Wednesday, June 30, 2021
Study Shows Benevolent Sexism in Judges in More Favorable Decisions for Women in Child Custody Relocation and Criminal Sentencing Cases
Jeffrey Rachlinski & Judge Andrew Wistrich, Benevolent Sexism in Judges, 58 San Diego L. Rev. 101 (2021)
Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.
On Monday, Connecticut governor Ned Lamont signed into law Senate Bill 1091, which is the latest and perhaps most comprehensive law in the United States protecting people who are subject to coercive control by their partners and ex-partners.
The bill includes nearly a dozen new statues relating to domestic abuse. Among them, for the first time Connecticut will consider coercive control a form of domestic violence. The coercive control definition includes controlling, regulating or monitoring a household or family member’s movements, communications, daily behavior and economic resources, depriving them of basic necessities or isolating them from family or loved ones. The law allows coercive control survivors to file restraining orders against their abusers rather than requiring that they wait for physical violence severe enough to be acknowledged by a court as a threat.
Liz Morris & Jessica Lee, Compliance or Complaints? The Impact of Private Enforceability of Lactation Break Time and Space Laws
The Break Time for Nursing Mothers requirement has been federal law for over a decade, requiring employers to provide reasonable break time and private space to employees for expressing breast milk. However, non-compliance remains a problem, driven in large part by the lack of enforcement incentive to become educated about and follow the law. Legislation to remedy the enforcement gap in existing law is pending. This report examines an important question policymakers consider when assessing attempts to reform the law: whether and to what extent adding a private enforcement mechanism to a lactation break time and space law impacts litigation rates.
We conducted an in-depth review of lawsuits filed against employers in the four jurisdictions with privately enforceable break time and space laws to examine the likelihood that employers will be sued. Our research identified only 6 lawsuits filed against employers in the jurisdictions over the combined 47 years that the laws have been in effect. All of the lawsuits were brought by employees alleging actual economic damages, typically job loss. Given the small number of cases, the annual likelihood a private company will be sued under an enforceable lactation break time and space law is essentially zero (0.0002%).
WorkLife Law’s data show that allowing employees to enforce lactation break time and space laws in court does not lead to a meaningful increase in litigation.
Tuesday, June 15, 2021
On June 6, 2021, Mexico implemented its constitutional mandate for “gender parity in everything” for the first time. All eyes were on the 15 governors’ seats up for grabs, with Mexico becoming the first country in the world to require that parties nominate women for governors’ races.
Women ultimately won five states: Baja California, Chihuahua, Colima, Guerrero and Tlaxcala. Votes are still being counted in Campeche, but the woman candidate has the edge, and her victory would mean Mexico elected six women governors—over one-third of the races in contention and more than ever elected at once in the United States.
True, women’s victories are concentrated in the states outside Mexico’s power centers, because that’s where parties mostly sent women candidates. Nonetheless, women will play leading roles in Mexico’s future.***
The idea of gender quotas for women candidates goes back nearly 50 years, to the United Nations’ First World Conference on Women, coincidentally held in Mexico City in 1975. At the time, the U.N. recommendations merely emphasized the importance of women’s political inclusion, but women activists and elected officials knew party leaders would need requirements, not pretty words. So in Latin America and elsewhere, women began pushing party leaders to set targets for nominating women.
In 1991, Argentina became the first country in Latin America and the world to adopt a 30 percent gender quota law for women candidates. Mexico followed, with a 1996 law recommending that parties nominate 30 percent women for the federal Congress, and a 2002 law requiring them to do so. Key to this shift was Mexico’s democratization.
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAVANAUGH join, respecting the denial of certiorari.
The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’” Sessions v. Morales-Santana (quoting United States v. Virginia); see Califano v. Westcott; Califano v. Goldfarb; Weinberger v. Wiesenfeld; Frontiero v. Richardson. Cf. Bolling v. Sharpe. The Military Selective Service Act requires men, and only men, however, to register for the draft upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were “excluded from combat” roles and hence “would not be needed in the event of a draft.”
The role of women in the military has changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets. As of 2015, there are no longer any positions in the United States Armed Forces closed to women. Petitioners ask the Court to overrule Rostker in light of these developments.
Petitioners, however, are not the only ones asking whether a male-only registration requirement can be reconciled with the role women can, and already do, play in the modern military. In 2016, Congress created the National Commission on Military, National, and Public Service (NCMNPS) and tasked it with studying whether Selective Service registration should be conducted “regardless of sex.”
On March 25, 2020, the Commission released its final report, in which it recommended “eliminat[ing] male-only
registration.” Inspired to Serve: The Final Report of the [NCMNPS] 111. Among other things, the Commission
found that “[m]ale-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his “hope” that
a gender-neutral registration requirement will be “incorporated into the next national defense bill.”
It remains to be seen, of course, whether Congress will end gender-based registration under the Military SelectiveService Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.
Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.***
On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.
That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.
In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.
Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.
So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.
That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.
Martha Ertman, Contract's Influence on Feminism and Vice Versa, Handbook of Feminism and Law in the U.S. (Debora Burke, Martha Chamallas & Verna Williams eds., forthcoming)
This book chapter for an Oxford Handbook on U.S. Feminist Legal Theory describes the role of contract theory and doctrine in feminist legal theory. After a brief discussion of its roots in political theory re: the social contract, sets out examples of feminist theory that portray contract as a route to gender equality, others that signal dangers of contract colluding with gender subordination, and finally an intermediate approach that views contract as a private law laboratory of sorts to try out new forms of relation that eventually can mature to public law rules that recognize gender equality. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional contract law via doctrines such as good faith in employment contracts, debtor rights in lending relationships, and defenses such as unconscionability and duress. Throughout, this chapter focuses on topics that have generated the most feminist legal attention, which often relate to families.
Monday, June 14, 2021
Rachel Lopez, Unentitled: The Power of Designation in the Legal Academy, 73 Rutgers L. Rev. 101 (2021)
Last December, the Wall Street Journal published an op-ed that questioned whether Dr. Jill Biden should more appropriately be addressed as Madame First Lady, Mrs. Biden, Jill, or even kiddo, characterizing her desire to be called doctor “fraudulent” and a “touch comic.” Many were understandably outraged by the lack of respect afforded to Dr. Biden, which had a distinctly gendered dimension. More recently, after a controversial decision by the University of North Carolina’s board of trustees to deny her tenure, Nikole Hannah-Jones, a Pulitzer Prize and MacArthur “genius grant” winner, was instead appointed as a “Professor of Practice” on a five year fixed term contract. These high-profile examples put in sharp focus what many women of color in the legal academy already know all too well: labels have an innate power to confer or diminish status. This Essay explores the role that titles play in the legal academy and, in particular, their often depreciative consequences for women of color. Drawing from my story, those relayed to me by others, and other empirical evidence, I will show how titles perpetuate stereotypes and entrench existing racial and gender hierarchies in the legal academy, although they appear race- and gender- neutral.
It is no secret that the legal academy is extraordinarily hierarchical, with women and people of color often populating the lower ranks of the totem pole. There is a stinging irony to this. As Ruth Gordon eloquently put it, “many of us spend our professional lives contesting hierarchy and exclusion—whether on the basis of race, gender, or class—but when it comes to academia—and I would suggest especially legal academia—we appear to have finally found a hierarchy we can believe in.” There is a problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.
Labels, in the form of titles, help cement these disparities, concretizing them into a caste system that justify unequal pay, less power in faculty governance, and, at times, abusive behavior. While doctrinal professors are “Professors of Law,” the academic archetype, the legal academy has developed a virtual cottage industry of other professional designations. These titles denote “the other teachers” in the legal academy: Clinical Professor, Professor of Practice, Teaching Professor, and Legal Writing Instructor, to name a few. The message is that “Professors of Law” are the ones who really teach the law, while those with the other titles teach something else less important.
If law schools truly aspire to be anti-racist institutions, as so many have pledged to be, we must acknowledge and hopefully someday soon address the racial and gendered (often intersectional) dynamics of titles in the legal academy.
Chinyere Ezie, Not Your Mule?: Disrupting the Political Powerlessness of Black Women Voters, 92 U. Colorado L. Rev. 659 (2021)
On the one hundredth anniversary of the Nineteenth Amendment, this Article reflects on the legacy of Black women voters. The Article hypothesizes that even though suffrage was hard fought, it has not been a vehicle for Black women to meaningfully advance their political concerns. Instead, an inverse relationship exists between Black women's political participation and their relative level of socioeconomic and political well-being. Taking recent national elections as a case study, the Article identifies two sources of Black women's political powerlessness: “caretaker voting” and the "trapped constituency problem.” The Article concludes that Black women's strong voter turnout coupled with their reliable support of the Democratic Party has had the perverse outcome of cementing their irrelevance in the electoral system. To disrupt this trend, the Article proposes a new path forward
Sophia Shepherd, The Enemy is the Knife: Native Americans, Medical Genocide, and the Prohibition of Nonconsensual Sterilizations, 27 Michigan J. Race & L (forthcoming 2021)
In the early 1970s, Tribal Nations learned that doctors at Indian Health Service (IHS) hospitals were sterilizing at least 25 percent of Native American women of childbearing age. Most of the women were sterilized without their knowledge or without giving valid consent. This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It explains the obstacles that Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations. In the last decade, living victims of nonconsensual sterilization programs in other parts of the country have received compensation for their losses. Native American women deserve them too.
Deborah Widiss, Equalizing Parental Leave, 105 Minnisota Law Review 1275 (2021)
The United States is the only developed country that fails to guarantee paid time off work to new parents. Just 21% of American workers— and just 9% of the lowest quartile of earners—receive paid parental or family leave from their employers. As a result, many new parents, particularly low-wage workers, are forced to go back to work extremely soon after a birth or adoption. Fortunately, a growing number of states have stepped into the breach, enacting their own laws to provide this paid time off to new parents. Additionally, in December 2019, Congress passed a law providing paid parental leave to most federal workers, and the coronavirus pandemic has heightened calls for a more comprehensive federal solution. The new laws are a significant step forward from the prior baseline of no paid leave, but their structure systematically disadvantages nonmarital families and thus exacerbates inequality on the basis of class, race, and sex.
The unequal treatment of nonmarital families under parental leave laws has been overlooked—in both academic scholarship and policy debate—because in America, leave is typically assessed from the perspective of parents, not families or children. Under the state and federal laws, each parent of a new child receives income replacement during time taken off work to provide care. Mothers and fathers receive the same benefits; this structure is intended to encourage fathers to play a hands-on role in infant care. This is an important objective. Among married different-sex couples, women often curtail paid work when children are born, which has long-term ramifications on married women’s economic and social status. The pandemic has intensified this concern, with women being far more likely than men to disrupt their own work to meet children’s needs—or to have dropped out of the workforce entirely for at least a period of time.
Early evidence from states with paid parental leave programs suggests the gender-neutral structure, which provides equal benefits to each parent, is helping achieve better gender parity. Men are claiming benefits at relatively high rates. However, every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one parent and families with two.
This is a significant issue. Nearly 40% of new mothers in the United States are unmarried; nonmarital birth rates are much higher for women who lack a college degree, as well as for certain racial minorities. This is the result of a large and growing “marriage gap” in our country. When unmarried parents are living together, or otherwise both involved in childcare, it makes sense that each should be able to take parental leave. But many nonmarital children are cared for by a single parent, usually their mother. This is particularly true for Black women; almost one-third of Black women with children under the age of one are the sole adult in their household—unmarried, un-partnered, and not living with extended family. Most single mothers will ultimately bear primary responsibility for both breadwinning and caregiving. But because the state and federal leave laws provide benefits to individual parents, single-parent families are eligible for only half as much support as two-parent families. In other words, the new laws disadvantage the families that are likely to need them the most.
This Article exposes the structural inequality built into paid leave laws and then proposes potential solutions. In the process, the Article makes several contributions. The first are descriptive and doctrinal. The emergence of the state paid family and medical leave laws, and the policy for federal workers, address a major gap in American labor and social welfare policy. A few articles in the legal literature have touched upon these new laws, but this Article provides a far more detailed description of their structure. It then breaks new ground by analyzing how the parental leave laws interact with the state laws that establish legal parentage and custodial responsibility, and shows that this has the—likely unintended—consequence of disadvantaging nonmarital families.
Second, the Article uses this analysis to suggest that our current theoretical approach to assessing “equality” in the context of parental leave laws is incomplete. Parental leave policies implicate foundational questions of sex discrimination doctrine and theory because they respond to key biological and social differences between (cisgender) men and women. American law adopts a formal equality approach, requiring equal benefits for each parent. Most other countries, by contrast, provide maternity leaves that are much longer than paternity leaves, specifically permitting such “special” treatment of mothers under their sex discrimination doctrine. There are merits to both approaches. But the myopic focus on what constitutes “equal” treatment of parents obscures other important vectors of analysis, such as equal treatment of children or families. Further, by shortchanging single parents, disproportionately women of color, the American structure perpetuates other forms of inequality. In this respect, the Article builds on other scholarship that has exposed how labor policies privileging ideals of formal equality may disadvantage women and exacerbate class and race-based disparities.
Finally, the Article applies this expanded theoretical frame to suggest policy reforms that would address the inequitable treatment of single-parent families without abandoning the aspects of the current structure that are helping shift gender norms around caretaking in two-parent families. Drawing on models used in other countries, the Article proposes that sole parents (which could be defined according to legal parentage, legal custody, or the use of other factors to gauge the level of involvement by a second-parent) would be able to access an extended period of benefits, or that a broader range of family members be able to claim benefits to care for a newly-born, newly-adopted, or newly-fostered child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits, which helps ensure that a mother with medical needs during pregnancy still has access to paid time off after the birth; this is important for all birth mothers, but it is particularly essential for single parents. These solutions could be readily achieved without unduly burdening any individual employer because the costs of benefits are spread through an insurance-based approach.
Tuesday, June 8, 2021
Deborah Weissman, Gender Violence, the Carceral State, and the Politics of Solidarity, forthcoming, University of California, Davis
Legal epistemologies have tended to ignore issues of gender violence, in large measure because much of the law itself has been implicated in the normative arrangements through which such harms are sustained. State violence against women was practiced as a facet integral to colonial expansion. Gender violence has a long history of legal sanction and political “authorization,” including enslavement, subjugation, and rape of indigenous women. Chattel slavery and Jim Crow laws legalized all forms of abuse of Black women. Forced sterilization and the eugenics movement impacted all women, but especially poor women and almost always women without representation, including Black, brown, and immigrant women. Rape laws favored male propertied interests over women’s rights.
As the principal victims of gender violence, women obtained meager remedy of such harms until feminist mobilizations confronted the problem. Feminist demands to resituate gender violence from the margins of social concern into mainstream public debate found a receptive political environment in the law-and-order climate of the 1970s and 1980s. The criminal legal system thus expanded networks of carceral responses with little regard for safety or ending the problem of gender violence but rather produced pernicious outcomes that resulted in new forms of harms with devastating consequences.
The present re-evaluation of methods of policing and the practice of incarceration offers an occasion to examine prevailing approaches to gender violence. Anti-carceral advocates have urged a shift away from criminal system responses and have campaigned to curb police violence within newly imagined strategies for public safety. The criminal legal system has tended to produce and reproduce patterns of racism and poverty. That it functions in similar fashion to gender violence has received less attention.
These considerations provide the framework of this article: to examine the ways that crimes of gender violence can be accommodated within progressive criminal reform campaigns and included within the broader struggle for social justice, all at a time of a shifting cultural response to crime. It argues that anti-carceral proponents must consider whether the response to gender violence is to be included within other criminal legal reform movements, including recent initiatives to address abusive police practices, bail reform, and COVID-19 compassionate release campaigns. At this present “moment of agitation,” it is both timely and urgent that scholars and advocates contemplate strategies that incorporate gender violence issues within a progressive anti-carceral agenda and to acknowledge the connection between harmful acts within interpersonal relationships and the failure of the State.
The article proposes a “politics of solidarity,” that is, a broad lens through which to address gender-based violence as a social problem conditioned by the failures of a political economy that acts to perpetuate inequality and racism. It suggests that anti-carceral strategies that center gender violence may help to strengthen the broad demands for a more progressive political economy which then mitigates the determinants of transgressive behaviors.
Laura Padilla, Women Law Deans, Gender Sidelining, and Presumptions of Incompetence, 35 Berkeley J. Law & Gender 1 (2021)
In 2007, I wrote A Gendered Update on Women Law Deans: Who, Where, Why, and Why Not? which examined the number of women law deans, including women of color, their paths to deanships, and what the future might hold for decanal leadership from a gendered and racialized lens. A Gendered Update reported that in the 2005 2006 period, thirty one law deans at the 166 Association of American Law Schools (“AALS”) member schools were women (18.7%). Only three of the thirty-one women law deans were women of color (1.8%).***
This Article starts with updated data on the number of women law deans, including women of color, and demonstrates increased numbers of both women and women of color in deanships. It then shifts to plausible explanations for this growth: some optimistic and some more skeptical. On the positive side, it is logical that new appointments reflect women’s increased representation in the broader legal population, which serves as the source of most new dean hires. In addition, there seems to be some recognition that women bring something new and different to leadership: a greater willingness to change, be flexible, and approach old problems in new ways. On the other hand, running a law school has become more challenging because of a decline in applications and credentials since 2011, which has translated into smaller classes and budgets, voluntary and involuntary layoffs, more work, and less pay. It may be no coincidence that as the job became less desirable, women were appointed in greater numbers.
Next, this Article provides narrative descriptions of women’s experiences in leadership, including experiences unique to women of color, such as common stories of presumptions of incompetence, and gender sidelining. The stories are culled from surveys sent to all women law deans. The survey responses reveal challenges in leadership roles, risks taken, and battles won and lost, and display increased obstacles for women of color.
The next Part of this Article develops ideas on how to continue increasing the number of women law deans and provide them support for success
NYT, Book Review, Why "Unwell Women" Have Gone Misdiagnosed for Centuries
Reviewing: Elinor Cleghorn, UNWELL WOMEN: Misdiagnosis and Myth in a Man-Made World
In order to recognize illness, you have to know what health looks like — what’s normal, and what’s not. Until recently, medical research generally calibrated “normal” on a trim white male. Such a patient, arriving in an emergency room clutching his chest as they do in the movies — and in the textbooks — would be immediately evaluated for a heart attack. But heart disease in women, inconveniently, doesn’t always come with chest pain. A woman reporting dizziness, nausea and heart-pounding breathlessness in that same E.R. might be sent home with instructions to relax, her distress dismissed as emotional rather than cardiac.
Heart disease has clear markers and proven diagnostic tools. When a woman’s symptoms are less legible or quantifiable — fatigue, vertigo, chronic pain — the tendency to be dismissive grows. In “Unwell Women,” the British scholar Elinor Cleghorn makes the insidious impact of gender bias on women’s health starkly and appallingly explicit: “Medicine has insisted on pathologizing ‘femaleness,’ and by extension womanhood.”
A woman’s purpose was to procreate; if she wasn’t well, it was probably her womb that was to blame. One Roman writer described the uterus as “an animal within an animal,” with its own appetites and the capacity to wander through the body in search of satisfaction. Most female afflictions could be reduced to “hysteria,” from the Greek word for womb. “The theory that out-of-work wombs made women mad and sad was as old as medicine itself,” Cleghorn notes. The standard cure was marriage and motherhood. As Hippocratic medicine was refracted through the lens of Christianity, the female anatomy was additionally burdened with the weight of original sin.
Moving steadily through the centuries, Cleghorn lays out the vicious circles of women’s health. Taught that their anatomy was a source of shame, women remained in ignorance of their own bodies, unable to identify or articulate their symptoms and therefore powerless to contradict a male medical establishment that wasn’t listening anyway. Menstruation and menopause were — and often still are — understood as illness rather than aspects of health; a woman’s constitution, thus compromised, could hardly sustain the effort required for scholarship or professional life.
The intersection of class and race complicates things further. As early as 1847, the Scottish physician James Young Simpson argued in favor of anesthesia during labor and delivery, contradicting the age-old belief that the pain of birth was part of God’s judgment. (To this day, women who opt for an epidural instead of “natural childbirth” can feel a nagging sense of failure.) But even liberal-minded men like Simpson believed that what he called the “civilized female” needed his revolutionary innovation more than her less privileged sisters. Black women were thought to be less sensitive to pain and working-class women were considered hardier in general; certainly no one worried about whether these women could work while menstruating.
Each scientific advance came with its own shadow. Margaret Sanger may have campaigned for contraception “as a way for women to reclaim their bodies and lives from medical and social control” — but for women of color, birth control was presented more as a duty than a right, a weapon against overpopulation and poverty requiring the policing of women.
Friday, June 4, 2021
Jamie Abrams, Feminist Pedagogy in Legal Education, Oxford Handbook of Feminism and Law in the United States, Oxford University Press, 2021 Forthcoming
This chapter, which will appear in the Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas & Verna Williams, eds.), traces and evaluates the influences of feminism in legal education. It explores how feminist critiques challenged the substance of legal rules, the methods of law teaching, and the culture of legal education. Following decades of advocacy, feminist pedagogical reforms have generated new fields, new courses, new laws, new leaders, and new feminist spaces. This chapter captures many reasons to celebrate the accomplishments of our feminist pioneers and champions. It also serves as a critical call to action to modern faculty, administrators, and students to carry the work forward with a vigilant purpose and determination.
On the eve of the Nineteenth Amendment’s ratification in 1920, Carrie Chapman Catt—the leader of the National American Woman Suffrage Association (NAWSA)—envisioned the establishment of a nonpartisan body dedicated to female voters’ political education that would help newly enfranchised women develop a voice in public affairs. To this end, Catt guided the conversion of NAWSA into a post-suffrage association called the National League of Women Voters (LWV). While Catt’s goal of training women for full citizenship was abstract, many state and local Leagues took a more practical approach, learning from the experience of tackling specific social problems. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. It draws from the archival papers of the San Francisco Center of the LWV, as well as other primary sources, to reveal the contradictions and shortcomings, as well as the achievements, of newly enfranchised California women who sought to carry on the suffragists’ legacy.
During the four decades between 1911 and the middle of the twentieth century, the San Francisco Center advocated gender-specific approaches to crime with varying degrees of success or failure. Initially prompted to investigate the ills of lower-level criminal courts (known as “police courts”) by a local judge’s mishandling of rape cases, San Francisco clubwomen launched a full-fledged effort to establish a Women’s Court. Part I of this Article discusses the origins, goals, and limitations of the Women’s Court and the San Francisco Center’s subsequent campaign for the appointment of a female prosecutor and municipal judge. Although influenced by Progressive ideas about the use of specialized courts and trained experts, League members mostly confined their efforts to morals offenses that recalled the Victorian social purity movement, rather than seeking remedies for domestic violence and other aspects of crime that affected women.
Part II explores another project supported by the San Francisco Center that exemplified how Progressive tools might perpetuate essentially Victorian values. During the first half of the twentieth century, San Francisco clubwomen urged the SFPD, with little success, to hire a substantial number of female police officers. The San Francisco Center emphasized prostitution and other vices of “fallen” women as areas of law enforcement for which female officers supposedly possessed special skills. Limited both by the SFPD’s reluctance to hire women and female reformers’ myopic interest in preventing prostitution, the San Francisco Center doggedly pursued an agenda that entrenched gender segregation on the police force without bringing real remedies to systemic sexism or the victimization of women.
Part III describes the most revolutionary criminal justice reform project that members of the California LWV spearheaded in the first half of the twentieth century: the creation of a “prison without walls” for female offenders. Based on the notion that women who committed crimes, even felonies, might be taught law-abiding ways through education, hard work, and humane treatment, the Tehachapi prison experiment demonstrated that newly enfranchised female voters had gained traction in public life. However, while the creation and operation of the women’s prison gave substance to a rehabilitative ideal more forward-looking than many LWV proposals for moral enforcement, the male-dominated legal system created substantial impediments to the success of the Tehachapi facility.
The Conclusion assesses the contributions of the LWV and its state and local branches in California. Like their sisters in the national organization, members of the San Francisco Center worked tirelessly on social welfare issues and civil service reform, opening unprecedented paths to jobs and community involvement for women. In contrast, their criminal justice reform efforts were hampered, not only by the differing interests and continued power of male jurists, police chiefs, and prison officials, but also by the clubwomen’s obsession with prostitution. The affluent white activists of the San Francisco Center and the state-level LWV failed to advocate structural changes that might have liberated women, especially poorer and racial-minority women, from gendered violence. Yet despite the San Francisco Center’s limited success in obtaining justice for victims of sexual exploitation, integrating the San Francisco Police Department, and rehabilitating female offenders, its activities helped put women into public office and provide concrete opportunities for political engagement in the first few decades after suffrage was achieved.
Renee Knake Jefferson, Judicial Ethics in the #MeToo World, 89 Fordham L. Rev. 1197 (2021)
This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report such behavior. But many argue the reforms do not go far enough. Congress, in the wake of media outcries, held hearings in early 2020. The judiciary’s tepid response holds consequences not only for the judges and the survivors of sexual misconduct but also for the legal profession as a whole. Leaving meaningful #MeToo remedies to journalists and lawmakers threatens judicial independence; it sets a precedent that could influence further intervention into other areas of professional conduct governance that is traditionally reserved for the courts. After offering additional reforms for addressing sexual misconduct in the judiciary, this Article concludes by reflecting on lessons that can be drawn about the judicial role in professional ethics regulation more broadly.
Susanna Mancini & Nausica Palazzo, The Body of the Nation: Illiberalism and Gender, Routledge Handbook of Illiberalism (S. Holmes, A.Sajo, R. Uitz eds., forthcoming, 2021)
Gender has become a central feature of illiberal rhetoric and action. While socio-legal scholarship has established a clear relationship between anti-genderism and populist parties and/or the global right, the link between anti-genderism and illiberalism has not yet been clearly established. The aim of this chapter is to fill this gap.
The chapter first explicates the link between anti-genderism and global right/right-wing populism (two phenomena strictly related to contemporary illiberalism). It then establishes a more specific link between anti-genderism and illiberalism, by focusing on illiberal actors’ war on “gender ideology”, and their efforts to reshape human rights epistemology. The analysis corroborates these links by looking at three domains: immigration, religious attire, and sexual and reproductive rights.
Thursday, June 3, 2021
Caroline Mala Corbin, Public School Teachers & Transgender Students & Pronouns, Balkinization, March 19, 2020
This is a short review essay of Helen Norton’s book, The Government’s Speech and the Constitution. It applies Professor Norton’s framework to the question of a public school teacher who refuses on religious grounds to use the proper pronouns of transgender students in their classroom. It concludes that public school teachers do not have a free speech right to misgender students. To start, how teachers address students is likely government speech, and therefore outside the scope of Free Speech Clause protection. Even if not, it fails the Pickering-Connick balancing test. First, while the topic of gender identity is without doubt a matter of public concern, at issue is not a discussion of it but a private interaction. Second, a teacher’s refusal to abide by anti-discrimination rules is highly disruptive of the school's mission given the negative impact on the education of transgender students. Finally, for a public school to accommodate the teacher may violate the Equal Protection Clause.
See also Washington Post, Loudon Teacher Files Lawsuit After Saying Won't Use Transgender Student's Pronouns
Martha McCluskey, Law and Economics Against Feminism, accepted for OXFORD HANDBOOK ON FEMINISM AND LAW IN THE U.S., Deborah L. Brake, Martha Chamallas, and Verna L. Williams, eds.
This chapter analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century. Building on other accounts, I trace how non-academic organizations invested heavily in developing and institutionalizing law and economics as a seemingly neutral methodology that could build academic credibility for anti-egalitarian ideology and legal change. Further, the chapter explains how the substance of this law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best insulated from contested morality and politics. The central law and economics division between seemingly objective economic maximizing and subjective social distribution puts feminist law in a double bind, naturalizing a gendered baseline that generally makes feminist reforms appear costly, unfair, or ineffective. This core conceptual move closes off feminist legal efforts to question and redefine what counts as productive, legitimate economic gain.
Finally, I explore how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics identifies freedom with an economy imagined to remove individual self-interested choices from public support or accountability. That ideal of freedom closes off analysis of how law’s gendered assumptions and unequal protections pervasively limit individual agency and meaningful choice in the economy and in society. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.