Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, January 29, 2019

Study Documents Widespread Breastfeeding Discrimination, Particularly in Male-Dominated Industries

Pregnant@Work: An Initiative of the Center for WorkLife Law, Exposed: Discrimination Against Breastfeeding Workers

A new study released today by the Center for WorkLife Law at the University of California, Hastings College of the Law reveals widespread breastfeeding discrimination, resulting in job loss, negative health outcomes, sexual harassment, and weaning earlier than doctors recommend.

 

Exposed: Discrimination Against Breastfeeding Workers analyzes breastfeeding legal cases from the last decade to document patterns of discrimination, and analyzes new data on the scope of existing laws to protect against discrimination. According to the report, 27.6 million women of childbearing age don’t have the basic protections needed by all breastfeeding workers.

 

“Breastfeeding discrimination is widespread and can have devastating consequences for women and their families” says Liz Morris, report co-author. “Despite a patchwork of laws giving legal rights to breastfeeding employees, millions still do not have the basic legal protections they need. Workers are losing their jobs to feed their babies. We’ve outlined a common sense policy solution that would fix this.”

 

The study found that while breastfeeding discrimination exists in many industries, it is most acute in male-dominated sectors. First responders, law enforcement, and other women in predominantly-male industries make up only 16% of women workers, but account for nearly half (43%) of breastfeeding discrimination claims. Workers in pink collar professions, such as nurses and teachers, are often left out of federal legal protections for breastfeeding workers.

January 29, 2019 in Equal Employment, Family, Pregnancy | Permalink | Comments (0)

Legal Scholars Discuss Implications of Current Movement for ERA

Ms., Continuing the Fight for Constitutional Equality

The Equal Rights Amendment is making a comeback.

Nearly a century since the ERA was first introduced in Congress, and four decades since its unsuccessful ratification campaign, there is revived interest in enshrining the principle of gender equality in our Constitution.

Over the past two years, the Nevada and Illinois state legislatures ratified the ERA by comfortable margins, breathing new life into the proposed amendment. Advocates now believe that achieving the necessary 38 state ratifications is within reach. 

What’s in store for the ERA? And how might it advance the fight for gender equality in the U.S. today? These questions are being newly debated across the country—and in a day-long event organized by the Brennan Center for Justice at New York University School of Law last November, an array of politicians, scholars, legal advocates and activists examined the implications of this modern movement for legal change.***

At the conference, panelists recalled [Martha] Griffith’s tireless efforts at time of extraordinary social change. Cary Franklin, professor at the University of Texas at Austin School of Law, noted that her big push occurred against the backdrop of the Women’s Strike for Equality—“the biggest demonstration for women’s rights since the women’s suffrage movement… [in which] thousands of women across the country organized in cities and made a number of demands about women’s equal citizenship, including education, employment, reproductive rights and child care.”***

NYU School of Law Professor Melissa Murray put it aptly, explaining that gender equality has become “part of the conversations people are having around kitchen tables and with friends about no longer being willing to accept what has been the status quo for so long.” With ArizonaOklahomaSouth Carolina and Virginia all vying to be the lucky 38th state, it’s a good time for the entire nation to reflect on what the long-overdue ratification of the ERA can and should mean for gender equality in the U.S. in the 21st century.

January 29, 2019 in Conferences, Constitutional | Permalink | Comments (0)

19th Women and Law Conference: The Way Forward-Gender, LGBTQIA Rights, and Religious Liberties

Thomas Jefferson School of Law, 19th Women and the Law Conference: The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, Feb. 1, 2019

Thomas Jefferson School of Law’s 19 th  Annual Women and the Law Conference, The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, will be held on Friday, February 1, 2019 at Thomas Jefferson School of Law. This conference brings together leading experts and practitioners to discuss critical federal and state legislative, executive, and judicial developments affecting women, the LGBTQIA community, and people concerned about religious liberties.  At a time when public discourse about these issues seems irreconcilably polarized, this event will focus on means to resolve these opposing views.

 

Former EEOC Commissioner Chai Feldblum will deliver the Ruth Bader Ginsburg Lecture. Before her appointment, Commissioner Feldblum was a law professor at Georgetown University Law Center.  Feldblum continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson School of Law in 2003.

 

Other speakers include:  Alan Brownstein, Emeritus Professor of Law at UC Davis School of Law; Julie Greenberg, Emeritus Professor of Law at Thomas Jefferson School of Law; Pamuela Halliwell, therapist at the San Diego LGBT Community Center; Shannon Minter, Legal Director at the National Center for Lesbian Rights; Jocelyn Samuels, Executive Director at the Williams Center UCLA School of Law; Maimon Schwarzchild, Law Professor at the University of San Diego School of Law; and Mattheus Stephens, Founding Partner of the Progressive Law Group.

January 29, 2019 in Conferences, Gender, LGBT | Permalink | Comments (0)

Monday, January 28, 2019

Why the Equal Rights Amendment's Ratification Deadline may be Invalid, Waived, or Extended

On the horizon is the possible 38th state ratification of the ERA.  Legislative action pending in Virginia, North Carolina, and Minnesota makes this likely.  The question is whether this will matter given the expired deadline.

The original ERA passed by Congress in 1972 had a 7 year deadline.  Congress, with the assent of the president, then extended that deadline in 1979, prior to its expiration, by 3 years to 1982.  

There are several arguments now as to why the 1982 deadline does not apply:

1.  The original ERA deadline was constitutionally invalid because (a) Article V says nothing about permitting time restriction on amendment (but see Dillion v. Glass); or (b) the ratification of the 27th Amendment after a 203 gap overrules Dillion v. Glass and the judicially-created mandate that ratification be sufficiently contemporaneous; or (c) it was contained in the introductory preamble to the amendment rather than the substantive text of the amendment itself which distinguishes the holding in Dillion that Congress may impose amendment deadlines in determining the mode of amendment.  Without a deadline, the amendment, per Article V "shall be valid for all Intents and Purposes" upon ratification by the 38th state. 

2.  Congress retains the power to alter its original ERA deadline by waiver, repeal, and/or extension because the deadline is not contained in the substantive text of the amendment and because it has already passed one such extension. 

3.  Congress has the power to conduct a post-ratification acceptance of the amendment (so-called Coleman analysis).

4. The modern precedent of the 27th Amendment regarding salary increases for members of Congress and its 203 year gap in ratification provides strong precedent for a gap in ratification and calls into doubt the the limited judicial acceptance of amendment deadlines.  

The basic arguments are made here, Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, Note,  The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 William & Mary J. Women & Law 113 (1997);

Then-Professor Ruth Bader Ginsburg addressed some of these issues when considering the propriety of the extension of the ERA deadline in 1979.  Ratification of the Equal Rights Amendment: A Question of Time, 57 Texas L. Rev. 919 (1979)  [Westlaw Link]; see also Jean Witter, Extending Ratification Time for the Equal Rights Amendment Constitutionality of Time Limitations in the Federal Amending Process, 4 Women's Rights L. Rep. 209 (1978).

Limitation periods have accompanied only the more recent constitutional amendments. Congress specified no time frame for ratification of the first seventeen amendments. When the eighteenth amendment (Prohibition) was before Congress, legislators expressed concern about proposed amendments “floating around in a cloudy, nebulous, hazy way.” That was unseemly, Senator Ashurst said: “10, 12, 14, 16, 18, or even 20 years,” he ventured, might be a reasonable period for ratification, but Congress should provide a check against handing down to posterity proposals submitted to the states many decades earlier.
 
Without extensive discussion of the time span suitable generally or  in the particular context, Congress specified seven years for ratification of the Prohibition amendment. The same seven year period was specified, without fresh debate, for amendments twenty through twenty-six. But significantly, Congress sent the nineteenth amendment (Woman's Suffrage) to the states without a ratification time frame. The suffragists, who had struggled for the better part of a century to win the vote for women through state-by-state campaigns, resisted a deadline for the federal amendment.
 
Suffragists still with us in 1970 argued against a time limit for the ERA. They wanted to keep the pattern consistent with the nineteenth amendment. But principal congressional proponents of the ERA accepted addition of a seven year specification to the proposing clause that preceded the text of the amendment. They thought the stipulation innocuous, a “customary” statute of limitations, not a matter of substance worth opposing. The nineteenth amendment, after all, was proposed in 1919 and ratified in 1920. No amendment now part of the Constitution had taken even four years to be ratified. [But since then, the 27th Amendment had 203 years]. ***
 
Few participants in the extension debate questioned the authority of Congress to specify initially a decade or more for ratification of the ERA, or to say nothing at the outset regarding a time frame. The issue was whether Congress, having said seven years, was locked into that specification, essentially, whether Congress could establish in two steps a time frame it might have set in one. Relevant to resolution of this threshold issue was the placement of the time limitation.
 
Congress fixed the time for ratification in the text of the eighteenth, twentieth, twenty-first, and twenty-second amendments. That placement appeared to make the time provision an inseparable part of the proposed addition to the Constitution submitted to the states for approval. Amendments later proposed, including the ERA, contained no time limitation in the “Article of Amendment.” Instead, the limitation was separated from the text of the amendment and placed in the proposing clause.
 
The change from text to proposing clause was effected largely to avoid “cluttering up” the Constitution with vestigial provisions serving no function once an amendment was ratified. But the very judgment that the limitation should be transferred from text to preamble may reflect an underlying recognition that setting a time for ratification entails a determination qualitatively different from agreement on the substantive content of an amendment.
 
Apart from the acknowledged purpose of the time limitation—to inter proposed amendments grown stale through the passage of time—and the “placement” argument—that a time provision placed in the proposing clause forms no part of the amendment text submitted to the states for ratification— what support did Congress draw upon in making the judgment to extend the time for state consideration of the ERA? Article V, the terse amendment provision of the Constitution, is silent on the period for ratification. But the Supreme Court has drawn two base lines.
 
In 1921 the Court ruled in Dillon v. Gloss25 that article V implicitly requires occurrence of ratification within a reasonable time. Dillon sustained the power of Congress to set a time for ratification in the text of the Prohibition amendment.
 
What time span is reasonable? The Court addressed that issue in 1939 in Coleman v. Miller, it held that determination of the limitation period calls for an eminently legislative judgment, one for Congress to make. Coleman involved, inter alia, a claim that by 1937 the Child Labor amendment, proposed by Congress in 1924 without a ratification time limit, was dead—no longer open for ratification. Congress is uniquely equipped to decide the timeliness question, Chief Justice Hughes wrote, because of its “full knowledge and appreciation ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment.”
When the ERA was proposed, Congress had no fine crystal ball to forecast the political, social, and economic conditions prevailing in the ensuing years. At best, Congress could make only an estimate in 1972. Was Congress disabled in 1978 from deciding that it estimated incorrectly when it specified for the ERA the time frame used for amendments more readily comprehended and less vulnerable to distortion—the vote for eighteen-year-olds, the order of succession to the Presidency, prohibition of a poll tax—to take the most recent examples?
 
Some extension opponents urged that Congress exhausts its authority once it proposes an amendment and designates the mode of ratification. At that point, so the argument goes, the process is entrusted entirely to the states. Just as Congress, after submitting an amendment to the states, may not change the wording of the text or the mode of ratification, so it may not alter the time frame.
 
But the view that “the only Congress that has power over any particular amendment is the Congress that proposed it,” and even that Congress, only up to the moment of proposal, seems shortsighted. Unquestionably, when a limitation period is not fixed in advance, the “reasonable time” appraisal must be made by Congress after submitting the amendment to the states. Coleman v. Miller also appears to indicate that even when a time period is set by the proposing Congress, it is within the province of a later Congress to decide that a reasonable time had elapsed prior to the deadline day, because conditions had so changed that the amendment was “no longer responsive to the conception which inspired it.” Other questions too may arise post submission, for example, the efficacy of a purported rescission, or the validity of a state-imposed rule requiring for ratification a three-fifths vote of the legislature. Is Congress disarmed, is it barred from addressing such questions if it does not anticipate and resolve them before submitting a proposed amendment to the states?
 
Most constitutional law teachers consulted by Congress while the extension measure was pending, whether they supported or opposed the measure, agreed on the threshold question—Congress has authority to extend a ratification time limit. Dillon and Coleman had bracketed the issue. Dillon held Congress could deal with timeliness at the outset, Coleman confirmed Congress could “wait and see,” deferring the question until “the time arrives for the promulgation of the adoption of the amendment.” Extension indicated a middle course: a time frame intended to ensure the proposed amendment would not roam around state legislatures indefinitely was enlarged upon a congressional determination that “the public interests and changing conditions” so warranted. Absent this continuing evaluation and control by Congress, a time limit in a proposing clause could be cut loose from its function. The limitation could inter a proposed amendment that remained vibrant, as the Supreme Court put it in Coleman, fully “responsive to the conception which inspired it.”
 
Professor Julie Suk explains further in a her remarks included in Feminism in the Age of Trump, 23 Cardozo J. Law & Gender 419 (2017) (available on Westlaw)

[T]here's a big question as to whether or not the ERA would just automatically become the 28th amendment. The deadline is a problem. For about a decade after the deadline passed in 1982, it was assumed that the ERA was dead. But something very interesting happened in our constitution, which was that in 1992, the 27th Amendment became part of the constitution. That amendment prohibits laws varying the compensation of members of Congress until an election cycle, and it was adopted by Congress and sent to the states for ratification under Article Five in 1789 along with the original Bill of Rights. But unlike the other rights in the Bill of Rights, only seven states ratified it within the 18th century, and an eighth state ratified in 1873. But a revival movement took shape in the 1980s, in part due to the mobilization of an undergrad who wrote a paper about it and received a C, but then started a letter-writing campaign to various state legislators, saying we can ratify this. There was no deadline. And then 38 states did ratify by 1992, and interestingly, additional states have continued to ratify even after 1992, even after we got to 38 and added it to the U.S. Constitution. So the 27th Amendment became part of the U.S. Constitution 202 years after it was sent to the states for ratification. So this makes it at least possible to imagine the ERA now becoming part of the constitution, if only we could do something about that deadline.

The ERA deadline was not part of the text of the amendment itself. Note that in the Prohibition Amendment, the ratification deadline was part of the text. But because the deadline wasn't part of the text of the ERA, now it's argued that Congress can just accept the ratifications and decide to repeal the deadline or just change the deadline, with bills introduced to that effect. Then, those post-deadline ratifications would be valid, and the ERA would come into effect. 

It's also argued further that even if Congress didn't change or repeal the ERA deadline, and the states just continued to ratify the ERA, we could still end up with a valid amendment on the theory that the deadline was never valid to begin with. The theory here would be that Article Five does not say anything about deadlines, so Congress imposed one illegitimately on the ERA.
 
Article Five tells you what the amendment process is. It's known throughout the world to be a deeply cumbersome process for amending the constitution. You need both Houses of Congress by two thirds, and then three fourths of the states to ratify. It's already pretty cumbersome. Imagine Congress then adding another layer of cumbersomeness to an amendment. Imagine Congress saying, “You also have to have a referendum in which at least 60% of the eligible electorate shows up and votes in order to validate that amendment.” You would think that Congress is imposing a condition on amending the Constitution that's not envisioned and even more cumbersome than Article Five. If Congress can't do that, I think the congressionally imposed deadlines on the ERA are arguably similar.
 
We have some precedent suggesting that congressionally imposed deadlines are not only legitimate, but possibly constitutionally required. The Supreme Court upheld the congressionally imposed deadline that was in the Prohibition Amendment. But as I said earlier, that congressionally imposed deadline was in the text of the Prohibition Amendment itself, in which case you could read Congress putting it in the amendment as an amendment or a partial amendment of Article Five.
 
By contrast, when Congress just puts the amendment into the legislation, setting off the ERA ratification process, then the ERA deadline is not a partial constitutional amendment. Rather, it could be seen as an effort by Congress to make the process of constitutionalizing gender equality more cumbersome than it's supposed to be.
 
As to the precedent itself.
 
In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court held that Congress could impose deadlines on constitutional amendments, and upheld the deadline in the Eighteenth Amendment on Prohibition. 
These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was intended and that seven years was a reasonable period.
 
That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on the application of two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode amendments to be effective must be ratified by the Legislatures, or by conventions, in three-fourths of the states, ‘as the one or the other mode of ratification may be proposed by the Congress.’ Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.
 
We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson ‘that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’ That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.
 
Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests**513 and changing conditions may require; and article 5 is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.
The Court later held that any decision as to deadline was in the province of Congress, and was a political not legal question. Coleman v. Miller, 307 U.S. 433 (1939) (plurality) (Child Labor Amendment).
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
Using these precedents, one district court invalidated the ERA's three-year extension. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982).
The question of whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to “propose” the “Mode of Ratification” have the power to change its proposal once it has been made and sent to the states; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a “conditional” ratification arguably prohibited by the amendment process.
 
To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution ....” Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.Ill.1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256 U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the time restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that “(a)n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments”, Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that
(w)hether a definite period for ratification should be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.
Id. at 376, 41 S.Ct. at 513 (emphasis added).
 
The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Congress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification.
 
The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon and Coleman cases found that as a “subsidiary matter of detail” to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are “sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period ....” Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority *1152 to decide that issue when the requisite number of states have acted.
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance “so that all may know what it is and speculation ... be avoided.” Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be re-evaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.
It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-“so all may know and speculation ... be avoided”-the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment requires ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until three-fourths of the states have acted.

January 28, 2019 in Constitutional, SCOTUS | Permalink | Comments (0)

Thursday, January 24, 2019

UK Proposes Changes to Domestic Abuse Laws to Include Mental and Economic Abuse

Domestic Abuse: Non-Physical and Economic Abuse Included in Law

Non-physical and economic abuse are to be included in the first legal definition of domestic abuse as part of a landmark overhaul of the law.

 

Under the draft laws, a wide range of measures will also include domestic abusers being banned from cross-examining victims in family courts.

 

The home secretary said the changes would "bolster protection for victims".

 

Campaigners say the measures are a "once in a generation" opportunity to combat the impact of abuse.

 

Dr Nicola Sharp-Jeffs, the director of the charity Surviving Economic Abuse, said adding economic abuse to the legal definition was "highly significant" and would give victims "more confidence" when they came forward.

 

The draft bill going before MPs will also:

    Create new powers to force perpetrators into behaviour-changing rehabilitation programmes
    Make victims automatically eligible for special protections when they are giving evidence in criminal trials
   Set up a national "domestic abuse commissioner" tasked with improving the response and support for victims across public services

 

The definition of domestic abuse will specifically recognise that it goes beyond crimes of violence and includes victims who are psychologically coerced and manipulated, as well as those who have no control of their finances.

 

The legislation will also clarify the workings of "Clare's Law" - a measure introduced four years ago to permit police to tell a member of the public if there are concerns over about previous violence committed by their partner.

January 24, 2019 in International, Violence Against Women | Permalink | Comments (0)

Dept of Justice Quietly Changed the Legal Definition of Domestic Violence

Natalie Nanasi, The Trump Administration Quietly Changed the Definition of Domestic Violence and We Have No Idea What For

Without fanfare or even notice, the Department of Justice’s Office on Violence Against Women made significant changes to its definition of domestic violence in April. The Obama-era definition was expansive, vetted by experts including the National Center for Victims of Crime and the National Domestic Violence Hotline. The Trump administration’s definition is substantially more limited and less informed, effectively denying the experiences of victims of abuse by attempting to cast domestic violence as an exclusively criminal concern.

 

The previous definition included critical components of the phenomenon that experts recognize as domestic abuse—a pattern of deliberate behavior, the dynamics of power and control, and behaviors that encompass physical or sexual violence as well as forms of emotional, economic, or psychological abuse. But in the Trump Justice Department, onlyharms that constitute a felony or misdemeanor crime may be called domestic violence. So, for example, a woman whose partner isolates her from her family and friends, monitors her every move, belittles and berates her, or denies her access to money to support herself and her children is not a victim of domestic violence in the eyes of Trump’s Department of Justice. This makes no sense for an office charged with funding and implementing solutions to the problem of domestic violence rather than merely prosecuting individual abusers.

January 24, 2019 in Violence Against Women | Permalink | Comments (0)

Dept of Labor Finds Oracle Systemically Underpaid Women Workers

Oracle Owes $400M to Women, Black, Asian Workers, Dept of Labor Says

Oracle Corp. shorted women and minority workers $400 million in wages by paying them less than other employees, steering them into jobs at lower-level positions, and imposing an “extreme preference” for immigrant visa holders, the Labor Department said in a new legal filing.

 

“Oracle has continued to systemically discriminate against employees and applicants based on gender and race,” Labor Department attorney Laura Bremer told an administrative law judge.

 

The allegations stem from a random 2014 audit by the Labor Department’s Office of Federal Contract Compliance Programs. The OFCCP, which enforces equal pay and other nondiscrimination requirements for federal contractors, first sued Oracle in January 2017.

 

Oracle declined Bloomberg Law’s request for comment. The company does about $100 million a year in federal contracting, according to the department.

 

Pay records obtained by the Labor Department show that Oracle paid women, black, and Asian employees less than others for similar jobs in information technology, product development, and support. The DOL said that appears to be in part because the company relied on workers’ prior pay histories to determine starting salaries. The department also said Oracle often starts women and black workers at “low-level jobs and low starting pay.”

 

The DOL further alleges that Oracle uses a recent college graduate hiring program to bring in droves of Asian visa holders, whom the company then pays less than their citizen counterparts.

 

Oracle “impermissibly denies equal employment opportunity to non-Asian applicants for employment, strongly preferring a workforce that it can later underpay,” Bremer said in the legal filing. “Once employed, women, blacks, and Asians are systematically underpaid relative to their peers.

January 24, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, January 23, 2019

NY Passes Law to Protect Access to Abortion Even if Roe is Overturned

New York Abortion Measure: State Moves to Protect Access to Abortion Even if Roe v. Wade is Overturned

On the 46th anniversary of Roe V. Wade, New York state passed a law to protect women's access to abortion if the historic case is overturned.

 
"Today we are taking a giant step forward in the hard-fought battle to ensure a woman's right to make her own decisions about her own personal health, including the ability to access an abortion. With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body," said Gov. Andrew Cuomo after signing New York's Reproductive Health Act on Tuesday night.
 
 
Not only will the law preserve access to abortions, it also removes abortion from the state's criminal code. This would protect doctors or medical professionals who perform abortions from criminal prosecution. The law also now allows medical professionals who are not doctors to perform abortions in New York.
 
 
"The old law had criminal penalties. It was written that the doctor or professional could be held criminally liable," Cuomo said during an interview on WNYC Wednesday.
 
The bill allows women to get abortions after 24 weeks if their life or health is threatened by the pregnancy in addition to permitting women to have an abortion at any time if the fetus is not viable, according to syracuse.com.

The law also regulates abortion under public health law, rather than criminal law, and allows licensed nurse practitioners, physician assistants and licensed midwives to conduct abortions, syracuse.com reported

 

Tuesday marked the 46th anniversary of Roe v. Wade and a new milestone for New York women. Governor Andrew Cuomo, a Democrat, signed the Reproductive Health Act into law after it passed both chambers of the state legislature earlier in the day. The bill updates New York’s abortion law, which predates Roe and regulates abortion in the state’s criminal code. “It’s bittersweet. There is a bitterness because we shouldn’t be here in the first place,” Cuomo said, according to the Albany Times-Union. “We should not have a federal government that is trying to roll back women’s rights … This administration (of President Donald Trump) defies American evolution.”

 

The RHA takes abortion out of the criminal code; the state will now regulate it as a matter of public health. It also expands the pool of medical professionals who are authorized to perform abortions and permits abortions after 24 weeks when the fetus is not viable or a woman’s health is at risk. Previously, women who needed later-term abortions to end nonviable pregnancies were forced to travel far outside the state — a financial and psychological burden. Separate from the RHA, Cuomo has pledged to amend the state constitution to include an affirmative recognition of the right to abortion, though that process will be a lengthy one. As Syracuse.com reported earlier this month, the state legislature has to approve the amendment, which would then go to voters for a referendum.

This is interesting put in historical context, as New York's criminalization of abortion passed in the mid-19th century was one of the leading restrictive laws in the country and one of the most studied.  See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012) (including sources cited therein).

January 23, 2019 in Abortion, Constitutional, Healthcare, Legislation | Permalink | Comments (0)

Reviewing Law and History on the Anniversary of Roe v. Wade

This is a good time to review your recollection of what this foundational case and its related constitutional law actually did.

For the decision and oral argument, see The Oyez Project.

For the excellent history leading up to Roe, a must read is Linda Greenhouse (NYT) and Reva Siegel (Yale), Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling (2012) (with documentary history).

For the history of abortion in the 19th century, when abortion before quickening (4 months) was generally available at common law until uniformly criminalized by the 1870s, see James Mohr  Abortion in America: Origins and Evolution of National Policy (Oxford U Press 1979) and Reva Siegel,  Reasoning From the Body: An Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992)

For a history of the immediate post-Roe aftermath, and the rise of so-called informed consent laws that we see exaggerated today, see my article on one of the first such laws in Akron, Ohio, Tracy A. Thomas, Back to the Future of Abortion Regulation in the First Term, 29 Wisconsin Journal of Law, Gender & Society 47 (2014)

January 23, 2019 in Abortion | Permalink | Comments (0)

Tuesday, January 22, 2019

How the Equal Rights Amendment is Still in Play

Garret Epps, The Equal Rights Amendment Strikes Again, The Atlantic

If you’re confused about the ERA’s status, that’s only natural. Until recently, the Equal Rights Amendment itself—the heart of it says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”—seemed like a dead letter. When Congress proposed the amendment in 1972, the resolution said it would become effective if approved by three-quarters of state legislatures “within seven years.”

 

At the time, ratification seemed a foregone conclusion; both parties had supported the ERA for nearly 20 years. But the nascent religious right mobilized to block it. Ratification stalled at 35 states—three short of the three-fourths majority required. In 1978, Congress passed a new resolution extending the deadline to June 30, 1982—but no new states ratified.

 

Since then, women’s advocates have repeatedly tried to get Congress to adopt a new ERA resolution and begin ratification anew—to no avail.

 

But advocates also formulated a new path to ratification, which they dubbed the “three-state strategy.” It is this: (1) Win ratification in three of the 15 states that have not yet ratified the amendment—thus bringing the total number of ratifications to 38, and then (2) Win passage of a congressional resolution retroactively extending the deadline.

 

Step one is nearly complete; the Nevada legislature approved the amendment in 2017, and Illinois did so in 2018. If Virginia approves it this time, the three-state strategists will ask Congress to pass a statute proclaiming that the measure has been approved by 38 states.

 

Then the real fight will start.

 

The “new” strategy is actually 25 years old. It has its roots in 1992, after the adoption of the Twenty-Seventh Amendment.

 

Quick! What is the Twenty-Seventh Amendment? Don’t worry, nobody remembers: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” It means that one Congress can’t vote itself a pay raise; it can only raise (or lower) the pay of the next Congress, thus requiring the members to face voters at the polls before pocketing extra cash.

 

Although this congressional-pay amendment entered the Constitution in 1992, it had actually been proposed by Congress two centuries earlier, in 1789....

 

All of this has led the ERA’s supporters to wonder: If the congressional-pay amendment could come back from the dead after two centuries, why not the ERA after a mere decade and a half? Since the ERA limit has already been changed once by Congress, why can’t another Congress change it again, retroactively?

 

The main theoretical work behind the three-state strategy is a student note by three University of Richmond students published in 1997. That’s a bit thin, but so was Watson’s term paper, and that led to the Twenty-Seventh Amendment. In fact, the process of constitutional adoption and amendment has since 1787 been marked by desperate improvisations and sudden power plays.

January 22, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

Renewed Efforts to Pass Equal Rights Amendment in Minnesota

Long Dormant, The Equal Rights Amendment has Awakened with Vigor

After decades of dormancy, the ERA soon is being considered in the Minnesota House with a majority of members in support. Senate companion bills will feature DFL and GOP co-authors, signaling a majority of the votes....

Two bills are before the state House: the Minnesota State ERA Bill, a constitutional amendment bill to embed an ERA into our state Constitution (HF13), and the Federal ERA Resolution to Congress to remove the deadline on the federal ERA (HF71).

 

The Minnesota State ERA Bill (HF13), authored by Rep. Mary Kunesh-Podein, DFL-New Brighton (with a companion bill authored by Sen. Richard Cohen, DFL-St. Paul), will add a section providing for gender equality in our state Constitution.

 

The impact would be to provide a constitutional basis for claims of gender-based violence, help create more realistic legal standards for sex discrimination in the workplace, ensure that women can work safely, have reasonable accommodation and earn much-needed income for themselves and their families during pregnancy, and address unjust laws that impact men. If passed, a question would be added to the general election ballot in 2020, the 100th anniversary of women’s gaining the right to vote.

Currently, 24 states have some kind of equal rights amendment language in their state constitutions. ERAs have existed in state constitutions for over 140 years and no federal law has been overturned because of them. Other states are poised to add an ERA. In Delaware, a state ERA may finally pass this month, and, in New York, Gov. Andrew Cuomo has made an equal rights amendment a priority in his first 100 days.

 

The Federal ERA Resolution to Congress (HF71), authored by Rep. Rena Moran, DFL-St. Paul (with a companion bill authored by Sen. Sandy Pappas, DFL-St. Paul), memorializes Congress to remove the arbitrary deadline of “June 30, 1982,” from the ERA. For a federal constitutional amendment to be made part of the U.S. Constitution, three quarters (or 38) of the states must ratify it. This country is now sitting at 37 states ratified. With the tremendous success ratifying the ERA in Nevada in 2017 and Illinois in 2018, huge strides have brought the ERA to a tipping point.

January 22, 2019 in Constitutional, Legislation | Permalink | Comments (0)

Supreme Court Stays Injunctions, Allowing Transgender Military Ban to Go into Effect Temporarily while Lawsuit Continues

Supreme Court Allows Trump Restrictions on Transgender Troops in Military to go Into Effect as Legal into Effect a Legal Battle Continues

The Supreme Court on Tuesday allowed President Trump’s broad restrictions on transgender people serving in the military to go into effect while the legal battle continues in lower courts.

 

The justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.

 

It reversed an Obama-administration rule that would have opened the military to transgender men and women, and instead barred those who identify with a gender different from the one assigned at birth and who are seeking to transition.

See also Supreme Court Allows Transgender Military Ban to be Enforced

 

The court’s five conservatives--Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh--allowed the restrictions to go into effect while the court decides to whether to consider the merits of the case.

 

The liberal justices--Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan--would have kept the injunctions in place.

 

Trump surprised even his own military advisers in July 2017 when he announced a sweeping ban on transgender people’s military service via Twitter. He cited what he viewed as the “tremendous medical costs and disruption.” The administration’s order reversed President Barack Obama’s policy of allowing transgender men and women to serve openly and receive funding for sex-reassignment surgery.

 

Attorneys for active-duty service members went to court to block the policy shift, which could subject current transgender service members to discharge and deny them certain medical care.

January 22, 2019 in Gender, LGBT, SCOTUS | Permalink | Comments (0)

Friday, January 18, 2019

Law's Expressive Role in Empowering Women and Victims of Online Abuse to Remain Online

Jon Penney & Danielle Keats Citron, When Law Frees Us to Speak, Fordham Law Review (forthcoming)

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyber harassment law’s salutary effects on women’s online expression. We consider the implication of those findings for victims of sexual privacy invasions.

January 18, 2019 in Pop Culture, Theory | Permalink | Comments (0)

Virginia Senate's Ratification of Equal Rights Amendment Brings Three-State Strategy within Reach

Virginia Senate Passes Federal Equal Rights Amendment

The GOP-led state Senate voted Tuesday to make Virginia the 38th and final state to ratify the federal Equal Rights Amendment.

 

The measure passed with bipartisan support, with seven Republicans joining Democrats on a 26-to-14 vote. The measure faces tougher odds in the House of Delegates and beyond, including hurdles related to long-expired deadlines for passage.

 

The legislation died last year in committee in both chambers, even though a majority of lawmakers in both the House and the Senate had signed on as co-sponsors. The full Senate has passed it five times in the past eight years, but it has never cleared the House.

 

The Senate resolution now heads to the House, where comparable House legislation remains in committee.

The Virginia Senate, however, has passed the ERA before, in 2011, 2012, and 2014.  So the real question is whether the House will do so.

The "three-state strategy" is a legal approach to passing the Equal Rights Amendment focused on getting three additional states to pass the ERA.  After Congress passed the ERA in 1972, ratification fell three states short (35 of the required 38) by the original deadline of 7 years.  Congress extended the deadline by 3 years to 1982, but no additional state passed the ERA during that time.

The current strategy assumes that the window of opportunity for ratification remains open, and that if three states ratify the ERA to meet the required 38, Congress could then accept those and/or reopen the deadline.  Nevada ratified the ERA in 2017; Illinois in 2018.  One argument in support of this approach is that the original deadline for the ERA was contained in the text of the preamble, rather than the text of the amendment, makes this possible.  A second argument is that the precedent of Congress extending the deadline once, making extension of the deadline possible.

The advocacy group "Equal Means Equal" explains the strategy and the need for the ERA on its website, documentary film, and book.    

The three-state strategy was initially articulated in a 1997 law review article by three students in the William & Mary Journal of Women and Law, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States.  The authors relied on an analogy to the 27th Amendment, the Madison Amendment regarding salaries for government officials.  The 27th Amendment was open for ratification in 1789, but not finalized until 203 years later when additional states finally signed on.  And so the additional state strategy does have precedent.

The American Bar Association has advocated in support of the ERA, and specifically in favor of Virginia ratified it.  See ABA President Urges Virginia Lawmakers To Ratify the ERA.  A 2016 American Bar Association Resolution explains more of this legal background: 

There remains considerable academic and political disagreement on whether the ERA can be revised and ratified by achieving ratifications of an additional three states’ under the 35- of 38-state tally noted above; to wit, a “three-state strategy.” 4 That strategy is discussed in a 1997 article called “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States” in the William & Mary Journal of Women and the Law. In 2013, a report of the Library of Congress's Congressional Research Service (Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Res. Serv., (May 9, 2013)) examined the legislative history and provided an analysis of the factors affecting its viability

It also explains one potential limitation on the strategy, if post-ratification rescissions of state affirmation in five states, Nebraska, Tennessee, Idaho, Kentucky, and South Dakota, are valid. 

(It is important to note that the U.S. Constitution is silent regarding a state's authority to rescind its ratification of a proposed, but not yet adopted, constitutional amendment.)

On Dec. 23, 1981, in Idaho v. Freeman, 529 F. Supp. 1107 (1981), the United States District Court for the District of Idaho ruled that the rescissions—all of which occurred before the original 1979 ratification deadline—were valid and that the ERA's deadline extension was unconstitutional. The National Organization for Women appealed the ruling. However, the acting solicitor general reported to the Court that the administrator of general services concluded the ERA had not received the required number of ratifications, so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here." He urged the Court to dismiss the complaint. On Oct. 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court vacated the ruling in Idaho v. Freeman and declared the entire matter moot on the grounds that the ERA was dead for the reason given by the administrator of general services.

Looking to precedent of the Fourteenth Amendment, several states sought to rescind their endorsement of that Civil Rights Amendment after ratification, but Congress still included those states in the list of enacting states, suggesting that the ratification was not effective.

For the longer history of the ERA, up until the present lobbying action, see my book chapter: Tracy A. Thomas & TJ Boisseau, After Suffrage Comes Equal Rights?  ERA as the Next Logical Step, in One Hundred Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism" (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)

 

January 18, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Thursday, January 17, 2019

Podcast: The Ginsburg Tapes

The Ginsburg Tapes

The Ginsburg Tapes is a podcast about Ruth Bader Ginsburg’s oral arguments in the Supreme Court—before she became #NotoriousRBG.

 

Specifically, from 1972-1978, Ginsburg argued six cases in the Supreme Court.  In each case, she and the ACLU Women’s Rights Project brought constitutional challenges to laws treating men and women differently.  Ginsburg’s goal was to show the ways in which laws which seemed on their face to benefit women actually perpetuated stereotypes and held women back from full participation in American life.

 

For all six cases, Lauren breaks down the real recordings of the oral arguments.  The tapes allow listeners to be a fly on the wall, to teleport to that moment in history.  Listeners can hear Ginsburg make her case, and listen to reactions from the all-male Supreme Court.  You’ll hear from liberal icons like Justice Thurgood Marshall and Justice William Brennan, and conservative icons like Chief Justice Warren Burger and then-Justice William Rehnquist, as they grapple out loud with what the Constitution means.  In each episode, Lauren talks about history, effective advocacy, constitutional change, the power of the Supreme Court, and gender equality.

January 17, 2019 in Constitutional, Judges, SCOTUS, Women lawyers | Permalink | Comments (0)

The Role of the National Women's Lawyers Association in Advocating No-Fault Divorce in the 1950s

Laura Oren, No-Fault Divorce Reform in the 1950s: The Lost History of the "Greatest Project" of the National Association of Women Lawyers, 36 Law & History Review 847 (2018)

This Article is about the lost history of a campaign by the National Association of Women Lawyers (NAWL) to achieve uniform no-fault divorce law reform in the United States. In one form or another, NAWL has existed continuously since before 1911, when it began to publish the Women Lawyers Journal. From its Progressive era origins until today, NAWL has pursued a women's rights agenda within a professional framework.
 
Although prior to ratification of the Nineteenth Amendment in 1920 women's suffrage was a key issue for the women lawyers, even then it was far from the only one. Both before and also after suffrage, the Journal reflected the wide-ranging interests of NAWL members, such as legal doctrines in many areas of practice (including divorce), the education of female lawyers, the advancement of women in the profession and in society, and the protection of women and children. From the 1930s through the 1950s, NAWL also played an active role in two postsuffrage women's rights struggles, the campaigns for female jury service and for the Equal Rights Amendment (ERA).
 
This history makes it particularly interesting that when the organization undertook what its own chronicler described as “the greatest project NAWL has ever undertaken,” it was about divorce law. In 1947, *849 NAWL voted “to draft and promote a bill that would embody the ideal of no-fault divorce.” Instead of the contortions and invitation to perjury in the existing patchwork of fault-based divorce statutes, NAWL sought a uniform model act that would check the evils of migratory divorce and promote national uniformity. It would reflect a more contemporary understanding of the complex causes of marital breakdown, it would operate in the modern spirit of conciliation, and it would be “therapeutic” in its procedure. Despite their belief in its innovative nature, the women lawyers later insisted that the bill that they had designed was “not as revolutionary as appears at first glance.” In their view, it was “new chiefly in its attitude and treatment of divorce and in the ‘therapeutic approach’ which has been adopted.” “Otherwise,” they said, “the Bill represents a restatement of the best case law and statutory law to be found throughout the forty-eight states.”
 
After NAWL formally approved its model bill in 1952, the women lawyers sought consideration for their proposed Uniform Divorce Act by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The conference, an influential private body of distinguished members of the legal profession devoted to developing and promoting uniform model acts for the states to adopt, refused to consider the NAWL proposal unless it was submitted by a section of the American Bar Association (ABA). It took years for NAWL to overcome that hurdle by successfully leading the way to the establishment of the Family Law Section of the ABA. Even when NAWL finally was able to submit its proposal, however, NCCUSL continued to bypass the women lawyers and their bill.
 
The lost history of NAWL's greatest project intersects with three historical inquiries about the 1950s. It interrogates narratives about (1) the history and state of divorce law at that time, (2) the alleged culture of “domesticity” in the decade, and (3) the continuity of women's movement activism in the so-called “doldrums” years. Although there are extensive historical literatures in each of these three areas, to date there has been *850 no scholarly study of NAWL's “no-fault” divorce reform proposal or of NAWL's role as an activist professional and women's rights organization. This article recovers NAWL's lost history and explores how it fits into the gaps.

January 17, 2019 in Family, Women lawyers | Permalink | Comments (0)

Questioning the Required Cross-Examination of the Proposed Dept of Ed Guidelines on College Sexual Assault Cases

Suzanne Goldberg, Keep Cross-Examination Out of College Sexual Assault Cases

Requiring cross-­examination in campus sexual-­misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-­examination "the greatest legal engine ever invented for the discovery of truth." Although this new mandate might seem at first like a good idea, a closer look shows otherwise.

 

The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.

 

But the new regulations would change this by requiring colleges to allow each student’s adviser to do the questioning of the other student or anyone else involved in the case — not as a neutral party but as an adversary. This means that parent-advisers would have government-sanctioned authority to question their child’s accuser or alleged assailant, and a student could wind up cross-examining another student, even on the same small campus.

January 17, 2019 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, January 16, 2019

Professional Ethics' Limitations on Non Disclosure Agreements for Sexual Harassment

Ethics and NDAs: A CELs Think Tank Report

This document considers the ideas emerging from a Centre for Ethics and Law think tank on nondisclosure agreements and lawyers' professional ethics in the light of the #MeToo and associated scandals.

It considers the use of unlawful and marginal NDA clauses, the processes of negotiating and executing such agreements, and issues to be considered by lawyers and those regulating them.

In broad terms the following clauses were all seen as problematic:


a. Restrictions on reporting to the police, regulators and other authorities including giving the other party notice before doing so.


b. Limits on the ability of the individual party to seek professional advice or counselling after entering into the agreement because the confidentiality agreement is too stringent.


c. Clawback / forfeiture clauses under which in the event of breach of confidentiality, derogatory statements or nonassistance provisions settlement monies may be forfeited and, if already paid, required to be repaid, potentially with costs of recovery, especially if coupled with other aggressive terms.


d. Terms that are legally potentially unenforceable – e.g. blanket confidentiality provisions and clawback provisions, as well as restrictions on reporting potentially criminal behaviour to the police or making any “protected disclosures” under whistleblowing legislation.


e. Restrictions on keeping a copy.

January 16, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Unofficial Reporting in the #MeToo Era

Deborah Tuerkheimer, "Unofficial Reporting in the #MeToo Era" , University of Chicago Legal Forum, Forthcoming

In the age of #MeToo, victims of sexual misconduct are coming forward en masse to allege abuse, finding strength in numbers and a growing cultural responsiveness to their claims. Facilitated by innovative technologies, #MeToo is also sparking the creation of new channels for reporting abuse—channels intended to bypass the laws and rules that prohibit sexual misconduct. To make sense of this unexamined development, a proposed taxonomy classifies informal avenues of complaint into four distinct categories: the Traditional Whisper Network, the Double Secret Whisper Network, The Shadow Court of Public Opinion, and the New Court of Public Opinion. While unofficial reporting can advance important ends, the rise of informal accusation also raises concerns that bear directly on the need to enhance formalized accountability for sexual assault and harassment

January 16, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Remembering Judge Patricia Wald, First Woman on the DC Circuit

Patricia Wald, Pathbreaking Federal Judge Who Became Chief of DC Circuit, Dies at 90

Shortly before she graduated from Yale Law School in 1951, Patricia Wald secured a job interview with a white-shoe firm in Manhattan. The hiring partner was impressed with her credentials — she was one of two women on the law review — but lamented her timing.

 

“It’s really a shame,” she recalled the man saying. “If only you could have been here last week.” A woman had been hired then, she was told, and it would be a long time before the firm considered bringing another on board.

 

Gradually, working nights and weekends while raising five children, she built a career in Washington as an authority on bail reform and family law. Working for a pro bono legal services group and an early public-interest law firm, she won cases that broadened protections for society’s most vulnerable, including indigent women and children with special needs.

 

She became an assistant attorney general under President Jimmy Carter, who in 1979 appointed her to the U.S. Court of Appeals for the District of Columbia Circuit — often described as the country’s most important bench after the U.S. Supreme Court. She was the first woman to serve on the D.C. Circuit and was its chief judge from 1986 to 1991. Later, she was a member of the United Nations tribunal on war crimes and genocide in the former Yugoslavia.

 

Judge Wald, whom Barack Obama called “one of the most respected appellate judges of her generation” when he awarded her the Presidential Medal of Freedom in 2013.

January 16, 2019 in Courts, Judges | Permalink | Comments (0)