Thursday, September 20, 2018
Chao-Ju Chen, Catharine A. MacKinnon and Equality Theory in Robin West and Cynthia Bowman eds, Research Handbook on Feminist Jurisprudence (2018, Edward Elgar), Forthcoming
This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.
Monday, September 10, 2018
Justices Ginsburg, Sonia Sotomayor, Elena Kagan and their male colleagues saw fewer women arguing before them in the 2017-18 term, and the fewest to participate in oral argument in at least seven years.
During the recently completed term, there were 19 appearances at oral argument by women, or about 12 percent of the total 163 appearances, according to statistics kept by Kedar Bhatia for SCOTUSblog. (There were 113 different advocates who argued for parties or amici in the 63 argued cases, with several lawyers appearing more than once.)
The 12 percent figure was a steep drop from the previous term (2016-17), when 21 percent of appearances at oral argument were by women. In the previous five years to that term, the participation rate for women ranged from a low of 15 percent to a high of 19 percent.
“The thing that’s most disturbing to me is the consistency in the data,” says Jennifer Crystal Mika, an adjunct professor at American University’s Washington College of Law in the nation’s capital, who has studied the issue of female advocates before the high court. “There has never been much more than 20 percent female advocates over the last 20 years.”
Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association.
The survey, which proposes strategies for employers to eliminate the barriers, was conducted by the Center for WorkLifeLaw at the University of California, Hastings College of the Law, for the bar association’s Commission on Women in the Profession and the Minority Corporate Counsel Association. ***
The researchers had 2,827 lawyers fill out online surveys in spring 2016 about their experiences at work. The surveys were distributed by the bar association’s email list and other professional networks. The association has 400,000 members.
They found that many women and people of color felt they were held to a higher standard than white men. That feeling was most prevalent among women of color, who reported the highest levels of bias in almost every category.
About half of the women of color said they felt they had equal access to the kind of “high-quality” assignments that lead to exposure and advancement in an organization. Among white men, that number was 81 percent.
Women of all races said they had to walk a “tightrope” in their behavior. They reported pressure to behave “in feminine ways” and a backlash for exhibiting stereotypically male behaviors. They were more often saddled with “office housework,” like taking notes, ordering lunch or comforting a co-worker in distress.
In a law firm, that kind of work reduces billable hours, which can hurt compensation. And while it takes up time and energy and helps the organization, it often does not lead to career advancement. The report states that a lack of opportunities to take on challenging work also contributes to high attrition rates among women in law firms.
Many women said they felt they were paid less than their colleagues with similar experience. (Almost 70 percent of women of color said so, compared with 60 percent of white women and 36 percent of white men.)
And a quarter of female lawyers reported that they had experienced sexual harassment at work, including unwanted sexual comments, physical contact and romantic advances. Those episodes sometimes had career costs. About one in eight white women, and one in 10 women of color, said they had lost opportunities because they rejected sexual advances.
Among all respondents, about 70 percent said they had heard sexist comments, stories or jokes at work. And while the numbers were higher among women, lawyers of both genders felt that taking parental leave would have a negative impact on their career.
“You’ve got systemic barriers in place,” said Ms. Mayes, who is the chief legal counsel for the New York Public Library. “If you don’t think a woman with children should be promoted, if the woman has children of a certain age or expects to, that’s a huge impediment.”
According to the latest report from the bar association’s Commission on Women in the Profession, only 35 percent of active American lawyers in 2016 were women, and they earned less than their male colleagues. Of the top lawyers for Fortune 500 companies, just 26 percent were women. And while women graduate from law schools in large numbers, they made up only 32 percent of law school deans.
The report lays out methods and practices for organizations to counter bias, with an emphasis on using metrics to track and encourage fairness. They include abolishing questions about prior salary in job interviews, having boilerplate questions and policies for interviews and performance evaluations, and monitoring supervisors to ensure there are no consistent disparities by demographic group.
Monday, August 27, 2018
Felice Batlan, Deja Vu and the Gendered Origins of the Practice of Immigration Law: The Immigrants’ Protective League, 1907-1940, Law & History Rev. (2018)
This essay from Felice Batlan was written after she spent days protesting at Chicago's O'Hare airport in response to Trump's "Muslim Ban." The article is posted on Law and History Review's multi-media digital platform which provides hyperlinks to both primary and secondary sources making it freely accessible and ideal for classroom use.
Donald Trump’s administration has provoked crisis after crisis regarding the United States’ immigration policy, laws, and their enforcement. This has drastically affected millions of immigrants in the U.S. and those hoping to immigrate. Stemming from this, immigration lawyers and immigrant advocacy organizations are challenging such policies and providing an extraordinary amount of direct pro bono legal services to immigrants in need. Yet the history of the practice of immigration law has been largely understudied. This article addresses this history by closely examining Chicago’s Immigrants’ Protective League between 1910 and 1940. The League provided free counsel to tens of thousands of poor immigrants facing a multitude of immigration-related legal issues during a time when Congress passed increasingly strict immigration laws often spawned by xenophobia and racism. The League, always headed by women social workers, created a robust model of immigration advocacy at a time when only a handful of women were professionally trained lawyers. A close and thick reading of the League’s archival documents, manifests how the events of Trump’s immigration policies have a long and painful history. U.S. immigration law and its enforcement have consistently been cruel, inhumane, arbitrary, and capricious. Told from the ground up and focusing upon the day-to-day problems that immigrants brought to the League, one dramatically sees how immigration laws and practices were like quicksand, thwarting the legitimate expectations of migrants, and, at times, leaving people in an endless legal limbo. The League, in response, participated in creating what would become the practice of immigration law, engaging, and quickly responding to changing laws, rules, policies, and the needs of migrants.
Tuesday, August 14, 2018
The documentary "RBG," co-produced by CNN, has made $13.5 million at the box office, according to comScore, and will be broadcast next month on the network. Oscar nominee Felicity Jones will play her in a feature film, "On the Basis of Sex," in December.The justice said recently that she hopes to stay on the Supreme Court at least five more years, when she'll be 90. She has survived two bouts with cancer, colorectal in 1999 and pancreatic in 2009.Ginsburg's celebrity might not have been predicted when President Bill Clinton chose her for the high court in summer 1993. Then a 60-year-old federal appellate judge, she was not Clinton's first choice. He was looking for a flashier appointee and initially tried to woo former New York Gov. Mario Cuomo to the bench.Ginsburg, with her large-rimmed glasses, hair tied back in a short ponytail, presented the picture of seriousness. She spoke of taking "measured motions" as a jurist. Supporters portrayed her as a night owl who spent hours hunched over law books and legal briefs, tepid coffee and prunes at hand. Her daughter created a little book titled "Mommy Laughed," chronicling the few times it happened.Once on the Supreme Court, Ginsburg was a sharp questioner and meticulous opinion-writer. She leaned in but without the attention-getting style of the first female justice, Sandra Day O'Connor, or gregarious longtime pal Antonin Scalia.She was hardly a liberal in the mode of contemporary justices on the left: William Brennan, Thurgood Marshall or Harry Blackmun. But as the court changed over the years and became more conservative with each retirement, she found herself carrying the banner for the left.
A new study says that women lawyers who display anger, assertive behavior, or self-promotion are going to be seen more negatively than a male lawyer seen acting the same way.
The findings come from a new survey by the Center for Worklife Law together with the American Bar Association Commission on Women in the Profession and the Minority Corporate Counsel Association.
The full report, a survey of nearly 3,000 lawyers, is slated for release in September but a detailed article in the ABA Journal laid out the specifics of the survey’s finding that emotions displayed by women lawyers receive different treatment than those of their male counterparts.
Survey results found that fewer women than men felt free to express anger at work when it’s justified.
Only 44 percent said they were free to do so compared to 56 percent of white men who felt that they could. Even fewer women of color – only 40 percent – felt they could show anger at work on an appropriate occasion.
The report is called “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession.”
The authors declined to comment on the report until its release date, but the anger display findings dovetail with other studies that show women lawyers persistently receive different treatment in similar circumstances.
Two years ago, the ABA addressed the frequent use of words like “honey” and “darling” directed at women lawyers in work settings such as depositions and courtrooms. The lawyers’ association adopted an ethics rule that it is professional misconduct to discriminate against or another lawyer in the course of practicing law.
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.