Monday, November 30, 2020

Understanding Sojourner Truth's Role in Passage of the Nineteenth Amendment and the Fight for Black Women's Rights

Lolita Buckner Inniss, "While the Water is Stirring": Sojourner Truth as Proto-agonist in the Fight for (Black) Women’s Rights, 100 Boston U. L. Rev. 1637 (2020)

This Essay argues for a greater understanding of Sojourner Truth’s little discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in particular, were created and sustained by the work of antebellum activists like Sojourner Truth, a towering figure who was tied to nineteenth-century movements for abolition and women’s suffrage. Sojourner Truth’s advocacy on behalf of women was premised upon a womanist approach to speech and action that centered the experiences of black women in the business of equal rights both in terms of race and gender. Sojourner Truth’s work as a justice-seeking sage with a goal of advancing the legal, political, and economic rights of women in general and black women in particular is a source of inspiration and a model for making contemporary black women protagonists and co-agonists—co-centric figures—in the work that is still much needed at the centennial of the Nineteenth Amendment.

November 30, 2020 in Constitutional, Legal History, Race | Permalink | Comments (0)

The Long History of Feminist Legal Theory

I've just posted a new book chapter, The Long History of Feminist Legal Theory, forthcoming in in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams eds. Oxford Univ. Press).

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred and fifty years. This chapter traces that development. It begins with the establishment of the core theoretical precepts of gender and equality grounded in the surprisingly comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. It then shows how feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality, and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.

 

November 30, 2020 in Books, Constitutional, Legal History, Theory | Permalink | Comments (0)

How Americans Talk About MeToo and Law

Lesley Wexler, #MeToo and Law Talk, 29 Univ. Chicago Legal F (2019)  

How Americans talk when they talk about #MeToo is often deeply rooted in the law—even in non-legal settings, participants in the #Me-Too conversation often deploy legal definitions of victims and perpetrators, reference legal standards of proof and the role of legal forums, draw explicit or implicit comparisons to legal punishments, and derive meaning from legal metaphors and legal myths. In this essay, I identify and assess the deployment of such law talk to help understand both how legal rhetoric may facilitate the national #MeToo conversation and related legal reforms, but may also simultaneously limit and obscure some of the #MeToo’s more transformative possibilities. Such critical engagement seeks to open space for selective pushback, including initial thoughts on the possibilities of reclaiming colloquial law talk to better match the interests at stake in non-legal settings as well as bringing to the forefront the therapeutic, informative, and structural issues law talk might crowd out.

November 30, 2020 in Equal Employment, Gender, Pop Culture, Theory | Permalink | Comments (0)

Monday, November 23, 2020

How Sex Discrimination in Medical Research is Thwarting a Cure for COVID

Lori Andrews, Is Sex Discrimination in Medical Research Thwarting a Cure for COVID?

Despite the knowledge we might gain about COVID-19 and other infectious diseases from research on women, most medical research focuses on men.

  • A study of heart disease—the leading cause of death among women—was undertaken on 22,000 men and  no women. 
  • A federal study on health and aging proceeded for twenty years with only male subjects. 
  • Absurdly, even though women account for 80 percent of autoimmune disorder patients, the main research subjects are—you guessed it—men. 
  • Even basic biological research is done mainly with male mice!  

Male-Centered Research is Killing Us

The dangers from male-centered research are profound.  Even though women consume 80 percent of medications in the U.S., drug research is still predominantly conducted on men and fails to consider how drugs act over the course of a woman’s menstrual cycle.  Consequently, drugs can reach the market that are actually harmful to women.  In fact, eight of the ten dangerous drugs removed from the market between 1997 and 2000 caused greater harm and fatalities for women. 

 

A wide range of medications, including some antihistamines, gastrointestinal drugs, antibiotics and antipsychotics trigger potentially fatal heart arrhythmias more often in women than men.  

 

In 1993, Congress adopted a law designed to ensure that women were allowed to participate in medical research. 

 

When discrimination persisted, the National Institutes of Health in 2016 announced guidelines requiring federally-funded scientists to enroll women in studies, to disaggregate medical research data by sex, and to study female animals and female cells as well.

 

Then along came COVID-19, with its tsunami of scientific articles.  By May 13, 2020, there were more than 23,000 papers published on COVID-19 with the number of articles doubling every twenty days. 

 

When I analyzed the burgeoning medical research literature about COVID-19 along with my team at the Institute for Science, Law and Technology at Chicago-Kent College of Law, we found that the historical discrimination against women in medical research still exists. 

 

Only a few scientific articles about COVID-19 analyze the difference in symptoms between men and women.  Most not only fail to break down the symptoms by sex, but also erroneously assume that the death rate of men and women is the same—ignoring the numerous studies that already demonstrated that men with COVID-19 die at a higher rate than women.

 

The fact that, in 2020, researchers would blindly assume women’s bodies behave like men’s is troubling.

November 23, 2020 in Gender, Healthcare, Pop Culture, Science | Permalink | Comments (0)

Leveling Up or Leveling Down Equal Protection Remedies - The Trump Challenge to the PA Election

In the recent case of the Trump challenge to the Pennsylvania votes, garnering much scholarly attention, one issue is the appropriate remedies for equal protection violations and the question of leveling up or leveling down. See Trump for President v. Boockvar, (M.D. Pa. Nov. 21, 2020). Plaintiffs allege an equal protection violation from some counties allowing correction or curing of defective mail in ballots, but not other counties including theirs.  They seek the remedy of invalidating the votes that were allowed to be corrected rather than allowing theirs to be cured.

The Supreme Court addressed this issue in the 2017 case Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).  And I wrote about it extensively in,  Leveling Down Gender Equality, 42 Harvard J. Law & Gender 177 (2019), challenging the Court's decision in Morales-Santana leveling down the remedy for gender discrimination against fathers in grants of citizenship.

I think the district court gets it right here in the PA case:  that the presumption is leveling up.  And it is arguably an easier case as leveling down threatens the fundamental rights of others. 

From the Boockvar decision:

Moreover, even if they could state a valid claim, the Court could not grant Plaintiffs the relief they seek. Crucially, Plaintiffs fail to understand the relationship between right and remedy. Though every injury must have its proper redress,116 a court may not prescribe a remedy unhinged from the underlying right being asserted.117 By seeking injunctive relief preventing certification of the Pennsylvania election results, Plaintiffs ask this Court to do exactly that. Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race.118 This is simply not how the Constitution works.

When remedying an equal-protection violation, a court may either “level up” or “level down.”119 This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right,120 or a court may level down by withdrawing the benefit from those who currently possess it.121 Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up.122 In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution.123 Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed. Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution.124 “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.”125 “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”126 Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief. 

116 Marbury v. Madison, 5 U.S. 137, 147 (1803).
117 Gill, 138 S. Ct. at 1934 (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”) (citing Cuno, 547 U.S. at 353).

118 Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. Doc. 183 at 1. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.
119 Heckler v. Matthews, 465 U.S. 728, 740 (1984) (internal citations omitted).
120 Id. at 741; Califano v. Westcott, 443 U.S. 76, 90-91 (1979).
121 E.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1701 (2017).
122 Id. (internal citations omitted).
123 See Palmer v. Thompson, 403 U.S. 217, 226-27 (1971) (addressing whether a city’s decision to close pools to remedy racial discrimination violated the Thirteenth Amendment); see also Reynolds, 377 U.S. at 554 (citing Mosley, 238 U.S. at 383).

However, it should be noted that Justice Ginsburg in Morales-Santana rejects this focus on particularized individual injury.  Even though that is the longstanding standard of standing, redressability, and remedies.  And what I, and other Remedies and Constitutional Law Scholars argued was the correct standard.   Instead, she finds that a equal protection remedy is sufficient if it corrects the unconstitutional government action.  

 

November 23, 2020 in Constitutional, Technology | Permalink | Comments (0)

Mapping the Divergent Directions of Gender Quotas for Corporate Boards Since Norway

Darren Rosenblum, Diversity and the Board of Directors: A Comparative Perspective" 
Draft Chapter for Elgar's Research Handbook on Comparative Corporate Governance (Afsharipour & Gelter, eds.), Forthcoming

Upon Norway’s adoption of its corporate board quota, nobody would have predicted that, within fifteen years, most of the top ten economies would follow suit. When Norway adopted its corporate board quota in 2003, it took a clear, new direction for corporate governance and for equality law. In so doing, it recognized two things: 1) the central role that the private sector plays in determining questions of equality, and 2) the responsibility of the state to ensure that the private sector would rectify entrenched discrimination. These statutes effectively feminized boards across Europe and elsewhere. This Chapter maps the divergent directions these quota efforts have taken, in both civil and common law jurisdictions. Contrasts among these efforts reveal distinct frameworks for inclusion. As social science makes sense of the efficacy of these efforts, this Chapter suggests directions that future inclusion efforts may take.

November 23, 2020 in Business, Gender, Workplace | Permalink | Comments (0)

Thursday, November 19, 2020

How Native American Women Inspired the Women's Rights Movement

Sally Roesch Wagner, How Native American Women Inspired the Women's Rights, Suffrage Movement

“Never was justice more perfect; never was civilization higher,” suffrage leader Matilda Joslyn Gage wrote about the Haudenosaunee, or Iroquois Confederacy, whose territory extended throughout New York State.

Matilda Joslyn Gage led the National Woman Suffrage Association (NWSA) along with Elizabeth Cady Stanton and Susan B. Anthony, the three women trading executive positions over the 20 years of the organization’s existence.

According to Gloria Steinem, Gage was “the woman who was ahead of the women who were ahead of their time.” When the women’s suffrage leadership grew conservative, Gage dropped out of the movement. Suffragists stopped remembering her progressive contributions, like her 1893 revelation of the sex trafficking of women and girls in the United States.

Gage, and to a lesser extent Stanton, were largely dropped from the history. With their exclusion, we also lost this story of how they saw women’s rights in action in the native culture of the Haudenosaunee, and realized they could create the conditions for it in their own society.

Having worked for women’s rights for forty years, Gage and Stanton became increasingly frustrated with their inability to make major gains in their social, economic or political positions as women by the 1880’s.

In their disappointment, they looked beyond the Euro-American culture that was already known intimately to them and gained a vision of a world of equality from their nearby neighbors. Stanton and Gage grew up in the land of the Haudenosaunee, the six nations of the Iroquois Confederacy: the Onondaga, Mohawk, Seneca, Cayuga, Oneida and Tuscarora who had social, religious, economic and political positions far superior to their own, they wrote.

The Six Nation Haudenosaunee Confederacy had, and still have today, a family/governmental structure based on female authority. Haudenosaunee women controlled the economy in their nations through their responsibilities for growing and distributing the food. They had the final authority over land transfers and decisions about engaging in war.

Children came through the mother’s line, not the father’s, and if the parents separated, the children stayed with their mother, and if she died, with her clan family. Women controlled their own property and belongings, as did the children. Political power was shared equally among everyone in the Nation, with decisions made by consensus in this pure democracy, the oldest continuing one in the world.

November 19, 2020 in Legal History, Race, Theory | Permalink | Comments (0)

Justice ACB on Griswold

NPR, Supreme Court's Abortion Cases Could Threaten Birth Control Too

But many people overlook other things that could flow from new U.S. jurisprudence on abortion — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.

That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, Northup says, is part of a century of jurisprudence based on the idea that the U.S. Constitution protects the liberty of individuals.

"It began with cases about how one educates one's children," Northup says, and includes same-sex marriage, contraception and abortion. You can't just take Roe out and not unravel the whole fabric."

Yet from what Barrett has said and written about the Constitution, Northup says, "it's clear she doesn't believe it protects the right to personal liberty."

NPR, On Contraception Case, Amy Coney Barrett Again Avoids Question

The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.

Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.

"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."

"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.

November 19, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

The MeToo Movement's Effect on Juror Bias in Sexual Assault Cases

Mary Graw Leary, Is the #MeToo Movement for Real? Implications for Juror's Biases in Sexual Assault Cases, 81 Louisiana L. Rev. 1 (2020)  

For decades the conventional wisdom asserted that law enforcement, the judiciary, and jurors were skeptical of claims of sexual violence and largely unsympathetic to the plight of victims. Many high profile cases highlighted this reality. These include the acquittal of R. Kelly for rape despite some video evidence, the sentencing of Brock Turner to less than a year incarceration for sexual assault of an unconscious woman, and the guilty plea of Jeffrey Epstein to minor charges despite significant evidence of the sex trafficking of minors. This perception of a lack of justice for sexual violence victims is also generally supported by the documented attrition rates of sexual violence cases as they progress through the criminal justice system. Scholars suggest many reasons for this bias against sex crime victims including victim blaming, discrimination, a desire to not want to believe the abuse occurred, stereotypes of the victims, acceptance of the rape myth, or the perceived credibility of the offenders.

In October of 2017, a public social movement against sexual harassment and sexual assault emerged on the national level (although it previously existed), entitled the “Me Too Movement.” This movement awakened a revelation in the United States of the prevalence of the sexual harassment and abuse experienced by women. By underscoring the frequency with which women are assaulted, the movement forced a reluctant public to face the breadth of the problem and the trauma experienced by these women.

A body of research exists regarding the lack of sympathy of jurors to victims of sexual violence. A new body of research is emerging documenting the effect of the #Me Too Movement on societal perceptions of rape and other forms of sexual violence. This article examines the latter focusing on the effect the movement could have on contemporary societal norms regarding sexual assault. It explores whether these effects may alter previously accepted assumptions regarding jurors, perhaps suggesting a shift not only in public perception, but jury perception of sexual violence. It argues that the Movement has significant potential to ameliorate the attrition problem in sexual assault cases, but not in expected ways. For this positive change to occur, it requires work of prosecutors and judges in these trials rethink evidence and jury selection and incorporate some of the lessons learned.

November 19, 2020 in Courts, Equal Employment, Gender | Permalink | Comments (0)

How Pregnant Employees Fare When Denied Workplace Accommodations, Some Improvement 5 Years After Young v. UPS

Nicole B. Porter, Accommodating Pregnancy Five Years After Young v. UPS: Where We Are & Where We Should Go,  14 St. Louis U. J. Health L. & Pol'y, Forthcoming

This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were very rare until Congress expanded the ADA’s definition of disability in 2008. And PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc.1 Five years after that decision, this Article will analyze the body of PDA cases decided since Young, and all of the ADA cases where pregnancy is the claimed disability since the ADA was amended in 2008. Although the picture is not quite rosy for pregnant plaintiffs, it is perhaps more positive than many scholars predicted it would be. Nevertheless, there remain many gaps in protection — some caused by the statutes’ limitations — but many caused by litigants’ and judges’ inability (or unwillingness) to properly interpret these two statutes. This Article will explain where we are and explore options for where we should go in the future.

November 19, 2020 in Equal Employment, Pregnancy, Workplace | Permalink | Comments (0)

Wednesday, November 4, 2020

Colorado Passes Paid Family and Medical Leave

Colorado Voters Say Yes to a Paid Family and Medical Leave Act Program

Colorado voters have approved a new paid family and medical leave law. The measure had the support of 57 percent of voters as of 9:30 p.m., with a sizable lead of nearly 400,000 votes.

 

Under Proposition 118, Colorado would require that employers provide 12 weeks of paid time off for childbirth and family emergencies. Eight other states and Washington, D.C., have created similar programs in the last two decades.

 

"I am happy for the workers of Colorado," said State Sen. Faith Winter, a paid leave proponent The new law will ensure that mothers don't have to return to work mere days after giving birth, she said, and that cancer patients can take time to heal.***

 

Labor reformers have been trying to pass a similar law in Colorado since 2014, but it has failed each time in the legislature. This year, after legislative efforts fell apart yet again, advocates instead decided to put the measure on the ballot. It’s the first time that voters in any state have been asked to decide on a paid leave law.

 

The supporting campaign had raised nearly $6.5 million as of mid-October, mostly from the North Fund and the Sixteen Thirty Fund, national liberal nonprofits that don’t disclose their donors.

 

Business interests have fought similar measures in Colorado for years — but they ultimately were outspent by a 10-to-1 ratio, said opposition campaign co-chair Dave Davia. It was difficult to raise money amid a bruising pandemic year and with 10 other statewide ballot measures competing for funding, he said.

 

See Lily, Paid Family Leave Has Never Been on a Ballot--Until this Year

 

As voters cast ballots for national, state and local candidates, they will also be asked to vote on Proposition 118, to create a paid family and medical leave program. If passed, it would be the ninth state, plus D.C., to do so.

 

This is the first time it has been directly on a state ballot. In the past, it has always originated from a state legislature or, in the case of D.C., the city council.

 

If passed, workers in Colorado could expect up to 12 weeks of paid leave, with an additional four weeks for qualifying childbirth or pregnancy complications.***

 

In Colorado, the new measure would include maternity, paternity, medical leave, or time off to care for a family member. The program would work like other social insurance programs with employees and employers contributing to a fund, equivalent to 0.45 percent of an employee’s wages. Employers have the option to pay up to 100 percent of the contributions.

 

Businesses with fewer than 10 employees would not have to contribute, but their employees still receive the time off. The average Colorado worker would contribute less than $4 a week, according to the Fairness Project.

 

The measure has received bipartisan support, including from advocates for small businesses, who say owners don’t want to compete with large corporations for benefits.

November 4, 2020 in Family, Legislation, Work/life | Permalink | Comments (0)

Abortion Rights on the Ballot: LA Passes Anti-Abortion Constitutional Amendment, CO Rejects 22 Week Ban on Abortion

Louisiana Just Passed an Amendment

Louisiana voters have just passed an amendment to the state constitution to clarify that nothing in it protects the right to abortion in the state. Given the current makeup of the courts, and, notably, a new anti-choice justice on the Supreme Court, it is a clear step toward preparing for Roe v. Wade to be overturned, which would make abortion access a state issue rather than a federal one. If that happens, Louisiana, it seems, wants to waste no time in banning it. 

As such, the following language will be added into Louisiana’s constitution: “To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Three states—Tennessee, Alabama, and West Virginia--have similar constitutional language.

NY Times Election Results: LA Ban (62% to 37%)

 

Colorado Proposition 115 Results: 22 Week Abortion Ban Rejected

The state remains one of seven with no gestational limits on abortion.

Colorado voters just rejected a measure that would have banned abortion in the state after 22 weeks’ gestation, according to the New York Times and the Associated Press.

The measure, Proposition 115, was backed by the anti-abortion group Due Date Too Late, which argued that abortions after 22 weeks were inhumane. But supporters of abortion rights were concerned about the impact of the measure on pregnant people, not just in Colorado, but around the country.

Abortions in the third trimester of pregnancy are rare, with nearly 99 percent of abortions happening before 22 weeks’ gestation. But a small percentage of patients seek abortion later in pregnancy, sometimes because of severe fetal abnormalities that can only be diagnosed at that time. Proposition 115 did not have an exception for such abnormalities, or for rape, incest, or the health of the pregnant person, allowing abortion only if it was “immediately required to save the life of a pregnant woman.”

Abortion-rights advocates nationwide were especially concerned about the measure because Colorado is one of just seven states in the country with no gestational limit on abortion. That means patients seeking later abortions in states with such limits often come to Colorado for care, sometimes traveling thousands of miles to do so.

NYT, NYT Election Results: Ban Late Term Abortions (59% to 40%)

 

See also Wash Post, Abortion is on the Ballot in Two States, Providing a Glimpse at a Post-Roe World

November 4, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)