Thursday, March 20, 2014

A Feminist Critique of Unjust Enrichment

As a Remedies professor, this spoke to me.  Simone Degeling and Mehera San Roque, Unjust Enrichment: A Feminist Critique of EnrichmentSydney Law Review, Volume 36, Number 1, March 2014.
 
This article commences a feminist critique of the unjust enrichment liability model. Together with other legal categories such as contract, tort and equity, unjust enrichment is an independent source of rights and obligations. However, unlike areas of private law that have been the subject of sustained feminist analysis and critique, there has been little attention paid by feminist scholars to understanding the pattern and impact of gender in unjust enrichment reasoning. This article offers some first steps towards filling that gap. We explore the concept of enrichment, evaluating from a feminist perspective how the tests of enrichment are constructed and applied. Our analysis interrogates the extent to which gendered assumptions, patterns or structures are instantiated within enrichment.
In examining the tests of enrichment, we pay particular attention to the ways in which unjust enrichment responds to the provision of domestic services and care. A paradigm concern within feminist scholarship is private law's treatment of women's work, including domestic services, and the recognition of non-financial contributions in the ownership of property within a domestic relationship. There are thus useful comparisons to be made between the treatment of such services in unjust enrichment and, for example, tort and other sources of rights and obligations in private law, which have already been the subject of feminist analysis. Research reveals cases in which these services have been the subject of claims in unjust enrichment. Our initial conclusion is that while the tests of enrichment are vulnerable to gendered assumptions and structures, they also appear to provide protections against these assumptions and their consequences. The same can be said of the methods of valuation of that enrichment, which show a strong commitment to market valuation. The obvious limit to this observation is that the market price must be attentive to embedded hierarchies, including the gendered division of labour. Nonetheless, unjust enrichment's commitment to this market measure has the potential to limit a defendant's ability to devalue women's work.

March 20, 2014 in Theory, Workplace | Permalink | Comments (0)

Tuesday, March 11, 2014

Redefining Feminism

Mary Ziegler (Florida State) joins us as a guest blogger this month.  Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. Her post last week introduced her topic of exploring feminist legal history.

What do we mean when we talk about feminism? My book project has forced me to reconsider how I would answer this question. My scholarship fits comfortably within any classic definition of feminist legal history: I focus on the intersection of law and history in the context of reproductive health, divorce, marriage, and abortion. I consider myself a feminist and a historian. I brought these understandings of myself and my work to the book and the question at its core: how did Roe v. Wade impact social-movement debate and what can the history of the decision teach us about law as a tool for social change, in the context of gender relations more broadly? Research for the project took me to over seventeen archives, to the basement of convents, and the offices of anti-feminists. The most fun came in the oral histories I conducted with over 100 of those who participated in the abortion wars in the decade after Roe. I spoke with men and women, doctors and homemakers, lawyers and activists, abortion opponents and population controllers, and feminists of every stripe. What I learned made me wonder what it meant to be “pro-choice” or “pro-life.” As importantly, the research made me question who should count as a proper object of study for women’s legal history.

At the beginning of my research, I had treated pro-choice activism as synonymous with the women’s movement—unquestionably a core subject for feminist legal historians. I learned that the relationship between women’s rights and the legalization of abortion was much more contested than I had predicted. Identifying a cause with women’s rights had profound ideological and strategic ramifications. Physicians, population controllers, and even feminists wondered if embracing the rhetoric of women’s rights would set back the progress of abortion reform.

Law also played a surprising and unanticipated role in the creation of the abortion-rights cause. On the one hand, feminists could use the Roe decision in arguing that their movement should frame abortion as an issue of women’s rights. The Supreme Court’s approval made the idea of abortion as a woman’s right more legitimate, more mainstream, and more politically palatable. On the other hand, feminists’ wish to preserve that victory created damaging internal debates about the proper scope of a reproductive-justice agenda, about protections against sterilization abuse, and about what counted as true reproductive liberty.

I wonder how often causes and social movements we identify as feminist have a more troubled history. Did different legal movements once count as feminist? Might social causes associated with feminism today once have had a radically different meaning, both legally and politically? It is questions like these that make Women’s History Month more exciting than ever for feminist legal historians.

March 11, 2014 in Abortion, Family, Legal History, Theory | Permalink | Comments (0)

Tuesday, March 4, 2014

Mary Ziegler Blogs on Women's Legal History This Month

Mary Ziegler (Florida State) joins us as a guest blogger this month.  Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.

If it’s March, it’s time once again to celebrate Women’s History Month. With the rise of important new scholarship, we also have a perfect reason to assess the state of women’s legal history itself. When New York University Press published a volume of essays on feminist legal history in 2011 (co-edited by Tracy Thomas), feminist legal history was still relatively new. At its heart was a narrative about the history of feminism, starting with the Seneca Falls Convention of 1848, continuing through the battle for the Equal Rights Amendment, suffrage, and temperance in the early twentieth century, the rise of the “second-wave” in the 1960s and 1970s, and the backlash to it in the 1980s. Three years later, feminist legal history is unquestionably alive and well—the subject of many books, law review articles, and symposium events. The flourishing of the field makes it more important than ever to question what we mean by both “law” and “feminism.”

Over the course of the month, I’m hoping to blog about the ways in which scholars are testing the boundaries of current understandings of women’s legal history. Some historians have found law in unconventional places: in the stories of those operating in administrative agencies, legislative hearings, abortion clinics, doctors’ offices, and grassroots organizations. These histories invite us to rethink whether women make law even when they do not transform existing doctrine, relate their claims to a lawyer, or change black-letter rules. In this way, women’s legal history stands at the forefront of a larger reevaluation of the relationship between law and social change. How we view that relationship, as women’s legal historians increasingly recognize, depends on how much we recognize something as law even when it fails to conform to our expectations.

Other historians have tested the relationship between feminism and the law. Whom should we consider a feminist? Should we treat as feminist any historical actor who identified herself (or himself) as such, or can we recognize feminists from their substantive commitments? Should feminist legal historians study those who obstructed legal progress for women? Can feminist politics obscure as well as illuminate our understanding of where we are and how we got here?

I am not sure I’ll answer these questions by the end of women’s history month, but it’s crucial to start a conversation about them. Women’s legal history teaches us not to take for granted legal rules, relationships, and institutions that now seem natural. It is a history of society’s blind spots and forgotten opportunities. For that reason, Women’s History Month seems to be as good a time as ever to consider what we as historians might have missed.

March 4, 2014 in Legal History, Theory | Permalink | Comments (0)

Sunday, March 2, 2014

Higdon on Marginalized Fathers and Demonized Mothers

Michael Higdon at Tennessee Law has uploaded Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men.

The abstract: 

Just last month, in the state of Utah, twelve biological fathers filed suit, challenging the state’s adoption laws — laws the fathers allege permit “legalized fraud and kidnapping.” Specifically, these laws require nonmarital fathers to promptly take legal action in Utah to preserve their paternal rights. A problem arises, however, as mothers from other states have started traveling to Utah specifically to surrender newborn children for adoption. The fathers, unaware that their children are being placed for adoption in another state, fail to take action in Utah and, as a result, are permanently deprived of all parental rights. In that sense, these laws — which actually are not much different than the adoption laws of other states — permit nonmarital mothers to effectively thwart a man’s desire to father a resulting child. 

Although not the subject of the Utah lawsuit, at the other end of the spectrum, many are surprised to learn that the law also permits a nonmarital mother to force fatherhood on men who never even consented to the sexual act that produced the child. Male victims of statutory rape, for example, in every case to consider the issue, have been ordered to pay child support for children that were a product of the rape. Likewise, adult men who are victims of sexual assault as well as men whose sperm was taken without their consent (and subsequently used to artificially inseminate a female) have also been consistently ordered to pay child support for the resulting child. In all of these cases, the mother’s wrongdoing has been ruled irrelevant. 

In the enclosed article, Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, I explore examples of both kinds of fathers — I refer to them as “Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy. 

Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other. In the attached Article, I argue that the laws relating to the reproductive rights of nonmarital males have effectively evolved into a modern day form of coverture and, thus, must be opposed for the very same reasons coverture was opposed. In addition, given the parallel these laws share with coverture, the reaction to which has greatly shaped modern feminism, feminist legal theory is an ideal lens through which analyze the harms befalling nonmarital fathers. 

Of course, feminists have, understandably (and often justifiably), looked at the fathers’ rights movement with some skepticism. After all, a victory for fathers could very much come at the expense of those rights feminists have fought long and hard to secure for mothers. As I analyze in the article, however, this concern need not always be the case. And indeed, when it comes to the law as it relates to the reproductive freedom of nonmarital males, feminists are not only the group best situated to wage that battle, but also a group that should have a vested interest in victory. Specifically, as I explore in the Article, the laws in question not only harm nonmarital males, but at the same time, pose significant harms to women. For this reason, I conclude with a list of potential solutions to these problems, identifying areas where change can be instituted so as to offer greater protection for men, but at the same time, preserve current protections afforded women.

March 2, 2014 in Family, Theory | Permalink | Comments (0)

Sunday, February 23, 2014

The Burdens of Manliness....

....as expounded by Mr. Harsh Mander.  Some apt epigrams

1/ For every woman who is tired of acting weak when she knows she is strong, there is a man who is tired of appearing strong when he feels vulnerable.

2/ For every woman who is tired of being called “an emotional female”, there is a man who is denied the right to weep and to be gentle.

3/ For every woman who is tired of being a sex object, there is a man who must worry about his potency.

4/ For every woman who is called unfeminine when she competes, there is a man for whom competition is the only way to prove his masculinity.

5/ For every woman who takes a step toward her own liberation, there is a man who finds the way to freedom has been made a little easier.

I've rehearsed some of these musings as well.  

February 23, 2014 in Manliness, Masculinities, Theory | Permalink | Comments (0)

Friday, February 21, 2014

What Is a "Gentleman"?

The Good Men Project has another earnest, but rather boring, post about what it means to be a gentleman.  The adjectives marshaled are mundane and unhelpful even as they endeavor to wear their virtues on their respective sleeves.  

A quote from the Spanish writer Antonio de Guevara begins the post: 

“A gentleman is to be measured in his speech, generosity in giving, sober in eating, honesty in living, kindness in forgiving, and courageousness in fighting.”

Measured in speech?  Generosity in giving?  Sober in eating?  Honesty in living?  Kindness?  These seem to be virtues which we commend in women as well, right?  

The only descriptor that has been traditionally ascribed to men has been the last one:  courageousness in fighting.  It is, alas, a most vexing and paradoxical virtue.  

February 21, 2014 in Manliness, Masculinities, Theory | Permalink | Comments (0)

Monday, February 17, 2014

Gay men in sports

Michael Sam, the All-American from the University of Missouri, is the first openly gay football player.  Some NFL teams have already supported his candidacy and it seems that the media is supporting him too.  

On the other hand, as you probably know, the NFL doesn't seem to be a hospitable place for cultural differences, as suggested by the ordeals suffered by Jonathan Martin.  

This conflict between the gentleman and the brute, which I've examined elsewhere, seems never ending.....

February 17, 2014 in LGBT, Manliness, Masculinities, Sports, Theory | Permalink | Comments (0)

Tuesday, February 11, 2014

Sexual Orientation Bibliography

A colleague directed my attention to a fabulously useful bibliography--with active links to articles--about LGBT legal issues: 

http://www.lgbtbib.org/index.php

 

February 11, 2014 in Books, LGBT, Same-sex marriage, Scholarship, Theory | Permalink | Comments (0)

Wednesday, February 5, 2014

From here in the US,.....

Christina Hoff Sommers writes in a NYT Op-ed: 

Boys score as well as or better than girls on most standardized tests, yet they are far less likely to get good grades, take advanced classes or attend college. 

Sommers continues: 

The scholars attributed this “misalignment” to differences in “noncognitive skills”: attentiveness, persistence, eagerness to learn, the ability to sit still and work independently. As most parents know, girls tend to develop these skills earlier and more naturally than boys.

Not being an educational sociologist, I have no idea if this is true, but the choice of words intrigues me.  Attentiveness, persistence, ...the ability to...work independently--these are all, arguably, anyway, masculine virtues, aren't they?  

 

February 5, 2014 in Manliness, Masculinities, Scholarship, Theory | Permalink | Comments (0)

Saturday, February 1, 2014

Harvard Law Review Essays on Justice Ginsburg

Essays in Honor of Justice Ruth Bader Ginsburg

ESSAYS BY DEBORAH E. ANKER, SUSAN H. FARBSTEIN, JUDGE NANCY GERTNER, LANI GUINIER, VICKI C. JACKSON, RICHARD J. LAZARUS, JOHN F. MANNING, MARTHA MINOW, CAROL S. STEIKER, JULIE C. SUK, LAURENCE H. TRIBE, MARK TUSHNET

To honor Justice Ruth Bader Ginsburg’s twenty years of service on the United States Supreme Court so far, Harvard Law School planned a celebration and many individual faculty members wrote reflections on some of her opinions. Those reflections are assembled here along with our community’s heartfelt admiration and appreciation. Very few individuals in history come close to the extraordinary and significant role played by Justice Ginsburg in the pursuit of justice before she joined the bench. Her work earned her a faculty post at Rutgers School of Law and then the first tenured post for a female professor at Columbia Law School. As director of the Women’s Rights Project of the American Civil Liberties Union, she argued six landmark cases on gender equality before the U.S. Supreme Court and crafted successful challenges to the system of legally enforced gender roles that limited opportunities for both women and men. With vision and brilliance, she earned a place in the history books and on the honor roll of civil rights heroes. 

Both as judge on the Court of Appeals for the District of Columbia Circuit and as Associate Justice of the U.S. Supreme Court, she has produced a body of superbly crafted opinions and nurtured a quality of collegiality that represents an equally significant contribution to the administration of justice. And there is more to come. 

It is a special privilege and honor for me, as the second woman to serve as Dean, to salute Justice Ginsburg at Harvard Law School. When she was a student here, she faced a class of over 500 men and only seven other women. She juggled her roles as a wife and mother with her work as a law student and faced a Dean who chided female students for taking the places of qualified males. She excelled. She joined the Harvard Law Review. When her husband, fellow law student Martin Ginsburg, had to deal with cancer, she took notes for him and helped him recover. And when the Harvard Dean refused her request to earn her degree while moving to New York with her family and completing her final year of schooling at Columbia Law School, she transferred there and promptly rose to the top of the class. She gently but rightly resisted the requests of later Harvard Law School Deans to accept a tardy degree from Harvard Law School but finally, in 2011, received a Harvard degree — an honorary doctorate, the university’s highest academic honor. It is with joy that we offer these reflections on some of her judicial work. 

~ Martha Minow 

127 Harv. L. Rev. 423 (2013) | DOWNLOAD PDF | WESTLAW 

February 1, 2014 in Theory, Women lawyers | Permalink | Comments (0)

Saturday, January 11, 2014

The New Sex Discrimination is Not like the Old

Zachary Kramer (Arizona) has posted The New Sex Discrimination, 63 Duke L. J. ___(2014)

Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.

This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.

January 11, 2014 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, January 2, 2014

British Fourth Wave Feminism Searches for Intellectual Leadership

Feminism is on a High--but it Needs an Intellectual Voice.

This so-called fourth wave of feminism is a young wave, untempered by previous generations (partly because they ran out of steam after the last national women's liberation movement conference of 1978 in Birmingham). After the first wave of early 20th-century suffragettes led by the Pankhursts, the second wave of de Beauvoir's optimistic postwar wave and the third wave of 1970s bra-burners, we've waited a long time for the fourth. That it is a young wave accounts for its energy but it also points to its weaknesses.

January 2, 2014 in Theory | Permalink | Comments (0)

Friday, December 27, 2013

Tweeting Feminism

Can Feminist Hashtags Dismantle the State?

“Twitter has hands down been one of the most dynamic, vital spaces for feminists in conversation in 2013.”

If the notion that a slew of 140-character utterances could be “vital” to feminism gives you pause, you’re not alone.

December 27, 2013 in Theory | Permalink | Comments (0)