Gender and the Law Prof Blog

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

Tuesday, January 12, 2021

COVID, Abortion Restrictions, and Public Health in the Culture Wars

Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)  

At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.

The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.

Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.

January 12, 2021 in Abortion, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Friday, December 4, 2020

Using Social Science to Understand Why Family Courts Discount Women's Testimony in Domestic Violence Cases

Amelia Mindthoff, Deborah Goldfarb, Kelly Alison Behre, How Social Science Can Help Us Understand Why Family Courts May Discount Women's Testimony in Intimate Partner Violence Cases, 53 Family Law Quarterly, No. 3, 2019.

Thirty years ago, legal scholars and social scientists began to note the legal systems’ skepticism of women in general and victims of gender-based violence in particular. Despite increased public awareness about domestic violence, female victims of intimate partner violence (IPV) continue to find their credibility discounted. Deborah Tuerkheimer coined the term “credibility discount” to describe how the criminal legal system responds to women’s reports of sexual violence by discounting their credibility at every step of the process, from initial reports to law enforcement and prosecutorial discretion through judicial and jury decisions. Deborah Epstein and Lisa Goodman expanded the dialogue on credibility discounting to include the experiences of female victims of IPV in legal and social service settings. IPV victims often access family courts for injunctive relief, child custody and visitation orders, and financial relief following separation from an abusive partner, a time period during which they are at a heightened lethality risk. Consequently, credibility discounting by family courts may prove particularly dangerous for victims of IPV.

This Article builds upon the work done thus far on the intersection of gender and credibility in the family courts by reviewing both psychological research and legal scholarship examining factors that may contribute to the perseverance of credibility discounting of IPV victims. As part of this discussion, we raise potential psychological misperceptions or assumptions that underlie the discounting of people’s credibility, including factors that may be particularly pertinent to women reporting IPV. We further consider the implications of these misperceptions in family court settings. We hope this advances the discussion on remedies for credibility discounting to ensure that victims receive just treatment as they navigate the legal system.

Part I of this Article reviews the family court’s role in IPV cases and how it can perpetuate credibility discounting. Part II discusses gender biases in the legal system that have the potential to propagate credibility discounting of IPV victims navigating the family court system. Part III explores general psychological theory and associated empirical evidence and considers how theory can shed light on why credibility discounting may persist in family courts. Part IV provides suggestions for ways to mitigate gender bias demonstrated in the credibility discounting of IPV victims in family courts.

December 4, 2020 in Courts, Family, Violence Against Women | Permalink | Comments (0)

Thursday, November 19, 2020

The MeToo Movement's Effect on Juror Bias in Sexual Assault Cases

Mary Graw Leary, Is the #MeToo Movement for Real? Implications for Juror's Biases in Sexual Assault Cases, 81 Louisiana L. Rev. 1 (2020)  

For decades the conventional wisdom asserted that law enforcement, the judiciary, and jurors were skeptical of claims of sexual violence and largely unsympathetic to the plight of victims. Many high profile cases highlighted this reality. These include the acquittal of R. Kelly for rape despite some video evidence, the sentencing of Brock Turner to less than a year incarceration for sexual assault of an unconscious woman, and the guilty plea of Jeffrey Epstein to minor charges despite significant evidence of the sex trafficking of minors. This perception of a lack of justice for sexual violence victims is also generally supported by the documented attrition rates of sexual violence cases as they progress through the criminal justice system. Scholars suggest many reasons for this bias against sex crime victims including victim blaming, discrimination, a desire to not want to believe the abuse occurred, stereotypes of the victims, acceptance of the rape myth, or the perceived credibility of the offenders.

In October of 2017, a public social movement against sexual harassment and sexual assault emerged on the national level (although it previously existed), entitled the “Me Too Movement.” This movement awakened a revelation in the United States of the prevalence of the sexual harassment and abuse experienced by women. By underscoring the frequency with which women are assaulted, the movement forced a reluctant public to face the breadth of the problem and the trauma experienced by these women.

A body of research exists regarding the lack of sympathy of jurors to victims of sexual violence. A new body of research is emerging documenting the effect of the #Me Too Movement on societal perceptions of rape and other forms of sexual violence. This article examines the latter focusing on the effect the movement could have on contemporary societal norms regarding sexual assault. It explores whether these effects may alter previously accepted assumptions regarding jurors, perhaps suggesting a shift not only in public perception, but jury perception of sexual violence. It argues that the Movement has significant potential to ameliorate the attrition problem in sexual assault cases, but not in expected ways. For this positive change to occur, it requires work of prosecutors and judges in these trials rethink evidence and jury selection and incorporate some of the lessons learned.

November 19, 2020 in Courts, Equal Employment, Gender | Permalink | Comments (0)

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, October 27, 2020

Understanding the Standing Issue in the Dismissal of the ERA Lawsuit

The prospects of judicial approval of the Equal Rights Amendment have taken a quiet step backward with a ruling that said women - individually or in advocacy groups - cannot sue the government to declare the amendment ratified because they lack a "personal stake" in its passage.
 
The proposed constitutional ban on sex discrimination, first introduced in 1923, could still be revived by the courts or Congress. But the latest judicial decisions are another signal that some actions by federal or state governments - like changing the Constitution, approving construction in a park or forest or even refusing to defend a voter-approved ban on same-sex marriage in California - can be difficult or impossible for private citizens to challenge in court.
 
To establish legal "standing" - the right to sue - in federal court, "you have to have a personal stake in a controversy ... some skin in the game," said Evan Lee, an emeritus professor at UC Hastings College of the Law in San Francisco who has studied the issue.
 
"No matter if you've devoted your life to pursuing this particular cause," like environmental protection or the Equal Rights Amendment, "that's not skin in the game" according to the Supreme Court, said Lee, who is critical of the court's restrictions. In most cases, he said, the best way to establish standing is to claim the government's actions will deprive you of money or property.
 
"People can't sue just by saying the government is violating the Constitution," said Erwin Chemerinsky, dean of the UC Berkeley School of Law. "I wish the court had a different view of standing," but under its established precedents, "an injury shared in common with everybody is a generalized grievance" that cannot be challenged in court.
 
Even if that "grievance" is a federal official's rejection of a constitutional amendment that's the reason for your group's existence.***
 
But U.S. District Judge Denise Casper ruled in August that the women, while devoted advocates of the ERA, had no more legal interests or rights at stake than the rest of the population and could not show an "individualized and concrete stake in the outcome."
 
Casper said the Supreme Court used the same standard in 1971 to dismiss a suit by the Sierra Club challenging the government's approval of a new highway and power lines in Sequoia National Forest - construction that may have lessened the forest's beauty and visitors' enjoyment but did not harm their individual rights, the court said. Casper also said the assault victim could not attribute her injuries, physical or legal, to the archivist's refusal to recognize the amendment.
 
Both Casper and Ferriero were appointed by President Barack Obama.
 
The plaintiffs sought immediate review in the Supreme Court, arguing it was "indisputable and intolerable" that "women suffer harm because they are unequal based on sex" and that the ERA's advocates have crucial interests at stake. But the court left Casper's ruling intact on Oct. 13 in a one-line order, with no recorded dissents.
 
The order did not end the case, which is heading to a federal appeals court. The fate of the amendment could still be affected by a separate suit filed in January by the three late-ratifying states and possible future legal action by Congress. The House passed a resolution by Rep. Jackie Speier , D-San Mateo, in February to eliminate the deadline, and it could reach the Senate floor next year if Democrats gain a majority. On the other side, legislators in at least four states - Nebraska, Idaho, Kentucky and South Dakota - have voted to rescind their previous approval of the ERA.

October 27, 2020 in Constitutional, Courts | Permalink | Comments (0)

Equal Rights Amendment Lawsuit Dismissed on Standing Grounds Denied Direct Supreme Court Review

Equal Rights Amendment Denied Supreme Court Hearing for Now

Equal Rights Amendment supporters won’t get an immediate hearing at the U.S. Supreme Court as they fight to ensure the nearly 50-year-old proposition is added to the U.S. Constitution.

 

The high court on Tuesday denied an unusual direct Supreme Court petition, which would have leapfrogged a U.S. appeals court, after a federal trial court in Boston dismissed their lawsuit for lack of standing.

 

“The petition for a writ of certiorari before judgment is denied,” the justices said.

 

The case is one of the two pending in federal courts over the ERA’s drawn out, and therefore disputed, ratification. ERA supporters had argued immediate Supreme Court action was appropriate “because the ERA is the most important and fundamental of all women’s rights, but also because everyone in America has a right and need to know whether it is now the Twenty-Eighth Amendment to the Constitution.”

The case had been dismissed on standing grounds in August, and the plaintiffs sought a direct petition in the Supreme Court

 

Equal Rights Amendment Lawsuit Thrown Out by US Judge in Boston

A Boston judge dismissed one of two federal lawsuits over the Equal Rights Amendment, finding the women’s rights groups who sued to ensure its addition to the U.S. Constitution lacked legal standing to bring the case.

 

The case—like a similar lawsuit pending in Washington—sought official recognition of the ERA as the 28th amendment to the Constitution after Virginia became the 38th state to ratify it in January. If its ratification is deemed valid, the amendment that Congress advanced to the states in 1972 would create a constitutional guarantee of equal treatment under the law for women, potentially affecting a broad swath of the law governing employment, health care, and more.

 

ERA supporters and those who oppose its ratification disagree over the validity of the 1979 deadline Congress imposed for three-fourths of states to approve it. A U.S. Justice Department legal opinion published in January found the deadline to be valid, and the U.S. archivist has declined to certify the ERA as officially ratified.

 

In the Boston lawsuit, the advocacy groups Equal Means Equal and The Yellow Roses, along with an individual woman, Katherine Weitbrecht, asked the court to order Archivist David Ferriero to grant that certification.

 

The women’s groups and Weitbrecht failed to show they’d suffered injuries that could be remedied by the court, a prerequisite to their maintaining the suit, Judge Denise J. Casper wrote in a decision granting the Justice Department’s motion to dismiss the case.

 

The judge stopped short of ruling on the merits of the case—namely, whether the 1979 deadline is valid and whether five states that voted to rescind their ERA approval had legal authority for those rescissions.

 

“Plaintiffs argue that all persons that would be protected under the ERA are injured by the Archivist’s actions because they have a legal interest in the ‘continued vitality of the ERA,’” Casper wrote.

 

“Cognizable injuries must be both concrete and particularized,” the judge said. “These generalized injuries to all those protected by the ERA fail in both respects.”

 

An attorney for the Boston plaintiffs said she is prepared to appeal and simultaneously seek review by the U.S. Supreme Court, following the model of a previous ERA lawsuit.

 

“Legally the judge got it wrong, but politically the decision was anticipated and we have already prepared a cert petition to get the case before the Supreme Court as soon as possible,” said Boston attorney Wendy J. Murphy. “It’s not common to go straight to the Supreme Court from the District Court but it’s exactly what happened with the Idaho ERA case in 1980, so we will follow that model and file an appeal with the First Circuit and a cert petition with SCOTUS.”

See also SF Chronicle, Equal Rights Amendment Battle Highlights Obstacles to Challenging Federal Decisions in Court

 

October 27, 2020 in Constitutional, Courts | Permalink | Comments (0)

Friday, October 23, 2020

How Sexual Harassment Law Failed its Feminist Roots

L. Camille Hebert, How Sexual Harassment Law Failed its Feminist Roots, 22 Georgetown J. Gender Law (forthcoming)

The dawn of sexual harassment law showed so much promise. But in spite of the hopefulness with which the legal recognition of sexual harassment was greeted, the intervening years have shown that the law of sexual harassment has not lived up to its potential. Rather than creating a cause of action empowering women to challenge employment practices that have subjected them to degrading treatment while limiting their workplace opportunities, courts have instead recognized a number of elements of a cognizable claim of sexual harassment that have effectively sanctioned the continuance of the conduct, while effectively blaming women for its occurrence. The judicial imposition of the elements of a claim for sexual harassment and the judicial gloss placed on those elements has turned the cause of action for sexual harassment into something far different than the feminists who worked for recognition of the cause of action envisioned. The courts have turned that promise into a cause of action that seeks to protect the workplace from women who would make claims of sexual harassment, rather than a cause of action that seeks to protect women from discriminatory workplaces. This article explores how some of that lost promise might be recaptured, first through a reshaping of the law by the courts and legislatures within the frame of the existing structure of the cause of action, explaining how the courts could apply the existing elements of the cause of action in a way more consistent with the purpose of Title VII to assure women of the right to workplace equality. The article then imagines a more fundamental reshaping of the law of sexual harassment, exploring what the law of sexual harassment might look like if it were designed by feminists, forged by an overriding concern about ensuring women’s workplace equality rather than protecting existing workplace norms.

October 23, 2020 in Courts, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Tuesday, October 13, 2020

Federal Rule Making Committees are Predominantly White and Male

Brooke Coleman, #SoWhiteMostlyMale Federal Procedural Rulemaking Committees, UCLA L. Rev. Disc. (Forthcoming)

Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That’s 94% of the committee membership. Of that same group, 513—or 81%—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while expert—are not disinterested actors. This essay examines racial and gender diversity across six different committees. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the Judiciary, and the Bar should demand it.

October 13, 2020 in Courts, Gender, Workplace | Permalink | Comments (0)

Monday, October 12, 2020

New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.

Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.

That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).

Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).

Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.

“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***

In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.

Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.

Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.

October 12, 2020 in Courts, Gender, Judges, Legal History, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, September 15, 2020

Case Behind SCOTUS Walmart Decision on Class Actions for Gender Discrimination to be Netflix Show

Walmart Legal Saga to Become Netflix Show Starring Amy Adams

A legal fight against Walmart Inc. that became the largest employment class-action lawsuit in history will become a series at Netflix Inc. from actress Amy Adams and “The Big Short” director Adam McKay.

 

“Kings of America” will follow three women involved in the lawsuit, which went to the Supreme Court in 2011: a Walmart heiress, an executive and a saleswoman at the retail chain. Adams stars as one of the women, and McKay will direct the first episode of the series.

 

The case involved female employees suing Walmart for alleged gender discrimination -- including pay disparities and favoring male workers -- on behalf of potentially more than a million employees. That made it the largest lawsuit of its kind. Walmart is the biggest private employer in the U.S. and the world’s largest company based on revenue.

 

With billions of dollars at stake for Walmart, the Supreme Court blocked the suit from proceeding as a class action in a 5-4 vote in June 2011. The late Justice Antonin Scalia argued there was no “convincing proof of a companywide discriminatory pay and promotion policy.”

September 15, 2020 in Business, Courts, Equal Employment, Media, Pop Culture | Permalink | Comments (0)

Wednesday, September 9, 2020

Implicit Gender Bias in Judicial Opinion Writing: A Study of the Iowa Supreme Court

Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)

The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?

 

This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.

 

September 9, 2020 in Courts, Gender, Judges, Women lawyers | Permalink | Comments (0)

Thursday, September 3, 2020

The Role of South Africa's Women Judges in Pursuing Gender Equality Through the Courts

Penelope Andres, Pursuing Gender Equality through the Courts: The Role of South Africa’s Women Judges" 

The appointment of female judges in South Africa is part of the transformative constitutional project. This chapter examines the question of gender equality and specifically the contribution of female judges to the transformation of the judiciary in. It explores whether women judges have, in their judgements, conscripted and interpreted the Constitution to highlight and guarantee its transformative potential and possibilities. The chapter attempts to answer two questions: What difference has the cohort of women judges made since their appointment in significant numbers post-1994? What is the impact of women judges on constitutional jurisprudence with respect to gender equality? I conclude that despite some overlap between the opinions of the female and male judges, the opinions of the female judges differ in some significant ways from their male counterparts. This difference is located in the distinct way that female judges have framed the legal issues. The chapter has pointed out that considerable institutional obstacles continue to impede women’s appointment to the judiciary, but once on the bench, they really make a difference.

September 3, 2020 in Courts, International, Judges | Permalink | Comments (0)

Thursday, July 23, 2020

Federal Judge Rejects Weinstein Settlement, Saying it Fails to Adequately Compensate Victims and Creates Inequality Among Victims

NPR, Federal Judge Rejects Harvey Weinstein's $19 Million Settlement with Alleged Victims 

A federal New York judge has thrown out a proposed $18.9 million settlement between convicted rapist and former movie producer Harvey Weinstein, and several women.

 

U.S. District Judge Alvin Hellerstein said the offer failed to adequately compensate many of the victims who allege they were sexually assaulted or raped by Weinstein.

 

He also faulted the money included in the settlement that would help pay Weinstein's legal bills.

 

In a telephone hearing, Hellerstein said it was unfair to include women who'd merely met Weinstein with those making more grievous charges, Reuters reported.

 

"Not every woman was captured in the same way," Hellerstein said. "Your settlement would create inequality among all of those people."

 

Under the proposal, which was drafted after years of negotiation, each woman would have been entitled to file a claim for up to $750,000. A sum attorneys representing alleged victims say doesn't come close to covering the pain, suffering and legal costs many of the women have faced.

 

Weinstein would not have admitted any wrongdoing under the settlement.

See also Wash Post, Judge Rejects Tentative $19M Weinstein Deal with Accusers

July 23, 2020 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

Monday, July 6, 2020

Law Professors File Amicus Arguing Question of Equal Rights Amendment Ratification is a Political Question

Julie Suk, Who Decides the Future of the Equal Rights Amendment?, Take Care blog.

In January 2020, the Virginia legislature voted to ratify the Equal Rights Amendment to the U.S. Constitution, almost forty years after the ratification deadline.

 

Has the Constitution been amended? In a lawsuit filed in DC federal court, Virginia says that the ERA is now part of the Constitution. But the defendant National Archivist won’t publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.

 

Who is right, Virginia or the Archivist?  More importantly, who decides?

 

Last week, I filed an amicus brief in the case, joined by constitutional law colleagues Erwin Chemerinsky, Noah Feldman and Reva Siegel. Supporting none of the litigants, we argue that whether the ERA is part of the Constitution under these unprecedented circumstances is a political question for Congress in the first instance, not the courts or the Executive Branch.

 

Virginia, Nevada, and Illinois – the states that ratified after Congress’s deadline -- are asking a court to decide that the ERA was validly ratified and order the Archivist to publish it. Five states that did not ratify the ERA, or that ratified and rescinded their ratifications, have intervened. Their Answer tells the court that “[n]o state could have ‘ratified’ the Equal Rights Amendment in recent years because the deadlines for ratifying that amendment expired years ago.” The Archivist seems to think it’s up to the Executive Branch. If the court reaches the merits of the ERA’s validity, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.  But Congress should be the first mover on whether an amendment is ratified, particularly when states disagree.

 

The question of who decides matters, for the long-term legitimacy of the amendment in the eyes of the American people.  In Congress, the House passed a resolution lifting the deadline on ratification in February, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  Thirty-five Senate seats are on the ballot this November. Consistent with Coleman v. Miller, which affirmed Congress’s power to determine reasonable time frames for the ratification of constitutional amendments, a court should not prematurely pronounce on whether the ERA has been or can yet be ratified.

 

Although the prospect of getting a federal judge to add the ERA to the Constitution now may have immediate appeal for ERA proponents, much can be gained by persuading Congress to lift the deadline, validate late ratifications, and reject rescissions.  An amendment’s procedural path makes a difference to its meaning and transformative potential.  The legislative process by which Congress is weighing the ERA’s timeliness provides opportunities for the ERA’s meaning to be updated for the twenty-first century.  These opportunities help legitimize a constitutional amendment after a generation has gone by.  Moreover, congressional debate about the broad range of issues implicated by the ERA– rather than court adjudication of the states’ Article V theory – is more likely to produce an ERA with the bite that its proponents seek.

Amicus Brief of Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, in Virginia v. Ferriero (D.D.C.) is here.

July 6, 2020 in Constitutional, Courts, Legislation | Permalink | Comments (0)

Thursday, July 2, 2020

Challenging the Idea of Women Judging Differently: The Jurisprudence of the First Woman Judge, Florence Allen

I've just posted my recent research on Judge Florence Allen, a law review article previewing the book in progress.

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Tracy A. Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently (posted July 2, 2020)

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.

This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.

July 2, 2020 in Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Wednesday, May 27, 2020

Podcast: Feminist Prosecutors and their Feminist Detractors

Podcast, Feminist Prosecutors and their Feminist Detractors

One prosecutor in rural Maine is trying to change the norms of evidence around prosecutions for domestic violence and sexual assault—she wins, even when she loses. In the era of progressive prosecution, two different historical injustices are pulling prosecutors in opposite directions. Patriarchy has kept too many men from being prosecuted for gender-based crimes, while tough-on-crime policing has resulted in too many men being prosecuted for other crimes. This week we look at what it means to be a feminist prosecutor, and whether advocacy for more policing and prosecution on behalf of women can backfire for progressive causes. Guest voices include Maine District Attorney Natasha Irving, Villanova law professor Michelle Madden Dempsey, University of Colorado law professor Aya Gruber, and University of Maryland law professor Lawrence Sherman.

In Slate Plus, Sarah Lustbader, senior legal counsel at the Justice Collaborative and contributor at the Appeal, and Barry talk about whether the adversarial system of prosecution and defense makes the criminal justice system a bad way to pursue improvements in gender relations and reduce gender-based crime.

May 27, 2020 in Courts, Theory, Women lawyers | Permalink | Comments (0)

Friday, May 22, 2020

BelieveWomen and the Presumption of Innocence

Kimberly Kessler Ferzan, #BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life, forthcoming NOMOS: Truth and Evidence

The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.

First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I spend additional time on one particular interpretation, an understanding that ties a cry for trust to a non-reductionist position with respect to the justification for believing testimony — that is, the idea that we have reason to believe someone, and are justified in so doing, just on her say-so. Although it is not my contention that this view is superior to other understandings, I believe it has received less attention in the literature and thus warrants additional examination. Next, I demonstrate how complicated our calculations are in life. Then, I turn to law. Here, I show how the various interpretations of #BelieveWomen raise distinct legal questions, but also note that flat footed understandings of this demand have created confusions. I suggest the law may meet the demands of #BelieveWomen through a corrective of the kind proposed by Miranda Fricker, evidentiary instructions, and (potentially by) alterations of the burden of proof, but that full belief may be too much to ask in this context. That is, law may be unable to accommodate a demand that we believe women, though it may be able to treat them respectfully as epistemic agents. In making this claim, I reject that increasing one’s credence in light of testimony “counts” as believing someone.

Second, I look at the presumption of innocence, noting that under the Supreme Court’s jurisprudence it amounts to no more than the requirement that in a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Additionally, following Larry Laudan, I endorse the view that the presumption in law is simply the claim that a juror has no evidence. But that is not what we want in life. The questions we want to ask in life are (1) what do we owe each other and (2) when there are contested factual situations, what is the default position. The presumption of innocence rhetoric assumes the answers to these questions.

May 22, 2020 in Courts, Equal Employment | Permalink | Comments (0)

Tuesday, May 5, 2020

The Injustice of Formal Gender Equality in Criminal Sentencing

Emma Decourcy, The Injustice of Formal Gender Equality in Sentencing, 47 Fordham Urb. L.J. 395 (2020)  

Over the past 40 years, the entire United States penal population has grown at an unprecedented rate, and the rate of female incarceration is growing at twice the rate of men. Given that there does not appear to be an increase in female criminality that corresponds with the increase in female incarceration, it may be inferred that the rising rate of female imprisonment is the result of changes in criminal justice law and policy that prescribe simplistic, punitive enforcement responses to complex social problems.

While criminological research has paid increased attention to women and girls over the past decade, there is still much work left to be done. This Note aims to address a perceived gap in existing scholarship on female incarceration — existing research and proposed solutions have tended to focus on prison conditions and post-incarceration re-entry. While such work is imperative, an examination of the female pathways to incarceration is equally important. This Note argues reforms that target the front end of the incarceration process, namely sentencing, should be employed to address the rapidly rising rate of female incarceration.

Part I of this Note first provides a brief overview of the mass incarceration crisis in America and the changes in criminal justice policy, namely sentencing policy, to which it is attributed. Part I then discusses the impact of changes in sentencing policy on female sentencing outcomes. Part II proposes a framework of inquiry to be used by policymakers engaged in the creation of gender-responsive sentencing policies. This framework includes an analysis of the scope and nature of female incarceration, the correlates of female criminality, and the impact of existing gender-neutral policies on women involved in the criminal justice system. Finally, Part III discusses the efficacy of gender-neutral sentencing policies in action and identifies two policies that exemplify proper application of the framework presented in Part II.

May 5, 2020 in Courts, Poverty, Race | Permalink | Comments (0)

Historic First SCOTUS Phone Arguments Involve Two Women Attorneys, Bringing Brief Gender Equality to the Judicial Forum

Called to Order: Supreme Court Holds 1st Arguments by Phone

And with that, the Supreme Court made history Monday, hearing arguments by telephone and allowing the world to listen in live, both for the first time.

 

The arguments were essentially a high-profile phone discussion with the nine justices and two arguing lawyers. The session went remarkably smoothly, notable for a high court that prizes tradition and only reluctantly changes the way it operates.***

 

The court chose a somewhat obscure case about whether the travel website Booking.com can trademark its name for its first foray into remote arguments. The more high-profile arguments come next week.***

 

 Roberts asked the first questions of government attorney Erica Ross, who was arguing that Booking.com should not be allowed to trademark its name because it is a generic term followed by “.com.” The justices then asked questions in order of seniority instead of the usual free-for-all, rapid-fire style that questions are asked in the courtroom. That meant Justice Brett Kavanaugh, who joined the court in 2018, went last.

 

One mild surprise came early in the arguments when Roberts passed the questioning to Justice Clarence Thomas, who once went 10 years between questions and has said he thinks his colleagues pepper lawyers with too many. But in this format, Thomas spoke up, asking questions of both lawyers. It was the first time in more than a year that he had asked a question.*** 

 

Several justices said “good morning” to the lawyers, a telephone nicety not often heard in the courtroom. And Roberts occasionally interjected to keep things moving, saying, “Thank you, counsel,” when he wanted Ross or Booking.com’s lawyer Lisa Blatt to stop talking so he could move to the next justice.

 

“It is a fundamental principle of trademark law that no party can obtain a trademark for a generic term like ‘wine,’ ‘cotton,’ or ‘grain,’” Ross told the justices, pointing them to an 1888 Supreme Court case in which the justices ruled that adding a word like ”Company” or “Inc.” to a generic term doesn’t make it eligible to be trademarked.

 

Some of the exchanges were playful, as happens from time to time in the courtroom. Breyer used pizza.com and cookies.com as examples of websites and discussed with Blatt searching on the internet for toilet paper.

See also For a Rare Moment at the Supreme Court, the Genders Were on Equal Footing (Oct. 2016)

The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: g ender equality.

 

Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.

May 5, 2020 in Courts, SCOTUS, Women lawyers | Permalink | Comments (0)

Monday, April 27, 2020

Review of Judge Diane Wood, Sexual Harassment Litigation in the Real World

Brooke Coleman, JOTWELL, The Real World: Reviewing Diane Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.

Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.

 

To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.

 

Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record.  This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.

 

What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival.

April 27, 2020 in Courts, Equal Employment, Judges | Permalink | Comments (0)