Gender and the Law Blog

New Book--Women's Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights

New Book: Gila Stopler, Women's Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights (Cambridge University Press),  available here.  The introduction can be found on SSRN here. 

The rise of religious conservatism and right-wing populism has exposed the fallibility of women's rights in liberal states and has seriously undermined women's ability to trust liberal states to protect their rights against religious and populist attacks. Gila Stopler argues that right-wing populists and religious conservatives successfully attack women's rights in liberal democracies because of the patriarchal foundations of liberalism and liberal societies. Engaging with political theories such as feminism, liberalism and populism, and examining concepts like patriarchy, culture, religion and the public-private distinction, the book uncovers the deep entrenchment of patriarchy in legal structures, social and cultural systems, and mainstream religions within liberal democracies. It analyses global cases and legal frameworks, focusing on liberal democracies and especially the USA, demonstrating how patriarchy fuels right-wing populism, accelerates the erosion of women's rights and threatens the future of liberal democracy. 

Nienke Grossman on "Feminism, Approach to International Law"

Nienke Grossman has authored an encyclopedia on "Feminism, Approach to International Law" in the Max Planck Encyclopedia of Public International Law. It is available online here. The entry's conclusion is excerpted below with internal citations removed: 

Although feminist approaches have, in many ways, positively influenced the direction of international law and institutions, significant challenges remain to realizing the potential of international law to eliminate gender-based discrimination and achieve a gender-equal world. Among the internal ones are whether feminism can continue to serve as a useful focal point for improving the lives of women globally, if no common feminist agenda or shared conception of womanhood exists across women, in all their diversity and experiences. Perhaps it is sufficient to point out that those who identify and are identified as women and girls continue to suffer gender-based discrimination and marginalization across the planet.

[] Feminist approaches and goals are threatened, too, by demonization of what some have denominated ‘gender ideology’, as well as by some populist movements. Those fighting against gender ideology, including the Vatican, and some states and non-governmental organizations, seek to stop use of the word ‘gender’, and to block reforms that aim to alter traditional sex roles, provide equal rights to sexual minorities and trans persons, and promote sexual and reproductive rights more generally. They have mobilized at the domestic and international levels to counter what many might consider to be feminist goals, including, for example, by seeking to block accession of the European Union to the Istanbul Convention. Because of their anti-institutional and anti-pluralist characteristics, populist movements present challenges to feminist approaches when international institutions disagree with their perceptions of what ‘the people’ want.

[] Feminists continue to question whether international law and institutions are a fruitful locus for emancipatory change. * * * To achieve the goals of deconstruction and transformation of international law and institutions, with women, girls, and feminist goals in mind, those employing feminist approaches must continue to learn from their successes in some areas and setbacks in others, create more complete histories of their impacts on international law’s norms and institutions, and push for greater engagement from the larger international law community.

ACLU Tracker of Anti-LGBTQ Bills

The ACLU is updating a detailed tracker of bills attacking LGBTQ+ people. The tracker reveals how state-level attacks have escalated since 2015. The tool allows you to see bills by state. The bills include the following issues: barriers to accurate government IDs, speech bans, expression bans, healthcare restrictions, healthcare funding restrictions, healthcare bans, prison healthcare bans, public accommodation bans, restrictions on student or educator rights, curricular censorship, sports and facilities bans, and more.  The legal tracker also includes a status of the bill (e.g., introduced, passed, defeated, in court). This is a great tool for teaching and for advocacy.  

 

 

 

 

 

 

 

 

Bildhauer and Karin on "Menstruation and Menopause as Reproductive Justice Issues"

Bettina Bildhauer and Marcy L. Karin have published Menstruation and Menopause as Reproductive Justice Issues: Feminist Reflections on Activism, Research, and Policy from the Global Movement’s Scottish Hub in volume 27 of the Journal of International Women's Studies. The introduction is excerpted below:  

Scotland is a global leader in responding to menstrual injustices, namely, the systemic oppression, stigma, and subordination experienced by individuals due to menstruation, menopause, and related conditions. The authors have facilitated spaces in Scotland for stakeholders to acknowledge, assess, research, and advance Scottish menstrual justice. For example, Professor Bildhauer was the Principal Investigator for the Ending Period Poverty Research Project run by the Menstruation Research Network of UK, which explored the historical and contemporary factors that contributed to Scotland’s leadership in developing a law to reduce period poverty. Professor Karin hosted a 2023 salon on Scottish Menstrual Justice to bring government staff, academics, and activists together to reflect on the menstrual movement’s recent successes and explore how future policy could address remaining gaps. We also have created opportunities for comparative conversations about global experiences and implications. This essay contains our joint reflections on that work, including our assessment of where the movement is heading and of the role of activism, research, and public policy in advancing reproductive justice connected to the menstrual cycle and related conditions. We offer these observations as feminists, as experts in different disciplines with a shared goal of advancing reproductive justice (including menstrual justice), and as people with lived experiences of menstruation and related conditions in Scotland and other places around the world.

Expanding Corporate Fiduciary Duty for Women's Rights

Geeta Kohli, Expanding Corporate Fiduciary Duty, Michigan State L. Rev. (forthcoming)  

Equity and representation are difficult and risky topics at the moment. Nevertheless, given the social, economic, and political power corporations hold, a wave of corporate directors and officers continue to view diversity, equity, and inclusion as a moral and ethical requirement. This Article argues that anti-hate rhetoric can also be situated as a legal obligation under the doctrine of corporate fiduciary duty. As inclusive leadership efforts fluctuate in both public perception, systematic infrastructure, and most recently, political prohibitions, some corporations are creating private institutional structures, and advancing inclusive leadership connected goals through these private institutional structures and external philanthropic outreach. This Article proposes that the doctrine of corporate fiduciary duty can, should, and in fact, already is expanding to encompass social responsibility initiatives  within corporate officers’ and directors’ duties of care and loyalty to the corporation and its shareholders.

The Delaware Court of Chancery recent decision, In re McDonald’s Corporation Stockholder Derivative Litigation, provides new precedent for gendering corporate social responsibility through the lens of fiduciary duty. The case held corporate officers and directors shall be held liable for wrongful acts of sexual harassment that they should have had implied or inferred knowledge of. While the Court ultimately dismissed the derivative claims, the decision demonstrates that corporate fiduciary duties are expanding to include obligations to stakeholders such as women. In analyzing this case and the broader evolution of the corporate fiduciary duty doctrine, this Article applies the case study on women’s rights to demonstrate a legally cognizable method of incorporating social responsibility initiatives in the corporate compliance context: corporate fiduciary duty.

Debate regarding shareholder capitalism and ESG will further show why expansion of corporate fiduciary duty is not only necessary, it is desired and already happening in real time. This Article argues that this expansion of the fiduciary duty doctrine is a positive step towards social change. To show how expansion is possible, I examine and apply the policy rationales and holdings in recent Delaware court opinions to equity concerns. This Article invites comment and collaboration between corporate leaders, the judiciary, and corporate law scholars to address continued expansion of corporate fiduciary obligations in a climate of grave risk for corporate officers and directors. 

Regulating Pregnant Women in the Post-Roe Era

Ederlina Co, Eclipsed: Pregnant Women in the Post-Roe Era 

In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey and authorized states to ban abortion and force pregnant women to carry a pregnancy to term. However, Dobbs is not just about abortion. By expressly recognizing the state’s interest in “respect for and preservation of prenatal life at all stages of development,” the Court has swung open the door for states to risk and regulate pregnant women’s lives, regardless of whether they want an abortion, need an abortion, or are carrying a pregnancy to term. 

Tradition and Feminism in Constitutional Rights Adjudication

Highly recommend.

Rachel Bayefsky, Tradition and Feminism in Constitutional Rights Adjudication  

In recent years, "tradition" has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of expression, has looked to tradition to illuminate the contours of constitutional rights and the boundaries of permissible government regulation. Some legal theorists have defended "traditionalism" as a way to tether constitutional rulings to the people's customs instead of judges' moral views. 

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why integrate into constitutional rights adjudication the practices and understandings of eras in which women were subject to severe political, economic, and social subordination? Yet the relationship between feminism and traditionalism depends on the form that traditionalism takes: what it is, how it is justified, and how it responds to moral critique. 

This Article unpacks the idea of tradition, and it investigates the interaction between tradition and women's rights in constitutional adjudication. I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional rights adjudication that can be conducive to, rather than hostile to, women's rights. For example, the traditionalist emphasis on the insights to be gleaned from concrete experience favors efforts to understand the experiences of women, whose voices may not fully be captured by dominant narratives. And the traditionalist interest in continuity supports acceptance of the last century's advancements in women's rights rather than attempts to "roll back the clock." 

By probing the grounds of traditionalism and highlighting their implications, the Article constructs a theory called "dialectical traditionalism." This approach underscores the possibility of productive tension between past and present, as well as the ability of traditions to change over time. The Article applies this view to several constitutional issues, including contraception, single-sex education, pregnancy discrimination, and the scope of the Equal Protection Clause. The Article also engages in broader reflection about the determinacy of traditionalist analysis and the relationship between traditionalist reasoning and moral evaluation.

Reconceptualizing Anti-Trans Laws as a Broader Effort to Reinscribe Gender Binary

Laura Lane-Steele, The Sex Alignment Project, 78 Fla. L. Rev. (forthcoming 2026)  

The legal opposition to trans health care bans, “save women’s sports” acts, and related laws has characterized these laws’ motivating ideology and impact as anti-trans. This “anti-trans frame” is largely true and has proved useful in court. But its narrow, trans-exclusive focus makes it incomplete. While these laws certainly punish trans people, that is not all they do: they also shore up the dominance of sexual difference ideology in law, ensuring that law reflects a binary and biological conception of sex. By mostly ignoring this larger ideological project, the anti-trans frame provides a limited account of these laws’ goals and functions, lacks explanatory power, and obscures these laws’ integral connections to sex equality jurisprudence.

This Article exposes the limits of the anti-trans frame and introduces a new, broader frame, the “sex alignment” frame. This frame reveals that these laws’ primary function is to naturalize sex alignment’s core tenets: (1) sex traits align as male (M) or female (F), (2) aligned sex traits determine legal sex, and (3) alignment makes defining and attributing sex categories easy and obvious. These laws advance the sex alignment project by proclaiming that sex alignment is natural and objective truth and then operating in ways that actively create the world they purport to merely describe. For example, bans on trans health care allow cis boys with large breasts to remove them, “fixing” their visible misalignment and creating the appearance of natural alignment. Some also exempt trans minors who are already, or on their way to being, cis-passing (i.e., visibly aligned), allowing them to continue receiving gender-affirming care for the same reason: to create and maintain the façade of natural alignment. The sex alignment frame, this Article argues, fills the gaps left by the anti-trans frame by providing the explanatory power the anti-trans frame lacks. It also clarifies the conceptual and doctrinal connections between these laws and other forms of sex discrimination—by shoring up sexual difference ideology, these laws pour cement into the ideological foundation that has long justified sex-based hierarchies.

Making Constitutional Memory Claims of Normative Arguments Utilizing a More Expansive Constitutional History

Reva Siegel, Foreword: Democratizing Constitutional Memory, 123 Mich. L. Rev. (forthcoming 2025)  

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion.  The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

To refute that account, this Foreword demonstrates that appeals to the past in constitutional law, whether true, false, or selective, are commonly elements of normative arguments about our identity and obligations as a people that I term “constitutional memory” claims. I examine gaps between constitutional memory and constitutional history to show how claims on the past in law can conceal, rather than constrain, the expression of judicial values—illustrating through a brief consideration of Dobbs v. Jackson Women’s Health Organization, the decision reversing the abortion right.

Analyzing gaps between constitutional memory and constitutional history refutes core premises of the judicial constraint claim. Importantly, it brings into view new interpretive possibilities for “democratizing memory,” which the Foreword concludes by exploring.

Many critics of conservative historicism would spurn historical-based argument altogether in favor of argument from principle. But there are good reasons to combine argument from principle and memory. The point is not to accommodate the powerful. To the contrary: As we appreciate the pervasive gaps between history and memory in constitutional law, we can ask whose voice, experience, and perspective does law represent? Whose is absent? And how might we democratize constitutional memory and represent in law the perspectives of those unjustly denied voice in the making of American law for much of the nation’s history?  In recalling efforts of the disfranchised to speak—whether by petitioning lawmakers or by resisting law—we can expand our accounts of constitutional lawmaking and identify new authorities to guide the application of constitutional principles.

Including these stories can reorient the law today. To take but one example: When we democratize constitutional memory—considering not only the views of lawmakers but of the people—we can see that American understandings of liberty include freedom from coercion in sex, reproduction, and family life.

Call for Papers SCOTUS Blockbuster Cases 2025

Call for Papers

 SCOTUS Blockbuster Cases 2025

Written Symposium

The Center for Constitutional Law at Akron

The Center for Constitutional Law at Akron Law seeks submission of essays to publish as part of a written symposium in its journal ConLawNOW. The summer symposium collectively examines the 2025 Supreme Court Blockbuster Cases for a wide view of the most recent decisions of the Court. The symposium consists of a collection of written articles, and does not include presentations. As always, the end of the Supreme Court term promises big reveals, important takeaways, and much content for consideration. This written symposium seeks to bring together scholars commenting on the new cases—evaluating opinions, discerning trends, and offering critiques and insights on the developing law—that can influence the interpretation and application of these new decisions. Topics discussed in the essays should be related to any case from the current U.S. Supreme Court Term (October 2024 to July 2025).

ConLawNOW is a faculty edited, open-access, online journal of the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial of the U.S. Constitution to support legal research and public education on constitutional issues. Faculty editors at ConLawNOW select the articles and copyedit the final manuscript, providing a level of professional expertise and peer review for law journal publication.

All papers for the SCOTUS 2025 Symposium should be submitted no later than August 25, 2025. Papers may be submitted earlier, as articles will be published on a rolling basis. Essays for the symposium should be 3,000 to 5,000 words. Papers should be polished papers finalized with all copyediting and cite checking completed. Submit essays to the editors of ConLawNOW at [email protected]. Selection will then be determined by the faculty editorial board with a view to publishing a wide range and volume of papers. Authors may expect that their essays will publish within four weeks of acceptance, as ConLawNOW generally publishes on an expedited schedule to facilitate dissemination of scholarly ideas. Questions about the symposium may be directed to Professor Tracy Thomas, Managing Editor, ConLawNOW, at [email protected].

Ioanna Tourkochoriti on "LGBTQ Wedding Party: Conscientious Objections to the Enforcement of Antidiscrimination Law"

Ionna Tourkochoriti has published LGBTQ Wedding Party: Conscientious Objections to the Enforcement of Antidiscrimination Law in Volume 60 of the Tulsa Law Review at 421-485 (2025). The abstract is excerpted below: 

This article engages with cases that have recently emerged before courts related to conscientious exemptions in the enforcement of antidiscrimination laws regarding access to goods and services. The article proposes a rationale in favor of enforcing antidiscrimination law. Drawing on legal and normative principles, it argues that governments have a compelling interest in enforcing antidiscrimination law. It also analyzes the types of harm that discrimination in this area causes. The article distinguishes between primary and secondary expressive interests, arguing that regulation of secondary expressive interests is legitimate when manifested in the commercial sphere. Enforcing antidiscrimination law constitutes a restriction on expressive interests that is compatible with current First Amendment doctrine. The providers of goods and services retain other avenues to express their objections to same-sex marriage. Further, the article engages with the philosophy underlying the concept of public accommodations. It analyzes the doctrine of neutral rules of general applicability in relation to antidiscrimination law. Additionally, it examines the distinction between the public and private spheres and proposes a normative analysis on the proper role of religion in the public sphere. It discusses the value of diversity and how it should be addressed in the context of citizenship. Lastly, it argues that relinquishing certain secondary, incidental expressive interests when providing goods and services in the commercial sphere is a compromise that enables social coexistence in a civilized society.

Nicholas F. Stump on "Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations"

 

Nicholas F. Stump has published "Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations" in Volume 49 Wm. & Mary Envtl. L. & Pol’y Rev. 367 (2025). The abstract is excerpted here: 

This Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR entails a critical legal theory-informed approach to legal and broader socio-legal research. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change--i.e., specifically focusing on the popular conception of an “ecosocialist transition.” Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and joining ecosocialism with a broader global movement of movements. As this Article contends, such ecosocialist transition strategies can be powerfully informed by CLR via embedding CLR within bottom-up forms of socio-legal praxis, such as radical movement lawyering. Ultimately, such CLR praxis constitutes an emerging and vital, yet still largely underutilized, dimension in the struggles to combat white patriarchal capitalism and to pursue ecologically viable and socially emancipatory futures.

Laura Saravese on "The Origins of Family Rights and Family Regulation: A Dual Legal History"

Laura Savarese has posted a forthcoming article, The Origins of Family Rights and Family Regulation: A Dual Legal History. The article is forthcoming in 78 Stanford Law Review in 2026. The abstract is included below: 

The history of the state’s intrusions on the rights of marginalized parents has become central to today’s critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates.

This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children’s return from orphan asylums and juvenile reformatories—the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state’s growing power to remove children from their parents, in the name of child welfare, from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents’ right to regain custody after they remedied the reasons for children’s removal—establishing the core legal principles that delimit the state’s power today.

Recapturing the story of resistance to the family regulation system, at its inception, offers insights for today’s efforts to transform or dismantle that system, and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today, as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents’ legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents and children’s interests, absent a more radical redistribution of public resources to meet families’ material needs.

Title IX and the Antitrust Settlement of Name-Image-and-Likeness Compensation for College Athletes

Tan Boston, Unstructured NIL Settlements 

California granted preliminary approval to the largest, most transformative antitrust settlement in intercollegiate athletics history. Popularly known as the House Settlement (the "Settlement"), its terms remove National Collegiate Athletic Association (NCAA) scholarship limits and provide $2.8 billion in retroactive name, image, and likeness (NIL) compensation to both current and former NCAA athletes. But more importantly, the Settlement allows schools to disburse up to $20 million annually to athletes as part of a historic, new revenue-sharing model-effectively abolishing NCAA amateurism. Analysts estimate that intercollegiate men's basketball and football athletes will receive roughly 90 percent of the Settlement funds, which raises far-reaching Title IX concerns. This Essay asks whether the court properly excluded Title IX concerns when preliminarily approving the multi-billion-dollar Settlement. In response, this Essay references Judge Guido Calabresi and Professor Sir Philip C. Bobbitt's framework from their seminal book Tragic Choices to explore the egalitarian conflict within the Settlement classes, whose legal interests initially converged for antitrust purposes but later diverged as Title IX issues arose. This Essay concludes that although the Settlement properly excluded Title IX concerns, it is imperative that more appropriate legal authorities expeditiously address these concerns.

Study Shows Judges Dismiss Substantially More Workplace Harassment Cases than Juries Would Have

Elizabeth Chika Tippett & Jamillah Bowman Williams, Misjudging a Reasonable Jury: Evidence that Courts Dismiss Meritorious Harassment Claims, Connecticut L. Rev. (forthcoming 2026)  

A common basis for granting summary judgment in workplace harassment claims is that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard.  This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the “severe or pervasive” element of a Title VII harassment claim.  We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently “severe or pervasive” to meet the legal threshold. We provided the participants with relevant jury instructions and asked them to: 1) rate the severity or pervasiveness of the alleged harassment; 2) assess whether the plaintiff met the legal standard; and 3) discuss their reasoning.

Our results suggest a substantial divergence between judicial assessments and simulated jury assessments of the sampled cases. Judges granted summary judgment in favor of the employer or dismissed 65% of the harassment cases in the sample.  By contrast, our simulated juries would have dismissed less than 20% of the very same cases. Both our quantitative and qualitative findings shed light on the source of this divergence. The difference in assessment is not due to demographic differences between judges and the mock jurors, nor is it caused by shifting judicial assessments over time. Our qualitative results indicate that laypeople tend to view the fact patterns in a much more holistic manner than judges, which is consistent with guidance established by the Supreme Court. In addition, our quantitative analysis suggests that courts may be selectively discounting the severity or pervasiveness of cases alleging intersectional harassment. Going forward, we recommend that courts exercise far greater caution in evaluating harassment claims on summary judgment. Courts should also allow intersectional claims to be pled as a single cause of action.

Introduction to the New Oxford Handbook on Women and International Law

Josephine Jarpa Dawuni, Nienke Grossman, Jaya Ramji-Nogales, Helene Ruiz-Fabri, Why Women and International Law?, chp. 1, Oxford Handbook of Women and International Law (forthcoming). 

This is the first chapter in the forthcoming Oxford Handbook of Women and International Law. 

This Chapter discusses both the challenges and opportunities inherent in creating and compiling an Oxford Handbook on Women and International Law, as well as the contributions of the Handbook to existing literature. Among the challenges are determining who are the women we chose to study, unpacking women as a category, and evaluating the costs and benefits of focusing on international law’s norms and institutions as a locus for emancipatory change for women. The Chapter explains the Handbook’s contributions to both broadening and deepening our understanding of the complex relationship between women and international law.  It includes the voices of women who participate directly in the machinery of international law-making, enriching more quantitatively oriented work describing gender imbalance in the field, adding interdisciplinary perspectives, and highlighting international law actors who have received little scholarly attention. Its chapters examine various domains of international law, including those that remain understudied from a feminist or gendered perspective, drawing innovative connections between women and international law, and formulating new analytical tools for understanding the reach and potential of international law, while also considering emerging threats to equality. The Handbook brings together a diverse set of theorists to provide a range of perspective examining the challenges that girls, women, and queer and feminist approaches raise to prevailing understandings of international law and institutions.   

The New Gender Discrimination Claims that Must Confront the Abuse of Power in the Workplace

June Carbone, Nancy Levit & Naomi Cahn, Abuse of Power in the Workplace: The New Gender Discrimination Claims, 56 Univ. Pacific L. Rev. (forthcoming)

 This article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Anti-discrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only limited remedies and cannot be the principal line of offense. These workplaces, while they increase gender disparities, do not act to promote men over women in the distinct identity-based group terms that Title VII was designed to combat. Instead, they select for certain types of managers who are both more likely to be male and to exploit all workers where it serves the purposes of those at the top. Accordingly, the fight for gender equity cannot be cast in terms of an equal right to ascend to the ranks of those oppressing others. Instead, it becomes a fight to confront the abuse of power that shortchanges women in order to enrich the few.

The most effective solutions to tame abuses of power incorporate new bases of liability and new litigation tactics to address the abuses. The most lawless workplaces both exacerbate gender disparities and exacerbate sexual harassment, retaliation, and unscrupulous business practices. The emerging strategies, which the best lawyers have already begun to employ, recognize that abuse of power, once made visible, is hard to justify and becomes a source of employer vulnerability rather than strength.

This article argues that the fight for gender equality today must take place alongside a fight to tame corrupt and abusive workplaces. This article first shows how the abuse of power in today’s workplaces is different from wholesale exclusion of protected groups. The next section examines the limits of conventional sex discrimination claims in promoting gender parity because they cannot challenge the underlying abuses of power that structure workplaces or affect the political environment that allows such abuses to continue. The third section points to new tactics that have had some success in creating accountability, and the final section provides larger structural suggestions on how to move forward.

Center for Con Law's Symposium Issue on Women's Leadership in Law and Politics

The Center for Constitutional at Akron has published its annual symposium issue. This year an interdisciplinary program featuring legal scholars and political scientists explored the question of women's leadership in law and politics. Topics included women judges, SCOTUS nominations, gender disparities in Congressional witnesses, gendered campaign spending, and women's elected path.

Articles

Making Their Mark: Women Judges on the U.S. Courts of Appeals
Laura P. Moyer, John Szmer, Susan Haire, and Robert Christensen

Women Judges and Wikipedia
Sally Kenney

Pipelines & Presidential Candidates: The Dynamics of Women Running for Public Office in Ohio
Irene Jayapandian and Barbara Palmer

Is There a Gender Gap in Campaign Spending Strategies?
Paul S. Herrnson, Charles Hunt, and Jaclyn Kettler

Project 2025 and Due Process After Dobbs
Tracy Turner

Black Women are Supreme: An Empirical Examination of Black Women's Evaluations of Ketanji Brown Jackson
Christine M. Slaughter, Camille Burge-Hicks, and Nadia E. Brown

Echoes of Exclusion: The Underrepresentation of Women in Congressional Testimony and Its Consequences for Judicial Decision-Making
Caroline L. Bruckner, Elizabeth Keith, Karen O'Connor, and Collin A. Coil

The Embodied Nature of Representation: Reframing "Best Candidate" Narratives in Supreme Court Nominations
Susan Tanner

Comparative Lessons for Enhancing Representation in the U.S. Judiciary - and Countering Democratic Decline
Shruti Rana

Coming soon:

It’s Not About Children: How Gender Resentment Shapes Public Opinion on Abortion in the United States, Nicole Kalaf-Hughes & Debra Leiter

Reflection and Reform: A Case Study of Leadership Models in the Reproductive Rights and Justice Movement, Jamie Abrams 

Contingent Constitutional Rights, Paula Monopoli                                                                                                                                 

Jury Duty and American Women’s Struggle for Full Citizenship, Nancy Marder

Reframing "Best Candidate" Narratives in Supreme Court Nominations

Susan Tanner, The Embodied Nature of Representation: Reframing "Best Candidate" Narratives in Supreme Court Nominations, 16 ConLawNOW 201 (2025)

This Essay explores how discourse surrounding Supreme Court nominations reflects broader societal debates about merit, representation, and inclusion. Through analysis of the controversy surrounding President Biden’s commitment to nominate a Black woman to the Supreme Court, this piece examines three interconnected themes: the embodied nature of representation, the relationship between diversity and judicial legitimacy, and the problematic nature of “best candidate” narratives. It challenges traditional conceptions of merit in judicial nominations and argues for a more nuanced understanding that recognizes the value of diverse lived experiences on the bench.

The Elusive Promise of Equal Citizenship

Deborah L. Brake, Constitutional Rights and Retrenchment: The Elusive Promise of Equal Citizenship  

Although equality received no mention in the original Constitution—which brokered an unholy compromise to accommodate and preserve the institution of slavery—equal citizenship is a central promise of the post-Reconstruction Constitution. It is a cornerstone of our modern constitutional democracy, as the most famous footnote in Supreme Court history has taught generations of constitutional law students. Not just equal protection doctrine, but the very foundation of our constitutional democracy rests on the premise that the government must treat all members of the polity with equal regard. This principle is what makes the political outcomes of our democratic process presumptively legitimate. It is also the central guarantee of the Equal Protection Clause.

 This Essay proceeds in three Parts. First, it explains that the Supreme Court has, in the decades since Justice Ruth Bader Ginsburg pressed the case for recognizing sex discrimination as a constitutional wrong, embraced equal citizenship as a guiding principle in constitutional law. Surveying some of the key cases that Justice Ginsburg litigated as a lawyer and decided as a Justice reveals a robust constitutional principle with the potential for substantive advances in equality rights. The current Court, however, has done an about-face on equal rights. Highlighting three cases decided in the most recent two terms—on abortion, affirmative action, and LGBTQ+ rights—Part two argues that these rulings mark a significant retrenchment in the Constitution’s guarantee of equal citizenship. These cases are not the product of a singular methodology—indeed, they contain very different, and even inconsistent, approaches to constitutional interpretation. Rather, they are the result of the majority’s more limited view of what equal citizenship means. The final Part takes a step back to review the development of constitutional equality and explore the continuity between the Court’s recent retrenchment and its earlier, though not so distant, entrenched resistance to advancing equal rights. The Essay concludes with a nod to the importance of public engagement with constitutional norms and its role in shaping constitutional meaning.