Friday, July 30, 2021
The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.
West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.
Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.
The author lets the research speak for itself as she explores the modern cultural manifestations of patriarchy, militant masculinity, and the church's role in sexism.
As journalists and academics tried to explain how evangelicals could bring themselves to vote for Trump, Du Mez argued that evangelical support was not a shocking aberration from their views but a culmination of evangelicals’ long-standing embrace of militant masculinity, presenting the man as protector and warrior.
“In 2016, many observers were stunned at evangelicals’ apparent betrayal of their own values,” Du Mez wrote. “In reality, evangelicals did not cast their vote despite their beliefs, but because of them.”***
Du Mez, who teaches at Calvin University in Grand Rapids, Mich., wrote that mainstream evangelical leaders such as John Piper, James Dobson and John Eldredge, preached a “mutually reinforcing vision of Christian masculinity — of patriarchy and submission, sex and power.”
“The militant Christian masculinity they practiced and preached did indelibly shape both family and nation,” Du Mez wrote.
Tuesday, July 20, 2021
[M]ale violence against women....is a tool designed, as Jacqueline Rose writes in her new book, On Violence and On Violence Against Women, “to remind the girl or woman of what she is”—to gender her as female. For Rose ..., gender-based violence is not caused by sexual difference—neither attributes aggression to, for example, an excess of testosterone—rather it establishes the hierarchy of sexual difference.
Rose would ... add that ... violence is not the expression of a power they have, but of power they lack. ... As Rose would put it, he hits her to shore up his “fraudulent authority.”
Psychoanalysis has a word for this behavior, and it is “narcissism.” “Narcissism starts with the belief that the whole world is at your feet, there solely for you to manipulate,” explains Rose.
What is “fraudulent” about the authority of Stanleys everywhere is that it is rooted in denial. Women can and do commit acts of violence. But male violence interests Rose because it expresses the fundamental psychoanalytic mechanism of shame, projection, and denial. Boys and men are taught that masculinity means an absurd omnipotence, mastery, comfort, and prowess. They fail—how could they not?—to live up to that ideal. Many cannot tolerate their own vulnerability, which is coded as weakness, so they project vulnerability onto others, usually women; having disowned and disavowed it, they then try to destroy the woman who has come to represent (or embody) that vulnerability, through harassment, abuse, assault, rape, bullying, blows. The state colludes with this psychological and social project in policies that limit reproductive freedom, cruelly degrade asylum-seekers, and refuse trans people self-determination, to name only a few examples.
Harassment and sexual abuse are not, therefore, “the unadulterated expression of male power and authority”; quite the opposite. Violence against women has a frantic quality; it is something that one can only resort to; it protests too much. Which is not to say that it doesn’t hurt to be hit. Fraudulent authority is often deadly.
Those who have read Rose’s previous books will be somewhat familiar with the contours of this analysis. On Violence and On Violence Against Women takes up a subject she has not covered before—the dynamic that has lately been termed “toxic masculinity”—but it does so according to a conceptual approach she has been refining for decades.
Friday, July 9, 2021
In 1873, Congress passed a law outlawing the distribution, sale, mailing and possession of "obscene" materials — including contraception.
The Comstock Act, as it became known, was named after Anthony Comstock, an anti-vice crusader who later became a special agent to the U.S. Post Office, giving him the power to enforce the law. In her new book, The Man Who Hated Women, author Amy Sohn writes about Comstock — as well as eight women charged with violating the Comstock Act.
While working for the post office, Sohn says, Comstock "decoyed people" by using the mail to solicit obscenity and contraception.
"[Comstock] was given that [post office] title so that he could have the power to inspect the mail and over time it was expanded to be able to come into people's houses and seize items," she says. "It was a very broad, broad definition of what someone affiliated with the post office could do with regards to individual civil liberties."
Over time, the scope of the Comstock law expanded: "Its heart was in the mail, but ... it became much broader than that," Sohn says. "Even oral information, which reasonable people believed was constitutionally protected, turned out that it wasn't."
In 1916, feminist activist Emma Goldman was arrested in New York City just before giving a lecture on family planning. One year earlier, birth control advocate Margaret Sanger had been charged with violating the law. Goldman and Sanger are just two of the eight women profiled in Sohn's book. Others include nurses and health practitioners, spiritualists and women in the so-called free love movement.
The Comstock Act lasted until 1965 when the Supreme Court ruled it violated the right to marital privacy. "It was in Griswold v. Connecticut that married women could finally have the right to receive contraception from their doctors," Sohn says.
As for single women? They didn't get the same rights until the 1972 Eisenstadt v. Baird ruling — 99 years after the passage of the Comstock Act.
Tuesday, June 8, 2021
NYT, Book Review, Why "Unwell Women" Have Gone Misdiagnosed for Centuries
Reviewing: Elinor Cleghorn, UNWELL WOMEN: Misdiagnosis and Myth in a Man-Made World
In order to recognize illness, you have to know what health looks like — what’s normal, and what’s not. Until recently, medical research generally calibrated “normal” on a trim white male. Such a patient, arriving in an emergency room clutching his chest as they do in the movies — and in the textbooks — would be immediately evaluated for a heart attack. But heart disease in women, inconveniently, doesn’t always come with chest pain. A woman reporting dizziness, nausea and heart-pounding breathlessness in that same E.R. might be sent home with instructions to relax, her distress dismissed as emotional rather than cardiac.
Heart disease has clear markers and proven diagnostic tools. When a woman’s symptoms are less legible or quantifiable — fatigue, vertigo, chronic pain — the tendency to be dismissive grows. In “Unwell Women,” the British scholar Elinor Cleghorn makes the insidious impact of gender bias on women’s health starkly and appallingly explicit: “Medicine has insisted on pathologizing ‘femaleness,’ and by extension womanhood.”
A woman’s purpose was to procreate; if she wasn’t well, it was probably her womb that was to blame. One Roman writer described the uterus as “an animal within an animal,” with its own appetites and the capacity to wander through the body in search of satisfaction. Most female afflictions could be reduced to “hysteria,” from the Greek word for womb. “The theory that out-of-work wombs made women mad and sad was as old as medicine itself,” Cleghorn notes. The standard cure was marriage and motherhood. As Hippocratic medicine was refracted through the lens of Christianity, the female anatomy was additionally burdened with the weight of original sin.
Moving steadily through the centuries, Cleghorn lays out the vicious circles of women’s health. Taught that their anatomy was a source of shame, women remained in ignorance of their own bodies, unable to identify or articulate their symptoms and therefore powerless to contradict a male medical establishment that wasn’t listening anyway. Menstruation and menopause were — and often still are — understood as illness rather than aspects of health; a woman’s constitution, thus compromised, could hardly sustain the effort required for scholarship or professional life.
The intersection of class and race complicates things further. As early as 1847, the Scottish physician James Young Simpson argued in favor of anesthesia during labor and delivery, contradicting the age-old belief that the pain of birth was part of God’s judgment. (To this day, women who opt for an epidural instead of “natural childbirth” can feel a nagging sense of failure.) But even liberal-minded men like Simpson believed that what he called the “civilized female” needed his revolutionary innovation more than her less privileged sisters. Black women were thought to be less sensitive to pain and working-class women were considered hardier in general; certainly no one worried about whether these women could work while menstruating.
Each scientific advance came with its own shadow. Margaret Sanger may have campaigned for contraception “as a way for women to reclaim their bodies and lives from medical and social control” — but for women of color, birth control was presented more as a duty than a right, a weapon against overpopulation and poverty requiring the policing of women.
Thursday, May 27, 2021
Jamie Abrams, The Imperatives of Supporting New Scholarly Voices, 69 Journal of Legal Education No. 3 (2020).
The Legal Scholar’s Guidebook is dedicated “to all the voices longing to be heard,” previewing for readers the important values that the book champions of inviting more scholars to the table. The book is grounded in values of inclusivity and accessibility. It describes the analytic paradigms and organizational frameworks that govern traditional legal scholarship. The book implicitly reveals to readers something of a tension between conformity and inclusion. How do supervisors and mentors cultivate the development of new scholarly voices, particularly marginalized voices, within a context of reverent conformity to existing paradigms, methods, and schemas? In teaching scholarly writing, is the reverence and conformity to existing scholarship lifting up voices longing to be heard or is it conforming the voices longing to be heard with the dominant voices already being heard?
The Legal Scholar’s Guidebook is savvy in its quest to help the voices longing to be heard, and in its efforts to help address the self-doubts that nag so many scholars. It introduces important concepts of inclusion and imposter syndrome, boldly addressing them head-on, which is worthy of great gratitude. It embeds guidance throughout each chapter to “squelch the imposter voice” that can compromise the production of scholarship. The solution to the “imposter syndrome” though may not be more instruction. Mentors can reinforce the problem if those mentors share a different pedigree, background, resume from the scholar or if those mentors are confused or conflated with supervisors.
The Legal Scholar’s Guidebook, when read during a global pandemic and amid a crescendo of calls for racial justice in our communities, calls for our self-reflection as a community of scholars. Conquering imposter syndrome requires a strong sense of authenticity and belonging. This requires an alignment between one’s authentic values and identity and acceptance in a setting, institution, or task. For readers of this book in modern political, economic, and social times, it might be a springboard to deeper conversations about the chasms between the communities that feel like they belong in legal scholarship and those that do not. It might call for us all to strengthen the intentionality of our mentoring of students of color, nontraditional students, LGBTQ students, and women students. There has never been a better moment for us all to revisit how we produce and define “good” scholarship, the breadth of the scholarly voices we reproduce and consume, and the entrenched assumptions and hierarchies that shape our scholarly practices. In that sense, this guidebook might guide us all to a more inclusive and inviting place uplifting new scholarly voices.
Ronald Levant & Shana Pryor, The Tough Standard: The Hard Truth about Masculinity and Violence
Men are commonly expected to act “masculine” (e.g., unemotional, self-reliant, tough, dominant, and fixated on sex) while avoiding stereotypically “feminine” traits (e.g., emotional expressivity, empathy, compassion, and nurturance). Few, however, realize that these qualities—when taken to the extreme—can cause emotional constriction, substance abuse, depression, poor physical health, aggression, and violence in men. Further, even though most men are not violent, decades of research have shown that masculinity is directly and indirectly related to sexual and gun violence and men’s poorer health. Considering how girls and women have benefitted from conversations on how to navigate their gender in a changing world, similar processes are urgently needed for boys and men. The Tough Standard connects the dots between masculinity and the present moment in American culture (defined by high-profile movements such as #MeToo, #MarchForOurLives, and #BlackLivesMatter), synthesizes over four decades of research in the psychology of men and masculinities, and proposes solutions to corresponding social problems.
Table of Context
- Masculinity and the Present Cultural Moment
- Theories of Gender and How Masculinity Is Measured
- Consequences of Masculinity
- Summaries of Research on Masculinity’s Harmful Linkages
- Masculinity’s Role in Gun and Other Physical Violence
- Masculinity’s Role in Sexual Violence
- Men’s Health and Experiences of Trauma
- Many Masculinities
- What Can Be Done?
Monday, April 12, 2021
Ann McGinley, Masculinities Theory as Impetus for Change in Feminism and Law, THE OXFORD HANDBOOK OF FEMINISM AND LAW IN THE UNITED STATES (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds.).
Feminist legal scholars have found much in the field of masculinities to enrich the feminist analysis of law. In drawing on and incorporating masculinities theories into legal feminism, feminist scholars have added their own insight into the meaning of “masculinities.” As Nancy Dowd, Nancy Levit, and Ann McGinley explain: “Masculinities” has multiple meanings. First, it is a structure that gives men as a group power over women as a group. Second it is a set of practices, designed to maintain group power, that are considered “masculine.” Third, it is the engagement in or “doing” of these masculine practices by men or women. Finally, the term refers to a body of theory and scholarship by gender experts in various fields of social science.
Although masculinities originated in fields outside of law, legal scholars have adopted insights raised by masculinities scholars, combined with those of feminist theory, queer theory, and critical race theory, to develop a legal theory of masculinities that proposes new legal interpretations and policies that better correspond to the lived experiences of persons of different genders, races, and classes. This chapter explores how masculinities research has influenced legal feminism in the U.S.
Tuesday, April 6, 2021
I had always hated Hemingway. He was, after all, the classic misogynist.
It seemed I was forced to read Hemingway every year in school. Farewell to Arms, The Sun Also Rises, For Whom the Bell Tolls, The Snows of Kilimanjaro, The Old Man and the Sea. I read them all, against my will. To me they were boring stories about men. The words were short, cold, and devoid of beauty or lyricism. The topics were harsh and violent -- masculine topics of war, bullfighting, and big game hunting. Moreover, the works were filled with hateful depictions of women. Women were crazy harpies, tempting devils, or dead mothers. In Hemingway’s semi-autobiographical accounts, women were merely the women objects of antipathy, perhaps like the many wives that he continually traded in like cars.
So when I heard that PBS was featuring a new documentary series on Hemingway, I rolled my eyes and thought, “how tone deaf.” How misguided to hear yet again about a privileged white man, and one who had already received his acclaim. In this time of intense public debate of race and gender, in this time when so many women and people of color have not yet been recovered, why return to the same old story. For indeed, I had not encountered even famous writers like Zora Huston Neale or Daphne du Maurier until my own independent reading, long after school. But, like so many things that one dismisses, I discovered more complexity and nuance in Hemingway’s story, particular in the realm of gender.
The film reveals Hemingway not as a model of masculinity, but as a man battling with his own masculinity. Understanding this as toxic masculinity, changed the narrative for me. We learn of Hemingway’s Freudian early years with a mother who wrote him a rejection letter, and dressed him like a twin to his sister. We then understand his early attraction to two older woman, maternal figures, one of whom becomes his first wife. We see the author constrained by family demands--fighting for the time to write and feed his creative muse, diverted by screaming babies, marital demands, and unpaid bills until he can get alone, on the road or with his thoughts. This is all juxtaposed against the raucous pull of the popular writing crowd, with their carousing and attention-seeking affairs.
The film also shows us a broader range of topics that occupied Hemingway’s mind beyond bulls, bullets, and booze. One of his earliest stories, Up in Michigan, was about date rape. A shocking story that barely saw the publishing light, writer Edna O’Brien explains as actually told from the woman’s perspective, which is why it was so powerful. He wrote about abortion, suicide, STDs, childbirth, Caesarean sections, and death in childbirth – grim accounts of women (and men’s) reality. A later work, published posthumously, engages with transgender and same-sex attraction.
The short words took on new meaning for me as well. Rather than just a mimic of his journalism years, the short words were explained as a revolution in writing that left behind conventional indicators of writing prowess. I discovered the beauty of the short form, in the repetition of the same words that function as the action itself, as when repeating words form the march of the soldiers. Right, left, right, left, right, left. Like lawyers learning the impact of plain, unaffected writing, I could now appreciate the power of the staccato, and what the film describes as musical. The film reveals these words slowly on the screen, literally showing us the beauty of the typed word as Jeff Daniels' voice-over reads aloud.
This all came together for me in the discussion of the short story, Hills Like White Elephants. In this story, a man pressures his lover, “the girl,” to get an abortion. Most of the story is the man controlling the conversation, working through various points to win the argument, eventually gaslighting his partner, claiming, “I only want what you want.” He is dismissive of the way in which the young woman sees the world, whether its her vision of the looming white elephants overshadowing their lives or the personal and relational consequences of the abortion. Eventually, the young woman demands: "Would you please please please please please please please stop talking?"
PBS, Video, Hemingway, Gender and Identity
Friday, March 19, 2021
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault
Thursday, March 11, 2021
Erika Rackley & Rosemary Auchmuty, The Case for Feminist Legal History, 40 Oxford J. Legal Studies 878 (Dec. 2020)
It may be that we are witnessing a highpoint of interest in the lives of early women lawyers, and women’s legal history generally, both within and outside the academy, fuelled by the twin centenaries of the (partial) extension of the vote to women in 1918 and the formal admission of women to the legal profession the following year.1 Without doubt the anniversaries provide an opportunity to insert women into legal history (and history generally) and to mark the dedication, commitment and sacrifice of those involved in bringing them about. But without a strong scholarly method, politics and purpose, there is a danger that these celebrations will also encourage the proliferation of well-meaning but uncritical heroine narratives replete with myths and anecdote.
Feminist legal history provides a counter to this. Anchored in a commitment to disciplinary, social and political change, feminist legal history seeks not only to inform about women in law in the past, to uncover new histories, but also to challenge, and ultimately transform, our understandings of the past and present, and indeed the future. Its purpose is twofold: unlike its popular dopplegangers, typically focusing on women in the legal professions, feminist legal history is concerned with both ‘the production of knowledge of the past’ (an important end in itself, when so little is still known about women’s history) and, crucially, setting down ‘the substantive terms for a critical operation that uses the past to disrupt the certainties of the present’, opening up the possibility of imagining different futures.2
However, the doing of feminist legal history as an academic discipline and method remains largely undeveloped in the UK.3 This article seeks to address this absence by delineating its method, scope and purpose. We begin by exploring the exclusion of women and women’s engagement with policy and law reform more generally within traditional accounts of legal history. We go on to consider the methodological and substantive goals of feminist legal history, which relate both to the production of knowledge (by including women’s stories and establishing women as agents of change) and to feminist legal history’s disruptive purpose (by asking the ‘women’ question, challenging assumptions of progress, debunking heroine narratives and (re)locating the position and role of men). Drawing on examples of women’s experiences in and of law in the UK and Ireland, we seek to demonstrate the agency of women—both individually and in groups—in effecting legal, political and social change. We conclude with a call for scholars to take up the insights and methods of feminist legal history—to acknowledge the existence and different experiences of women in/and law, the ways they negotiated and fought to overcome the legal obstacles and opposition they faced (and still face)—before climbing onto their shoulders and continuing the fight for justice.
Historian TJ Boisseau and I similarly have argued for a feminist legal history in our book, aptly titled, Feminist Legal History (NYU Press 2011). See also Tracy A. Thomas & Tracey Jean Boisseau, Law, History & Feminism, introduction to Feminist Legal History.
h/t Kimberly Hamlin
Thursday, February 4, 2021
Countless women who have experienced intimate partner violence are enmeshed in overlapping, complex, and often inconsistent legal processes. They have both fleeting and longer-term connections with the legal system. Women, Intimate Partner Violence, and the Law explores how women from many different backgrounds interact with the law in response to intimate partner violence, over time. Drawing on their experiences of seeking help from the law, this book highlights the many failures of the legal system to provide safety for women and their children. The women's stories show how abusers often harness aspects of the legal process to continue their abuse. Heather Douglas reveals women's complex experiences of using law as a response to intimate partner violence.
Douglas interviewed women three times over three years to reveal their journey through the legal process. On occasion, the legal system allowed some women closure. However, circular and unexpected outcomes were a common experience. The resulting book showcases the level of endurance, tenacity, and patience it takes women to seek help and receive protection through law. This book shows how the legal system is failing too often to keep women and their children safe and how it might do better.
Tuesday, January 12, 2021
I enjoyed hearing about this new book at the AALS conference this year. Understanding the history, and discrimination of women law professors from those featured in the book and on the panel was interesting if also frustrating.
Herma Hill Kay, Paving the Way: The First American Women Law Professors, edited by Patricia Cain (forthcoming April 2021, U California Press)
Book Blurb: When it comes to breaking down barriers for women in the workplace, Ruth Bader Ginsburg’s name speaks volumes for itself—but, as she clarifies in the foreword to this long-awaited book, there are too many trailblazing names we do not know. Herma Hill Kay, former Dean of UC Berkeley School of Law and Ginsburg’s closest professional colleague, wrote Paving the Way to tell the stories of the first fourteen female law professors at ABA- and AALS-accredited law schools in the United States. Kay, who became the fifteenth such professor, labored over the stories of these women in order to provide an essential history of their path for the more than 2,000 women working as law professors today and all of their feminist colleagues.
Because Herma Hill Kay, who died in 2017, was able to obtain so much first-hand information about the fourteen women who preceded her, Paving the Way is filled with details, quiet and loud, of each of their lives and careers from their own perspectives. Kay wraps each story in rich historical context, lest we forget the extraordinarily difficult times in which these women lived
The point made by Melissa Murray was also well taken that the limitations of this study, focused as it was on ABA accredited and AALS schools, omitted many important women of color who taught at other institutions. For an earlier post about one of these women, Lutie Lytle, see The Story of the First Woman -- and the First Black Woman -- Law Professor, Lutie Lytle (2/1/2019)
Tuesday, December 1, 2020
New Book: Women and the Law (2020), Annual Edition of Selected Greatest Hits in Legal Scholarship on Women's Rights
I've just published the 2020 edition of Women and the Law (Thomson Reuters). It is an annual edition of selected works on women and the law likely to be of interest to practitioners in the field. Kind of a "greatest hits" if you will of the legal scholarship from the prior year.
Here is this year's Table of Contents:
Part A Special Issue: The Nineteenth Amendment
Chapter 1 More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Tracy A. Thomas
Chapter 2 The Nineteenth Amendment and the Democratization of the Family, Reva B. Siegel
Chapter 3 The Constitutional Development of the Nineteenth Amendment In the Decade Following Ratification, Paula A. Monopoli
Chapter 4 Thin and Thick Conceptions of the Nineteenth Amendment Right To Vote and Congress's Power To Enforce It, Richard Hasen and Leah M. Litman
Chapter 5 The “Welfare Queen” Goes to the Polls: Race Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Catherine Powell and Camille Gear Rich
Part B Women in the Workplace
Chapter 6 Sexual Harassment Litigation with a Dose of Reality, Diane P. Wood
Chapter 7 What's Reasonable Now? Sexual Harassment Law After the Norm Cascade, Joan C. Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, and Rayna Saron
Chapter 8 Beyond the Bad Apple—Transforming the American Workplace for Women After #MeToo, Claudia Flores
Chapter 9 Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, Orly Lobel
Part C Reproductive Rights
Chapter 10 The Continued Rise of the Reproductive Justice Lawyer, Leigh Creighton Bond and Monika Taliaferro
Chapter 11 Contracting Pregnancy, Rachel Rebouché
Part D Feminism and the Family
Chapter 12 Unsexing Pregnancy, David Fontana and Naomi Schoenbaum
Chapter 13 Settling in the Shadow of Sex: Gender Bias in Marital Asset Division, Jennifer Bennett Shinall
Part E Violence Against Women
Chapter 14 Straight Outta SCOTUS: Domestic Violence, True Threats, and Free Speech, Jessica Miles
Chapter 15 Retraumatized in Court, Negar Katirai
Chapter 16 #MeToo and Mass Incarceration, Aya Gruber
Part F Theory
Chapter 17 Sex in Public, Elizabeth Sepper and Deborah Dinner
Chapter 18 Leveling Down Gender Equality, Tracy A. Thomas
Chapter 19 Engendering Trust, Deborah S. Gordon
Chapter 20 The Body Politic: Federalism as Feminism in Health Reform, Elizabeth Y. McCuskey
Monday, November 30, 2020
I've just posted a new book chapter, The Long History of Feminist Legal Theory, forthcoming in in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams eds. Oxford Univ. Press).
This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred and fifty years. This chapter traces that development. It begins with the establishment of the core theoretical precepts of gender and equality grounded in the surprisingly comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. It then shows how feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality, and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.
Friday, October 23, 2020
In Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress, Alasia Nuti explores the relationship between history and the provision of justice by focusing on women as a historical-structural group subject to historical injustices that continue to impact the present. This is a very welcome contribution to the literature, writes Ebru Demir, providing both deep and rigorous analyses of its case studies and proposing thought-provoking new terminology.
Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress. Alasia Nuti. Cambridge University Press. 2019.
Why should an unjust history matter for egalitarians seeking justice in the present? How and why does history relate to the provision of justice both theoretically and practically? Alasia Nuti’s Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress not only engages with such longstanding questions but also makes an important contribution to the existing literature as it centres on the argument that women as a historical-structural group (HSG) are the subjects of historical injustices.
One of the main arguments of the book is that ‘unjust history that should normatively matter in justice-based considerations is present because it has been reproduced over time through different means’ (4). In the first half of the book, Nuti builds this argument on very solid ground by engaging with the relevant literature and by providing examples to validate this very point. ‘De-temporalising injustice’, borrowed from Reinhart Koselleck’s terminology, is significant and necessary in order to capture the relation between past and present injustices (13). The book contributes to the de-temporalising of injustice by suggesting that past and present injustices have possible connections and all backward-looking approaches to injustice consider only past injustices as significant enough to address (15). According to Nuti, past and present cannot be separated if one seeks to provide justice for historical-structural injustices (HSIs) that have been committed. For this very reason, the division between past and present becomes deceptive. The present reproduces the unjust past ‘over time and through changes’ (8). Thus, change also becomes a suspect in perpetuating unjust history.
The second half of the book forms a study of women as a group and as the subjects of The second half of the book forms a study of women as a group and as the subjects of historical injustices. Although previously Catherine Lu has argued that women are a group suffering from enduring injustice, by carrying this argument one step further, this book provides a thorough analysis of how such a group is defined. Nuti, being aware of intersectional identities and differences, argues that to be categorised as a woman, one is not obliged to have been through systematic oppression: it is sufficient for one to be more likely to be exposed to unjust constraints and abuses (90). Therefore, possibility and potentiality become the requirements for being categorised as a group undergoing historical injustices.
Wednesday, October 21, 2020
Recalling the First Comprehensive History of Women's Rights, Eleanor Flexner's 1959, Century of Struggle
In the 1950s, Eleanor Flexner, a left-wing activist and writer, decided to compile a comprehensive history of the women’s rights movement in the United States, exploring a span of more than 300 years. Her timing could not have been less auspicious. Feminism was virtually a dirty word, described in Ferdinand Lundberg and Marynia F. Farnham’s celebrated book “Modern Woman: The Lost Sex” (1947) as “at its core, a deep illness.”
Moreover, the House Un-American Activities Committee, or HUAC, was engaged in a ruthless investigation of Communist influence in the United States, attacking left-wing artists and intellectuals. Flexner had been a member of the Communist Party from 1936 through 1956, and although she was not hauled before HUAC, the careers of some of her closest friends and associates had been ruined.
Nonetheless, Flexner, with no formal training as a professional historian, began what became a pathbreaking, wide-ranging account of activism for women’s rights in America.
“Century of Struggle: The Women’s Rights Movement in the United States” (1959) was the first authoritative narrative of one of the great dimensions of American democratic history. The book, based largely on her original research in the Library of Congress, the Sophia Smith Collection of Women’s History at Smith College and elsewhere, covered an immense amount of material, from Anne Hutchinson, the 17th-century rebel against Puritan clerical authority in Massachusetts, to the dramatic final years of the ratification of the 19th Amendment, by which women won the right to vote. It remained the pre-eminent text on the topic for more than half a century, and is still taught in schools and consulted widely by historians today.
Wednesday, October 7, 2020
Against this backdrop comes Melissa Murray, Katherine Shaw, and Reva Siegel’s edited collection of essays, Reproductive Rights and Justice Stories. The collection could not be timelier. Their volume contains a series of essays that “bring together important cases involving the state regulation of sex, childbearing, and parenting.”
The two goals of the collection are to expand the contours of the field of reproductive rights and justice and to decenter the role of courts in that field. The editors’ pathbreaking volume cements a definition of reproductive rights and justice that is both more coherent and more nuanced than many earlier definitions, which often limited discussions of reproductive rights
and justice to contraception and abortion. The volume makes significant headway in illustrating the many different ways that law affects reproductive rights and justice.
Broadening readers’ understandings about what constitutes reproductive rights and justice has several benefits. It illuminates the many different ways that law and society construct and constrain what parenthood—and particularly motherhood—entails. Unpacking how law and society have made motherhood carry certain roles and expectations clarifies the stakes of
traditional reproductive rights and justice issues. For example, if becoming a parent, and in particular becoming a mother, entails assuming a particular identity, then the autonomy and liberty interests at stake in parentage decisions are much greater than just bodily autonomy.
The collection of essays also offers a lens through which to understand myriad legal issues. The volume makes clear that many different topics— ranging from workplace protections, to labor law, to disability law, to criminal procedure, to insurance law—implicate reproductive rights and justice in addition to decisions about whether to criminalize abortion or contraception. That has the salutary benefit of unearthing the complex web of laws and social conventions that influence parentage decisions. Understanding all of the influences on parentage decisions would also make it easier to construct a system that is supportive of families.
By broadening the definition of reproductive rights and justice to include the many different ways that law and society shape individuals’ decisions about whether to have children, the volume also pushes its readers to think about additional ways in which law and society influence decisions about sex and parentage.
Friday, October 2, 2020
New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood
Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)
Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.
Tuesday, September 29, 2020
Jennifer Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power and Assault on Campuses
A groundbreaking study that transforms how we see and address the most misunderstood problem on college campuses: widespread sexual assault.
The fear of campus sexual assault has become an inextricable part of the college experience. Research has shown that by the time they graduate, as many as one in three women and almost one in six men will have been sexually assaulted. But why is sexual assault such a common feature of college life? And what can be done to prevent it? Drawing on the Sexual Health Initiative to Foster Transformation (SHIFT) at Columbia University, the most comprehensive study of sexual assault on a campus to date, Jennifer S. Hirsch and Shamus Khan present an entirely new framework that emphasizes sexual assault’s social roots—transcending current debates about consent, predators in a “hunting ground,” and the dangers of hooking up.
Sexual Citizens is based on years of research interviewing and observing college life—with students of different races, genders, sexual orientations, and socioeconomic backgrounds. Hirsch and Khan’s landmark study reveals the social ecosystem that makes sexual assault so predictable, explaining how physical spaces, alcohol, peer groups, and cultural norms influence young people’s experiences and interpretations of both sex and sexual assault. Through the powerful concepts of “sexual projects,” “sexual citizenship,” and “sexual geographies,” the authors offer a new and widely-accessible language for understanding the forces that shape young people’s sexual relationships. Empathetic, insightful, and far-ranging, Sexual Citizens transforms our understanding of sexual assault and offers a roadmap for how to address it.