Saturday, March 22, 2014

An Interview with Anita Hill

Dahlia Lithwick, at Slate, has a sit down with Anita Hill over her new documentary in Talking to Anita Hill.  Interesting how, in true feminist form, her own life experiences almost involuntarily drew her into her life's work, transitioning from her early legal career in commerical law and contracts to a focus on sexual harassment.  She thought her experience would only take a few years to explore the permutations of harassment, but instead it became a full-time focus.

March 22, 2014 in Law schools, Women lawyers, Workplace | Permalink | Comments (0)

New Issue of Journal of American History

From the Legal History Blog.  Was excited to see that 3 of 4 articles are on women's history.  

March 22, 2014 in Legal History | Permalink | Comments (0)

What Not to Wear

From Slate, Female Lawyers who Dress "Too Sexy" are Apparently a Hugh Problem in the Courtroom.

I can see both sides here.  I'm from the generation that started practice in the ridiculous no pants days.  Ever try lugging a lit bag to court. 9 long city blocks.  In the snow.  Without ripping your hose.  (Still eons before no hose times).  And yet, the law student's 5 inch red stilettos for her on campus interview seemed terribly wrong. 

March 22, 2014 in Women lawyers, Workplace | Permalink | Comments (0)

The Simple Truth on the Gender Pay Gap

Though nothing's simple, AAUW provides more detail in The Simple Truth About the Gender Pay Gap.

You’ve probably heard that men are paid more than women are paid over their lifetimes. But what does that mean? Are women paid less because they choose lower-paying jobs? Is it because more women work part time than men do? Or is it because women tend to be the primary caregivers for their children?

AAUW’s The Simple Truth about the Gender Pay Gap succinctly addresses these issues by going beyond the widely reported 77 percent statistic. The report explains the pay gap in the United States; how it affects women of all ages, races, and education levels; and what you can do to close it.

March 22, 2014 in Equal Employment, Work/life, Workplace | Permalink | Comments (0)

Friday, March 21, 2014

La Famille.....

There's this from the New Yorker Blog: 

“Our country is in the midst of an economic crisis at the same time there is a social crisis,” Ludovine de la Rochère, the president of the Manif Pour Tous, said at a recent rally. “More profoundly, we are in a crisis of meaning, a moral crisis. The French are the biggest consumers of anti-depressant drugs in Europe. … And yet, within our reach, there is a reservoir, a bearer of meaning, of energy, of solidarity, of relationships: the family, the source of all the human and economic riches of the nation—of all nations—and a barrier against crime, against despair, and against all extremisms.”

The words are a prelude to a condemnation of gay marriage.  More: 

Last month, marchers filled the streets of Paris and Lyon to protest same-sex marriage, which became legal in France last year. The day after the demonstrations, François Hollande’s Socialist government announced that it would not be putting forward new legislation to make it easier for gay couples to adopt children or have them with the help of surrogate mothers. Although the government insisted that the decision had nothing to do with the protests, hardly anyone believes it. Hollande’s gay-rights retreat was a major victory for La Manif Pour Tous (The Protest for Everyone), the group that has organized a series of massive protests since November, 2012, when the government first introduced the gay-marriage law.

March 21, 2014 | Permalink | Comments (0)

Gay Affirmative Action

Peter Nicholas at U of Washington has uploaded an intriguing article on gay affirmative action.  The abstract reads:  

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities — such as affirmative action policies — as they do to laws invidiously discriminating against them.

The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court’s established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As a result of that tension, the Court’s line of precedents for identifying new suspect and quasi-suspect classes has gone dormant, and it has not since considered whether any additional such classes exist. Instead, when confronted with plausible candidates for heightened scrutiny, such as gays and lesbians, the Court has engaged in sporadic application of stealth rational basis review.

In this article, I use a hypothetical equal protection challenge to a sexual orientation-based affirmative action policy as a vehicle for proposing a roadmap for harmonizing these competing lines of precedent. I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutiny for laws discriminating against gays and lesbians.

I conclude that such a harmonization of the Court’s equal protection precedents will reinvigorate the Court’s moribund precedents for identifying new suspect and quasi-suspect classes. Moreover, I conclude that announcing heightened scrutiny in such a case would present a particularly appealing vehicle to the Court’s center, represented by Justice Kennedy, whose jurisprudence demonstrates both support for gay rights and hostility toward affirmative action policies.

March 21, 2014 | Permalink | Comments (0)

A Brief But Practical Essay by Kristine Knaplund

Kristine Knaplund at Pepperdine Law has uploaded "Assisted Productive Technology."  Its abstract reads:  

The rapidly expanding use of assisted reproductive technology (ART) poses new challenges for estate planners. This article describes the three most common forms of ART (assisted insemination, in vitro fertilization, and gestational carriers) and three legal issues that arise when ART is used, including: determining who is a descendant when donated gametes (sperm or ova) are used; postmortem retrieval and use of gametes; and delay of probate proceedings to allow postmortem conception.

March 21, 2014 | Permalink | Comments (0)

Thursday, March 20, 2014

March Madness and Continued Discrimination Against Women Coaches

Yay!  The Akron Women's Basketball Zips, MAC champions, are headed to the NCAA March Madness tournament for the first time.  (What is a zip, you ask?  First a rubber shoe, now a (girl) kangaroo.  "Fear the Roo.").  During this time of basketball frenzy, its the perfect time to ask the woman question - what is going on with women coaches.    

From Deborah Brake (Pitt), Discrimination Inward and Upward: Lessons on Law and Social Inequality from the Troubling Case of Women Coaches, 2 Indiana J. Law & Social Equality 1 (2013).


In the Title IX success story, women’s opportunities in coaching jobs have not kept pace with the striking gains made by female athletes. Women’s share of jobs coaching female athletes has declined substantially in the years since the law was enacted, moving from more than 90% to below 43% today. As a case study, the situation of women coaches contains important lessons about the ability of discrimination law to promote social equality. This article highlights one feature of bias against women coaches — gender bias by female athletes — as a counter-paradigm that presents a challenge to the dominant frame of discrimination law.

The predominant legal model views discrimination as a top-down, inter-group phenomenon. In discrimination law, the paradigmatic case is intentional bias directed by an in-group superior toward an out-group subordinate. (E.g., a male boss discriminates against a female subordinate.) Shifting either one of these dimensions to involve within-group bias or contra-power bias complicates the discrimination claim, resulting in new doctrinal demands. Shifting them both creates space for productive theorizing about the complexity of discrimination and the adequacy of the law’s response to it.

The case of bias against women coaches is an especially interesting one because it turns upside-down both of the typical trajectories of the paradigm. Research has shown a troubling preference by female athletes for male coaches. To the extent that the hiring process takes into account athlete preferences, this resistance to having a female coach can make it harder for women coaches to get hired; it can also make it harder for women coaches to succeed once hired. Similar within-group, upstream biases have been found in literature on women in leadership, with many women in subordinate roles expressing ambivalence about women bosses and leaders. Exploring within-group, upstream bias as a form of discrimination sheds light on important issues of animus, essentialism, intersectionality and agency at the heart of discrimination law. This Article uses the phenomenon of bias by female athletes against women coaches as a case study for rethinking the promise and limits of discrimination as a tool for social equality. 

March 20, 2014 in Sports, Workplace | Permalink | Comments (0)

A Feminist Critique of Unjust Enrichment

As a Remedies professor, this spoke to me.  Simone Degeling and Mehera San Roque, Unjust Enrichment: A Feminist Critique of EnrichmentSydney Law Review, Volume 36, Number 1, March 2014.
This article commences a feminist critique of the unjust enrichment liability model. Together with other legal categories such as contract, tort and equity, unjust enrichment is an independent source of rights and obligations. However, unlike areas of private law that have been the subject of sustained feminist analysis and critique, there has been little attention paid by feminist scholars to understanding the pattern and impact of gender in unjust enrichment reasoning. This article offers some first steps towards filling that gap. We explore the concept of enrichment, evaluating from a feminist perspective how the tests of enrichment are constructed and applied. Our analysis interrogates the extent to which gendered assumptions, patterns or structures are instantiated within enrichment.
In examining the tests of enrichment, we pay particular attention to the ways in which unjust enrichment responds to the provision of domestic services and care. A paradigm concern within feminist scholarship is private law's treatment of women's work, including domestic services, and the recognition of non-financial contributions in the ownership of property within a domestic relationship. There are thus useful comparisons to be made between the treatment of such services in unjust enrichment and, for example, tort and other sources of rights and obligations in private law, which have already been the subject of feminist analysis. Research reveals cases in which these services have been the subject of claims in unjust enrichment. Our initial conclusion is that while the tests of enrichment are vulnerable to gendered assumptions and structures, they also appear to provide protections against these assumptions and their consequences. The same can be said of the methods of valuation of that enrichment, which show a strong commitment to market valuation. The obvious limit to this observation is that the market price must be attentive to embedded hierarchies, including the gendered division of labour. Nonetheless, unjust enrichment's commitment to this market measure has the potential to limit a defendant's ability to devalue women's work.

March 20, 2014 in Theory, Workplace | Permalink | Comments (0)

McKanders on the Moroccan Feminist Spring

From the introduction to Karla Mari McKanders (Tennessee), Anatomy of an Uprising: Women, Democracy, and the Moroccan Feminist Spring, 32 Boston U. Int'l L. J. 147 (2014)
“Women may have sustained the Arab spring, but it remains to be seen if the Arab Spring will sustain women.”
An “uprising” is defined as “an act or instance of rising up; especially: a usually localized act of popular violence in defiance usually of an established government.” The Moroccan Arab Spring certainly qualifies as an act of rising up against the established government. Although Morocco was not prominently featured in media representations of violence during the regional Arab Spring, Morocco experienced changes in its government and constitution. This uprising was called the Mouvement du 20-Février (“The Twentieth of February Movement”). What is most notable *149 about this uprising is that women were at the forefront. Many Moroccan women seized the opportunities that revolutions across the Arab world presented and developed their own agenda for Morocco's future.4Whether women will remain in the forefront of the movement as the Moroccan government institutionalizes their demands or whether they will fall into the background of the changing Moroccan government is a complex question.

March 20, 2014 in International | Permalink | Comments (0)

Wednesday, March 19, 2014

Gay Jurors Cannot be Removed Due to Sexuality

Hence ruled the Ninth Circuit.  Actually, it did so, way back in January.  But it's worth noting now because Abbott Labs, the giant drug manufacturer, could have appealed the ruling but decided not to, a decision that was seen by some as an effort by the drug company to be on the "right side of history."  

March 19, 2014 | Permalink | Comments (0)

Utah's Anti-Gay Marriage Brief to the Court

It's 120 pages and it's available here.  A critique of the document is provided here.  

March 19, 2014 | Permalink | Comments (0)

A Perspective on Female-on-Male Violence in Scotland

So the writer observes:  

That women are predominantly the victims of domestic violence is beyond question (around 92 per cent, according to police figures). I find it disturbing, however, that male casualties continue to be ignored. Part of the problem is the macho-man culture that precludes men from coming forward. Despite males being well-nigh 8 per cent of recorded victims of domestic violence, I’ve never met a man who’s admitted to being slapped about by his lover.

Well, except he who had played James Bond: 

The only high-profile man I can think of who has revealed that he suffered physical abuse in his relationships is Sir Roger Moore. In an interview, the former James Bond stated that his first wife punched, scratched and scarred him. On mentioning she’d thrown a pot of hot tea at him, scalding his side, the audience laughed uproariously. Wife No. 2 whacked him over the head with a guitar – cue for more spectator glee. Chillingly, using words much associated with female victims, Sir Roger said “he deserved it”. Clearly, the experiences left him shaken, not stirred into using the law to protect himself from his attackers.

More here.  

March 19, 2014 | Permalink | Comments (0)

Tuesday, March 18, 2014

Top 10 Downloads on Gender & Law

Ziegler on Women's Rights on the Right

Mary Ziegler (Florida State) joins us as a guest blogger this month.  Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. 

Whom are we studying when we study the history of gender and the law? Some answers to this question seem obvious. We study pioneers like Elizabeth Cady Stanton and Alice Paul. We celebrate the accomplishments of thinkers like Ruth Bader Ginsburg and Catharine MacKinnon. In researching my book, I often found the answer to this question much less clear-cut. In contemporary politics, the identities of the pro-choice and pro-life movements seem stable and straightforward. In the immediate aftermath of the Roe decision, things were far less simple. An influential committee in the ACLU worked to identify fetal rights compatible with reproductive liberty for women. Feminists viewed issues like fetal tissue research with ambivalence. Influential antiabortion activists fought for federal legislation banning pregnancy discrimination. Indeed, some pro-lifers argued for what they saw as women’s right to choose, claiming that women did not enjoy true reproductive freedom unless the State protected them against both pregnancy discrimination and the perils of poverty.

A rapidly shifting gender politics forced many of these lawyers and grassroots activists to make painful choices. The mobilization of the New Right and Religious Right, the focus of abortion-rights activists on electoral politics, and the realignment of both political parties helped to create the “pro-choice” and “pro-life” categories we now know. So too did difficult and hotly debated strategy decisions made by members of each opposing movement. For many, the creation of contemporary abortion politics was a painful change, forcing women to choose between two identities when neither accurately reflected their fundamental beliefs about gender or sex discrimination.

Part of the task for historians of women and the law is to remain open to the stories of those who don’t always come to mind when we think about feminist legal history. These stories may not change our politics or our views of the relationship between gender and the law today. Just the same, these stories powerfully illustrate why gender matters and how gender changes. They remind us how entrenched political and legal realities once seemed—and may once again seem—far from inevitable

March 18, 2014 in Abortion, Legal History | Permalink | Comments (0)

Monday, March 17, 2014

"Conservative Feminism is Not an Oxymoron"

Or, so argues Hannah Sternberg in the Foundry, a blog of the very conservative Heritage Foundation. Ms. Sternberg begins:  

The primary (and most literal) dictionary definition of feminism is “the theory of the political, economic, and social equality of the sexes.” However, in popular ideology it has unquestionably been superseded by its secondary, connotative definition, “organized activity on behalf of women’s rights and interests.” “Interest” has been broadly interpreted to mean virtually any liberal agenda. This has led to the frequent claim that for a woman to be conservative, she betrays her sex; there is no such thing as a conservative feminist.

She objects to the conflation of liberalism and feminism: 

Such a political philosophy belittles women. It assumes that women lack the intellectual capacity to choose their own views; their opinions on everything from abortion to the economy must be prefabricated by the liberal thought machine. It is also a distasteful blow to the idea of individual self-determination: what a person is, is more important to liberals than who a person is. Individuality is undermined by group identification. The political movement that purports to defend “equal rights” for women begins by asserting that the female half of the population is born into their ideology and is not permitted to deviate from it.


March 17, 2014 | Permalink | Comments (0)

About a dozen nations, but not the United States

About a dozen nations permit transgender folk to serve in the military, but the U.S. isn't one of them.  Jocelyn Elders, the former Surgeon General under Bill Clinton, headed a commission that examined the issue.  Her words: 

“We determined not only that there is no compelling medical reason for the ban, but also that the ban itself is an expensive, damaging and unfair barrier to health care access for the approximately 15,450 transgender personnel who serve currently in the active, guard and reserve components."

Also, there was this: 

Retired Brig. Gen. Thomas Kolditz, a former army commander and West Point professor on the commission, said he thinks allowing transgender people to serve openly will reduce assaults and suicides while enhancing national security.

March 17, 2014 | Permalink | Comments (0)

Saturday, March 15, 2014

Spring Break Reading on Gender

Yes, this is my idea of fun for spring break.  Better on a beach, but the couch works too. 

Myra MacPhearson, The ScarletSisters: Sex, Suffrage and Scandal in the Gilded Age (2014)  A new look at 19th century feminism and craziness of Victoria Woodhull and her sister.

Brigid Shulte, Overwhelmed: Work, Love and Play When No One Has the Time (2014). How did life get so crazy?  And why are women still doing all the housework?

Got anymore recommendations?





March 15, 2014 in Books | Permalink | Comments (0)

Subversive Graham Crackers and Gay Dads Commercial

Honey Maid Ad: Gay Dads Are OK - So Long as they are Rich and White

[T]he advertisement highlights the contemporary boundaries and privileging of certain gay identities. Indeed, the men describe themselves as traditional. “Marriage, and a family, and having kids was always important,” they tell us.


These men are white. This family is affluent. And they are men; their gender presentation is normative in no way conflicting with traditional conceptions of masculinity. Without denying that the ad reveals the tremendous progress made in the achievement of gay rights and recognition, it simultaneously demonstrates the limits.

March 15, 2014 in Family, LGBT, Manliness, Same-sex marriage | Permalink | Comments (0)

Thursday, March 13, 2014

Ruskola's "Minor Disregard"

Teemu Ruskola, Emory, has a new article uploaded--"Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist."  The abstract reads: 

This article examines the nature and consequences of the social and legal denial of the existence of gay and lesbian youth. Part I of the article sets out the politically and culturally contested topography of any debate involving children and sexuality, and it considers the risks posed by the seemingly indestructible myth of “homosexual recruitment.” Part II explicates the contradictory meanings of homosexuality as both radical Otherness located in only a few individuals and as potentially latent in everyone. It explores the implications of those views for lesbian and gay youth and suggests that such views make the notion of a coherently gay adolescent inconceivable and, in the broader epistemological contest over the sexual definition of youth, provide the conceptual framework for the fantasy that gay and lesbian youth do not exist. Part III turns to an analysis of the role of the law in the construction and regulation of homosexuality and illustrates how the legal system produces (apparently) heterosexual youth in its regulation of the family and school. It suggests that the laws governing child custody, adoption, and employment of queer teachers seek essentially to protect “confused” children with latent homosexual proclivities from becoming gay and lesbian adults. The article concludes, in Part IV, with a call for the law to recognize and protect the youth who identify themselves as gay and lesbian by naming them as gay and lesbian, rather than as confused, presumptively heterosexual future adults.


March 13, 2014 | Permalink | Comments (0)