, has historically been skewed toward men, and when colloquia committees decide whom to invite, they’re prisoners of that history. But if that were true, and the arc of academia was slowly bending toward equality, then when assistant and associate professors—who are younger and more junior than full professors—are selected to give talks, the gender difference should be narrower. Hebl’s team found no such trend. “The people in whom we should see more parity aren’t showing us more parity,” she says.“People sometime say: You know what? Maybe it’s the women,” says Hebl. “Maybe they don’t want to give talks, or they’re declining because they’re staying home with their kids.” That’s not what she found when she surveyed 186 professors who didn’t give colloquium talk at prestigious universities, but were in the same departments as those who did. Their answers clearly showed that women don’t decline colloquium invitations more than men, that they feel just as strongly that these talks are important for their careers, and that they’re no more likely to decline such talks because of family obligations.
“This dispels the widely held myth that women are less frequent speakers because they travel less,” says Jo Handelsman, from the University of Wisconsin at Madison. “Clearly, we need to test such assumptions before we absolve ourselves of culpability in creating biased slates.”
“Despite their presence in departments, women are not being asked to contribute to the intellectual development of their fields in the most coveted ways,” says Robin Nelson, from Santa Clara University, who has studied the prevalence of harassment in science. “This gendered discrimination minimizes women’s visible contributions to their fields, validating the idea that the greatest intellectual contributions are made by a few brilliant men.”
“We can account for all the yeah-buts,” Hebl says, “but we still have this bias, and we need to do something about it.”One solution is to give women more power over inviting colloquium speakers. The team found that when those committees are chaired by women, half of the invited speakers are women; that’s compared to just 30 percent when the committees are chaired by men.
Thursday, December 7, 2017
Call for Papers: American University’s Journal of Gender, Social Policy & the Law
You are invited to submit articles for possible inclusion in a special themed edition of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of sexual harassment and sexual assault. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender and social policy.
The Journal will consider articles that propose a new argument or perspective on a timely legal issue relating to sexual harassment or sexual assault. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars. Articles selected for publication in the Journal must include an analysis of U.S. law in addition to any international focus. All contributions are required to conform to the author policies available at: https://digitalcommons.wcl.american.edu/jgspl/policies.html#whocansubmit
While not an exhaustive list, the Journal encourages authors to submit articles on any of the following topics:
● Institutional responses to sexual assault (e.g., schools, universities, the military, and prisons)
● Sexual assault in the workplace
● Statutory limitations in sexual harassment and sexual assault cases
● Selection of impartial venues
● The Department of Education Q&A on Campus Sexual Misconduct
● Judicial discretion and sentencing requirements
Deadlines for Submission:
Contributions for this special edition must be submitted by January 5, 2018. All submissions must include the article, a resume/CV, and contact information for the author(s).
Please direct questions and final submissions to the Journal Senior Articles Editors: Sahar Ahmed and Kathryn Suma (firstname.lastname@example.org).
Thursday, October 26, 2017
SSRN is pleased to announce WGSRN, our new Women’s & Gender Studies Research Network, where researchers in women’s and gender studies and related interdisciplinary areas can share ideas and other early-stage research. Users can post preprints and working papers and can quickly upload and read free WGSRN papers, spanning subject areas including gender in the global research landscape, feminist methodology, theory, and philosophy, women and law, politics and justice, and several other growing topics.
Join our SSRN team on November 2 at 11a.m. to 11:30a.m. EDT for an informative webcast on the interdisciplinary nature of Women’s & Gender Studies and how sharing early research makes a difference can change the world.
Wednesday, September 13, 2017
I have just published the edited collection, Women and the Law (Thomson Reuters 2017 ed.). This annual reference book collects the leading scholarship in the field of women and law from the prior year -- kind of a "greatest hits" of law review scholarship on litigated topics in this field.
This year's articles:
A. Violence Against Women: The Campus Sexual Assault Debate
Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kan. L. Rev. 891 (2016)
Jacob Gersen & Jeannie Suk, The Sex Bureucracy, 104 Cal. Law Rev. 881 (2016)
Deborah L. Brake, The Trouble with "Bureaucracy", 7 Cal. L. Rev. Online 66 (2016)
Suzanne B. Goldberg, Is There Really a Sex Bureaucracy?, 7 Cal. L. Rev. Online 107 (2016)
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. Forum 281 (2016)
Katharine K. Baker, Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, 64 Kan. L. Rev. 861 (2016)
Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kan. L. Rev. 963 (2016)
Aya Gruber, Consent Confusion, 38 Cardozo L. Rev. 415 (2016)
Eric R. Carpenter, Patriarchy, not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. 225 (2017)
B. Gendered Immigration
Joanna J. Kallinosis, Refugee Roulette: A Comparative analysis of Gender-Related Persecution in Asylum Law, 6 DePaul J. Women, Gender & L. 55 (2017)
Blaine Bookey, Gender-Based Asylum Post-Matter of ARCG: Evolving Standards and Fair Application of the Law, 22 Southwestern J. Int'l Law 1 (2016)
C. Reproductive Rights
Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L.J. Forum 149 (2016)
Saru M. Matambanadzo, Reconstructing Pregnancy, 69 SMU L. Rev. 187 (2016)
D. Women in the Workplace
Joanna L. Grossman, Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law, 95 B.U. L. Rev. 1029 (2015)
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Georgetown L.J. 559 (2017)
Jennifer Bennett Shinall, The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, 101 Minnesota L. Rev. 1099 (2017)
E. Feminist Legal Theory
Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016)
Stephanie Bornstein, Unifying the Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L. Rev. 919 (2016)
Jamie R. Abrams, Debunking the Myth of Universal Male Privilege, 49 U. Mich. J. L. Reform 303 (2016)
Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 Boston College L. Rev. 1287 (2016)
For the list of articles from the 2016 editions of Women and the Law, see here.:
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.
Thursday, November 3, 2016
Here is the Introduction to the terrific line-up of articles in the just published collection, Women and the Law (Thomson Reuters 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.
Wednesday, November 2, 2016
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
Thursday, September 1, 2016
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]
Monday, July 25, 2016
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.
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.