Gender and the Law Prof Blog

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

Tuesday, October 27, 2020

The Centrality of Marriage to the Meaning of the Nineteenth Amendment

Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, 108 Georgetown L.J. 73  (2020)

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote on behalf of all household members. On this understanding, coverture and the state functioned as interlocking systems of governance. The nineteenth century Women’s Rights Movement was a campaign to reshape American democracy; eliminating coverture and extending full citizenship rights to women were necessary to achieve that goal. To use a phrase that we now associate with same-sex couples, it was the nation’s first marriage equality movement.

Adoption of the Nineteenth Amendment marked a new social under-standing that constitutional principles and democratic norms must apply to women’s role in marriage as well as to women as citizens. The movement began by articulating a concept of collective liberty, which grew out of experiences in the anti-slavery movement and which expanded on the Founders’ more individualist concept of liberty in the Declaration of Independence. After the Civil War, the equality discourse of the Reconstruction Amendments and the rejection of women’s demands for the vote by both Congress and the Supreme Court reshaped the dominant theme of women’s rights efforts into a campaign for equality. The refusal by federal lawmakers to address women’s issues left them no recourse except to lobby state legislators, which women’s groups undertook on both suffrage and marriage law. But the diffuse, localized nature of family law presented insuperable barriers to ending coverture in one pre-emptive action.

The Nineteenth Amendment reflects these dual goals in its text and sub-text. The former prohibits denial of the vote based on sex, and the latter, by enabling women’s full participation in political life, rebuts the heart of the rationale for coverture: that women’s role in society lay solely in the domestic sphere of home and marriage.

Failure to understand the centrality of marriage-law reform to the social and political meaning of the Nineteenth Amendment has impoverished the constitutional grounding for contemporary challenges to the legal regulation of marriage, including the Supreme Court’s decision in Obergefell v. Hodges. In Obergefell, which prohibited the exclusion of same-sex couples from marriage, the Court missed an opportunity to draw on the history and meaning of the Amendment to frame the issue as implicating dual systems of governance, both of which must be bound by constitutional principles. Instead, the Court described marriage as a largely prepolitical realm of private, idealized relations. The opinion of the Court failed to comprehend the extent to which marriage today continues to function as an institution of the state and a zone of governance, no longer because of coverture but because it is foundational to the privatization of collective responsibility that is embedded in the nation’s primary systems of social insurance.

October 27, 2020 in Constitutional, Family, Legal History | Permalink | Comments (0)

Understanding the Standing Issue in the Dismissal of the ERA Lawsuit

The prospects of judicial approval of the Equal Rights Amendment have taken a quiet step backward with a ruling that said women - individually or in advocacy groups - cannot sue the government to declare the amendment ratified because they lack a "personal stake" in its passage.
 
The proposed constitutional ban on sex discrimination, first introduced in 1923, could still be revived by the courts or Congress. But the latest judicial decisions are another signal that some actions by federal or state governments - like changing the Constitution, approving construction in a park or forest or even refusing to defend a voter-approved ban on same-sex marriage in California - can be difficult or impossible for private citizens to challenge in court.
 
To establish legal "standing" - the right to sue - in federal court, "you have to have a personal stake in a controversy ... some skin in the game," said Evan Lee, an emeritus professor at UC Hastings College of the Law in San Francisco who has studied the issue.
 
"No matter if you've devoted your life to pursuing this particular cause," like environmental protection or the Equal Rights Amendment, "that's not skin in the game" according to the Supreme Court, said Lee, who is critical of the court's restrictions. In most cases, he said, the best way to establish standing is to claim the government's actions will deprive you of money or property.
 
"People can't sue just by saying the government is violating the Constitution," said Erwin Chemerinsky, dean of the UC Berkeley School of Law. "I wish the court had a different view of standing," but under its established precedents, "an injury shared in common with everybody is a generalized grievance" that cannot be challenged in court.
 
Even if that "grievance" is a federal official's rejection of a constitutional amendment that's the reason for your group's existence.***
 
But U.S. District Judge Denise Casper ruled in August that the women, while devoted advocates of the ERA, had no more legal interests or rights at stake than the rest of the population and could not show an "individualized and concrete stake in the outcome."
 
Casper said the Supreme Court used the same standard in 1971 to dismiss a suit by the Sierra Club challenging the government's approval of a new highway and power lines in Sequoia National Forest - construction that may have lessened the forest's beauty and visitors' enjoyment but did not harm their individual rights, the court said. Casper also said the assault victim could not attribute her injuries, physical or legal, to the archivist's refusal to recognize the amendment.
 
Both Casper and Ferriero were appointed by President Barack Obama.
 
The plaintiffs sought immediate review in the Supreme Court, arguing it was "indisputable and intolerable" that "women suffer harm because they are unequal based on sex" and that the ERA's advocates have crucial interests at stake. But the court left Casper's ruling intact on Oct. 13 in a one-line order, with no recorded dissents.
 
The order did not end the case, which is heading to a federal appeals court. The fate of the amendment could still be affected by a separate suit filed in January by the three late-ratifying states and possible future legal action by Congress. The House passed a resolution by Rep. Jackie Speier , D-San Mateo, in February to eliminate the deadline, and it could reach the Senate floor next year if Democrats gain a majority. On the other side, legislators in at least four states - Nebraska, Idaho, Kentucky and South Dakota - have voted to rescind their previous approval of the ERA.

October 27, 2020 in Constitutional, Courts | Permalink | Comments (0)

Equal Rights Amendment Lawsuit Dismissed on Standing Grounds Denied Direct Supreme Court Review

Equal Rights Amendment Denied Supreme Court Hearing for Now

Equal Rights Amendment supporters won’t get an immediate hearing at the U.S. Supreme Court as they fight to ensure the nearly 50-year-old proposition is added to the U.S. Constitution.

 

The high court on Tuesday denied an unusual direct Supreme Court petition, which would have leapfrogged a U.S. appeals court, after a federal trial court in Boston dismissed their lawsuit for lack of standing.

 

“The petition for a writ of certiorari before judgment is denied,” the justices said.

 

The case is one of the two pending in federal courts over the ERA’s drawn out, and therefore disputed, ratification. ERA supporters had argued immediate Supreme Court action was appropriate “because the ERA is the most important and fundamental of all women’s rights, but also because everyone in America has a right and need to know whether it is now the Twenty-Eighth Amendment to the Constitution.”

The case had been dismissed on standing grounds in August, and the plaintiffs sought a direct petition in the Supreme Court

 

Equal Rights Amendment Lawsuit Thrown Out by US Judge in Boston

A Boston judge dismissed one of two federal lawsuits over the Equal Rights Amendment, finding the women’s rights groups who sued to ensure its addition to the U.S. Constitution lacked legal standing to bring the case.

 

The case—like a similar lawsuit pending in Washington—sought official recognition of the ERA as the 28th amendment to the Constitution after Virginia became the 38th state to ratify it in January. If its ratification is deemed valid, the amendment that Congress advanced to the states in 1972 would create a constitutional guarantee of equal treatment under the law for women, potentially affecting a broad swath of the law governing employment, health care, and more.

 

ERA supporters and those who oppose its ratification disagree over the validity of the 1979 deadline Congress imposed for three-fourths of states to approve it. A U.S. Justice Department legal opinion published in January found the deadline to be valid, and the U.S. archivist has declined to certify the ERA as officially ratified.

 

In the Boston lawsuit, the advocacy groups Equal Means Equal and The Yellow Roses, along with an individual woman, Katherine Weitbrecht, asked the court to order Archivist David Ferriero to grant that certification.

 

The women’s groups and Weitbrecht failed to show they’d suffered injuries that could be remedied by the court, a prerequisite to their maintaining the suit, Judge Denise J. Casper wrote in a decision granting the Justice Department’s motion to dismiss the case.

 

The judge stopped short of ruling on the merits of the case—namely, whether the 1979 deadline is valid and whether five states that voted to rescind their ERA approval had legal authority for those rescissions.

 

“Plaintiffs argue that all persons that would be protected under the ERA are injured by the Archivist’s actions because they have a legal interest in the ‘continued vitality of the ERA,’” Casper wrote.

 

“Cognizable injuries must be both concrete and particularized,” the judge said. “These generalized injuries to all those protected by the ERA fail in both respects.”

 

An attorney for the Boston plaintiffs said she is prepared to appeal and simultaneously seek review by the U.S. Supreme Court, following the model of a previous ERA lawsuit.

 

“Legally the judge got it wrong, but politically the decision was anticipated and we have already prepared a cert petition to get the case before the Supreme Court as soon as possible,” said Boston attorney Wendy J. Murphy. “It’s not common to go straight to the Supreme Court from the District Court but it’s exactly what happened with the Idaho ERA case in 1980, so we will follow that model and file an appeal with the First Circuit and a cert petition with SCOTUS.”

See also SF Chronicle, Equal Rights Amendment Battle Highlights Obstacles to Challenging Federal Decisions in Court

 

October 27, 2020 in Constitutional, Courts | Permalink | Comments (0)

Friday, October 23, 2020

Book Review, Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress

Book Review: Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress 

In Injustice and the Reproduction of History: Structural Inequalities, Gender and RedressAlasia Nuti explores the relationship between history and the provision of justice by focusing on women as a historical-structural group subject to historical injustices that continue to impact the present. This is a very welcome contribution to the literature, writes Ebru Demir, providing both deep and rigorous analyses of its case studies and proposing thought-provoking new terminology. 

 

Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress. Alasia Nuti. Cambridge University Press. 2019.

 

Why should an unjust history matter for egalitarians seeking justice in the present? How and why does history relate to the provision of justice both theoretically and practically? Alasia Nuti’s Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress not only engages with such longstanding questions but also makes an important contribution to the existing literature as it centres on the argument that women as a historical-structural group (HSG) are the subjects of historical injustices.

 

One of the main arguments of the book is that ‘unjust history that should normatively matter in justice-based considerations is present because it has been reproduced over time through different means’ (4). In the first half of the book, Nuti builds this argument on very solid ground by engaging with the relevant literature and by providing examples to validate this very point. ‘De-temporalising injustice’, borrowed from Reinhart Koselleck’s terminology, is significant and necessary in order to capture the relation between past and present injustices (13). The book contributes to the de-temporalising of injustice by suggesting that past and present injustices have possible connections and all backward-looking approaches to injustice consider only past injustices as significant enough to address (15). According to Nuti, past and present cannot be separated if one seeks to provide justice for historical-structural injustices (HSIs) that have been committed. For this very reason, the division between past and present becomes deceptive. The present reproduces the unjust past ‘over time and through changes’ (8). Thus, change also becomes a suspect in perpetuating unjust history.

 

The second half of the book forms a study of women as a group and as the subjects of The second half of the book forms a study of women as a group and as the subjects of historical injustices. Although previously Catherine Lu has argued that women are a group suffering from enduring injustice, by carrying this argument one step further, this book provides a thorough analysis of how such a group is defined. Nuti, being aware of intersectional identities and differences, argues that to be categorised as a woman, one is not obliged to have been through systematic oppression: it is sufficient for one to be more likely to be exposed to unjust constraints and abuses (90). Therefore, possibility and potentiality become the requirements for being categorised as a group undergoing historical injustices.

October 23, 2020 in Books, Legal History, Theory | Permalink | Comments (0)

How Sexual Harassment Law Failed its Feminist Roots

L. Camille Hebert, How Sexual Harassment Law Failed its Feminist Roots, 22 Georgetown J. Gender Law (forthcoming)

The dawn of sexual harassment law showed so much promise. But in spite of the hopefulness with which the legal recognition of sexual harassment was greeted, the intervening years have shown that the law of sexual harassment has not lived up to its potential. Rather than creating a cause of action empowering women to challenge employment practices that have subjected them to degrading treatment while limiting their workplace opportunities, courts have instead recognized a number of elements of a cognizable claim of sexual harassment that have effectively sanctioned the continuance of the conduct, while effectively blaming women for its occurrence. The judicial imposition of the elements of a claim for sexual harassment and the judicial gloss placed on those elements has turned the cause of action for sexual harassment into something far different than the feminists who worked for recognition of the cause of action envisioned. The courts have turned that promise into a cause of action that seeks to protect the workplace from women who would make claims of sexual harassment, rather than a cause of action that seeks to protect women from discriminatory workplaces. This article explores how some of that lost promise might be recaptured, first through a reshaping of the law by the courts and legislatures within the frame of the existing structure of the cause of action, explaining how the courts could apply the existing elements of the cause of action in a way more consistent with the purpose of Title VII to assure women of the right to workplace equality. The article then imagines a more fundamental reshaping of the law of sexual harassment, exploring what the law of sexual harassment might look like if it were designed by feminists, forged by an overriding concern about ensuring women’s workplace equality rather than protecting existing workplace norms.

October 23, 2020 in Courts, Equal Employment, Theory, Workplace | Permalink | Comments (0)

CFP Sex Trafficking, Opioids & Eradicating the Demand

The University of Kentucky Rosenberg College of Law is very pleased to host a day-long symposium entitled, “Selling Vulnerability: Sex Trafficking, Opioids, and Eradicating the Demand” on Friday, February 5, 2021. A detailed description of the symposium is provided below. We are hosting the symposium virtually via Zoom.   

Article Submissions:  

As part of our symposium, the Kentucky Law Journal (KLJ) is currently seeking articles to be published in an issue devoted to sex trafficking and opioids. Relevant topics may include, but are certainly not limited to, the use of drug dependency and manipulation to “coerce” sex trafficking victims; enhanced victim support services that include drug treatment; and recent efforts in and new ideas regarding sex trafficking law reform.  

We are interested in many different submissions, including submissions from practitioners.  

Submission Guidelines:  

  

Articles published by the KLJ average 15,000 - 25,000 words.  KLJ does not accept submissions from students at other law schools. Co-authorship is permissible. All authors please submit an updated curriculum vitae and/or resume.  

Deadlines:  

Please submit an abstract to KLJ. The final articles are due on December 15, 2020.   

Contact information:  

Please emails submissions and questions to editors@kentuckylawjournal.org and please copy Associate Professor Blanche Cook at blanche.cook@uky.edu.  

Symposium Description:   

Our nation is experiencing a meteoric rise in opioid overdose. The sheer power of opioid dependency has left few untouched and many devastated in its wake.  Inextricably intertwined with opioid dependency is an equally epidemic rise in sex trafficking. Like no other point in its 5,000-year history, sex trafficking is on a sharp upsurge: The internet has expanded the insatiable demand for vulnerable human flesh. As the internet increases the scope of the flesh trade, opioid addiction adds to its sting. Millions are feeding their dependency through the selling of flesh.   

Sex trafficking exists conterminously with drug dependency because vulnerability is the lynchpin of exploitation. This conference, the first of its kind, will examine the converging and rising tides of sex trafficking and opioid addiction. This conference has three aims: Awareness, Advocacy, and Activism.  Using a panel of experts who have first-hand experience with the intertwined effects of sex trafficking and opioid addiction, this conference will increase the public awareness of the converging forces of dependency and vulnerability.  A second panel of advocates will address how the legal process can intervene in the demand for human flesh.  Finally, a third panel of activists will critique the current problems in the criminal justice system’s attempt to ameliorate the intertwined problem of drug dependency and sex trafficking through mass incarceration.  

October 23, 2020 in Call for Papers, Human trafficking, Poverty | Permalink | Comments (0)

Revaluating Marital Norms in the Administrative Cases Brought by Deserted Wives Seeking Homesteading Rights in the 19th and early 20th Centuries

Hannah Haksgaard, The Homesteading Rights of Deserted Wives: A History, Nebraska Law Review (Forthcoming)

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

October 23, 2020 in Family, Legal History | Permalink | Comments (0)

Wednesday, October 21, 2020

The Geography of "Modest-Looking" Abortion Restrictions

Jessie Hill, The Geography of Abortion Rights, Georgetown L.J. (forthcoming 2021)  

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion services within the geographical borders of a particular state and to require people to travel out of state in order to terminate a pregnancy. Other abortion controversies, too, have foregrounded the significance of state and even national borders, as in the cases of unaccompanied immigrant minors who sought abortions while in the custody of the U.S. Government. Thus, an entire subset of abortion restrictions intentionally targets the geography of abortion provision, inevitably impacts the geographical distribution of abortion services, or both. Yet, the geographical dimension of abortion restrictions has gone largely unappreciated in the legal literature. This Article thus aims to provide an overview of the geography of abortion regulation. It first considers the unique impact and attractiveness of spatial regulations, demonstrating that spatial regulations differ from other forms of abortion regulation in their tendency to exploit and aggravate preexisting social inequality in ways that make it appear natural or unavoidable. Second, this Article considers the jurisprudential implications of this “spatial turn” in three specific areas: the right to travel, private non-delegation doctrine, and the concept of viability in abortion doctrine

October 21, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Recalling the First Comprehensive History of Women's Rights, Eleanor Flexner's 1959, Century of Struggle

NY Times, Overlooked no More: Eleanor Flexner, Pioneering Feminist in an Anti-Feminist Age

In the 1950s, Eleanor Flexner, a left-wing activist and writer, decided to compile a comprehensive history of the women’s rights movement in the United States, exploring a span of more than 300 years. Her timing could not have been less auspicious. Feminism was virtually a dirty word, described in Ferdinand Lundberg and Marynia F. Farnham’s celebrated book “Modern Woman: The Lost Sex” (1947) as “at its core, a deep illness.”

 

Moreover, the House Un-American Activities Committee, or HUAC, was engaged in a ruthless investigation of Communist influence in the United States, attacking left-wing artists and intellectuals. Flexner had been a member of the Communist Party from 1936 through 1956, and although she was not hauled before HUAC, the careers of some of her closest friends and associates had been ruined.

 

Nonetheless, Flexner, with no formal training as a professional historian, began what became a pathbreaking, wide-ranging account of activism for women’s rights in America.

 

Century of Struggle: The Women’s Rights Movement in the United States” (1959) was the first authoritative narrative of one of the great dimensions of American democratic history. The book, based largely on her original research in the Library of Congress, the Sophia Smith Collection of Women’s History at Smith College and elsewhere, covered an immense amount of material, from Anne Hutchinson, the 17th-century rebel against Puritan clerical authority in Massachusetts, to the dramatic final years of the ratification of the 19th Amendment, by which women won the right to vote. It remained the pre-eminent text on the topic for more than half a century, and is still taught in schools and consulted widely by historians today.

October 21, 2020 in Books, Legal History | Permalink | Comments (0)

Equal Pay Lawsuits by Women Law Professors Allege Significant Continuing Gender Discrimination in Academia

ABA J, Recent Equal Pay Lawsuits by Female Law Professors has Shined a Light on Academic Compensation Process 

*** Linda Mullenix’s annual salary, however, is at least $31,000 less than three male law professors at her school. Like Mullenix, some of these male professors teach civil procedure. However, they have had shorter careers and fewer publications than she has, and for the most part, similar student evaluations, according to the Equal Pay Act lawsuit she filed in the U.S. District Court for the Western District of Texas in December 2019. The complaint also alleged sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Additionally, she alleged her raise for the 2018-2019 academic year was only $1,500, while other UT law professors with fewer accomplishments received $10,000 raises.

 

And this is not the first time Mullenix has complained to the university about compensation issues. In 2011, she retained counsel and sent a demand letter asserting an equal pay claim after she discovered a male professor with less experience annually earned $50,000 more than she did. Eight years later, that pay gap had decreased—by $17; that professor now earns $49,983 more than Mullenix, per her 2019 lawsuit. As a result of her actions, she has been described as “poison” by school administrators, according to the complaint, because she repeatedly speaks out about pay inequity at the law school.

 

In May, a Texas federal judge granted the university’s motion to partially dismiss Mullenix’s lawsuit on the basis that she failed to allege a causal connection between her pay complaints and receiving the lowest raise of any law school faculty member. The order dismissed Mullenix’s Title VII retaliation claim; her Equal Pay Act and sex discrimination claims are ongoing.

 

Mullenix’s lawyer, Colin Walsh of the Austin firm Wiley Walsh, told the ABA Journal he will continue with her Title VII discrimination and Equal Pay Act claims and looks forward to entering the discovery phase. Meanwhile, a spokesman for the university told the Journal the institution “strongly supports” equal pay based on merit and performance, and it has done work to ensure salary equity for faculty members. Law school faculty pay, he wrote in an email, is decided by “a committee review of teaching, service and scholarship with professional criteria applied to make these determinations.”

 

At least five equal pay lawsuits have been filed by female law professors since 2016; the actions involve four schools. One of those schools has been sued more than once, and three of the lawsuits remain open.

 

Although law schools may rely on several factors in determining compensation, in actuality, law school deans often have significant discretion in deciding what to pay professors, and their unchecked decisions can be tainted by gender bias, according to lawyers interviewed by the ABA Journal. Salaries, raises and appointments should be based on teaching, service and scholarship. But dean evaluations in those areas can be biased as well, some say, with men getting better appointments and more respect for their research and writing, with little regard for the work’s quality and importance.

 

Moreover, professors who have filed Equal Pay Act claims have seen their careers impacted in other ways. For instance, more than one used the word “poison” to describe how they were viewed after confronting law school leadership with discrimination concerns. Others found themselves removed from important faculty committee assignments (a factor used in determining pay) and put on “‘do nothing’ committees.”

‘Institutional misogyny’

Walsh says pay discrimination against women is just as much of a problem in the law schools as it is in the private sector.

 

“It may be a bit worse because of instances of institutional misogyny. Any place you have a large contingency of older white men, you’re going to have a pay gap,” Walsh adds.

 

In all of the Equal Pay Act lawsuits, plaintiffs say they were treated worse by the schools after suing.

 

See also Chronicle of Higher Ed, A Raft of Pay-Gap Lawsuits Suggests Little Progress for Academic Women

Last week, five female professors at Rutgers University filed a lawsuit in state court accusing their institution of paying them tens of thousands of dollars less than their male colleagues. Days earlier, Princeton University agreed to a settlement, worth nearly $1.2 million, after a U.S. Department of Labor review found that 106 female full professors had been paid less than their male counterparts between 2012 and 2014. And in September, four female professors at Northern Michigan University settled their own pay-discrimination lawsuit for $1.46 million.

 

The University of Arizona resolved a pair of similar cases in 2019, doling out $190,000 to a trio of female former deans and $100,000 to an associate professor, all of whom alleged they’d been underpaid. And the University of Denver settled in 2018 with seven female law professors to the tune of $2.66 million.

 

To understand the raft of pay-discrimination lawsuits, The Chronicle spoke to Jennifer A. Reisch, who represented the lead plaintiff in the Denver case and argued on behalf of a professor at the University of Oregon who awaits a ruling on her own gender-discrimination case

October 21, 2020 in Education, Equal Employment, Law schools, Workplace | Permalink | Comments (0)

Friday, October 16, 2020

Understanding the Gender-Based Power Imbalances of Corporate Governance

Amelia Miazad, Sex, Power, and Corporate Governance, 54 U.C. Davis L. Rev. (2020)

For decades, social scientists have warned us that sexual harassment training and compliance programs are ineffective. To mitigate the risk of sexual harassment, they insist that we must cure its root cause — power imbalances between men and women.

Gender-based power imbalances pervade our corporate governance and plague start-ups and billion-dollar companies across sectors and industries. These power imbalances start at the top, with the composition of the board and the identity of CEOs and executive management. Pay inequity and boilerplate contractual terms in employment contracts further cement these imbalances.

In response to the #MeToo movement, key stakeholders are shifting their focus from compliance to corporate culture for the first time. This influential group of stakeholders, which includes investors, employees, regulators, D&O insurance carriers, and board advisors, are asking companies to uproot gender-based power imbalances. As a result of mounting pressure, seismic corporate governance reforms are underway. Boards are becoming more gender diverse, companies are beginning to address pay inequity and abandon mandatory arbitration and non-disclosure agreements, and boards are holding CEOs to account for sexual harassment and misconduct.

While the “old boys’ club” is still thriving in corporate America, this Article is the first comprehensive account of how the power imbalances on which it depends are shifting. 

October 16, 2020 in Business, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Paper Reports Statistics on Military Sexual Assaults, Showing Lower Rate of Assaults, Higher Rates of Reporting, and Additional Available Rights as Compared to Civilian and Collegiate Jurisdictions

David Schlueter & Lisa Schenck, A White Paper on National, Military, and College Reports on Prosecution of Sexual Assaults and Victims’ Rights 

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military is lower than for other civilian jurisdictions. Military victims report offenses at a higher rate than the jurisdictions examined.

October 16, 2020 in Education, Legislation, Violence Against Women | Permalink | Comments (0)

Tuesday, October 13, 2020

SCOTUS Hears Arguments on Statute of Limitations for Prosecuting Military Rape

Jordan Rubin, Supreme Court Considers Limits on Prosecuting Military Rape, Bloomberg

The U.S. Supreme Court heard arguments Tuesday in a case involving time limits on prosecuting rape in the military, as the justices wondered aloud how the U.S. Constitution impacts the armed forces’ separate justice system.

 

The government’s lawyer framed the stakes as whether three convicted rapists “go scot free.” Their lawyer said the service-members should receive the same protections that civilians do from cruel and unusual punishment.

 

Congress eliminated the statute of limitations for military rape in 2006. The high court is considering in this case whether a five-year limitations period applies to assaults committed earlier. The answer determines whether the rape convictions of Air Force members Michael Briggs, Richard Collins, and Humphrey Daniels are reinstated and whether other older cases can be prosecuted, too.***

The case is United States v. Briggs , U.S., No. 19-108, oral argument 10/13/20 , United States v. Collins , U.S., No. 19-184, 10/13/20 .

 

In 1977, the Supreme Court outlawed capital punishment for the rape of an adult woman under the Eighth Amendment, which prohibits cruel and unusual punishment. The military justice code separately prohibits such punishment. But even after that high court ruling, rape was “punishable by death” under military law and there’s no limitations period for prosecuting death-punishable crimes.

 

Questions from Chief Justice John Roberts during the telephone argument illustrated a potential tension in the case. He asked acting U.S. Solicitor General Jeffrey Wall why that 1977 ruling, Coker v. Georgia, doesn’t affect military prosecutions? But Roberts likewise asked the lawyer arguing for the men, University of Texas law professor Stephen Vladeck, why Congress would want to make it impossible to prosecute military rapes after five years, no matter how heinous.

 

The Court of Appeals for the Armed Forces cited the Supreme Court’s prohibition on capital punishment in rape cases in 2018 when it said pre-2006 rapes couldn’t be tried outside a five-year statute of limitations. Following that ruling, the appeals court vacated the convictions of Briggs, Collins, and Daniels, who were all charged more than five years after their crimes, committed in 2005, 2000, and 1998.

 

Unclear Outcome

The justices’ tough questions to both sides of the dispute left the outcome unclear. Arguments were heard before an eight-member court while confirmation hearings for Judge Amy Coney Barrett are underway. A tie vote would affirm the armed forces court’s ruling in favor of the men. A ruling is expected by late June.

 

Fighting to reinstate their convictions, the Trump administration cast its appeal against the backdrop of the military’s sexual assault problem. “It’s critical to be able to go after these crimes outside of what would otherwise be the five-year window in order to make progress on rape and sexual assault in the military,” Wall told the justices.

 

Responding to Justice Stephen Breyer’s query why Coker shouldn’t apply, Wall said the goals of criminal law “are served very differently in the military because of the military environment, the need to maintain trust and discipline, the need to achieve institutional equality, the need not to damage foreign relations.”

October 13, 2020 in SCOTUS, Violence Against Women | Permalink | Comments (0)

Study Documents Gender Pay Disparities Among Tenured Law Faculty, Particularly Acute for Women of Color

CJ Ryan & Meghan Dawe, Mind the Gap: Gender Pay Disparities in the Legal Academy, Georgetown J. Legal Ethics (forthcoming)

Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.

Part I of this Article introduces the concepts of human capital and social capital as important factors underpinning inequalities in outcomes for the legal profession. We then provide an overview of how careers in law—and particularly in the legal academy—are stratified by access to social capital and returns to human capital. In Part II, we introduce the After Tenure survey, from which our data originate. Next, we describe our analytical approach, examining the demography of the legal academy and the legal profession more broadly to discuss the ways in which law professors experience their jobs differently along lines of gender and race. In Part III, we provide evidence of gendered earnings disparities among tenured law professors that is particularly acute for women of color. We conclude by demonstrating how these disparities stem from the differential valuation of human capital., 

October 13, 2020 in Equal Employment, Gender, Law schools, Race | Permalink | Comments (0)

Federal Rule Making Committees are Predominantly White and Male

Brooke Coleman, #SoWhiteMostlyMale Federal Procedural Rulemaking Committees, UCLA L. Rev. Disc. (Forthcoming)

Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That’s 94% of the committee membership. Of that same group, 513—or 81%—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while expert—are not disinterested actors. This essay examines racial and gender diversity across six different committees. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the Judiciary, and the Bar should demand it.

October 13, 2020 in Courts, Gender, Workplace | Permalink | Comments (0)

The Unconscionability of Requiring a Domestic Violence Survivor to Pay Alimony to her Abuser

Amanda Nannarone,  Comment, Adding Insult to Injury: The Unconscionability of Alimony Payments from Domestic Violence Survivors to their Abusers,  69 American U. L. Rev. 253 (2019)

In 2017, the #MeToo movement took social media by storm when individuals from all walks of life began openly sharing their experiences with sexual violence and gender-based harassment for the first time. Starting in the employment space and moving to other areas, the movement encouraged legal changes that improve gender equality. Alimony, which has received little scholarly attention in recent years, became of interest to #MeToo reformers who discovered current laws failed to adequately serve survivors’ interests by forcing them to pay spousal support to their abusive ex-spouse. Instead of a uniform system that removed the possibility of survivors being required to pay spousal support to their abusers, lawyers and clients face a patchwork of statutes that vary wildly from jurisdiction to jurisdiction. Some jurisdictions prohibit considering any evidence of marital misconduct, while others leave it solely to the court’s discretion. California is the only state that has affirmatively enacted legislation disqualifying alimony payments from survivors to abusers.

As state legislatures continually fail to implement proper laws, survivors’ only hope in having alimony provisions in divorce settlements invalidated lies in judges’ hands. Courts have used contract law for centuries to protect vulnerable people from being taken advantage of in their dealings with more powerful individuals. Particularly, the doctrine of unconscionability began as an equitable doctrine that courts invoked as a way to restrict enforcement of harsh, biting, and unreasonably one-sided agreements. Judges today can continue to use the doctrine of unconscionability as a way to deny enforcing divorce settlements that require survivors of domestic violence to pay spousal support to their convicted abusers because those payments represent a continuation of abuse and control. Survivors’ freedom from abuse should not be obtained at such an unreasonably steep price and judges have the power to end that once and for all. Allowing this practice to go on creates fresh wounds on top of barely healed flesh, adds insult to indescribable injury, and prevents survivors from ever truly being free. In the #MeToo era, that is not acceptable.

October 13, 2020 in Family, Violence Against Women | Permalink | Comments (0)

Conference-- Title IX, MeToo and Administrative Law: Responding to Backlash and Looking to the Future

Title IX, MeToo, & Administrative Law: Responding to Backlash & Looking to the Future
 
 
 
Welcome & Panel One (8:00-9:50am PT): “Due Process” Narratives, Standards of Evidence, & Other Backlash Controversies, 2014-2016

Panel Two (10:00-11:40am PT): Litigation Challenges to Trump/DeVos Administrative Actions, 2017-present

Panel Three (11:50-1:30pm PT): #MeToo, the Blasey-Ford/Kavanaugh Hearings & the National Impact of Sexual Harassment, 2017-present

Panel Four & Symposium Wrap-Up (1:40-3:30pm PT): The Future Under a Biden-Harris vs. Trump II Administration

Confirmed Panelists and Moderators:
· Lindy Aldrich, Ladder Consulting
· Kelly Behre, UC Davis Law
· Deborah Brake, University of Pittsburgh School of Law
· Hannah Brenner-Johnson, California Western School of Law
· Erin Buzuvis, Western New England University School of Law
· Sage Carson & Sarah Nesbitt, Know Your IX
· Shelley Cavalieri, University of Toledo College of Law
· Nancy Chi Cantalupo, California Western School of Law
· Jessica Fink, California Western School of Law
· Maha Ibrahim, Equal Rights Advocates
· William Kidder, UCLA Civil Rights Project
· Naomi Mann, Kelsey Scarlett & Lexi Weyrick, Boston University School of Law
· Victoria Nourse, Georgetown University Law Center
· Emily Martin & Shiwali Patel, National Women’s Law Center
· Amelia Parnell, NASPA: Student Affairs Administrators in Higher Education
· Lynn Rosenthal, Co-chair, Obama Administration White House Task Force to Protect
· Samuel Bagenstos, University of Michigan Law School
Students from Sexual Assault
· Jodi Short, UC Hastings College of Law
· Amanda Walsh, Victim Rights Law Center
· Lua Yuille, University of Kansas School of Law

October 13, 2020 in Conferences, Education | Permalink | Comments (0)

Monday, October 12, 2020

President Signs Two Laws Addressing Violence Against Native American Women

Trump Signs 2 Laws Addressing Missing and Murdered Indigenous Women

President Donald Trump signed two bills into law Saturday night that will finally do something about a terrifying and largely invisible crisis in America: Hundreds of Indigenous women are simply disappearing or being murdered.

 

The first bill, Savanna’s Act, will help law enforcement better respond to a devastating situation in which nobody can say what, exactly, is going on. At least 506 Native women and girls have gone missing or been murdered in 71 U.S. cities, including more than 330 since 2010, according to a November 2018 report by Urban Indian Health Institute. And that’s likely a gross undercount given the limited or complete lack of data being collected by law enforcement agencies.

 

Ninety-five percent of these cases were never covered by the national media, and the circumstances surrounding many of these deaths and disappearances are still unknown.

 

Savanna’s Act, authored by Sen. Lisa Murkowski (R-Alaska), is as much an attempt to put attention on the issue as it is to understand the severity of it. The new law will boost coordination and data collection between tribal, local, state and federal law enforcement in cases involving missing and murdered Native women. It will require federal agencies to get recommendations from tribes on how to enhance the safety of Native women, and require new guidelines for responding to these cases, in consultation with tribes.

 

Lots of these disappearances and murders stem from domestic violence, sexual assault and sex trafficking. Eighty-four percent of Indigenous women experience violence in their lifetime, and in some tribal communities, Native women are murdered at rates that are 10 times the national average.***

 

The other bill Trump signed, the Not Invisible Act, would make the federal government step up its response to Indigenous women going missing, being murdered or being forced into sex trafficking.

October 12, 2020 in Human trafficking, Legislation, Violence Against Women | Permalink | Comments (0)

Indigenous Feminist Legal Theory in the United States

Sarah Deer, (En)Gendering Indian Law: Indigenous Feminist Legal Theory in the United States, 31 Yale J. Law & Feminism 1 (2019)

In this Article, I argue that attorneys and legal scholars should intentionally think about gender in the context of Federal Indian law and tribal law to assess whether there are areas for closer consideration and attention. I am primarily interested in whether we can better address gender inequities in the lives of Native women, including gendered violence. As part of this analysis, I explore how attorneys and legal scholars can—and do—support the interests of Native women in their work.

 

As a self-identified Native feminist who is also an attorney, I am interested in asking hard questions about the shortcoming of the Indian Bar to adequately address the needs of Native women and Two-Spirit people. How do feminism and Indian law “meet”? What are the cross-sections of efforts to promote gender equity and the continued resilient existence of tribal nations? In order to answer these questions, I begin by defining the word “feminism” itself. There are multiple strands of schools of feminist thought—some entirely inconsistent with one another. Therefore, more scholars are now speaking of plural feminisms rather than a monolithic feminism. For the purposes of this Article, I consider feminisms to be legal and social responses to entrenched patriarchy. This simplified definition is, on the one hand, reductive, but on the other, a useful framework because it is broad  enough to encompass different types and styles of patriarchy, along with different types and styles of responses. Patriarchy comes in different forms and can be modified to include terms like “hetero-patriarchy” and “settler colonial patriarchy,” which are both relevant for Native women. The thrust of most feminist movements is to
overturn sexist and misogynist laws and practices through legal and social action, which, again, can take many forms.


More specifically, in this Article, I approach Indian law using the lens of indigenous feminisms. I intentionally choose to use the fraught “f” word in this analysis, even though mainstream feminist movements and Native women have not always had an easy relationship. Indeed, mainstream feminism has historically failed Native women by ignoring or marginalizing issues like sovereignty and self-determination. Moreover, despite the fact that many early white American feminists were influenced by Native women, early American feminists were sometimes the instigators and supporters of horrific Federal Indian law policies, including the boarding school era and child removal. Thus, it makes sense that many indigenous women categorically reject the label of “feminist” because of its Western, colonial connotations, even while supporting Native women’s rights. Some Native women who reject the term “feminism” point out that patriarchy is a foreign concept to traditional tribal cultures. If feminism is a response to patriarchy, Native women have perhaps not needed it. 

 

October 12, 2020 in Gender, Theory | Permalink | Comments (0)

New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.

Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.

That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).

Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).

Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.

“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***

In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.

Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.

Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.

October 12, 2020 in Courts, Gender, Judges, Legal History, SCOTUS, Women lawyers | Permalink | Comments (0)