Wednesday, October 5, 2016
Beverley Baines, Women Judges and Constitutional Courts: Why Not Nine? in Constitutions and Gender (Helen Irving, ed. forthcoming)
Abstract:We should take Justice Ruth Bader Ginsburg’s question “Why not nine women?” seriously. Justice Ginsburg has served on the United States Supreme Court since 1992 and her proposal is for an all-women Court. Western democracies do not appear poised to adopt her proposal; nor have they endorsed the prevailing proposals for parity by feminist scholars Erika Rackley and Sally Kenney or for feminist judges by Rosemary Hunter and Beatriz Kohen. To explain why these proposals had some initial successes but are now stagnating, I frame them as deploying a “strategy of containment”, a strategy defined by Jamie R. Abrams to explain the loss of efficacy of feminist domestic violence reform. Situating Justice Ginsburg’s proposal as “moving beyond the strategy of containment”, I draw on women’s judgments in Australian, Canadian, German, Indian, Indonesian, Israeli, South African, British and American constitutional cases about or with significance for women’s equality. Whether writing as the only, often the first, woman on a national “constitutional” court, or deciding cases where more than one woman justice wrote a judgment, the richness of their adjudicative diversity demonstrates that women can comprehensively perform the tasks of adjudicating constitutional cases. Far from posing a threat to democracy or the rule of law, the legacy of women jurists’ voices illustrates how they promote constitutional justice for women and men.
Monday, October 3, 2016
Charges that the University of Denver’s Sturm College of Law violated federal law by paying women full professors less than their male counterparts, which first surfaced in 2013, now have become a federal lawsuit filed on Friday by the Equal Employment Opportunity Commission.
DU law professor Lucy Marsh originally filed the charges with the EEOC. The agency engaged in talks with the university to remedy the situation, but those efforts failed in May, according to the filing.
The suit says that Marsh had worked for the university for 37 years at the time of the 2013 charge, but that her annual salary, $111,977, was less than every male full-time law professor, including many who were hired after she started. Among nine full-time female full professors, the average annual salary was nearly $20,000 less than the full-time male professors — a finding the suit claims is statistically significant.
Thursday, September 8, 2016
The life and times of a trailblazing feminist in American law. The first female Stanford law professor was also first director of the District of Columbia Public Defender Service, one of the first women to be an Assistant Attorney General of the United States, and the biographer of California’s first woman lawyer, Clara Foltz. Survivor, pioneer, leader, and fervent defender of the powerless and colorful mobsters alike, Barbara Babcock led by example and by the written word — and recounts her part ofhistory in this candid and personal memoir.
"For woman lawyers, Barbara Babcock has led the way. How? By being smarter and tougher than the men; also, more empathetic and self-aware. Funny, shrewd, and telling, her memoir Fish Raincoats is a joy to read.”
— Evan Thomas, author of Being Nixon: A Man Divided
“Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.”
— Dahlia Lithwick, Senior Editor, Slate
Here is also a book review I wrote of Babcock's key work on the biography of California's first lawyer Clara Foltz. Book Review: Woman Lawyer: The Trials of Clara Foltz (Stanford Press 2011).
Thursday, August 18, 2016
A former county prosecutor in Vermont has filed a federal lawsuit claiming she was paid about $14,000 less per year than a male prosecutor in the same position.
Lawyer Jane O’Neill sued the Rutland County State’s Attorneys office in a suit filed last month, the Burlington Free Press reports.
O’Neill says she was told her salary was not negotiable when she was hired, and she got no answers when she asked about the pay of the male colleague who was hired in 2011. She also claims her boss assigned her lesser tasks and tried to marginalize her in retaliation for her questions.
The suit also claims O’Neill regularly worked 50 to 60 hours a week, but did not get compensation for the extra hours.
O’Neill says she resigned in mid-2014 because working conditions had become intolerable.
A federal jury . . . rejected a former state prosecutor’s claims that she was paid less than her male counterparts in the Suffolk district attorney’s office because she is a woman.
In a unanimous decision, the jury of six women and two men also disagreed with Christina Corda’s claims that her termination from the office was based on her complaints of discrimination. Corda, 34, had filed a lawsuit against the Suffolk district attorney’s office in March 2015. But in a sweeping verdict Thursday, the jury rejected her claims of discrimination, of retaliation, and of violations of state and federal equal pay laws.
A former deputy criminal chief for theU.S. Attorney’s Office in Spokane, Washington, filed a scathing sex discrimination and equal pay lawsuit against the U.S. Justice Department, claiming she was treated differently by male colleagues and ultimately forced to resign.
Former Assistant U.S. Attorney Katherine Jill Bolton claims she was unfairly put on administrative leave by Michael C. Ormsby, U.S. Attorney for Eastern District of Washington, after he learned she obtained information showing a discrepancy in salaries between her and similarly situated male colleagues. Ormsby characterized Bolton’s actions as a “data breach” and made criminal allegations against her, but another U.S. attorney’s office declined to file charges, her complaint says.
Tuesday, August 2, 2016
Anna Bryson & Kieran McEvoy, Women Lawyers and the Struggle for Change in Conflict and Transition, 42 Australian Fem. L.J. (2016)
Abstract:This article examines the particular experiences of female "cause lawyers" in conflicted and transitional societies. Drawn from an ongoing comparative project which involved fieldwork in Cambodia, Chile, Israel, Palestine, Tunisia and South Africa, the paper looks at opportunities, obstacles and the obduracy required from such lawyers to "make a difference" in these challenging contexts. Drawing upon the theoretical literature on the sociology of the legal profession, cause-lawyers, gender and transitional justice, and the structure/agency nexus, the article considers in turn the conflict\cause-lawyering intersection and the work of cause-lawyers in transitional contexts. It concludes by arguing that the case-study of cause-lawyers offers a rebuttal to the charge that transitional justice is just like ‘ordinary justice’. It also contends that, notwithstanding the durability of patriarchal power in transitional contexts, law remains a site of struggle, not acquiescence, and many of these cause-lawyers have and continue to exercise both agency and responsibility in ‘taking on’ that power.
Monday, August 1, 2016
Recent research by ALM Intelligence seems to confirm my hunch. Besides the usual dreadful news about how women make up only 18 percent of equity partners and only 8 percent of lawyers earning more than $500,000 (yes, that’s not a typo), the research shows that women are steadily leaving firms, including those who are past their child-bearing years. As Nicholas Bruch, senior analyst at ALM Legal Intelligence, writes:
“What is known is that women do not leave the law disproportionately at a specific time in their lives or careers. The analysis of ALM’s Rival Edge database below reveals that women trickle out of Big Law by a few percentage points per year of age. The analysis shows that among 30-year-old lawyers at Big Law firms, women comprise 45 percent. Among lawyers who are 40 years old, however, women only comprise 41 percent, a decrease of 4 percentage points. By age 50, women only make up 27 percent of the lawyers, a change of 14 percentage points.”
This is stunning: By age 50, women only make up 27 percent of lawyers in big firms. That means a stampede of women are leaving in their menopausal years. So much for the cozy myth that women are dropping out to pop out babies and drive the carpool.
That also means that, while their male counterparts are at the top of their game and raking in big bucks, many women are quietly throwing in the towel. I say “quietly” because you don’t hear about these women who stick it out at firms, only to leave when they should be enjoying the fruits of their labor.
I find this shocking, but Hastings Law School professor Joan Williams says she is not surprised. “Women lawyers in their 50s are really upset about compensation. They have the sense that men and women are not treated fairly,” she says.
The inequity in pay between male and female partners is a huge sore point for women, explains Williams, who says her preliminary study about pay gaps in law firms and corporations confirms a troubling, continuing trend. (Williams’ study is being done in conjunction with the ABA Commission on Women, Minority Corporate Counsel Association and WorkLife Law.) Indeed, the pay gap is well-documented; according to National Association of Women Lawyers (NAWL), female partners make only 80 percent of what men do. (Bruch says ALM’s finding that only 8 percent female lawyers earn more than $500,000 fit with NAWL’s finding; both indicate “that very few women are at the very top of the earning pyramid.”)
Another reason older women are leaving is that they are fed up with the game. “They get weary of decades and decades of proving themselves and being service partners, getting penalized being for that role, then getting penalized more if they protest,” Williams says.
“They just get worn down faster than men,” says Paula Monopoli, a law professor at the University of Maryland whose scholarship focuses on gender issues. A former law firm associate herself, Monopoli adds, “It’s not like making partner solves all the implicit bias. It can actually become more pronounced when you have fewer women in your cohort.”
Thursday, July 7, 2016
Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)
In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.
Tuesday, July 5, 2016
As a trailblazing attorney, Bessie Margolin lived a life of exceptional achievement. At a time when the legal profession consisted almost entirely of men, she earned the esteem of her colleagues and rose to become one of the most successful Supreme Court advocates of her era. Doing so, as Marlene Trestman demonstrates inFair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin(Louisiana State University Press, 2016), required overcoming not just the ingrained assumptions that men had towards professional women during that time but also the poverty of her early childhood and the loss of her mother when Margolin was only three years old. As Trestman reveals, Margolin exploited to the full the opportunities she was given as a ward of the Jewish Orphans Home in New Orleans, which provided her with a comfortable upbringing and a good education. From Newcomb College and Tulane University, Margolin went on to a fellowship at Yale University and a career in the federal government, which she began by participating in the defense of some of the most important laws to come out of President Franklin Roosevelt’s New Deal program and concluded by championing measures mandating equal pay and opposing age discrimination. And yet Trestman shows that for all of the sacrifices she made to establish a career for herself, Margolin did so on her own terms and in a way that many Americans can relate to today.
Friday, July 1, 2016
Why aren’t there more women arbitrators? Chris Poole, chief executive officer of JAMS, the dispute resolution company, says it’s primarily because of stereotyping in the legal profession.
Law.com spoke with Poole following last week’s pledge by hundreds of individuals and organizations worldwide to increase the number of women arbitrators, who make up just 10 to 15 percent of appointments to international matters.
Poole acknowledged that JAMS, which has boosted its number of women arbitrators recruited during the past three years to 50 percent, still has work to do to increase the overall supply.
But he pointed to the “institutional bias” of lawyers—men and women—who select arbitrators as the main reason.
It mirrors other findings. See Gina Brown & Gender Differences in Dispute Resolution Practice: Report on the ABA Dispute Resolution Practice Section Snapshot Survey, 47 Akron L.Rev. 975 (2015)
Friday, June 17, 2016
It’s not every day that a constitutional lawyer gets treated like a rock star. But at South African President Jacob Zuma’s State of the Union address in February, reporters jostled to hear what Thulisile Madonsela had to say about it, and onlookers took to Twitter to gush about her and her canary-yellow dress.
“Please, can we have her as president!” one pleaded.
Madonsela is not just a lawyer. She is also South Africa’s public protector, an ombudsman-like post that has come to symbolize for many a struggle for rule of law and better governance in this young democracy.
Thursday, June 2, 2016
The highest court in Massachusetts has revived a lawyer’s gender discrimination lawsuit against Mintz Levin Cohn Ferris & Popeo, which focuses on her employment at the firm as an associate between 2004 and 2008.
Kamee Verdrager, who now has an employment law practice in New Hampshire, sued Mintz Levin in 2009 claiming the firm demoted and then fired her in 2008 based on gender bias.
“The plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation,” wrote associate justice Barbara Lenk on behalf of a five-judge appellate panel in the Massachusetts Supreme Judicial Court.
The claims at the heart of the dispute center on the cause of her demotion and subsequent termination in 2008.
Verdrager claims that she was subject to discriminatory, negative performance evaluations following a six-month 2006 pregnancy leave, and that the firm had retaliated against her after she previously complained of gender discrimination against at least one of the firm’s members, Bret Cohen.
On Tuesday, the Massachusetts appellate court ruled that Verdrager has enough evidence to bring her case to trial.
The ruling said: “There is evidence… that the plaintiff was treated differently from similarly situated male colleagues, that her evaluators may have judged her through the lens of a stereotype, and that Cohen, her boss, tried to undermine her. From this evidence, a jury could, but need not, infer that a “pattern of retaliatory conduct [began] soon after” her 2004 complaint
And, in a section of the decision that could influence other employment cases, the justices ruled that employers are in some circumstances barred from retaliating against workers who search for, copy, and share with their attorneys confidential company documents that may help them prove discrimination claims.
Friday, May 13, 2016
Elaine Craig, A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos, JOTWELL
Reviewing: Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016).
Abbe Smith, a well known legal ethicist and criminal lawyer, has committed much of her professional attention to theorizing and defending the need for unmitigated zeal in the representation of the criminally accused – including, of course, those accused of sexual offences. With a view to better protecting sexual assault complainants, I have dedicated a lot of scholarly attention in the last few years to developing feminist arguments in support of the ethical limits on defence lawyers who represent clients accused of sexual offences. Where our perspectives likely differ most is with respect to the cross-examination of sexual assault complainants.
Thursday, May 12, 2016
[After working as a lawyer] she finally decided to enter academia. She felt, she said, that moment “was the only shot I had to be able to write, to be able to think about issues, to be able to use all of the things that I had been thinking about up to this moment—to be thinking about society, to be writing about society in a way that I thought would be useful.”
“Law is important. Obviously I believe that. But the kinds of human relations, the kinds of things we’re talking about in both of these books, transcend it,” Gordon-Reed said. “Sometimes you have to look beyond it, because the law is not put in place for everybody, is not made to work for everybody. It’s our hope that we can try to make it work for everybody, but the historian understands that there are moments when that just was not the case, and slavery was one of them."
Monday, May 9, 2016
Jessica Kennedy, Mary-Hunter McDonnell, Nicole Stephens, Does Gender Raise the Ethical Bar? Exploring the Punishment of Ethical Violations at Work,
Abstract:We investigate whether women are targets of more severe punishment than men following ethical violations at work. Using an experimental design, Study 1 finds evidence that ethical behavior is more strongly prescribed for women than for men, even when they occupy an identical professional role. Study 2 manipulates the gender of a manager in a hypothetical scenario and finds that women are punished more severely than men for ethical violations at work. It also tests the scope of our theory by asking whether women are punished more for errors in general, or only for intentional ethical violations. Using field data, Study 3 examines how severely attorneys are punished for violating the American Bar Association’s ethical rules. Female attorneys are punished more severely than male attorneys, after accounting for a variety of factors. Greater representation of women among decision-makers diminishes the gender disparity in punishment. Our research documents a new prescriptive stereotype faced by women and helps to explain the persistence of gender disparities in organizations. It highlights punishment severity as a novel mechanism by which institutions may derail women’s careers more than men’s.
Takeaway: "People expect women to be more ethical than men."
Wednesday, May 4, 2016
Nicole Negowetti, Implicit Bias and the Legal Profession's "Diversity" Crisis: A Call for Self-Reflection, Nevada L.J. 431 (2015)
Fifty years after federal law prohibited discrimination based on gender and race and ten years after Roderick Palmore issued A Call to Action: Diversity in the Legal Profession, racial and gender disparities persist in the legal profession. A 2013 study commissioned by Microsoft revealed that the diversity gap in the U.S. legal profession has worsened over the past nine years, lagging behind other professions. While the under representation of minorities is a pervasive problem in the workplace, the legal profession may be the palest profession. In May 2014, The American Lawyer magazine announced that the legal profession is suffering a “Diversity Crisis.” According to Professor Deborah Rhode,
One irony of this nation’s continuing struggle for diversity and gender equity in employment is that the profession leading the struggle has failed to set an example in its own workplaces. In principle, the bar is deeply committed to equal opportunity and social justice. In practice, it lags behind other occupations in leveling the playing field.
Many efforts have been undertaken in response to the Call to Action, such as recruitment at law schools of Historically Black Colleges and Universities and diversity scholarship programs, and many scholars have also proposed institutional reforms to address the law firm practices that disadvantage women and minorities. However, diversity has been elusive. As Brad Smith, General Counsel and Executive Vice President of Microsoft, stated in response to data from the diversity gap findings: “What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.” One reason the diversity efforts have been unsuccessful may be due to a lack of focus on a key reason for the persistent disparities — the “reforms are unlikely to stick until people understand how race actually operates in the brain.”
The goal of this article is to apply social science insights to understand and address the diversity “crisis.” Emerging studies from social science demonstrate that implicit biases play a pivotal role in those “continuing inequities.” Researchers assert that disparate outcomes for different demographic groups not explained by education, experience, qualifications, or work effort are “the most rigorous evidence that substantial bias remains in the American labor market.” Social science studies demonstrate that the continued under representation of women and minorities in the legal profession is unlikely due predominately to explicit or “first generation bias,” which involves “deliberate exclusion or subordination directed at identifiable members of disfavored groups.” Rather, this bias has been supplanted by “second generation” forms of bias, which are attributable to implicit bias.
Friday, April 29, 2016
WE tv launched the premier to its newest reality show at the end of March called “The Sisters in Law". The show follows 6 black female attorneys in Houston, Texas. *
The show is brand new and only a few episodes in. The show does have a dramatic flare among the cast mates, but so far the show is also doing a great job of showing the women in their career and working hard for their clients. For example, the first episode showed criminal defense attorney Jolanda meeting with her client who had been charged with murder. In the episode, Jolanda is advocating that her client was in self-defense of her life from an abusive spouse, and even goes to visit the client’s house where the homicide took place.
Thursday, April 7, 2016
"Tackling the gender gap in the legal profession is becoming more important as the number of women going to law school continues to boom. In fact, women are projected to outnumber men in law schools by 2017."
On the history of women lawyers:
Women have always been a part of the legal system, but remained formally prohibited from the actual practice of law for many years. Nevertheless, women found innovative ways to circumvent existing rules while advocating for more equitable ones.
On the continuing pay gap:
Remarkably, the typical female equity partner currently earns approximately 80% of what a typical male partner earns—despite exceeding the average total hours billed by male partners.
A recent analysis of invoices from more than 3,000 law firms demonstrated that no matter what tier firm women work at, female lawyers are billed at 10% less than male lawyers per hour.
On pockets of progress:
The percentage of women who are law school deans has tripled since 1999. Women hold one in five law school dean positions, 45% of law school associate or deputy dean positions, and 66% of assistant dean positions.
Tuesday, April 5, 2016
With the Yaz birth-control multidistrict litigation led almost entirely by men, the evidence that women are less likely to be first chairs at trials across the legal industry, and the occasional story about old-guard leadership jockeying to ensure continued appointments on steering committees, anecdotal evidence suggests women are underrepresented in leadership positions on plaintiffs' steering committees in MDLs and mass torts.
Although many attorneys say the situation is improving—in large part through efforts from both the judiciary and attorneys who work in the arena—soon hard evidence may be coming forward outlining exactly the disparity mass litigations are facing when it comes to female attorneys serving on leadership panels.
Recently a study has gotten under way at the Sheller Center for Social Justice at Temple University's Beasley School of Law that is aimed specifically at quantifying the various factors that may go into appointing female attorneys onto steering committees.
The study, which is being conducted by research fellow Dana Alvare, will break down the number of women serving on plaintiffs' steering committees nationwide, and will look into how variables such as the type of the cases, whether they are state versus federal litigation, or the gender of the judge, could impact the likelihood of having a more diverse roster of leadership appointments.
Friday, March 4, 2016
Phillipa Strum, Dorothy Kenyon, Senator Joseph McCarthy's First Case, History Weekly (2015)
Scholars have documented the confusion, but for the most part historians of McCarthyism have not examined the role of Senator Joseph McCarthy in reflecting and adding to the tensions. This article examines the way in which the senator’s attack on what he called his “case number one”—the lawyer-activist Dorothy Kenyon —both reflected and contributed to the ongoing struggle about the proper role of women in the 1950s. While historians have written volumes about McCarthy, they have largely ignored the assumptions implicit in the choice of a woman as his first target. Kenyon’s case becomes a lens through which to view an important moment in the construction of gender.
Friday, February 26, 2016
Articles on Women in the Legal Profession: Few Women in the Supreme Court and Few Minority Women in Firms
[Stephanie] Toti is preparing to argue her first Supreme Court case -- the most significant abortion trial of this century. On March 2, she'll take the lead in oral arguments on Whole Woman's Health v. Hellerstedt, a case that could determine whether women in Texas and across the country will have access to abortion services in their communities.
The case challenges the constitutionality of two Texas abortion restrictions passed in 2013 that were designed to shut down most of the clinics in the state. The decision will not only determine the fate of abortion access in Texas; it will also send a signal to other states about the appropriateness of similar laws.
Most litigators who argue big cases before the Supreme Court are white men who have done it before. An elite group of 66 lawyers -- only eight of whom are women -- argued nearly half of the cases before the high court from 2004 to 2012, according to a 2014 Reuters analysis of 17,000 attorneys. Some of those attorneys have argued dozens of cases before the court, and nearly half of them are graduates of Harvard or Yale law schools who clerked for Supreme Court justices after graduation. That narrow representation turns the court into what the Reuters investigators described as an “echo chamber."
But in the most consequential abortion rights cases, the reproductive rights movement has repeatedly turned to relatively inexperienced women.
Sarah Weddington was 27 when she argued and won Roe v. Wade, the 1973 case that legalized abortion throughout the United States. Weddington had no previous experience with the high court. “Because I hadn’t been able to get a job with a law firm, I didn’t have any real experience,” Weddington told Ms. Magazine last year. “I had done one adoption for my uncle, some divorces for people with no real assets to divide up, a couple of wills for people with very little money. I had not done Big Law.”
In 1992, reproductive rights advocates chose Kathryn Kolbert to represent them in the case Planned Parenthood v. Casey, which challenged a Pennsylvania law requiring a 24-hour waiting period and spousal notification before a woman could obtain an abortion. Kolbert, then a 40-year-old attorney for the American Civil Liberties Union, had only argued one case before the Supreme Court, but she claimed a narrow victory over Pennsylvania’s Republican attorney general. The court ruled that states can regulate abortion, but cannot place an "undue burden" on the right to obtain one.
Eighty-five percent of minority female attorneys in the U.S. will quit large firms within seven years of starting their practice. According to the research and personal stories these women share, it’s not because they want to leave, or because they “can’t cut it.” It’s because they feel they have no choice.
“When you find ways to exclude and make people feel invisible in their environment, it’s hostile,” Jones says. “Women face these silent hostilities in ways that men will never have to. It’s very silent, very subtle and you, as a woman of color—people will say you’re too sensitive. So you learn not to say anything because you know that could be a complete career killer. You make it as well as you can until you decide to leave.”
Disturbing sentiments like these led the ABA Commission on Women in the Profession to undertake the Women of Color Research Initiative in 2003. Findings concluded that, in both law firms and corporate legal departments, women of color receive less compensation than men and white women; are denied equal access to significant assignments, mentoring and sponsorship opportunities; receive fewer promotions; and have the highest rate of attrition.
“If you look at the women-of-color research, the numbers are abysmal,” says the New York Public Library’s general counsel, Michele Mayes, who chairs the ABA commission. “When you lose any ground, you lose a lot because you never had that much in the first place.”
Studies and surveys by groups such as the ABA and the National Association of Women Lawyers show that law firms have made limited progress in promoting female lawyers over the course of decades, and women of color are at the bottom.
“We’re still a profession less diverse than doctors or engineers and that is 88 percent white,” notes Danielle Holley-Walker, dean of Howard University School of Law. “We’ve been at this for 40-plus years—firms have been recruiting lawyers of color since the late ’60s.