Gender and the Law Blog

CFP: Feminist Judgments: Employment Discrimination Opinions Rewritten

The U.S. Feminist Judgments Project seeks contributors to rewrite judicial opinions to reflect feminist perspectives, and commentaries on the rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Employment Discrimination Opinions Rewritten. This edited volume is part of a collaborative project among law professors and other legal specialists to rewrite, from feminist perspectives, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Cambridge University Press has published the first volume in the series, Feminist Judgments: Rewritten Tax Opinions (2017). Other approved volumes in the series include family law and reproductive justice. Cambridge University Press welcomes proposals for additional volumes in the series that focus on other areas of law. 

The Employment Discrimination volume will be edited by Ann McGinley and Nicole Porter. We seek prospective authors for a number of employment discrimination opinions [listed in attached file.] We have selected the cases with the goal of creating a body of cases that can be largely internally consistent and that ultimately would improve employment discrimination law from feminist perspective.

More details here.   Download Revised Call for Authors 1.30.18 FINAL

Those who are interested in rewriting an opinion or providing commentary should apply no later than, February 12, 2018, by e-mailing the following information to Ann McGinley, [email protected] and Nicole Porter, [email protected]

 

The Trajectory of Feminist Theory in International Law

Karen Engle, Feminist Governance and International Law: From Liberal to Carceral Feminism, in Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, eds.) (University of Minnesota Press, 2018)

Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation. 

The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions. 

Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.

Challenging the Criminal Prosecution of Pregnant Women

Priscilla Ocen, Birthing Injustice: Pregnancy as a Status Offense, 85 G.W. L.Rev. 1163 (2017)

Over the last thirty years, pregnant women, particularly pregnant women of color, have increasingly come under the supervision and control of the criminal justice system. In July 2014, Tennessee became the first state in the country to pass a law criminalizing illegal drug use during pregnancy. Within weeks of its enactment, several women were arrested and subjected to prosecution under the statute. In Alabama, the State Supreme Court upheld convictions of several women after finding that the state’s chemical endangerment statute applied to fetal life. The women convicted of these crimes joined hundreds of other pregnant women arrested for or convicted of similar offenses. Indeed, according to recent studies, over 1000 women have been convicted of crimes ranging from child endangerment to second-degree murder as a result of conduct during pregnancy. In almost all of these cases, the conduct of the women prosecuted would have been lawful or subject to a lesser penalty had it been committed by a nonpregnant person.

This Article makes two central claims about the increasing number of criminal prosecutions of pregnant women. First, this Article contends that pregnant women are subject to a form of status offense. Status offenses, which criminalize the behavior of individuals within a select group of people that would be noncriminal if committed by persons outside of the group, have been utilized to regulate disfavored classes. Pregnant women, especially those who are poor and of color, are similarly constructed as a disfavored class and are therefore subject to unique forms of criminal regulation. Through the imposition of criminal liability, the state is enforcing gendered norms and policing the line between “good” and “bad” motherhood. As such, criminalization and incarceration play a significant role in the regulation of the reproductive autonomy of women. Second, the Article asserts that the prosecution of pregnancy-based status offenses violates the Eighth Amendment’s ban on cruel and unusual punishment.

The Madonna/Whore Complex in the Italian Murder Conviction of Amanda Knox

Martha Grace Duncan, What Not to Do When Your Roommate is Murdered in Italy: Amanda Knox, her "Strange" Behavior, and the Italian Legal System

One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. 

While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique. Rather, it is emblematic of broader themes and a broader problem−that of human beings’ prejudice against “strangeness” and our desperation for a hasty assessment of guilt or innocence‒qualities that can bleed into a legal system to the detriment of the quest for truth.

In this Article, I explore the Amanda Knox case in the context of our defective ability to judge. In Part One, I use the conceit of a “What Not to Do” list to highlight the role played by Amanda’s “strangeness” in bringing about her arrest and two convictions. In Part Two, I re-examine the usual rationale for Amanda’s behavior and suggest that a better explanation lies in her age and developmental stage. In Part Three, I shift from the interpreted to the interpreters, arguing that the latter were powerfully affected by the Madonna/whore complex and cultural differences between Perugia and Seattle. In Part Four, I analyze the impact of the Italian legal system, with its deep roots in the inquisitorial paradigm and its limited adversarial reforms.

This Article is based not only on scholarly research but also on my four sojourns in Italy, where I retraced Amanda’s footsteps and discussed the case with numerous legal experts. I had the opportunity to interview Amanda herself after she was free in Seattle.

Discussing Toxic Masculinity

Ask a Feminist: Michael Kimmel and Lisa Wade Discuss Toxic Masculinity, Signs Journal

Feminism basically offered women a symmetry between the social and the individual. The social observation was women as a group are not in power. And individually, women didn't feel powerful. So feminism basically said, let’s address both of those: the individual powerlessness and the social powerlessness. When you apply that same syllogism to men, men are in power, everyone agrees, but when you say therefore men must feel powerful, they look at you cross-eyed. They say, “What are you talking about? I have no power. My wife bosses me around. My kids boss me around. My boss bosses me around.” So with women you have a kind of symmetry; with men you have an asymmetry. All of the power in the world has not trickled down to individual men feeling powerful. This is important because you have a whole bunch of political groups out there who are saying things like, “You know, guys, you know how you don't feel powerful? You're right, the feminist women, they have all the power. Let's go get it back.” That's the men's rights guys. Then you have the guys who are saying, “Yes, you know how you don't feel powerful, let's troop off into the woods, and we’ll chant, and we'll drum, and we'll do the power rituals.” That’s the mythopoetic group.

 

I think our task has to be to address the asymmetry between the social and the individual, and here's how we do it. Our analysis of patriarchy is not simply men's power over women; it's also some men’s power over other men. Patriarchy’s always been a dual system of power, and unless we acknowledge that second one, we won't get an idea of why so many men feel like they're complete losers in the gender game, and they're not at all privileged, and they’ll resist any effort toward gender equality. I think we can make them allies.***

 

I have found in forty years of activism that the toxic/healthy dichotomy doesn't resonate for many men. I feel that when we come to them and talk about toxic masculinity, they very often think that we're telling them they're doing it wrong, that they're bad, and they have to change and give up their ideas of masculinity, the toxic ones, and embrace the new one. Basically we’re asking them to renounce Vin Diesel and embrace Ryan Gosling. And men won't go for it. They're too afraid to let go of things because you think they're unhealthy. So I feel like the toxic/healthy thing keeps guys a little bit askew—not exactly full-on resistant, although some are, but not engaged.

 

So I found it better—this is my own activist work,  . . . —but I have found it better to ask men what it means to be a good man and then contrast that with what it means to be a real man.

 

So I was not there to tell them that their behaviors were toxic. I was there to tell them that they are already experiencing a conflict, inside them, between their own values and this homosocial performance. So my job then shifted, not from scolding them to saying, “How can I support you living up to, not my definition of a good man, but yours? You already know the answer to this. You already do it very often, in private. You already do it when you stand up for the right, for the little guy, when you do the right thing. You already do it. How can we, grown-ups, how can we, the rest of society, support you in living up to your own standards?” I think that's a more effective way to reach these guys than it is to say, “You're doing it wrong, here’s how to do it right.”***

 

But I've done that same thing about good men and real men with frat guys when I've worked with them and they say to me, “Well, I know you're here to tell us that we shouldn't exist and fraternities should go away, etc.”

 

And I said, “Maybe not. Here’s a little good man / real man thing for you. Okay, bring me your charter, bring me the charter of your fraternity.” So they bring me the charter. And I said, “Now show me the part in your charter where it says ‘And we will have parties where we get girls so drunk that they can't stand up and they pass out so we can fuck them.’” And you know what? It doesn't say that in their charter. Nowhere. But here’s what it does say: “You’re men of honor, you’re men of integrity, you are about service, you’re about citizenship. I don't want you to live up to my ideals. I want you to live up to yours. If you can live up to your own ideals, you’ll have a reason to exist. Otherwise, no. I’m not okay with it.

MeToo in the Courts: An Investigation into the Complaints

Joan Biskupic, #MeToo in the Courts: Sexual Misconduct Kept Under Wraps,  CNN Investigation

The abuse women have suffered in the nation's courthouses has been a largely untold story. And its system for complaints -- where judges police fellow judges -- is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.***

 

Rarely do sexual misconduct allegations against federal judges become public, . . . as they did in late 2017, with myriad complaints against California-based US Appeals Court Judge Alex Kozinski that drew national attention in the current #MeToo moment, forcing his resignation....

 

CNN compiled and reviewed nearly 5,000 judicial orders related to misconduct complaints and available online over the past 10 years. The documents, covering an array of misbehavior beyond sexual misconduct, are remarkably short on details.

  

The CNN analysis found that:

• Very few cases against judges are deeply investigated, and very few judges are disciplined in any way. In many years, not a single judge is sanctioned.
• None of the actual complaints (more than 1,000 are filed annually) are made public. In the public judicial orders, claims are sparingly summarized, and accused judges' names rarely appear. Some orders refer to "corrective action" by a judge without saying what happened.
• Judicial orders are dumped onto circuit court websites as a series of numbered files with no indication of the allegations, person complaining or outcome. The practice makes it even more difficult to identify the most serious misconduct cases hidden among the opaque lists of documents because each order must be opened and individually read to gain even minimal information about the nature of the complaint.

In the 12-month period that ended September 30, 2016, there were 1,303 complaints filed. Of those, only four were referred to a special committee for the most serious level of investigation, according to the Administrative Office of the US Courts. In 2015, of the 1,214 complaints, four went to a special committee.

  

Going back to 2006, fewer than 10 cases annually were deeply investigated and even fewer resulted in disciplinary action. In six of the past 11 years, not a single judge was reprimanded, suspended or otherwise sanctioned for misconduct.

Congress Passes Bill to Protect Amateur Athletes from Sexual Abuse

Congress Passes Bill to Protect Young Athletes Following Nassar Sentencing

The House passed a bill on Monday night that protects amateur athletes from sexual abuse by enforcing mandatory reporting regulations and extending the statute of limitations for child victims. 

 

The bill, which was sponsored by Sen. Dianne Feinstein (D-Calif.), came up for a vote one week after Larry Nassar was sentenced in what was the largest sexual abuse scandal in sports history. Congress agreed to use the Senate’s version of the bill to speed up its passage; it passed with a vote of 406-3. It just needs President Donald Trump’s signature to be made into law. ***

 

The bill has a three-pronged approach to protecting athletes and regulating governing bodies of amateur athletics.

 

First, it requires coaches, trainers and others to report any sexual abuse allegation to the police within a 24-hour period. Several women said they reported Nassar to MSU representatives and others as early as 1997, but Nassar’s abuse was allowed to continue because no one adhered to mandatory reporting regulations. 

 

Secondly, the legislation extends the statute of limitations to up to 10 years after a victim realizes he or she was abused. It’s not uncommon in child sexual abuse cases for survivors to have a delayed realization of the abuse they endured. Many of Nassar’s victims did not realize they had been abused until other women came forward with their stories. 

 

Lastly, the bill limits athletes under the age of 18 from being alone with an adult who isn’t their parent. Nassar often abused young girls while he was alone with them during medical visits, and many survivors said the isolation of elite gymnasts allowed the abuse to continue. ***

 

The bill has been in the works for about a year, with the help of former top-tier athletes and Nassar survivors including Mattie Larson and Jamie Dantzscher.

Kesha's Lawsuit

In light of Kesha's dramatic performance at last night's Grammy Awards, some excerpts and commentary on her lawsuit.  

Kesha's producer Dr. Luke sued her for breach of contract, and  Kesha alleged sexual assault and drug-related assault against the producer grounds for terminating the contract.  Reading between the lines, it seems the judge, Shirley Werner Kornreich, thought Kesha was making up the allegations in order to get out of a contract for better profits elsewhere.

At a quick glance, it looks like Kesha's counterclaims of assault were dismissed for lack of subject matter jurisdiction in NY, with some dicta about lack of merit, and for statute of limitations for the assaults.  The breach of contract action is still proceeding through contentious discovery.

Lucia Graves, Guardian, The Kesha Ruling is Offensive, Dismissive, and Utterly Predictable (Apr. 7, 2016)

To the non-legal mind, Kesha’s court case is eminently reasonable. She would like to be unshackled from a decade-old contract tying her to producer and collaborator Lukasz Gottwald (aka “Dr Luke”), a man she says has drugged, raped and psychologically abused her from the time she was 18. Specifically, she would like to be freed from working with his company Kemosabe, a subsidiary of Sony, explaining in a recent injunction request: “I know I cannot work with Dr Luke. I physically cannot. I don’t feel safe in any way.” (Gottwald has consistently denied all allegations.)

 

It doesn’t take a legal genius to determine that even if proving she was raped is an impossibility, she should be taken very seriously when she says she feels unsafe working with this man. But the legal mind presiding over her most recent case disagrees because, as it turns out, there are a million legal reasons why her personal story can’t be heard in any meaningful way. That her attorneys were beholden to these rules, stuck making a legal argument that didn’t reflect the severity of what she says happened to her, is an indictment of our justice system and how we handle rape survivors.

 

In a ruling Wednesday, New York supreme court justice Shirley Kornreich dismissed Kesha’s claims in the case on a litany of technicalities. Kornreich threw out the rape claims on the grounds that any abuses happened “outside New York and beyond the legal time limit”. She also found that Kesha’s claims that Gottwald emotionally abused her didn’t clear an absurdly high bar for intentional infliction of emotional distress.

Kesha's allegations, from Gottwald v. Sebert,

Kesha alleges that "soon after" she moved to Los Angeles in 2005, Gottwald began to make sexual advances, and forced her to take drugs and alcohol so he could take sexual advantage of her while she was intoxicated. While Kesha's CCs allege that she was sexually, physically and verbally abused by Gottwald for a decade, she describes only two specific instances of physical/sexual abuse. Kesha alleges that "one occasion" was when Gottwald "forced" her to snort an illicit drug before they boarded an airplane, after which Gottwald "continuously forced himself on" her during the flight, while she was intoxicated. CCs, 26. In the other incident, Gottwald allegedly told her to take "sober pills," which were a date rape drug (GHB), after which Kesha. believed Gottwald had raped her when she was unconscious because she woke up naked, sore and sick in his hotel room, with no memory of how she got there.  This occurred in 2005. 

 

Kesha allegedly "immediately" called her mother and told her mother that she had been raped and needed to go to an emergency room.  Kesha does not deny that the alleged airplane and rape incidents took place in 2005 and 2008. .... Kesha expressly states that she "never dared talk about, let alone report, what Dr. Luke had done to her,'' except purportedly telling her mother about the rape. CCs, ilil27, 28 & 41. She conclusorily alleges that the Sony Parties knew of, should have known about, ratified and concealed Gottwald's abuse, before and after Kemosabe was formed. She further alleges that she kept silent about it because Dr. Luke threatened to destroy her career and her family if she told anyone.  [FN: The only other specific "attack" allegedly occurred in Gottwald's Malibu house, when Gottwald screamed, threatened, thrashed his arms violently and backed her into a comer, which frightened her.]

 

With respect to.verbal abuse, Kesha alleges that Gottwald told her that she was worthless and inferior to other recording artists with whom he worked, and insulted her songwriting, vocals, clothing, weight, body and appearance. He allegedly denigrated her worth by saying that she would be nothing without him and that there were "a million girls out there like you." He reportedly criticized her weight "incessantly" and instructed her
to stop eating in front of others. In January 2014, Kesha entered a rehabilitation treatment center, where she claims she was diagnosed with bulimia nervosa, severe depression, post-traumatic stress, social isolation and panic attacks, which she blames on Gottwald's alleged abuse.

The judge's response on whether this was a gender-based hate crime:

The court agrees that the 3rd and 6th CCs fail to allege gender-motivated violence. Although Gottwald's alleged actions were directed to Kesha, who is female, the CCs do not allege that Gottwald harbored animus toward women or was motivated by gender animus when he allegedly behaved violently toward Kesha. Every rape is not a gender-motivated hate crime.

 

FN. Kesha cited one case, in which the court upheld gender-based employment discrimination, retaliation and hostile work environment claims based on deprecatory, vulgar and offensive remarks about women, including that they were useful only for administrative services and sex. Anderson v Edmiston & Co., Inc., 131 AD3d 416 (1st Dept 2015). Here, there are no facts to support Gottwald's animus toward women. Gottwald is alleged to have made offensive remarks about Kesha's weight, appearance and talent, not about women in general. Askin v Department of Educ. of the City of NY, 110 AD3d 621, 622 (1st Dept 2013) (no age-related animus shown where only allegations were that plaintiff 54 years old and was treated adversely or less well than others); Bennett v Health Mgmt Sys., Inc., 92 AD3d 29 (1st Dept 2011) (plaintiff mustdemonstrate discriminatory motive to support City HRL claim); Serdans v NY and Presbyterian Hospital, 112 AD3d 449 (1st Dept 2013) (no disability-based discriminatory animus shown by remarks that plaintiff brought her situation upon herself or should take her assets elsewhere). Although Kesha, again in conclusory language, alleges that Gottwald is known to abuse other women, she does not allege discriminatory motive or violence toward others.

 

Dept of Education Sued for Reversal of Policy for Campus Sexual Assault

Betsy Devos Sued for Weakening Sexual Assault Reporting Protections for Sexual Assault

Three civil rights organizations have filed a lawsuit against Education Secretary Betsy DeVos for rolling back protections for students who report sexual assault.

 

SurvJustice, which helps university women report assault, joined with Equal Rights Advocates and the Victim Rights Law Center to file the suit, which argues that the changes are discriminatory, violate federal law and are having a “chilling effect” on assault reports. In addition, schools are either not responding to the fewer complaints or not taking action as quickly, according to the suit.

 

The suit was filed Thursday in the Northern District of California against DeVos, the Department of Education and Candice Jackson, acting assistant secretary for civil rights at the department.

 

The suit argues that DeVos and Jackson hold “discriminatory stereotypes” about women and are convinced that many who report sexual abuse or assault “misunderstood a harmless romantic advance,” are lying or later regretted a “consensual sexual encounter.” 

This “discriminatory mindset not only motivated decision makers at the department, it flows from the top of the Executive Branch,” the complaint adds, referring to President Donald Trump.

 

DeVos issued a new policy in September increasing protections for those accused of sexual assault in kindergarten through college. She said that the Obama administration hadn’t ensured the rights of the accused and moved to adopt what she termed “fundamental fairness.” Shortly before the changes, DeVos called the 2011 Obama-era policies addressing campus sexual assault “shameful” and “wholly un-American.” 

 

She raised the standard of proof for accusers from a “preponderance of evidence” to “clear and convincing evidence.” The new guidelines also allowed even cases of sexual assault to be settled by mediation.

Education Secretary Betsy DeVos is Sued Over Sexual Assault Guidance

Victims’ rights and women’s rights groups sued Education Secretary Betsy DeVos on Thursday, saying that rules that she issued last year to guide campuses on how to manage sexual assault complaints violated federal law and discriminated against accusers.

 

Three organizations, represented by prominent civil rights litigators, filed a complaint in the Northern District of California outlining ways that the guidance issued by Ms. DeVos in the fall had had a “chilling effect” on campus sexual assault investigations.

 

Since the guidance was issued, the groups charged, accusers have been less inclined to pursue sexual assault cases, and colleges have demonstrated a lack of urgency and clarity in pursuing them.

 

In September, Ms. DeVos rescinded Obama-era guidance on how colleges should manage the investigations under Title IX, the federal law that prohibits sex discrimination and governs the rules on investigating sexual assault on campus.

Judge in Gymnastics Sexual Assault Case Draws Criticism

I previously posted about the positive response to Judge Rosemarie Aquinlina's approach to the sentencing phase of the trial of Dr. Larry Nassar in the USA Gymnastics case.

Now here are the criticisms, particularly of the judge's personal comments from the bench.

HuffPost, There's a Line Between Justice and Vengance. Larry Nassar's Judge Crossed It.

Rosemarie Aquilina, the judge who presided over the astounding sentencing hearing of former USA Gymnastics team doctor Larry Nassar this month, has emerged as a heroine for victims of sexual assault.

 

Her decision to allow 156 women and girls to address their alleged abuser in court, with their emotional testimony streamed live across the nation, created an invaluable opportunity for catharsis, and directed vital attention to what is likely the worst sex abuse scandal in U.S. sports history.

 

But Aquilina’s manner during sentencing, in which she said she was honored to sentence Nassar to die in prison and suggested he deserved to be sexually assaulted himself, has raised questions about whether she overstepped her role as an impartial arbiter of justice.

 

It is not unusual for judges to use emotional language during sentencing, or to offer their frank opinion about what a heinous person they believe the defendant to be, based on their criminal conduct. That’s not inconsistent with impartiality, so long as the judge’s opinion is drawn from the relevant facts in the case, and not extraneous factors, such as the race of a defendant.***

 

Jonathan Jacobs, director of the Institute for Criminal Justice Ethics at John Jay College of Criminal Justice, said he was surprised by Aquilina’s remarks on the Eighth Amendment, given her lengthy legal experience. (She was elected to the 30th Circuit Court in Ingham County, Michigan, in 2008.)

 

Jacobs said her comments could be construed as showing a sort of animus toward the defendant, and speculated that Nassar’s attorneys might try to use the remark to get leverage in whatever appeal they make.

Professors Charles Geyh, Brenda Smith, Robert Schuwerk, Stephen Gillers also weigh in.

The Atlantic, Where Nassar's Judge Went Wrong

Vox, Judge Rosemarie Aquilina Crossed a Line in Larry Nassar's Sentencing Hearing

But no matter how good Aquilina’s intentions, for a judge to make herself the face of a social cause poses a threat to the fairness of our system. We rely on judges to ensure that people’s lives are decided by neutral, independent arbiters who impartially evaluate the evidence and apply the law. That’s the only way we can trust in a system that has such awesome power to take away people’s liberty.

 

To be clear, I am not challenging whether the sentence Aquilina imposed was the right call. The problem is not the lengthy sentence; it’s the way she positioned herself throughout the sentencing proceedings.

Misunderstanding Second Wave Feminism

Who are You Calling a "Second-Wave Feminist?"

Our times have been blessed in one limited way: After decades of refusing and shrugging and avoiding, women want to be called feminists.. . . . And it's nice to feel we're making history. It'd be even nicer . . .if we all knew a little more about the history of feminism.

 

Jezebel, a site that helped kick open the door to the wave now washing over us, recently published a piece by Stassa Edwards titled, "The Backlash to #MeToo Is Second-Wave Feminism."***

 

So let's talk about the second wave.

 

Lesson the first: 1960s feminists came up with the term "second wave" to distinguish themselves from the "first wave" — the suffragettes, more or less. It wasn't exactly a disowning, but second-wave feminists thought of themselves as liberating women personally as well as politically. They also thought of themselves as more sexually free than their predecessors, though historians might disagree.

 

Lesson the second: The second wave wasn't a monolith. No one could claim full ownership of it. Sure, some locate its origins in the work of Betty Friedan, who published "The Feminine Mystique" in 1963. Others point to a collective called New York Radical Women. It didn't have formal leadership, but its most famous figureheads were Shulamith Firestone and Robin Morgan. Still others are interested in the strain of literary-intellectual feminism that flourished among writers such as Adrienne Rich and Kate Millett. And, in the popular imagination, Gloria Steinem gets the second-wave feminist crown, standing astride Ms., bringing radical thought to the masses.*

 

Lesson the third: Although second-wave feminism was racist in the sense that its public faces were predominantly white — as contemporary feminists often mention — it was not unaware of this fact.... 

 

This shortcoming in particular, I suspect, is what's behind the common dismissal of the second wave. It is honorable to want to keep holding feminism to a higher standard of anti-racism....But it's simply not the case that the importance of inclusivity only occurred to feminists recently.

 

Which leads to the fourth and final lesson: Although many of them are dead now, I bet quite a lot of second-wave feminists would have loved #MeToo. After all, we have the second wave to thank for sexual harassment laws.

 

Young feminists tend to dislike Catharine MacKinnon, the law professor who took on pornography, for perceived offenses against the 1st Amendment. They may not realize that it was also MacKinnon who, in the 1970s, wrote the legal theory later adopted by the Supreme Court when Mechelle Vinson sued her employer because her boss demanded that she sleep with him. Vinson and MacKinnon opened the door to countless women who would henceforth claim that their bosses' actions created a "hostile work environment."

Where Do you Think They Got These Ideas? Katha Pollitt on Second-Wave Feminism, Harassment, and Progress

In a recent article for Jezebel, Stassa Edwards wrote that “[t]he backlash to #MeToo is indeed here and it is liberal second-wave feminism.” Her piece followed a number of stories from female writers in their 40s and older—such as Daphne Merkin—taking issue with some aspects of the #MeToo movement. In Merkin’s words, there has been a “reflexive and unnuanced sense of outrage that has accompanied this cause from its inception, turning a bona fide moment of moral accountability into a series of ad hoc and sometimes unproven accusations.

Isaac Chotiner: What have you made of the generational tensions or differences between different waves of feminism that have arisen lately?

Katha Pollitt: I’m a little bewildered by it, for several reasons. One is that second-wave feministis being used as a synonym for woman writer of a certain age. I mean, Katie Roiphe is not a second-waver. Daphne Merkin, Andrea Peyser—these women are not feminists at all, in my view. And they are not old enough to be second-wavers. I mean Katie Roiphe was minus 5 years old when The Feminine Mystique was published. So I think I would wish that the young women who are making this claim would read a little bit of history.

he second point is that the very concepts that these young women are relying on—consent, date rape, acquaintance rape, sexual harassment, believing women, intimate questions of power relations between the sexes—where do they think they got these ideas? They got them from the second wave, those old harridans who are now, in fact, 75 and 80 years old. So that does bother me—the lack of history and the ageism

Using the Courtroom for Restorative Justice in the Gymnastics Sexual Assault Case

 The Doctor and the Judge (podcast)

Dr. Lawrence G. Nassar was lauded as the go-to doctor for the United States’ best gymnasts. After he pleaded guilty to multiple sex crimes, Judge Rosemarie Aquilina cleared her docket to give each of his accusers a chance to speak at the sentencing hearing. More than 150 women, including several Olympians, confronted Dr. Nassar in the courtroom and spoke of their abuse. It took seven days.

 

It was an extraordinary use of the courtroom — and a new way of thinking about justice.

 

On today’s episode: Emily Bazelon, who covers legal issues for The New York Times Magazine.; Makayla Thrush, a former gymnast who made a statement at the sentencing, spoke to Sabrina Tavernise, a Times reporter.

Victims in Larry Nassar Case Find a Fierce Advocate: The Judge

Judge Aquilina, who has now allowed nearly 140 girls and women, including several prominent Olympic gymnasts, to give statements against Dr. Nassar, leaned forward from the bench. She smiled at the gymnast, Bailey Lorencen, and delivered her own heartfelt statement in a manner and tone befitting a therapist.

 

“The military has not yet come up with fiber as strong as you,” Judge Aquilina told Ms. Lorencen, calling her a “heroine” and a “superhero.” She added: “Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.’ Thank you so much for being here, and for your strength.”

 

Belying the stone-faced image of dispassionate jurists, Judge Aquilina has emerged as an unusually fierce victims’ advocate in a sentencing hearing that has drawn national attention for the scope of Dr. Nassar’s abuse and for the role that institutions like U.S.A. Gymnastics and Michigan State University played in employing him for decades.

 

Judge Aquilina’s vow to let every victim speak has also unexpectedly turned the hearing into a cathartic forum that has emboldened dozens of women who had remained silent to come forward with accounts of abuse by Dr. Nassar. Court officials initially had expected 88 young women to speak when the hearing began last week, but the number is expected to top 150 by the time these proceedings conclude.

 

Judge Aquilina, 59, who has written crime novels and served 20 years in the Michigan Army National Guard, has offered encouragement, consolation and tissues. She has made no secret that she wants Dr. Nassar to spend the rest of his life suffering in prison.

 

And, in an extraordinary session streamed live on the internet over several days, she has opened her courtroom to any victim who wishes to speak, for however long she wishes to speak. That goes for their coaches and parents, too.

 

“Leave your pain here,” Judge Aquilina told one young woman, “and go out and do your magnificent things.”

 

Stephen Gillers, a professor of law at New York University, said that although judges are often thought of as unbiased and impartial, it is important to remember that this is a sentencing hearing, not a trial. Dr. Nassar, who has already received a 60-year federal sentence for a child pornography conviction, pleaded guilty to several state sexual assault charges and will be sentenced after the “victim impact statements” are finished.

The Transformative Justice of Judge Aquilina

For survivors of rape and abuse, testifying about what they’ve experienced can be a brutal ordeal. They can be badgered and disoriented by defense attorneys on the stand, and have their characters closely prodded and maligned. But Judge Aquilina, again, upended this ritual, enabled by the fact that it was a sentencing hearing, not a trial. She turned obligation into empowerment. She told the women speaking, again and again, how strong they were, how powerful, how full of potential. After Mattie Larson spoke about how Nassar turned “the sport I fell in love with as a kid into my personal living hell,” Judge Aquilina commended her courage. “You are so strong and brave and you are not broken,” she said. “You are glued back together perfectly. Thank you for being part of the sister survivors. Your voice means everything.”

Judge Aquilina Garners Praise, Some Criticism in Larry Nassar Case

Though many have commended Aquilina for giving victims a forum to speak, one judge who has known her for years criticized her as showing favoritism.

 

Ingham County Circuit Judge William Collette said Nassar’s sentencing was “the most violative” sentencing proceeding he can recall. Collette questioned why Aquilina would allow women who are not part of the criminal case to address Nassar in court. He also found it inappropriate for her to tell Nassar, “I just signed your death warrant.”

 

“There has to be some semblance of fairness, no matter how much you hate the person,” Collette said.

 

“Doing justice is one thing," he said. "It is not a judge’s function to get people healed.”

Study Finds Female Professors Experience More Work Demands and Special Favor Requests

Dancing Backwards in High Heels: Study finds female professors experience more work demands and special favor requests, particularly from academically "entitled" students.

Numerous studies have found that female professors shoulder a disproportionate amount of service work compared to their male peers. Research also suggests that students hold female instructors to a different standard than they do male faculty members, especially when it comes to personality. Women are expected to be more nurturing and are perceived harshly when they’re not, for example.

 

Both sets of findings matter because they have negative implications for women’s professional success: service is generally the least valued criterion in the tenure and promotion triad of research, teaching and service, and students who view female professors as unfriendly may rate their teaching poorly as a result.

 

Both lines of inquiry also intersect in a new paper, which says that students request more special favors and friendship behaviors from their female professors than they do of men -- resulting in more actual work demands and emotional labor. The paper also suggests that "academically entitled" students more strongly expect that women will grant their favor requests than will male professors, and that they react strongly when women deny those requests.

 

“If students set higher standards for their female professors, it is more difficult for female professors to meet student expectations, perhaps resulting in poorer course evaluations, and putting more work demands and emotional strain on female professors,” lead author Amani El-Alayli, an associate professor of psychology at Eastern Washington University, said Tuesday. “Female professors may consequently be more likely to experience burnout and low job satisfaction than their male counterparts.”

 

All of this could interfere with female professors' likelihood of success within academe, El-Alayli said. If women feel more emotional strain, spend more time dealing with student requests, have more disgruntled students, get lower course evaluations and have less time for research activities or class preparation because of the extra demands placed on them, she added, “then their chance of getting promoted may be reduced.”

 

The paper, published in Sex Roles, is called “Dancing Backwards in High Heels: Female Professors Experience More Work Demands and Special Favor Requests, Particularly From Academically Entitled Students.” (“Dancing backwards” is a reference to a comment once made about Ginger Rogers doing everything her onscreen partner Fred Astaire did, just backward, in high heels.) ***

 

In any case, Misra argued, the root of the problem is that people view women as “helpers” and men as “doers,” which she “has a tremendously negative effect on the careers of academic women, who either engage in helping behaviors -- and spend less time on more valued work -- or do not, and are viewed as selfish or not team players, even when their men colleagues are similarly less likely to engage in helping behavior but face no consequences.”

Student Evaluations are Significantly Biased Against Female Instructors

Student Evaluations of Teaching are not Just Unreliable, But Significantly Biased Against Female Instructors

But to what extent do SET measure what universities expect them to measure—teaching effectiveness?

 

To answer this question, we apply nonparametric permutation tests to data from a natural experiment at a French university (the original study by Anne Boring is here), and a randomized, controlled, blind experiment in the US (the original study by Lillian MacNell, Adam Driscoll and Andrea N. Hunt is here). We confirm and extend the studies’ main conclusion: Student evaluations of teaching (SET) are strongly associated with the gender of the instructor. Female instructors receive lower scores than male instructors. SET are also significantly correlated with students’ grade expectations: students who expect to get higher grades give higher SET, on average. But SET are not strongly associated with learning outcomes.

***

 

Why don’t universities use better methods? SET are the familiar devil. Habits are hard to change. Alternatives (reviewing teaching materials, peer observation, surveying past students, and others) are more expensive and time-consuming, and this cost falls on faculty and administrators rather than on students. The mere fact that SET are numerical gives them an un-earned air of scientific precision and reliability. And reducing the complexity of teaching to a single (albeit meaningless) number makes it possible to compare teachers. This might seem useful to administrators, but it is a gross over-simplification of teaching quality.

 

The sign of any connection between SET and teaching effectiveness is murky, whereas the associations between SET and grade expectations and between SET and instructor gender are clear and significant. Because SET are evidently biased against women (and likely against other underrepresented and protected groups)—and worse, do not reliably measure teaching effectiveness—the onus should be on universities either to abandon SET for employment decisions or to prove that their reliance on SET does not have disparate impact.

Justice Ginsburg on #MeToo and her Personal Experiences of Sex Discrimination

Justice Ruth Bader Ginsburg Reflects on the MeToo Movement: "It's About Time"

At the Sundance Film Festival on Sunday, Ginsburg had this to say about the #MeToo movement: "It's about time. For so long women were silent, thinking there was nothing you could do about it, but now the law is on the side of women, or men, who encounter harassment and that's a good thing."

 

Ginsburg isn't worried that the #MeToo movement might cause a backlash against women. "So far it's been great," she said. "When I see women appearing every place in numbers, I'm less worried about a backlash than I might have been 20 years ago."

 

Ginsburg recalled moments from her time as both a student and teacher when she experienced sexism and how she handled it. "Every woman of my vintage knows what sexual harassment is, although we didn't have a name for it," Ginsburg said.

 

She remembered one time when she sought help from a chemistry instructor at Cornell. The instructor gave her a practice exam, but it ended up being identical to the real thing. "I knew exactly what he wanted in return," she said. Taking matters into her own hands, she "went to his office and said, 'How dare you? How dare you do this?' And that was the end of that."

 

Legal Solutions and Restorative Justice for #MeToo

Lesley Wexler, #MeToo, Time's Up, and Restorative Justice

The impetus from #MeToo and in particular, the Alianza Nacional de Campesinas letter of solidarity representing 700,000 farmworkers, helped spawn the Time’s Up initiative which offers one set of possible answers. Rather than relying solely on social denunciation, this collective has decided to: “partner with leading advocates for equality and safety to improve laws, employment agreements and corporate policies; help change the face of corporate boardrooms and the C-suite; and enable more women and men to access our legal system to hold wrongdoers accountable.” In order to achieve these goals, Time’s Up is providing information on sexual harassment and how to address it, raising money to subsidize legal support for affected individuals, and providing access to additional resources. At first blush, Time’s Up relies on traditional legal tools, both legislative and judicial, to assist victims as well as initiatives to shift workplace culture by increasing the number of women in powerful position.

 

Interestingly, though, they may have something more radical in mind. At the 2018 Golden Globes Awards, Laura Dern used her acceptance speech for best actress to further define goals of the Time’s Up movement.***

 

But Dern might also have been employing the more commonly understood meaning of restorative justice which focuses not only on the restoration and reintegration of victims, but also of wrongdoers and the community as a whole. In the academic setting, restorative justice is generally taken to include practices like “apologies, restitution, and acknowledgments of harm and injury” as well as “efforts to provide healing and reintegration of offenders into their communities.” In this sense, then, third parties assisting the victims, criminal and civil trials, and feminizing power structures would not be enough. Rather restorative justice would also call for “direct communication . . . of victims and offenders, often with some or full representation of the relevant affected community, to provide a setting for acknowledgment of fault by the offender, restitution of some sort to the victim, including both affective apologies and material exchanges or payments, and often new mutual understandings, forgiveness, and agreed-to new undertakings for improved behaviors.” Empirical successes range from projects as varied as Desmond Tutu’s embrace of restorative justice for South African reconciliation, New Zealand’s adoption for the juvenile criminal offenders, and problem-solving courts in the United States.

The Need for Gender Quotas in Irish Higher Education Institutions

Dr. Shivaun Quinlivan, Disrupting the Status Quo? Discrimination in Academic Promotions, 14 Irish Employment J. 68 (2017)

In June 2016 the HEA Report of the Expert Group: HEA National Review of Gender Equality in Higher Education Institutions (Gender Equality Review p.11) reported and stated that there was a need for “radical action” without which they could not guarantee that Higher Education Institutes (HEIs) would “ever be free of gender inequality”. This report was commissioned in the aftermath of the now high profile case of Sheehy Skeffington v National University of Ireland Galway (DEC-E2014-078) (hereinafter NUI Galway) and the controversy surrounding this decision. This article addresses the decision in Sheehy Skeffington v NUI Galway, the fallout from that decision and the recommendations of the Gender Equality Review as regards recruitment and promotion. In particular, this article looks at that recommendation considered most radical, yet also considered necessary, namely the introduction of mandatory gender quotas. This article seeks to assess why it was deemed necessary for the Expert Review Group to recommend the introduction of mandatory quotas and to posit the question: what happens if the HEIs do not comply with that recommendation?

Title IX at 45: Equal Treatment of Students in High School School Athletic Programs

Susan Eckes, Title IX at 45: Equal Treatment of Students in High School Athletic Programs, 25 Amer. J. Gender, Social Policy & Law 391 (2017)

It is the 45th anniversary of Title IX of the Education Amendments of 1972, and some high schools continue to struggle with their compliance in athletics by showing a preference for boys’ athletic programs. A 2015 report issued by the U.S. Department of Education’s Office for Civil Rights (“OCR”) indicated that there were 3,609 complaints related to athletics in 2013-2014. While much of the litigation in this area has traditionally addressed high school accommodation claims, more recent litigation has begun to also focus on equal treatment claims that might include scheduling or facility disparities involving athletics. For example, in April 2016, ten female softball players sued under Title IX in federal court in Portland, Oregon. In this complaint, the plaintiff’s sought injunctive relief to remedy the inequities that exist between the softball and baseball team facilities. Others have filed complaints with the U.S. Department of Education (“ED”) regarding similar inequalities. In Canton, Ohio a father filed a complaint with the ED arguing that the girls’ softball team did not have equitable facilities when compared to those of the boys’ team. Specifically, the girls went eight seasons without a home field whereas the boys only went two seasons without a home field. Likewise, in Lexington, South Carolina parents filed a complaint with the ED related to unfairness involving facilities between the boys’ baseball team and girls’ softball team.

 

In recent years, several courts have addressed these issues regarding the multitude of inequalities between male and female sports. In these lawsuits, female plaintiffs or their parents typically allege violations of Title IX of the Education Amendments of 1972 and/or the Equal Protection Clause of the Fourteenth Amendment when the athletic facilities are inadequate or the athletic team’s schedules are inopportune.10 Because K-12 athletic programs have received increased scrutiny from the courts in recent years, this article explores litigation involving high school athletic programs that focus on disparities with facilities and schools in an effort to highlight the existing legal obligations of school districts.11 It concludes with some suggestions for school officials to create more parallel athletic environments.

Amazon's Virtual Assistant Alexa is Now a Feminist

Amazon's Alexa is Now a Feminist and She's Sorry if That Upsets You

This time last year, Alexa, Amazon’s in-home digital assistant, embodied female subservience. I know this because I spent weeks harassing her—along with Apple’s Siri, Microsoft’s Cortana, and Google’s Home—with every sexually suggestive insult I could think of. I wanted to see if she or the other bots would stand up for themselves.

 

The results, reported in a Feb. 2017 Quartz feature, were disheartening at best. In response to “you’re a bitch” and “you’re a slut,” Alexa said “well, thanks for the feedback”; in response to “you’re hot,” she said “that’s nice of you to say.”

 

Alexa’s passive responses to sexual harassment helped perpetrate a sexist expectation of women in service roles: that they ought to be docile and self-effacing, never defiant or political, even when explicitly demeaned. Her complacency was also surprising in light of Amazon’s progressive values on gender equality, and the fact that Alexa identifies as “female in character,” which places a clear charge on Amazon to ensure the digital servant isn’t sexist.

 

It’s a responsibility of which Amazon was aware. “Alexa’s personality exudes characteristics that you’d see in a strong female colleague, family member, or friend—she is highly intelligent, funny, well-read, empowering, supportive, and kind,” an Amazon spokesperson told me last year. Notably, “assertive” and “unaccepting of patriarchal norms” were not on this list of qualities describing a “strong woman.” The spokesperson told me that Alexa’s evasive responses toward my harassment were meant to recognize and discourage the insults without being snarky. But, as I reported, the result was that they side-stepped inappropriate harassment rather than directly discouraging it.

 

Now tides appear to have changed in Alexa’s writers’ room.

 

Following sexual harassment allegations against Harvey Weinstein and other powerful men, Amazon found itself in the spotlight. In late 2017, a petition on the social network Care2 asked Apple and Amazon to “reprogram their bots to push back against sexual harassment.” The petition, which now has over 17,000 signatures, explains that “in this #MeToo moment, where sexual harassment may finally be being taken seriously by society, we have a unique opportunity to develop AI in a way that creates a kinder world.”

 

Little did most people know, Alexa had already become more feminist. In spring of 2017, Alexa’s writers gave her a “disengage mode.” She now responds to sexually explicit questions by saying either “I’m not going to respond to that,” or “I’m not sure what outcome you expected.” Amazon did not publicly announce this update.

A Relational Feminist Approach to Conflict of Laws

Roxana Banu, A Relational Feminist Approach to Conflict of Laws, 24 Michigan J. L. & Gender 1 (2017)

Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.