Gender and the Law Prof Blog

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

Friday, December 4, 2020

Tracing the Development of Gendered Violence as an Issue of Global Constitutional Law

Judith Resnik, Susanne Baer & Marta Cartabia, Women, Gendered Violence, and the Construction of the "Domestic" in Seeking Safety, Knowledge, and Security in a Troubling Environment: Global Constitutionalism 2020

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

This Chapter begins with an examination of the centuries-long assumption that gender-based violence was a “private” issue meant that legislatures, law enforcement agencies, and courts were unresponsive. It then maps how social movements and critical lawyering reframed gendered violence as one form of subordination that is in fact a marker of inequality and provides examples of national and transnational law that debate the bases, contours, and implications of rights to be free from such oppression. Having explored what affirmative obligations governments have toward their own populations to protect against gendered violence, this Chapter considers whether international refugee law, humanitarian law, and jurisdictions’ own constitutional law require offering a haven for people escaping gendered violence. Across the world, many courts have read constitutions to require that law aim to provide protection against and safety from gendered violence. Such mandates for an active state presence (often through criminalization) contrast with traditional approaches in which courts have insisted that law not interfere when acts are marked as private, intimate, or domestic. This Chapter explores the demands on the state and the repertoire of remedies deployed when governments work towards achieving substantive equality.

December 4, 2020 in Constitutional, International, Violence Against Women | Permalink | Comments (0)

Using Social Science to Understand Why Family Courts Discount Women's Testimony in Domestic Violence Cases

Amelia Mindthoff, Deborah Goldfarb, Kelly Alison Behre, How Social Science Can Help Us Understand Why Family Courts May Discount Women's Testimony in Intimate Partner Violence Cases, 53 Family Law Quarterly, No. 3, 2019.

Thirty years ago, legal scholars and social scientists began to note the legal systems’ skepticism of women in general and victims of gender-based violence in particular. Despite increased public awareness about domestic violence, female victims of intimate partner violence (IPV) continue to find their credibility discounted. Deborah Tuerkheimer coined the term “credibility discount” to describe how the criminal legal system responds to women’s reports of sexual violence by discounting their credibility at every step of the process, from initial reports to law enforcement and prosecutorial discretion through judicial and jury decisions. Deborah Epstein and Lisa Goodman expanded the dialogue on credibility discounting to include the experiences of female victims of IPV in legal and social service settings. IPV victims often access family courts for injunctive relief, child custody and visitation orders, and financial relief following separation from an abusive partner, a time period during which they are at a heightened lethality risk. Consequently, credibility discounting by family courts may prove particularly dangerous for victims of IPV.

This Article builds upon the work done thus far on the intersection of gender and credibility in the family courts by reviewing both psychological research and legal scholarship examining factors that may contribute to the perseverance of credibility discounting of IPV victims. As part of this discussion, we raise potential psychological misperceptions or assumptions that underlie the discounting of people’s credibility, including factors that may be particularly pertinent to women reporting IPV. We further consider the implications of these misperceptions in family court settings. We hope this advances the discussion on remedies for credibility discounting to ensure that victims receive just treatment as they navigate the legal system.

Part I of this Article reviews the family court’s role in IPV cases and how it can perpetuate credibility discounting. Part II discusses gender biases in the legal system that have the potential to propagate credibility discounting of IPV victims navigating the family court system. Part III explores general psychological theory and associated empirical evidence and considers how theory can shed light on why credibility discounting may persist in family courts. Part IV provides suggestions for ways to mitigate gender bias demonstrated in the credibility discounting of IPV victims in family courts.

December 4, 2020 in Courts, Family, Violence Against Women | Permalink | Comments (0)

Patents and Gender: Rethinking Structural and Institutional Biases

Jessica Lai, Patents and Gender: A Contextual Analysis, 10(3) Queen Mary Journal of Intellectual Property 283-305 (2020)

Patent law is considered to be an objective law, dealing with the objective subject matter of the “technical arts”. Yet, empirical studies show that patenting rates around the world are gendered. This article analyses the roots of the gender patent gap, and how this correlates to the invention and innovation processes. It shows that the gendered nature of the patent-regulated knowledge governance system forces women into traditionally male spaces and fields in order to partake in the extant patent game. Yet, when they enter those spaces and fields, they often find themselves unwelcome and subject to institutional, structural or organisational biases, which impinge upon their ability to invent, patent and commercialise.

The article re-frames the discourse around women inventors. It argues that we have to stop focusing on the “women in science, technology engineering and mathematics (STEM)” narrative, because it is a distraction from the underlying problem that the Western knowledge governance system reflects the hegemonic powers at play. Instead, we need to re-think the knowledge governance system and the ecosystem it creates, in order to ensure egalitarian knowledge production and protection.

December 4, 2020 in Business, Gender, Science | Permalink | Comments (0)

Tuesday, December 1, 2020

New Book: Women and the Law (2020), Annual Edition of Selected Greatest Hits in Legal Scholarship on Women's Rights

I've just published the 2020 edition of Women and the Law (Thomson Reuters).  It is an annual edition of selected works on women and the law likely to be of interest to practitioners in the field.  Kind of a "greatest hits" if you will of the legal scholarship from the prior year.

Here is this year's Table of Contents:

Part A Special Issue: The Nineteenth Amendment

Chapter 1 More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Tracy A. Thomas

Chapter 2 The Nineteenth Amendment and the Democratization of the Family, Reva B. Siegel

Chapter 3 The Constitutional Development of the Nineteenth Amendment In the Decade Following Ratification, Paula A. Monopoli

Chapter 4 Thin and Thick Conceptions of the Nineteenth Amendment Right To Vote and Congress's Power To Enforce It, Richard Hasen and Leah M. Litman

Chapter 5 The “Welfare Queen” Goes to the Polls: Race Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Catherine Powell and Camille Gear Rich

Part B Women in the Workplace

Chapter 6 Sexual Harassment Litigation with a Dose of Reality, Diane P. Wood

Chapter 7 What's Reasonable Now? Sexual Harassment Law After the Norm Cascade, Joan C. Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, and Rayna Saron

Chapter 8 Beyond the Bad Apple—Transforming the American Workplace for Women After #MeToo, Claudia Flores

Chapter 9 Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, Orly Lobel

Part C Reproductive Rights

Chapter 10 The Continued Rise of the Reproductive Justice Lawyer, Leigh Creighton Bond and Monika Taliaferro

Chapter 11 Contracting Pregnancy, Rachel Rebouché

Part D Feminism and the Family 

Chapter 12 Unsexing Pregnancy, David Fontana and Naomi Schoenbaum

Chapter 13 Settling in the Shadow of Sex: Gender Bias in Marital Asset Division, Jennifer Bennett Shinall

Part E Violence Against Women

Chapter 14 Straight Outta SCOTUS: Domestic Violence, True Threats, and Free Speech, Jessica Miles

Chapter 15 Retraumatized in Court, Negar Katirai

Chapter 16 #MeToo and Mass Incarceration, Aya Gruber

Part F Theory

Chapter 17 Sex in Public, Elizabeth Sepper and Deborah Dinner

Chapter 18 Leveling Down Gender Equality, Tracy A. Thomas

Chapter 19 Engendering Trust, Deborah S. Gordon

Chapter 20 The Body Politic: Federalism as Feminism in Health Reform, Elizabeth Y. McCuskey

December 1, 2020 in Books, Gender, Scholarship | Permalink | Comments (0)