Friday, February 3, 2023

The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, and the Example of the Texas Abortion Law

Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare" 
Yale Law Journal, Forthcoming

If you simply want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. Clever deployment of justiciability doctrines will help insulate constitutionally questionable laws from judicial review, but some of the challenges you’ve sought to evade will manage to squeak through. To fully disarm your opponents in an age of cultural and constitutional warfare, you must cut off their access to counsel. Here’s how to do it in three easy steps: (1) delineate an entire area of law, such as abortion, in which proponents of the state-favored view may obtain attorney’s fees upon prevailing in litigation while proponents of the opposing view may not; (2) impose joint and several liability on the attorneys for the disfavored side, so that attorneys cannot bring challenges to state law without being personally on the hook for what could amount to millions of dollars in the opposing party’s legal fees; and (3) define “prevailing party” so broadly that this shared liability is triggered by the dismissal of even a single claim. This, in brief, is what the Texas legislature did in SB 8, the Fetal Heartbeat Law, pioneering a model that several other states have now followed. The extraordinary nature of this scheme has been overshadowed by both the private enforcement mechanism at the core of SB 8, intentionally designed to evade judicial review, and by the Supreme Court’s decision to overrule Roe v. Wade, ending constitutional protection for the right to terminate a pregnancy. As this article shows, it would be a grave mistake to view SB 8’s weaponization of attorney fees as something that’s no longer relevant. First, the end of Roe hardly means an end to abortion litigation. Quite the contrary – it immediately ushered in a new era of legal challenges, for which Texas and its imitators have already stacked the deck as described above. But perhaps even more significantly, there’s no logical reason that the weaponization of attorney’s fees is limited to the abortion context, or to red states for that matter. California has already refashioned the Texas Three Step to deter Second Amendment challenges to its new firearm law, implementing an identical attorney fee regime for very different ideological purposes. And why should it stop there? Why can’t all state legislatures insulate their most troubling laws from judicial scrutiny simply by making it prohibitively risky for attorneys to challenge them? This Article reveals that the largely unnoticed attorney fee scheme woven through SB 8, imposing one-sided fee shifting with liability for the attorneys of disfavored litigants, is unprecedented and deeply threatening to whatever is left in our legal culture of notions of fair play, access to courts, and legitimate contestation of bitterly disputed issues. Accepting its proliferation will result in a profound aggrandizement of state power that is inconsistent with federalism and separation of powers principles as well as due process and First Amendment rights.

February 3, 2023 in Abortion, Constitutional, Courts | Permalink | Comments (0)

Friday, January 27, 2023

Study Shows Intergenerational Gap in Decisionmaking by Women Judges, with Women Coming of Age Before 1963 Voting with Significantly Higher Progressive Inclinations

Isaach Unah, Ryan Williams & Stephanie Zaino, Echoes of the Feminine Mystique: Female Judges and Intergenerational Change in the United States Courts of Appeal,  Journal of Law & Politics (forthcoming) 

Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.

January 27, 2023 in Courts, Judges, Legal History | Permalink | Comments (0)

Wednesday, January 25, 2023

Analyzing the Evolution of LGBTQ Rights Litigation in the European Court of Human Rights

Laurence R. Helfer & Clare Ryan, Contesting Sexual Orientation Rights Before the ECtHR,  International Sexual and Reproductive Rights Lawfare (Siri Gloppen & Malcolm Langford eds., 2023)

This chapter, a contribution to an edited volume on "International Sexual and Reproductive Rights Lawfare," analyzes the evolution of lesbian and gay rights litigation before the European Court of Human Rights (ECtHR). Between 2010 and 2020, the ECtHR issued fifty-seven merits judgments involving a broad array of sexual orientation issues—a sharp expansion from the number of such decisions in earlier periods. The growing number of cases reflects the fact that sexual orientation rights have become increasingly contested across Europe. We explain the reasons for this trend and predict that recent ECtHR judgments concerning same-sex partnerships and asylum are poised to further exacerbate these contestations.

In addition, we offer insights into the research questions identified in the Introduction to the edited volume. We emphasize the strategic decisions of actors who turn to the ECtHR as a sympathetic venue for expanding lesbian and gay rights across Europe and, separately, to provide a bulwark against repression by some states. We identify the political and social factors that push these cases to the Court and the doctrines it applies when adjudicating these disputes. We then discuss the nation-level protections that ECtHR litigation has historically engendered and how recent cases have increased the risk of noncompliance with ECtHR judgments concerning sexual orientation rights. Finally, we investigate whether the Court can maintain its legitimacy and avoid politicizing sexual orientation rights cases in light of the growing contestations over those rights across Europe.

January 25, 2023 in Courts, International, LGBT | Permalink | Comments (0)

Friday, January 20, 2023

Legal Study Measures Impact of Social Structures of Old Boys Networks in Corporate Law

Afra Afsharipour & Matthew Jennejohn, "Gender and the Social Structure of Exclusion in U.S. Corporate Law" 
University of Chicago Law Review, Forthcoming

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “Old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than 15,000 matters and 2,700 attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interacts with gender—women’s positions within the network differs by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: From working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

January 20, 2023 in Business, Courts, Equal Employment, Women lawyers | Permalink | Comments (0)

Monday, December 19, 2022

New State Litigation Tracker Released by Brennan Center for Justice and the Center for Reproductive Rights

The Brennan Center for Justice (NYU Law) and the Center for Reproductive Rights have built a state litigation tracker for the public to monitor ongoing litigation in states courts following the Dobbs Supreme Court decision.  This online tool "will include pending and completed state court litigation against abortion bans that were, or would have been, unconstitutional under Roe."  The site states that "[a]s of December 5, 2022, a total of 34 cases have been filed challenging abortion bans in 19 states, of which 31 remain pending at either the trial or appellate levels." These partners will update the tracker with key filings and court orders.

Check out the tracker here: 


December 19, 2022 in Abortion, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, December 12, 2022

Susan Saab Fortney on "Taking Courthouse Discrimination Seriously: The Role of Judges as Ethical Leaders"

Susan Saab Fortney has published Taking Courthouse Discrimination Seriously: The Role of Judges as Ethical Leaders in volume 70 of the Kansas Law Review (2022). The abstract provides: 

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of Conduct for U.S. Judges. As amended, the Code of Judicial Conduct for U.S. Judges now clearly states that judges should neither engage in, nor tolerate, workplace conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation for reporting such conduct. Under this provision, judges should not turn a blind eye to others’ misconduct, but should accept their responsibilities as ethical leaders committed to a diverse, inclusive, and respectful workplace where harassment is not tolerated. Drawing on the Report of the Federal Judiciary Workplace Conduct Working Group, related studies, and a survey of state codes, this article examines areas where state Codes of Judicial Conduct and related procedural rules should be revised to address more effectively the serious problems of harassment and other workplace misconduct at the courthouse.

December 12, 2022 in Courts, Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, December 6, 2022

Court Attempts to Combat Misgendering by Judges

Marcus Alan McGhee, Judicial Cognition of Gender Transition: One Court's Attempts at Combating Misgendering by Judges,  6 HOWARD HUMAN & CIVIL RIGHT L. REV. 1 (September 12, 2022).

Members of the transgender community—especially those that identify as transgender women of color—encounter more incivility in one day than most will in a year’s time. When they enter the court system, a beacon of integrity and impartiality, they should find refuge from disenfranchisement. Instead, many transgender individuals encounter judicial officers ensconced in their intransigence and unwilling to accept binding precedent that permits them to change their name and gender markers to align with their identity. Beyond this failure to follow the law, some jurists have even purposefully rejected a litigant’s requests to be identified by their preferred pronouns. Other judges have amplified the discourteousness by deliberately misgendering litigants or referring to them as “whichever” or “it.” This article posits that to curtail a court’s churlish behavior, such instances should be referred to judicial misconduct commissions to investigate whether the judge violated established ethical rules, and when appropriate, enter an official misconduct finding to hold that judicial officer accountable.

December 6, 2022 in Courts, Gender, LGBT | Permalink | Comments (0)

Thursday, December 1, 2022

Study Shows Women Lawyers Rarely Litigate Patent Cases

Paul Gugliuzza & Rachel Rebouche, Gender Inequality in Patent Litigation, 100 N.C. L. Rev. 1683 (2022)

This Article presents an empirical study of gender diversity—or, more accurately, the lack thereof—among the lawyers who handle patent cases in the federal courts, focusing on appellate litigation at the Federal Circuit and the Supreme Court. Drawing on two original datasets, the Article finds that, over the past decade, 87.4% of oral arguments in patent appeals at the Federal Circuit have been presented by men. The numbers are similar at the Supreme Court: over the past thirty years, more than 90% of arguments in patent cases have been delivered by male attorneys.

The typical explanation for these sorts of gender gaps is that men are disproportionality represented in the science and technology fields that underlie patent practice. But a closer look at the numbers shows that gender parity exists in specific areas of patent litigation. Until a recent retirement, half of the Federal Circuit’s twelve active judges were women, and the women on the court tend to have more pre-appointment experience in patent law than their male counterparts. In addition, the data collected for this study demonstrate that, when the government becomes involved in patent litigation (usually because a case involves the Patent and Trademark Office), women present oral argument at the Federal Circuit 48.5% of the time—more than five times as frequently as the rate for private-sector litigants.

The story this Article tells—of women being largely absent from high-level patent litigation—is actually a story about gender inequality among the lawyers hired by large corporations, particularly the Federal Circuit’s most frequent litigants, including Apple, Amazon, Google, and Samsung, all of which have been represented by women in less than 15% of their arguments over the past decade.

Figuring out why women rarely litigate patent appeals for private-sector clients is challenging, but the disparity between law firms and the government parallels inequalities in law practice more generally. To that end, this Article suggests both small steps that would increase gender balance among the lawyers arguing patent cases as well as broader structural reforms that would improve diversity across the bar.

December 1, 2022 in Business, Courts, Gender, Women lawyers | Permalink | Comments (0)

Monday, November 21, 2022

J.S. Welsh Publishes Article on the Pro-Trans Legal Movement in the California Law Review

J.S. Welsh has published "Assimilation, Expansion, and Ambivalence: Strategic Fault Lines in the Pro-Trans Legal Movement" in Volume 110 of the California Law Review. The abstract previews:  

For the past five decades, lawyers advocating on behalf of trans people have used arguments based in a binary understanding of gender to win critical legal battles in the fight for gender justice. These binary arguments clearly serve a strategic purpose: achieving major legal victories. Judges from state trial courts to the U.S. Supreme Court seem determined to reify traditional notions of gender identity. But this assimilationist strategy has its costs. The lived experiences of many queer, trans, and gender-nonconforming people is not necessarily consistent with the political goals implicit in the assimilationist approach. As the trans rights movement enters the law reform mainstream, this rift is increasingly exposed. This Article explores the conflicts that arise between groups within the pro-trans legal movement over who “counts” as trans for purposes of organizing and litigating, what compromises are necessary to push the movement forward, and who is included and excluded from political benefits.

November 21, 2022 in Courts, Gender, LGBT, Theory | Permalink | Comments (0)

Tuesday, November 8, 2022

100 Years Ago This Election Ohio Elected the Nation's First Woman Supreme Court Judge and Six Women State Legislators

Thomas Suddes, When Running for Votes Gives Way to Running Gives Way to Running the Numbers,

Groundbreakers: Although the anniversary seems to be passing without much notice, it was 100 years ago this week, on Election Day 1922, that Ohioans elected the first six women to be General Assembly members — and the first woman in the United States to serve on any state’s highest court, a lawyer who was a notable Greater Clevelander.

Elected on Nov. 7, 1922, to the Ohio Supreme Court was Judge Florence Ellinwood Allen, of Cuyahoga County (1884-1966). She was the first woman in the United States to serve at the pinnacle of any state’s judicial system. Allen served on the Ohio Supreme Court until 1934. That’s when President Franklin D. Roosevelt appointed Allen to the Cincinnati-based U.S. 6th Circuit Court of Appeals, the first woman to serve on any federal circuit court.

Also elected 100 years ago this week were the first women to serve as members of the Oho General Assembly — two state senators, four state representatives. All six were Republicans, and two were Greater Clevelanders.

Elected to the Ohio Senate in November 1922 were Sen. Maude Comstock Waitt, of Lakewood (1878-1935), and Sen. Nettie Bromley Loughead, of Cincinnati (1870-1936).

Elected to the Ohio House of Representatives in 1922 were Rep. Nettie McKenzie Clapp, of Cleveland Heights (1868-1935); Rep. Lulu Thomas Gleason, of Toledo (1864-1953); Rep. Adelaide Sterling Ott, of Youngstown (1871-1929); and Rep. May Martin Van Wye, of Cincinnati (1878-1968).

Today, according to Rutgers’ Center for American Women in Politics, 30.3% of the Ohio General Assembly’s members are women — in a state whose population is 50.7% female.

I've written about Judge Florence Allen, see Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, 27 Wm. & Mary J. Women & L. 293 (2021), and am currently at work on a book about Allen and women's longstanding demand for access to the systems of legal justice and the courts.



November 8, 2022 in Courts, Judges, Legal History | Permalink | Comments (0)

Monday, November 7, 2022

Neoshia Roemer Positions Haaland v. Brackeen in Reproductive Justice Framework

Neoshia Roemer published a robust summary of the upcoming Haaland v. Brackeen case to be argued before the Supreme Court on November 9th. This recent Gender Policy Report featuring Professor Roemer powerfully connects the Haaland case to issues of reproductive justice. 

The reproductive justice rights framework posits that all human beings possess three rights: the right to not have a child, the right to have a child, and the right to raise a child in a safe and healthy environment. Reproductive justice requires intersectional frameworks that respond to the needs of individuals who experience challenges to reproductive autonomy in a variety of ways.

As many have noted, feminist advocacy has often focused on the right to not have a child, or access to contraception and abortion. By focusing on the right to not have a child, the feminist movement did not always speak to the concerns of American Indian women and people. A reproductive justice framework applied to American Indians recognizes that Indian families deserve to have children and exist in safe and healthy environments. 

Summarizing the case, Professor Roemer writes:

In Haaland v. Brackeen, the U.S. Supreme Court will hear the claims of three sets of adoptive parents, a biological parent, three states, four Indian tribes, and the federal government.  The Court will determine whether ICWA is unconstitutional on potentially three grounds that include arguments such as states’ rights to regulate families, Congress’ ability to pass legislation like ICWA, and whether ICWA is an impermissible race-based statute. The impetus for the Plaintiffs in the original lawsuit is simple and two-fold. Some prospective parents wanted to adopt Indian children and claim that the ICWA is “outdated”, while some states believe that they should not have to implement ICWA at the behest of the federal government. The crux of the argument here is that the USA does not need a law that would protect the reproductive rights and sovereignty of American Indians.

November 7, 2022 in Constitutional, Courts, Family, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, November 3, 2022

The Private Veto Nondelegation Doctrine and its Potential for Challenging Abortion Restrictions and Religious Exceptions to Contraception and Health Care

Jessie Hill, Due Process, Delegation, and Private Veto Power, Iowa L. Rev. (forthcoming)

Nondelegation doctrine is enjoying a scholarly revival. Some commentators have read the U.S. Supreme Court’s 2019 decision in Gundy v. United States to portend new limitations on Congress’s ability to give away its authority to the executive branch. A recent decision involving Amtrak’s entitlement to exercise regulatory authority raised similar questions about delegation to private entities. Together, these cases may suggest imminent new constraints on the administrative state, generating urgent reconsideration of the purpose and application of the nondelegation doctrine.

This Article is focused on one particular line of nondelegation cases that has received less attention in the nondelegation debate: those involving private vetoes. The private-veto doctrine holds that the government cannot, consistent with the Due Process Clause, grant standardless control to private individuals or entities over the property or liberty of others. Rather than waxing and waning like other forms of nondelegation, the private-veto doctrine has retained vitality for over a century. In fact, it is woven into a variety of constitutional doctrines, and it helps to explain cases like Larkin v. Grendel’s Den and City of Cleburne v. Cleburne Living Center, which embody the principle that due process is infringed when the government enables private individuals to exercise sovereignty over others based on illicit motives.

Yet, joining the private-veto doctrine with other nondelegation doctrines has resulted in courts and scholars both misunderstanding what is unique and important about this line of cases and failing to analyze legal questions properly. This particular delegation doctrine is primarily concerned not with separation of powers, but with arbitrary uses of power, including those motivated by pecuniary bias and by personal prejudices against unpopular groups. Thus, in addition to urging a more clear-eyed reconsideration of the private-veto doctrine, this Article suggests that the doctrine may be relevant to current constitutional controversies in ways that have not be previously recognized. In particular, it may provide a stronger basis for litigating certain kinds of abortion restrictions, as well as a new route for challenging statutes that empower religious individuals to deprive third parties of access to contraception and other forms of health care.

November 3, 2022 in Abortion, Constitutional, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Thursday, October 27, 2022

Study of Women Judges in Pacific Island Courts Concludes that Appointment of Women Helps, in Part to Affirm Gender Justice

Anna Dziedzic, "To Join the Bench and Be Decision-Makers": Women Judges in Pacific Island Judiciaries" 
In Melissa Crouch (ed.), Women and the Judiciary in the Asia-Pacific (Cambridge: Cambridge University Press, 2021) 29-65

Studies of women in leadership in the Pacific tend to focus on the under-representation of women in the political branches of government. The number and role of women in the judicial branch has received less attention. Male judges outnumber women judges across the region, but the reasons for this, and its implications, have not been the subject of detailed study. This chapter provides a history and comparative analysis of the appointment of women judges in the Pacific, focusing on the nine states of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. It presents empirical data on the composition of the superior courts in these states, including judges’ gender and professional background. It examines how the criteria and processes for judicial appointment – including the distinctive use of foreign judges – affect the appointment of women to the judiciary. Finally, the chapter considers why it matters whether women are included on Pacific judiciaries, drawing on reflections by women who have served as judges in the region; scholarship on law and gender; and an examination of high-profile cases in which women judges have presided. The analysis suggests that the appointment of women judges to Pacific judiciaries cannot, in and of itself, correct all the harmful gender biases in law and society. However, the appointment of women judges in greater number would counter some of the harmful stereotypes about women that persist in Pacific societies and contribute to work across a range of sectors in Pacific states to ensure that the law meets the needs of women and affirms gender justice.

October 27, 2022 in Courts, Gender, International, Judges | Permalink | Comments (0)

Friday, October 14, 2022

Alternative Remedies for Survivors of Sexual Violence Both Inside and Outside the Legal System

Jill C. Engle, Sexual Violence, Intangible Harm, and the Promise of Transformative Remedies, 79 
Washington and Lee Law Review (2022)

This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused harm. Although transformative justice has developed outside the legal system, its principles and methods are targeted toward the unique, often intangible harms experienced by sexual violence survivors. Therefore, transformative justice remedies should be available alongside and inside the legal system so survivors, their impacted communities, and those who cause harm can benefit from them

October 14, 2022 in Courts, Violence Against Women | Permalink | Comments (0)

Monday, October 10, 2022

Reva Siegel on "Memory Games: Dobbs's Originalism as Anti-Democratic Living Constitutionalism -- and Some Pathways for Resistance

Reva Siegel has posted her forthcoming Texas Law Review article on SSRN, Memory Games: Dobbs's Originalism as Anti-Democratic Living Constitutionalism - and Some Pathways for Resistance.

This Article examines originalism’s role in Roe’s overruling in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice, whose long-term goal has been the overturning of Roe. On this account, executive branch appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. The Article shows that originalism is a practice of living constitutionalism that makes the constitutional order less democratic in several important ways.To demonstrate why this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: I show how the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.

October 10, 2022 in Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Thursday, October 6, 2022

MeToo's Landmark Yet Flawed Impact on Dispute Resolution in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Imre Szalai, #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Northwestern Journal of Law and Social Policy, Forthcoming

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Amendment”) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the “FAA”), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. In a nutshell, the Amendment generally invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, and the Amendment thereby allows victims to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can have an impact on access to justice and shape how certain disputes are resolved.

While the goals of the Amendment are certainly laudable, the Amendment unfortunately suffers from several problems. Among other issues, the Amendment is poorly drafted, with at least three different interpretations concerning the scope of the Amendment, and it is uncertain whether the Amendment applies in the labor setting with collective bargaining agreements. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. The Amendment also raises several deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment and suggests future reforms for arbitration law.


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October 6, 2022 in Business, Courts, Equal Employment | Permalink | Comments (0)

Tuesday, September 27, 2022

A Contemporary Assessment of the Role of Women on the Jury

Vivian Rotenstein & Valerie Hans, Gentlewomen of the Jury, Michigan Journal of Gender & Law, Forthcoming 2023

This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

September 27, 2022 in Courts, Gender, Legal History | Permalink | Comments (0)

Wednesday, September 21, 2022

Federal Trial in Purdue Sexual Assault Case Continues this Week

Purdue Sexual Assault Investigation Trial Starts Monday

A trial against two Purdue administrators for suspending a student after she made sexual assault allegations, which Purdue determined to be false, starts Monday.

The student, called Nancy Roe in court documents, claims in the federal lawsuit that Purdue’s sexual assault investigation procedure is gender discriminatory because it suspends students who don’t prove assault allegations to Purdue’s standards.

Purdue is also accused of violating the Fourteenth Amendment Due Process and Equal Protection clauses by reportedly not giving Roe any prior notice or an opportunity to respond before suspending her in 2017, the pretrial order reads.


See also Federal Suit Against Purdue Hinges on Texts, Recordings, Credible Claims in Sexual Assault Case

In the second day of testimony in a former student’s federal lawsuit against Purdue – Crux of the case: Did Purdue retaliate against her when it suspended her for two years after investigating her sexual assault claim, while having the person she accused write a 10-page term paper on consent as punishment for recording their dorm room encounter? – the word of the day was “incapacitated.”

Things hinged on Purdue’s determination that Nancy Roe – as the then-19-year-old student is identified in court documents – might have been intoxicated, but she wasn’t incapacitated when a fraternity member walked her to her residence hall on the Monday night of Grand Prix week in 2017 and wound up having sex with her.

On Tuesday, Purdue Dean of Students Katie Sermersheim said on the witness stand in a federal courtroom in Hammond that she stood by determination that the student lied about the incident, dragging another student into an investigation over something consensual.


In a related case  brought by the accused man in the incident, Justice Amy Coney Barrett (pre-SCOTUS), wrote the opinion flagging Title IX for its potential "male bias."  See Understanding Judge Barrett's Opinion in Doe v. Purdue

The case is here: Doe v. Purdue

Purdue students John and Jane had consensual sexual intercourse 15-20 times. Jane’s behavior became erratic. Jane attempted suicide. Weeks later, John reported Jane’s suicide attempt to an advisor. Jane was upset and distanced herself from John. Months later, during Sexual Assault Awareness Month, Jane alleged that while sleeping with John, she woke to him groping her over her clothes. Jane says she reprimanded John. John then purportedly confessed that he had digitally penetrated her while she was sleeping weeks earlier. Jane told the university that John had gone through her underwear drawer, chased her through a hallway while joking about tasering her, gone to her room unannounced, and lost his temper in front of her. Purdue pursued Jane’s allegations although Jane did not file a formal complaint. John was suspended from Navy ROTC, banned from buildings where Jane had classes and from his dining hall. John submitted a denial, noting that after the alleged incidents, Jane texted him over the holidays, sent his family cookies, and invited him to her room. Investigators neither gave him a copy of the report nor shared its contents. Moments before his committee appearance, he learned that it falsely claimed that he had confessed and failed to describe Jane’s suicide attempt. Jane neither appeared nor submitted a written statement. The panel refused John permission to present witnesses. John was found guilty by a preponderance of the evidence. Purdue suspended him for a year and imposed conditions on his readmission. The ROTC program terminated his scholarship. John sued, asserting Purdue used flawed procedures and violated Title IX by imposing a punishment infected by sex bias. A magistrate dismissed. The Seventh Circuit reversed. John adequately alleged violations of both the Fourteenth Amendment and Title IX

September 21, 2022 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Monday, September 19, 2022

Balkin on "Abortion and Partisan Entrenchment"

Jack Balkin has posted Abortion and Partisan Entrenchment on SSRN in draft format. The abstract states:  

In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.

Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.

Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.

Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.

Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.

Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.

Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.

September 19, 2022 in Abortion, Constitutional, Courts, Judges, Legal History | Permalink | Comments (0)

Friday, September 16, 2022

New Book Lady Justice Tells the Stories of Women Lawyer Heroes from the Last Few Years


Lady Justice by Dahlia Lithwick

New Book, Dahlia Lithwick, Lady Justice: Women, the Law, and the Battle to Save America


September 16, 2022 in Books, Courts, Women lawyers | Permalink | Comments (0)