Tuesday, July 25, 2023

Barbie, Law, and Gender Theory

Barbie SCT

On understanding the gender and masculinities theories of the Barbie movie, see:

The Atlantic, Shirley Li, The Surprising Key to Understanding the Barbie Movie

NYT Magazine, Greta Gerwig's Barbie Dream Job

Time, How Barbie Helped Raise a Generation of Feminists

MSNBC, Ken is a bell hooks critique come to life in Barbie

The Hunger Fed by Barbie and Taylor Swift

Greta Gerwig's Lessons From Barbie Land

On one of the big legal cases about the intellectual property of Barbie, see:

Orly Lobel, You Don't Own Me: The Court Battles that Exposed Barbie's Dark Side (Norton 2017)

The battle between Mattel, the makers of the iconic Barbie doll, and MGA, the company that created the Bratz dolls, was not just a war over best-selling toys, but a war over who owns ideas.

When Carter Bryant began designing what would become the billion-dollar line of Bratz dolls, he was taking time off from his job at Mattel, where he designed outfits for Barbie. Later, back at Mattel, he sold his concept for Bratz to rival company MGA. Law professor Orly Lobel reveals the colorful story behind the ensuing decade-long court battle.

You Don't Own Me: The Court Battles That Exposed Barbie's Dark Side by [Orly Lobel]

July 25, 2023 in Books, Gender, Masculinities, Media, Pop Culture, Theory | Permalink | Comments (0)

New Book The Oxford Handbook of Feminism and Law in the US

Deborah Brake, Martha Chamallas & Verna Williams, The Oxford Handbook of Feminism and Law in the United States (Oxford 2023)

Combining analyses of feminist legal theory, legal doctrine, and feminist social movements, The Oxford Handbook of Feminism and Law in the United States offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. Its chapters connect legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinize criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent brands of feminist legal theory shows the links and divergences among feminist scholars, highlighting the continued relevance of established theories (liberal, dominance, and relational feminism) and the increased importance of new intersectional, sex-positive, and postmodern approaches.

Unique in its triple focus on theory, doctrine, and social movements, the Handbook recounts the history of activist struggles to pass the Equal Right Amendment, the Anti-Rape and Battered Movements of the 1970s, the contemporary movements for reproductive justice and against campus sexual assault, as well as the #MeToo movement. The emphasis on theory and feminist practice animates discussions of feminist legal pedagogy and feminist influences on judges and judicial decision making. Chapters on emerging areas of law ripe for feminist analysis explore foundational subjects such as contracts, tax, and tort law, and imagine feminist and social justice approaches to digital privacy and intellectual property law, environmental law, and immigration law. The Handbook provides a broad picture of the intellectual landscape and allows both new and established scholars to gain an in-depth understanding of the full range of feminist influence on U.S. law.

All star list of contributors include:

Jamie R. Abrams
Kathryn Abrams
Aziza Ahmed
Susan Frelich Appleton
Katharine K. Baker
Ann C. Bartow
Theresa M. Beiner
Stephanie Bornstein
Sarah M. Buel
Erin E. Buzuvis
Nancy Chi Cantalupo
Cinnamon P. Carlarne
Brenda Cossman
Bridget J. Crawford
Rosalind Dixon
Martha M. Ertman
Michele Estrin Gilman
Leigh Goodmark
Tristin K. Green
Brittany K. Hacker
Jennifer S. Hendricks
Tracy Higgins
Emily Houh
Anthony C. Infanti
Kristin Kalsem
Sally J. Kenney
Amelia Loughland
Linda C. McClain
Martha T. McCluskey
Ann C. McGinley
Hilarie Meyers
Melissa Murray
Jennifer Nedelsky
Michelle Oberman
Maria Ontiveros
Camille Gear Rich
Darren Rosenblum
Julie C. Suk
Sarah L. Swan
Tracy A. Thomas
Deborah A. Widiss
Mary Ziegler

 

Cover

July 25, 2023 in Books, Constitutional, Courts, Legal History, Theory | Permalink | Comments (0)

The Roberts Court's Jurisprudence of Masculinity

Melissa Murray, Children of Men: The Roberts Court's Jurisprudence of Masculinity, 60 Hous. L. Rev. 799 (2023).

Focusing on DobbsNew York State Rifle & Pistol Ass’n, Inc. v. Bruen, and Kennedy v. Bremerton School District, three landmark cases, this Address sketches the contours of the jurisprudence of masculinity. As it argues, the jurisprudence of masculinity evinces a striking solicitude for constitutional rights that are associated with men and masculinity while exhibiting disdain for and disinterest in rights that traditionally have been associated with women. On this account, rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely.

Critically, the jurisprudence of masculinity goes beyond prioritizing the rights of men. The jurisprudence of masculinity recasts the legal landscape to ensure maximum solicitude for the protection of men and the exercise of men’s rights. Specifically, it reorganizes the traditional public–private divide to insulate men’s bodies from the imposition of state regulation, it recasts women’s bodies in terms that make them particularly susceptible and well-suited to public regulation, and it recharacterizes the relationship between the state, rights, and regulation.

The Roberts Court’s commitment to cultivating a jurisprudence of masculinity is inextricably intertwined with its selective commitment to originalism. By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation

July 25, 2023 in Constitutional, Masculinities, SCOTUS, Theory | Permalink | Comments (0)

Monday, July 24, 2023

Reva Siegel on "How Dobbs Weaponizes Brown"

Reva Siegel has posted her forthcoming work in the Yale Law Journal on SSRN. The work is titled How Dobbs Weaponizes Brown: The Roots of Dobbs's History-and-Tradition Method in the Defense of Segregation. The abstract is excerpted below. 

In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority for its decision to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—omissions that enabled the Court to weaponize Brown as authority for overturning Roe.

Dobbs interpreted the Constitution’s liberty guarantee by counting state laws that banned abortion at the time of the Fourteenth Amendment’s ratification. In doing so, Dobbs employed a method of interpreting the Amendment popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868. Brown repudiated this tradition-entrenching method of interpreting the Amendment and called upon the nation to align its practices with its constitutional ideals.

Examining the history Dobbs omitted helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an objective standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims. Counting states that segregated education (or banned abortion) in 1868 was not a neutral or objective measure of the Constitution’s meaning; it expressed the interpreters’ values by perpetuating exclusions of the past into the future. The democracy it supported was a thin majoritarianism, democracy without rights that would protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi show how the liberty and democracy Dobbs protects perpetuate and entrench inequalities of 1868.

By reconstructing the lineage of arguments that state laws in 1868 are proxies for the original understanding, we can see how early forms of originalism and Dobbs’s history-and-tradition method grew out of resistance to Brown and backlash to the Warren and Burger Courts. Debate over Brown posed core questions about fidelity to the Constitution. We renew and sustain that debate on Brown’s seventieth anniversary as we ask how claims on the constitutional memory of Brown relate to its constitutional history.

 

July 24, 2023 in Abortion, Constitutional, Courts, Legal History, Race | Permalink | Comments (0)

Wednesday, July 19, 2023

Clinical Trials Have Improved on Including Women, But Still Fail to Implement the Intent of the NIH Revitalization Act 30 Years Later

Nicole Woitowich, Clinical Trials are Better at Including Women, But There's a Way to Go

The summer of 1993 was an eventful time: Prince changed his name to a symbol, “Jurassic Park” was released and Congress passed the National Institutes of Health Revitalization Act, requiring the inclusion of women in clinical research.

Most people aren’t aware of this law, which requires that women be included in research to develop drugs, therapies and treatments. For decades, women were underrepresented in or excluded from biomedical research studies because they could become pregnant or their hormones were deemed “too complicated.” This caused large gaps in our understanding of how sex and gender inform health and disease.

The Revitalization Act has just entered its fourth decade. As a biomedical scientist who studies the intersection of sex, gender and science, I know this for certain: We still have a long way to go.

For the first 20-plus years after the legislation was passed, the idea persisted that females were simply “too complicated” to study, leaving us with an often one-sided view of biology. In response, the NIH introduced a policy in 2016 requiring scientists to consider the sex of their subjects when designing experiments and reporting and analyzing their data.

Now scientists are more likely to include both sexes in their research studies, and women account for approximately 48% of NIH-supported clinical trial participants. That’s phenomenal progress, but there’s still one major problem: Scientists routinely fail to analyze their data by sex. When this happens, we have no way of knowing if males or females respond to treatments differently or if there are fundamental differences in the way they are affected by certain diseases.

July 19, 2023 in Gender, Healthcare, Legislation | Permalink | Comments (0)

Gender Violence as a Penalty of Poverty

Deborah Weissman, Gender Violence as a Penalty of Poverty, 54 Miami Inter-Amer. L. Rev. 29 (2022)

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when seeking housing and employment and encounter other economic difficulties due to their legal status. These circumstances interfere with the tasks of mitigating gender violence.

Economic difficulties are not only after–the–fact–occurrences. Decades of research demonstrate causal relationships between poverty, economic strain, and inequality, on the one hand, and survivor status, on the other. Moreover, studies confirm that economic instability contributes to the very factors that often culminate in offenders’ transgressions. Notwithstanding the IPV discourse that recognizes the entanglement between structural economic conditions and consequences to families and communities, too little economic support either on the front end or the back has been allocated to address these issues.

This essay will address the various economic factors related to survivors and offenders. It critically assesses the ways in which the responses to IPV insufficiently acknowledge economic concerns as a function of a neoliberal economic system that fails to support meaningful social change It offers a brief comparative review of circumstances in Ciudad Juárez, Mexico following the signing of the North American Free Trade Agreement and a hyped–up period of economic liberalization and free trade with a model to address gender violence developed in Cuba after the period of Cuba’s post 1959 revolution through the first decade of the twenty–first century based on a political economy built upon principles of social justice and gender equality. These disparate economic circumstances illustrate the ways in which political economies contribute to or mitigate gender violence.

July 19, 2023 in Poverty, Violence Against Women | Permalink | Comments (0)

Gender Inequality and Representations of Women in the Contracts Curriculum

Deborah Zalesne, Gender Inequality in Contracts Casebooks: Representations of Women in the Contracts Curriculum, 17 FIU Law Rev. 139 (2023).

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their gender and gender identity. At the core, gender inequity often stems from long-held stereotypes about women in contracting, which are often on full display in the cases. The vast majority of cases in the typical Contracts casebook are drawn primarily from the commercial context; sales, franchise, employment, and transfer of property cases predominate most Contracts casebooks, with many fewer cases in the family context. In the commercial cases, women and other people who do not identify as men, rarely seen as the businessperson, seller, or landowner, are sorely underrepresented, and the “non-male” perspective tends to be obscured. Casebook offerings involving non-male parties still tend to be clustered in certain areas—namely contract defenses, promissory estoppel, and family cases. The result is a Contracts curriculum that typically confines women to certain traditional roles and relegates women’s issues to a secondary status, privileging rational, arms-length market promises at the expense of family-based promises. The overall gender allocation in cases may or may not be reflective of the actual presence of women in the universe of American contracts cases. But either way, it raises some issues regarding how the typical casebook presents women in the realm of contracts cases, and overall, the role of women in contracting. There is, of course, a diversity of viewpoints and a multiplicity of voices among women and feminists, who are divided by age, race, religion, sexual orientation, gender identity, ethnicity, and class, among other things. There are divisions among feminists over the nature and source of gender injustice, as well as over solutions.2 Feminists differ, for example, over the roles of men and women (such as biological differences and cultural frameworks that land women as the primary caretakers most of the time), and whether and how the law should account for those differences.3 When it comes to contract law, some feminists embrace contracting as a means of empowerment,4 while others express concern over whether most women have the bargaining power necessary to protect themselves in the bargaining process. 5 The goal of the Article is not to set out in any detail the contours and fine points of feminist legal theory. Rather, the Article will simply highlight gender-based deficiencies in the ways in which women are portrayed in traditional contracts cases and casebooks, often as either victims, overly-aggressive commercial actors, or in other specific gendered roles such as bride, princess, nurturer, mother, spouse, or mistress. In doing so, the Article will highlight feminist themes and conflicts in contract law and the ways in which reliance on gender-based stereotypes can negatively affect legal analysis in Contracts cases.

July 19, 2023 in Books, Business, Education, Gender, Law schools | Permalink | Comments (0)

Wednesday, July 12, 2023

SCOTUS to Hear Major Guns Case Involving Domestic Violence

Adam Liptak & Glenn Thrush, NYT, Supreme Court to Hear Major Guns Case Involving Domestic Violence

The Supreme Court agreed on Friday to consider whether the government may forbid people subject to domestic violence orders from having guns, setting up a major test of its ruling last year vastly expanding people’s right to arm themselves in public.

The case will turn on the scope of a new legal standard established in that decision, one whose reliance on historical practices has sown confusion as courts have struggled to apply it, with some judges sweeping aside gun controls that have been on the books for decades.***

In March, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, said that new standard required it to strike down a federal law prohibiting people subject to domestic violence orders from possessing firearms because there was no historical support for it.

The case, United States v. Rahimi, No. 22-915, concerns Mr. Rahimi, a drug dealer in Texas with a history of armed violence, according to court records. In 2019, Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, leading her to obtain a restraining order. The order suspended Mr. Rahimi’s handgun license and prohibited him from possessing firearms.***

But the appeals court reversed course after the Bruen decision last June.

The Fifth Circuit rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic violence orders. Many of them, Judge Cory T. Wilson wrote for the panel, “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, he wrote, from domestic violence orders, which make case-by-case judgments about a particular individual’s dangerousness.

July 12, 2023 in Constitutional, Legal History, SCOTUS, Violence Against Women | Permalink | Comments (0)

SCOTUS is Really Considering Whether Domestic Abusers Should Have Guns

SCOTUS is Really Considering Whether Domestic Abusers Should have Guns, Slate

So let’s be clear: the U.S. Supreme Court decision last week to consider the case of United States v. Rahimi, determining whether someone with a history of domestic violence may own a gun, is about far more than domestic abuse and its victims. It’s about America’s national security. Our national security.***

Then last February, the U.S. 5th Circuit reversed the decision, based on new Supreme Court rulings that expanded rights to gun ownership to those “consistent with the Nation’s historical tradition of firearm regulation.” Since the Founding Fathers hadn’t specifically mentioned domestic violence, they argued, alleged domestic abusers should be free to own the weapons of their choice.

In response, the Biden administration objected, noting that historically, government has refused arms to people who pose a public danger.

So now it is up to the Supreme Court . . . to decide. It is also the same Supreme Court that has loosened gun restrictions already, and that so mercilessly overturned Roe v. Wade, putting the lives of countless American women at risk.

But the point is not the women, or that two-thirds of women killed by a partner are murdered by gun—nearly two every day in America, or that, according to the Educational Fund to Stop Gun Violence, “a woman is five times more likely to be murdered when her abuser has access to guns.”

July 12, 2023 in Constitutional, SCOTUS, Violence Against Women | Permalink | Comments (0)

On 75th Anniversary of Women's Armed Services Integration Act Recalling Black Women's Military Leadership Since the Civil War

Wash Post, Black Women's Leadership in the Military Dates to the Civil War

This month marks 75 years since passage of the groundbreaking Women’s Armed Services Integration Act, which permitted women to serve as full members of the U.S. armed forces in every branch. It also marks a decade since the Pentagon reversed its “ground combat exclusion policy.” That had allowed women to serve on combat ships, even though it banned them from serving in direct ground combat.

These changes have been monumental. While women represented just 2 percent of the U.S. military in 1948, they currently constitute roughly 18 percent of the armed forces. Yet a 2020 report shows that fewer than 1 percent of deployed active-duty combat troops are women. A fraction of them are African American women.

While the need to recognize and celebrate these historic milestones is paramount, these commemorations often forget that Black women led armies and fought behind enemy lines during the Civil War — long before President Harry S. Truman signed the historic legislation in 1948. Their military achievements have regularly been erased, eclipsed or distorted in service of building a national narrative that appealed to White Americans. Restoring this history to our understanding of the history of women’s role in the military helps us envision a national narrative that is both closer to the truth and that works for us all.

July 12, 2023 in Equal Employment, Legal History, Legislation, Race | Permalink | Comments (0)

Tuesday, July 11, 2023

SCOTUS Ruling on Online Harassment Outrages Advocates

I have to say, I agree with Justice Amy Coney Barrett's dissent on this one. Threats are not protected speech. Period.

Wash Post, Supreme Court Harassment Ruling on Online Harassment Outrages Victims, Advocates

On Wednesday, victims of that harassment and their advocates reacted with dismay at the court’s 7-2 ruling, written by Justice Elena Kagan, that found that while true threats of violence aren’t protected by the First Amendment, other harassing online speech is, unless prosecutors prove a defendant acted recklessly and “disregarded a substantial risk that his communications would be viewed as threatening violence.”

“The majority of the court simply can’t even imagine what stalking is like,” said Mary Anne Franks, a professor of law at the University of Miami, who filed an amicus brief on behalf of the victim in the Supreme Court case. “They have no idea about the terror these victims are living in.”

 

July 11, 2023 in Constitutional, SCOTUS, Violence Against Women | Permalink | Comments (0)

The Supreme Court Just Legalized Stalking

Mary Anne Franks, The Supreme Court Just Legalized Stalking, Slate

The Supreme Court majority describes its holding last week in Counterman v. Colorado as a vindication of the First Amendment and a principled defense of free speech. Indeed, influential civil libertarian organizations were quick to celebrate the decision. ACLU attorney Brian Hauss praised the court for guaranteeing that “inadvertently threatening speech cannot be criminalized” and for “provid[ing] essential breathing room for public debate.” ***

To be clear, the “freedom of speech” protected by the Counterman majority and valorized by civil libertarian organizations is the freedom to engage in objectively terrifying conduct that leads victims to withdraw from their professions, censor their communications, and restrict their movements. Given that the majority of stalkers are male and the majority of stalking victims are female, the thrust of the opinion can be put more bluntly: The First Amendment does not protect “speech,” but men’s speech at the expense of women’s speech; men’s delusions at the expense of women’s lives.

July 11, 2023 in Constitutional, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)

In Counterman v Colorado SCOTUS Justices Show Dismissal of Victims' Harms from Stalking

Mary Anne Franks, Chief Justice Roberts' Mocker of Stalking Victims Points to a Deeper Problem, Slate

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.***

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.***

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

July 11, 2023 in Constitutional, Judges, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)

Sixth Circuit Decision Upholding Ban on Gender Affirming Care for Minors is a Monumental LGBTQ Rights Case Headed to SCOTUS

A Monumental LGBTQ Rights Case is Barreling Toward the Supreme Court

In recent months, Republican lawmakers in many states enacted laws targeting LGBTQ Americans, attempting to shut down their right to free expression and even deny them medical care, among other things. Until Saturday, however, civil rights lawyers challenging these laws fared surprisingly well in federal court, convincing even many Republican judges.

The United States Court of Appeals for the Sixth Circuit’s decision in L.W. v. Skrmetti, threatens to upend all of that. Before L.W. was handed down this past weekend, there was a consensus among federal courts that the Constitution prohibits states from banning gender-affirming medical care.

L.W. destroys that consensus. It reinstated a Tennessee law, previously blocked by a federal trial court, that prohibits gender-affirming care for transgender patients under the age of 18. And the Sixth Circuit’s opinion was written by Chief Judge Jeffrey Sutton, a widely respected judge, especially among the Supreme Court’s GOP-appointed majority.

Sutton, a George W. Bush appointee, is one of the federal judiciary’s leading “feeder” judges, meaning that his law clerks are frequently hired to clerk for the Supreme Court justices — a sign that the justices are likely to pay careful attention to Sutton’s views when deciding how to resolve a case like L.W.

July 11, 2023 in Courts, Healthcare, LGBT | Permalink | Comments (0)

Samuel Singer and Amy Salyzyn on "Preventing Misgendering in Canadian Courts"

Samuel Singer and Amy Salyzyn have posted "Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives" on SSRN. This work is forthcoming in the Canadian Bar Review. 

Trans people face significant access to justice barriers and regularly experience discrimination within the Canadian legal system. In this context, respectful forms of address directives seek to prevent the misgendering of courtroom participants by having lawyers and parties proactively identify their titles and pronouns. Multiple Canadian courts have now introduced such directives.

This article situates forms of address directives as simply another control on courtroom speech that contributes to the fair, orderly, and efficient administration of justice. Drawing on examples, including the honorifics used for judges and the evolution of oath and affirmation requirements for witnesses, we detail how courtroom rules have evolved to reflect societal change. The article argues that forms of address directives are an important procedural tool to advance the administration of justice by facilitating equal access to the courts for trans people, providing consistency with the broader legal system’s recognition of trans rights, and facilitating the efficient and orderly administration of justice.

The article then counters arguments that forms of address directives constitute improperly “compelled speech” in violation of the Canadian Charter of Rights and Freedoms guaranteed free expression rights and addresses concerns that these directives may limit a lawyer’s ability to zealously advocate for their clients.

We conclude that forms of address directives are a simple and important mechanism to help address misgendering in courts while emphasizing that much substantive work remains to address trans people’s legal needs in Canada.

July 11, 2023 in Courts, Gender, International, Judges | Permalink | Comments (0)

Monday, July 10, 2023

Alissa Rubin Gomez on "The Feminist-Neutrality Paradox"

Alissa Rubin Gomez has published The Feminist-Neutrality Paradox in volume 127 of the Dickinson Law Review 673. The abstract previews: 

This Symposium asks us to contemplate women’s role in the judiciary. Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the Article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This Article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization--the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis--this Article asks whether feminists should stop playing by the rules.

The article concludes: 

The Supreme Court’s recent decision in Dobbs displays in stark relief what can happen when the male logic of the ladder is applied without consideration for the impact a court decision can have on real people. Of course, Dobbs can be explained by many other forces as well, including deeply partisan judicial nominations and increasingly political individual Supreme Court justices. But the male voice--particularly that of the originalist persuasion--provides cover to those other forces, making it appear neutral. That neutrality does not exist. Rather than continuing to pretend that it does, it is time for the female voice to unapologetically emerge as part of our jurisprudence.

July 10, 2023 in Abortion, Courts | Permalink | Comments (0)

Monday, July 3, 2023

Wilkins on "Stories that Kill: Masculinity and Capital Prosecutors' Closing Arguments"

Pamela Wilkins has published "Stories that Kill: Masculinity and Capital Prosecutors' Closing Arguments" in volume 71 of the Cleveland State Law Review. The abstract previews: 

The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite--or perhaps because of--the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern ideologies around manhood and by the hypermasculinity common within law enforcement. In turn, these ideologies influence capital prosecutors’ sentencing phase closing arguments.

July 3, 2023 in Courts, Gender, Masculinities, Race | Permalink | Comments (0)

Shatzman on "The Clerkship Whisper Network: What it is, Why it's Broken, and How to Fix it"

Aliza Shatzman has published The Clerkship Whisper Network: What it is, Why it's Broken, and How to Fix it" in Volume 123 of the Columbia Law Review Forum. The abstract provides: 

Judicial clerkships are typically described in the rosiest of terms—as fostering lifelong mentor-mentee relationships between judges and clerks and conferring only professional benefits. The downsides of clerking are rarely discussed. The clerkship application process is opaque. Little information exists to help law students identify positive work environments and avoid judges who mistreat their clerks. The secretive, fear-infused method of information-sharing is known as the clerkships “whisper network.” Information about judges who mistreat their clerks is often not shared by those who possess it, including law school professors, deans, clerkship directors, and former clerks, with those who need it— students and recent alumni.

 

This Piece argues for democratizing information about judges and clerkship experiences in order to correct the lack of transparency in the clerkship application process that causes too many new attorneys each year to enter unsafe work environments. Through a Centralized Clerkships Database, where law clerk alumni from every law school can share their experiences with students considering clerkships, law students will have as much information as possible before making important career decisions. This initiative empowers historically marginalized groups to pursue judicial clerkships, thereby diversifying not just judicial chambers but also the upper echelons of the legal profession. Transparency benefits law students, law clerks, law schools, judges—and in this way, the entire profession.

With regard to the mistreatment of clerks, Shatzman writes: 

Mistreatment covers everything from rude, sexist, or racist comments; to yelling or throwing things in chambers; to otherwise legally actionable gender discrimination and harassment, were the judiciary not exempt from Title VII of the Civil Rights Act. Anecdotally, these problematic behaviors are pervasive and unaddressed in both the state and federal courts. The dearth of data in this space allows judges to get away with misconduct and enables judiciary leadership to disclaim responsibility for problematic behaviors within their ranks. Until recently, the federal judiciary had been unwilling to even conduct a workplace culture assessment to survey judiciary employees about workplace climate. Even now, judiciary leadership, including the Administrative Office of the U.S. Courts and the Judicial Conference of the United States, have not committed to publicly reporting the results of their planned workplace assessment—an enormous red flag.

You can follow more of Shatzman's work at The Legal Accountability Project

July 3, 2023 in Courts, Law schools, Workplace | Permalink | Comments (0)