Gender and the Law Prof Blog

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

Friday, May 29, 2020

New Study Shows Gender Impacts Scholarly Influence and Citation in Law

Caroline Osborne & Stephanie Miller, The Scholarly Impact Matrix: An Empirical Study of How Multiple Metrics Create an Informed Story of a Scholar's Work

Does gender impact citation and exposure?

a. Does gender impact citation?

Another important observation is that men are more likely to be in the frequently and significantly cited intervals than women. At the significantly cited level men are fourteen percent, on average, more likely to be cited. At the frequently cited interval men are eight percent, on average, more likely to be cited. This suggests that men have a citation advantage at both frequently and significantly cited intervals. These results are in contrast to another recent study that finds there is no gender citation advantage in legal scholarship. Christopher A. Cotropia and Lee Petherbridge, Gender Disparity in Law Review Citation Rates, 59 WM. & MARY L. REV. 771 (2018) (study exploring gender disparity in scholarly influence).

b. Does Gender impact exposure in an IR or on SSRN?

Gender provides an advantage in exposure to men at the frequently and significantly downloaded intervals with a twelve percent advantage to men in the frequently downloaded interval on SSRN. That advantage evaporates at the significantly downloaded interval on SSRN with men and women enjoying parity. The twelve percent advantage at the frequently downloaded interval is significant when recalling that the frequently downloaded interval is the interval with the greatest number of downloads and thus, arguably, the interval demonstrating the greatest impact. The absence of a difference in downloads between men and women on SSRN at the significantly downloaded interval was the anticipated result. As noted in the discussion on gender and citation, a 2018 study suggests that there is no gender bias in citations to legal scholarship. Id.

May 29, 2020 in Gender, Scholarship, Women lawyers | Permalink | Comments (0)

Thursday, May 28, 2020

What I'm Watching Today, Thursday, at Law & Society on Gender & Law

Law & Society Association, Virtual Conference Program

Gender and Punishment

May 28 - 11:00 AM - 12:45 PM
Moving away from antiquated perspectives that neglected to study gender because there were "so few" women in the criminal justice system, these papers use feminist perspectives to examine disparate treatment, gender gaps, and punitivism.
Chair/Discussant(s) Rupali Samuel, LLM, Harvard Law School

Gender Equality and the Shifting Gap in Female-To-Male Incarceration Rates
Presenter(s) Heather McLaughlin, Oklahoma State University
Co-Presenter(s) Sarah Shannon, University of Georgia
 

Negotiating Criminal Records: Access to Employment for Reintegrating Women in Canada
Presenter(s) Anita Grace, Carleton University

 

The Gap Between Correctional Law & Practice: An Intersectional Feminist Analysis
Presenter(s) Alexis Marcoux Rouleau, Université de Montréal

 

The Gendered Economy of Prison Intimacy
Presenter(s) Joss Greene, Columbia University

 

Moving Rules: Struggles for Reproductive Justice on Uneven Terrain

May 28 - 11:00 AM - 12:45 PM
Moving Rules will consider how recent developments in the struggle for reproductive justice in Argentina, Poland, Ireland and Mozambique contribute to our understanding of legal rules as complex entities that move as they are made. The papers will consider how rules move across space and time as they are made through feminist cause lawyering, witnessing legal reproduction, communist legacies, and oppositional legal consciousness.
Chair(s) Paola Bergallo, Universidad Torcuato Di Tella
Discussant(s) Ruth Fletcher, Queen Mary University of London
Presentations

Building Democracy and Legal Change: A Study of Feminist Cause Lawyering in Argentina
Presenter(s) Paola Bergallo, Universidad Torcuato Di Tella

 

We Were Communists - Historical, Political, and Ideological Determinants of Sexual Reproductive Rights
Presenter(s) Carmeliza Rosario, CMI / Centre on Law and Social Transformation

 

Witnessing Legal Reproduction
Presenter(s) Ruth Fletcher, Queen Mary University of London

 

Sexual Harassment: Victims and Survivors

May 28 - 11:00 AM - 12:45 PM

Sexual harassment and violence are pervasive problems in various institutional spheres. Many victims and survivors are discounted and ignored. The papers in this session explore a range of questions involving victims and survivors of sexual harassment, such as: what obstacles has the #MeToo movement encountered when confronting sexual assault and harassment in the military? What roles do and should victim impact statements have in revealing systemic institutional sexual abuse in specific cases and shaping broader policy to meet the needs of victims? What role does time have in shaping a victim's experience of sexual violence? Does the law represent an adequate feminist response to such violence? How do innovative multi-media exhibits,provide new ways for observers and bystanders to listen to survivors' stories and experiences?
Chair(s) Julie Goldscheid, City University of New York
Discussant(s) I. India Thusi, California Western School of Law
Presentations

#MeToo, Confronts Culture, and Complicity in the Military
Presenter(s) Rachel Van Cleave, Golden Gate University School of Law

 

From "Larry" the "Monster" to Sisterhood: What the Nassar Victim Impact Statements Reveal About Systemic Institutional Sexual Abuse
Presenter(s) Jamie Abrams, University of Louisville
Non-Presenting Co-Author(s) Amanda Potts, University of Cardiff

 

Multiracial Women, Sexual Harassment, and Gender-Based Violence
Presenter(s) Nancy Cantalupo, Barry University Dwayne O. Andreas School of Law

 

Sexual Harassment, Workplace Culture, and the Power and Limits of Law
Presenter(s) Suzanne Goldberg, Columbia University

 

Female Judges in Five Fragile States

May 28 - 02:15 PM - 04:00 PM
In post-conflict and transitional developing countries, situations of political rupture may create new opportunity structures that favour the entry of women into public positions of power. Post-conflict assistance often includes gender friendly rule of law reforms, and the conflict itself may have placed rights issues in focus. How these conditions affect women's access to, and utilization of, positions of judicial power has not received much scholarly attention. This session explores three main questions regarding women judges in five fragile and conflict-related states: Angola, Afghanistan, Guatemala, Haiti, and Uganda: (1) What are the main pathways of women judges to the bench? (2) What are the gendered experiences of women on the bench? (3) How and in what ways does having more women on the bench impact on judicial outcomes?
Chair(s) Paola Bergallo, Universidad Torcuato Di Tella
Discussant(s) Ulrike Schultz, Fernuniversitat in Hagen

Presentations

Female Judges in Angola: When Party Affiliation Trumps Gender
Presenter(s) Elin Skaar, Chr. Michelsen Institute
Non-Presenting Co-Author(s) Aslak Orre, Chr. Michelsen Institute

 

Women Magistrates in Haiti: Challenging Gender Inequality in a Frail Justice System
Presenter(s) Marianne Tøraasen, Chr. Michelsen Institute

 

Women on the Bench in Afghanistan: Equal but Segregated?
Presenter(s) Torunn Wimpelmann, Chr Michelsen Institute
Non-Presenting Co-Author(s) Antonio De Lauri, Chr. Michelsen Institute

 

Women on the Bench in Guatemala: Between Professionalization and State Capture
Presenter(s) Ana-Isabel Braconnier, University of Texas at Austin, Rachel Sieder, CIESAS

 

Women on the Bench – Perspectives from Uganda
Presenter(s) Pilar Domingo, Overseas Development Institute
Non-Presenting Co-Author(s) Siri Gloppen, University of Bergen

 

May 28, 2020 in Conferences, Gender, Judges, Reproductive Rights, Workplace | Permalink | Comments (0)

A New Proposal to Redress the Gender Disparity in Registered Patents

Miriam Marcowitz-Bitton, Yotam Kaplan, Emily Michiko Morris, Unregistered Patents and Gender Equality, 43 Harvard J. Law & Gender 47 (2020)

Women do not get a fair share when it comes to patenting and are far less likely to own patents. This disparity is in part because of not only the inherent biases in science and technology and in the patent system itself, but
also because of the high costs of even applying for patents. This article therefore proposes an unconventional new regime of unregistered patent rights to relieve women and other disadvantaged inventors of the costs of
applying for registered patent rights and to help them gain greater access to patent protections. Patents are a glaring exception to the unregistered protections provided in other areas of intellectual property, which are more
egalitarian in design. By providing automatic patent rights, our proposed regime would allow for greater protection for disadvantaged innovators, in much the same way that copyright, trademark, and other forms of intellectual property currently do.

 

To explain our proposal, we detail the challenges facing women and other disadvantaged inventors in applying for patents as well as the fact that other intellectual property regimes do not require such applications. We also
address a number of objections that our proposal would inevitably raise. In particular we show that, because our proposed unregistered patent system would grant rights for only three years and would protect only against direct copying, these rights would be unlikely to deter incremental or complementary innovation. Such rights would also be fully subject to invalidation under a preponderance of the evidence standard.

 

Our proposed regime does not solve all of the issues female innovators face. Nonetheless, our proposed regime would benefit women and others by providing protection at no cost, without filing or renewal fees, and equally
importantly, by protecting even inventors with little or no knowledge of the patent system and its importance in realizing the benefits of their inventive efforts.

May 28, 2020 in Business | Permalink | Comments (0)

The Legitimacy of Agency Implementation of Title IX

Samuel Bagenstos, Legitimacy and Agency Implementation of Title IX, 42, Harvard J. Law & Gender (2020)  

Because Title IX of the Education Amendments of 1972 involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), the administration of that statute by the Department of Education's Office for Civil Rights has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have drawn the most controversy in this regard: gender equity in intercollegiate athletics; transgender students’ rights; and sex-based harassment and assault on college campuses. This symposium essay argues that the critique is misplaced. One may agree or disagree with OCR’s applications of Title IX in these three key areas. But these applications are not illegitimate. To the contrary, they are implementation decisions made consistent with the longstanding “core” conception of discrimination — intentional disparate treatment. These decisions are inherently contestable, because even the “core” conception can be instantiated in many ways. But there are strong reasons to believe that OCR is best positioned to choose which instantiations to adopt. This essay thus shows how disputes over Title IX implicate broader questions of what discrimination means, as well as broader debates involving the legitimacy of the administrative state.

May 28, 2020 in Education | Permalink | Comments (0)

Doctors File Lawsuit to Lift Restrictions on Abortion Pill During Pandemic

Lawsuit Asks FDA to Lift Restrictions on Abortion Pill During Pandemic

Reproductive rights advocates are suing the Trump administration, asking a federal court to suspend restrictions on the abortion drug mifepristone during the coronavirus pandemic.

 

The drug mifepristone was approved by the U.S. Food and Drug Administration 20 years ago for use in medication abortions in early pregnancy. It's also used to help manage miscarriages for some women trying to avoid surgery.

 

In a federal lawsuit filed in Maryland on behalf of the American College of Obstetricians and Gynecologists (ACOG) and other groups, the American Civil Liberties Union requests an emergency order lifting regulations requiring patients in the United States to pick up the drug at a hospital or medical facility.

 

Julia Kaye, an attorney with the American Civil Liberties Union, said that requirement is putting patients at risk during the COVID-19 pandemic.

 

"A patient who has already been evaluated by a clinician, either through telemedicine or at a prior in person visit, still must make this entirely unnecessary trip just to pick up their prescription," Kaye said during a conference call announcing the lawsuit.

 

ACOG supports lifting the restrictions, called the Risk Evaluation and Mitigation Strategy or REMS, and has said they are medically unnecessary to preserve patient safety. In 2017, the ACLU filed a federal lawsuit in Hawaii, seeking to force the FDA to remove the REMS for mifepristone.

 

But this new lawsuit is more narrow, Kaye said, in asking the court to suspend the rules during the pandemic only. The lawsuit asks for an emergency order allowing the mifepristone to be dispensed through the mail or by pharmacies. It notes that in other areas of medicine, federal agencies "have taken substantial action ... to encourage telemedicine use" and "forego unnecessary in-person visits" during the coronavirus crisis.

May 28, 2020 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Wednesday, May 27, 2020

The Strong Public Support for the ERA, Except for the Insurance Industry

Carrie Baker, Ms., Reports of the ERA's Death Have Been Greatly Exaggerated

This is the final installment in a six-part series examining the half-century fight to add women to the U.S. Constitution—and a game plan on where we go from here.

Get caught up:

But today, despite resistance from Republicans in Congress and from the Trump administration, public support for the ERA is currently sky-high: The American Bar Association’s (ABA) 2020 Survey of Civic Literacy showed that a wide majority of respondents—83 percent—believe the Equal Rights Amendment (ERA) should be ratified and incorporated into the U.S. Constitution. Only 8 percent opposed.

“That’s a powerful statement about what the public believes in,” said ABA president Judy Perry Martinez, for it “tells us is that Americans believe in equal rights for women and they know that until those words are in our Constitution, those equal rights will not in fact be believed and achieved by all.”

But, just like in the initial push for the ERA in the 1970s, opposition from business interests, especially the insurance industry, are ERA enemy number one.

“‘Women’s equality’ is not just words,” Smeal says. “It means real things, especially in the area of money. It means you have to stop discriminating against women in employment and in annuities, life insurance and health insurance. It involves billions and billions of dollars.”

Of course, earlier this year, under the leadership of Speaker Nancy Pelosi (D-Calif.), the House of Representatives voted to remove the arbitrary time line for the ERA with a bipartisan 232–183 vote.

“With this resolution, we take a giant step toward equality for women, progress for families and a stronger America—because we know when women succeed, America succeeds,” Pelosi said at a press conference ahead of the vote.

Meaning this fall, all eyes will be on the Senate.

May 27, 2020 in Constitutional, Legal History, Pop Culture | Permalink | Comments (0)

Podcast: Feminist Prosecutors and their Feminist Detractors

Podcast, Feminist Prosecutors and their Feminist Detractors

One prosecutor in rural Maine is trying to change the norms of evidence around prosecutions for domestic violence and sexual assault—she wins, even when she loses. In the era of progressive prosecution, two different historical injustices are pulling prosecutors in opposite directions. Patriarchy has kept too many men from being prosecuted for gender-based crimes, while tough-on-crime policing has resulted in too many men being prosecuted for other crimes. This week we look at what it means to be a feminist prosecutor, and whether advocacy for more policing and prosecution on behalf of women can backfire for progressive causes. Guest voices include Maine District Attorney Natasha Irving, Villanova law professor Michelle Madden Dempsey, University of Colorado law professor Aya Gruber, and University of Maryland law professor Lawrence Sherman.

In Slate Plus, Sarah Lustbader, senior legal counsel at the Justice Collaborative and contributor at the Appeal, and Barry talk about whether the adversarial system of prosecution and defense makes the criminal justice system a bad way to pursue improvements in gender relations and reduce gender-based crime.

May 27, 2020 in Courts, Theory, Women lawyers | Permalink | Comments (0)

What I'm Watching Today at Law & Society on Gender & the Law

#MeToo: The Narrative of Resistance Meets the Rule of Law

May 27 - 01:00 PM - 02:45 PM
Plenary Session

The purpose of the panel is to explore the contemporary cultural, political, social, and legal space that #MeToo occupies, including its limitations and possibilities. Participants will also compare the #MeToo movement to other popular social movements like #BlackLivesMatter, drawing parallels and convergences, and engaging with some of the controversies that have accompanied #MeToo.

Moderator(s)

Julie Suk, The Graduate Center, CUNY



Chair(s)

Penelope Andrews, New York Law School



Participant(s)

Brenda Cossman, University of Toronto

Farnush Ghadery, King's College

Teri McMurtry Chubb, Mercer University School of Law

Ruthann Robson, City University of New York (CUNY School of Law)

May 27, 2020 in Conferences, Pop Culture, Workplace | Permalink | Comments (0)

Tuesday, May 26, 2020

Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment

Deborah Epstein, Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment" 

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited attention to a factor that goes straight to the heart of the problem: our reflexive inclination to discount the credibility of women, especially when those women are recounting experiences of abuse perpetrated by more powerful men. We will not succeed in ending gender-based workplace discrimination until we can understand and resist this tendency and begin to appropriately credit survivors’ stories.

How does gender-based credibility discounting operate? First, those charged with responding to workplace harassment--managers, supervisors, union representatives, human resource officers, and judges—improperly discount as implausible women’s stories of harassment, due to a failure to understand either the psychological trauma caused by abusive treatment or the practical realities that constrain women’s options in its aftermath. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on their demeanor (as affected by the trauma they often have suffered); on negative cultural stereotypes about women’s motives for seeking redress for harms; and on our deep-rooted cultural belief that women as a group are inherently less than fully trustworthy.

The impact of such unjust and discriminatory treatment of women survivors of workplace harassment is exacerbated by the larger “credibility economy”—the credibility discounts imposed on many women-victims can only be fully understood in the context of the credibility inflations afforded to many male harassers. Moreover, discounting women’s credibility results in a particular and virulent set of harms, which can be measured as both an additional psychic injury to survivors, and as an institutional betrayal that echoes the harm initially inflicted by harassers themselves.

It is time—long past time--to adopt practical, concrete reforms to combat the widespread, automatic tendency to discount women and the stories they tell. We must embark on a path toward allowing women who share their experiences of male abuses of workplace power to trust the responsiveness of their employers, judges, and our larger society.

May 26, 2020 in Equal Employment, Workplace | Permalink | Comments (0)

New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia

Presumed Incompetent II:Race, Class, Power, and Resistance of Women in Academia

The courageous and inspiring personal narratives and empirical studies in Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia name formidable obstacles and systemic biases that all women faculty—from diverse intersectional and transnational identities and from tenure track, terminal contract, and administrative positions—encounter in their higher education careers. They provide practical, specific, and insightful guidance to fight back, prevail, and thrive in challenging work environments. This new volume comes at a crucial historical moment as the United States grapples with a resurgence of white supremacy and misogyny at the forefront of our social and political dialogues that continue to permeate the academic world.

Contributors: Marcia Allen Owens, Sarah Amira de la Garza, Sahar Aziz, Jacquelyn Bridgeman, Jamiella Brooks, Lolita Buckner Inniss, Kim Case, Donna Castaneda, Julia Chang, Meredith Clark, Meera Deo, Penelope Espinoza, Yvette Flores, Lynn Fujiwara, Jennifer Gomez, Angela Harris, Dorothy Hines, Rachelle Joplin, Jessica Lavariega Monforti, Cynthia Lee, Yessenia Manzo, Melissa Michelson, Susie E. Nam, Yolanda Flores Niemann, Jodi O’Brien, Amelia Ortega, Laura Padilla, Grace Park, Stacey Patton, Desdamona Rios, Melissa Michal Slocum, Nellie Tran, Rachel Tudor, Pamela Tywman Hoff, Adrien Wing, Jemimah Li Young

For the first volume, see Presumed Incompetent: The Intersections of Race and Class for Women in Academia

May 26, 2020 in Books, Education, Race, Workplace | Permalink | Comments (0)

How the Gender Pay Gap Affects Black Women in Law

LaCrisha McAllister, "Quarters in the Court: How the Gender Pay Gap Affects Black Women in Law" 

Women constitute almost half of the national workforce. For half of American families, they are the sole source of income or they are a co-breadwinner. They earn more degrees than men. They work in a broad spectrum of professions and industries and they serve in a multitude of capacities, from administrators to upper management to laborers and everything between. Despite these things, women are paid significantly less than their male counterparts. Efforts to address this have been fodder for discussion for some time. Currently, less than 1% of elected prosecutors are Black women, less than 8% of judges are Black Women in State Trial Courts and State Appellate courts respectively, and a report from the National Association for Law Placement found that Black Women make up about 1.73% of all attorneys included in their survey. This paper seeks to address the ways that the Gender Pay Gap affects Black women in the legal field and how the legal profession can place equity in pay at the base of its mission.

May 26, 2020 in Equal Employment, Race, Women lawyers | Permalink | Comments (0)

Court Strikes Down Florida Felon Pay-to-Vote Law, but Rejects 19th Amendment Claim of Gender Discrimination

Press Release, In a Victory for Voting Rights, Federal Court Rules that Florida's Pay-to-Vote System is Unconstitutional 

The full opinion is here: Jones v. DeSantis (N.D. Fla. 2020)

I want to think more about the new opinion from a federal district court dismissing women voters claims under the 19th Amendment.  Two issues strike me on an initial read.

1.  The court says there is no reason to treat the 19th differently from the 15th or 14th.  This conclusion results in requiring an intentional state of mind for gender discrimination under the 19th Amendment.  The standard of discriminatory purpose is a requirement of proving gender discrimination under the 14th Amendment, and the court says also for the 15th.  However, reading in the historical context may raise a question here.  SCOTUS explicitly held in Minor v. Happersett (1874) that the 14th Amendment did not apply to women's state voting rights.  Reading the 14th Amendment standards into the 19th, seems to do just this.  There is also some significant history on the 19th A itself that might suggest a different conclusion.

2.  It is troubling the court discounts the gender discrimination claim by focusing on the impact on men.   The court notes that more men than women are felons, so more men generally are impacted by the law.  Rather than comparing the two groups similarly situated -- felons -- and then addressing the discrimination against those women felons.  This focus on men, rather than the women plaintiffs in a case, was also seen recently in the US Women's Soccer pay discrimination case.  It may represent an emerging litigation trend of dismissing, both legally and socially, women's claims of disparate impact.  

Here is the court's 19th Amendment claim analysis:

XII. Gender Discrimination


The McCoy plaintiffs assert the pay-to-vote requirement discriminates against women in violation of the Fourteenth Amendment’s Equal Protection Clause and violates the Nineteenth Amendment, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of sex.”

 

To prevail under the Fourteenth Amendment, the plaintiffs must show intentional gender discrimination—that is, the plaintiffs must show that gender was a motivating factor in the adoption of the pay-to-vote system. This is the same standard that applies to race discrimination, as addressed above.


The plaintiffs assert the Nineteenth Amendment should be read more liberally, but the better view is that the standards are the same. The Nineteenth Amendment was an effort to put women on the same level as men with respect to voting, just as the Fifteenth Amendment was an effort to put African American men on the same level as white men. Indeed, the Nineteenth Amendment copied critical language from the Fifteenth, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” As is settled, a claim under the Fifteenth Amendment requires the same showing of intentional discrimination as the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1187 n.8 (11th Cir. 1999) (stating “vote dilution, vote denial, and traditional race discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of intentional discrimination”). In sum, there is no reason to read the Nineteenth Amendment differently from the Fifteenth.

 

On the facts, the plaintiffs’ theory is that women with felony convictions, especially those who have served prison sentences, are less likely than men to obtain employment and, when employed at all, are likely to be paid substantially less than men.  The problem is even worse for African American women. This pattern is not limited to felons; it is true in the economy at large.

 

As a result, a woman with LFOs is less likely than a man with the same LFOs to be able to pay them. This means the pay-to-vote requirement is more likely to render a given woman ineligible to vote than an identically situated man.

 

This does not, however, establish intentional discrimination. Instead, this is in effect, an assertion that the pay-to-vote requirement has a disparate impact on women. For gender discrimination, as for race discrimination, see supra Section IX, disparate impact is relevant to, but without more does not establish, intentional discrimination. Here there is nothing more—no direct or circumstantial evidence of gender bias, and no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.

 

Moreover, the pay-to-vote requirement renders many more men than women ineligible to vote. This is so because men are disproportionately represented among felons. As a result, even though the impact on a given woman with LFOs is likely to be greater than the impact on a given man with the same LFOs, the pay-to-vote
requirement overall has a disparate impact on men, not women. Even if disparate impact was sufficient to establish a constitutional violation, the plaintiffs would not prevail on their gender claim.

 

May 26, 2020 in Constitutional, Legislation | Permalink | Comments (0)

Friday, May 22, 2020

A History of Women Law Professors: The First Century, 1896 to 1996

Catherine Lanctot, Women Law Professors: The First Century,  Villanova Law Review, Vol. 65, Forthcoming

This article addresses the history of women as law professors from 1896 to 1996. It discusses the discrimination faced by women in legal academia over time, and also illustrates the contributions women have made to legal education.

Before we can look forward to undertake the necessary steps to ensure full equality for women in law teaching, it might benefit us to look backward. It is important to remember that law schools admitted women into the professoriate reluctantly, largely because of the threat of legal action in the early 1970s, and that the attitudes that required such drastic action persisted for many years. An examination of how women first entered the profession, the hurdles they tried to overcome, and how changes over time have reduced, but not eliminated, unequal treatment, could better inform our efforts going forward. This Article is a first step in presenting
this history.

 

My motivation in pulling this material together came initially because there was no one source containing a basic overview and chronology of women in legal academia that could be used as a starting point. Much work has been done on many discrete topics relating to the history of women in law schools, and there is much more work that could be done. Although I have tried in this Article to present as much information as I could for an initial examination of the topic, I remain painfully aware that there are many areas that merit further elaboration. One
way to accomplish that objective would be to redouble the effort to obtain oral histories from women who are retired or approaching the end of their careers, as these reports have been invaluable in shaping the material that follows.

May 22, 2020 | Permalink | Comments (0)

Why This Recession is a "She-cession"

NYT, Why Some Women Call This Recession a "Shecession"

The unemployment numbers released on Friday confirmed what we had all anticipated: The economic crisis brought on by the coronavirus pandemic is staggering, or as one research analyst at Bank of America put it to The Times, “literally off the charts.”

 

The scale of the crisis is unlike anything since the Great Depression. And for the first time in decades, this crisis has a predominantly nonwhite, female face.

 

“I think we should go ahead and call this a ‘shecession,’” said C. Nicole Mason, president and chief executive of the Institute for Women’s Policy Research, in a nod to the 2008 recession that came to be known as the “mancession” because more men were affected.

 

Women accounted for 55 percent of the 20.5 million jobs lost in April, according to the Bureau of Labor Statistics, raising the unemployment rate for adult women to about 15 percent from 3.1 percent in February. In comparison, the unemployment rate for adult men was 13 percent.

 
Women of color fared worse, with unemployment rates for black women at 16.4 percent and Hispanic women at 20.2 percent.
 
 
According to an analysis by the National Women’s Law Center, this is the first time since 1948 that the female
unemployment rate has reached double digits.
 

The April jobs represent an abrupt, disappointing reversal from a major milestone in December, when women held more payroll jobs than men for the first time in about a decade.

 

The biggest reason for these losses is that the industries hardest hit by the pandemic — leisure, hospitality, education and even some parts of health care — are “disproportionately nonwhite and female,” said Diane Lim, senior adviser for the Penn Wharton Budget Model, a nonpartisan research initiative.

May 22, 2020 in Business, Equal Employment, Pop Culture | Permalink | Comments (0)

BelieveWomen and the Presumption of Innocence

Kimberly Kessler Ferzan, #BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life, forthcoming NOMOS: Truth and Evidence

The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.

First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I spend additional time on one particular interpretation, an understanding that ties a cry for trust to a non-reductionist position with respect to the justification for believing testimony — that is, the idea that we have reason to believe someone, and are justified in so doing, just on her say-so. Although it is not my contention that this view is superior to other understandings, I believe it has received less attention in the literature and thus warrants additional examination. Next, I demonstrate how complicated our calculations are in life. Then, I turn to law. Here, I show how the various interpretations of #BelieveWomen raise distinct legal questions, but also note that flat footed understandings of this demand have created confusions. I suggest the law may meet the demands of #BelieveWomen through a corrective of the kind proposed by Miranda Fricker, evidentiary instructions, and (potentially by) alterations of the burden of proof, but that full belief may be too much to ask in this context. That is, law may be unable to accommodate a demand that we believe women, though it may be able to treat them respectfully as epistemic agents. In making this claim, I reject that increasing one’s credence in light of testimony “counts” as believing someone.

Second, I look at the presumption of innocence, noting that under the Supreme Court’s jurisprudence it amounts to no more than the requirement that in a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Additionally, following Larry Laudan, I endorse the view that the presumption in law is simply the claim that a juror has no evidence. But that is not what we want in life. The questions we want to ask in life are (1) what do we owe each other and (2) when there are contested factual situations, what is the default position. The presumption of innocence rhetoric assumes the answers to these questions.

May 22, 2020 in Courts, Equal Employment | Permalink | Comments (0)

"Jane Roe" from Roe v. Wade Retracts Anti-Abortion Conversion in Posthumous Documentary, "AKA Jane Roe"

Michelle Goldberg, Jane Roe's Pro-Life Conversion Was a Con

It was a cultural coup for the right when McCorvey publicly turned against legal abortion. Jane Roe rejecting Roe v. Wade was something abortion opponents could throw in the faces of pro-choice activists. So it is a bombshell that McCorvey has revealed, in the posthumous new documentary “AKA Jane Roe,” that it was, at least in some sense, an act. “I am a good actress,” she said.

 

The movie, which debuts on Friday on FX, also makes clear that anti-abortion leaders understood this. They’ve been perpetrating a scam on us all for 25 years.

 
In the documentary’s final 20 minutes, McCorvey, who died of heart failure in 2017, gives what she calls her “deathbed confession.” She and the pro-life movement, she said, were using each other: “I took their money, and they put me out in front of the cameras and told me what to say, and that’s what I’d say.”
 

In her career as a pro-life icon, she collected nearly half a million dollars. But at the end of her life, she once again affirmed a belief in the right to abortion, and evinced pride in Roe v. Wade. “Roe isn’t going anywhere,” she said early on election night in 2016, when she thought Hillary Clinton was going to win. “They can try, but it’s not happening, baby.”***

 

Given the political damage done by her cynical about-face, it’s surprising how sympathetic McCorvey — campy, foul-mouthed and irreverent — comes off. She was a lost soul from a traumatic background. Her father was absent and her mother beat her, and she ended up in reform school after running away from home at 10. She entered an abusive marriage at 16, became addicted to drugs and alcohol, and lost custody of her first child.

 
As she’s told the story, she signed up as the plaintiff in Roe v. Wade not because she wanted to make history but because she was desperate for an abortion. She never got one: By the time the case was decided, she’d given birth and put the baby up for adoption.

 

Later, McCorvey resented not being given a more prominent role as a pro-choice activist. The movement found her embarrassing, especially when, in 1987, she admitted that she’d lied when she’d said the pregnancy at the heart of Roe was a result of rape.***

 

“She was not the poster girl that would have been helpful to the pro-choice movement,” Charlotte Taft, a former director of the Abortion Care Network, says in the film. “However, an articulate, educated person could not have been the plaintiff in Roe v. Wade.” It was women like McCorvey — those without the resources to travel to pro-choice states — who endured forced childbirth in the years before Roe was decided. “People who are plaintiffs in cases are usually messy people,” said Kissling.

 

Many of the headlines about “AKA Jane Roe” have emphasized that McCorvey was paid to renounce abortion rights, but after watching it I don’t think it was all about money. McCorvey wanted respect and attention, to be honored and cherished. At times, people in the pro-choice movement tried to help her; for a while she was represented by the feminist superlawyer Gloria Allred. She made money giving speeches and selling the rights to her story, including for an Emmy-winning made-for-TV movie.

May 22, 2020 in Abortion, Constitutional, Pop Culture, Reproductive Rights | Permalink | Comments (0)

Wednesday, May 20, 2020

Call for Papers Columbia Journal of Gender & Law: Symposium "Are You There Law, It's Me, Menstruation"

Feminist Law Profs, CFP Columbia Journal of Gender & Law Symposium: Are You There, Law? It's Me, Menstruation

Columbia Journal of Gender & Law: Symposium Announcement and Call for Papers

Are You There, Law? It’s Me, Menstruation

The Columbia Journal of Gender & Law is pleased to announce a call for papers for its Spring 2021 symposium: Are You There, Law? It’s Me, Menstruation.

 

This symposium explores the intersection of law and menstruation. Over half the population menstruates for a large portion of their lives, but the law has mostly been silent on the issue. Virtually all people with female biology menstruate, although not all who menstruate are girls or women. A truly inclusive law reform movement will take all who menstruate into account, without regard to race, economic class, age, or gender identity. A legal system that takes into account the biology of over half the population is the foundation for a more just society. 

 

Judy Blume’s young adult classic, Are You There God? It’s Me, Margaret, first captured readers’ attention fifty years ago, but only recently have periods entered the public discourse. The “tampon tax”—the state sales tax on menstrual products—is currently the subject of multi-state litigation and legislative advocacy. Public awareness of the unfairness of the tax has inspired many people to start speaking and mobilizing about other obstacles, including the lack of employment-related accommodations for menstrual needs, the lack of access to safe and affordable products (particularly in schools and prisons), and the anxiety and harassment that menstruating students can face at school.  Increasingly, litigation is being brought about some of these issues, and some states and localities are also taking action on their own, notably by requiring free menstrual products in settings like prisons, schools, and shelters. “Period poverty”—being unable to afford menstrual products—remains an obstacle to school, work and full participation in public life. 

 

The Symposium will be held at Columbia Law School on April 9, 2021. The conference will include a full day of panel discussions and will be open to the public. The program concludes with a reception celebrating the journal’s thirtieth anniversary.

 

Papers

To be considered for a paper presentation at the symposium, please submit an abstract of your proposed paper by 5:00 p.m. on August 15, 2020 to columbia.jgl.submissions@gmail.com. Abstracts should be no longer than 500 words and should relate to the conference theme.  Possible topics might include:

  • Affordability, availability, or safety of menstrual products.
  • Challenging the state sales tax on menstrual products.
  • Menstruation-related discrimination and harassment in employment, education, and/or other contexts.
  • Menstrual education in schools.
  • Menstruation-related challenges unique to prisoners, incarcerated people, and visitors and employees in carceral facilities.
  • Menstruation-related needs of homeless and low-income individuals and families.
  • Cultural stigmas and taboos related to menstruation.
  • Lawyering and social movements that are inclusive of all who menstruate, including trans boys and men, people with gender fluid identities, and people with non-binary gender identities.
  • Research related to health issues connected with menstruation and menstrual products.
  • Environmental issues related to menstruation, including access to water, disposal of menstrual products, and toxic chemicals used in menstrual products.
  • Alternatives to commercial menstrual products, including micro-lending for financing of menstruation-related small businesses.
  • Human rights concerns, including the right to dignity, the right to education, and/or the right to employment, and their connection to menstruation.
  • The relationship of popular culture, including Judy Blume’s Are You There God? It’s Me, Margaret, to the understanding of menstruation.
  • The use of female empowerment and feminist messaging in selling menstrual products and menstrual education.
  • Menstrual-related activism, including litigation and legislative reform.
  • Coalition-building between and among groups around issues related to menstruation.

Successful proposals will include a discussion of how the selected topic relates to the law. Interdisciplinary approaches and perspectives from outside the legal academy are very welcome.

Selected speakers will be notified by September 15, 2020.

 

Publication Opportunity

The selected speakers from this Call for Papers will have the opportunity to publish their papers in a special symposium issue of CJGL.  All such papers will be due by February 1, 2020.  They must be no more than 3,000 words and should be lightly-footnoted.  The abstracts will be posted to CJGL’s public website, and the complete versions may be made available prior to the symposium on a password-protected site to all symposium participants.

 

Registration and Transportation

There is no registration fee associated with the conference.  There are funds available to cover the reasonable transportation costs and accommodations for speakers coming from outside the New York metropolitan area. 

 

Short On-Line Essays

In connection with the symposium, CJGL invites expressions of interest in contributing short essays (100-500 words, including footnotes) on any aspect of law and menstruation, or reflections on the influence of Judy Blume’s book and its legacy for generations of readers. Essays will be hosted on the CJGL website beginning in early 2021 and are intended to be written for a general audience. We warmly welcome contributions from students, faculty, attorneys, activists, artists and others.  Contributions may take the form of personal reflections, cultural critiques or other menstruation-related topics of the author’s choice. Short essays do not have to be in a traditional academic format.

To be considered for contribution of a short essay, please submit a short (2-4) sentence proposal by 5:00 p.m. on August 15, 2020 to columbia.jgl.submissions@gmail.com. Selected contributors will be notified by September 15, 2020.

Final versions of short on-line essays will be due November 1, 2020.

 

Questions?

Questions about logistics of the program can be directed to CJGL Symposium Editor Jenna Rae Lauter: jrl2156@columbia.edu

Other questions can be directed to the Symposium’s faculty conveners: Professor Bridget Crawford (Elisabeth Haub School of Law at Pace University) bcrawford@law.pace.edu; Professor Emily Gold Waldman (Elisabeth Haub School of Law at Pace University) ewaldman@pace.edu; and Professor Margaret Johnson (University of Baltimore School of Law) majohnson@ubalt.edu.

May 20, 2020 in Call for Papers, Conferences, Gender, Healthcare | Permalink | Comments (0)

Papers from the Feminist Legal Theory Research Network at Next Week's Law & Society Association Virtual Meeting

I am probably one of the few people in the world who is thrilled that the Law & Society Annual Conference is virtual -- since I will now be able to attend.  In general virtual conferences open up access to some barriers to participation due to finances,  travel, family, disability, and health issues.

You can register for the virtual conference here at the Law & Society Association website.  

Scheduled papers to be presented from the Feminist Legal Theory Research Network:

 

Time

Title

Type

Wed, 5/27
1:00 PM - 2:45 PM

#MeToo: The Narrative of Resistance Meets the Rule of Law

Plenary Session 

Thu, 5/28
11:00 AM - 12:45 PM

Moving Rules: Struggles for Reproductive Justice on Uneven Terrain

Paper Session 

Thu, 5/28
11:00 AM - 12:45 PM

Sexual Harassment: Victims and Survivors

Paper Session 

Thu, 5/28
1:00 PM - 2:00 PM

CRN07: Feminist Legal Theory Business Meeting

Business Meeting 

Thu, 5/28
2:15 PM - 4:00 PM

Families, Laws, and Institutions

Paper Session 

Thu, 5/28
2:15 PM - 4:00 PM

The State and Violence: New Proposals for Stopping the Cycle

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

Normativity in Men, Women, and Bodies

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

The Politicization of Safety: Critical Perspectives on Domestic Violence Responses

Roundtable Session 

Fri, 5/29
1:00 PM - 2:15 PM

Sexual Harassers, Sex Crimes, and Accountability

Paper Session 

Fri, 5/29
4:00 PM - 5:45 PM

Women's Rights in the Shadow of the Constitution

Paper Session 

Sat, 5/30
11:00 AM - 12:45 PM

Perspectives on Sex, Work and New Legal Orders

Paper Session 

Sat, 5/30
1:00 PM - 2:45 PM

Trans and Queer Life in Private and Public

Paper Session 

Sat, 5/30
4:00 PM - 5:45 PM

Human Rights in an Unequal World: Autonomy, Status, and Other Stories

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Feminist Legal Theory in a Public/Private World

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Laws of Social Reproduction

Paper Session 

Sun, 5/31
1:00 PM - 2:00 PM

Intimate Lies and the Law

Author Meets Reader (AMR) Session 

Sun, 5/31
2:15 PM - 4:00 PM

Feminist Judgments on Reproductive Justice and Family Law

Roundtable Session 

Sun, 5/31
2:15 PM - 4:00 PM

Women and Gender in Private, Public, and Places in Between: Old Doctrines Meet New Realities in the Twenty-First Century

Paper Session 

May 20, 2020 in Conferences, Constitutional, Equal Employment, Family, Masculinities, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

Strategies for Global Responses to the Increase in Domestic Violence in the Age of COVID-19

Caroline Bettinger-Lopez & Alexandra Bro  A Double Pandemic: Domestic Violence in the Age of COVID-19, Council on Foreign Relations

How have lockdowns influenced rates of domestic violence?

Data from many regions already suggests significant increases in domestic violence cases, particularly among marginalized populations. Take for example the Middle East and North Africa, which have the world’s fewest laws protecting women from domestic violence. An analysis by UN Women [PDF] of the gendered impacts of COVID-19 in the Palestinian territories found an increase in gender-based violence, and warned that the pandemic [PDF] will likely disproportionately affect women, exacerbate preexisting gendered risks and vulnerabilities, and widen inequalities. In Latin American countries such as Mexico and Brazil, a spike in calls to hotlines in the past two months suggests an increase in domestic abuse. Meanwhile, a drop in formal complaints in countries such as Chile and Bolivia is likely due to movement restrictions and the inability or hesitance of women to seek help or report through official channels, according to the United Nations and local prosecutors.
 
In China, police officers in the city of Jingzhou received three times as many domestic violence calls this past February as in the same time in 2019. Some high- and middle-income countries, such as Australia, France, Germany, South Africa, and the United States, have also reported significant increases in reports of domestic violence since the COVID-19 outbreak.

 

What can countries do to protect those at risk of domestic violence amid the pandemic?

As the Inter-American Commission on Human Rights and the United Nations have emphasized, countries must incorporate a gender perspective in their responses to the COVID-19 crisis. Several countries and nongovernmental organizations (NGOs) have already taken innovative steps in this direction. New campaigns also use social media to spread awareness of resources available to survivors, including hotlines, text message–based reporting, and mobile applications.

 

Social distancing has increased people’s reliance on technology and changed the way mental health, legal, and other social services are provided to survivors unable to leave their homes. With disruptions to the criminal justice system, countries have shifted to virtual court hearings, facilitated online methods for obtaining protection orders, and communicated their intentions to continue to provide legal protection to survivors.

 

Moving forward, it is critical that states support the development of alternative reporting mechanisms; expand shelter options; strengthen the capacity of the security and justice sectors; maintain vital sexual and reproductive health services, where domestic and sexual violence victims are often identified and supported; support independent women’s groups; finance economic security measures for women workers, especially those serving on the front lines of the pandemic or in the informal economy, and other groups disproportionately affected by the pandemic, such as migrant, refugee, homeless, and trans women; and collect comprehensive data on the gendered impact of COVID-19.

May 20, 2020 in International, Violence Against Women | Permalink | Comments (0)

The Causation Problem of "Because of Sex" in the Trio of Supreme Court Cases on Title VII, Gender Identity and Sexual Orientation, and a Proposed Solution

Shirley Lin, Aimee Stephens and Preserving Our Broader Understandings of Sex, JURIST

Just last week, we were saddened by the loss of Aimee Stephens at age 59. Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people. For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement. Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit Court of Appeals, in one of the most nuanced examinations of sex discrimination ever issued.

 

The decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII through causation analysis and anti-classification.

 

The law’s plain language prohibits discrimination against any individual “because of such individual’s…sex.” An employer generally cannot use an employee’s protected trait — here, her sex — to harm or otherwise disadvantage her. Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee. In other words, it is a separate element from the trait element. Thus, “because of…sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment. No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.

 

Thus, the Sixth Circuit unanimously held that “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.” But the panel took the farther step of affirming the non-binary sex spectrum. ***

 

However, buried in the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the groundswell of courts seeking to course-correct causation analysis. There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome. This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and thus competes with the approach of examining the social context of the sex trait. If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersexnon-binary, and gender-fluid people.

Shirley Lin, Dehumanization "Because of Sex": The Multiaxial Approach to the Title VII of Sexual Minorities, Lewis & Clark L. Rev. (forthcoming)

Although Title VII prohibits discrimination against any individual “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, however, many courts have read “sex” in Title VII as a socially defined trait and evaluate social construction of a protected trait before identifying causation when a court detects subordination. This Article builds on this judicial consensus by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination gives fuller effect to Title VII’s provisions and purposes as compared to sex stereotyping theory or the “but-for causation” method recently raised with the Supreme Court in the Title VII suits brought by gay and transgender plaintiffs. Uncoupling causation from the sex trait analysis will realize the statute’s civil rights protections as localities increasingly recognize the scope of sex beyond a fixed binary.

May 20, 2020 in Equal Employment, Gender, LGBT, SCOTUS | Permalink | Comments (0)