Gender and the Law Prof Blog

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

Monday, April 16, 2018

Neoliberalism and the Lost Promise of Title VII

Henry L. Chambers, Jr., Neoliberalism and the Lost Promise of Title VII, JOTWELL, reviewing Deborah Dinner, Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, 92 Ind. L.J.  1059 (2017).

In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”

 

The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.

April 16, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, March 27, 2018

Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context

Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)

Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.

March 27, 2018 in Family, Gender, International, Theory | Permalink | Comments (0)

Wednesday, March 21, 2018

Before MeToo There was Catharine MacKinnon

 

MacKinnon

NYT, Before #MeToo, There was Catharine MacKinnon and her Book "Sexual Harassment of Working Women"

Catharine A. MacKinnon’s influential work of legal scholarship published in 1979, but it offers the clearest possible illustration of the dynamics that MacKinnon believed were central to the American workplace, a system in which women were judged by the standards imposed on wives and concubines, used and discarded similarly.

 

MacKinnon, whose work has helped shape thinking about harassment, wrote at a time when the trees were beginning to shake in a landscape that still looked a lot like Cheever’s. Women remained employed largely in their capacity to serve as secretaries, receptionists, nurses, typists, telephone operators, research assistants. In the book, MacKinnon draws on the observations of the sociologist Talcott Parsons, who noted that a woman in an “occupational organization” was essentially a “wife-mother,” tasked with ego-building, “housekeeping (tidying up, answering the phone, getting coffee)” and performing the attendant role of “sex object.” In 1976, aRedbook magazine survey examining sex at work brought a kind of loose statistical confirmation, with one in three respondents remarking that appearance was as important as any other qualification when it came to getting hired. MacKinnon cites one woman’s lament that the well-paid jobs always go to the prettiest girls. It was a woman’s fate to either endure the migratory hands of a male boss and earn a decent living, or wish she looked good enough to invite the indignities.

 

These arrangements made the sexual subjugation of women in offices and on factory floors inevitable. “Women tend to be economically valued according to men’s perceptions of their potential to be sexually harassed,” MacKinnon argues. “They are, in effect, required to ‘ask for it.’” These imbalances, built on the subordination of female labor to male desire, meant that coercion and compliance could never be disaggregated — a notion that only now, in the aftermath of so many harassment scandals, with replicating details, is finding its place in our collective recognition. MacKinnon and other feminists who are almost always tagged as “radical” reflexively saw what so many witnesses to the current revelations are still absorbing: Harassment has been endemic to the way we do business. It has been tireless and unyielding.

March 21, 2018 in Equal Employment, Gender, Legal History, Theory | Permalink | Comments (0)

Wednesday, March 14, 2018

MeToo, Time's Up, and Theories of Restorative and Transitional Justice

Lesley Wexler, Jennifer K. Robbennolt, Colleen Murphy, #Metoo, Time's Up, and Theories of Justice

Abstract:

Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned.

This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.

We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, emphasize the need for holism and mixed types of responses in trying to spur societal change.

March 14, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, March 8, 2018

Law Students Protest Libertarian Feminist Speaker

Campus Speech Protest Draws Call to Discipline Students

The shouting down of Christina Hoff Sommers by students at Lewis and Clark law school during a talk on her brand of feminism has renewed concern about freedom of expression in academic settings.

 

Protesters who disrupted Sommers’ March 5 appearance at an event sponsored by the conservative legal group the Federalist Society should face school and bar discipline, one scholar told Bloomberg Law. Another said their tactics only amplified her ideas, which they opposed.

 

“I think there’s always a tough balance to be drawn between the right of speakers to speak and the right of students to protest,” Tung Yin, a professor at the private Portland, Ore., school who attended the event told Bloomberg Law.

 

The Lewis and Clark incident is one of many controversies involving events hosted by conservative groups that were canceled or disrupted on college and law school campuses. Law schools have not had as many incidents as other campuses, but some Federalist Society events have become a venue for politically charged disputes over speech.

 

Seattle University law school revoked its co-sponsorship of an immigration discussion in October hosted by its chapter of the Federalist Society. Texas Southern University law school soon after canceled a Federalist Society event that was to feature a conservative state representative.

Feminism Critiqued

Sommers, a scholar at the American Enterprise Institute, a nonprofit conservative-leaning think tank, articulates what she calls a “factual feminism” that critiques contemporary feminism. For instance, she challenges the gender wage gap and claims about the prevalence of sex assault on college campuses.Her lecture, “The Closing of the Feminist Mind,” was “an argument for a more judicious, inclusive, freedom-centered feminism,” Sommers told Bloomberg Law by email.

 

At least some of the protesters who interrupted her talk were law students, according to Yin.

 

They chanted that “rape culture is not a myth” and that the gender wage gap “is real,” in a video uploaded to YouTube. They also sang “no platform for fascists.”

 

Janet Steverson, a law professor and dean of diversity and inclusion at the school, asked Sommers to “wrap up” her speech “a couple of” times, Yin said.

 

Sommers said that she was able to give half of her speech, and that most of the student attendees, including progressives, were civil.

 

But she complained in a tweet about Steverson’s interference and said she was “never able to develop” her argument.

 

The speech was intended “to show that there was too little intellectual diversity in gender studies,” and that the “lack of balance has been harmful to the field” and “students who take it too seriously,” Sommers said.

 

“The censorious protesters who shouted me down could be Exhibit A for my thesis,” Sommers said.

 

She told Bloomberg Law that she is a registered Democrat and a moderate “libertarian feminist.”***

 

A better strategy for the protesters would have been to ignore the speech, Anthony Michael Kreis, a law professor at Chicago-Kent College of Law, told Bloomberg Law by telephone.

 

“I really had no idea who” Sommers was before the incident, but “now I know a lot more about her,” which shows that the protests were counterproductive, he said.

Sommers is the author of  Who Stole Feminism? How Women have Betrayed Women (1994) and  Freedom Feminism (2013) on the history of "conservative feminism," and host of the vlog The Factual Feminist.

Sommers' positions and writing have been characterized by the Stanford Encyclopedia of Philosophy as "equity feminism," a classical-liberal or libertarian feminist perspective which suggests that the main political role of feminism is to ensure the right against coercive interference is not infringed. Sommers has contrasted equity feminism with "victim feminism" and "gender feminism", arguing that modern feminist thought often contains an "irrational hostility to men" and possesses an "inability to take seriously the possibility that the sexes are equal but different."

 

March 8, 2018 in Law schools, Theory | Permalink | Comments (0)

Wednesday, March 7, 2018

Making the Case for Gender Quotas

Gender quotas are back in the news with the Oscars and the trending of "inclusion riders."  See posts here and here.  Not so long ago gender quotas were talked about with Canadian Prime Minister Justin Trudeau's 50% female cabinet, European corporate board quotas, and the United Nation's gender parity initiatives.

Quota is certainly a bad word.  But that doesn't mean its a bad idea.  To the contrary, I have argued that quotas, specifically gender quotas, can be legal.  And that such quotas are powerful remedies that offer the promise of structural change.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

The article first discusses the need for and the power of gender quotas.  They are worth examining because no other remedy packs as much potential for making concrete, meaningful, systemic change.  The article traces the other contexts, mostly international, where such quotas have been endorsed.  It then addresses the legal issues. Here is an excerpt:

 

III.  Making the Legal Case for Judicial Gender Quotas

* * *

A second legal question regarding the validity of gender quotas is whether ordering such gender-specific relief would violate constitutional parameters of equal protection as seen in the affirmative action cases. U.S. Supreme Court decisions in the race context seemed to have foreclosed most affirmative action remedies like quotas in education and employment. Conditioning state action based on race is said to be discriminatory and trigger strict scrutiny, thereby justifying little state action.“‘To be narrowly tailored, a race-conscious admissions program cannot use a quota system,’ but instead must ‘remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.’” Race, however, can still be used as one factor in decisions like university admissions.

On the other hand, the European Court of Justice has upheld gender quotas against claims that they violate equality dictates. “[T]he ECJ's jurisprudence has reinforced the notion that gender quotas can only be narrowly justified by the goal of eradicating women's disadvantage.  Particularly when women's underrepresentation in certain positions is explained by prejudice, stereotype, or other practices associated with women's traditional exclusion from working life, quotas tend to be upheld.” Viewed this way, “[q]uotas are a mechanism for combating and undoing the history and present complex structures of women’s subordination.”

In the U.S., the question turns in large part on application of the Fourteenth Amendment’s Equal Protection Clause as to whether a gender quota as a judicial remedy would itself constitute discrimination. One key distinction between gender and race quotas is that the constitutional standards for sex discrimination have been distinguished from those for race. The Supreme Court has applied only intermediate, not strict, scrutiny to sex-based classifications. While arguments have been made over the years that sex is akin to race in its immutable and stereotypical function, and thus should demand the same level of strict scrutiny, the Court has stuck to its different standard for women. As a result, the Court has shown a greater tolerance for sex-based action, articulating a need to protect women or acknowledge gendered differences. And the constitutional standard has been interpreted by the Court to require women’s admission to the avenues of power.

What the intermediate standard of constitutional scrutiny might mean in the quota context is that sex-based action might be more tolerable than race-based action. Perhaps this is the silver lining of the double-standard of intermediate scrutiny. For the Court's gender jurisprudence has recognized “the transformative potential of affirmative action and” how it “best advances the antisubordination goal of the equal protection guarantee.”Courts would need to identify important (but not compelling) interests justifying the sex-based action. These important interests could be derived from women’s non-representative lack of power, continued subordination, lack of autonomy, and other systemic effects well-established in the feminist literature, and interests in equity, proportional representation, and balanced power which have driven global reforms.

This important objective of reversing gendered and discriminatory systems by mandating shared parity of power differentiates the case of gender quotas from the women-only policy struck down in Mississippi University for Women v. Hogan. There, a state university’s nursing program was open only to women.132 The state claimed that its single-sex admission policy “compensate[d] for discrimination against women and, therefore, constitutes educational affirmative action.” The Court noted, significantly, that such a justification could be an important governmental interest. “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.” However, in Hogan, the Court found that this compensatory remedial purpose was not in fact the state’s objective. “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities.” The Court concluded that, “[r]ather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tend[ed] to perpetuate the stereotyped view of nursing as an exclusively woman’s job.” In addition, the Court found that “MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.” Thus, the constitutional infirmity with the all-women policy in Hogan was that it was not remedial and not aimed at reversing systemic inequality, but rather impermissibly perpetuated gendered stereotypes.

Where affirmative remediation is the legitimate objective, the Supreme Court has upheld quota-like gender preferences. In Johnson v. Transportation Agency, the Court upheld an affirmative action plan of a county employer granting promotion preference to a woman against challenge under Title VII. The county adopted the plan because “mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.” It’s “goal” (specifically designated as the softer term “goal” rather than “quota”) was to achieve “a statistically measurable yearly improvement in hiring, training and promotion of minorities and women” by the use of a “benchmark by which to evaluate progress,” working toward a long-term goal where its work force matched the gender composition of the area labor force, 36%. At the time, just 22% of the employees were women, two-thirds of them clerical, only 7% women in administration, 9% in technical, and none in the position of the skill craft worker challenged in the lawsuit. The Court upheld using the gender preference as one of the factors of employment, citing the statistical imbalance and underrepresentation of women. It did not, the Court said, “unnecessarily trammel the rights of male employees or create [ ]  an absolute bar to their advancement” because positions still remained available for men and candidates, both men and women, still had to be qualified for the position.

Taking these cases together, the Court has shown a willingness to consider quotas in the gender context. While it has not had the question presented directly, the Court has at least not closed the door to gender parity. Instead, as in any heightened constitutional scrutiny, it demands close and careful application of the constitutional standards to ensure that gender preferences are not mere pretexts nor avenues for future discrimination.

March 7, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Monday, March 5, 2018

Gender Sidelining Symposium

A terrific lineup of speakers at the upcoming Gender Sidelining Symposium

Gender Sidelining Symposium at California Western School of Law

 

Subtle, yet pernicious forms of unequal treatment exist wherein women may not experience adverse outcomes that are actionable under anti-discrimination or other laws, but nonetheless may find themselves hindered in their ability to advance and flourish. These myriad behaviors, policies, and practices lead to "Gender Sidelining"—a term recently coined by a group of law professors at California Western—whereby women experience obstacles that the law does not (and arguably should not) proscribe.

The Gender Sidelining Symposium on April 26-27, 2018 will highlight examples of and help us understand the process by which this phenomenon occurs. By bringing together academics and practitioners from a broad range of fields—employment and labor law, business law, criminal law, politics, and beyond—the symposium will take an innovative look at how existing social structures can lead to adverse treatment on the basis of gender when actions may not be motivated by gender-based animus or even by implicit bias.

March 5, 2018 in Conferences, Equal Employment, Gender, Theory | Permalink | Comments (0)

TBT: What Feminist Pedagogy has Wrought

Zipporah Wiseman, What Feminist Pedagogy has Wrought,  11 American J. Gender, Social Policy & Law 963 (2003)

As the day progressed, and I listened to each of your papers, I was struck more and more by the realization that you are part of a revolution in legal education. When I began teaching in 1973--no, twenty years before that--when I went to law school, what you are doing now was unimaginable. Legal education, in mid-century, in the huge majority of law schools, comprised studying and parsing appellate decisions. A law school class consisted of an authoritarian male in the front of the classroom who led us, the poor hapless students, overwhelmingly male, through a series of questions, usually focused on one student, guiding us to the one right answer. We might be lucky enough to guess the answer. But the professor was the only one who knew it. Thus he (it was always a he) demonstrated how, in his all-wise and all-knowing authority he guided us on the right path to the right answer through the exercise of pure reason.

 
In her book [Battered Women and Feminist Lawmaking (2000)], Liz Schneider describes the model of pedagogy that she, with the assistance of Sarah Buel, initiated in her course on battered women at Harvard Law School in 1991. That course, and the ones all of you teach, are the revolution. The thought that one could teach law as a process of fostering social change and even more radically, change in the lives of women, was a totally foreign notion several decades ago. Significantly, in my view, none of you has spent any time discussing your pedagogical method. That is simply not an issue for you anymore. This is what you do and how you do it. One powerful way is you tell stories. Brenda Smith gave us a wonderful example of feminist pedagogy. I would guess that we will all remember her story long after we have forgotten everything else that has been said here.* * *  You are also changing the culture of law schools as well as the larger culture.
 
And when the day comes when our male colleagues stop calling feminists' courses “soft” law and their own courses “hard” law--which they do with nary a glimmer of self consciousness or awareness of the sexual connotation--then we will have in fact revolutionized the law schools. I have, however, no sense that this, or any other similar characterization of your work, affects your consciousness of what you are doing or achieving, or what you are fighting for or about. Okay. That's their problem.
 
I wanted to tell you that I am walking on cloud nine after listening to all of you. I want to congratulate you and tell you that you have brought a message of hope.

 

March 5, 2018 in Education, Law schools, Theory | Permalink | Comments (0)

Tuesday, February 20, 2018

Exposing the Myths of Negotiating While Female

Andrea Kupfer Schneider, Negotiating While Female, 70 SMU L. Rev. (2017)

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.

February 20, 2018 in Gender, Theory, Women lawyers, Workplace | Permalink | Comments (0)

Friday, February 9, 2018

The Historical Persecution of Women and the Birth of Female Criminality

Amy Gainford,  Mad, Bad or Sad? The Historical Persecution of Women and the Birth of Female Criminality

Throughout history the notion of the ‘female criminal’ has been something of a taboo, an almost morbid curiosity to male dominated societies. As such through misogynist crusades they have attempted to eradicate the world of any women who did not meet the criteria that society dictates. Women who were outspoken and passionate were condemned. Numerous methods were employed to keep women in their place. From the early persecution of witch-hunts in the 15th-17th century to the medicalization of their melancholy in the Victorian era, women were suppressed. Early criminologists ‘discovered’ the biological elements of female criminality and contemporary Criminal Justice System and the mainstream media perpetuated this image. In doing so the disdain from the general public towards criminal women has grown. Often the combination of public hatred and the media’s macabre portrayal creates something of a modern day witch-hunt against these women. Perhaps this is because events of the past ‘demonstrate’ women behaving badly or because of misogyny so deeply ingrained within out society that we cannot escape it. These beliefs that women are fundamentally, biologically evil have seeped into mainstream societal systems that aim to serve the people but instead persecute an entire sub-section of society.

February 9, 2018 in Legal History, Theory | Permalink | Comments (0)

Shifts in Feminist Legal Theory Since the 1990s

Susan Boyd & Debra Parkes, Looking Back, Looking Forward: Feminist Legal Scholarship in SLS, (2017) 26(6) Social and Legal Studies 735

This article offers a review of shifts in feminist legal theory since the early 1990s. We first use our respective histories and fields of expertise to provide a brief overview and highlight some key themes within feminist legal theory. We then examine Social & Legal Studies (SLS), asking whether it has met its key goal of integrating feminist analyses at every level. Our review suggests that SLS has offered many important contributions to feminist legal scholarship but has not fulfilled its lofty goal of integrating feminist analyses at every level of scholarship. It features feminist work quite consistently and some degree of mainstreaming is evident, as is the international reach of SLS. Too many articles fail, however, to incorporate or even mention feminist approaches. We end with thoughts about, and hopes for, the future of legal feminism, examining efforts to revitalize the field and suggesting possible directions for the future.

February 9, 2018 in Theory | Permalink | Comments (0)

Thursday, February 8, 2018

Pink Hats and Black Fists: The Role of Women in Black Lives Matter

Jessica Watters, Pink Hats and Black Fists: The Role of Women in Black Lives Matter, 24 William & Mary J. Women & Law 199 (2017)

On January 21, 2017, nearly five hundred thousand people, many cadorned in pink, cat-eared “pussyhats,” descended on Washington, D.C.—the flagship location for the official “Women’s March.” In total, 673 “sister” marches took place across the seven continents, including Antarctica. An estimated five million people participated worldwide, and the March was the largest single-day protest in United States history.

 

One photo from the March belies the purported unity. In that photo, Angela Peoples, a Black woman, stands unbothered in a crowd of smiling White women wearing pink “pussyhats.” Ms. Peoples’ cap reads “Stop Killing Black People;” her sign says “Don’t forget: White women voted for Trump.” . . . The picture vividly demonstrates the dissonance between America’s mainstream feminist and civil rights movements, a juxtaposition further illuminated by the success of the Women’s March.

 

This divide has a long history, and there is a wealth of scholarship examining how race shapes women’s experiences and discussing the importance of intersectional feminism. Feminism has historically been White-centered, while civil rights discourse largely pertains to men of color. The theories of “intersectionality” and Critical Race Feminism arose as a response to this discordance. These theories offer a critical perspective of the interplay of race, gender, and class for women of color in a patriarchal, racist system. For modern feminism to survive, it must adapt to include the significant group of people who are presently excluded by “White feminism”— those who are both women and members of racial and ethnic minorities, as well as those who are economically disadvantaged; it must fully embrace intersectionality.

 

This Comment does not offer a new justification of the importance of intersectional feminism, nor does it aim to highlight the shortcomings of the Women’s March. Instead, it uses the Women’s March as a case study to highlight the role of women in protest, and more specifically, the importance of White women’s future participation in intersectional movements.

February 8, 2018 in Pop Culture, Race, Theory | Permalink | Comments (0)

Wednesday, February 7, 2018

Carceral Feminism and MeToo

MeToo Must Avoid "Carceral Feminism"

“Carceral feminism” refers to a reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence. A very early manifestation of this approach came with the UK’s Criminal Law Amendment Act of 1885. The act responded to public concern over slim evidence of the entrapment of British girls into the sex trade by raising the age of consent and outlawing “gross indecency” — which, as it happens, also gave the government a more effective means to arrest suspected gay men. (Famously, this was the law under which Oscar Wilde was convicted.)

 

The carceral impulse has arisen in each of feminism’s three waves and is most visible among today’s so-called sex-work “abolitionists,” who argue against decriminalizing sex work and instead for the criminalizing the purchase of sex. While intended to aid sex workers, in practice this approach leads to the isolation of workers from their systems of support and prevents them from earning a living.

 

Elizabeth Bernstein, a professor of women’s studies and sociology at Barnard, was one of the first to use the phrase “carceral feminism.” It appears in her 2007 article “The Sexual Politics of the ‘New Abolitionism.’”

 

She describes carceral feminism as failing to address the underlying economic conditions that exacerbate gendered violence. Neoliberalism shaped “a carceral turn in feminist advocacy movements previously organized around struggles for economic justice and liberation,” she writes. Instead of pushing for the preconditions necessary for feminist liberation, the “carceral turn” restricts feminist horizons to the individual and the punitive, rather than the collective and redistributive.

 

What does carceral feminism look like in practice? In the 1970s, class-action lawsuits filedby women against police departments that either ignored domestic violence calls or provided inadequate services — however well intended — spawned an approach to the issue of domestic violence overly reliant on prisons and punishment. Such cases resulted in the 1994 Violence Against Women Act, or VAWA for short, which was included in the largest crime bill in US history. It was a $30 billion piece of legislation that, among other things, funded the hiring of 100,000 new police officers across the country.

 

What grew from carceral feminism’s efforts to combat domestic violence should concern us all. Another example: Today, nearly half of all states have a mandatory arrest law, which requires that if someone places a call to law enforcement about domestic violence, the police must arrest someone in response.

 

February 7, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, February 6, 2018

Appalachian Feminism

Feminism in the Coalfields: What Appalachians of the 1970s Can Teach Today's Feminists

Appalachian feminism, which is to say feminism of working-class white and Black women who lived in a place long dominated by corporate officials, has volumes to teach us about meaningful efforts to reach gender equality, but more importantly, justice. Above all, Appalachian feminism insists upon an understanding of class oppression, which operates within a capitalism that thrives on racist and sexist social structures. It requires listening to women whose feminism is rooted in their daily experiences and charting feminist movements that will transform society for all women, not just those in positions of relative power.

 

Appalachian feminists emerged out of welfare rights and labor movements. By the early 1970s, a few dozen welfare rights groups had organized across West Virginia, eastern Kentucky, and southwestern Virginia. White and Black women led the movement and made militant calls for the rights of poor and working-class women.***

 

In recent years, the most recognized feminists have focused on representation rather than the redistribution of power and wealth. Theirs is not a feminism of deep solidarity. What does standing together truly look like? With fresh assaults on the social safety net happening seemingly daily and renewed attention to working women’s lives, the history of Appalachian feminism is one that today’s feminists would do well to emulate. At the core of Appalachian feminist activism of the 1970s was an understanding that gender justice for all meant accounting for the ways in which capitalist enterprises exploited working people’s paid and unpaid labor and how the state denied them their rights as citizens. The advice that the Appalachian Women’s Rights Organization gave to middle-class white feminists in the 1970s still holds: “take up the genuine problems of the vast majority of women.”

February 6, 2018 in Poverty, Theory | Permalink | Comments (0)

Monday, February 5, 2018

Conference: Transnational Legal Feminisms

Cornell International Law Journal, Symposium: Transnational Legal Feminisms: Challenges and Opportunities

This symposium brings together feminist scholars from around the world to discuss, offer, critique or disseminate a vision of transnational legal feminisms and the challenges and opportunities it presents.


In particular, we seek to explore three contemporary developments. First, we are interested in the rise, paths, success and challenges of transnational feminism. The far and wide reach of different feminist legal ideas changed the world wherever they touched. 

 

A second development is the rise and maturation of critique within the feminist movement. Feminism has always been an introspective movement. Yet in recent years, some critical voices about feminist paths of power in the national and transnational sphere gained increased foothold within feminist thought.

 

A third contemporary development this symposium will explore, is the rise of right wing, populist, mostly conservative, politics, in many different parts of the globe, from center to periphery and back again. We are interested in exploring together the meaning of this political tidal wave to feminist politics, movement and national and transnational advocacy.

 

 

 

February 5, 2018 in Conferences, International, Theory | Permalink | Comments (0)

Catharine MacKinnon Weighs in on MeToo

I'd been waiting to hear from Catharine MacKinnon on the MeToo movement.  As one of the founders of the law of sexual harassment, I was quite interested in her view.  She is much more optimistic about the impact of MeToo than I had expected.

Catharine MacKinnon, NYT, #MeToo has Done What the Law Could Not

The #MeToo movement is accomplishing what sexual harassment law to date has not.

 

This mass mobilization against sexual abuse, through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims.***

 

Many survivors realistically judged reporting pointless. Complaints were routinely passed off with some version of “she wasn’t credible” or “she wanted it.” I kept track of this in cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.

 

Even when she was believed, nothing he did to her mattered as much as what would be done to him if his actions against her were taken seriously. His value outweighed her sexualized worthlessness. His career, reputation, mental and emotional serenity and assets counted. Hers didn’t.

 

It is widely thought that when something is legally prohibited, it more or less stops. This may be true for exceptional acts, but it is not true for pervasive practices like sexual harassment, including rape, that are built into structural social hierarchies. Equal pay has been the law for decades and still does not exist. Racial discrimination is nominally illegal in many forms but is still widely practiced against people of color. If the same cultural inequalities are permitted to operate in law as in the behavior the law prohibits, equalizing attempts — such as sexual harassment law — will be systemically resisted.

 

This logjam, which has long paralyzed effective legal recourse for sexual harassment, is finally being broken. Structural misogyny, along with sexualized racism and class inequalities, is being publicly and pervasively challenged by women’s voices. The difference is, power is paying attention.

And on what law reforms are needed:

Sexual harassment law can grow with #MeToo. Taking #MeToo’s changing norms into the law could — and predictably will — transform the law as well. Some practical steps could help capture this moment. Institutional or statutory changes could include prohibitions or limits on various forms of secrecy and nontransparency that hide the extent of sexual abuse and enforce survivor isolation, such as forced arbitration, silencing nondisclosure agreements even in cases of physical attacks and multiple perpetration, and confidential settlements. A realistic statute of limitations for all forms of discrimination, including sexual harassment, is essential. Being able to sue individual perpetrators and their enablers, jointly with institutions, could shift perceived incentives for this behavior. The only legal change that matches the scale of this moment is an Equal Rights Amendment, expanding the congressional power to legislate against sexual abuse and judicial interpretations of existing law, guaranteeing equality under the Constitution for all.

February 5, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, January 31, 2018

The Trajectory of Feminist Theory in International Law

Karen Engle, Feminist Governance and International Law: From Liberal to Carceral Feminism, in Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, eds.) (University of Minnesota Press, 2018)

Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation. 

The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions. 

Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.

January 31, 2018 in International, Theory | Permalink | Comments (0)

Thursday, January 25, 2018

Misunderstanding Second Wave Feminism

Who are You Calling a "Second-Wave Feminist?"

Our times have been blessed in one limited way: After decades of refusing and shrugging and avoiding, women want to be called feminists.. . . . And it's nice to feel we're making history. It'd be even nicer . . .if we all knew a little more about the history of feminism.

 

Jezebel, a site that helped kick open the door to the wave now washing over us, recently published a piece by Stassa Edwards titled, "The Backlash to #MeToo Is Second-Wave Feminism."***

 

So let's talk about the second wave.

 

Lesson the first: 1960s feminists came up with the term "second wave" to distinguish themselves from the "first wave" — the suffragettes, more or less. It wasn't exactly a disowning, but second-wave feminists thought of themselves as liberating women personally as well as politically. They also thought of themselves as more sexually free than their predecessors, though historians might disagree.

 

Lesson the second: The second wave wasn't a monolith. No one could claim full ownership of it. Sure, some locate its origins in the work of Betty Friedan, who published "The Feminine Mystique" in 1963Others point to a collective called New York Radical Women. It didn't have formal leadership, but its most famous figureheads were Shulamith Firestone and Robin Morgan. Still others are interested in the strain of literary-intellectual feminism that flourished among writers such as Adrienne Rich and Kate Millett. And, in the popular imagination, Gloria Steinem gets the second-wave feminist crown, standing astride Ms., bringing radical thought to the masses.*

 

Lesson the third: Although second-wave feminism was racist in the sense that its public faces were predominantly white — as contemporary feminists often mention — it was not unaware of this fact.... 

 

This shortcoming in particular, I suspect, is what's behind the common dismissal of the second wave. It is honorable to want to keep holding feminism to a higher standard of anti-racism....But it's simply not the case that the importance of inclusivity only occurred to feminists recently.

 

Which leads to the fourth and final lesson: Although many of them are dead now, I bet quite a lot of second-wave feminists would have loved #MeToo. After all, we have the second wave to thank for sexual harassment laws.

 

Young feminists tend to dislike Catharine MacKinnon, the law professor who took on pornography, for perceived offenses against the 1st Amendment. They may not realize that it was also MacKinnon who, in the 1970s, wrote the legal theory later adopted by the Supreme Court when Mechelle Vinson sued her employer because her boss demanded that she sleep with him. Vinson and MacKinnon opened the door to countless women who would henceforth claim that their bosses' actions created a "hostile work environment."

Where Do you Think They Got These Ideas? Katha Pollitt on Second-Wave Feminism, Harassment, and Progress

In a recent article for Jezebel, Stassa Edwards wrote that “[t]he backlash to #MeToo is indeed here and it is liberal second-wave feminism.” Her piece followed a number of stories from female writers in their 40s and older—such as Daphne Merkin—taking issue with some aspects of the #MeToo movement. In Merkin’s words, there has been a “reflexive and unnuanced sense of outrage that has accompanied this cause from its inception, turning a bona fide moment of moral accountability into a series of ad hoc and sometimes unproven accusations.

Isaac Chotiner: What have you made of the generational tensions or differences between different waves of feminism that have arisen lately?

Katha Pollitt: I’m a little bewildered by it, for several reasons. One is that second-wave feministis being used as a synonym for woman writer of a certain age. I mean, Katie Roiphe is not a second-waver. Daphne Merkin, Andrea Peyser—these women are not feminists at all, in my view. And they are not old enough to be second-wavers. I mean Katie Roiphe was minus 5 years old when The Feminine Mystique was published. So I think I would wish that the young women who are making this claim would read a little bit of history.

he second point is that the very concepts that these young women are relying on—consent, date rape, acquaintance rape, sexual harassment, believing women, intimate questions of power relations between the sexes—where do they think they got these ideas? They got them from the second wave, those old harridans who are now, in fact, 75 and 80 years old. So that does bother me—the lack of history and the ageism

January 25, 2018 in Legal History, Theory | Permalink | Comments (0)

Friday, January 19, 2018

A Relational Feminist Approach to Conflict of Laws

Roxana Banu, A Relational Feminist Approach to Conflict of Laws, 24 Michigan J. L. & Gender 1 (2017)

Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.

January 19, 2018 in International, Theory | Permalink | Comments (0)