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)

Thursday, September 15, 2022

Canadian Court Feminizes Child Support by Centering it as a Right of the Child

Jodi Lazare & Kelsey Warr, A Gender-Based Approach to Historical Child Support: Comment on Colucci v Colucci. Canadian Journal of Family Law 2022

In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, the Court has endorsed a gendered approach to historical child support law that responds to many of the concerns that flowed from DBS.

Drawing on the text of the decision, as well as relevant case law and scholarship, we outline the theoretical foundations for the changes brought by Colucci, as well as their practical implications. We suggest that in clarifying child support as the right of the child, decreasing the emphasis on certainty for payors, and stressing the necessity of financial disclosure, the Court has feminized the law of historical child support. We explain how, using that feminist lens, Colucci modifies the framework for adjudicating historical child support claims, by creating a presumption in favour of an award in the presence of a change of income, softening the three-year time limit of so-called retroactivity, and repositioning and reconceptualizing the DBS factors which now inform how far back a historical child support award should go. In fleshing out and analyzing these changes, we consider the ways in which Colucci may better serve to promote substantive gender equality in historical child support law by responding to women and children’s lived realities.

September 15, 2022 in Courts, Family, International, Theory | Permalink | Comments (0)

Thursday, September 8, 2022

A RESOURCE LIST of the NEW LEGAL, POLITICAL, and PRACTICAL ISSUES of ABORTION POST-ROE

Updated 9/28/22

Most recent news posted at top of each category.

 

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            New State Laws:

WV Lawmakers Pass Bill That Restricts Abortion With Narrow Exceptions (9/13/22)  

The First Abortion Ban Passed After Roe Takes Effect This Thursday in Indiana (9/20/22)

Joanna Grossman, The Trigger Has Been Pulled. Texas Law Takes Effect (8/25/22)

1 in 3 American Women Have Already Lost Abortion Access. More Restrictive Laws are Coming (8/23/22)

IN Becomes First State to Pass an Abortion Ban (8/10/22)

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

           Mary Ziegler, Why Exceptions for the Life of the Mother have Disappeared (8/2/22)    

           Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to State Abortion Bans:

IN Judge Blocks Enforcement of Abortion Ban (9/23/22)

OH Judge Blocks Six-Week Abortion Ban for 14 Days (9/20/22)

A MI Law Criminalizing Abortion is Struck Down (9/8/22)

Judge Blocks Part of ID Abortion Law from Taking Effect (9/8/22)

Judge: Prosecutors Cannot Enforce MI's Abortion Ban (8/23/22)

ID Lawmakers Walk Back Abortion Crackdown to Assuage Judge (8/23/22)

Justice Dept Sues ID Over Abortion Ban (8/10/22)

MT Abortion Laws Remain Blocked During Legal Challenge (8/10/22)

Courts Deliver Mixed Rulings on Pro-Life Laws After Roe (8/2/22)

Sistersong Women of Color Reproductive Justice Collective v. Georgia (11th Cir. July 20, 2022)

State Judge Strikes Down Many of MN's Abortion Restrictions (7/11/22) 

LA Judge Allows Abortion Ban to Take Effect (7/8/22)

TX, OH Top Courts Allow Abortion Bans to Take Effect (7/6/22)

FLA Judge will Temporarily Block 15 Week Abortion Ban (7/3/22)

TX SCt Lifts Freeze on Abortion Ban (7/2/22)

OH SCt Rejects Request to Suspend State's 6 Week Abortion Ban (7/1/22)

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Clergy Sue to Halt Fla Abortion Law, Cite Religious Freedom (9/7/22)

Clergy Members Contend FLA Abortion Law Violates Their Religious Freedom (8/10/22)

KY Court Holds that Abortion Ban May Violate State Establishment Clause (7/25/22)

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

A Federal Abortion Ban May Violate 5th A Due Process (9/23/22)

Graham Proposes 15 Week Abortion Ban, Seeking to Unite Republicans (9/13/22)

House Passes Bill to Codify Abortion Rights and Ensure Access (7/15/22)

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

The VA Says it Will Provide Abortions in Some States Even in States Where Banned (9/7/22)

TX Fed District Court Invalidates Federal Guidance on Emergency Treatment of Abortion (8/24/22)

Biden Issues [Second] Executive Order on Abortion (8/10/22)

Biden Signs Executive Order to Support Abortion Rights (7/11/22)

Under Pressure, Biden Signs Executive Order on Abortion

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Warren: DeSantis [FLA] Sacked me for Doing my Job as a Prosecutor (8/23/22)

Local Prosecutors Who Refuse to Prosecute Ohio's Abortion May be in the Clear (7/11/22)

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Ban (6/30/22) 

Liability for Pregnant Women:

NB Teen and Mother Facing Charges in Abortion Related Case (8/10/22)

Abortion Abolitionists Want to Punish Women (7/1/22)

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advising

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Out of State Travel: 

Dobbs and the Civil Dimension of Extraterritorial Abortion Regulation (9/23/22)

The Risk of Mandatory Reporting Laws to Out-of-State Abortion (8/2/22)

The Right to Travel in a Post-Roe World (7/15/22)

MT Clinics Preemptively Restrict Out of State Patients Access to Abortion Pills (7/11/22)

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Tribal Nations and Abortion Access: A Path Forward (8/23/22)

The Indian Country Abortion Safe Haven Fallacy

            Municipal Regulation    

Abortion Localism and Preemption in a Post-Roe Era (9/23/22)

            Other Constitutional Liberties: contraception, marriage, LGBTQ

Marc Spindelman, Dobbs' Other Dangers: Dobbs & Women's Constitutional Sex Equality Rights (8/2/22)

Thirteenth Amendment:

The Amendment Ending Slavery Could be the Key to Securing Abortion Rights (7/7/22)

State Legislation:

Most Voters Want a Chance to Support Abortion on a Ballot (8/10/22)

Where Abortion is on the Ballot (8/2/22)

Voters in as Many as Eight States Will Vote on Abortion This Year (7/7/22)

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

Michiganders Will Vote on Abortion Rights in November (9/13/22)

Reproductive Freedom for All v. Board of Canvassers (Mich. Ballot Case) 

Richardson, The Originalist Case for Why the FLA Constitution's Right to Privacy Protects the Right to Abortion 

Kansans Resoundingly Reject Amendment Aimed at Restricting Abortion Rights (8/10/22)

Want to Protect Abortion? Look to KS (8/2/22)

NY Moves to Enshrine Abortion Rights in State Constitution (7/6/22)

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

See Paul Lipford, Abortion Under States Constitutions (3d ed. 2020) (Carolina Press)

Cities

How One Progressive City is Fighting to Decriminalize Abortion (8/23/22)

  See generally Legal Scholarship:

New Legal Frontiers on the Constitutional Right to Abortion (8/25/22) (Cohen, Murray, Gostin)

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

           Voters and Elections:

The Erroneous Claim that SCOTUS has Returned the Question of Abortion Access to the People (9/8/22)

After Roe's End, Women Surged in Signing Up to Vote in Some States (9/28/22)

Op ed, Women are So Fired Up to Vote! I've Never Seen Anything Like It (9/7/22)

Ohio Sees Surge in Women Registering to Vote After Abortion Access Denied (9/7/22)

Rethinking Strategy Post-Roe (7/25/22)

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

GA Abortion Restrictions Spark New Debate Over Claims to Fetal Personhood (9/8/22)

GA Abortion Law Says a Fetus is Tax Deductible (8/10/22)

New OH Personhood Bill Would Declare All Individuals are Human from Moment of Conception (7/15/22)

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

The Green Wave in Latin America

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

Abortion Pill Providers Experiment with Ways to Broaden Access (9/7/22)

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Is Male Birth Control Finally Here?

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

           Minors

FLA Court Rules 16-Year-Old not Sufficiently Mature for Abortion (8/23/22)

Digital Privacy & Period Tracking Apps:

Facebook Gave NB Cops a Teen's DMs. They Used Them to Prosecute an Abortion. (8/10.22)

SC Bill Would Ban Internet Information on Abortion; Tech Companies May Face Competing Laws (8/2/22)

HHS Issued Guidance to Protect Private Medical Info (inc Period Tracking Apps) (7/6/22)

Scholars Explain How Femtech Products Poised to Fill Gap as States Try & Limit Birth Control and Abortion 

Google Will Delete User Location History for Abortion Clinic Visits (7/6/22)

Period Tracker App Flo Develops Anonymous Mode (6/30/22)

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Doctors and Women's Medical Care:

Republican Abortion Bans Restrict Access to Other Essential Medications

Telemedicine Just Got More Complicated (9/28/22)

What Will Happen if Doctors Defy the Law to Provide Medical Care? (9/12/22) 

Dr Proposes Floating Abortion Clinic in Gulf of Mexico to Avoid Bans (7/15/22)

Can Pharmacists Refuse to Fill Prescriptions for Drugs Used in Abortion? (7/15/22)

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

Overturning Roe will Exacerbate the Black Maternal Mortality Crisis (8/25/22)

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies and cities paying travel expenses:

St Louis Will Help Women Get Out of State Abortions; Cleveland, Cincinnati Also Take Measures (7/25/22)

How St Louis Tapped Federal Funds to Help People Travel Who Need Abortion (7/25/22)

TX Lawmakers Target Law Firms Aiding Abortion Access (7/11/22)

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Google Maps Will Now Label Clinics that Provide Abortions

ID University Says It Can Give Birth Control, "Promote" Abortion (9/28/22)

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

September 8, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, August 25, 2022

A Study of the Pro Se Gender Gap

Roger Michalski, The Pro Se Gender Gap 

This article is the first to identify, name, and empirically measure the pro se gender gap. Drawing on a massive dataset of all federal civil dockets spanning 10 years, it finds a 2-to-1 gender imbalance. For every federal female pro se litigant there are two males. This finding is robust and stable. It holds true for plaintiffs, defendants, and other parties. It is also true across most subject areas, across time, across length of litigation, and across states, districts, and circuits. The study excludes prisoner-rights and habeas petitions (including them would widen the gender gap even further).

This gender gap reveals a troubling disparity in who has effective access to justice, whose stories are heard, who shapes the development of the law, and whose rights are vindicated by federal courts. Labeling and measuring the pro se gender gap also provides a benchmark to test the efficacy of future policy interventions.

As such, the article lays the empirical foundations for a new wave of doctrinal work on the procedural foundations and consequences of gender disparities. It also provides a methodology that can be extended to study litigation gender disparities in state courts, tribal courts, arbitrations, and administrative proceedings.

August 25, 2022 in Courts | Permalink | Comments (0)

Tuesday, August 2, 2022

Transgender Constitutional Law

Katie Eyer, Transgender Constitutional Law

Litigation addressing the constitutional rights of the transgender community has exploded in the last decade. This litigation revolution has fundamentally reshaped the constitutional landscape with respect to the equality and liberty rights of transgender litigants, recognizing the transgender community as constitutionally protected subjects entitled to meaningful rights. And yet—because this litigation revolution has occurred in the lower and state courts—it has remained comparatively invisible from the perspective of the legal literature.

This Article provides the first systematic account of this constitutional law revolution in transgender rights. Based on an analysis of the last five years (2017-2021) of transgender constitutional rights litigation, it offers a comprehensive descriptive account of contemporary constitutional transgender rights litigation in the Equal Protection and Due Process contexts. As that analysis reveals, recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts. Indeed, recent constitutional decisions are close to unanimous in their treatment of the transgender community as warranting meaningful constitutional protections.

This revolution in transgender constitutional rights is important in its own right—indeed it is likely to be critical at a time when a wave of anti-transgender legislation is currently sweeping the country. But it is also important for the ways it calls into question the conventional wisdom of constitutional law as a field. As this Article elaborates, contemporary transgender constitutionalism challenges many of the assumptions of constitutional law scholars, including assumptions regarding the death of suspect class analysis under Equal Protection doctrine, the impossibility of new fundamental rights under the Due Process clause, and the weakness and futility of rational basis review. It thus highlights the importance of attending to the constitutional law of the lower federal and state courts—not only that of the United States Supreme Court.

August 2, 2022 in Constitutional, Courts, LGBT | Permalink | Comments (0)

Wednesday, June 29, 2022

Ohio Lawsuit Filed to Enjoin 6 Week Abortion Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care

Lawsuit Filed Against Ohio Abortion Ban After Roe v. Wade Ruling

Just days after the United States Supreme Court overturned Roe v. Wade in a historic decision, multiple groups have come together to file a lawsuit in the Ohio Supreme Court “seeking to block the state’s six-week ban on abortion and to restore and further protect Ohioans’ reproductive rights secured by the Ohio Constitution.”

Their lawsuit comes after a federal judge in Ohio granted the state’s request to allow the previously blocked six-week abortion ban – also known as the “heartbeat bill” – to take effect. The suit argues the bill “radically restricts access to abortion in Ohio by lowering the gestational age limit from 22 weeks to approximately six weeks, with very limited exceptions.”

The Complaint is here: Download Complaint, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

See also: Download Memo in Support of Writ, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

To add some additional information:

1.  There is original jurisdiction in the Ohio Supreme Court for "extraordinary writs" like mandamus when there is no adequate remedy at law.  It is an unusual option, but that is the argument the provider plaintiffs are making here. saying there is a need for a definitive, state-wide ruling on this emergency motion.

2.  Ohio may be different in interpretation of its state due process ("due course of law") clause because it also now has a "Freedom to Choose Health Care" constitutional provision.  Ohio Const. Art. I.21.  This freedom of health care provision was passed by initiative in 2011 in response to the federal Affordable Healthcare Act as an "anti-Obamacare" action.

 

 

June 29, 2022 in Abortion, Constitutional, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, June 13, 2022

The Effectiveness of Dispute Resolution for Gender Discrimination Claims

Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation 

This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.

The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.

This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.

June 13, 2022 in Business, Courts, Equal Employment, Legal History, Theory | Permalink | Comments (1)

Thursday, June 9, 2022

The History of Women-Led, Non-Lawyer Legal Aid in Boston, Chicago, and Elsewhere

From the Legal History Blog, Jeon on Women-Led, Non-Lawyer Legal Aid in Boston

Kelsea A. Jeon, the holder of an M.Phil in Socio-Legal Research from the University of Oxford, has published Legal Aid Without Lawyers: How Boston’s Nonlawyers Delivered and Shaped Justice for the Poor, 1879–1921 in the Georgetown Journal on Poverty Law & Policy:

Women nonlawyers were some of the first actors to provide organized legal aid to America’s poor. Yet, today, unauthorized practice of law statutes bar nonlawyers from providing legal help, citing concerns about malpractice and public harm. This Article uses a historical case study to challenge conceptions that nonlawyers cannot provide effective legal services to the people. The study focuses on the development of legal aid in Boston via two organizations, the nonlawyer-led Women’s Educational and Industrial Union and the lawyer-centric Boston Legal Aid Society. Although organized legal aid in Boston began with the nonlawyers at the Union, they were eventually overtaken by the lawyer-centric Legal Aid Society. This paper examines this transition in legal aid practitioners, emphasizing how nonlawyers provided effective legal help. In doing so, it challenges the modern-day conception that access to justice requires access to an attorney and serves as a powerful counter to claims that nonlawyer practitioners endanger the public.

For more on the history of women-led legal aid, see Felice Batlan,  Women and Justice for the Poor: A History of Legal Aid , 1863-1945 (Cambridge Press 2015):

This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women's history in dialogue, it demonstrates that nineteenth-century women's organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor

 

June 9, 2022 in Books, Courts, Legal History, Poverty, Women lawyers | Permalink | Comments (0)

Wednesday, June 8, 2022

Supremacy Clause May Preempt State Restrictions on Abortion Pills

FDA Abortion Pill Policy May Preempt State Restrictions

In December of 2021, the FDA lifted some of its burdensome restrictions on the abortion pill mifepristone, including the requirement that healthcare providers must meet in-person with patients to dispense the medication. Nineteen states, however, continue to impose in-person dispensing requirements and many impose other restrictions that go beyond FDA requirements, like only allowing physicians to dispense the medication and requiring multiple in-person visits to obtain the medication. In October, Texas banned clinicians from prescribing abortion pills after seven weeks of pregnancy—three weeks before the current FDA time limit of 10 weeks. Legal scholars and advocates are questioning the constitutionality of these additional restrictions on abortion pills.

University of Pittsburgh law professor Greer Donley argues that state bans of an FDA-approved abortion medication may violate the supremacy clause of the U.S. Constitution. The supremacy clause establishes that federal laws take precedence over state laws that are in conflict, and prohibits states from interfering with matters that are exclusively entrusted to the federal government—such as the regulation of medications.***

A similar lawsuit has already been filed by GenBioPro, which produces a generic form of the abortion pill mifepristone. The company has sued the state of Mississippi in federal court, challenging state restrictions that go beyond the FDA rule, including a law allowing only physicians to dispense the drug and requiring in-person dispensing. That suit is currently pending.

“It gets a little bit more complicated when we start thinking about the post-Roe world and abortion bans. I think if a state were to pass a law that specifically banned mifepristone or misoprostol that would be preempted,” said Greer. “But I think it’s a really hard question about whether or not a state’s general abortion ban is preempted

June 8, 2022 in Abortion, Courts, Legislation, Reproductive Rights, Science, Technology | Permalink | Comments (0)

Tuesday, June 7, 2022

Feminist Judging: Theories and Practices

Kristin Kalsem, Feminist Judging: Theories and Practices, in Oxford Handbook of Feminism and Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds.) (Oxford University Press, 2022 Forthcoming)

This chapter begins by examining the original liberal feminist goal of increasing the number of women judges to attain equal gender representation. Part I canvases multiple reasons why greater gender diversity on the bench is desirable, from its symbolic value to its potential for reducing and counteracting implicit bias of legal actors. It also charts how scholarship has grown to encompass “outsider” judges, marked by race, ethnicity, and other marginalized identities, with particular attention to the experiences of female judges of color.

Part II then turns to analyzing scholarship that focuses on the ideal of “feminist judging.” It recounts how, borrowing from cultural feminism, feminist scholars have applied the concept of an “ethic of care” and discussed the possibilities and impacts of empathetic judging. Lastly, it explores how feminist judging takes into consideration the racial and gender dimensions of controversies and brings context to the forefront, employing an intersectional and social justice lens.

Moving from theory to practice, Part III discusses two recent scholarly projects that integrate feminist judging into the real-world practices of judges. One such project applies the methods of legal participatory action research (“legal PAR”) to design and implement a state wide judicial training on best practices in intimate partner abuse cases. Using a community-based research and problem-solving paradigm, legal PAR effectuates a bottom-up approach to law and policymaking. The second project – the Feminist Judgments project -- critiques the idea of judicial objectivity and reimagines landmark legal cases through the rewriting of judicial opinions from feminist perspectives. Inspired in the United States by similar projects in Canada and Great Britain, it has grown from a volume of twenty-five rewritten U.S. Supreme Court opinions to multiple volumes devoted to specific areas of law like employment discrimination and reproductive justice.

Part IV concludes with considerations for future feminist agendas in reaching the end goal of achieving social justice in the process and outcomes of judging. Throughout, this chapter is guided by the belief that what judges decide, as well as the process through which they reason and explain their decisions, matters.

June 7, 2022 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Thursday, June 2, 2022

Study of Gender-Based Judging on Swedish Supreme Court Shows Little Effect of Gender

Johan Lindholm, Mattias Derlen & Daniel Naurin, 'Nevertheless, She Persisted': Gender and Dissent on the Swedish Supreme Court 

From the abstract:

In line with gender-based stereotypes and ideals of female agreeability and cooperativeness, research has shown that women tend to cooperate more and compete less than men (the competitiveness theory). The article empirically studies whether Swedish Supreme Court Justices practice of writing dissenting opinions follows the gender-based patterns that can be expected from the competitiveness theory. Issuing dissenting opinions is a well-established practice on the Supreme Court, but it is also a public form of collegial disagreement that is potentially especially socially costly for female Justices. We therefore hypothesize that female Justices avoid writing dissenting opinions, particularly alone, and help foster agreement on panels compared to male Justices. These hypotheses are not supported by the data and the behavior of Swedish Supreme Court Justices thus does not follow the competitiveness theory. We propose some explanations for this result, which runs counter to previous research, and point to possible future research.

The conclusion from the introduction:

Generally speaking, however, empirical evidence of an effect of gender on merit-based voting in previous research must be characterized as relatively weak. As observed by Leonard and Ross (2020, 278), “anyone hoping to find convincing evidence of consistent gender differences in decisions across a broad range of issues would be sorely disappointed by the extant literature”. The lack of more clear and strong empirical evidence of gender-based differences in judicial behavior is commonly explained by what is often characterized as the organizational theory. According to this theory, gender-based differences in judicial behavior are tempered by professional and organizational factors. While there is room for different legal reasoning, judges are restricted by the relatively narrow scope of what, in the mind of judges and other lawyers, constitutes acceptable legal reasoning and interpretations of the law, and individuals that fail to show an ability to act in accordance with and within these limits will have a difficult time becoming judges. In this way, the characteristics of the law in combination with the process involved in becoming a judge – a process that starts with an individual graduating from law school and ends with a judicial appointment – will both select individuals that behave in a particular way and shape those individuals’ behavior to conform with what the profession considers acceptable and appropriate behavior. Moreover, an argument can be made that the pressure to conform to existing (male-based) norms and to prove their competence is particularly strong on women who come in as ‘outsiders’ to judicial institutions that have traditionally been a male dominated environment (Davis, Haire, and Songer 1993, 133; see also Boyd, Epstein, and Martin 2010, 392; Boyd 2016, 790; Sisk, Heise, and Morriss 1998, 1453–1454). If
correct, the organizational theory could explain why previous research has not been able to show a strong and consistent effect of gender on merits voting.

June 2, 2022 in Courts, Gender, International, Judges | Permalink | Comments (0)

The Path Almost Taken Toward Abortion Rights in the NY Abramowicz Case Rather than Roe

Emily Bazelon, America Almost Took a Different Path Toward Abortion Rights

For three days in January 1970, they filled the 13th floor of the federal courthouse in Manhattan, women of all ages crowded into a conference room, sitting on the floor, spilling into the hallway. Some brought friends or husbands. One nursed a baby. Another was a painter who also taught elementary school. A third had gone to Catholic school. They’d come to give testimony in the case of Abramowicz v. Lefkowitz, the first in the country to challenge a state’s strict abortion law on behalf of women.

 

The witnesses in the courthouse were among 314 people, primarily women, brought together by a small team of lawyers, led by Florynce Kennedy and Nancy Stearns, to set up a legal argument no one had made before: that a woman’s right to an abortion was rooted in the Constitution’s promises of liberty and equal protection. New York permitted abortion only to save a woman’s life. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could constrict women’s lives in ways that men did not experience.***

 

Those objectives started with forcing the courts to confront the impact of a near ban on abortion on women’s lives. “When we couldn’t control when we had a baby, we weren’t free and we weren’t equal,” Nancy Stearns, the lead writer of the briefs in the case, explained to me recently over the phone. “That was our fundamental argument,” she said of putting gender equality at the center of the case. “It was clearly even stronger for low-income women.”

 

At the time, Stearns’s framing was unheard-of as a legal theory. It wasn’t just that the Supreme Court hadn’t decided a case about abortion. The court “had never found a single law to violate the equal-protection clause because it discriminated on the grounds of sex,” Reva B. Siegel, a Yale Law professor, explained in The Boston University Law Review in 2010.

June 2, 2022 in Abortion, Constitutional, Courts, Legal History, Legislation, Reproductive Rights | Permalink | Comments (0)

Using Constitutional Courts to Advance Abortion Rights in Latin America

Alba Ruibal,  Using Constitutional Courts to Advance Abortion Rights in Latin America,
International Feminist Journal of Politics 2021

Over the past two decades, the abortion rights controversy has become the most prominent field of dispute between feminisms and religious conservatisms across Latin America. In this context, the political powers have generally been reluctant to change the region´s restrictive abortion legal frameworks, and since the mid-2000s, Latin American feminists turned to courts in search for long pursued reforms in this field. Through the analysis of the role of constitutional courts in the liberalization of abortion laws in Colombia, Brazil, Argentina, and Mexico, this study points out the diverse ways in which courts have contributed to the advancement of abortion rights, becoming an alternative venue for feminist advocacy in Latin America. It highlights how the use of courts has been a way to liberalize abortion laws, ensure the implementation of lawful abortions, and deter backlash processes. Furthermore, it details how courts have offered a platform for public deliberation on the abortion issue. These findings show how the judiciary can be a favourable venue for feminist activism in Latin America when other institutional sites are blocked. They also pose nuances to the critique of the use of courts for social change, which stresses the pernicious consequences of the judicialization of social movement causes.

June 2, 2022 in Abortion, Constitutional, Courts, International, Reproductive Rights | Permalink | Comments (0)

Thursday, May 26, 2022

The New Interjurisdictional Abortion Wars in the Post-Roe Era

Maya Manian, Interjurisdictional Abortion Wars in the Post-Roe Era, JOTWELL, reviewing, David S. Cohen, Greer Donley, and Rachel Rebouche, The New Abortion Battleground, 122 Col. L. Rev. __ (forthcoming 2022), available at SSRN.

The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.

In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.

The article describes interstate conflicts over abortion that will inevitably emerge given that some states will seek to restrict their citizens’ out-of-state travel for abortion care while other states will seek to protect the provision of abortion care to out-of-state patients within their borders. Potential conflicts could also arise between an actively abortion-supportive federal government and anti-abortion states. The article’s primary contribution is to map out the complex legal questions that will ensue from Roe’s reversal on both the horizontal and vertical axes of interjurisdictional conflict. 

May 26, 2022 in Abortion, Courts, Reproductive Rights | Permalink | Comments (0)

Wednesday, May 25, 2022

Study Shows Prosecutors Favor Defendants of their Own Gender

Stephanie Holmes Didwania, Gender Favoritism Among Criminal Prosecutors, Journal of Law and Economics (Forthcoming)

Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors. 

May 25, 2022 in Courts, Gender | Permalink | Comments (0)

Monday, May 9, 2022

The Depp-Heard Trial and its Effects on the #MeToo Movement

WTOP News in the D.C. area reported on The searing testimony of the Depp-Heard trial and its effect on #MeToo in a podcast. I shared commentary on the case following prior writings about the increasing complexity of defamation suits in the #MeToo era. The podcast is summarized here: 

The defamation suit turned spectacle between Amber Heard and Johnny Depp has attracted nearly 10 million views so far. But there will be nothing to watch until May 16 as the trial goes on break after both Depp and Heard delivered searing accounts of their abuse and violence. WTOP’s John Domen summarizes what we’ve missed from the Fairfax County courtroom. And then, Professor of Law at the University of Louisville Jamie Abrams provides a legal perspective on the trial’s significance, how it’s impacting the #MeToo movement and society’s understanding of domestic violence.

May 9, 2022 in Courts, Violence Against Women | Permalink | Comments (0)

Wednesday, April 27, 2022

Gendered Judging and Benevolent Sexism

Jeffrey Rachlinski and Andrew Wistrich begin their article, Benevolent Sexism in Judges, with an epigraph that, in its pithiness, cannot be improved upon: “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” Perhaps the most infamous proof of this claim can be found in Justice Joseph Bradley’s concurring opinion in Bradwell v. Illinois, which points to “the natural and proper timidity and delicacy which belongs to the female sex,” as well as her “paramount destiny . . . to fulfil the noble and benign offices of wife and mother,” as reasons to deny Myra Bradwell a license to practice law in Illinois. The stereotypes that women are natural caregivers, more nurturing and attentive to their children than men, persist to this day, undergirding unequal treatment in the workplace, burdening nonconforming individuals, and discounting efforts of men who are excellent parents.

In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding.2

As the authors note, the mere fact that women experience systematically better outcomes in some contexts, like custody disputes, cannot prove the existence of gender bias among judges, as other factors unique to those individual cases might influence outcomes.

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