Gender and the Law Prof Blog

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

Tuesday, November 13, 2018

Elizabeth Cady Stanton's Impact on and Reform of the Law

November 12 is the anniversary of the birthday of women's rights pioneer Elizabeth Cady Stanton (1815-1902).  I spent a decade studying her work on law, including the law of marriage, marital property, child custody, domestic violence, reproductive rights, juries, and constitutional reform.  That work was encapsulated in my book,  Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016).

ECSBookJacket

I blogged about each of the chapters, linked here: 

Introduction, overview, biography, and conclusions 

Chapter 1, "What Do You Women Want?" on marital property reform

Chapter 2, "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage

Chapter 3,  "Divorce is not the Foe of Marriage"  on advocacy of no-fault divorce and domestic violence protections

Chapter 4, "The Incidental Relation of Mother" on reproductive rights and birth control

Chapter 5,  "Our Girls" on child custody, feminist parenting, and equality in education

Conclusion: “Still Many Obstacles” on Stanton's legacy in 21st century family law.

 

The book is reviewed by Prof. Paula Monopoli here in the Journal of Legal Education.

My response is here, The Multiple Feminisms of a 19th Century Women's Rights Thinker

I talk about the book on the New Book Network Podcast.

November 13, 2018 in Books, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, November 7, 2018

New Book: Equality for Women = Prosperity for All

Want Less Poverty in the World? Empower Women, Vox

The single greatest antidote to poverty and social stagnation is the emancipation of women. Wherever this has been tried, wherever women have been empowered to do as they wish, the economy and the culture have been radically improved.

 

A new book by Augusto Lopez-Claros, a senior fellow at the School of Foreign Service at Georgetown University, and Bahiyyih Nakhjavani, an Iranian writer and novelist, is among the first to comprehensively test this proposition by surveying data from 189 countries. Titled Equality for Women = Prosperity for All, the book shows how gender inequalities — in education, income, law, employment, and wages — lead to instability and chaos at almost every level of society.

 

A conversation with the author follows.

 

Equality for Women = Prosperity for All

 

November 7, 2018 in Books, International | Permalink | Comments (0)

Tuesday, November 6, 2018

Legal History: The Importance of the Vote and Property for Women's Citizenship

Excerpt from my book:  Tracy A. Thomas, chp. 2, "What Do You Women Want?", Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016)

Nineteenth-century women's rights leader Elizabeth Cady Stanton on the economic, political, and constitutional import of the vote and property ownership for women.

Property as Citizenship

 This connection between taxation, property, and political rights was part of Stanton’s initial philosophy articulated in the Declaration of Sentiments. In the Declaration, she identified the abuse of power from taxation of single women and widows without a voice in governance. “If single and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.” The Declaration made a broad demand for women’s status as “citizens” and full members of the community with all civil, economic, and political rights.[i] For citizens, unlike the more general category of “persons,” have power and participatory rights in the governance through political action. She challenged the deprivation of “the first right of a citizen, the elective franchise,” and demanded women’s “immediate admission to all the rights and privileges which belong to them as citizens.” These rights included “the right to protect one’s person and property; to govern one’s self; to have a voice in the law and rulers; to enjoy all the advantages and opportunities of life of which one is capable. This is citizenship in a republic. The natural right to life, liberty, and happiness.”[ii]

 “The Declaration of Sentiments ushered in a new conception of citizenship, for its crucial themes included natural and inalienable rights, suffrage and national citizenship, and legal protection derived from right of contract.”[iii] Stanton utilized liberal political theories of natural, individual rights, arguing that women, the same as men, were entitled to participation in the public sphere in accordance with rights of self-government.[iv] She also appealed to republican political theories of the virtuous citizen working for the collective common good, arguing that women had abilities, as property holders, taxpayers, and morally superior people meriting citizenship.[v]

 Women’s point of entry into this citizen class, though, was not clear. Citizens were defined by their privileges and obligations of voting, jury service, and military service, all of which excluded women.[vi] Women’s obligations of citizenship had instead been defined in terms of their family. “From the era of the American Revolution until deep into the present, the substitution of married women’s obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women, including unmarried women, to state power.”[vii] Republican values of political citizenship after the Revolutionary War created the cultural ideology of Republican motherhood, which held that women contributed their civic duty through their obligation to their families and in educating and raising citizen sons.[viii] This ideology valued women’s caregiving, even while it confined women to the private family sphere. Stanton attacked this notion of a “woman-citizen” as something supernatural, a “monster, half-human, half-beast,” derived from man’s false creation of the image of womanhood sentimentally worshipping her superior virtue yet fearing her emotional and religious nature in the public sphere.[ix] Understanding the reciprocal nature of citizenship, Stanton argued that women were ready to assume the duties of citizenship, like jury duty and liability for debts, if only granted the benefits.[x]

 Stanton tried to break into this closed circle of citizenship by first latching onto the traditional American basis for granting citizenship rights, property holding.[xi] “In the eighteenth century, the liberal individual (male) was defined by owning property, voting, participating in the public sphere.”[xii] Many states inherited the traditional English system requiring property ownership for voting.[xiii] Property qualifications were viewed as properly extending suffrage to those “seen as having a vested stake in society” and excluding those “too poor to have a will of their own” and too easily coerced by those who controlled their livelihoods.[xiv] These property qualifications allowed women, briefly, in New Jersey to vote between 1776 and 1807, because, as the Supreme Court held, for single, propertied women, “the law supposes them to have wills of their own.”[xv]

Relying on this historical precedent, Stanton argued that women’s ownership of property entitled women to the vote, and thus citizenship.[xvi] “A citizen, says Webster, in the United States is a person native or naturalized who has the privilege of exercising the elective franchise in the qualifications which enable him to vote for senators and to purchase, hold real estate.”[xvii] She endorsed the property connection, arguing “There is no principle of equity more universally admitted than that the owner of property shall have a word to say in its use.”[xviii] Quoting Benjamin Franklin, she said: “If a man’s property can be taken from him without his consent, he is a slave.”[xix]

Stanton also tried to break into citizenship by linking suffrage to taxation.[xx] Echoing the American sentiment from the Revolutionary War, she decried the “tyranny of taxation without representation.” Stanton later developed this theme in an 1873 speech delivered to the Rochester Women Taxpayers’ Association and a later draft lecture, “Taxation,” focusing on the basic idea that “Webster’s defines ‘tax’ as a “sum of money assessed on the person or property of a citizen.” [xxi] She emphasized the citizenship link: “Thus in taxing women the state pays them the compliment of recognizing in them the dignity of citizenship.”

On what principles of justice are there large numbers of men allowed to vote without paying taxes, while the women are compelled to pay taxes without voting? Whatever property the state protects should I think contribute its proportion to the state’s support. Hence as loyal law-abiding citizens we are willing to pay our share for the support of the state. But as our taxes are increased in proportion as many other classes and many kinds of property are exempt. We have a reason to complain of this injustice and to insist that women as large property holders throughout the United States should have a vote on this question.[xxii]

Stanton’s taxation arguments had popular appeal and were easily adopted by women’s rights advocates.[xxiii] Several famous protests by women refusing to pay their taxes were “frequently and widely recounted” by the women’s movement.[xxiv] These protestors included eighty-year old sisters, Julia and Abby Smith, who had their cows seized and sold at auction to pay the taxes, and abolitionist Abby Kelley Foster and her husband Stephen Foster who refused to pay taxes until Abby, and all women, could vote.[xxv] “Popular narratives, valuing as they did the Boston Tea Party, continued to convey that civic authority was related to democratic control of taxation.”[xxvi] These connections between property and taxation voting were partially successful in obtaining women’s right to vote in school or municipal elections, though they enfranchised only relatively well-to-do women.[xxvii] But the arguments failed to achieve Stanton’s greater purpose of establishing women’s full status of citizenship.

After the Civil War, the resulting constitutionalism of the Civil Rights Amendments provided alternative legal arguments to add to these political rationales for voting. Stanton returned to one of the demands from the Declaration of Sentiments insisting that women be given “immediate admission to all the rights and privileges which belong to them as citizens of the United States.”[xxviii] The Fourteenth Amendment, enacted in 1868, seemed to grant exactly this by guaranteeing that “all persons” are “citizens” against whom states cannot abridge “the privileges and immunities of citizenship.” In 1869, Missouri reformer Virginia Minor and her attorney husband, Francis Minor, devised an argument for woman’s suffrage based on the plain language of the newly-enacted privileges and immunities clause.[xxix] Stanton quickly adopted Minor’s argument, appreciating that the Fourteenth Amendment provided the textual hook women needed. She called it the “title deed” to woman suffrage for “without or without intent, a law stands as it is written.”[xxx] This textual argument became the foundation of Stanton’s NWSA legislative and judicial campaigns of “the New Departure” as hundreds of women, including Susan B. Anthony, civilly disobeyed the law by voting under the claimed authority of the privileges and immunities clause.[xxxi]

Stanton however extended the legal argument beyond mere textualism. She “proposed a dynamic model of constitutional interpretation designed to keep the principles of the text current with present social conditions and needs.” Adam Winkler has argued that Stanton theorized in what was then a “radically different way of understanding constitutional interpretation,” by arguing that the constitution should develop in a dynamic way to meet the ever-changing understanding of society. This idea of a changing, dynamic “living constitution” would become “the dominant mode of constitutional construction in the twentieth century.” Stanton’s use of the method not only foreshadowed modern critiques of originalism, but according to Winkler, secured her place as “its most important innovator.”[xxxii] Stanton described the fundamental law as “the organic law of the land” that should be “so framed and construed” to emphasize the progressive development of individual rights.[xxxiii] She argued in her speech to the Joint Committees of the District of Columbia, considering women’s suffrage in D.C., that “As history shows . . . each step in civilization has been a steady approximation to our democratic theory, securing larger liberties to the people.”[xxxiv] She gave the example of men’s suffrage, which had evolved from rights only for propertied white men, then expanded to universal white male suffrage including laborers, and then extended to black men. In another example, she cited the legal developments of the married women’s property acts that evolved from a new understanding of women’s civil rights departing from coverture. “Woman has not been standing still, but has been gradually advancing to an equal place with the man by her side.”[xxxv]

In January 1872, appearing before the Senate Judiciary Committee in support of woman’s suffrage, Stanton “added a stinging condemnation of the dominant method of constitutional interpretation, originalism, which was proving to be the primary stumbling block for suffrage reform.” “Though the world has been steadily advancing in political science, and step by step in recognizing the rights of new classes, yet we stand to-day talking of precedents, authorities, laws, and constitutions, as if each generation were not better able to judge of its wants than the one that preceded it. If we are to be governed in all things by the men of the eighteenth century, and the twentieth by the nineteenth, and so on, the world will be always governed by dead men.[xxxvi] Stanton argued for an evolutionary understanding of the entire Constitution from 1789 to 1870, arguing that the meaning of the privileges and immunities clause, contained originally in Article IV, had changed.[xxxvii]

Stanton needed to depart from the traditional legal constitutional interpretation of originalism because the framers of the Fourteenth Amendment clearly did not intend to include the right to vote in its guarantees. This legislative intent was recent history and familiar to all, especially Stanton’s congressional audience, many of whom were the framers themselves.[xxxviii] Their primary intent had been to grant civil, legal rights to freed slaves; they explicitly did not include the right to vote, which was envisioned separately as a political compromise in the Fifteenth Amendment granting suffrage to black men.[xxxix] The national citizenship of the Fourteenth Amendment was defined not by the vote, but as the reciprocal obligation of allegiance by the individual to the nation in exchange for protection by the state.[xl]

The U.S. Supreme Court agreed, rejecting Stanton and Minor’s claim of a constitutional right to vote. In Minor v. Happersett, the Court easily recognized women as citizens.[xli] As John Bingham, the primary drafter of the Fourteenth Amendment had explained in a Senate Report several years before, there was “no longer any reason to doubt that all persons” born or naturalized in the United States were citizens as declared by the amendment.[xlii] But that was a conclusion without significance, for the catch was that citizens did not automatically have the right to vote. That had been the feminists’ assumption: that voting was the distinguishing privilege of a citizen, and why they focused their goal on establishing women as full citizens.[xliii] Stanton attacked Bingham’s report and its implication that “women are not ‘citizens,’ but ‘members’ of the nation!—mere appendages to the State, the Church and the home.” She snarked, “If this, indeed, be woman’s normal condition, may God grant us a wiser, nobler type of manhood as our prefix than John Bingham, of Ohio.”[xliv]

The Court Supreme Court in Minor agreed that voting was not a privilege of national citizenship protected by the Fourteenth Amendment, but was instead a political right discretionarily granted by the state.[xlv] The Court defined “privileges and immunities” by reference to its antecedent in Article IV of the Constitution and the intent of the founders which did not include the vote as a privilege of citizenship. The republicanism of the founders believed in virtual representation by which only an elite few property owners were qualified to govern with political rights of voting. The Court applied the traditional originalist interpretation of the intent of the framers, both constitutional and amendment, refusing to engage Stanton’s dynamic interpretation.

Undeterred, Stanton continued to press for what she thought was self-evident, even as she simultaneously pursued alternative political strategies like a new Sixteenth Amendment for women’s suffrage. “By every principle of fair interpretation we need no amendment, no new definitions of the terms ‘people,’ ‘persons,’ ‘citizens,’ no additional power conferred on Congress” to enable Congress to grant women suffrage.[xlvi] She continued to believe that the text of the Fourteenth Amendment, properly interpreted, should grant women the right to vote. Her argument, however, “was still too radical for its time.”[xlvii]

 

[i]  Declaration, 3; McClain and Grossman, 1, 8.

[ii] ECS, “Women Do Not Wish to Vote,” National Bulletin, Apr. 1894.

[iii] Isenberg, 32.

[iv] ECS to SBA, July 4, 1858; ECS, “The Power of the Statute Legislature,” Woman’s Tribune, Mar. 1, 1885.

[v] ECS, “A Household of Women,” Woman’s Tribune, Oct. 6, 1900; Mrs. Stanton’s Suffrage Convention Letter, Washington Chronicle¸ Jan. 28, 1883; Davis, 2, 19-20.

[vi] Kerber, Ladies, 94; Isenberg, 13.

[vii] Kerber, Ladies, 11.

[viii] Kerber, Republic, 283; Norton, Liberty’s, 247-49.

[ix] Isenberg, 198; ECS, 1860 NY Address; ECS, “The Degradation of Woman,” Rev., Jan. 15, 1868; Miller, 173.

[x] ECS, “Editorial Correspondence,” Rev., Mar. 17, 1870; “Rev. Thompson.”

[xi] ECS, Bible and the Church Degrade Woman.

[xii] Clark, “Self-Ownership,” 905.

[xiii] Isenberg, 26.

[xiv] Kerber, Ladies, 94.

[xv] Isenberg, 24

[xvi] ECS, Speech to the Women Taxpayers’ Association in Rochester, New York, Oct. 31, 1873.

[xvii] ECS, Taxation Lecture, 15-16 (1877).

[xviii] Taxation Lecture, 23h.

[xix] “Household.”

[xx]  Declaration; Bible and Church, 1-12.

[xxi] Taxpayers’ Speech.

[xxii] Taxation Lecture, 23e-g.

[xxiii] Rochester Proceedings, 15.

[xxiv] Kerber, Ladies, 100-04; Jones, 265, 269.

[xxv] Jones, 269.

[xxvi] Kerber, Ladies, 113.

[xxvii] Jones, 272-73.

[xxviii] Declaration, 4.

[xxix] “Francis Minor,” Rev., Oct. 21, 1869; “Mrs. Francis Minor,” Rev., Oct. 28, 1869; “Fundamental Rights,” Rev., Jan. 20, 1870.

[xxx] Argument of Mrs. Stanton Before the Judiciary Committee, reprinted as “Woman Suffrage,” Daily Morning Chronicle, Jan. 13, 1872.

[xxxi] Winkler, 1456, 1475-77, 1483; DuBois, “Taking the Law,” 23-34.

[xxxii] Winkler, 1456-59, 1468, 1480, 1515.

[xxxiii] ECS, Speech to Joint Committees of D.C., in “The Women in Washington,” Rev., Jan. 27, 1870.

[xxxiv] Id.; HWS, v.II, 411-16.

[xxxv] HWS, v.II, 510.

[xxxvi] “Woman Suffrage; HWS, v.II, 510.

[xxxvii] Winkler, 1482-83.

[xxxviii] Id. 1472-74.

[xxxix] Jack M. Balkin, “How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure,” 39 Suffolk University Law Review 27, 46 (2005); John Bingham, H.R. Rep. No. 41-22, Report, Committee on the Judiciary, 41st Cong., House of Rep., Jan. 30, 1871.

[xl] Bingham Report.

[xli] 88 U.S. 162 (1875).

[xlii] Bingham Report.

[xliii] “Rev. Thompson”; HWS, v.I, 412; see 41st Cong., 3d Session, H.R. Rep. 22, Jan. 30, 1871, by Reps. Loughridge and Butler (pt. 2, minority) (Judiciary Committee) (Minority Report, 9); HWS, v. II, 594.

[xliv] ECS, Letter to Editor, Woodhull and Claflin’s Weekly, Mar. 11, 1871.

[xlv] 88 U.S. 162 (1875); Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).

[xlvi] ECS, “Statement of Mrs. Elizabeth Cady Stanton,” Woman Suffrage, to the Senate Select Committee on Woman Suffrage, Apr. 2, 1888.

[xlvii] Winkler, 1465.

November 6, 2018 in Books, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, October 31, 2018

Reading List for Law & Gender on Halloween

It's Halloween... which for law and gender means time to remember the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

 

See also a prior blog post: Witchcraft Related Violence: Human Rights Violations Against Women Labeled "Witches"

October 31, 2018 in Books, Courts, Legal History | Permalink | Comments (0)

New Book: First, Sandra Day O'Connor

Evan Thomas, First: Sandra Day O'Connor (forthcoming 2019)

The intimate, inspiring, and authoritative biography of Sandra Day O’Connor, America’s first female Supreme Court justice, drawing on exclusive interviews and first-time access to Justice O’Connor’s archives—by the New York Times bestselling author Evan Thomas.

“She’s a hero for our time, and this is the biography for our time.”—Walter Isaacson

She was born in 1930 in El Paso and grew up on a cattle ranch in Arizona. At a time when women were expected to be homemakers, she set her sights on Stanford University. When she graduated near the top of her law school class in 1952, no firm would even interview her. But Sandra Day O’Connor’s story is that of a woman who repeatedly shattered glass ceilings—doing so with a blend of grace, wisdom, humor, understatement, and cowgirl toughness.

She became the first ever female majority leader of a state senate. As a judge on the Arizona State Court of Appeals, she stood up to corrupt lawyers and humanized the law. When she arrived at the United States Supreme Court, appointed by President Ronald Reagan in 1981, she began a quarter-century tenure on the Court, hearing cases that ultimately shaped American law. Diagnosed with cancer at fifty-eight, and caring for a husband with Alzheimer’s, O’Connor endured every difficulty with grit and poise.

Women and men who want to be leaders and be first in their own lives—who want to learn when to walk away and when to stand their ground—will be inspired by O’Connor’s example. This is a remarkably vivid and personal portrait of a woman who loved her family, who believed in serving her country, and who, when she became the most powerful woman in America, built a bridge forward for all women.

October 31, 2018 in Books, Judges, Legal History, SCOTUS | Permalink | Comments (0)

Wednesday, October 3, 2018

New Book -- Ruth Bader Ginsburg: A Life

New biography of Justice Ginsburg, out October 16, Jane Sharron de Hart, Ruth Bader Ginsburg: A Life 

The first full life—private, public, legal, philosophical—of the 107th Supreme Court Justice, one of the most profound and profoundly transformative legal minds of our time; a book fifteen years in work, written with the cooperation of Ruth Bader Ginsburg herself and based on many interviews with the justice, her husband, her children, her friends, and her associates.

In this large, comprehensive, revelatory biography, Jane De Hart explores the central experiences that crucially shaped Ginsburg’s passion for justice, her advocacy for gender equality, her meticulous jurisprudence: her desire to make We the People more united and our union more perfect. At the heart of her story and abiding beliefs—her Jewish background. Tikkun olam, the Hebrew injunction to “repair the world,” with its profound meaning for a young girl who grew up during the Holocaust and World War II. We see the influence of her mother, Celia Amster Bader, whose intellect inspired her daughter’s feminism, insisting that Ruth become independent, as she witnessed her mother coping with terminal cervical cancer (Celia died the day before Ruth, at seventeen, graduated from high school).
 

From Ruth’s days as a baton twirler at Brooklyn’s James Madison High School, to Cornell University, Harvard and Columbia Law Schools (first in her class), to being a law professor at Rutgers University (one of the few women in the field and fighting pay discrimination), hiding her second pregnancy so as not to risk losing her job; founding the Women's Rights Law Reporter, writing the brief for the first case that persuaded the Supreme Court to strike down a sex-discriminatory state law, then at Columbia (the law school’s first tenured female professor); becoming the director of the women’s rights project of the ACLU, persuading the Supreme Court in a series of decisions to ban laws that denied women full citizenship status with men. 

 Her years on the U.S. Court of Appeals for the District of Columbia Circuit, deciding cases the way she played golf, as she, left-handed, played with right-handed clubs—aiming left, swinging right, hitting down the middle. Her years on the Supreme Court . . . 

 A pioneering life and legal career whose profound mark on American jurisprudence, on American society, on our American character and spirit, will reverberate deep into the twenty-first century and beyond.

Ruth Bader Ginsburg: A Life by [de Hart, Jane Sherron]

October 3, 2018 in Books, Judges, SCOTUS | Permalink | Comments (0)

Thursday, September 27, 2018

EEOC Files Pregnancy Discrimination Lawsuit against Walmart

US Agency Accuses Walmart of Pregnancy Discrimination in Lawsuit

The U.S. Equal Employment Opportunity Commission on Friday filed a lawsuit accusing Walmart Inc of forcing pregnant workers at a Wisconsin warehouse to go on unpaid leave and denying their requests to take on easier duties.

 

The EEOC, which enforces federal laws banning discrimination in the workplace, said Walmart’s distribution center in Menomonie, Wisconsin, has discriminated against pregnant employees since 2014. Federal law requires employers to accommodate workers’ pregnancies in the same way as physical disabilities.

 

Friday’s lawsuit, filed in federal court in Wisconsin, stems from a complaint filed by Alyssa Gilliam, an employee at the Walmart warehouse in Menomonie.

 

The EEOC in the lawsuit said Gilliam became pregnant in 2015, and Walmart denied her requests for restrictions on heavy lifting, additional breaks, and a chair to use while working.

 

The commission said Walmart refused similar requests by other pregnant workers at the warehouse, but granted them for workers with disabilities or injuries.

 

The federal Pregnancy Discrimination Act prohibits workplace discrimination against pregnant women. In a 2015 decision involving United Parcel Service Inc, the U.S. Supreme Court said the law requires employers to provide the same accommodations to pregnant women as it does disabled workers.

 

September 27, 2018 in Books, Business, Equal Employment, Pregnancy | Permalink | Comments (0)

Thursday, July 26, 2018

CFP New Book Collection -- Believe Me: How Trusting Women Can Change the World 

Believe Me: A call for submissions

Jaclyn Friedman and Jessica Valenti — the editors who brought you the groundbreaking anthology Yes Means Yes: Visions of Female Sexual Power and a World Without Rape — are seeking submissions for a new book.

Believe Me: How Trusting Women Can Change the World will ask and answer a question that will change the way we think about sexual violence: What if we believed women?

We are close to a tipping point on trusting women: the explosion of activism inspired by #metoo is just the latest evidence. What Americans need now is to be pushed over the edge.

The need has never been more urgent. In part because of the progress women 

have made and are poised to make, we’re living in an age of profound backlash. An unrepentant misogynist, accused many times over of sexual harassment and assault, is our president. The Department of Education is consulting “men’s rights” groups, once rightly seen as the dangerous fringe, as they form education policy around rape. Online harassment is a scourge; misogynists are more emboldened than ever.

While Believe Me will be focused primarily on sexual assault, we are also looking for essays that take the premise and apply it broadly, including (but not at all limited to):

  • How race, gender identity, and class impact what kinds of women are believed and how they’re treated.
  • How conservative women have co-opted feminism and its tenant to ‘believe women’ in order to roll back women’s rights
  • How believing women about their own experience of themselves could transform the fight for trans rights and specifically reduce violence against trans women.
  • A vision of masculinity that isn’t defined by power over women.
  • How white women’s “believability” has harmed communities of color — in particular men of color accused of violence against white women
  • The inherent misogyny of white supremacists and the inherent white supremacy of misogynists.
  • What it’s like to not believe yourself about your own experience of sexual violence, and how we can help survivors overcome that internalized disbelief.
  • How male victims of sexual violence deal with additional stigmas, including the fear of being feminized
  • The link between the rise of marginalized voices on social media and online harassment, and the disinformation campaigns that have radically undermined democracy here in the U.S.
  • The many connections between violence against women and our inhumane immigration policies
  • How listening to women could change the way we think about justice and consequences for rapists

Essays will be between 2000 and 3000 words.

To submit, please email a short pitch (NOT a complete essay) about what you’d like to write, along with two clips of previous pieces (they don’t have to be published, we’d just like a sense of your writing) to believeme2019 at gmail dot com. All contributors will be paid. The deadline for submissions is September 1.

July 26, 2018 in Books, Call for Papers, Workplace | Permalink | Comments (0)

Wednesday, June 13, 2018

Book from Oral Histories of Women Lawyers

CSPAN, 20th Century Trailblazing Women Lawyers

20th Century Trailblazing Women Lawyers In 2005, the American Bar Association’s Commission on Women in the Profession initiated oral history interviews with 100 senior women lawyers including former Attorney General Janet Reno and Supreme Court Justice Ruth Bader Ginsburg. Legal historian Jill Norgren discussed her book, “Stories from Trailblazing Women Lawyers: Lives in the Law,” which is based on the transcripts from these interviews. The Wilson Center and National History Center co-hosted this talk

And the book: Jill Norgren, Stories from Trailblazing Women Lawyers (NYU Press 2018)

In Stories from Trailblazing Women Lawyers, award-winning legal historian Jill Norgren curates the oral histories of one hundred extraordinary American women lawyers who changed the profession of law. Many of these stories are being told for the first time. As adults these women were on the front lines fighting for access to law schools and good legal careers. They challenged established rules and broke the law’s glass ceiling.Norgren uses these interviews to describe the profound changes that began in the late 1960s, interweaving social and legal history with the women’s individual experiences.  

In 1950, when many of the subjects of this book were children, the terms of engagement were clear: only a few women would be admitted each year to American law schools and after graduation their professional opportunities would never equal those open to similarly qualified men. Harvard Law School did not even begin to admit women until 1950. At many law schools, well into the 1970s, men told female students that they were taking a place that might be better used by a male student who would have a career, not babies.  

In 2005 the American Bar Association’s Commission on Women in the Profession initiated a national oral history project named the Women Trailblazers in the Law initiative: One hundred outstanding senior women lawyers were asked to give their personal and professional histories in interviews conducted by younger colleagues. The interviews, made available to the author, permit these women to be written into history in their words, words that evoke pain as well as celebration, humor, and somber reflection. These are women attorneys who, in courtrooms, classrooms, government agencies, and NGOs have rattled the world with insistent and successful demands to reshape their profession and their society. They are women who brought nothing short of a revolution to the profession of law.

June 13, 2018 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Monday, March 12, 2018

New Book: The Logics of Gender Justice: State Action on Women's Rights Around the World

Mala Htun & S. Laurel Weldon, The Logics of Gender Justice: State Action on Women's Rights Around the World (Cambridge Univ. Press March 2018)

When and why do governments promote women's rights? Through comparative analysis of state action in seventy countries from 1975 to 2005, this book shows how different women's rights issues involve different histories, trigger different conflicts, and activate different sets of protagonists. Change on violence against women and workplace equality involves a logic of status politics: feminist movements leverage international norms to contest women's subordination. Family law, abortion, and contraception, which challenge the historical claim of religious groups to regulate kinship and reproduction, conform to a logic of doctrinal politics, which turns on relations between religious groups and the state. Publicly-paid parental leave and child care follow a logic of class politics, in which the strength of Left parties and overall economic conditions are more salient. The book reveals the multiple and complex pathways to gender justice, illuminating the opportunities and obstacles to social change for policymakers, advocates, and others seeking to advance women's rights,

March 12, 2018 in Books, International | Permalink | Comments (0)

New Book: Oliver Wendell Holmes and Fixations of Manliness

I'm pleased to announce the publication of the new book by my former co-editor here at the Gender & Law Prof Blog, John Kang.

John Kang, Oliver Wendell Holmes and Fixations of Manliness (Routledge 2018)  

Oliver Wendell Holmes, Jr. has been, and continues to be, praised as America’s greatest judge and he is widely considered to have done more than anyone else to breathe life into the Constitution’s right of free speech, probably the most crucial right for democracy. One indeed finds among professors of constitutional law and federal judges the widespread belief that the scope of the First Amendment owes much of its incredible expansion over the last sixty years to Holmes’s judicial dissents in Abrams and Gitlow.

 

In this book, John M. Kang offers the novel thesis that Holmes’s dissenting opinions in Abrams and Gitlow drew in part from a normative worldview structured by an idiosyncratic manliness, a manliness which was itself rooted in physical courage. In making this argument, Kang seeks to show how Holmes’s justification for the right of speech was a bid to proffer a philosophical commentary about the demands of democracy.

He previewed part of the book in a prior article, John Kang, "The Solider and the Imbecile": How Holmes' Manliness Fated Carrie Buck, 47 Akron L. Rev. 1055 (2014)

March 12, 2018 in Books, Legal History, Manliness | Permalink | Comments (0)

Tuesday, March 6, 2018

Women's Legal History: A Reading List

#TBT in honor of Women's History Month:

I've  developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar.  

This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting.  It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was not illegal for a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s.  The list goes on and on.  

My scholarly goal is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books.  But for now, at least, the history is being recovered and analyzed, and the transmission of that discovery has been started. 

 

Women’s Legal History: A Reading List

Tracy A. Thomas

General

Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)

Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)

Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)

Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)

Understanding Feminist Legal Theory

Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)

Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)

Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)

Nancy Cott, The Grounding of Modern Feminism (1987)

Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)

Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)

EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)

Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)

Colonial Period

Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)

Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)

Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)

Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)

Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)

Coverture, Marital Status in the Family, Marital Property

William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)

Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)

Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)

Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (2016)

Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)

Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).

Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)

Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651

Ken Burns, Not For Ourselves Alone:  The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)

 Suffrage

Declaration of Sentiments, July 1848

History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)

Ellen DuBois, Feminism & Suffrage: The Emergency of an Independent Women's Movement in America, 1848-1869 (1978)

Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)

Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)

Minor v. Happersett, 88 U.S. 162 (1974)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)

Iron Jawed Angels (2004) (video)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)

Labor

Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)

Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)

Muller v. Oregon, 208 US 412 (1908)

Adkins v. Children's Hospital, 261 US 525 (1923)

The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)

 Reproductive Rights

Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)

Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015) 

Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)

James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)

Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)

Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)

Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)

Equality

Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).

Fred Strebeigh, Equal: Women Reshape American Law (2009)

Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)

TJ Boisseau & Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 YEARS OF THE NINETEENTH AMENDMENT: AN APPRAISAL OF WOMEN’S POLITICAL ACTIVISM (Lee Ann Banaszak & Holly J. McCammon, eds.)

Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)

Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)

Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (2010)

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).

Pregnancy Discrimination

Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)

Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)

Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)

 Employment

Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)

Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)

Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)

Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work (2016)

Joanna Grossman, Nine to Five:How Gender, Sex, and Sexuality Continue to Define the American Workplace (2016)

 Women in the Courts

Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)

Holly McCammon, The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (2012)

Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)

Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)

Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).

Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)

Bradwell v. State, 83 U.S. 130 (1872)

In re Lockwood, 154 U.S. 116 (1894)

Women’s Legal History Biography Project, at http://wlh.law.stanford.edu

 

March 6, 2018 in Books, Legal History, Scholarship | Permalink | Comments (0)

Wednesday, February 28, 2018

Book Review: Justice Claire L’Heureux-Dubé: A Life

Kim Brooks, Justice for Equality, JOTWELL, reviewing Constance Backhouse, Claire L’Heureux-Dubé: A Life (2017).

Claire L’Heureux-Dubé was Canada’s second woman to join our Supreme Court of Canada. She was famous for her strong personality, her charm, her directness, and eventually her willingness to dissent. She was loved by some, loathed by others.

My opening paragraph so dramatically understates the significance of Justice L’Heureux- Dubé. It pretends that the life of one woman – a woman who faced substantial personal and professional challenges – can be adequately captured in a few words.

Enter Constance Backhouse’s brilliant biography. Biography is an art. How to render a person visible? To be appropriately honest about her failings and reflective about her successes? To situate her life within its broad context – social, political, economic, and scientific? To reflect her social character – her relationships and the effects of those relationships on the path of her life?

Backhouse’s considerable work answers these questions.

In over 700 meticulously researched pages, she takes us on a magnificent journey. ***

These opening twenty-eight chapters (in a book with thirty-eight chapters) are gorgeously written with specificity that leaves the reader feeling like she is standing right beside L’Heureux-Dubé as her life unfolds. That’s credit to Backhouse’s use of detail, her reliance on hundreds and hundreds of hours of interviews with L’Heureux-Dubé and those who know her, and her fierce analytical skill, which renders plain the subtle.

Unconventionally, but useful especially to the legally trained reader, the biography then looks carefully at six of Justice L’Heureux-Dubé’s Supreme Court of Canada decisions – decisions she rendered on sexual assault, spousal support, human rights for same-sex couples, tax law, Quebec secession, and immigration. These decisions are presented as signature moments in Justice L’Heureux-Dubé’s self-expression. Backhouse situates each decision in its broader social context. Each of these last six chapters has its own story to tell and each should be included in any course materials that include the underlying decision. Each is dazzling.

February 28, 2018 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Thursday, February 15, 2018

Books: Sexual Intimacy and Gender Identity "Fraud"

Author Q&A: Sexual Intimacy and Gender Identity Fraud: Reframing the Legal and Ethical Debate,

Professor Alex Sharpe is a Law Professor at Keele University and a human rights barrister at Garden Court Chambers, London. She is a social and legal theorist, legal historian, and gender, sexuality & law scholar. 

She has been cited by the European Court of Human Rights as well as by a series of courts in domestic jurisdictions. She sits on the International Legal Committee of the World Professional Association of Transgender Health and has sat on Amnesty International’s Expert Committee on the Criminalisation of Sexual and Reproductive Conduct. 

 

 Q: What influenced you to write this book?

A:  In 2012, 17 year old Gemma Barker was convicted of sexual offences on the basis that she failed to disclose her gender identity to female complainants prior to sexual intimacies. She was sentenced to two and a half years in prison and placed on the Sex Offenders Register for life. This was the second case of its kind in the UK. The first was prosecuted over 20 years earlier (R v Jennifer Saunders [1991] unrep). However, unlike the Saunders case, Barker proved to be the beginning of a disturbing pattern of successful prosecutions. In 2013, convictions were sustained against Chris Wilson in Edinburgh and Justine McNally in London. In 2015, Gayle Newland and Kyran Lee were convicted in Chester and Lincoln respectively, and in 2016, Jason Staines was convicted in Bristol. Most recently, in 2017, Gayle Newland was reconvicted in Manchester after the Court of Appeal found her original conviction unsafe and ordered a retrial.

 

Prior to Barker’s conviction, I had already been researching the legal requirement placed on transgender people to disclose their gender histories prior to marriage, lest the marriage be declared a nullity (see, for example, my article in the Modern Law Review (2012) 75(1) 33-53). With the Barker case, the stakes had suddenly been raised for transgender and other gender non-conforming people. I was shocked that these kinds of prosecutions were being brought and after the 2013 cases decided to write this book both as a critical analysis of the issues involved and as a political intervention. The book is resolutely against prosecution. 

February 15, 2018 in Books, Gender | Permalink | Comments (0)

Book Review "Scarlet A": More Talking and Less Shouting About Abortion, Ethics and Law

NYT, "Scarlet A" Wants Less Shouting About Abortion and More Talking, reviewing Katie Watson, Scarlet A: The Ethics, Law, & Politics of Ordinary Abortion (Oxford Press 2018)

Certain issues have become so noisy and stigmatized that they seem to be all-consuming and invisible at once. Abortion is one of them, and Katie Watson wants to change how Americans talk about it — when, that is, they deign to truly talk about it at all.

 

Rates of abortion may be on the decline, largely because of long-term contraceptive use, but as Watson points out in “Scarlet A: The Ethics, Law, & Politics of Ordinary Abortion,” the procedure is far from a fringe practice. Nearly one in five American pregnancies ends in abortion (a number that doesn’t include “spontaneous abortions,” the medical term for miscarriages). Nearly one in four American women will have an abortion in her lifetime.

 

Yet silence perpetuates a belief that abortion is atypical, even when the statistics say otherwise. The conversational void is then filled by advocates on both sides, who emphasize what Watson calls “extraordinary abortion.” Abortion rights activists highlight severe fetal abnormalities and pregnant 12-year-olds; anti-abortion activists highlight pregnancies that are terminated after viability. Such cases are all too real, but fixating on them distorts our understanding of what abortion ordinarily is....

 

Watson, a bioethicist at Northwestern’s medical school and a senior counsel for the American Civil Liberties Union of Illinois, comes to the debate with her own convictions. Forty-five years ago, with Roe v. Wade, “abortion was correctly identified as a constitutionally protected right, and it must remain legal,” she writes. “That’s not negotiable for me.” What she wants to do is engage directly with the fact that the majority of Americans, even those in favor of abortion’s legality, have deeply ambivalent feelings about abortion itself. “We should be able to acknowledge the complexity of private decision making,” she writes, “without threatening the right of private decision making.”

February 15, 2018 in Abortion, Books | Permalink | Comments (0)

Wednesday, February 14, 2018

Book: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession

Book Review: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, by Elaine Craig

Dalhousie law professor Craig’s impeccably researched book, which analyzes how Canada’s criminal justice system contributes to the trauma of sexual assault victims, is an outstanding work that dovetails perfectly with the #MeToo movement. Working from interviews with legal professionals, analyses of problematic judicial decisions, and reproductions of stomach-turning trial transcripts, Craig (Troubling Sex) skewers the still prevalent notion that Canadian sexual assault survivors enjoy a free pass in the courts. By reproducing contemporary accounts of aggressive cross-examinations that “whack the complainant,” unsavory defense strategies intended to intimidate complainants into withdrawing their cases, and reliance on rape myths—revealing clothing, alcohol use, past sexual history—in criminal trials, Craig expertly makes the case that, despite progressive law reforms, the legal system remains predominantly unsafe for survivors. Combining academic rigor with an eminently readable style that is cohesive and fearless (prominent lawyers and judges are pointedly called to account), Craig makes several proposals—including improved education and training for all judicial system participants, public reporting of all decisions, and making courtroom culture less imposing—that would mitigate harm without impinging on the rights of the accused. This is a must-read title for judges, lawyers, politicians, courtroom staff, and anyone concerned about sexual violence.

February 14, 2018 in Books, Courts, International, Violence Against Women | Permalink | Comments (0)

Thursday, February 1, 2018

A Poor Mother's Right to Privacy

Danielle Keats Citron, A Poor Mother's Right to Privacy: A Review, 98 Boston J. L. Rev. (forthcoming)

Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance. 

Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us.

February 1, 2018 in Books, Media, Poverty | Permalink | Comments (0)

Wednesday, January 31, 2018

CFP: Feminist Judgments: Employment Discrimination Opinions Rewritten

The U.S. Feminist Judgments Project seeks contributors to rewrite judicial opinions to reflect feminist perspectives, and commentaries on the rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Employment Discrimination Opinions Rewritten. This edited volume is part of a collaborative project among law professors and other legal specialists to rewrite, from feminist perspectives, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Cambridge University Press has published the first volume in the series, Feminist Judgments: Rewritten Tax Opinions (2017). Other approved volumes in the series include family law and reproductive justice. Cambridge University Press welcomes proposals for additional volumes in the series that focus on other areas of law. 

The Employment Discrimination volume will be edited by Ann McGinley and Nicole Porter. We seek prospective authors for a number of employment discrimination opinions [listed in attached file.] We have selected the cases with the goal of creating a body of cases that can be largely internally consistent and that ultimately would improve employment discrimination law from feminist perspective.

More details here.   Download Revised Call for Authors 1.30.18 FINAL

Those who are interested in rewriting an opinion or providing commentary should apply no later than, February 12, 2018, by e-mailing the following information to Ann McGinley, ann.mcginley@unlv.edu and Nicole Porter, nicole.porter2@utoledo.edu

 

January 31, 2018 in Books, Call for Papers | Permalink | Comments (0)

Tuesday, January 16, 2018

When Barbie Went to War with Bratz

Jill Lepore, When Barbie Went to War with Bratz: How a Legal Battle Over Intellectual Property Exposed a Cultural Battle over Sex, Gender Roles, and the Workplace, The Atlantic

The feud between Barbie and Bratz occupies the narrow space between thin lines: between fashion and porn, between originals and copies, and between toys for girls and rights for women. In 2010, Alex Kozinski, then the chief judge of the U.S. Court of Appeals for the Ninth Circuit, who presided over Mattel v. MGA, wrote in his opinion that most of what makes a fashion doll desirable is not protectable intellectual property, because there are only so many ways to make a female body attractive. “Little girls buy fashion dolls with idealized proportions which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature,” Kozinski wrote, giving “slightly” a meaning I never knew it had. But only so much exaggeration is possible, he went on. “Make the head too large or the waist too small and the doll becomes freakish.” I’d explain how it is that anyone could look at either a Barbie or a Bratz doll and not find it freakish, except that such an explanation is beyond me. As a pull-string Barbie knockoff once told Lisa Simpson, “Don’t ask me! I’m just a girl!”

 

Orly Lobel, a professor at the University of San Diego School of Law, has recently published “You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side” (Norton). For the book, a hair-raising account of a Barbie Dreamhouse-size Jarndyce and Jarndyce, Lobel interviewed Judge Kozinski over lunch and happened to mention that, when she was a girl, her mother, a psychologist, told her that Barbie dolls were bad for girls’ body image. Kozinski professed astonishment. “The only thing wrong that I saw when I held Barbie,” he said, joking, “is when I lift her skirt there is nothing underneath.” Last month, Kozinski resigned from the federal judiciary after more than a dozen women, including two of his own former law clerks, accused him of inappropriate behavior. Justice is hard! ***

 

Once told to be hotties, girls were next told to empower themselves by being hot employees, as both the culture and corporations set aside long-standing concerns about sexual harassment in the workplace—abandoning possible societal, industry-wide, or even governmental remedies—in favor of sex-positive corporate feminism. The 2013 publication of Sheryl Sandberg’s “Lean In” marked a steepening in the decline of structural efforts to reform workplaces. Instead of fighting for equal pay, equal work, and family leave, women were told that they needed to empower themselves, one by one, through power dressing and personal exertion. Unsurprisingly, Barbie and Bratz leaned in, too. MGA relaunched Bratz with the latest mindless lingo of corporate-friendly girl power in a box. “We have doctors, lawyers, journalists,” MGA’s C.E.O., Isaac Larian, told Forbes. “Now more than ever before, Bratz empowers girls.” The rebranded dolls, though, had no discernible interests in such careers. Instead, the Bratz, who, like Barbie, started out as teen-agers, now came with hobbies, including yoga and running, and wardrobes newly inspired by study-abroad travel. Mattel ran its own Sandbergian campaign—“When a Girl Plays with Barbie, She Imagines Everything She Can Become”—and promoted Doctor Barbie, who, with her stethoscope, wears stilettos, a miniskirt, and a white lab coat embroidered, in pink thread, “Barbie.”

 

Empowerment feminism is a cynical sham. As Margaret Talbot once noted in these pages, “To change a Bratz doll’s shoes, you have to snap off its feet at the ankles.” That is pretty much what girlhood feels like. In a 2014 study, girls between four and seven were asked about possible careers for boys and girls after playing with either Fashion Barbie, Doctor Barbie, or, as a control, Mrs. Potato Head. The girls who had played with Mrs. Potato Head were significantly more likely to answer yes to the question “Could you do this job when you grow up?” when shown a picture of the workplaces of a construction worker, a firefighter, a pilot, a doctor, and a police officer. The study had a tiny sample size, and, like most slightly nutty research in the field of social psychology, has never been replicated, or scaled up, except that, since nearly all American girls own a Barbie, the population of American girls has been the subject of the scaled-up version of that experiment for nearly six decades.

 

January 16, 2018 in Books, Media, Pop Culture | Permalink | Comments (0)

New Books: 100 Years of the 19th Amendment

Holly J. McCammon & Lee Ann Banaszak, eds., 100 Years of the Nineteenth Amendment: An Appraisal of Women's Political Activism (Oxford 2018)

The year 2020 will mark the 100th anniversary of the Nineteenth Amendment giving many women in the United States the right to vote. ***

Looking forward to the 100-year anniversary of the passage of the Nineteenth Amendment, this collection of original essays takes a long view of the past century of women's political engagement to gauge how much women have achieved in the political arena. The volume looks back at the decades since women won the right to vote to analyze the changes, developments, and even continuities in women's roles in the broad political sphere. Ultimately, the book asks two important questions about the last 100 years of women's suffrage: 1) How did the Nineteenth Amendment alter the American political system? and 2) How has women's engagement in politics changed over the last 100 years? 

As the chapters reveal, while women have made substantial strides in the political realm--voting at higher rates than men and gaining prominent leadership roles--barriers to gender equality remain. Women continue to be underrepresented in political office and to confront gender bias in a myriad of political settings. The contributors also remind us of the important understanding to be gained from an intersectional perspective to women's political engagement. In particular, several chapters discuss the failure of the Nineteenth Amendment to provide full political rights and representation to African American, Latina, and poorer women. The work also considers women's extra-institutional activism in a wide variety of settings, including in the feminist, civil rights, environmental, and far-right movements. As the volume traces women's forceful presence and limitations in politics over the past century, it also helps us look forward to consider the next 100 years: what additional victories might be won and what new defeats will need women's response?

Including my chapter with TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step

January 16, 2018 in Books, Constitutional, Legal History | Permalink | Comments (0)