In March 2015, lawyer Dora Monserrate-Peñagaricano was representing a client in a deposition hearing in the U.S. District Court for Puerto Rico when she complained aloud to a colleague that the room was hot.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court
Wednesday, September 13, 2017
Taunya Lovell Banks, President Obama and the Supremes: Obama's Legacy -- The Rise of Women's Voices on the Court, (forthcoming), Drake Law Rev. (forthcoming)
For approximately two hundred years, all of the United States Supreme Court justices were male. Now there are three women on the Court, two appointed during the administration of President Barack Obama. With the appointment of Justices Sotomayor and Kagan to the Court, women’s voices literally are more prominent, especially during oral argument. This article speculates on whether the presence of these three women on the Court will influence the substance of decisions. It asks whether we are witnessing the emergence of a definable “women’s” voice, in the collective sense, or whether there is simply a greater representation of women on the Court; women justices, who like their male counterparts, sometimes agree and sometimes do not. In addition, this article asks whether the reaction of some commentators, and male justices, to the increased participation of women justices during oral argument suggests implicit gender bias, another possible by-product of President Obama’s legacy.
Tuesday, September 12, 2017
Armie Hammer will start opposite Felicity Jones in On the Basis of Sex, the biopic of renowned Supreme Court Justice Ruth Bader Ginsburg.
Participant Media is behind the drama, which will be directed by Mimi Leder from a script by Daniel Stiepleman, who is also Ginsburg’s nephew.Sex focuses on Ginsburg, played by Jones, as she teams up with her husband, Marty Ginsburg (Hammer) to bring the first landmark gender discrimination case before the Supreme Court.
The movie is eyeing a fall shoot in Montreal.
The feature is slated for release in 2018, in line with Ginsburg's 25th anniversary as a Supreme Court Justice. Focus Features is distributing domestically.
Felicity Jones is set to star as Ruth Bader Ginsburg in a biopic about the Supreme Court justice's life.
On the Basis of Sex will be directed by Mimi Leder (The Leftovers, Shameless) and follows Ginsburg as she fights for equal rights throughout her entire law career, which began at Harvard University and Columbia Law School and led to Washington.
At one time, Natalie Portman was considered to play Ginsburg in the feature, which was written by Daniel Stiepleman and was placed on the 2014 Black List.
Wednesday, August 30, 2017
New Books Network, Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray (Oxford 2017)
Rosalind Rosenberg‘s book Jane Crow: The Life of Pauli Murray (Oxford University Press, 2017) is a multi-layered and rich biography of Pauli Murray, an activist, lawyer and Episcopal priest whose life intersected with the most significant civil and human rights issues of the twentieth century. As a mixed raced woman who felt that her identity was at odds with her body before transsexual had become part of the popular consciousness, Murray’s life provides insight into a lived intersectionality of race, class, gender, and sexuality. Beginning with her southern upbringing, we follow Murray through multiple educational, vocational and identity challenges she suffered. In a journey through a dislocated life, she contributed to multiple movements and institutions working with many key social leaders such as Thurgood Marshall, Eleanor Roosevelt and Betty Friedan. Appearing as a one-person social movement with a deep religious faith she pursued justice not only for herself but also for others. Rosenberg has provided sympathetic insight into the personal cost that Murray incurred on the road to a more equitable society. Rosalind Rosenberg is Professor of History Emerita at Barnard College.
Thursday, August 24, 2017
It is common for judges to publish guidance for lawyers who appear in their courtrooms on how to conduct themselves with regard to minor matters like how and when to file motions. But on Wednesday, Jack B. Weinstein, a senior federal judge in Brooklyn, used this typically mundane process to address an issue of growing concern to many in the legal profession: the lack of female lawyers in leading roles at trials and other court proceedings.
Following the lead of a handful of other federal judges, Judge Weinstein issued a court rule urging a more visible and substantive role for young female lawyers working on cases he is hearing.
The issuance of the rule was just one jurist’s effort to chip away at the traditional old-boy network that has dominated the legal profession for decades. While some women have, of course, ascended to the top of the legal field, serving on the United States Supreme Court, many still face challenges getting heard in court.
Judge Weinstein has informally encouraged young women and minorities to participate in court more actively over the years, but in an interview on Wednesday he said he decided to codify the guidance after a recent New York State Bar Association report found that female lawyers appear in court less frequently and that when they do, they are less likely to have a prominent role.
At least one other federal judge in Brooklyn, Ann M. Donnelly, has an analogous rule in place, but that sort of guidance is rare. Of the hundreds of other federal judges around the country, only about 20 have established similar provisions, according to the bar association.“I’ve been doing this on my own for some time, but not in a systematic way,” Judge Weinstein, who is 96, said. “It’s particularly important because we have so few trials these days so some of the youngsters don’t get the same training they used to. It’s important for everyone, and for the litigation process, that the upcoming generation understands the fundamentals and just gets up on their feet.”
Friday, August 4, 2017
Women in Law and Leadership Symposium
Friday, November 3, 2017
Marcum Conference Center at Miami University
You are invited to the Women in Law and Leadership (W.I.L.L.) Symposium from 8 a.m. to 5 p.m. on Friday, November 3, 2017.
Miami University and its Pre-Law Program are proud to present a daylong conference focused on issues related to women in law and leadership. The conference will bring together lawyers and current Miami students. Miami Pre-Law students will moderate panel discussions featuring successful Miami alumni in the legal profession. Panel topics include gender issues in the workplace, work/life challenges, keys to success, and career trajectories and possibilities. Each session has significant intellectual and practical content designed to improve each participant’s professional competence and understanding of leadership. Application for Ohio CLE credit is pending.
For more information, please contact prelaw@MiamiOH.edu
Thursday, July 6, 2017
We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
MothersEsquire: An Introduction to a Supportive Community
As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession. I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained. I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups. The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life. The same outsider phenomenon can also describe the role of students attending these events. I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.
This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession: MothersEsquire. This year has been an important one for the organization of women’s groups. From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year. The MothersEsquire organization stands out in a couple of key ways.
First, it is not limited to geographical boundaries or bar licensure borders. For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside. This is an obstacle, or at least a deterrent, to my participation in local bar events. The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner.
Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc. As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities. For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time. The organization is also working on breastfeeding accommodations. It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.
Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations. Certainly, not all women lawyers are mothers or identify as mothers. Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession. For those that do, however, this group provides an outlet, an information source, a networking portal, and more. Its website explains:
“We are Moms. We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school. We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night. And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”
Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin. Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so. This group is distinctively inclusive. It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that. Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers.
For more information about MothersEsquire join the Facebook group or check out its website: I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.
Wednesday, June 28, 2017
Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen. Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922). So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her. Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point.
As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges. I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away. My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role.
Thursday, June 8, 2017
Updated June 8, 2017
For awhile, it looked like the appointments of new law deans this year was trending women. For my thoughts as to possible explanations for this trend, see my quoted comments in Karen Sloan, If It's a New Law Dean, It's Likely a Woman.
However, now as we near the end of the 2017 hiring season, it seems that the trend is less to a gender preference, and more to equality of appointment.
To date in 2017, 14 of 28 (50%) new deans are women. Two are women of color.
In 2015, 46% of new law dean appointments were women. Annual List of New Women Law Deans.
Still, a new study of law school deans, US Law School Industry: Dean Positions 2015-2016, concludes that “Law programs and their leadership remain potentially gendered. . . . Women continue to be substantially under-represented at the highest levels of leadership, though we find that differences are significantly less pronounced at Assistant and Associate Dean positions.”
Here is the 2017 list:
Aviva Abramovsky, Buffalo (Associate Dean for International Initiatives, Syracuse)
Joan Bullock, Thomas Jefferson (Associate Dean for Academic Affairs, Florida A&M)
Marcilynn Burke, Oregon (Associate Dean for Academic Affairs, Houston)
Cathy Cox, Mercer (President, Young Harris College, former Secretary of State Georgia)
Megan Carpenter, New Hampshire (Co-Director, Intellectual Property, Texas A&M)
Darby Dickerson, John Marshall Chicago (Dean, Texas Tech)
Susan Duncan, Univ. of Mississippi (Interim Dean, Louisville)
Heather Gerken, Yale (Professor, Yale)
Judge Maureen Lally-Green, Duquesne (Judge, Interim Dean, Duquesne)
Rachel Janutis, Capital (Interim Dean, Capital)
Judge Madeline Landrieu, Loyola New Orleans (Judge, Louisiana Court of Appeal)
Lyrissa Lidsky, Univ. of Missouri (Associate Dean, Graduate Programs, Florida)
Hari Osofksy, Penn State (Professor, Minnesota)
Judge A. Gail Prudenti, Hofstra (Judge, Interim Dean Hofstra)
The men appointed to new deanships are:
Richard Bierschbach, Wayne State (Associate Dean, Cardozo)
Paul Caron, Pepperdine (Professor, Pepperdine)
Erwin Chemerinsky, Berkeley (Dean, UC Irvine)
Colin Crawford, Louisville (Professor, Tulane)
Dan Filler, Drexel (Associate Dean, Drexel)
Lee Fisher, Cleveland State (former Lt. Gov, Interim Dean CSU)
Michael Hunter Schwartz, McGeorge (Dean, Arkansas)
Michael Kaufman, Loyola Chicago (Professor, Loyola Chicago)
Gregory Mandel, Temple (Interim Dean, Temple)
John Manning, Harvard (Deputy Dean, Harvard)
Richard Moberly, Nebraska (Interim Dean, Nebraska)
Anthony Niedwiecki, Golden Gate (Associate Dean, John Marshall Chicago)
Jack Nowlin, Texas Tech (Senior Associate Dean, U Mississippi)
CJ Peters, Akron (Associate Dean for Scholarship, Baltimore)
WSJ, A Rooney Rule for Law Firms? Project Aims to Promote More Women (behind pay wall)
It looks like Biglaw firms are finally moving from the rhetoric of diversity to that reality. Thirty firms, including DLA Piper, Paul Hastings, Jenner & Block, Morrison & Foerster, Blank Rome, and White & Case, have committed to abiding by a version of the “Rooney Rule” when promoting and hiring laterals. For those that have no more than a passing familiarity with the concussion-fest that is the NFL, the Rooney Rule — named after the late owner of the Pittsburgh Steelers, Art Rooney — requires teams to interview at least one minority candidate when there is a head coach or general manager vacancy. The rule is seen as a progressive success — yes, eight minority head coachesis seen as a success — and now Biglaw firms are taking a cue from the NFL.***
The idea was proposed by Mark Helm, a partner at Munger, Tolles & Olson, at Diversity Lab’s event, Women in Law Hackathon. Diversity Lab then worked with the firms to develop the rule, and as reported by Law.com, they are committed to making sure the law firm rule is successful:
“These law firms have signed on [to] help us form the idea, put it into fruition, see what works, see what doesn’t work,” said Caren Ulrich Stacy, CEO of the Diversity Lab, which is working with the firms to develop the Mansfield Rule. “We’re going to stick with the firms and we’re going to help them measure and track and then [see] where the needle has moved over the course of the year so that its second iteration next year could be even better.”
The Biglaw version of the rule, named the Mansfield Rule after Arabella Mansfield, the first woman admitted to practice law in the U.S. (a good fact to remember for a future Trivia Question of the Day), asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys. And, if the firms can demonstrate 30 percent of the pool for these positions are diverse, they’ll be “Mansfield Certified.” That spiffy designation will allow firms to participate in a client forum hosted by 45 in-house legal departments, including companies like Facebook, HP, Microsoft, and PayPal.
The participating firms seem committed to the Mansfield Rule, and are hopeful it will yield real results:
“It has been demonstrated again and again that diverse teams make better decisions. While we aspire to create those teams everywhere, including and especially in leadership, it is also well documented that unconscious bias clouds our best intentions,” said Fenwick & West managing partner Kathryn Fritz in a statement to The American Lawyer. “The Mansfield Rule helps us bring greater intention to our considerations and actions so that we can achieve our aspirational goal.”
There also is a sense that an industry-wide solution is what’s needed, as the Wall Street Journal reports:
Alan Hoffman, the managing partner and chairman of Blank Rome, said the firm is thrilled to participate in the pilot because “we’re not retaining women in the practice at the same rate as men.” Blank Rome began in 2012 trying to get more women in line to take over practice group leadership, and now half of the firm’s 16 practices are led by women.
Orrick Chairman and Chief Executive Mitch Zuklie said the rule looks to be a promising way for law firms and their clients to come together to hold the industry accountable and is emblematic of the fact that “systemic problems require systemic solution."
I have written about the need for systemic solutions for gender discrimination such as the use of gender quotas, and also the limitations of token measures like the Rooney Rule. See Tracy Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law (online) (Nov. 2016).
Tuesday, May 16, 2017
An unnamed partner in Proskauer’s Washington, D.C., office has sued the firm in federal court, alleging she is a victim of discrimination and claiming “substantial gender disparities” in the firm’s partnership. The suit claims at least $50 million in damages.
Proskauer called the claims “groundless” and suggested that the partner sought to force a payout after her practice faltered.
The complaint was filed Friday in D.C. by lawyers at Sanford Heisler Sharp—which is also leading a high-profile gender bias lawsuit in New York on behalf of current and former female Chadbourne & Parke partners. Proskauer represents Chadbourne in that case.
The plaintiff in Friday’s lawsuit accuses Proskauer of paying her millions of dollars less than her male counterparts, despite her “standout performance” at the firm.
“Among other things, Proskauer excluded plaintiff from client matters, declined to allow plaintiff to pitch or to participate in any employment litigation matter for firm clients, rebuffed her efforts to assume a greater leadership role at the firm, tolerated and facilitated an environment where she was targeted for harassment and humiliation by firm leadership, demeaned and belittled her to her peers and clients, and refused to rectify pay disparities,” the suit alleges.
Friday, May 12, 2017
In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.
Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.
Friday, April 28, 2017
The model rule, passed by the House of Delegates at the 2016 Annual Meeting, makes it a violation of professional responsibility to discriminate or harass on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. The rule was controversial both within and outside the ABA, although the Standing Committee on Ethics and Professional Responsibility worked to address concerns raised by other ABA sections.
Those changes may not have been enough for the Montana legislature, whose Joint Resolution No. 15 says the model rule infringes on the First Amendment rights of people licensed to practice law in Montana, and “seeks to destroy the bedrock foundations and traditions of American independent thought, speech, and action.”
The resolution is also critical of the Montana Supreme Court, which invited public comment on the model rule in October. The resolution says public comment was overwhelmingly opposed, but the court “relentlessly pursues adoption” of the rule by extending the time to consider it. This, the legislature said, overreaches the high court’s authority to regulate the conduct of attorneys—it says “the word ‘conduct’ clearly does not include the concept of ‘speech’”—and usurps the legislature’s power to make laws.
“Contrary to the ABA’s world view, there is no need in a free civil society, such as exists in Montana, for the cultural shift forced by the proposed rule, and even if such a need did exist, the Supreme Court has no constitutional power to enact legislation of any sort, particularly legislation forcing cultural shift,” the resolution says.
The resolution is at least the second statement of opposition to Model Rule 8.4(g) from a state government. In December, Texas Attorney General Ken Paxton issued an opinion saying the rule violates attorneys’ right to free speech and would not hold up in court. That opinion was submitted to the Montana Supreme Court for consideration.
The model rule has also been criticized by First Amendment scholar and UCLA law professor Eugene Volokh. He reiterated Wednesday at the Volokh Conspiracy that he believes the rule is so broad that it captures protected political speech, and that harassment and discrimination is better dealt with through employment law.
Thursday, April 27, 2017
Carrie Menkel-Meadow, Feminist Legal Academics: Changing the Epistemology of American Law Through Conflicts, in Gender and Careers in the Legal Academy (Ulrike Schultz, ed. Hart Publishing-Onati Series, forthcoming)
In this Chapter I will describe the inter-generational contributions of the first few decades of women law professors who have created a contested “canon” of new understandings of legal concepts in American jurisprudence and legal practice. I describe here the way in which several generations of women law professors (some working with legal practitioners) have forged new legal ideas or “memes” (cultural units of understandings), and legal causes of action that have reframed not only “women’s issues” (reproductive rights, employment and labor rights, family law, violence, rape and criminal law, as well as constitutional jurisprudence and different conceptions of “equality”), but have also contributed new conceptions or interpretations of mainstream legal concepts (e.g. in contracts, property, and torts etc.).
Those of us who have written about these developments over the years all acknowledge the inter-generational differences in meanings attributed to our goals as participants in the making of new legal epistemology—the interpretation of law and doctrine, the creation of new concepts, causes of actions, or legal “memes,” the creation of new courses and methods for learning law, whether and how our new epistemology should be integrated (or more controversially “assimilated”) into mainstream American law doctrine and education, how we have or have not influenced the legal academy and legal thought generally, as well as legal practice and law reform measures, and what lessons we offer for future generations of “outsiders” who are increasingly populating our profession with more diverse bodies and ideas.
Friday, April 14, 2017
“You’re not getting menopause, I hope,” interjected the opposing lawyer, Camilo Salas, in front of 14 other, mostly male, lawyers.
Monserrate bridled at his comment. And in a sanctions hearing several months later, U.S. District Judge Francisco A. Besosa also chastised Salas for it, quoting the American Bar Association report First Chairs at Trial: More Women Need Seats at the Table to emphasize the comment’s discriminatory nature and negative impact: “An ABA report published this year,” stated the judge, “identified ‘inappropriate or stereotypical comments’ directed at female attorneys by opposing counsel as one of the causes of the marked underrepresentation of women in lead trial attorney roles.”
It’s not the only time that the First Chairs report—which examines why there is a dearth of women lawyers in lead counsel and trial counsel posts and what to do about it—has been cited in sanction hearings. Since its release in 2015, this first-of-its-kind study, published as a joint project of the American Bar Foundation and the ABA Commission on Women in the Profession (CWP), seems to be having the precise effect that its coauthors hoped it would.
“I think having judges call that behavior out, and having a study that they can rely on,” is a powerful tool for change, says coauthor Roberta D. Liebenberg, a former chair of the CWP and a senior partner at Philadelphia-based Fine, Kaplan and Black, R.P.C. Stephanie A. Scharf, who heads the litigation practice at the women-owned Chicago firm Scharf Banks Marmor LLC, served as Liebenberg’s coauthor.
The two began by taking a random sample (608 cases) of all the civil and criminal cases filed in 2013 in the U.S. District Court for the Northern District of Illinois. They examined the cases from the perspectives of (1) type of case, (2) type of practice setting, and (3) type of client. They found that women were consistently underrepresented in lead counsel roles in almost all types of legal settings. Notably, men were three times more likely than women to serve as lead counsel in civil cases. And when surveying criminal cases, the authors found that men were four times more likely than women to serve as trial lawyers.
“You could go into any courtroom and just by being there know that there are not enough women as first chair trial lawyers,” Liebenberg says. “But because we did the statistics, the thing has really taken off. It’s been cited by several courts in sanctioning lawyers for biased behavior, like during a deposition. It’s been cited in a law review article. It’s been cited by The Wall Street Journal and the New York Times. And it really shows you how important the statistical backup is—to validate what we can all see with our eyes.”
Tuesday, March 21, 2017
Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)
Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***
Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.
California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.”
In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.
Tuesday, February 28, 2017
It has been 27 years since the first black man, an older student by the name of Barack Obama, was elected president of the prestigious Harvard Law Review. It has been even longer — 41 years — since the first woman, Susan Estrich, was elected to the position. Since then, subsequent presidents have been female, Hispanic, Asian-American, openly gay and black.
Only now, for the first time in the history of the venerable 130-year-old journal, is the president a black woman.
ImeIme (pronounced “Ah-MAY-may”) Umana, 24, the third-oldest of four daughters of Nigerian immigrants, was elected on Jan. 29 by the review’s 92 student editors as the president of its 131st volume....
“It still feels like magic that I’m here,” Ms. Umana said in an interview, though her fellow students said it was not magic at all but her sharp legal mind, intense work ethic, leadership ability and generosity of spirit that catapulted her to the top.
Ms. Umana’s emergence now has raised questions about why it took so long for a black woman to reach the pinnacle of the review and how her perspective may influence a publication that has for most of its existence been led by white men.
When Ms. Umana talks about the law, she speaks through the prism of her race and gender. Not far from her mind are the black women who in recent years died after encounters with law enforcement.
Unlike the vast majority of graduates of the nation’s top law schools, Ms. Umana says she has no interest in joining a high-paying corporate firm. Her dream for now is to become a public defender, a goal she set after an eye-opening internship last summer in the public defender’s office in the Bronx. She plans to work this summer with the public defender in Washington.
“A lot of the clients I worked with that summer and since have looked a lot like me,” she said. “They are disproportionately represented on the unfortunate end of the legal system, so it struck a little closer to home.”***
So why did it take so long to elect a black woman?
In Ms. Umana’s view, the lag reflects a wide gulf between black women and law school — and the law in general, a profession in which minorities have historically been underrepresented.
“We’ve been systematically excluded from the legal landscape, the legal conversation, and we’re just now making some important inroads,” she said in her office at the law review, which occupies Gannett House, a creamy 19th-century Greek Revival building that amid the law school’s imposing brick and concrete edifices looks like a New England cottage.
A 2014 study found a wide gender disparity at many of the nation’s top law reviews. It suggests that women do not apply in the first place for a host of reasons: They prioritize other parts of their lives, do not want to put in the extra hours that law reviews demand and are less interested in conventional markers of success like law review membership.
Monday, February 27, 2017
Akron Beacon J., Ohio Bill Outlawing Marital Rape Gets No GOP Support, Again
As an assistant prosecutor in Summit County, Greta Johnson made a habit of asking females on the witness stand if they had married their alleged rapists.
“And that just seemed crazy to me. But it was a question I had to ask,” Johnson said. “I remember occasionally thinking, what if they were married? Would that have changed the situation?”
The situation? Maybe not. Justice for the crime? Maybe.
In Ohio, husbands or wives can rape their spouses so long as there is no force or threat of force. The “spousal exemption” means husbands can drug and rape wives, and avoid a first-degree felony rape charge.
“As a former prosecutor,” said Johnson, who now represents part of Akron in the Ohio House, “I would argue that you could still try to prosecute under the forced rape statute, but unfortunately drugging and raping your spouse in Ohio is not illegal.”
In her first term, Johnson introduced House Bill 234. It would have done away with this “spousal exemption” in Ohio’s criminal code. The bipartisan, bicameral Ohio Criminal Justice Recodification Committee explored this and agreed.
But the 2015 bill died in a Republican-controlled committee, receiving no more than initial testimony from its Democrat sponsors, Johnson and Rep. Teresa Fedor of Toledo.
Johnson suspects the bill failed for partisan reasons. Obstructing legislation offered by minority parties is common practice in Ohio’s history of making laws.
But GOP members also pushed back on a provision of the bill that eliminated Ohio’s 20-year statute of limitations on rape and sexual assault cases. Johnson still thinks rape should be categorized with murder and aggravated murder as crimes that have no shelf life for prosecution.
“I’ve always called rape murder of the soul. It changes people in fundamental ways. Nobody will ever be the same,” Johnson said. “The only thing [my clients] wanted was something I could never offer, which is the day before [the rape] happened.”
But with more pragmatism in her second term, Johnson have compromised by dropping the provision on statute of limitations and instead crafted a cleaner bill that focuses on the marital rape exemptions.
Friday, February 17, 2017
Jennifer Mika, The Noteworthy Absence of Women Advocates at the US Supreme Court, 25 American J. Gender, Social Policy & Law 1 (2016)
Abstract:Arguing before the U.S. Supreme Court is considered one of the most prestigious accomplishments in a litigator’s career. However, during the last five terms, women consistently make up less than one fifth of this elite club. This article takes a closer look at the advocates that argued before the Supreme Court during the 2015-2016 term as well as those who appeared more than once in a given term over the past six years. It explores the possible causes of the deficit in women advocates including gender disparity in Supreme Court clerkship experience. It strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.
Tuesday, February 14, 2017
From the archives of Judge Florence Allen. Allen was the first woman judge elected to a state supreme court (Ohio in 1922), appointed to a US Court of Appeals (6th Circuit), and shortlisted for the US Supreme Court. She saved this card sent to her from friends.