Gender and the Law Blog

Two Recent Articles

Two interesting recent articles from the NYT.  One is about the status of LGBT folk in Cuba.  An excerpt:  

Mariela Castro, the daughter of the current president, Raúl Castro, has led the charge on legislative and societal changes [for LGBT rights] that have given rise to an increasingly visible and empowered community. In the process, she has carved out a rare space for civil society in an authoritarian country where grass-roots movements rarely succeed. Some Western diplomats in Havana have seen the progress on gay rights as a potential blueprint for expansion of other personal freedoms in one of the most oppressed societies on earth.

“It’s fine to criticize, but you also have to acknowledge that they’ve done good,” said John Petter Opdahl, Norway’s ambassador to Cuba, in a recent interview. Mr. Opdahl, who is gay, said his government gave Ms. Castro’s organization $230,000 over the last two years. “She has taken off a lot of the stigma for most people in the country, and she has made life so much better for so many gay people, not only in Havana but in the provinces.”

Another article revisits the Stanford undergraudates from the class of 1994.   

AALS Women in Legal Education Programs Begin Friday

Friday, January 2

WILE Business Meeting and Networking Event, 6:30-7:30 p.m., Virginia Suite C, Lobby Level.  Refreshments to be served!  

 Saturday, January 3

Co-Sponsored Program, Liberty-Equality:  Gender, Sexuality, and Reproduction—Griswold v. Connecticut Then and Now, 8:30 a.m. – 10:15 a.m., Salon 1. 

Presented by the Section on Constitutional Law and co-sponsored by the Sections on Women in Legal Education and Legal History,  this program marks the 50th anniversary of Griswold v. Connecticut, the ground-breaking Supreme Court decision recognizing a right to privacy that protected individuals in making decisions about the use of contraceptives from the reach of state criminal law, but spoke implicitly to the constitutional underpinnings of an individual’s rights or interests in intimacy, marriage, procreation, sexuality, and sexual conduct.  Panelists will place the case in historical context, and explore the development of the Griswold doctrine, as well as its implications for current constitutional controversies over access to reproductive health care, marriage, sexuality and sexual conduct.

Speakers Speaker: Cary C. Franklin, The University of Texas School of Law Co-Moderator: M. Isabel Medina, Loyola University New Orleans College of Law Speaker: Melissa E. Murray, University of California, Berkeley School of Law Speaker: Doug NeJaime, University of California, Irvine School of Law Speaker: Neil S. Siegel, Duke University School of Law Co-Moderator Speaker: Reva B. Siegel, Yale Law School

Section on Women in Legal Education Luncheon, 12:15 – 1:30 p.m., Salon 2.

Honoring Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and 2015 Ruth Bader Ginsburg Lifetime Achievement Award Winner, Herma Hill Kay, Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley School of Law.

 

Joint Program:  Engendering Equality:  A Conversation with Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and New Voices in Legal History, 1:30 – 3:15 p.m., Salon 1.

This Section on Legal History and Women in Legal Education Joint Program, co-sponsored by the Section on Constitutional Law, explores the history of women’s equality and the legacy of Justice Ginsburg.  The first portion of the program will, through a conversation between Justice Ginsburg and Wendy Williams, consider the ideas and strategies shaping Justice Ginsburg’s efforts as an advocate, an academic, and a Justice to equal citizenship for women.   The second portion of the program will present a panel of new voices in Women’s Legal History who study the complex and often contradictory ways in which social, political, and legal actors have appealed to gender and equality in movements of the past, and suggest how such studies might engender/inform equality’s future.

Speakers Speaker: Deborah Dinner, Washington University in St. Louis School of Law Speaker: Lynda Dodd,  City College of New York, Colin Powell School for Civic and Global Leadership Speaker: The Honorable Ruth Bader Ginsburg, Supreme Court of the United States Co-Moderator: Reva B. Siegel, Yale Law School Co-Moderator: Tracy A. Thomas, University of Akron, C. Blake McDowell Law Center Speaker: Wendy W. Williams, Georgetown University Law Center Speaker: Mary Ziegler, Florida State University College of Law

 

Sunday, January 4

AALS Crosscutting Program:  The More Things Change . . . Exploring Solutions to Persisting Discrimination in Legal Academia, 2:00 – 3:45 p.m., Thurgood Marshall East, Mezzanine Level.

 

This program, spearheaded by WILE Member Meera Deo, draws from empirical data, legal research, litigation strategy, and personal experience to both further conversations about the persistence of discrimination in the legal academy and activate strategies for addressing ongoing structural and individual barriers. Intersectional bias compounds many of these challenges, which range from the discriminatory actions of colleagues and students, to the marginalization of particular subject areas in the curriculum, to structural hierarchies in the profession. By creating an avenue for direct personal exchange regarding these topics, the program seeks to build community between like-minded individuals who are diverse across characteristics of race, gender, class, teaching status, institution, and age. The focus of the participants is to share best practices and explore new approaches for overcoming ongoing discrimination, with the hope that these strategies may be more broadly employed. The program follows an innovative format. After short presentations by three speakers, the program transitions to an “open microphone” session of speakers (selected in advance from a “call for remarks”) including those who are untenured, women of color, allies to marginalized faculty, clinical, legal writing and library faculty, and others with perspectives that may differ from the majority. The final thirty minutes are reserved for questions and conversation.

Speakers Moderator and Commentator: Marina Angel, Temple University, James E. Beasley School of Law Speaker: Meera Deo, Thomas Jefferson School of Law Speaker: Angela P. Harris, University of California at Davis School of Law Speaker: Melissa Hart, University of Colorado School of Law

Monday, January 5

Co-Sponsored Program:  Emotions at Work:  The Employment Relationship During An Age of Anxiety, 10:30 a.m. -12:15 p.m., Maryland Suite C, Lobby Level.

This program, presented by the Section on Labor Relations and Employment Law and co-sponsored by the Sections on Socio-Economics and on Women in Legal Education, recognizes that in uncertain economic times that translate into uncertain times in the workplace, many individuals are experiencing a greater range and intensity of emotions at work, both as employees and as employers.  Employees may be anxious about job security even when they have an employment contract or other job protections, may feel more pressure with respect to their work responsibilities, and may be emotionally (and not just financially) unprepared for sudden changes to their employment relationships and changes in career plans.  Employers also are experiencing heightened pressure as they try to steer their work organizations safely past the rough economic waves while needing to make some hard decisions along the way.  Are these emotions in the workplace openly recognized and managed, and if so, how?  This panel explores the emotional aspects of the employment relationship and how employment law or workplace policy should address these concerns.

Speakers Speaker: Marion G. Crain, Washington University in St. Louis School of Law Moderator: Rebecca K. Lee, Thomas Jefferson School of Law Speaker: Laura A. Rosenbury, Washington University in St. Louis School of Law Speaker: Thomas Ulen, University of Illinois College of Law Speaker: David Yamada, Suffolk University Law School

 

Mansplaning Dominates Non-fiction Books

Bookforum: Mansplanation Nation

If mansplaining means “to comment on or explain something to a woman in a condescending, overconfident, and often inaccurate or oversimplified manner,” then O’Reilly clearly sees America as a suggestible (though fortunately profligate) woman in desperate need of a seemingly limitless amount of remedial mansplanation. And to be fair, if the most popular nonfiction books are a reliable guide, Americans crave mansplaining the way starving rats crave half-eaten hamburgers. We’d like Beck—not an education professor—to mansplain the Common Core to us. We want Malcolm Gladwell—not a neuroscientist or a sociologist or psychologist—to mansplain everything from the laws of romantic attraction to epidemiology. And we want O’Reilly—not an actual historian—to mansplain Lincoln, Kennedy, Jesus, and all of the other great mansplaining icons of history. We want mansplainers mansplaining other mansplainers. We dig hot mansplainer-on-mansplainer action.***

 

The easiest explanation is that a newly enfeebled America craves mansplanations and shuns humility. Humility conjures falling stock prices and ineffectual wars and citizens who don’t feel proud so much as desperate, and maybe even a little embarrassed—by Enron, by Katrina, by Ferguson, by the 101 cruel missteps of the past two decades. Humility is a woman thing, and by the hectoring logic of our mansplaining franchises, woman things are almost always embarrassing and bad. Novels by women are chick lit. Essays by women are “girl-friendly tales.” Professional journalists are mommy bloggers. Man things deserve shiny hardcovers and pride of place on the coffee table. Woman things get flimsy covers with cursive writing and a leopard-print high heel illustrated on them, and they’re shoved into purses and nightstand drawers. Humility and self-reflection are for the weak or silly.

Ireland's Gender Recognition Bill

Ireland recently published a draft of a legislative bill that would protect transgender folk from discrimination.  Here's a quick summary of it:

The Irish government has finally published a long-awaited bill which will recognise the gender of trans people.

At present, Irish law has no process for recognising that transgender people do not identify as their birth gender.

The bill, which was first announced in June, will bring Irish law in line with that of other countries, by legally recognising the gender of trans people in all dealings with the State, public bodies, and civil and commercial society.

And here's a critique of the bill from Amnesty International:  

“This is a missed opportunity to enshrine the rights of all transgender people in Irish law. This bill will require substantial changes if it is to tackle the serious issue of discrimination against transgender people,” said Denis Krivosheev, Amnesty International’s Acting Europe and Central Asia Director.

“Rather than making it as easy as possible for all transgender people to obtain legal recognition of their identity, there are several groups that will be short-changed by the bill – in particular those who are married or in civil partnerships, minors, and those who do not wish to undergo medical treatment.”

Happy Holidays

Courtesy of the Akron Law Library.

"Smoke"

As we near Christmas, I would commend readers to check out the movie Smoke--based on a short story by Paul Auster and directed by Wayne Wang.  It's a charming film about Christmas, male friendship (and male antagonism), and, of course, the contemplative pleasures of smoking a good cigarette.  

 

Dismissing Violence as "Domestic"

Nancy Leong (Denver), in Slate, Domestic Violence is Violence

On Saturday, Ismaaiyl Brinsley shot his ex-girlfriend Shaneka Thompson in the stomach. If that were all he did, most of us would never have heard of him today.

 

We live in a country where shooting your ex-girlfriend is at most local news. According to media reports, the management of Thompson’s apartment complex distributed a letter to other residents stating that her shooting was the result of a “domestic dispute” in order to reassure them that “this was a private, isolated incident.” When three women are murdered by their husbands or boyfriends every single day in the United States, domestic violence is just another routine event—merely a landlord-tenant-relations issue of no concern to anyone else.

 

Of course, later that day Brinsley went on to murder New York police officers Wenjian Liu and Rafael Ramos, so we now know that his shooting of Thompson was no private, isolated incident. The more difficult question is why anyone ever assumed that it was.

Appellate Court Allows Law Prof's Gender and Race Discrimination Claim to Proceed

DC Circuit Revives Law Prof's Discrimination Claim Over Tenure Denial

A former professor at the University of the District of Columbia David A. Clarke School of Law can proceed with a lawsuit accusing school officials of denying her tenure because of her race and gender, a federal appeals court in Washington ruled on Friday.

The U.S. Court of Appeals for the D.C. Circuit partially revived claims filed by Stephanie Brown, who was fired from the law school in May 2012 after she was denied tenure. Reversing the federal district judge who dismissed Brown’s case, a three-judge D.C. Circuit panel found Brown, who is black, presented enough of a nexus between her race and gender and her nonpromotion to survive at this stage of the litigation. [Brown v. Sessoms, No. 13-7027 (D.C. Cir. Dec. 19, 2014)]

Brown worked for more than two decades at the law school, according to court filings. In 2009, when she was an associate professor of law, she applied for tenure. Broderick expressed concerns that Brown hadn't produced enough legal scholarship, but ultimately approved the application after learning a law journal was about to publish one of Brown’s article. ...

Brown accused the school of discriminating against her based on her race and gender. She argued that the school granted tenure around the time she applied to a white male professor, William McClain, who had a similar scholarship record as she did. ...

“Drawing all inferences in her favor, we believe that Brown’s complaint sufficiently makes out that she and McLain had similar records with regard to teaching and service. Because both also failed to meet the publication requirement, their tenure applications appear, from the complaint, to be on comparable footing. The fact that McLain won tenure and Brown did not allows us ‘to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Affirming Punitive Damages for Sexual Harassment, even with only Nominal Damages

Con LawProf, Ninth Circuit Affirms $300K in Punitives in Title VII Case with only Nominal Damages

The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.

 

The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.

 

The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.

Gay Marriage in Florida

From my neck of the woods here, the Ft. Lauderdale Sun Sentinel has an article on the state's present ban against gay marriage--and what the U.S. Supreme Court has done about it:

The U.S. Supreme Court on Friday night refused to step into Florida's fight over same-sex marriage. Gay and lesbian couples in Florida will be able to marry starting Jan. 6, and the state no longer has any way to prevent it.

A federal judge overturned the state's same-sex marriage ban Aug. 21, but the ruling does not go into effect until the end of the day Jan. 5. "It's a huge relief. We're ecstatic. This is an amazing day for Florida families," said Daniel Tilley, the American Civil Liberties Union lawyer who is representing gay couples in the federal case

"manspreading"

From the NYT: 

It is the bane of many female subway riders. It is a scourge tracked on blogs and on Twitter.

And it has a name almost as distasteful as the practice itself.

It is manspreading, the lay-it-all-out sitting style that more than a few men see as their inalienable underground right.

Now passengers who consider such inelegant male posture as infringing on their sensibilities — not to mention their share of subway space — have a new ally: the Metropolitan Transportation Authority.

Teaching or Not Teaching Rape Law

Jeannie Suk in The Trouble with Teaching Rape Law revives the argument against teaching rape in the classroom due to the potential traumatic effect on students who might have experienced it. 

Corey Yung disagrees, arguing the importance of this area of law in Jeannie Suk on Teaching Rape. 

In this week’s New Yorker, Jeannie Suk laments what she perceives as the increasing difficulty in teaching rape to today’s law students. I was a bit surprised in reading Suk’s article because her descriptive account of today’s law school classroom environment regarding rape is at completely at odds with my own. A few years ago, I attended SEALS where there was a panel discussing teaching rape in the classroom. I asked the panelists whether the reluctance to teach rape, most famously described in James Tomkovicz‘s 1992 Yale Law Journal article on the subject, was simply outdated. Almost everyone else was teaching rape and students were reacting positively to that choice. And that is why Suk’s article struck me as particularly strange – teaching rape has become the majority rule in 1L Criminal Law.

Of course, the reluctance to teach rape articulated by Tomkovicz was somewhat different than the one now described by Suk. Tomkovicz was primarily focused on classroom controversy, potential professional consequences, and students being marginalized because of classroom discussions. In contrast, Suk focuses on trauma of rape victims in the classroom. She is concerned that students seem to want trigger warnings or no discussion of rape in the classroom.

Given the prevalence and front-page news of the issue of rape today, and debates over what "legitimate rape" or "campus rape" or "sexual assault" is, it seems like this topic is critical now more than ever.  And much more than academic.

 

Date Rape Song or Feminist Anthem? "Baby It's Cold Outside"

Baby It's Cold Outside was Once an Anthem for Progressive Women. What Happened?

Urban Dictionary now lists the song under the heading “Christmas Date Rape Song.” Recently, it was given a “feminist makeover” in the clever, if not quite as catchy, YouTube video “Baby, It’s Consent Inside.”

 

Is all this controversy over a catchy classic really warranted?

 

Upon first listen, maybe. The tune was penned in the 1940s by Frank Loesser — writer of Guys and Dolls — to be performed as a duet with his wife at Los Angeles parties. Its predatory nature is apparent from the original notes, which label the male’s part as “wolf” and the female’s as “mouse.”

 

And try reading the lyrics with a moderately critical eye. She doesn’t want to stay. He tries to convince her. “It’s cold outside,” he croons over her protestations, “gosh your lips look delicious.” Over the course of their back and forth, she infamously wonders what’s in the drink he handed her. Oy.

 

However, the story behind the tune isn’t quite so uncomplicated. As feminist blog Persephone Magazine noted in 2010, the song’s historical context matters. At the time they were written, an unmarried woman staying the night at her beau’s was cause for scandal. It’s this fear we see reflected in the lyrics, more than any aversion on the part of the woman to staying the night.

Writing Her Own Way

An inspiring story of writing.  NYT, The Unbreakable Laura Hillenbrand.  There's not only one way to research and write.  And sometimes the path least traveled turns out to be best. 

Joe Biden's Comments about Manliness's Moral Obligations

Joe Biden gave a speech about fighting violence against women. Here were some comments he made about the moral obligations of manliness:

But unlike most people of my dad’s generation, he went further. He was a gentle man, but he raised us to intervene. He taught us, where we saw it, the definition of our manhood was not what a great football player, baseball player me or any of my brothers or sister were, it was to stand up and do the right thing.

I remember when my sister, my younger sister, was beat up by a young boy when she was in seventh grade. I'm older than my sister, I was two years ahead of her. I remember coming back from mass on Sunday, always the big treat was we would get to stop at a doughnut shop at a strip shopping center. We went in, and we would get doughnuts, and my dad would wait in the car. As I was coming out, my sister tugged on me and said, ‘That’s the boy who kicked me off my bicycle.’

 Read the rest here.  

Law Schools Behind on Readying Students for Legal Technology

ABA, Student Lawyer, Law Schools 3.0

The American Bar Association recently updated its Model Rules of Professional Conduct. Comment 8 of Rule 1.1 now states that lawyers should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

 

Those already practicing may have to study up or find someone to tackle the technology end of the work for them. But what are law schools doing to make sure that tomorrow’s lawyer can hit the ground running? ***

 

The legal education community needs to step up. “Schools must address this deficiency,” added Granat, who is also founder and CEO of the virtual law firm platform provider DirectLaw, Inc. and LawMediaLabs, Inc., a digital legal solutions and interactive law apps provider. “The delivery of legal services, especially to consumers and small businesses, is becoming much more dependent on the understanding of legal technology,” he said. “The platform is shifting from one-to-one service to the Internet itself.”***

 

While many schools are behind the eight ball when it comes to teaching legal technology tools, Marc Lauritsen, president of Capstone Practice Systems and Legal Systematics, and an adjunct professor at Suffolk University Law School in Boston, said there has been a recent push to catch up.

 

“At least a dozen law schools are offering courses and the numbers are growing,” said Lauritsen, also a cochair of the ABA’s eLawyering Task Force. “However, for the most part, the tools that lawyers are using in practice are not being taught.”

 

He said many students are not prepared for their new competition either. “The marketplace is rapidly changing. Companies like Rocket Lawyer and LegalZoom are contributing to lawyer underemployment by providing a more cost-effective and consumer-friendly way for people to receive services,” Lauritsen said.

 

Illinois Grants Bar Exam Breaks to Pump Breast Milk

New Mom Will Get Stop-the-Clock Breaks to Pump Breast Milk During Bar Exam

Told there was no procedure for appealing a decision by Illinois bar exam authorities not to provide stop-the-clock breaks when she needed to pump breast milk, Kristin Pagano nonetheless wrote a letter requesting reconsideration.

On Tuesday, that request was unanimously granted by the Illinois Board of Admissions to the Bar. Pagano will be allowed to take a break of up to 30 minutes during each three-hour segment of the test, which will not be counted against the time she is given to complete the bar exam, reports the Chicago Tribune. A female proctor and access to an appropriate area in which to pump breast milk will also be provided.

Hear Kristin speak about it here, Kristin Pagano Speaks: Breastfeeding Accommodations and the Illinois Bar Exam

New Technology May Help in Reporting Sexual Assault

Reporting Sexual Assault is Difficult, but a New Technology May Help

Callisto, an online sexual assault reporting system under development by a nonprofit called Sexual Health Innovations, aims to change this and provide better options for victims of sexual assault on college campuses.

 

The project builds on the idea of “information escrows” proposed by Ian Ayres and Cait Unkovic in a 2012 Michigan Law Review article. Mr. Ayres, an economist at Yale’s law school, and Ms. Unkovic, a graduate student at the University of California-Berkeley, suggest that reporting of misbehavior that is difficult or costly for victims to disclose might be increased if people had the option to report that information to a third party who would make the disclosure only if others also reported misconduct by the same individual.

Paltrow and Flavin on Forced Intervention Against Pregnant Women

Lynn Paltrow (Nat'l Advocates for Pregnant Women) and Jeanne Flavin (Fordham Law) have uploaded "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health." The abstract reads:

In November 2011, the citizens of Mississippi voted down Proposition 26, a “personhood” measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for their deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty. First, we describe key characteristics of the women and the cases, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.

Chang on "Immigration-Status Spousal Support"

Stewart Chang, Whittier Law, has uploaded Dreams of My Father, Prison for My Mother: The H-4 Nonimmigrant Visa Dilemma and the Need for an "Immigration-Status Spousal Support."  The abstract reads: 

This article uses the situation of H-4 visa derivatives in the Asian Indian immigrant community as a case study to expose and critique larger incongruities within current American immigration policy, which on the one hand has historically extolled individuality, equality, and workforce participation as avenues to the American Dream, while enforcing gender hierarchy and dependency through requirements that prioritize family unity on the other. These incongruities remain largely unnoticed because the culture of dependency is often attributed to traditional ethnic culture, which then becomes the site of scrutiny and blame. The H-4 visa dilemma in the Asian Indian community illustrates how the legal restrictions stipulated in immigration law often produce and perpetuate recursions of ‘traditional culture’ within immigrant American families that ultimately consign Asian Indian women to perpetually occupy the place of the foreign ‘Other’ in American society. The ‘Othering’ of the ethnic alien culture perpetuates the illusion that America is not patriarchal in comparison, which concurrently promotes the idea that the foreign culture is inferior, behind, and incompatible. This constructed inferiority further forecloses these women from other avenues of justice in America, such as family law, which is similarly configured as to be culturally incompatible with the dependent immigrant subject. Thus, these women of- ten voluntarily choose to exclude themselves from the process, as did many of my Asian Indian clients. These are the assumptions and hierarchies regarding the mythos of independence in American identity that this article seeks to overcome, which then open avenues for some nonconventional solutions.