Wednesday, January 22, 2020
The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment
In this interview, I offer my thoughts on the history and future of the ERA.
Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean
Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.
History of ERA Passage
The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979. Congress extended the deadline to 1982. President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote. See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977).
Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states. Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment. Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states. Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.
Current Challenges to ERA Ratification
In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA. Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020) The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.
Arguments in Support of Ratification Today
So what do proponents of ERA say? There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.
1. The original deadline is not mandatory.
a. Deadlines are not required for constitutional amendments. The first 17 amendments did not have a deadline.
b. The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore is not binding as part of the ratification.
c. The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect. In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.
i. The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect. Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention.
ii. Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years. The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect. It was originally proposed in 1789 as the Second Amendment. While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.
2. Congress has the power to modify the deadline
a. The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify. As a procedural matter, only a majority of the congressional houses is required.
b. The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.
c. The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed. In Coleman, the Child Labor Amendment was pending for thirteen years. It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states.
d. Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.
If the deadline does not apply, then the question is whether states can rescind their past ratification. The precedent of the Fourteenth Amendment suggests no. Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable.
In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided). The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.
Friday, January 17, 2020
The Supreme Court grant cert today in Trump v. Pennsylvania and the related Little Sisters of the Poor regarding religious exemptions for the federal healthcare mandate that employers provide women employees birth control.
From the Petition for Cert, Questions Presented:
The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. 18001 et seq., requires many group health plans and health-insurance issuers that offer group or individual health coverage to provide coverage for preventive services, including women’s preventive care, without cost-sharing. See 42 U.S.C. 300gg-13(a). Guidelines and regulations implementing that requirement promulgated in 2011 by the Departments of Health and Human Services, Labor, and the Treasury mandated that such entities cover contraceptives approved by the Food and Drug Administration. The mandate exempted churches, and subsequent rulemaking established an accommodation for certain other entities with religious objections to providing contraceptive coverage. In October 2017, the agencies promulgated interim final rules expanding the exemption to a broad range of entities with sincere religious or moral objections to providing contraceptive coverage. In November 2018, after considering comments solicited on the interim rules, the agencies promulgated final rules expanding the exemption. The questions presented are as follows:
1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. 2000bb et seq., to expand the conscience exemption to the contraceptive-coverage mandate.
2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq.
3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
“What happens in Virginia impacts the entire country and will reverberate across the globe,” said Betty Folliard, the founder of ERA Minnesota, who traveled to Richmond to watch the votes.
Candace-Saari-Kovacic-Fleischer, Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018
Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018 considers whether laws in the United States make it difficult for people to be employees and parents at the same time. The book covers constitutional law, employment law, social security law, poverty law, discrimination law, disability law, and veterans law in historical context beginning with the 1890s. To do this, the book includes copies of primary sources—reports, bills, laws as originally passed, signing statements, amendments, and bills not passed—and court cases arranged chronologically by topic. Because the book focuses on policies and consequences of laws, it explains how to understand each law before introducing it in statutes and cases. Thus, it is intended that the book be a reference for people in a variety of disciplines.
Announcement of Conference and Call for Contributions
Taxation and Gender Equality Conference:
Research Roundtable and Policy Program
As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.
The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants.
The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).
We are now seeking participants interested in contributing either to the research roundtable or to the policy program (or to both). Participants can be legal academics, economists, legal practitioners, government officials, policy researchers, or others with an interest and expertise in tax law and its administration. Contributors from the United States as well as other countries are welcome.
Scholars, analysts and policymakers of all levels of seniority and from all disciplines are invited to submit proposals for consideration for inclusion in panel discussions. We expect that for each day of the program, there will be approximately 5-10 speaking slots available. Contributions to be presented at the research roundtable should be works in progress, not published (or committed to publication) prior to the conference. Contributions to be presented as part of the policy program may be works in progress or may be work published (or committed to publication) prior to the conference. A brief description of possible panel topics to be addressed in the policy program is provided below; please understand that this listing is intended to provide directional guidance on possible panel and research paper topics and should not be viewed as limiting the potential issues to be addressed.
Those interested in presenting at either the research roundtable or the policy program portion of the Conference should send an abstract of no more than 500 words describing their proposed presentation, an indication of whether the proposal is for the research roundtable or the policy program, and a copy of their CV to Alice Abreu at firstname.lastname@example.org. If the proposed panel presentation is based on a published or soon-to-be-published work, please also attach a copy or draft of the work. Expressions of interest are due by March 15, 2020. The Academic Advisory Committee expects to notify accepted participants by May 1, 2020. Accepted participants should submit circulation drafts of the work to be presented no later than August 14, 2020. Selected participants may be invited to publish their completed papers in The Tax Lawyer or may choose to publish elsewhere. (The Tax Lawyer is the flagship scholarly journal published by the Tax Section of the American Bar Association and is published in cooperation with the Graduate Tax Program of the Northwestern University Pritzker School of Law; it has a robust circulation both in print and through electronic access).
Limited funding may be available for reasonable travel expenses of those selected to present their work; in your expression of interest please indicate whether you will need financial assistance to participate in this event. There is no fee for attending the conference. The conference will be webcast and is open to members of the public.
We look forward to hearing from many interested potential contributors.
Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)
Academic Advisory Committee: Alice Abreu (Temple), Bridget Crawford, (Pace) Anthony Infanti (Pittsburgh), Ariel Kleinman (San Diego), and Stephen Shay (Harvard)
POSSIBLE DISCUSSION TOPICS
The following is a representative list of panel topics for the policy program. Final panel topics will be determined based upon the abstracts received in response to this Call for Contributions.
- In general: A review of the positive and negative (intentional and unintentional) impacts of tax laws on gender equality, including a broad discussion of the form such tax laws can take (e.g., the marriage penalty, deductions or exemptions for entrepreneurial efforts, consumption vs. income taxes, wage withholding taxes, pink taxes, corporate tax expenditures).
- Impacts of U.S. tax laws on gender equality. Possible topics for separate panels include:
- Specific issues under the TCJA.
- A comparisons of gender equality issues as reflected in the tax reform proposals advanced by the current presidential candidates.
- One or more topics covered in three interrelated reports prepared by the National Women’s Law Center (NWLC) that examine the federal tax code with a focus on gender and racial equity and explore policies to make the tax code work for everyone. (See (i) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, (ii) Reckoning with the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security and (iii) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws at https://nwlc.org/resources/gender-and-the-tax-code/.) The papers were prepared by NWLC in collaboration with Groundwork Collaborative, the Roosevelt Institute, and the Georgetown Center on Poverty and Inequality.
- Impact of U.S. tax administration (including collection and other enforcement efforts) on gender equality (e.g., innocent spouse relief).
- Discussion of the economic impact of tax laws that influence gender equality (e.g., distributional effect on how income is distributed between the sexes and allocative effect on how paid and unpaid labor is allocated between the sexes). General discussion of the connection between gender equality and economic growth.
- Examination of tax systems in countries that have historically been more thoughtful than the United States on the question of taxation and gender equality, including measures such countries have taken to advance the issue. For example, the German Technical Cooperative has a program to support OECD partner countries in their efforts to reform tax policy and tax administration to avoid or eliminate gender bias.
- Examination of the impact of tax laws on gender equality in developing countries. For example, the International Centre for Tax and Development with support from the Bill and Melinda Gates Foundation has done research in this area.
- Use of gender-neutral language in the tax law and government publications and encouraging equivalent use of names that suggest male, female, and indeterminate genders and the accompanying pronouns.
Amy Madi & Lisa Ouellette, "Policy Experiments to Address Gender Inequality Among Innovators"
Houston Law Review, Forthcoming
In her Frankel Lecture, Professor Orly Lobel has set forth an intriguing hypothesis: that non-compete agreements, non-disclosure agreements, and other legal restrictions on employee exit and voice exacerbate the innovation gender gap. The unequal participation of women in science, technology, and innovation is an issue of increasing concern for many public- and private-sector stakeholders, and those interested in increasing innovation by women would be well advised to consider Lobel’s ideas. But as we emphasize in this Commentary, the underlying causal mechanisms for inequalities among innovators remain highly contested, and policymakers should not overstate the existing evidence for potential interventions out of a desire for rapid progress. Nor should they use this lack of evidence as an excuse for inaction. Rather, we argue that institutions interested in this issue should look for opportunities to rigorously and transparently test the most promising interventions.
Tuesday, January 14, 2020
Catharine MacKinnon & Kimberle Crenshaw, Reconstituting the Future: An Equality Amendment , Yale Law Forum (Dec. 26, 2019)
A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.
A new constitutional amendment offers a new beginning. The equality paradigm proposed here recognizes the failures of what is, turns away from language and interpretive canons rooted in an unjust past, and imagines a fully functioning democracy as the inheritance of future generations. This proposal reenvisions constitutional equality from the ground up: it centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities.2 It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
Justice Department OLC Issues Opinion Declaring Equal Rights Amendment Dead Due to Expired Ratification Deadline
The Equal Rights Amendment has been dead for more than four decades, the Justice Department ruled Wednesday, and neither ratification by Virginia nor an effort to revive it by Congress can bring it back to life.
The Office of Legal Counsel, which serves as the in-house lawyers for the Executive Branch, said the deadline Congress set in 1972 for ratification is still valid, and has long since expired. Attempts to circumvent the deadline are futile, the lawyers said.
“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the states,” wrote Assistant Attorney General Steven A. Engel.
The opinion is binding on the National Archives, which is the federal agency tasked with certifying new amendments.
But activists are still expected to press their case in court, asking judges to rule the deadline illegal and the ERA still viable.
The opinion is Office of Legal Counsel, Ratification of the Equal Rights Amendment (Jan. 6, 2020). From the summary abstract:
Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.
Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.
The Equal Rights Amendment, which would ban discrimination on the basis of sex, was first proposed in 1923. Since then, 37 states have passed the amendment, or added a version to their state constitutions, but 38 are needed to enshrine it in the U.S. Constitution. Nearly 100 years later, Virginia could become that final, 38th vote in a matter of weeks. But three GOP attorneys general have filed a lawsuit to stop the Equal Rights Amendment from being added to the constitution — a move that ERA supporters have called anti-equality.
Virginia Attorney General Mark Herring tells Bustle that the lawsuit is "ridiculous." "The ERA is something that should have been passed and ratified a long time ago," he says. "It is past time for women's equality to be constitutionally guaranteed."
Congress first passed the Equal Rights Amendment in 1972 with a seven-year deadline for states to approve it. That deadline was later extended to 1982, but by then only 35 states had ratified it, according to NPR. The House has since introduced legislation to eliminate the deadline, and in the last few years, Nevada and Illinois passed the ERA, bringing the total number of states to ratify it to 37. When Virginia Democrats took back control of the state legislature in November 2019, the incoming House speaker, Eileen Filler-Corn, told The Hill that passing the ERA would be a "top priority" when the legislature started its next session.
In December, three GOP attorneys general from Louisiana, Alabama, and South Dakota filed a preemptive lawsuit in Alabama, arguing that the original ratification deadline is still enforceable and that five states — Nebraska, Tennessee, Idaho, Kentucky, and South Dakota — rescinded their ratifications. Alabama Attorney General Steve Marshall, one of the three who filed the lawsuit, said in a statement that adding the ERA to the constitution 40 years later ignores those recissions and the deadline. “The people had seven years to consider the ERA, and they rejected it," Marshall said in the statement. "To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order."***
Herring also notes that the constitution isn't clear on whether states can rescind their ratification — the issue isn't specifically mentioned in Article V. But in the past, states that have revoked their support for amendments have still been included in official tallies by both the secretary of state and Congress, suggesting that you can't really take back that decision.
In Marshall's statement about the lawsuit, he also said that the policy impacts of ratifying the ERA would promote a "far-left" agenda. "Where states have passed their own state-law versions of the ERA, courts have interpreted them to invalidate reasonable restrictions on abortion, require states to fund abortions, and mandate that boys be allowed to compete in sports against girls," he said.
Monday, January 13, 2020
Ariel Jurow Kleiman, Amy Matsui & Estelle Mitchell, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, San Diego Legal Studies Paper No. 19-423
This report examines the outdated assumptions and gender and racial biases embedded in the U.S. tax code. It highlights tax code provisions that reflect and exacerbate gender disparities, with particular attention to those that disadvantage low-income women, women of color, members of the LGBTQ community, people with disabilities, and immigrants.
Mary L. Heen, Agency: Married Women Traders of Nantucket, 1765-1865, 21 Georgetown J. Gender & Law (2019)
Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the common law of coverture under agreements made within the family itself. On the other hand, public law proved much more restrictive for wives who were not part of a viable or harmonious marriage. In post-revolutionary Massachusetts, for example, the feme sole trader statute and various judicially adopted exceptions to coverture applied only to certain wives abandoned by their husbands.
The second part of the article provides a case study of three generations of married women traders from Nantucket during the whaling era, the oil exploration business of its time. Their stories show how some married women, within the constraints of the law as it developed in Massachusetts without courts of equity, attained a form of autonomy in business or commercial activity at the same time that they fulfilled their family responsibilities. Their stories also uncover tensions underlying the first wave of women’s rights reform efforts in the mid-nineteenth century, including the developing separation between work and home that continues to pose challenges for family law and for men and women today. In a broader sense, this historical study also illuminates the interaction among private law, public law, and evolving social practice as the law both reinforced and shaped family roles during a period of increased commercialization and industrialization.
Tuesday, January 7, 2020
Michelle Travis (University of San Francisco School of Law) has just published a new book, Dads For Daughters: How Fathers Can Give Their Daughters a Better, Brighter, Fairer Future. It's available for pre-order on Amazon and is launching a the end of January from Mango Publishers. Here's the abstract:
For decades, women have been breaking down barriers, cracking the glass ceiling, and proving and re-proving themselves. Yet our next generation of girls is still growing up in a profoundly unequal world. It's time to expand our efforts and accelerate our progress toward equality. To do that, we need more men to get involved.
Dads For Daughters is an invitation for more to join the fight for women's rights. Inspired by their daughters, fathers are uniquely positioned to become powerful allies for girls and women. But in a post-#MeToo world, it can be difficult for men to step in and speak up. Despite these challenges, many men are still coming forward as ready, willing, and able supporters, who want to learn more about becoming part of the solution. That's where Dads For Daughters can help. This book arms fathers with the data they need to advocate for gender equality. It also provides role models by sharing inspiring stories of dads of daughters who have already had an impact. Most importantly, it offers concrete strategies and expert advice for how more men can get involved.
In this book, dads of daughters will find a wide range of options for where to focus their energy--from mentoring women to equalizing pay, from sports fields to science labs, from building empathy to combating gender bias, from boardrooms to ballot boxes. With every small step, dads have the power to make incredible change and support the progress of girls and women in their families, workplaces, and communities.
Dads For Daughters also offers women a practical guide for recruiting passionate men into action. It highlights successful strategies for working with men to support girls and women, along with resources for engaging men in gender equality initiatives. Women and men are stronger working together. Together, we can create a more successful future for all of our daughters to thrive.
Charisa Kiyo Smith, #WhoAmI: Harm & Remedy for Youth of the #MeToo Era, 23 U. Penn. J. Law & Soc. Change (forthcoming)
Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age 18 remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture.
This article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades 8 and 11 report experiencing school sexual harassment, and girls ages 16-19 are four times more likely than the general population to be victims of sexual assault. These figures are undoubtedly low as much victimization goes unreported, including among males, LGBTQI populations, communities of color, and adults. Engaging the consciousness of the #MeToo movement — one of newfound courage and tenacity among survivors — this article calls for a paradigm shift while deconstructing, reimagining, and reorganizing the problematic legal landscape regarding sexual and gender-based harms between youth.
This article asserts that status quo responses miss concerns unique to minors and simultaneously over-criminalize, infantilize, and neglect youth. At best, the status quo approach fails to address underlying causes of rape culture and other harms. At worst, it deprives survivors of true remedies and recourse while unfairly branding children with life-long punishment. Sexting among youth is a pervasive habit that presents an archetypal case study. Myriad sexting scenarios can lead to a blunt legal response that fails to recognize the inaccuracy of victim-offender binaries in the digital age.
After critiquing and deconstructing the existing criminal law approach, this article recommends a paradigm shift that more aptly situates the “Me” in #MeToo concerning minors. Creating an informed, interdisciplinary typology of instances of sexual and gender-based harm among youth, this article ultimately proposes a tiered response system defaulting to public health education and harm-reduction, which only resorts to criminal legal intervention in the most severe situations. Although egregious events may require legal redress, a large portion of incidents involve issues beyond the narrow scope of law and impact youth who seek nonlegal or farther-reaching remedies.
Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, Georgetown L.J. (forthcoming)
This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s 100-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the amendment merely prohibits states from enacting laws that prohibit women from voting, once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.
This piece argues the Nineteenth Amendment does more. A thick understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting rights plaintiffs to attack restrictive voting laws burdening women, especially when those laws burden young women of color, who are guaranteed nondiscrimination in voting on the basis of age and race as well. And a thick understanding of Congress’s power to enforce the Nineteenth Amendment offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach, and to reinforce the democratic legitimacy of the Constitution. The thick understanding of Congress’s enforcement power would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.
Friday, December 13, 2019
Gender diversity in the U.S. corporate world is shockingly low. As The New York Times reported, fewer women run large corporations than CEOs named John. Boardrooms also lack diversity. While 86% of directors participating in PwC’s annual director survey stated they felt that women should comprise between 21% and 50% of the board, only 28% of Russell 3000 boards have more than one-fifth of their board comprised of women. Some U.S. boards do not even try to include women: 76 of the largest 1,500 Russell 3000 companies have not had any female directors in the past decade.
The investor community has made board diversity a recent point of emphasis. State Street, Vanguard, and Blackrock have all voiced their commitment to gender diversity, followed by recent support from proxy advisors. California has ventured even further, passing legislation that mandates specific quotas for women on Californian corporations. New Jersey and Illinois may soon follow suit. Diversity mandates, however, confront substantial legal, economic and societal challenges.
What if companies could advance gender diversity without explicitly regulating diversity at all? Our recent article, Board Diversity by Term Limits? forthcoming in the Alabama Law Review, explores how the use of director term limits can promote gender diversity in boardrooms, avoiding quota controversies altogether. While term limits have often been invoked as a tool to improve director independence and board oversight, they may be also effective in improving diversity. We demonstrate the negative correlation between incumbency and diversity to support our findings. Director turnover in the U.S. remains very low. Firms hesitate to force out incumbents, who typically believe they contribute to the firm in unique and essential ways. Furthermore, although perhaps not averse to the idea of hiring a woman, these leaders will eventually search among potential replacements for people whose skills mirror their own. The cycle self-perpetuates, locking women out of opportunities.
Our article explores this aforementioned connection between term limits and board diversity. Drawing upon quantitative data on director turnover in the S&P 1500 and qualitative data on S&P 500 firms with term limits, our research shows that firms experiencing higher board turnover have more gender diversity. A regression analysis of the S&P 1500 companies over the 2010-2016 period shown in Table 1 below depicts how a decrease in average board tenure correlates significantly with an increase in gender diversity. Conversely, a one-year increase in average board tenure results in a 0.24 percentage point decrease in female board percentage.
Meghan Twohey & Jodi Kantor, Weinstein and His Accusers Reach Tentative $25M Deal
After two years of legal wrangling, Harvey Weinstein and the board of his bankrupt film studio have reached a tentative $25 million settlement agreement with dozens of his alleged sexual misconduct victims, a deal that would not require the Hollywood producer to admit wrongdoing or pay anything to his accusers himself, according to lawyers involved in the negotiations.
The proposed global legal settlement has gotten preliminary approval from the major parties involved, according to several of the lawyers. More than 30 actresses and former Weinstein employees, who in lawsuits have accused Mr. Weinstein of offenses ranging from sexual harassment to rape, would share in the payout — along with potential claimants who could join in coming months. The deal would bring to an end nearly every such lawsuit against him and his former company.
The settlement would require court approval and a final signoff by all parties. It would be paid by insurance companies representing the producer’s former studio, the Weinstein Company. Because the business is in bankruptcy proceedings, the women have had to make their claims along with its creditors. The payout to the accusers would be part of an overall $47 million settlement intended to close out the company’s obligations, according to a half-dozen lawyers, some of whom spoke about the proposed terms on the condition of anonymity.
The $25 million, down from a $90 million victims fund that was contemplated at one point, would be paid by an insurance company for the Weinstein Company, which is now in bankruptcy proceedings because of everything Weinstein did. The agreement further stipulates that another $12 million would go toward legal fees for Weinstein, his brother, and other board members. It would also protect Weinstein and the board from future suits. In short: Besides not having to pay a dime himself, or admit to any wrongdoing, the millions of dollars it cost for the legal jiujitsu that made this extraordinary outcome possible will also be covered—by the company Weinstein’s own actions helped bankrupt. The victims, 18 of whom can get a maximum of $500,000 under this agreement, will be among other creditors trying to collect from the embattled company.
From the complaint in Mullenix v. University of Texas (W.D. Tex. filed 12/12/19)
Plaintiff Linda Susan Mullenix files Plaintiff’s Original Complaint & Jury Demand, and sues the University of Texas for violations of the Equal Pay Act, as well as for sex discrimination and retaliation. Over the past three years, Professor Linda Mullenix, one of UT Law’s most distinguished professors, has been paid $134,449 less than male professor Robert Bone. Professor Bone has the same above-average teacher evaluation rating as
Professor Mullenix, but almost a decade less overall teaching experience, fewer than a third of Professor Mullenix’s overall publications, and fewer professional honors. This pay gap is sex discrimination.
Moreover, UT Law has retaliated against Professor Mullenix for opposing the law school’s unequal pay practices. For the last several years, Professor Mullenix has received among the lowest raises of any tenured faculty. For example, Professor Mullenix received a $1,500 raise for the 2018-2019 academic year, which was the lowest raise given to any faculty member. That same year Professor Bone, and many other professors less accomplished than Professor Mullenix, received $10,000 raises, some of the highest raises given. Dean Farnsworth also retaliated against Professor Mullenix and attempted to chill reports of discrimination by telling Professor Mullenix that he would pay her the same as Professor Bone only if she agreed to resign in two years. At that time and at present, Professor Mullenix has no plans to resign.
Another example of retaliation is that despite Professor Mullenix’s repeated requests to be appointed Associate Dean for Research or to be put on the prestigious Budget Committee, she has been relegated to “do-nothing” committees that have little impact on the governance of the law school. Most disturbingly, because of Professor
Mullenix’s opposition to UT Law’s unequal pay practices, she has been made a pariah by the administration. New professors are told to stay away from her and that she is “poison.” Professor Mullenix’s marginalization is also held out as a warning to other professors who might speak out.
UT Law has reason to be worried about others speaking out about unequal pay and sex discrimination. For at least the last three years, UT Law has, on average, paid tenured female professors over $20,000 less than tenured male professors. By paying Professor Mullenix less than a similarly-situated male professor and retaliating against her for opposing unequal pay based on gender, UT Law has violated Title VII, the Equal Pay Act, and the Texas Labor Code.
Monday, December 9, 2019
Every year, the anticipation of the holidays ushers in a return of winter classics on radios and streaming services across the United States, including the 1944 hit, "Baby It's Cold Outside."
The song continues to stir up controversy due to lyrics that some have considered questionable as they believe they advocate date rape.
Written by Frank Loesser, the 75-year-old song first became popular in 1949 as a twice-featured song in the MGM romantic comedy Neptune's Daughter.***
According to Rolling Stone, outrage over the song's lyrical content became prominent in 2007, following the emergence of social media sites like Facebook, Twitter and Tumblr. However, the magazine also noted that frustration with the song had been brewing for a couple of years prior, with journalists and bloggers describing the depicted romantic encounter as "semi-consensual" or "a guy who hasn't taken 'no' for an answer."***
In 2014, a Washington Post opinion piece—drawing from a 2010 post from Persephone Magazine—noted in that the woman's lines in the song do not explicitly state her reluctance to leave for her own sake, but for the sakes of those who might worry about her or question her virtue.
The Post columnist, Marya Hannun, also mentioned that in 1944 the notion of an "unmarried woman staying the night at her beau's was cause for scandal," and that in the song, the woman lists her mother, father, sister and maiden aunt as the reasons for her departure.
"In this light, the song could be read as an advocacy for women's sexual liberation rather than a tune about date rape," Hannun wrote for the Post.
Earlier this week, award-winning singers John Legend and Kelly Clarkson received both sharp criticism and high-praise from others for a revamped version of the song, which they performed Tuesday night on an episode of The Voice.
As Vanity Fair wrote last month, listeners can now hear Clarkson singing "What will my friends think?" and then Legend's reply: "I think they should rejoice." Clarkson continues by asking, "If I have one more drink?" Legend's answer: "It's your body, and your choice."
Legend chose to pen new lyrics to the song, sparking backlash from individuals who felt it shouldn't be changed.
Listen to it here.