Wednesday, June 13, 2018
20th Century Trailblazing Women Lawyers In 2005, the American Bar Association’s Commission on Women in the Profession initiated oral history interviews with 100 senior women lawyers including former Attorney General Janet Reno and Supreme Court Justice Ruth Bader Ginsburg. Legal historian Jill Norgren discussed her book, “Stories from Trailblazing Women Lawyers: Lives in the Law,” which is based on the transcripts from these interviews. The Wilson Center and National History Center co-hosted this talk
And the book: Jill Norgren, Stories from Trailblazing Women Lawyers (NYU Press 2018)
In Stories from Trailblazing Women Lawyers, award-winning legal historian Jill Norgren curates the oral histories of one hundred extraordinary American women lawyers who changed the profession of law. Many of these stories are being told for the first time. As adults these women were on the front lines fighting for access to law schools and good legal careers. They challenged established rules and broke the law’s glass ceiling.Norgren uses these interviews to describe the profound changes that began in the late 1960s, interweaving social and legal history with the women’s individual experiences.
In 1950, when many of the subjects of this book were children, the terms of engagement were clear: only a few women would be admitted each year to American law schools and after graduation their professional opportunities would never equal those open to similarly qualified men. Harvard Law School did not even begin to admit women until 1950. At many law schools, well into the 1970s, men told female students that they were taking a place that might be better used by a male student who would have a career, not babies.
In 2005 the American Bar Association’s Commission on Women in the Profession initiated a national oral history project named the Women Trailblazers in the Law initiative: One hundred outstanding senior women lawyers were asked to give their personal and professional histories in interviews conducted by younger colleagues. The interviews, made available to the author, permit these women to be written into history in their words, words that evoke pain as well as celebration, humor, and somber reflection. These are women attorneys who, in courtrooms, classrooms, government agencies, and NGOs have rattled the world with insistent and successful demands to reshape their profession and their society. They are women who brought nothing short of a revolution to the profession of law.
Watch the hearing here on CSPAN Senate Committee Examines Workplace Misconduct in the Federal Judiciary, June 13, 2018
Joan Biskupic, CNN, Senate Judiciary Committee Takes up #MeToo in the Courts
The Senate Judiciary Committee will hear testimony related to judicial misconduct on Wednesday, including from a Washington lawyer who says she collected numerous accounts of sexual harassment by judges, in the first public airing of US judges' #MeToo moment.
Live tweeting commentary on the hearing by Courtney Milan (pen name of former law prof and Kozinski judicial clerk Heidi Bond) @courtneymilan
For more on the Working Group Report from the committee which studied the issue:
Monday, June 11, 2018
The Federal Judiciary Workplace Conduct Working Group, a group of federal judges and senior Judiciary officials formed at the request of Chief Justice John G. Roberts, Jr., issued a report recommending measures to improve workplace conduct policies and procedures in the federal Judiciary. The Working Group submitted its findings to the Judicial Conference of the United States, the federal Judiciary’s policy-making body. The report and an executive summary are available online.
The recommendations include clarifying workplace standards and communications about how employees can raise formal complaints, removing barriers to reporting complaints, providing additional and less formal avenues for employees to seek expert advice and assistance on workplace conduct issues, and utilizing enhanced training on these subjects for judges and employees.
Several recommendations of the Working Group have already been implemented or are underway, such as clarifying that confidentiality rules in the Judiciary do not prevent law clerks or employees from reporting misconduct by judges. Many of the report’s recommendations require further action by the Judicial Conference.
The report is here.
Commentary by Joan Biskupic, CNN, Judicial "Inappropriate Conduct" Broader than Isolated Incidents, Panel Finds
A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual harassment reported on Monday that "inappropriate conduct" in the nation's courthouses is "not limited to a few isolated instances."Yet the eight-member group -- which met with scores of former and current employees of the judiciary and invited comment nationwide -- did not detail the magnitude of employee abuse in the US judiciary beyond saying it was "not pervasive." The group also did not note whether, during its five months of study, any action was taken against individual judges or other court employees.The working group, which was established by Chief Justice John Roberts, made several recommendations in its report, including that:
- judges should put a greater priority on improving workplace culture
- the code of conduct should be revised to make clear what behavior is prohibited
- the complaint system should be made more transparent and accessible.
Thursday, May 10, 2018
The Ruth Bader Ginsburg documentary, RBG, directed by Betsy West and Julie Cohen, is probably not what you think it is, or even what, given the partisan hoopla in which we attempt to live our lives, you’d be forgiven for thinking it might be: a fawning polemic detailing a liberal justice battling the court’s right wing. There is fawning, though a fair amount is done by conservatives, including soon-to-retire Republican Senator Orrin Hatch and Antonin Scalia, the conservative justice and, until his death in 2016, the BFF of RBG. But the film is a deftly crafted portrait of a refreshingly wildly mild-mannered legal mind who was a powerful force in American life long before she donned the black robes and her trademark collars (one for dissenting opinions, one when she is siding with the majority, a fashion touch she developed with her female justice predecessor, Sandra Day O’Connor). What’s surprising to a casual follower of the judicial branch is that you’ll be reaching not for your legal pad while watching the film, but the tissues, given that what actually underpins RBG is a love story.
Friday, March 23, 2018
“Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession” is an updated version of a manual first developed by the ABA’s Commission on Women in the Profession in 2007.
This latest version focuses on issues of sexual harassment and bullying within the legal profession and provides more explicit policy advice and guidance for legal industry leaders to follow in order to help eradicate misconduct among their ranks.
“[Zero Tolerance] updates our understanding of workplace abuse and expands it to include non-sexual abusive behavior, such as bullying and protection for individuals who may be targeted because of their sexuality, gender identity, race and ethnicity, alone or in combination,” said the preface by Hill, who has accused U.S. Supreme Court Justice Clarence Thomas of sexual harassment. “The commission’s manual offers ABA members invaluable information that will benefit the profession.”
The new manual outlines sample policies that legal organizations can use in drafting their own policies to prohibit sexual harassment. It also outlines key elements of what a comprehensive policy against sexual harassment should include, as well as guidelines for complaint channels and reporting procedures.
The manual also suggests possible sanctions or disciplinary actions that could be used against a harasser or if there was a retaliatory response taken against the victim of such harassment.
“The legal profession must have zero tolerance of sexual harassment against any person working within our law firms, our justice system or our law schools,” wrote ABA president and Greenberg Traurig co-president Hilarie Bass in the manual’s foreword. “This book provides a roadmap for our profession to move forward to ensure that sexual harassment is something that the next generation of lawyers can describe as a challenge of the past that has been overcome.”
The publication of the updated “zero tolerance” manual comes on the heels of the adoption of a sexual harassment resolution by the House of Delegates at the ABA’s midyear meeting in Vancouver last month, which encouraged all employers in the legal profession to adopt and enforce policies and procedures that “prohibit, prevent, and promptly redress harassment and retaliation.”
Monday, March 19, 2018
Sexual harassment “was not considered anything you could do something about — that the law could help you do something about — until a book was written by a then-young woman named Kitty MacKinnon,” the Supreme Court justice Ruth Bader Ginsburg said at the Sundance Film Festival in January. She was there to attend the premiere of the documentary “RBG,” which will be released this spring. And the book, “Sexual Harassment of Working Women,” published in 1979, argued that sexual harassment in the workplace is sex discrimination and prohibited by equal protection laws.
“It was a revelation,” Justice Ginsburg said. “And it was the beginning of a field that didn’t exist until then.”
The Supreme Court agreed with Catharine A. MacKinnon. In its first case involving sexual harassment in 1986, with Ms. MacKinnon as co-counsel, the court ruled unanimously that sexual harassment is sex discrimination.
For over 40 years, Ms. MacKinnon, 71, has been a pioneer and lightning rod for sex equality. Along with her work on sexual harassment, she has argued, more controversially, that pornography and prostitution constitute sexual abuse of women in the context of social inequality.
Ms. MacKinnon now teaches law at the University of Michigan and Harvard. (In 1990, I studied with her, in a class called “Sex Equality,” when she was a visiting professor at Yale Law School.) Her most recent book, “Butterfly Politics,” surveys her four decades of activism.
Last month, she met Gretchen Carlson, the former Fox News anchor who, more recently, became a public face of sexual harassment. In July 2016, Ms. Carlson sued Roger Ailes, then chairman and chief executive of Fox News, claiming sexual harassment. After dozens of women came forward with their own accounts of harassment by Mr. Ailes, he was forced to resign.
Two months later, 21st Century Fox, the parent company of Fox News, settled Ms. Carlson’s harassment claim for $20 million and issued a rare public apology for her mistreatment. (Mr. Ailes died in May.)
Ms. Carlson, 51, is the author of the best-selling book “Be Fierce: Stop Harassment and Take Your Power Back.” A former Miss America, she was named chairwoman of the Miss America board of directors in January.
The article includes an in-depth interview with both women.
Friday, March 16, 2018
Priya-Alika Elias, What Does Dressing "Professionally" Mean for Women of Color?
The schools did give us certain guidelines. . . . But generally, they avoided specific rules. “Be discreet,” they said. “Dress professionally, like the older lawyers do. Blend in.”
When you’re a woman of color, that’s almost impossible. You learn quickly that your body is hypervisible, because it is probably the only one of its kind in the courtroom. You are constantly among men, white men, who notice how different you look from the usual faces they see. And because you’re hypervisible, you are subject to the harshest, most unforgiving scrutiny. Does that girl belong here? What is she doing here? they wonder. And when they wonder, they seize upon the easiest thing to criticize, the first thing anybody would notice: the way you’re dressed.....
The selective enforcement of rules continued all through law school. We didn’t get a handbook at my summer internship telling us what to wear: It was left to my supervisors to enforce the dress code. They did it in the most arbitrary fashion; my coworker wasn’t admonished for wearing a white suit to court, but I was sent home again and again to change.
Nobody tells you what too much means, in the context of the workplace. They don’t go into detail, because it’s an embarrassing conversation to have with another adult. That reluctance is normal, and it makes employers resort to coded language, like “unprofessional” and “excessive.” Unfortunately, it is this vagueness, this lack of specificity, that is exploited to the detriment of women of color. When you don’t have a clear set of rules to follow, you’re open to the judgment of a subjective authority — often a white male authority. In the eye of that authority, your very presence is a violation.
h/t Sahar Aziza
Tuesday, March 13, 2018
UK Survey on Women in the Law Shows Unconscious Bias, Worklife, Flextime and Male Networks Still Barriers to Equality
The largest international survey of women in the law has been released by the Law Society of England and Wales to mark International Women’s Day 2018, shedding light on the road to gender equality in the legal profession.
“As women solicitors practising in England and Wales outnumber men for the first time in history, people working in law across the world have spoken out about the challenges the profession faces in achieving gender equality,” said Law Society vice president Christina Blacklaws. . . .
"“While more and more women are becoming lawyers, this shift is not yet reflected at more senior levels in the profession. Our survey and a wider programme of work during my presidency in 2018-19 seek to understand progress, barriers and support remedies.
“Unconscious bias in the legal profession is the most commonly identified barrier to career progression for women, while flexible working is seen as a remedy by an overwhelming 91% of respondents to our survey.
“Interestingly, while half of all respondents said they thought there had been progress on gender equality over the last five years, there was a significant difference in perception by gender with 74% of men reporting progress in gender equality compared to only 48% of women.”
- 7,781 people responded to the Law Society’s Women in the Law survey (5,758 women, 554 men and 1,469 unknown or other)
- 74% of men and 48% of women reported progress on gender equality in the last 5 years (overall 50%)
- Main barriers to career progression perceived as:
- Unconscious bias (52%); however, only 11% said unconscious bias training is consistently carried out in their organisation
- Unacceptable work/life balance demanded to reach senior levels (49%)
- Traditional networks/routes to promotion are male orientated (46%)
- Current resistance to flexible working practices (41%)
- 91% of respondents said flexible working is critical to improving diversity
- 52% work in an organisation where flexible working is in place
- 60% are aware of gender pay gap in their place of work
- Only 16% see visible steps taken to address gender pay gap
#MeToo in the Legal Profession
Anita Hill testifying at the confirmation hearing of Clarence Thomas was one of the events that shaped my life as a lawyer, a feminist, and a human being. As the country watched this intelligent, competent black woman give her testimony, I saw what it meant to speak truth to power. I understood that power would not pin laurels on you for bravery, but would instead denigrate you and spit on you and tell you to your face that your experience was a lie. I learned that action requires much more than bravery, it requires sacrifice.
I also understood, when Clarence Thomas responded that the proceedings had descended into a high-tech lynching just how heavy weight of intersectional oppression is, and how it is always deployed in the service of protecting power. What white supremacy cannot accomplish, patriarchy will.
At that time, as a young waitress, I had endured my own ration of sexual harassment. But it wasn’t until much later, until I graduated from law school and started to make my way as a young lawyer and experienced a few very sketchy, borderline moments that I think I grasped the depths of what Anita Hill was up against.
Lawyers expect our profession to provide us with a kind of shield. We are powerful, privileged people, even if we are also female or gay or a person of color or all or none of the above. Our identity as a member of the bar provides us with the ability move freely in the halls of power….until we are harassed by someone even more powerful.
The harassers within the legal profession are among the most powerful people on the planet—bar none. When you’re harassed as a lawyer, it’s often by a judge, a legislator, the partner of your firm, the CEO of the company or the big client. A person with unparalleled resources, cultural capital to burn, and ability to use the law as both a shield and a cudgel against you.
We operate in a profession where confidentiality and discretion are paramount, refusing assignments is difficult, and our reputations are our currency. Harassers use and abuse the ethical and social conventions of our profession to prevent victims from speaking out and speaking up. The result? Persistent gender-based inequality among lawyers that seems to have no discernable cause.
Much of the conversation around #MeToo starts to bleed—quite rightly in some cases—into conversation about crimes, about assault, and about a culture of violence. But sexual harassment is also fundamentally an economic issue, one that warps our profession. The cost is not just to the victims, who must figure out how to earn a living, despite the hostile environment they’re operating in. The cost is to all of us. How many of us have not applied for a job, or turned down a plum assignment because taking it would have put us into close contact with someone who either the whisper network or gut instinct said would not be safe? Avoiding sexual harassment shapes our choices, delimiting our options. The language of choice (“You chose to turn down the assignment”; “You choose the less prestigious clerkship”) masks a sick, systemic tolerance for discriminatory behavior. It’s not a leak in the pipeline, it’s the gaping hole.
The #MeToo moment is an opportunity for change, not just in the general law, but in lawyers. There are specific and concrete steps that we can take now to make our workplaces exactly that—places where we work. Where we represent our clients, or draft legislation, or decide cases. Not places where we have to think about our basic safety and security.
In February, a group of us came together to discuss concrete steps for change at #MeToo: Preventing Sexual Harassment in the Legal Workplace (February 19, 2018, American University Washington College of Law), sponsored by the Women and the Law Program at AU. I was inspired by these women and daunted by the amount of work to be done, starting with:
- Llezlie Green Coleman’s call to rethink the use of non-disclosure, confidentiality, and binding arbitration agreements in employment litigation;
- Cara Greene’s assessment that ethical obligations with teeth are needed to reinforce that our profession will not tolerate sexual harassment in any form; and
- Emily Martin’s reminder that of the need for federal legislation to create humane and effective procedures for reporting sexual harassment on the Hill, as well as her call to get involved with Time’sUp.
We also need to lead the change in our own workplaces. Because of the immense cultural and political power wielded by harassers in the legal profession, we have to pay special attention to the even wider power differential for those who work with us, but who are not also lawyers. Court reporters, paralegals, administrative assistants, law clerks, interns, interpreters, bailiffs, correctional officers. If a harasser is willing to risk harassing someone who is in any other context not afraid to sue your ass, how much more complicated is it for someone without our professional badges and power suits to shield them? We, as lawyers, have an especial obligation to the people we work with—to listen and watch and ask and to believe them when they tell us that something is making them uncomfortable—or worse. Because of the power we possess, ours is a heightened obligation to not be complicit.
In the wake of #MeToo, I’ve thought often of Anita Hill and the lessons her experience etched on us. I’m looking for ways to repay the immense debt that I, at least, owe her for speaking out when doing so meant that she walked alone. Working to end harassment in the legal profession—the context in which Clarence Thomas harassed Anita Hill, and the context in which Anita Hill fought back--is the right place to begin.
Wednesday, February 28, 2018
Friday, February 23, 2018
Carolyn Ramsey, Firearms in the Family, 78 Ohio St. L. J. 1257 (2017)
This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of a reflexive, cultural distaste for firearms.
Both sides in the gun-control debate rely on starkly contrasting, gendered images: the helpless female victim in need of state protection, including strictly enforced gun laws, and the self-defending woman of the National Rifle Association’s “Refuse to be a Victim” campaign. Neither of these images accurately describes the position of many domestic violence victims whose partners have guns, and neither image responds effectively to the heterogeneity of conduct leading to a protection order or a misdemeanor domestic violence conviction that triggers federal and state firearms bans. The emphasis the National Rifle Association and other pro-gun organizations place on a woman’s right to carry a firearm in self-defense ignores the most common homicide risks women face, as well as structural inequalities that contribute to gender violence. Yet, significant problems afflict an uncritically anti-gun approach, too. First, gun-control advocates tend to ignore the reality of intimate-partner abuse—a reality in which some women fight back; some family livelihoods depend on jobs for which firearms are required; not all misdemeanants become murderers; and victims have valid reasons for wanting to keep their partners out of prison. Second, to the extent that proponents of strict gun regulation also exhibit distaste for racialized crime-control policies, they fail to acknowledge that zealously enforced gun laws aimed at preventing domestic violence would put more people—including more men and women from vulnerable communities of color—behind bars.
The current framing of the argument for tougher firearms laws for abusers is derived from public health research on domestic violence that makes a reduction in intimate homicide rates its chief goal. Yet, since hundreds of thousands of domestic violence misdemeanants are thought to possess illegal guns, reformers should also consider the potential costs to victims and their families of a move to sweeping and rigorous enforcement. Changes in gun laws and their implementation in the context of intimate-partner abuse ought to cure over- and under-breadth problems; provide greater autonomy to abuse victims and protections for those who resist their batterers; reconsider the lack of an exemption to the misdemeanor ban for firearms required on-duty; and include a better mechanism for restoring gun rights to misdemeanants who have shown the capacity to avoid reoffending.
Tuesday, February 20, 2018
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.
Wednesday, February 14, 2018
It's that time of year again... New Law Deans time. I'll start tracking here the new women law deans appointed this cycle.
For last year's list and commentary on the trend to women law deans (sort of), see New Women Law School Deans 2017
Kerry Abrams (Vice Provost, Virginia), Duke Law
Theresa Beiner (Associate Dean for Faculty Development, Arkansas-Little Rock), Arkansas-Little Rock
Wendy Hensel (Associate Dean for Research, Georgia State), Georgia State
Carla Pratt (Associate Dean for Diversity, Penn State Law), Washburn
L. Song Richardson (Interim Dean, Associate Academic Dean, Irvine), UC Irvine
Thursday, February 1, 2018
From Associate Dean Usha Rodrigues about the upcoming Women's Leadership in Academia Conference at the University of Georgia, and includes a call for proposals:
We are happy to announce that Georgia Law will be hosting the first annual conference for Women's Leadership in Academia this summer on July 19-20. The conference will emphasize giving attendees concrete skills in areas such as negotiation, as well as building a professional network. Please visit the conference website for more details, and add your contact information in the “conference registration” section if you would like to be contacted as we finalize the details.
We are inviting you not only to attend our conference, but also to help shape it. The conference website contains a call for panel proposals, and we are eager to hear your ideas to further our mission of promoting women leaders.
Friday, January 19, 2018
A nonequity shareholder at Ogletree, Deakins, Nash, Smoak & Stewart claims in a $300 million lawsuit that the defense-side labor and employment firm discriminates against female partners in pay, promotions and opportunities.
The would-be federal class action was filed Jan. 12 by shareholder Dawn Knepper, according to a press release, the Recorder and Bloomberg Big Law Business. Knepper is represented by David Sanford of Sanford Heisler Sharp, the same firm that filed gender bias suits against Chadbourne & Parke, and the now-disbanded firm Sedgwick.
On its website, Ogletree Deakins purports to foster diversity and inclusion, “but this rhetoric is largely hollow,” the suit says. “In reality, the firm has shirked its obligations under the law through its ‘do as I say not as I do’ practices.”
The suit says the firm doesn’t give female shareholders the appropriate credit for business they generate and the work they do, doesn’t give women the same development and training opportunities provided to men, and doesn’t select women for business pitches as often as men.
Compensation decisions are controlled by the firm’s predominantly male compensation committee and are approved by a vote of equity shareholders, about 80 percent of whom are men, the suit says. Men also dominate at the nonequity shareholder level, making up 58 percent of the group, according to the suit, which relied on statistics that were current as of last Dec. 31. ***
The suit seeks $100 million for underpayment, $100 million in compensatory damages, and $100 million in punitive damages. The suit alleges pay discrimination, gender bias and retaliation in violation of Title VII of the Civil Rights Act; violation of the federal Equal Pay Act; violation of California employment law; and unfair competition.
A separate suit seeks a declaratory judgment that Knepper is not bound by any arbitration agreement.
Wednesday, January 10, 2018
From Guest Blogger Catherine Dunham, Professor of Law, Elon University School of Law
Too Pretty: An Essay
The #MeToo moment is powerful and encouraging to those of us who have worked in uncomfortable environments for years. In my high school years, there were retail managers who made up reasons to brush behind you as you ran the cash register. Then, there were the college food service job years which included outright sexual propositions from same age colleagues and groping opportunities disguised as rides home (“let me reach across and get that door for you.”). Fast forward to my first professional environment with new shoes and proper clothes. I was asked to pick things up, to walk across the room, to sit with older male clients and keep them company as they waited for my boss. I knew it was creepy but I perceived myself as someone without power. Also, the men were much older and seemed harmless. To me, they were sad and unthreatening but, in retrospect, they probably saw themselves as first rate opportunities for a young gal like me. I spent eight post college years in subordinate professional roles and literally lost count of the times I was propositioned and of the men who made the overtures. At one particularly low point, a supervisor who positioned himself as my mentor, some 20 years my senior, made a full-scale play for me after months of uncomfortable flirting. The encounter ended with me saying, “please don’t do this – I need this job.” Thank goodness, he relented. I left that encounter thinking I need to get into a better professional position so as not be treated like the Gal Friday, possibly available for anything, for the rest of my career. So, I went to Law School. Certainly, after I became a lawyer, this would stop.
Law school was an oasis in my professional story. I had great male and female student colleagues and felt respected for my intellect and hard work. This calm faded as I entered the profession, particularly private practice where I was called upon for coffee runs in depositions when I was the only women in the room. I was mistaken for a paralegal, a court reporter, a clerk, with one time reprimanded by an out-of-county lawyer who demanded I remain behind the bar as the counsel tables were available only for licensed attorneys. I was called “honey,” “sweetie,” and “girl” by a person on every rung of the legal professional ladder. There were also appearance-based comments by judges and jurors and the occasional “you are just too pretty to be a lawyer.” For the record, I am not that pretty. I was simply female and young and offered an alternative version of what lawyers in my rural practice area were supposed to look like. But because I was a young woman, comments on my physical appearance were to be considered compliments.
I learned to manage this terrain. I refused coffee runs, openly chastised lawyers who called me “honey,” and responded to the “too pretty” comments with a good Southern comeback like, “thank you – you are much too old to be looking at women my age.” In fact, my small firm which was all male sans me remains the most gender balanced environment I have ever worked in. My male superiors were excellent trial lawyers who valued hard work and intelligence without a care about how you looked, who you slept with, and whether you had a life outside of the office. If you did well, you were celebrated. If you screwed up, you heard about it and received some direction to keep you from making the same mistake again. The firm environment was fair, which made up for the constant inequities of the rural southern courts where I practiced. Even so, those years were the time in my life when I was most often a woman among men and I got a glimpse of the ease the permeates a non-diverse world. The language was not modern but it was not all menacing. I had grown up with good people who used old-fashioned language to discuss women so learned not to be too quick to judge a gendered, albeit gracious, phrase.
I expected the switch to legal academia to expose me to the Holy Grail of gender equality. Law professors were progressive and would create and propagate fair and balanced environments. Wrong. Twenty years after that first brush up behind the cash register, I was still deciding how to deal with a creep. The only difference was the creep’s tactics. Law academia has included being told by a Dean that I should “just go home, take care of my kids, and let my husband pay the bills.” Another Dean promised to “take care of me” if I followed his lead on voting and retaliated when I did not. And I once had a student tell me he could not attend my class because it was against his personal beliefs for a man to learn from a woman. I have seen women colleagues painted as “shrill,” “passive,” “too aggressive,” “brash,” and just overall not good enough to play in the big leagues of real law teaching. I have sat in meetings trying to convince male colleagues that when viewing the teaching evaluations of women (and minority) faculty, particularly those who teach in predominantly male, white schools, you must account for the power differences, understanding that minority teachers do not get the benefit of the doubt. And I have watched male colleagues protect their territory against female interlopers by appointing themselves the junior female colleague’s unofficial mentor then using that access to offer an ostensibly credible assessment of the junior faculty member to the rest of the faculty. “I have really worked with her but she just isn’t getting there.” On this point, I have seen male colleagues praised for protecting the quality of instruction and women colleagues criticized for being territorial. Territorial men are protectors and providers. Territorial women are like my border collie when the repairman comes; a nasty bitch.
Why do we accept that women will deal with a certain amount of skirt chasing and “boys will be boys” behavior in the workplace? Because we view men as more and view women as less. Our cultural views come through in our language, public and private, whether we know it or not. For a woman of my age, raised in the culture of the American South, language was a complicated mix of the sweet and the cruel which offered few guiderails for my journey into professional adulthood. It took years for me to begin to challenge the words used to describe me and other women and the subtext beneath the conscious word choices of my peers. I must admit that when I was first told I was too pretty for something, it read as a compliment. It took time for me to understand that words which celebrated physical attractiveness when those traits are not relevant are words that diminish.
I have lovely memories of my Great Uncle holding my hand and telling me I looked like Snow White. However, a father, grandfather, or uncle could show the same affection with other words, words which do not connect physical appearance with value thus confounding those two things in a way that confuses young women on their personal value. In truth, members of my own family told me I was too pretty to be a lawyer, telegraphing the cultural assumption that attractive women can get husbands so don’t need careers. These messages sent me off into the world confused about my value and my role. When our cultural rhetoric focuses on the physical attributes of women, we devalue women and invite the aggressors. And we are all too pretty for that.
Catherine Dunham is a Professor of Law at Elon University School of Law where she teaches Civil Procedure, Civil Litigation, and Litigation Skills including Trial Practice. She has also served as a trial analyst for several major news outlets, including NBC and CNN. In addition to procedural topics, Prof. Dunham’s scholarship explores social psychology and legal education, as well as topics related to gender equity and unconscious bias. Prof. Dunham is also prior recipient of the ABA Smyth-Gambrell Award for Teaching Professionalism.
Saturday, December 30, 2017
On the day U.S. District Judge Elizabeth Wolford received a copy of a New York State Bar Association report revealing that women participate in court at lower rates than men, the judge had a meeting to discuss a pending breach-of-contract case.
In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.
“It was one of the best arguments I have had the privilege of presiding over,” Wolford recalls.
According to the July report, female attorneys account for just 25 percent of counsels appearing in commercial and criminal New York state and federal cases. In more complex matters, the percentage declines further. A 2015 ABA report found similar numbers in a study of the Northern District of Illinois.
In August, Wolford implemented a standing rule that encouraged young attorney participation. Such rules, which often offer oral argument as incentive, are one way the NYSBA report recommends the bench help address litigation’s gender disparities.
Wolford’s rule was inspired by similar guidelines set forth by Judge William Alsup of the U.S. District Court for the Northern District of California. He implemented his rule soon after taking the bench in 1999, but he also requires large firms to document how they will integrate junior attorneys into a case. Alsup says he does so for the good of the profession, as well as for up-and-coming lawyers.
“If we don’t train the next generation, then lawyering will suffer and the public will lose confidence” in the system, he says.
None of the rules mentions gender or race. But the measures can have the effect of increasing opportunities for women and minorities because they now make up a greater share of young attorneys. In 2016, according to ABA data, women composed more than half of matriculating students at all law schools, and minorities made up more than a third of such students. In 2009, 47 percent of all enrolled students were women and 23 percent were minorities.
Attorney Sharon Porcellio, who worked on the New York bar report, says she thinks the rules are an innovative way to address an age-old problem.
“Those of us who have been practicing for a long time had hoped that the pipeline theory”—the idea that increasing numbers of women and minorities in law school would lead to equal representation in practice—“would work,” she says. “The pipeline theory has not proven to work.”
Sunday, December 17, 2017
Meet Tamar Frankel, 92, First Woman Law Professor at Boston U and Intellectual Godmother of the Fiduciary Rule
Ms. Frankel, a law professor at Boston University, is the intellectual godmother of the fiduciary rule, a regulation from the U.S. Department of Labor requiring anyone being paid to provide investment advice on a retirement account to act in the best interest of the client. At the age of 92, Ms. Frankel still commutes to work five days a week, teaches two courses—and is unfazed that the Labor Department announced on Nov. 27 that it would delay implementing key parts of the fiduciary rule until July 2019.
After all, Ms. Frankel has been advocating that brokers should put their clients first for more than 40 years. What’s another 18 months?
Born in what was then Palestine in 1925, Ms. Frankel joined the Haganah, the paramilitary movement for Israeli independence, at age 14. Her father was the first president of Israel’s bar association, and she apprenticed in his practice. In 1949, she became the first general counsel of the Israeli Air Force. Two years later, when she was 26, her father died, and she took over his law practice.
In 1963, Ms. Frankel came to study at Harvard Law School. She wrote her doctoral dissertation on variable annuities, those mashups of mutual funds and insurance.
“That was perfect, because I knew very little about mutual funds and very little about insurance,” she says. “There are two ways you can react to not knowing: one is to feel afraid of your ignorance, the other is to be consumed by the desire to understand. I felt almost drunk with how much I could learn.”
In 1968, as she was still studying to complete her dissertation, Ms. Frankel joined Boston University. The field was so male-dominated that, when she arrived as the law school’s first female professor, BU relegated her office to the basement of the library.
“I didn’t have to put the books back on the shelf!” she laughs. “The craving for being part of the group, being accepted, that wasn’t my priority.”
After she turns 93 next July 4, Ms. Frankel says, she will stop teaching—although she will continue to research and write.
What accounts for her longevity? “Caring less and less about what other people think,” she says, “and more and more about questions you don’t have answers to.”
The BU Law Faculty in 1972 when Prof. Frankel was the only woman professor.
Friday, November 17, 2017
Taja-Nia Y. Henderson, "I Shall Talk to My Own People": The Intersectional Life and Times of Lutie A. Lytle, 102 Iowa L. Rev. 1983 (2017).
In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments—her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school—have been largely lost to historians of legal education. She is not among those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.
As a genre, biography seeks to use the life of the individual to tell a larger story about the collective. Feminist biography—probably best understood as both subgenre and method—has the same goals, but moves gender “to the center of the analysis.” This methodology asks not only how gender as a social category has impacted the lives of historical actors, but also how the unequal distribution of power resulting from existing gender hierarchies has influenced epistemologies of scholarly inquiry.
A biographical sketch of Lutie A. Lytle, a woman coming of age in the second half of the nineteenth century, warrants such treatment. Lytle’s career in the law was certainly impacted by gender as she was among the earliest cadre of women lawyers in the nation. As a student, she was the only woman enrolled in the Law Department of Central Tennessee College. When she was appointed as an instructor at the College, moreover, she was the only woman among the law school’s faculty. As a woman of African descent born during Reconstruction, however, Lytle (and her story) “cannot be captured wholly by” a methodology that moves only gender to the center. The intersection (or overlap) of Lytle’s identities as a woman of color and the daughter of former slaves requires that gender and race (and arguably, status and class) move to the center. In other words, a biographical sketch of Lytle’s life cannot privilege gender in isolation; it must also grapple with the persistence of race, racism, and the myriad legacies of chattel slavery in the subject’s world.
Wednesday, November 8, 2017
This paper examines the demographics of federal district court judges in the 10th Circuit. Consistent with the glass-ceiling effect literature in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that minority judges are over-represented in the Circuit. The paper next explores the relationship between under-representation, over-representation and discrimination. Under-representation that cannot be explained in terms of merit criteria or informed opting out, such as the under-representation of women on the 10th Circuit, strongly suggests the lingering effects of past exclusion and discrimination, as well as the current effects of implicit bias. As demonstrated by the over-representation of minority judges, the political commission process can break through the gender glass-ceiling by over-representing qualified women judges in the short run until their overall numbers better reflect equality.