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.
Monday, September 28, 2020
Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)
In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.
Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.
Friday, September 11, 2020
Lesley Wexner, Law and Non-Legal Entitlements: Kate Manne's Entitled: How Male Privilege Hurts Women, Verdict
Philosopher Kate Manne’s first book Down Girl exploded into the popular consciousness just a few years ago. She rejected a simplistic view of misogyny as simply men who hate women and instead developed a broader view that misogyny serves “primarily a property of social environments in which women are liable to encounter hostility due to the enforcement and policing of patriarchal norms and expectations. . . . Misogyny functions to enforce and police women’s subordination and to uphold male dominance.” Given Manne’s sharp analytic approach, I eagerly awaited her follow-up, Entitled, just now published. This new work focuses on how “privileged men’s sense of entitlement. . . is a pervasive social problem with often devastating consequences.”
Coming to Manne’s new work as a law professor, I thought about how Entitled might fit within the property literature. It reminded me, in a good way, of Robert Ellickson’s infamous article on Shasta County and the role of informal norms in managing property rights. Ellickson’s investigation of ranchers and farmers was seminal in challenging the Coasean intuition that in the absence of transaction costs, initial property entitlements are irrelevant since parties will simply bargain their way to the efficient outcome. He urged law and economics to think about and account for the development and the enforcement of informal norms and what those might tell us about the recourse to the law to enforce legal entitlements. Manne makes a similar move, but one step earlier. She suggests that to successfully challenge both the law and the informal norms, more of society needs to first clearly see and understand the original underlying entitlements. Her book identifies, names, and explores a whole universe of entitlements that often benefit men at the expense of women. While many of the entitlements Manne identifies are not legal entitlements provided for by the state, they are pervasive, they shape a great deal of human interaction, their use as the social default disfavors women, and society is having a difficult time bartering to what I see as the appropriate socially optimal egalitarian outcome. I found her entitlement framework illuminating and will spend the rest of this post explaining how the framework exposes different entitlements in American society.
Wednesday, August 26, 2020
Susan Frelich Appleton, Book Review, Telling the Story of Justice Sandra Day O'Connor, 62 Wash. U. J. Law & Policy 5 (2020)
[T]his brief review critically examines First: Sandra Day O'Connor, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. ***
I detected elisions and oversimplifications that I suspect other authors, especially those more attuned to gender and feminist jurisprudence, might well have avoided. Two examples help make my point. First, although Justice O’Connor is certainly entitled to reject the label “feminist,” it would have been easy to note how her pragmatic and context-sensitive approach to deciding cases tracks a methodology that feminist legal theorists call “feminist practical reasoning.” Indeed, Thomas comes so close when he writes: “by judging in her one-case-at-a time fashion—by looking closely at the facts and broader social context—she did bring a uniquely female perspective: her own.” He could have enriched this analysis with a brief reference to feminist legal methodologies,
adding force and complexity to O’Connor’s supposed rejection of the idea that women decide cases differently and her clerks’ reported bewilderment “at her lack of self-awareness.”
Second, the biography includes only the skimpiest mention of O’Connor’s concurring opinion in J.E.B. v. Alabama, when—again— situating it in feminist jurisprudence would have provided a deeper view of
the significance of gender to O’Connor. ***
By the end, the book left me puzzling over several questions about the author, diverting attention from the Justice herself: How reliable a narrator is Thomas in telling her story? How did Thomas’s own intimate relationship color his “intimate portrait”? How confident can readers feel that Thomas captured and presented a full picture of O’Connor, especially when it comes to how gender, and society’s construction of it, shaped her and her history making life?
My own work
Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)
Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)
Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)
Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)
Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)
Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)
Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920
Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)
Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)
Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)
Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)
Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)
Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)
Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev. 1456 (2001
Angela Dodson, Why Women's Suffrage Matters for Black People
While our collective memory of the suffrage movement is often a vision of a small band of white women — fighting the establishment alone, marching and picketing in their flowy white dresses — the story of the women’s movement was more complicated and nuanced than that. It involved many women, but also men, of different races who had to find their voice, identify allies and build coalitions.
As the centennial of the 19th Amendment’s certification on Aug. 26, 1920, approaches, many African Americans have questioned whether the suffrage movement is relevant to them, because most Black people in the South were disenfranchised anyway. For many African Americans, the movement’s reputation for discriminating against or dismissing Black suffragists and the long history of discord between white and Black feminists do not inspire enthusiasm for the anniversary celebration.
As we approach the centennial and the first presidential election with a Black/Asian woman in the race, the first woman of color on a major political party’s ticket, we should examine how we got the vote and at what cost.
To dismiss the suffrage movement as irrelevant dishonors the many Black women and men who participated — lobbying, debating, lecturing, petitioning, editorializing, parading and picketing alongside white suffragists.
As women are gaining greater leverage in the political system, now is the time to study and credit the contributions of all suffragists and expand our knowledge of the entire movement.
Including Soujourner Truth, Angelina Weld Grimke, Sarah Redmond, Mary Ann Shadd Cary, Frances Harper, Josephine Ruffin, Mary Church Terrell, Ida B. Wells-Barnett, and many more.
Taken from Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920
Monday, August 17, 2020
Book Review, Kate Manne: "Entitled" Takes a Scalpel to What Men Feel they are Automatically Deserve
“This book shows that an illegitimate sense of male entitlement gives rise to a wide range of misogynistic behavior,” she writes in “Entitled.” “When a woman fails to give a man what he’s supposedly owed, she will often face punishment and reprisal.”***
The book goes on to parse the various “goods” that men, in Manne’s reckoning, have been conditioned to feel entitled to — admiration, sex and consent; a home where someone else uncomplainingly does most of the child care and housekeeping. Some of these things are “feminine-coded,” she writes; others, like power and knowledge, are typically reserved as a masculine prerogative.
Some forms of discrimination are subtle, operating below the level of our conscious thoughts, but they still exert meaningful effects, Manne says. The reflexive distaste or suspicion that greets any woman who asserts her ambition is in some ways just as indicative of how the social order gets preserved as the violence meted out by the most vicious misogynists.***
One of the qualities that makes Manne’s writing bracing and even thrilling to read is her refusal to ingratiate herself by softening the edges of her resolve. She was trained as a logician, and in “Down Girl” she systematically laid out her premises and evidence to show how misogyny operated according to its own peculiar logic.
“Entitled” doesn’t feel as surprising or as tightly coiled as that book. In “Down Girl,” she offered a brilliantly original understanding of misogyny, a term that can sound too extreme to use, by showing the routine and banal forms that its hostility often took. The concepts of entitlement and privilege aren’t nearly as rare or mysterious; swaths of this new book are clarifying but also familiar.
Still, the subject of “Entitled” is trickier in many ways than the subject of “Down Girl.” Feelings of entitlement may be essential to misogyny — but Manne argues that they’re essential to defeating misogyny, too. She ends by writing about her newborn daughter, and the things that she wants her daughter to feel she deserves, which are necessarily connected to a set of moral obligations. This more reciprocal understanding of entitlement encourages us to think hard about what we owe, not just to ourselves but to one another.
Thursday, August 6, 2020
Feminist geographer Leslie Kern has faith in cities.
Kern, an associate professor of geography and environment and director of women’s and gender studies at Mount Allison University in Sackville, Canada, believes cities’ histories as bastions of social progress prove they can be transformative places for women and other people who have been, and remain, socially and politically oppressed.
But in her new book, “Feminist City: Claiming Space in a Man-Made World,” Kern argues that despite their potential, cities have also long failed — and continue to fail — women, and specifically women of color and women with disabilities. Kern spoke to The Lily about how she believes feminist cities could stymie domestic violence and better support parents, why urban planners should read feminist theory and what the coronavirus pandemic reveals about how cities need to change to be more equitable places for all their inhabitants
Julianne McShane: I first want to ask a question that’s probably on a lot of readers’ minds: What makes a city feminist?
Leslie Kern: A feminist city would be one that prioritizes care work — the work that we all do to take care of one another and to survive as human beings — rather than mostly prioritizing the economic work of the city. So there’s lots of ways that can play out, whether it’s in housing, transportation, food, child care, all of these realms, but to me that is one of the core principles that would underlie a feminist city.
Click the link above to read the rest of the interview.