Wednesday, November 12, 2014
Clare Huntington, Fordham Law, has uploaded "Postmarital Family Law" on SSRN. It's forthcoming from Stanford Law Review and its abstract reads:
Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital childbearing continues to spread across class lines, the effect will be most pronounced among children.
This shift is the single most important issue facing family law today, yet scholars have been slow to engage with the structure and substance of the law in response. In family law, the marital family serves as a misleading synecdoche for all families, not only marginalizing nonmarital families, but also actively undermining their already tenuous bonds.
It is essential for family law to address the needs of both marital and nonmarital families. This entails a new theory of state regulation as well as new doctrines, institutions, and norms in practice. Some feminists argue that the state should privilege caregiving between parents and children instead of marital relationships, while other commenters stubbornly advocate marriage primacy — the elevation of marriage above other family forms — despite all evidence that marriage promotion fails. These responses fundamentally misunderstand nonmarital family life, in which dynamics between parents deeply affect children yet marriage is not realistically returning. We must instead understand that it is possible to separate marriage from parenthood but not relationships from parenthood. The state must accordingly help unmarried parents become effective co-parents, especially after their relationship ends, so they can provide children with the healthy relationships crucial to child development. This theoretical insight, and the family law that flows from it, will inaugurate a larger debate about how to prepare for a world in which marriage is not the defining institution of family life.
Monday, November 10, 2014
Amalia Miller and Carmit Segal, both economists, have an interesting article titled "Do Female Officers Improve Law Enforcement Quality?" It's uploaded on SSRN and the abstract reads:
We study the impact of the integration of women in US policing between the late 1970s and early 1990s on violent crime reporting and domestic violence escalation. Along these two key dimensions, we find that female officers improved police quality. Using crime victimization data, we find that as female representation increases among officers in an area, violent crimes against women in that area, and especially domestic violence, are reported to the police at significantly higher rates. There are no such effects for violent crimes against men or from increases in the female share among civilian police employees. Furthermore, we find evidence that female officers help prevent the escalation of domestic violence. Increases in female officer representation are followed by significant declines in intimate partner homicide rates and in rates of repeated domestic abuse. These effects are all consistent between fixed effects models with controls for economic and policy variables and models that focus exclusively on increases in female police employment driven by externally imposed affirmative action plans resulting from employment discrimination cases.
Wednesday, November 5, 2014
Ben A. McJunkin has recently uploaded on SSRN "Rank Among Equals," which is forthcoming from the Michigan Law Review. The abstract reads:
Dignity is on the march. As illustrated by Justice Kennedy’s recent majority opinion in United States v. Windsor, the concept — once seen as exclusive to moral philosophy — has taken on increasing importance in the legal realm, particularly in the recognition of individual human rights. Jeremy Waldron's recent book, Dignity, Rank, and Rights, offers a profound and provocative take on dignity's newfound centrality to law. Waldron contends that dignity currently operates as a universal legal status that entails individual rights. He suggests that this development reflects the gradual democratization of aristocratic privilege — a kind of "leveling up" of humanity.
This Review disentangles and separately examines the two core accounts of dignity in Waldron's work. The first, which purports to identify the nature of contemporary legal dignity as a form of status, appears to be promising step toward better understanding the role dignity plays in law. The second, Waldron's historical account of dignity's development that offers up something like an origin story for our contemporary conceptions, is more troubling. Borrowing from feminist theory and queer theory, as well as from the equality projects to which they are allied, I contend that Waldron's narratives of extending aristocratic privilege threaten to entrench inequality and injustice while limiting the potential for marginalized groups to employ dignity as a deeply remedial legal tool. I urge Waldron to revisit dignity's expressive connection to human worth, which has proven central to dignity-based antidiscrimination and antisubordination projects.
Friday, October 31, 2014
Or so argues one commentator. From the Jurist:
The Constitution provides no citizen of any gender or orientation a Constitutional right to marriage. The Constitution is silent on the issue of marriage. It is not mentioned, and therefore it is not a power delegated to the federal government to regulate. For lawyers, judges and in particular, Supreme Court justices, the inquiry on this issue should end there—right where silence demands judicial inaction.
Friday, October 17, 2014
Erin Sheley, GW Law, has uploaded "Doubled Jeopardy: The Condemned Woman as Historical Relic." It is forthcoming from Law and Literature and its abstract reads:
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Tuesday, October 14, 2014
Tomorrow, I am presenting as part ofthe University of Akron's Rethinking Gender series." The title of my talk is "Understanding Divorce Law Historically Through the Lens of Gender." It is based on a chapter of my book project, Elizabeth Cady Stanton and the Feminist Foundations of Family Law now nearing completion.
One running theme of the book is appreciating Stanton as a lay lawyer - a person trained by her father, who was a judge and lawyer who apprenticed young lawyers in their home; a person analytically inclined to "think like a lawyer;" who understood the normative function of the law; and who advocated for legislative reform and legal change. This legal understanding, I think, offers insights for us in both understanding her work in the nineteenth-century, and also incorporating its relevance today. See Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Thomas & Boisseau, eds. NYUP 2011).
On divorce, Stanton was a vocal and persistent advocate for no-fault, or "easy divorce." But more importantly from my perspective is that she framed divorce as a woman's issue. Divorce was both a right and a remedy for woman's wrongs. Her life-long commitment to divorce reform attacked the problem of restrictive marriages, which confined women into legal obscurity under coverture, patriarchal social expectations, and sometimes domestic abuse.
Her framework of gender approached the divorce issue from the three classic feminist approaches: equality, difference, and systemic. As to formal equality, Stanton challenged the double moral standard that supported the law of divorce, for example, allowing divorce for the wife's adultery, but requiring "aggravated" adultery of adultery plus some additional fault like cruelty, dessertion, or sodomy by the husband. Her equality theories conceptualized divorce as a individual right, granting women autonomy and psychological freedom to control their own personal relations.
As to difference, Stanton argued that fault grounds for divorce should be expanded to address the different concerns of women. The law was too focused on grounds based on sexual privilege, as in adultery and failure to consummate. Instead, it needed to include grounds most relevant to women, cruelty and desertion. A cruelty divorce mechanism connected to Stanton's work on temperance and against domestic violence, arguing the necessity of releasing and protecting women and children in abusive relationships. Desertion was important for women because they needed a court to restore their legal rights as a single woman to contract, hold property, earn income, and have custody of their children. Men accomplished desertion by practice, simply walking away, often headed West, retaining their legal identity, all property rights, and the ability to earn a livelihood and thus in little need of the courts.
These specific arguments as to divorce grounds though were part of Stanton's much bigger and radical challenge to the system of marriage itself. She conceptualized marriage not as a covenant or status, but as a contract. And as a contract between two fully equal partners. And as a contract like any other employment or commercial contract that could be modified or terminated at the will of the parties. This gave her the legal foundation to justify no-fault divorce, though it didn't mollify the moral critics. Despite opposition from most other feminist reformers, Stanton continued to advocate for free access to divorce, fighting against the backlash and growing conservativism at the end of the century. See Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment, 22 Const. Comment. 137 (2005).
Tuesday, October 7, 2014
Scott Cunningham (Baylor) & Manisha Shah (UCLA, Public Affairs), Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Carmen Gonzalez (Seattle), Women of Color in Legal Education: Challenging the Presumption of Incompetence, The Federal Lawyer (July 2014)
Steven Douglas Smith (San Diego),Die and Let Live? The Asymmetry of Accommodation
Aaron A. Dhir (Osgoode Hall), Homogeneous Corporate Governance Cultures, Chp. 1, Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity (Cambridge University Press. Forthcoming).
Russell K. Robinson (Berkeley), Unequal Protection, 67 Stanford L.Rev. (2015)
Ian P. Farrell & Nancy Leong (Denver), Gender Diversity and Same-Sex Marriage, Columbia Law Review Sidebar (Forthcoming)
Deborah Drake (The Open U), et. al., Sociology of Prison Life, in Wright, J. (ed), Int'l Encyclopedia Social & Behavioural Sciences (Forthcoming)
Ben McJunkin, Deconstructing Rape by Fraud, 28 Columbia J. Gender & Law (2014)
Monday, October 6, 2014
Jelke Boesten, University of Leeds, UK, has recently published Sexual Violence During War and Peace (Palgrave Macmillan). The abstract reads:
The idea that rape is widely used as a weapon of war has taken root in international institutions, influencing how post-conflict justice and transitional justice are perceived and pursued. Despite this global attention, there has been no progress eradicating or even mitigating sexual violence in war or in peace and very little progress prosecuting crimes of sexual violence. With particular reference to post-conflict justice, this book asks what sexual violence means from a socio-political perspective and in what ways contemporary "peacetime" violence is linked to wartime rape. Evidence from Peru and the internal armed conflict of 1980-2000 shows that acts of wartime rape are deeply embedded in existing configurations of gender and power and that sexual violence serves not only wartime terror but also peacetime hierarchies.
Friday, October 3, 2014
Susan Ayres, Texas A & M Law, has uploaded to SSRN "Using Dramatic Narratives to Teach Domestic Violence." The abstract reads:
The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.
Monday, September 29, 2014
Corey Ciocchetti, Denver (Business School), has uploaded to SSRN "Religious Freedom and Closely Held Corporations: The Hobby Lobby Case and Its Ethical Implications." The abstract reads:
Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also brought to light some major ethical dilemmas such as: (1) whether the government has the right to second-guess a person’s religious beliefs, (2) when do religious beliefs become too attenuated from the actions they oppose to truly pose a burden on religion and (3) whether religion can only be experienced by human beings. Though the lawyers will move on to the next legal challenge, Americans in general must continue to grapple with these ethical dilemmas as citizens of a society needing to find the appropriate balance between religious freedom and improving public heath.
This article attempts to answer some of these questions by evaluating the Hobby Lobby case from many different angles. Part II recounts the stories underlying the legal challenge. These stories, often-neglected in law review articles and judicial opinions, when told in depth add context and nuance to the case and help bring to life topics that seem boring if analyzed purely in legalese. For example, the Greens tell a story of a family who consider their work at Hobby Lobby to fulfill their calling from God. They sincerely believe they are expected to practice their religion at work even if it costs the corporation, and themselves personally, a great deal of money. The federal government tells the story of a nation in desperate need of better and less expensive health care options -- particularly for women. The government claims that women need cost-free preventive care (and particularly cost-free contraceptives) in order to improve their health and reduce unwanted pregnancies. Better access to contraceptives will also give women more power to control their reproductive lives and compete more effectively in the workplace. Part II brings these litigants to life and sets the stage for a discussion of the law in Part III and the application of the law to these parties in Part IV.
More specifically, Part III synthesizes the state of the law surrounding religious freedom and preventive health care at the time the Hobby Lobby case hit the Supreme Court. The article recounts the history of religious freedom in America and how this concept worked its way into the first words of the First Amendment and eventually into the very broadly protective Religious Freedom Restoration Act. This part ends with an evaluation of the ACA’s contraceptive mandate and its requirements regarding access to cost free preventive care for women.
Part IV evaluates the court decisions in the Hobby Lobby case. The discussion begins with the District Court’s denial of Hobby Lobby’s request that mandate be stayed and ends with the Supreme Court’s decision issued on the last day of its October 2013 term. All in all, the discussion moves with the case from a federal district court (where Hobby Lobby asked for a preliminary injunction) to the Tenth Circuit Court of appeals (where that decision was affirmed) to the United States Supreme Court (where Hobby Lobby’s appeal was summarily denied) back to the Circuit Court sitting en banc (where the district court was urged to issue the preliminary injunction) back to the district court (where the judge reversed himself and issued the injunction) and finally to the Supreme Court (where Hobby Lobby emerged victorious). This part summarizes the lower court decisions and evaluates the Supreme Court decision in detail, section by section.
Part V, the final substantive part of the article, begins with the statement that the Court reached the correct legal decision in the case considering: (1) the important place religious exercise holds in the fabric of America, today and historically, (2) the broad brush with which Congress painted RFRA and (3) the fact that Hobby Lobby’s employees will still receive all twenty FDA-approved contraceptives at no cost. The discussion then moves to the ethical issues spun off by the Supreme Court decision. The three ethical dilemmas chosen for analysis revolve around the questions of whether corporations can exercise religion, whether it is ethical for religion to trump third party rights and whether governments have any business analyzing the beliefs of a religious adherent in order to better craft public policy.
The article concludes with a call for further research into potential answers to these and other ethical dilemmas keeping in mind that Hobby Lobby is just the first shoe to drop in the fight between religious freedom and parts of the Affordable Care Act.
Thursday, September 25, 2014
Shagufta Omar, International Islamic University, has uploaded to SSRN Marriage in Islam. The abstract reads:
The institution of family occupies a highly important position in Islam. Besides regulating human marital relations it plays a key role in the development and progression of a well-entrenched social order. It considers this relationship a sacrament social contract between two independent and pubescent persons and introduces checks and balances to protect and secure the rights of all stakeholders in this matter - husband, wife, children and the society large. Unlike certain other religions, Islam however does not regard marriage above dissolution and gives this right to both the spouses. According men and women equal social, legal and moral status as human beings, Islam differentiates between their status, roles and responsibilities in the family system, based on equity and justice. However, the true spirit of role differentiation is misunderstood by non Muslims as well as by less informed Muslims as establishing the patriarchal system endorsing gender equality and discrimination against women.
Monday, September 15, 2014
Caitlin Borgmann, CUNY Law, has uploaded on SSRN "Abortion Exceptionalism and Undue Burden Preemption." The abstract:
This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.
Friday, September 12, 2014
David Cruz at USC Law has uploaded "Baker v. Nelson: Flotsam in the Tidal Wave of Windsor's Wake" on SSRN. The abstract reads:
Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the Supreme Court’s ruling in United States v. Windsor (2013) to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court when it returns to the issue. It then at some length shows one particular aspect of Windsor’s wake: the way it has helped lower federal courts unanimously and properly conclude that doctrinal developments after the Supreme Court summarily rejected a same-sex couple’s constitutional claims to a right to marry in Baker v. Nelson (1972) have rendered that decision no longer dispositive. Although Baker would in no event prevent the Supreme Court itself from revisiting the constitutional issues, the ability to declare Baker doctrinally undermined has positive repercussions for the social equality and lived reality of same-sex couples across the country in the mean time. Finally, Part IV of the Article addresses some of the ways in which United States v. Windsor itself developed constitutional doctrine in ways that advance the cause of constitutional justice and same-sex couples’ rights to equal protection and to marry.
Wednesday, September 3, 2014
David Orentlicher, Indiana University, has uploaded to SSRN Abortion and Compelled Physician Speech. The abstract reads:
As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment precludes the government from forcing individuals to voice the government’s views. On the other hand, legislatures and courts can insist that physicians properly explain to patients about their medical conditions and potential treatments so patients can make informed decisions about their health care. When taking care of patients, doctors assume a duty to speak, as well as a duty to speak responsibly.
Ordinarily, the doctrines of free speech and informed consent coexist without much difficulty. But as states have expanded the kinds of information that abortion providers must disclose to pregnant women, First Amendment concerns have become increasingly salient. In this article, I will use several examples of speech mandates for abortion and other health care services to identify principles for distinguishing between legitimate regulation of the informed consent process and illegitimate interference with the freedom of speech.
First, speech mandates should be permissible when they provide material information to patients about their health care decisions. If the state is trying to ensure that patients are fully informed, the mandates should be allowed. As a corollary, the information must be truthful and not be misleading. The goal is to inform not to misinform. Second, speech mandates that pertain to moral considerations should not be permitted. Rather than informing the patient’s decision, these mandates force the physician or other health professional to espouse the state’s ideology.
Courts and legal scholars have proposed other ways to distinguish permissible from impermissible mandates (e.g., whether the government takes sides, manipulates emotions, or uses graphic images). However, these additional distinctions raise their own concerns and should not be needed. If courts strictly apply the requirements that compelled speech pertain to medical facts about abortion and its alternatives rather than abortion ideology and that the compelled speech be truthful and not misleading, then the interests of pregnant women and their physicians should be protected.
Jason Potter Burda, UMass School of Law, has uploaded to the SSRN When Condoms Fail. The abstract reads:
Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known in the media as “PrEP”) has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for use by certain HIV-negative individuals to prevent infection. Despite an effectiveness of up to 92 percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement.
In this article, I address the social, legal, and policy challenges that will shape future implementation of this game-changing HIV prevention modality. I develop a framework for understanding these challenges by dividing them into two dimensions: acceptability and accessibility. I argue that self-imposed, individual, and institutional stigma affects PrEP acceptability among high-risk groups, and among healthcare providers. In addition, I speculate that utilization management for PrEP is likely to increase as a result of PrEP rollout, and that PrEP is vulnerable to benefit denials based on medical necessity exclusions.
One solution to overcoming these challenges is mandating benefits for, and eliminating accessibility hurdles to, PrEP under the Affordable Care Act’s Preventive Services and Essential Health Benefits provisions, as well as mandating PrEP coverage through state action. Health content regulation, although controversial particularly after the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, will be necessary both to ensure that PrEP treatment reaches the populations most at risk of spreading the virus and to overcome antiquated assumptions about HIV prevention.
Tuesday, August 5, 2014
Thursday, July 24, 2014
Maya Manian has uploaded on SSRN "The Consequences of Abortion Restrictions for Women's Healthcare," 75 Wash. & Lee L. Rev. 1317 (2014). The abstract reads:
This Essay challenges the false assumption that abortion care can be segregated from women’s medical care and targeted for special restrictions without any effects on women’s health more broadly. As a matter of medical reality, abortion cannot be isolated from the continuum of women’s healthcare. Yet policymakers and the public have failed to understand the interconnectedness of abortion with other aspects of women’s medical care. In fact, existing abortion restrictions harm women’s health even for women not actively seeking abortion care, but these impacts remain obscured. For example, antiabortion laws and policies have spillover effects on miscarriage management, prenatal care, and the treatment of ectopic pregnancies. Focusing the public’s attention on the broader effects of abortion restrictions on women’s health could help make visible the links between abortion and healthcare. Furthermore, educating the public about the full healthcare consequences of abortion restrictions could be one key means to preserving access to abortion care. Repositioning the law to recognize abortion care as an integral part of the continuum of women’s medical needs is critical to protecting women’s health.
Tuesday, July 15, 2014
Kim Shayo Buchanan has uploaded "When Is HIV a Crime?" on SSRN. The abstract reads:
HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception — including deceptions that may jeopardize the partner’s health — are lawful; rape law expressly accommodates an expectation that men may lie to get sex from women. Neither public health nor retributive considerations adequately justify singling out HIV from other, permitted forms of sexual deception. Moreover, most HIV transmission and nondisclosure takes place between men, but a large majority of prosecutions involve men accused of nondisclosing to women. The inconsistency of HIV laws with their ostensible rationales, their arbitrary inclusions and exclusions, and the striking disparities in HIV prosecutions all tend to raise suspicion that discriminatory impulses may be at work.
Criminal laws and their implementation tend to frame HIV as a crime that matters most when it disrupts expectations that non-drug-injecting heterosexuals should be immune to anxiety about HIV. They situate HIV as fairly benign when contained within stigmatized populations such as gay men, intravenous drug users, Africans and sex workers. When HIV-positive people transgress these boundaries and cause heterosexual men and women to worry about HIV, though, this transgression is often punished as a crime, even when the behavior poses no transmission risk. HIV laws and their implementation raise concern that discriminatory fallacies about race, gender and sexuality may shape perceptions of whether, when and why HIV is a crime.
Sunday, June 29, 2014
Monday, June 23, 2014
I usually don't publicize older articles on SSRN but I saw this interesting piece (recently uploaded) by Syracuse's Keith Bybee, who is always interesting. The abstract reads:
What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically motivated policymaker. These two conceptions provide the only current options for making sense of gender imbalance. Calls for gender equity do not fit easily with the conventional conception of impartial adjudication; as a result, arguments about the importance of increasing the number of female judges tend to be assimilated into the conventional conception of preference-driven policymaking. Thus, given this structure of debate, discussions about the meaning of gender imbalance typically devolve into bickering about politicized courts. I conclude by considering how arguments about gender imbalance might be productively re-cast by moving beyond the basic conceptions that currently structure debate over the courts.