Tuesday, January 31, 2017
Hannah Brenner & Renee Newman Knake, Shortlisted, UCLA Women's L.J. (forthcoming)
Abstract:Mildred Lillie fortunately had no children, as the New York Times noted in 1971, and even in her fifties, maintained “a bathing beauty figure.” Lillie was not, however, a swimsuit model. She was one of President Nixon’s possible nominees to the United States Supreme Court. Shortlisted tells the stories of nearly a dozen extraordinary women considered for the Court, but ultimately not nominated, before Justice Sandra Day O’Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly not selected, elected, or appointed to political office, corporate governance, the judiciary, law firm partnership, and other positions of power. We find that the stories of those women who did not attain these various power roles are as compelling as those who did. Our work builds upon and transcends previous scholarly work on the theory of the “leaking pipeline” — i.e. that women enter the profession in numbers equal to men but do not advance — and dispels the persistent myth that there is a dearth of sufficiently qualified women. The framework for this project, exploring decades of women shortlisted to the Court pre-O’Connor from Presidents Roosevelt to Reagan, allows gender bias to be viewed in a vibrant historical context and illuminates ideas for future advancement of women in law and beyond. Shortlisted explores the gendered experiences of this elite group of women — both professional and personal — and situates their stories within the context of gender, judging, and the legal profession. This project is one of first impression. We are the first scholars to identify and assess these women together in light of their shared experience of being shortlisted. Their individual and collective stories have largely gone untold. Until now
If/When/How, in collaboration with the Center for Reproductive Rights and the Center on Reproductive Rights and Justice at Berkeley Law School, is currently accepting submissions for the twelfth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.
This year’s suggested theme is “Balancing Burdens and Benefits after Whole Woman’s Health v. Hellerstedt.” However, submissions on other topics will also be accepted. For more information, please download the Call for Submissions. The deadline for submission is Monday, February 27, 2017.
Winning authors will receive cash prizes: $750 (first place), $500 (second place), or $250 (third place). Additionally, each winning author will receive a copy of the casebook Cases on Reproductive Rights and Justice, by Melissa Murray and Kristin Luker. The first place winner will also have a chance at publication with the NYU Review of Law and Social Change
Closing what many regard as a gaping loophole in Ohio's domestic-violence laws has become a top priority for state legislators.
Currently, only Ohio and Georgia do not offer specific legal options for victims of dating violence, such as civil-protection orders.
A protection order from a judge can legally prevent contact between a victim and perpetrator, including ordering that person to move out of a home that a couple shares. It also can grant child custody and require the offender to relinquish any firearms.
But currently, such orders are limited to family members.
"It's not necessarily about definitions; it's about the relationship and what type of violence arises out of that relationship," said Rep. Emilia Sykes, a Columbus Democrat given an unusual co-sponsorship of a prime bill in the GOP-dominated Ohio House.
"Our statutory law has not caught up to that here in Ohio, so that leaves victims in this state unprotected for the purposes of obtaining civil-protection orders, simply because they don't meet that very specific and narrow definition of domestic violence."
Monday, January 30, 2017
Women in International Security Canada Annual Workshop, to be held 17-19 May, 2017
Migration Law Interest Group of the American Society of International Law, works-in-progress session, to be held from April 12-15, 2017 at Washington DC.
Russia's parliament voted 380-3 on Friday to decriminalize domestic violence in cases where it does not cause "substantial bodily harm" and does not occur more than once a year.
The move, which eliminates criminal liability in such cases, makes a violation punishable by a fine of roughly $500, or a 15-day arrest, provided there is no repeat within 12 months.
The bill now goes to the rubber-stamp upper chamber, where no opposition is expected. It then must be signed by President Vladimir Putin, who has signaled his support.
Kremlin spokesperson Dmitry Peskov told journalists that family conflicts do "not necessarily constitute domestic violence."
The passage by the parliament, or Duma, reverses a ruling by the Supreme Court last year, subsequently backed by parliament, that decriminalized battery that does not inflict bodily harm, but retained criminal charges involving battery against family members. That reform is effectively reversed by Friday's vote.
Friday, January 27, 2017
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction; Chp 1, "What do you Women Want?"; Chp 2 "The Pivot of the Marriage Relation"; Chp 3 "Divorce is not the Foe of Marriage"; and Chp 4 "The Incidental Relation of Mother."
Today's blog is on Chapter 5, "Our Girls" on Stanton's theories of feminist parenting and raising up a new generation free from gendered norms.
After decades of activism and proposed legal reform, Stanton grew increasingly frustrated with the lack of tangible progress. One continual sticking point was women themselves. Stanton repeatedly heard from women “I have all the rights I want.”
Women’s resistance, Stanton believed, was based on their own social and religious acculturation of female difference and inferiority. As she entered her sixties and then seventies, Stanton became convinced that these foundational norms needed to be changed if there was any hope of meaningful and sustainable change for women’s equality.
Her first strategy was to teach the next generation differently. Her goal was to raise children the same: tell girls to climb trees, play sports, and like science and teach boys to be kind, have manners, and like music. In the 1860s, Stanton toured the country 10 months of the year for 11 years, speaking to large crowds as part of the Lyceum tour. Here she featured two key speeches, “Our Girls” and “Our Boys.” These popular speeches appealed to mothers, as they gave philosophical and practical ways to raise children. She also advocated coeducation of the sexes from primary school through college, eschewing concerns that young men were too immoral to study alongside young women.
As part of this redirection of the next generation, Stanton advocate for legal reform of child custody laws. At common law, fathers were solely given custody rights, in the case of separation, but also to make decisions about apprenticeships or guardianships at his death. In this one area, the courts kept pace with Stanton’s demands. The courts had begun to evolve away from the paternal right of custody to stronger assumptions of the right of maternal custody especially for young children of “tender years.” This law matched the social norms of the reverence for mothers, although still rendering judgments about “unfit” mothers based on political views or personal relationships. The custody issue was an issue that triggered large grassroots support among the women Stanton spoke to, as many had experienced the legal loss of their own children.
Stanton’s second grand strategy was to extirpate the origins of the norms of gender inferiority which she located in religious doctrine. The problem, she said, was that women heard everything Sunday from the pulpits of how women was morally inferior, having succumbed to the temptation of evil in the Garden of Eden, and created second to man for the sole purpose of being his help mate. Women believed that their inferiority of law and society was God ordained, and thus fundamentally resisted other ideas.
Her work was to reinterpret the biblical texts that had been used to subordinate women. Having been trained in Greek, the eighty-year old Stanton set out to offer alternative interpretations of key portions of the Bible in her book The Woman's Bible. In what we might now call feminist theological interpretation, Stanton questioned the bias of the text, went to the original meaning of the Greek words, and read women’s experience and stories back into the biblical lessons. This work, however, was too radical even for the women suffrage reformers. They censored her and the book and cast her out from the organization she had founded and lead for fifty years. Stanton didn’t care: her goal was for meaningful and permanent change for women’s equality.
Thursday, January 26, 2017
Abstract:The fiftieth anniversary of Title VII provides an appropriate occasion to look back to an era when women suffered sexual abuse in the workplace (and many other places) with no possible recourse. Once feminist writers and litigators connected the dots, judges came to understand that a broad mandate to end sex discrimination had to include a mandate to eliminate sexual harassment at work. The decades that followed saw the step-by-step construction of a doctrine that ostensibly protects employees from unwanted sexual behavior at work. In this symposium issue the author examines the impact of sexual harassment law citing several court cases as examples.
Kari Hong, Rape by Malice, Montana L.Rev. (forthcoming)
Abstract:When people seek to reform rape law, the focus is on the actus reus — either abandoning the force element or redefining consent. This Article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this Article proposes that states adopt the mens rea of malice — a callous indifference towards the risk of whether the defendant had secured the consent of his sexual partner. If someone shoots a gun in a crowd and kills someone, that person had no knowledge or intent to kill. But the shooter would be liable for murder under the mens rea of malice because the person acted with callous disregard to the objective risk of harm that her conduct involved. When imported to rape, malice then effectively captures what is the precise social wrong in having unwanted sex — it is a defendant acting with callous indifference over whether his or her actions present an objective risk that he or she engaged in sexual activity without the consent of his or her partner.
Wednesday, January 25, 2017
Joyce Sterling & Nancy Reichman, Overlooked and Undervalued: Women in Private Law Practice, 12 Annual Rev. Law & Soc. Science 373 (2016)
This article examines the durability of gender inequality in private law practice since Kay & Gorman published their comprehensive review in the Annual Review of Law and Social Science in 2008. We begin with some of the changes in legal practice that intensified during the Great Recession and help to contextualize women's lack of progress. We turn next to a contemporary profile of women in private practice that demonstrates empirically where women stand. We look at some of the organizational mechanisms that seem to perpetuate inequality. The challenges of integrating work and family dominated the discussion of women's lack of progress in earlier reviews of women in the legal profession and continue to matter greatly. We assume the persistence of these challenges and instead focus on ways that the mechanisms or strategies for determining compensation systematically overlook and undervalue women's contributions. We consider the different social science frameworks that explain women as overlooked and undervalued for their contributions. We conclude with proposed suggestions for changes aimed at remedying the problems discussed here.
Tuesday, January 24, 2017
Study Concludes Law Fails to Grasp the Reality of Workplace Discrimination and Condones Gender Inequality
Laura Edelman, Aaron Smyth, Asad Rahim, Legal Discrimination:Empirical Sociolegal and Critical Race Perspectives on AntiDiscrimination Law, 12 Annual Rev. Law & Social Science 395 (2016)
Abstract:The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions.In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.
Aya Gruber, Consent Confusion, 38 Cardozo L.Rev. 415 (2016)
Abstract:The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty is partly a product of the affirmative consent reform juggernaut and its rapid legal changes. Confusion is also connected to the nature of consent as a liberal, contract principle. Sexual consent appears a morally self-evident issue of free will, but it actually veils a struggle between various judgments about how sex should happen, its benefits and harms, and the role of criminal law in regulating it. Indeed, proponents and critics of affirmative consent entertain different empirical and normative presumptions and often simply talk past each other. Structurally mapping the consent framework and the affirmative consent debate reveals exactly what is at stake in this new world of reform — a revelation necessary for meaningful dialogue on acceptable sex and acceptable sex regulation.
Monday, January 23, 2017
Elizabeth Cady Stanton testifying before the House Judiciary Committee in 1872 on women's right to vote:
Some object that it was not the "intention" of the framers of the original Constitution, nor of the amendments, to enfranchise woman. When ordinary men, in their ordinary condition, talk of the "intentions" of great men specially inspired to utter great political truths, they talk of what they can not know or understand. When by some moral revolution men are cut loose from all their old moorings, and get beyond the public sentiment that once bound them, with no immediate selfish interest to subserve as, for instance, our fathers in leaving England, or the French Communes in the late war in hardship and suffering they dig down to the hard-pan of universal principles, and in their highest inspirational moments proclaim justice, liberty, equality for all.
Visiting Chicago not long since, I saw great pieces of rock of the most wonderful mineral combination gold, silver, glass, iron, layer after layer, all welded beautifully together, and that done in the conflagration of a single night which would have taken ages of growth to accomplish in the ordinary rocky formations. Just so revolutions in the moral world suddenly mould ideas, clear, strong, grand, that centuries might have slumbered over in silence; ideas that strike minds ready for them with the quickness and vividness of the lightning's flash. It is in such ways and under such conditions that constitutions and great principles of jurisprudence are written; the letter and spirit are ever on the side of liberty; and highly organized minds, governed by principle, invariably give true interpretations; while others, whose law is expediency, coarse and material in all their conceptions, will interpret law, Bible, constitution, everything, in harmony with the public sentiment of their class and condition. And here is the reason why men differ in their interpretations of law. They differ in their organizations ; they see everything from a different standpoint. Could ideas of justice, and liberty, and equality be more grandly and beautifully expressed than in the preamble to our Federal Constitution?
It is an insult to those Revolutionary heroes to say that, after seven years' struggle with the despotic ideas of the old. world, in the first hour of victory, with their souls all on fire with new-found freedom, they sat down like so many pettifogging lawyers, and drew up a little instrument for the express purpose of robbing women and negroes of their inalienable rights. Does the preamble look like it? Women did vote in America at the time the Constitution was adopted. If the framers of the Constitution meant they should not, why did they not distinctly say so? The women of the country, having at last roused up to their rights and duties as citizens, have a word to say as to the "intentions" of the fathers. It is not safe to leave the "intentions" of the Pilgrim fathers, or the Heavenly Father, wholly to masculine interpretation, for by Bible, and Constitution alike, women have thus far been declared the subjects, the slaves of men.
But able jurists tell us that the "intention'' of the framers of a document must be judged by the letter of the law. Following this rule the Supreme Court of the District of Columbia has decided that the XIV. Amendment does affect the status of women; that it advances. Amendment does affect the status of women; that it advances them to full citizenship, and clothes them with the capacity to become voters. The exact language of Judge Cartter, who spoke for the court, is as follows:
All that has been accomplished by this amendment to the Constitution, or its previous provisions, is to distinguish them (women) from aliens, and make them capable of becoming voters. In giving expression to my judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters.
If so much has been done, we have already gone beyond the "intention" of the framers of the amendments, if, as some say, they did not intend to touch the status of woman at all. But with or without intent, a law stands as it is written "Lex ita scripta est." The true rule of interpretation, says Charles Sumner, under the National Constitution, especially since its additional amendments, is that anything for human rights is constitutional. "No learning in the books, no skill in the courts, no sharpness of forensic dialectics, no cunning in splitting hairs, can impair the vigor of the constitutional principle which I announce. Whatever you enact for human rights is constitutional, and this is the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."
History of Woman Suffrage, v.2:511-13; The Selected Papers of Elizabeth Cady Stanton & Susan B. Anthony, v.6:92-93 (Ann D. Gordon ed.)
Massachusetts became the first state to prohibit salary histories in August. Now Philadelphia will become the first American city to do the same.
In late December, the Philadelphia city council unanimously passed a measure that will ban employers from asking about a job applicant’s salary history or relying on such information at any point in the hiring process. On Thursday, Mayor Jim Kenney (D) said he would sign it into law as early as Monday.
“Since women are paid on average lower wages than men, basing wages upon a worker’s wage at a previous job only serves to perpetuate gender wage inequalities,” the text of the bill states. “Salary offers should be based upon the job responsibilities of the position sought and not based upon the prior wages earned by the applicant.”
The law also protects anyone from retaliation for refusing to divulge her salary history, although it does allow a prospective employee to voluntarily share the information.
The bill had sparked a high-profile backlash from businesses, including a threat from Comcast to sue the city if it passed.
It's not everyday that you see "Intersectional Feminism" in the newspapers.
USA Today, What is Intersectional Feminism?
"Intersectional feminism" is a term you may be hearing a lot.
If feminism is advocating for women's rights and equality between the sexes, intersectional feminism is the understanding of how women's overlapping identities — including race, class, ethnicity, religion and sexual orientation — impact the way they experience oppression and discrimination.
A white woman is penalized by her gender but has the advantage of race. A black woman is disadvantaged by her gender and her race. A Latina lesbian experiences discrimination because of her ethnicity, her gender and her sexual orientation.
Intersectionality has received increased attention in part due to how the Women's March on Washington, taking place Saturday, came together. The rally, which began organically on Facebook, was initially criticized for failing to include any women of color as organizers. Now its leaders include Tamika Mallory, an African-American civil rights activist and former director of the National Action Network; Linda Sarsour, a Muslim who heads the Arab American Association of New York; and Carmen Perez, a Latina activist who directs Harry Belafonte’s Gathering for Justice. The march's policy platform is called "Unity Principles," which include the belief that "gender justice is racial justice is economic justice."
See prior posts:
Friday, January 20, 2017
Thursday, January 19, 2017
Erin Buzuvis, Hormone Check: Critique of Olympic Rules on Sex and Gender, 31 Wis.J. Gender & Law 29 (2016)
Abstract:Most sports, including all Olympic sports, are divided into two categories: men's and women's. This Article first presents a history of gender testing in Olympic and international sports to illustrate why past attempts to define eligibility for women's sports have proven unfair to women with intersex conditions. It then describes the shortcomings of the International Olympic Committee’s (IOC) first effort to articulate standards of eligibility for transgender athletes. In its second Part, this Article explains the more recent efforts of the IOC and the International Association of Athletics Federations (IAAF) to define eligibility for women's sports solely on the basis of testosterone. That effort is temporarily suspended by the Court of Arbitration for Sport as applied to hyperandrogenism, but, as Part Ill explains, on grounds that could permit the rule's reinstatement if a stronger justification is presented by the IAAF.
Finally, this Article evaluates the concept of a unified hormone rule that the IOC appears to propose. After considering the strengths and weakness of alternatives to such a rule, including genderless sports and a uniform gender identity rule, this Article proposes a hybrid rule that applies a hormone standard to transgender athletes and a gender identity standard for women. This final Part seeks to rationalize the different treatment of transgender and intersex women in ways that minimize the potential for such a rule to contribute negatively to society's understanding of both gender and athletic fairness.
Abstract:There is a national conversation about the role and responsibility of colleges in addressing campus sexual assault, including a debate about the definition of consent, reporting requirements, interim measures, adjudicatory processes, appropriate standard of proof, accused students’ legal rights, and judicial oversight. As colleges increase internal reporting requirements and form information-sharing agreements with local law enforcement agencies, student victims begin to lose their choice and agency in reporting decisions and investigations. And as college adjudicatory proceedings become more complicated and extend past adjudicatory findings into appeals and lawsuits, student victims lose their voice and ability to fully enforce their rights. It is time to bring victims back into the discussion by acknowledging their legal rights to safety, privacy, and education, and by providing attorneys to ensure victims’ choice and voice throughout overlapping legal processes.
Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and campus adjudicatory system - all a source of secondary trauma. Access to individualized, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal and/or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings.
Part I employs storytelling to illustrate the experience of many survivors of campus sexual assault following their disclosure or report of the assault. Part II provides an overview of campus sexual assault. Part III provides a brief summary of Title IX, the civil rights law addressing sex discrimination in education. Part IV discusses the theories of secondary trauma (i.e. second rape) and victim justice. Part V proposes the four stages in which student victims of sexual assault might benefit from access to victims’ attorneys: pre-reporting, investigations, campus hearing, and post hearings (appeals and lawsuits).
Wednesday, January 18, 2017
Natasha Sarin, The Impact of Paid Leave on Female Employment Outcomes
Abstract:This paper provides evidence on the impact of paid leave legislation on female employment outcomes. Using a difference-in-differences and difference-in-difference-in-differences strategy, I study the impact of two state-level programs in California and New Jersey. This paper is first to exploit the fact that the cost of paid leave in these states is larger for firms with 50 or more employees (who are forced to offer job protection under the federal FMLA) than for firms with 49 or fewer employees. Comparing firms above and below this cutoff, I estimate that paid leave with job protection reduces female hiring by around 1.15 percent in large firms compared to small firms where leaves are unprotected. Women of child-bearing age are most negatively impacted (hiring falls by around 2 percent), as are female employees in industries that are relatively less human capital intensive, like utilities and accommodation and food services.
Tuesday, January 17, 2017
NEH Summer Seminar on Gender, the State and the 1977 International Women's Year Conference -- Call for Applications
A National Endowment for the Humanities Summer Seminar for College & University Faculty
June 12-18, 2017