Thursday, November 13, 2014
With progress towards improved judicial diversity moving at snail’s pace, ‘the time has now come for quotas’ according to a Report, Judicial Diversity: Accelerating Change, commissioned by the shadow Lord Chancellor Sadiq Khan, published last week. This is not a surprise. Back in April 2014 when announcing the appointment of the Report’s authors, Sir Geoffrey Bindman QC and Karon Monaghan QC, the press reported that “Nothing is off the table”:
“A Labour government would be prepared to introduce the “nuclear option” of quotas for female and black and ethnic minority judges to avoid a 100-year wait to achieve a judiciary reflecting the composition of the population. “
More recently, Lord Neuberger has stated that the absence of judicial diversity, especially in senior posts, is a major concern for the judiciary. Emphasizing that we must not assume that the problem will resolve itself, he continued
“I am not one of those people who optimistically thinks that if we just sit back it will all sort itself out and the judiciary will eventually include many more women and ethnic minorities.”
[h/t Sonia Lawrence]
Saturday, November 8, 2014
Deborah N. Misir is in the sixth month of a high-risk pregnancy. So Ms. Misir, a Long Island lawyer, has asked that an upcoming trial for one of her clients — set for about two months before her due date — be postponed.
Doctors told Ms. Misir, 42, to “avoid stress, pressure and upsetting confrontations, which could result in medical complications that could threaten the life of my baby,” according to a letter she wrote on Wednesday to the judge.
But thus far, Ms. Misir’s request has gone nowhere: The United States attorney’s office has fought the proposed delay, and the judge, citing her health, even asked about a trip to Washington that she said she was planning.
“I am puzzled by the U.S. attorney’s office’s objection to any adjournment due to my pregnancy,” Ms. Misir said. “Pregnancy — much less high-risk pregnancy — has long been recognized in this country as a legal disability requiring accommodation."***
In an Oct. 20 letter to the judge opposing the request, prosecutors wrote that the case had been long pending; that Ms. Misir had agreed previously to the January date; and that she had a “highly experienced and able” co-counsel. The government also cited Mr. Tabone’s right to a speedy trial, adding, “The court should not countenance further delay of the trial.” ***
She wrote that she had worked as a Justice Department lawyer, as an ethics lawyer in the White House and as a deputy assistant secretary of labor for policy.
“In over 17 years of federal practice,” she said, “I have never been treated so disrespectfully, brutally, and with lack of basic civility by opposing counsel, as has occurred in this court.”
Tuesday, November 4, 2014
That this is news says it all.
Two women in private practice are making their debuts this month arguing before the U.S. Supreme Court, a forum where women from law firms are still underrepresented at the lectern.
In 2013, 17 percent of the arguments before the court were made by women, according to an Associated Press report, but many of those were government lawyers or from public interest groups.
Alyza Lewin of Lewin & Lewin in D.C. will argue Nov. 3 in Zivotofsky v. Kerry, a closely watched test of executive versus legislative power in foreign policy.
Allyson Ho of Morgan, Lewis & Bockius in Dallas will argue a week later, in M&G Polymers USA v. Tackett, a high-stakes business case that could expose employers to billions in extra health care costs for retirees.
A capsule look at the two lawyers follows.
Saturday, November 1, 2014
Slate, Disagree in Good Faith?: Sonia Sotomayor Pushes Other Supreme Court Justices Past Their Comfort Zones, reviewing Joan Biskupic’s new biography of Sotomayor, Breaking In
Joan Biskupic’s new biography of Sonia Sotomayor, Breaking In, opens with a telling story from the justice’s first year on the Supreme Court. At a party celebrating the end of the term, Sotomayor decided to shake up the staid affair. After the law clerks put on a series of “tame” skits, she informed them that their performance “lacked a certain something.” She signaled a clerk, who produced a stereo. When Latin music began filling the room, before the clerks, her colleagues, and 200 staff members, the newest member of the court began to salsa.
That would certainly have been enough to make the occasion memorable, but Sotomayor wasn’t done. One by one, Biskupic writes, “she beckoned the justices” to join her. They were resistant, she was determined. “I knew she’d be trouble,” Justice Antonin Scalia quipped when the dance off was over.
Tuesday, October 28, 2014
National Law J., Survey: Profession Still Struggling for Equal Opportunity
Legal careers have changed greatly since 2000 but the profession is still struggling to establish race and gender equality, according to a joint survey released by the American Bar Foundation and the National Association for Law Placement.
But “After the JD III: Third Results of a National Study of Legal Careers” also indicates that most lawyers remain moderately or extremely satisfied with their choice to pursue law. They represent 76 percent of respondents in surveys conducted in 2012, 2007 and 2003.
“You might think after the recession that people would dial back on that answer, but it’s pretty much the same,” American Bar Foundation director Robert Nelson said of the satisfaction number.
The so-called “Wave 3” survey, released Thursday, was based on 2012 interviews of 2,862 lawyers who passed the bar in 2000. That’s a 53 percent response rate for the 5,353 surveys sent to a pool of lawyers who had responded to either or both of the earlier surveys. The three surveys comprise a long-term study of a nationally representative group of lawyers at different stages in their careers.
The surveys collectively show striking gender differences in lawyers’ earning power. According to the latest survey, the income gap between men and women was 5 percent after two or three of practice, 15 percent after seven years and 20 percent after a dozen years of practice.
Most of that gap occurs in the private sector. Women in public sector jobs earned 96 percent to 98 percent of what men did in comparable jobs.
“It’s certainly nothing new [but] it’s profound that we have not made much progress on that front in the legal profession,” Nelson said.
Women, along with racial and ethnic minorities, are more likely to experience social isolation and firms can do more to integrate them into the fabric of the enterprise, he said. Women and minorities also are less likely to inherit a book of business from a senior partner than is the case for white males. “That seems to be the critical dynamic,” Nelson said.
Saturday, October 25, 2014
The Miami-Dade chapter of the Florida Association for Women Lawyers has asked NBC to cancel a new comedy series about a hard-drinking, hard-partying female judge—appropriately titled Bad Judge, the Miami Herald reports.
“Our organization understands that Bad Judge may be intended to be hyperbole, but we nonetheless find it damaging to women in the legal profession,” Deborah Baker, president of FAWL’s Miami-Dade chapter, wrote in an Oct. 16 letter (PDF) to Steve Burke, NBC’s CEO.
The show depicts the judge as “unethical, lazy, crude, hypersexualized and unfit to hold such as esteemed position of power,” Baker wrote. ***
Baker, a name partner in Miami’s nine-lawyer Lipscomb, Eisenberg & Baker, does commercial litigation. In her letter to NBC, Baker noted that “the Archie Bunker show in the 1970s” was a comedy making fun of bigotry, using jokes “that included racist language.” She added that studies found the show was counterproductive in that area.
Thursday, October 16, 2014
ATL, Judge Refuses to Postpone Hearing Because Maternity Leave Isn't a Good Enough Excuse. Solo practitioner denied requested and unopposed motion to postpone a hearing for three weeks due to maternity leave. She then appears for the hearing, with her weeks-old infant, but is berated by the judge for her lack of parenting skills. The lawyer subsequently filed a complaint against the judge for sex discrimination. As she explained:
I was forced to bring my weeks old daughter with me as day care centers do not accept infants less than 6 weeks of age and I have no family in Georgia that could help me look after my baby. My husband is a truck driver and was out of state today. My family is in Iowa and my husband’s family is in New York and New Jersey. We have only lived in Georgia since November of last year. When the IJ saw me with my daughter, he was outraged. He scolded me for being inappropriate for bringing her. He questioned the fact that day care centers do not accept infants less than 6 weeks of age. He then questioned my mothering skills as he commented how my pediatrician must be appalled that I am exposing my daughter to so many germs in court. He humiliated me in open court.
The IJ believes that because I accepted representation knowing the next master calendar hearing was during my maternity leave, I am at fault and undeserving of a continuance to October 24- the day I’m expected to be cleared for return to work by my doctor. Apparently my clients do not deserve to be represented by counsel of their choice if that counsel happens to be a pregnant woman. Likewise, pregnant women should not be litigating attorneys due to their “condition”. This thinking is absolutely reprehensible and should not be accepted by anyone within or representing the Department of Justice. I am horrified that this occurred and that I had to bring my infant to court with me. Despite the IJ’s belief, child birth is no minor inconvenience and rightfully calls for a six week absence from work – if not longer as most other developed countries recognize. Furthermore, I am a qualified, experienced and ethical attorney that should not have to stop practicing law upon becoming pregnant to accommodate the backward thinking of certain judges.
Saturday, October 4, 2014
It’s been a bit of slow slog for women in the upper echelons of BigLaw, where leadership roles are still largely dominated by men.
But October brings notable firsts at two well-known law firms, as women take the reins for the first time in each firm’s history. They join a small but growing group of women leaders that includes Kim Koopersmith of Akin Gump Strauss Hauer & Feld LLP and Jerry K. Clements at Locke Lord LLP.
On Wednesday litigator Jami Wintz McKeon officially became the new chair at Morgan, Lewis & Bockius LLP, where she has held a number of management roles over the past three decades. Ms. McKeon succeeds Francis M. Milone, who held that role since 1999 and guided the firm through a period of significant expansion. ***
It’s also a big day at Bryan Cave LLP, where white-collar litigator Therese Pritchard became the firm’s first female chair—and its first leader based outside the firm’s historic home turf of St. Louis. She succeeds Don Lents, who was first elected chair in 2004.
Thursday, September 25, 2014
Supreme Court Justice Ruth Bader Ginsburg is pushing back against suggestions that she should soon retire, saying President Barack Obama would be unable to get a justice like her through the Senate.
“Who do you think President Obama could appoint at this very day, given the boundaries that we have?” the 81-year-old justice told Elle Magazine in an interview excerpt released Tuesday. The wide-ranging interview portrays Ginsburg — seen as a member of the court’s liberal wing — as attuned to the dynamics in Congress and some of the greater political and social discussions in the U.S.
In the interview, she suggested that Senate Republicans would likely block any potential nominee like her.
“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court,” the oldest member of the high court said. “[A]nybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” later adding that she can “do the job full steam.”
Tuesday, September 16, 2014
I have published the 2014 edition of Women and the Law (Thomas Reuters). This annual edition collects selected top scholarship in women's legal rights from the past year. A sort of greatest hits of women and the law articles compiled for the researcher and practitioner to stay up on both current trends and the breadth of work in the field.
The Table of Contents:
Tracy A. Thomas, Back to the Future of Abortion Rights in the First Term, 29 Wis. J. Law, Gender & Soc’y 47 (2014)
Feminism and the Family
Melissa L. Breger, The (In)Visibility of Motherhood in Family Court Proceedings, 36 N.Y.U. Rev. of Law & Social Change 555 (2012)
Lauren Sudeall Lucas, A Dilemma of Doctrinal Design: Rights, Identity and the Work-Family Conflict, 8 FIU L. Rev. 379 (2013)
Violence Against Women
Carolyn B. Ramsey, The Exit Myth: Family Law, Gender Roles, and Changing Attitudes Toward Female Victims of Domestic Violence" 20 Michigan Journal of Gender & Law 1 (2013)
Sarah Lynnda Swan, Triangulating Rape, 37 NYU Review of Law and Social Change 403 (2013)
Women in the Workplace
Joan C. Williams, Double Jeopardy? An Empirical Study with Implications for the Debates over Implicit Bias and Intersectionality, 37 Harv. J. Gender & Law 185 (2014)
Kimberly Yuracko, Soul of a Woman: The Sex Stereotyping Prohibition at Work, 161 U. Penn. L. Rev. 757 (2013)
Laura Rosenbury, Work Wives, 36 Harv. J. Law & Gender 345 (2013)
Kimberley D. Krawiec, John M. Conley, Lissa L. Broome, The Danger of Difference: Tensions in Directors’ Views of Corporate Board Diversity", 2013 University of Illinois Law Review 919 (2013)
Women as Economic Actors
Linda Coco, Visible Women: Locating Women in Financial Failure, Bankruptcy Law, and Bankruptcy Reform, 8 Charleston L. Rev. 191 (2013)
Amy Schmitz, Sex Matters: Considering Gender in Consumer Contracts, 19 Cardozo Journal of Law & Gender 437 (2013)
Feminist Legal Theory
Rebecca Zietlow, Rights of Belonging for Women, 1 Indiana Journal of Law & Social Equality 64-99 (2013)
Aya Gruber, Neofeminism, 50 Houston L. Rev. 1325 (2013)
Thursday, September 11, 2014
As one of the few African-Americans in her law school class, Paulette Brown noticed career counselors steering her and other black students toward legal service or public defender jobs assisting the poor, instead of more prestigious jobs in big law firms. But she refused to go down that path, eventually serving as in-house counsel for several Fortune 500 companies.
Since those law school days, Brown, a partner in the Boston law firm Edwards Wildman Palmer LLP, has fought against subtle racism, discrimination, and small slights known as “micro-inequities.” For much of her career, she has pressed firms to hire and promote more women and minorities; mentored hundreds of lawyers, mostly women of color; and trained many others on diversity in the workplace.Now Brown, 63, has a platform to expand her mission even further. Last month, she became the first black woman elected to lead the 400,000-member American Bar Association, which, until 1943, did not allow African-Americans to join.
In a profession where only 7 percent of partners are people of color and the number of female associates has fallen for the past five years, Brown is focused, among other things, on raising awareness about implicit bias in law offices, the legal system, and American society.
Tuesday, September 2, 2014
Men punished for sexual misconduct in the wave of cases sweeping college campuses are fighting back against what they call unfair student disciplinary systems and publicity that threatens to shatter their reputations.
The current and former college students describe themselves as victims of false accusations amid a national campaign — led by the White House — to stamp out sexual violence on campuses. While the federal push to increase awareness of sexual assault is aimed at keeping students safe and holding the nation’s colleges and universities accountable, some of the accused say the pressure on their schools has led to an unfair tipping of the scales against them.
They fiercely dispute the validity of internal investigations that rely on a lower standard of proof for determining misconduct than what is required for a conviction of a sex crime. They also contest accounts circulating on campuses and the Internet that label them as sexual assailants or rapists.
Joshua Strange, 23, of Spartanburg, S.C., said he was stunned that Auburn University expelled him in 2012 for sexual misconduct even though an Alabama grand jury found insufficient evidence to prosecute him for a sex crime. The internal disciplinary proceeding began, he said, after an ex-girlfriend falsely accused him of sex assault.
Thursday, August 21, 2014
Jason Nance (Florida) and Paul Madsen (Florida), An Empirical Analysis of Diversity in the Legal Profession, Connecticut L. Rev. (forthcoming).
In contrast to prior studies, we find that, although woefully underrepresented as a whole in the legal profession, the representation of young African Americans and Hispanic Americans in the legal profession is comparable to the representation of these groups in other prestigious professions. This finding suggests that the underrepresentation of African Americans and Hispanic Americans in the legal profession may be caused primarily by social forces external to the legal profession, and that, in addition to continuing its current diversity efforts, the legal profession should put a concentrated emphasis on initiatives that assist these underrepresented groups to become eligible to pursue all types of prestigious employment opportunities that have significant barriers to entry. Further, we find that Asian Americans, in contrast to other minorities, are very poorly represented in the legal profession as compared to other prestigious professions. Finally, there is some evidence suggesting that women are relatively well represented in the legal profession when compared to other prestigious professions until recently, when they appear to have become slightly underrepresented. This recent drop may be caused by the failure of the legal profession to provide just and inclusive workplaces, leading to greater dissatisfaction and higher attrition rates among female associates.
Tuesday, August 19, 2014
Highlights of the July 2014 Issue of The Federal Lawyer magazine on "Women in Law" include
Ruth Ann French-Hodson, The Continuing Gender Gap in Legal Education (WL Link), reporting the results of a law-school study conducted by Yale Law Women.
Gender disparity in law school continues both inside and out of the classroom. These effects spill over as women enter the legal workforce and are exacerbated by similar institutional problems across the profession. Additionally, the legal profession has played a role in perpetuating some of the education structures that alienate and disadvantage women through prioritizing certain markers of taw school success. Change will not automatically happen over time; it requires commitment and action from students, faculty, administrators, and the broader legal profession.
Melanie Wilson (Assoc. Dean, Kansas), Sentencing Inequality Versus Sentencing Injustice (WL Link):
This essay considers the empirical evidence showing that women receive more lenient treatment from the American criminal justice system than men. It recognizes that this may be attributed to stereotypes about women as the weaker sex or to gender bias from prosecutors and judges, but ultimately rejects both scenarios. The essay argues that disparities in the way women are prosecuted and sentenced are more likely linked to legitimate differences in women's culpability compared to their male counterparts and that this mirrors current societal influences, including unequal opportunities for women in training, employment, pay, and similar factors.
Zeenat Shaukat Ali, The Dynamic Nature of Islam's Legal System with References to Muslim Women.
Some have criticized Muslim law as being oppressive of women. This article challenges that notion by encouraging the reconsideration of some of the interpretations of Muslim law. Specifically, the article examines some of the law's foundational tenets and philosophies, arguing that they have either been misapplied or should be reconsidered in light of their true meaning. Ultimately, the article concludes that, in changing the paradigm of gender-related issues, the understanding of the dynamic nature of shari'ah, with several legal mechanisms at its command, could play a major role in shaping and effecting reform and restoring the rights of women bestowed on them by the Quran.
Sunday, August 17, 2014
Thursday, August 7, 2014
In preparation for teaching a fall intersession class of ADR, I read the new book, Doug Linder & Nancy Levit's (UMKC) The Good Lawyer. Their defining characteristics of a good lawyer according to Linder and Levit are:
- Empathy (care about your client's case; put yourself in the client's shoes; active listening)
- Willpower (for the long-haul of litigation; stay healthy; reduce anxiety)
- Value the legal community (civility)
- Both Intuitive and Deliberative Thinking
- Realistic about the Future (avoid overconfidence; use decision trees)
- Serve the True Interests of the client (you are a counselor, not a hired gun)
- Integrity (pro bono, honesty, big picture justice)
- Persuasive (empathy, honesty, prepared)
- Maintain Quality in Changing Environment (no dishonest billing; work/life balance)
It was noted that women lawyers exhibit more empathy and better avoid the overconfidence problem.
Here's a review from WSJ.
From Justice Ginsburg's interview:
Justice Ruth Bader Ginsburg, fresh off a bruising loss in the Hobby Lobby birth control case last month, told Yahoo Global News Anchor Katie Couric in an exclusive interview that she believes the male Supreme Court justices who voted against her have a "blind spot" when it comes to women.
"Do you believe that the five male justices truly understood the ramifications of their decision?" Couric asked Ginsburg of the 5-4 Hobby Lobby ruling, which cleared the way for employers to deny insurance coverage of contraceptives to female workers on religious grounds.
"I would have to say no," the 81-year-old justice replied. Asked if the five justices revealed a "blind spot" in their decision, Ginsburg said yes.
The feisty leader of the court's minority liberal bloc compared the decision of her five male peers to an old Supreme Court ruling that found discriminating against pregnant women was legal.
Tuesday, August 5, 2014
For a summary of Prof. Hanna's contributions as a professor, see Respected Vermont Law School Professor Dies. "She made her name known by creating an intellectual environment and by making everyone feel smart."
For her important work as a legal advocate for women's equal pay, see Key Lawyer Dies Before Equal Pay Case is Heard. "Hanna brought the case to the attention of the Vermont Commission on Women and wrote the organization's amicus brief in the case, which she would have presented Wednesday."
For insights from her husband, see Cheryl Hanna's Husband on Her Battle With Depression and The Mystery of a Popular Professor's Death Solved
And the official statement of the cause of death.
Thursday, July 31, 2014
Rebecca Lee (Thomas Jefferson), has posted Book Review, Sonia Sotomayor: Role Model of Empathy and Purposeful Ambition, Minnesota Law Rev. Headnotes (2013).
In writing her memoir, My Beloved World, U.S. Supreme Court Justice Sonia Sotomayor expressly acknowledges that she is a public role model and embraces this responsibility by making herself accessible to a broad audience. As a public figure, she sees an opportunity to connect with others through an account of her life journey, with details of initial challenges and lessons learned along the way, to show that one’s beginnings need not constrain one’s aspirations. Although her memoir ends at the point she begins her judicial career, twenty years ago, her experiences and reflections provide a sense of how she may approach her work on the Supreme Court, including the importance she attaches to perspective-taking — or empathy — in relating to others and viewing the larger world. Her empathic skill, as well as her understanding of public purpose as a Justice and role model, all serve to strengthen the judicial function and present a hopeful picture of further important contributions to come as she continues her work on the bench.