Thursday, February 16, 2017
"We thought we wouldn’t have to worry about this stuff," Feigenholtz says, "but the new administration has been a wake-up call. I had to stop and say, 'Okay, now what? How do we protect women?'"
She was especially concerned about an obscure 40-year-old provision in Illinois' criminal code, one of a number of measures in 10 states across the country, that anticipate a time when the Supreme Court reverses itself on abortion. They are often referred to as "trigger laws," because even though each state's provision works a bit differently, the measures are "triggered" by the reversal of Roe v. Wade. Should that occur, these states commit to making abortion illegal in all cases, except to protect a mother's life, just as it was before the Supreme Court's 1973 ruling. (In four states, the trigger law makes the switch back to illegal abortion automatic.)Feigenholtz was familiar with Illinois' trigger clause from her previous work on women's health measures in the General Assembly. After the election, she contacted local pro-choice advocates, including chapters of the ACLU and Planned Parenthood, to float the idea of proposing a measure to void Illinois' trigger law, as part of a bigger bill that seeks to expand abortion access by including abortion care in Medicaid and state employee health coverage. The bill she introduced in January, HB 40, proposes cutting Illinois' trigger language and affirming the state's commitment to uphold abortion rights, no matter what happens in Washington
Many such laws, including the one in Illinois, go even further, saying that if Roe is overturned, the state intends to renew their so-called "policy" that life begins at conception. This approach could not only affect the legality of abortion but also common forms of birth control, such as Plan B or IUDs, which some anti-abortion advocates consider to be abortifacients despite medical consensus to the contrary.
"After the passage of Roe, a handful of states said, 'If we can ever go back, we want to go back,'" says Daniela Kraiem, the associate director of the women and the law program at the Washington College of Law at American University. "The point of those laws, up until now, has been largely symbolic," she says, a way for states to "allow women to exercise their constitutional rights, but under protest."
If the Supreme Court did overturn Roe, the enforceability of these trigger clauses is complicated and difficult to predict, Kraiem explains. For instance, six states—Arkansas, Illinois, Kansas, Kentucky, Missouri, and Ohio—enshrine only their intention to revert back to pre-Roe policies, without requiring an automatic switch. Since a number of those legislatures tend to skew conservative, that intention could very quickly become law.
NAWL established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law.
The rules for the competition are as follows:
Entrants should submit a paper on an issue concerning women's rights or the status of women in the law.
Essays will be accepted from students enrolled at any law school during the 2016-17 school year. The essays must be the law student author's own work and must not have been submitted for publication elsewhere. Papers written by students for coursework or independent study during the summer, fall, or spring semesters are eligible for submission. Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.
FORMAT: Essays must be double-spaced in 12-point, Times New Roman font. All margins must be one inch. Entries must not exceed 15 pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook: A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or that are not in the required format will not be read.
JUDGING: NAWL Women Lawyers Journal® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.
QUESTIONS: Questions regarding this competition should be addressed to the Chair of the Writing Competition, Professor Jennifer Martin at firstname.lastname@example.org.
SUBMISSION AND DEADLINE: Entries must be received by May 1, 2017. Entries received after the deadline will not be considered. Entries must provide a cover letter providing the author's name, title of the essay, school affiliation, email address, phone number, and permanent mailing address. Entries must be submitted in the following format: email an electronic version (in Microsoft Word) to email@example.com.
AWARD: The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in the Women Lawyers Journal. The most recent winning paper was Human trafficking waivers: How the United States implicitly violates federal law and empowers ISIS to commit human trafficking crimes written by Paloma A. Kennedy, Washington University School of Law. Please view the paper by clicking here.
Tuesday, February 14, 2017
From the archives of Judge Florence Allen's papers. Allen was the first woman judge elected to a state supreme court, appointed to a US Court of Appeals, and shortlisted for the US Supreme Court. She saved this pamphlet from the peace movement.
This "America First" poster appears to be part of a campaign by schools, churches, and organizations to turn "the old slogan 'America First'" into a "new American Creed that voices the faith of the broader patriotism that American should be in the forefront of the movement for world cooperation." Peace, not war. Globalism, not localism.
Excerpts from the poster:
America First: not flaunting her strength as a giant, but bending in helpfulness over a sick and wounded world like a Good Samaritan.
Not in splendid isolation, but in courageous cooperation.
Not in pride, arrogance, and disdain of other races and peoples, but in sympathy, love, and understanding
From the explanatory pamphlet:
How the Creed Came to be Spoken
On Sept. 7, 1924, the Rev. George Ashton Oldham, Bishop Coadjutor of the Diocese of Albany NY preached . . . the Sunday before "Defense Day." He delivered a strong peace sermon. Toward its close he spoke of the old slogan "America First," and told how he thought it should be interpreted. He was listed to with breathless interest and with evident approval.
How It Came to be Published
Among some who heard Bishop Oldham's sermon and some who read reports of it in the papers the idea arose of giving this new interpretation of "American First" a wider circulation by issuing it in poster form. The enthusiasm of the public was immediate and great. Cards and postcards were next issued, and then, to meet an urgent demand, a poster large enough for outdoor or classroom use.
"As a statement of principles to which every forward-looking American can subscribe, 'America First' would be hard to beat. It makes the noisy rantings of all the professional patriots sound pretty mean and cheap and silly, and recalls the noble ideas of liberty, justice, helpfulness, and cooperation in which the nation was conceived and which it must follow to attain its high destiny."--JM Baer, the "Congressman Cartoonist"
Former Supreme Court Justice Sees Possiblility of New Heaven and New Earth (John H. Clarke)
Noted Editor Counsels his Fellow Countrymen
"It does not agree with the materialistic philosophy of the cry 'My country, right or wrong!' It does not exalt any part of humanity above the whole. It does not accord with the ugly, selfish, and ignoble appeal, 'March on American, and march alone!' It does not pander to a single fear or prejudice or hatred, but it sets a task and reveals a goal for our dear country which should arouse the fervent love and increasing service of every true patriot."
Paula Monopoli, Gender and the Structural Constitution, 76 Maryland L.Rev. Endnotes 17 (2016)
Abstract:This paper is based on remarks delivered by the author for the Constitution Day Lectures at the University of Maryland Carey School of Law. The paper draws on the author’s prior scholarship on gender and constitutional design to explore why more than eighty-five countries have already had female prime ministers or presidents while the United States has not. The paper’s thesis is that this puzzle may be explained, in part, by what some have called the “structural constitution.” Two design choices by the Founders made it less likely that a woman would ascend to the presidency. The first of these structural features is the choice of a singular or unitary executive that combines the head of state, head of government and commander-in-chief function in one person. The impact of that choice can be amplified by executive activism and the power of the courts via judicial review to define the scope of the executive as more or less expansive. The second structural feature is the choice of direct presidential selection, filtered through the Electoral College. With Hillary Clinton as the first viable female nominee of a major American party, this paper considers these structural constitutional choices, how they construct our politics and their impact on the likelihood that Clinton will be elected.
Monday, February 13, 2017
Susie Salmon, Reconstructing the Voice of Authority
Abstract:Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result.
This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.
Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments
Abstract:Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.
This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.
For those of us who teach, and especially those who teach courses in women’s and gender studies, the question is key, perhaps even foundational: Is the women’s and gender movement home, and, if so, does that underscore the significance and importance of teaching about Seneca Falls? Does the ribbon of women’s movement history roll out across time and space from Seneca Falls? Is this the place where it all happened, as some like to say? Does this place teach us the function of myth and its mythmaking power for social change, as Lisa Tetrault, associate professor of history at the University of Wisconsin at Madison, ventures in her history of Seneca Falls? Or do the questions posed this way open up the history of women’s movements as a contest over meaning, ritual and re-enactments for feminist futures?
Surely, this is, in part, what Saturday Night Live was driving at with its recent sketch featuring millennials conjuring the ghost of Susan B. Anthony at the Susan B. Anthony House in Rochester, N.Y., only to quickly lose interest in her presence. Surely, this also means (re)considering how, just a few months earlier, on Nov. 8, 2016, people lined up for hours on end to pay tribute to this suffragist, abolitionist and women’s rights campaigner on a day they imagined would be historic in its election of the first woman president of America. The SNL millennials’ short attention span disclosed their faint and passing interest in the history of the women’s movement until Susan B. Anthony uttered her opposition to abortion.
The point was not lost on college students watching this clip in my class. What did they know -- really know -- of women’s history? And what difference, if any, does that knowing effect in the world today? How does millennials’ seemingly fleeting or ambivalent relation to feminist history tell us more about the failures of romanticizing the past and about our own inability to see or imagine how they take up feminist history’s possibilities to act in the world?
One other message in SNL’s short satire really hit home. Women’s rights legacies are not simply and only about upholding the past as some quaint object of interest: see my desk, hold a pair of my shoes and touch the stove where I cooked my meals. Rather, historical moments such as the women’s rights movement in upstate New York need to be thought about as having the capacity to stage the future over and over, a future we continue to grapple with, worry over and teach about.
Wednesday, February 8, 2017
Came across this again while doing some research, and wanted to make sure to save it for future reference. It is not complete, but quite useful.
This webpage contains a history of significant events for women in the United States regarding their experience with the law: using it, making it, practicing it as a profession, profiting or suffering from it. It ranges from 1619 to the present, covering jury rights, voting rights, marriage rights, the right of a woman to pass on the status of free or slave to her children, the right of a woman to control her own body, the right of a woman to choose her own profession -- particularly the profession of law or lawmaker.
Tuesday, February 7, 2017
Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)
Professor Tristin Green shows in this Essay that current portrayals of differences between American and French harassment law are incomplete. They overlook important history of harassment law in the United States and miss the extent to which American law has been and continues to be shaped by concerns very similar to those articulated by the French in devising their harassment law. To reveal the common thread of concern, Professor Green uncovers the seeds of the limits placed on employer liability for harassment by the United States Supreme Court in the 1980s and 1990s, and digs beneath the doctrinal cover of “because of sex” in Title VII cases today. She shows judges in the United States relying on the “because of sex” requirement to prevent Title VII from disrupting exclusionary and subordinating work cultures for the very same reasons that French law was originally narrowly conceived. American judges in these cases see harassment as a problem of interpersonal intrusion (if not violence) first and of workplace discrimination second. Most fundamentally, they see employers as mere police officers of individuals who engage in harassment, and they resist a construction of the law that would require employers to alter male-dominated work cultures.
Seeing this similar thread of concern and how it restricts the reach of harassment law in the United States is important to understanding the equality project in both countries. France and the United States both face significant hurdles to developing a harassment law that will alter workplace cultures in ways that further integration and equality. If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective.
Julie Suk, An Equal Rights Amendment for the Twenty-first Century: Bringing Global Constitutionalism Home, Yale J. Law & Fem. (forthcoming)
From the Abstract:[T]his Article proposes a new vision of the ERA’s legal function, drawing on the experience of global constitutionalism. Focusing on countries that adopted constitutional amendments on sex equality after the ERA’s failure, this Article shows how the constitutional right to sex equality can promote gender balance in positions of political and economic power, combat practices that disadvantage mothers in the workplace, and shift family care policies to increase fathers’ participation in childcare. In Europe, constitutional sex equality amendments since the 1990s go beyond outlawing sex discrimination; these new amendments engender and legitimize legislative efforts to disrupt the traditional gendered division of roles in the family and public spheres. Constitutional courts in Germany and France have construed these amendments as articulating actual equality between women and men as a principle by which the constitutional order’s legitimacy is measured, rather than as an individually enforced right. In the United States, there are some synergies between European constitutional innovations in gender equality and public policies that are emerging piecemeal at the state and local level.States are leading the way in legislating pregnant worker fairness, paid parental leave, and childcare. A motherhood movement and a wide range of actors from across the political spectrum are driving these new laws. These developments can shape an updated vision of constitutional sex equality for the United States. Taking inspiration from global constitutionalism, and recognizing the potential of state constitutionalism, this Article identifies the emerging new infrastructure of social reproduction — rather than antidiscrimination — as the normative core for the twenty-first-century ERA.
Ruth Bader Ginsburg spent a large portion of her legal career advocating for women’s rights and was appointed as the second female justice to the Supreme Court in 1993. In this animated interview, she describes attending law school with a 14-month-old baby at home. Ginsburg attributes some of her career successes to her husband’s flexibility and the experience of being a mother. “I think I had better balance, better sense of proportions of what matters,” she says. "I felt each part of my life gave me respite from the other.”
This interview was conducted by Ryan Park for his story "What Ruth Bader Ginsburg Taught Me About Being a Stay-at-Home Dad".
Friday, February 3, 2017
New Books: Thinking About Prenuptial Agreements from a Feminist Perspective--Choice, Autonomy, and the Imbalance of Power
Sharon Thompson, Prenuptial Agreements and the Presumption of Free Choice (Hart Publishing 2015)
This book provides an alternative perspective on an issue fraught with difficulty – the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues, such as imbalance of power between the parties, become obscured.
This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Lastly, it explores how the court might address concerns regarding power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that 'prenups' can play in the judicial allocation of spousal property on the breakdown of marriage.
Jessica Lake, The Face that Launched a Thousand Lawsuits: The American Women Who Forged the Right to Privacy (Yale Law Library Press 2016)
Drawing on a wealth of original research, Jessica Lake documents how the advent of photography and cinema drove women—whose images were being taken and circulated without their consent—to court. There they championed the creation of new laws and laid the groundwork for America’s commitment to privacy. Vivid and engagingly written, this powerful work will draw scholars and students from a range of fields, including law, women’s history, the history of photography, and cinema and media studies.
A few blurbs:
"Jessica Lake’s The Face That Launched a Thousand Lawsuits is one of those rare books that truly upends conventional wisdom and changes the way readers understand an important subject. In a fascinating and well written account, Lake retells the history of the right to privacy. She shows how the activism of individual women played a central role in driving the legal recognition of that right. This book persuasively argues that we owe much to women who resisted the unauthorized circulation of photographic images of them. It is bracing and compelling from the first page to the last." -- Austin Sarat"Cybercrimes of visuality today have a prehistory uncovered in this book, which shows how far women aggrieved at having their images circulated without their consent brought the legal cases that built the right to privacy." --Nancy F. Cott
Thursday, February 2, 2017
Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L. Forum (2016)
Abstract: 1In this essay we consider the implications of Whole Woman’s Health v. Hellerstedt for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the Supreme Court’s decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.
In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health. The Court required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.
A crucial aspect of the Court’s decision in Whole Woman’s Health is the guidance it provides judges in determining the burdens and benefits to balance in the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s experience of exercising their constitutional rights. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health. In these and other ways, Whole Woman’s Health robustly reaffirms judicial protection for the abortion right.
Helen Irving, What is a Citizen?, the concluding chapter of the book, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016).
Explains the history of citizenship-stripping (“marital denaturalisation”) from women who married foreign men (and the parallel conferral, by many countries, of the husband’s citizenship: “marital naturalisation”), a legal practice that was followed in virtually every country in the world between the early-to-mid nineteenth and the mid-twentieth century (and ultimately repudiated in the 1957 UN Convention on the Nationality of Married Women). The book locates this practice in the formation of modern citizenship laws and explains it as an aspect of the emergence of modern international relations. Its concluding chapter is a reflection on what this history reveals about the nature of citizenship. It challenges theories of citizenship as rights and citizenship as participation, and offers an ‘existential’ defence of citizenship that prioritises protection of the citizen on the part of the state.
Wednesday, February 1, 2017
Alice Woolley & Elysa Darling, Nasty Women and the Rule of Law, Univ. San Fran. (forthcoming)
No one enters the legal profession expecting social popularity – or, at least. no one should. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-‐lawyer criticisms. For women lawyers, attacks and criticism are role-‐related (arising from her occupation of the professional role) but also personal, specific and gendered. Lawyers in general are labeled as morally troubling; women lawyers risk being specifically and personally identified as morally transgressive, even when performing acts expected of a person in their role. Women who take on law firm leadership, advocate in notorious trials, lead teams in complex corporate transactions, demonstrate political ambitions or political leadership – that is, women who do things that lawyers might normally be expected to do– risk particularly gendered and hostile forms of criticism. They risk being labeled unlikable, unattractive, unfeminine, unpleasant, immoral–a bitch. Such attacks are not certain to occur. They may be more likely for some women than for others; the form and tone they take almost certainly varies with context. But a woman who chooses to enter the legal profession does not just risk generic unpopularity. She also risks being labeled a “nasty woman”.
That, at least, is the premise of this paper. We do not prove that women lawyers risk being attacked in this way, although we note some examples of women lawyers who have been, consider some objections to the premise, and discuss the extent to which gender equality has eluded the legal profession to date, even in comparison to other professions. Instead, we focus on why gendered and personal attacks on women might occur....
Our thesis is that attacks on women lawyers arise from the intersection between the normative structure of the lawyer's role and sexist stereotypes. The lawyer's function in achieving the social settlement of law, including maintaining the rule of law, requires lawyers to occupy positions of moral ambiguity and power. Lawyers have the privilege and responsibility to pursue the interests of their clients within the bounds of legality, even where doing so inflicts harm or violates valued norms of ordinary morality. That role makes all lawyers unpopular, but when combined with prescriptive gender stereotypes about appropriate conduct for women, it makes women lawyers seem not merely morally dubious, but also personally dangerous. That is, the danger presented by a woman lawyer connects to the woman herself; she presents the danger rather than simply being a part of a group or category of dangerous people; she invites moral outrage.
Claudia Martin, Update on Gender Parity at the Human Rights Council
On November 8, I published Taking-stock: The Human Rights Council and Gender Parity in Special Procedures after 10 years in this blog. The Article was also cross-posted at the Human Rights Brief. To complement my article, the Human Rights Brief recently interviewed Ambassador Marta Maurás Pérez from Chile. Ambassador Maurás is a pioneer for gender parity in the UN Human Rights Council (HRC). As the only woman in the 2015 HRC Consultative Group, she was a leader in the Consultative Group’s creation of the 2015 Gender Parity Guidelines. She continues to work to increase the number of women holding special procedures positions. The interview with Ambassador Maurás discusses her dedicated work on closing the gender gap within the UN and around the world. In addition, she discusses the challenges ahead to ensure that gender parity becomes mandatory in the work of the HRC. The full interview is posted at the Human Rights Brief. I hope her words encourage us to continue our advocacy to promote gender parity at the HRC and other international tribunals and organs.