Tuesday, August 3, 2021
While the details Spears divulged shocked many and raised questions about the legality of her conservatorship, the issue of her IUD raised a broader conversation about reproductive justice—one that’s familiar for the disabled community. For decades, the medical community, the government, and even our own families have legally been able to do heinous things to us simply because of our disabilities. Atrocities such as forced sterilization and abortion have been done solely to prevent disabled people from reproducing and spreading our “afflictions” to new generations. Countries have built immigration law around forced sterilization, and fascists have enacted policy based on destroying the disabled. Disabled people—most of whom are poor women, and many of whom are Black, Latine, or Indigenous—have been victimized by a system designed to strip us of our humanity. The reproductive coercion that Spears is experiencing now is part of the same misogynistic and ableist system that’s been used against disabled people for decades.
The history of forced sterilization of disabled communities has been hidden for too long, but stories like Britney Spears’ allow us the opportunity to educate and liberate. In the early 2000s, a disability justice framework was created by queer disabled activists of color—namely Patricia Berne, Mia Mingus, and Stacey Milbern—when they addressed ableism in their social justice communities. In confronting ableism, reproductive freedom became an obvious concern for the disabled community. Knowing the painful history of sterilization without consent, eugenics, and reproductive coercion within our community, disabled activists paired this issue with accessibility to emphasize its importance in our activism. Working to educate others about disability issues and stressing the importance of equity over equality, disability activism is first and foremost about autonomy.
In the 1927 Buck v. Bell case, the U.S. Supreme Court upheld the state of Virginia’s right to forcibly sterilize anyone labeled “unfit” to reproduce. Though the case was initially introduced to prevent doctors who performed forced sterilizations from being sued for medical malpractice, the decision was seen as a win for the American eugenics movement. At the time, the eugenics movement was actively attempting to breed out “undesirable” characteristics often attributed to non-white, disabled, and mentally-impaired subjects. Labeled as “feeble-minded,” a broad term that encompassed ailments ranging from vision and hearing impairment to “the inability to ‘appreciate moral ideals,’” as many as 70,000 people—who were overwhelmingly Black, Latine, and Indigenous, disabled, and poor—were forcibly sterilized as a result of the Buck v. Bell ruling. Additionally, women who were labeled “promiscuous”—a “condition” that was considered a mental illness in the early 20th century—were disproportionately impacted by the misogynistic decision. To this day, the Supreme Court hasn’t overturned Buck v. Bell.
In the fall of 2018, California adopted a groundbreaking law—SB 826, requiring all public corporations headquartered in California to have at least one woman on their boards of directors by the end of 2019. By the end of 2021, the law requires corporations to have at least two women on boards of five directors and three women on boards of six or more directors. The law has had a huge impact, nearly quadrupling the rate of companies adding women to their boards.
But this progress is now threatened by a recent Ninth Circuit ruling reviving a case alleging the law “perpetuates sex-based discrimination.” A lower court had dismissed the case.
The California legislature passed the law out of concern for the slow pace of progress for women on boards. The legislative findings stated, “If measures are not taken to proactively increase the numbers of women serving on corporate boards, studies have shown that it will take decades to achieve gender parity among directors.” Research by Morgan Stanley Capital International indicates that in the absence of intervention, it could take until 2045 for women to comprise 50 percent of corporate boards.
Thursday, July 29, 2021
Jenna Sapiano, The Boundaries of Peace: A Feminist Analysis of International Mediation Processes
Griffith Law Review, Forthcoming
The assumption that peace mediation is gender-neutral reproduces and reinforces the already gendered aftermath(s) of war. Peace mediation is a multilayered conflict resolution mechanism that ranges from grassroots peacebuilding to high-level diplomacy. As a ‘language of peace’, international law has become foundational in high-level peace mediation processes and institutions. International legal feminist and queer theory are critical of international law for its gendered and heteronormative frameworks that reinforce the binaries of war/peace, masculine/feminine or heterosexual/homosexual. Global governance gender law reforms, such as the Women, Peace and Security agenda, are part of the institutional frameworks that guide peace mediation processes. High-level peace mediators are also members of an ‘epistemic community’ regulated by international and regional organizations. The article analyses how masculine and heteronormative international legal institutions and experts shape peace mediation’s already gendered processes and outcomes. The article concludes that contemporary peace mediation approaches must be rethought and that alternatives to the traditional peace table must be imagined.
Tuesday, July 27, 2021
Ann Lipton, Capital Discrimination, Houston L.Rev. (forthcoming)
The law of business associations does not recognize gender. The rights and responsibilities imposed by states on business owners, directors, and officers do not vary based on whether the actors are male or female, and there is no explicit recognition of the influence of gender in the doctrine.
Sex and gender nonetheless may pervade business disputes. One co-owner may harass another co-owner; women equity holders may be forced out of the company; men may refuse to pay dividends to women shareholders.
In some contexts, courts do recognize and account for these dynamics, such as when married co-owners file for divorce. But business law itself has no vocabulary to engage the influence of sex and gender, or to correct for unfairness traceable to discrimination. Instead, these types of disputes are resolved using the generic language of fiduciary duty and business judgment, with the issue of discrimination left, at best, as subtext. The failure of business law doctrine to confront how gender influences decisionmaking has broad implications for everything from the allocation of capital throughout the financing ecosystem to the lessons that young lawyers are taught regarding how to counsel their clients.
This Article will explore how courts address – or fail to address – the problem of discrimination against women as owners and investors. Ultimately, the Article proposes new mechanisms, both via statute and through a reconceptualization of fiduciary duty, that would allow courts to recognize, and account for, gender-based oppression in business.
Wednesday, July 21, 2021
This symposium addresses the relationship of diversity and pluralism to the judiciary. The phrase “Equal Treatment Under Law” was carved in the stone above the steps of the U.S. Supreme Court building, which opened in 1935. At the time, many schools were segregated by race, dozens of laws barred women from full participation in economic and political life, and discrimination based on gender identity was commonplace. The justices who sat on the Court and almost all the lawyers who argued before them were white.
Today, the Supreme Court’s stone inscription has become its motto. That phrase is read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. Reducing the descriptive discrimination of prior eras, the judiciary now “looks” different than it did, and in that sense has come to be more “representative” by its partial reflection of the range of people appearing in courts.
Given judiciaries’ history of supporting legal discrimination, the sense that courts ought to belong to everyone is a major achievement. But to assess the impact of that shift requires analysis of three other major alterations in U.S. courts — the influx of a host of litigants newly entitled to pursue legal claims, the limited resources of many claimants, and the development of judiciaries’ institutional agenda, including supporting shifts away from public adjudication to more private forms of dispute resolution.
Research about diversification of judges has yet to look at the interaction among these changes. Much of the research has sought to tease out whether judges’ decisions in cases have changed in the wake of the entry of women judges. However, the “difference that difference makes” needs to be analyzed at institutional levels as well as by aggregating the decision-making of individuals. During the last century, judiciaries developed structural capacities to speak about the “administration of justice.” They gave meaning to this phrase through setting their own priorities, proposing new rules and legislation, developing education programs, and commissioning research and task forces on specific topics. Moreover, judiciaries honed their skills at lobbying for resources. As I detail, the entry of women and men of color into the legal profession affected these agendas. The affinity organizations they founded pressed courts to inquire into their own history and practices of bias and to respond through revising rules of ethics, doctrine, and practice.
Furthermore, a focus on a newly and partially diversified judiciary needs to be coupled with attending to other participants — disputants, lawyers, and the processes that courts use. That fuller picture makes plain that because so many people in courts have limited means, the aspiration that disputants have participatory participation remains illusive. The “justice gap” has become a shorthand for the point that courts and the social order in which they sit have yet to take steps sufficient to help under-resourced litigants.
Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed fines and fees as sources of income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions, levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality.
In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public, which has a place as of right in courts. Through doctrine and rules, U.S. courts have shifted their own practices and mandated enforcement of clauses imposed on consumers and employers that push them out of court and out of class or joint actions.
In sum, the new faces on the bench ought not obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.
Tuesday, July 13, 2021
Ryan Vacca & Ann Bartow, Ruth Bader Ginsburg’s Copyright Jurisprudence, 22 Nevada L.J. (forthcoming 2022)
When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.
Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.
Monday, July 12, 2021
Matthew Jennejohn, Samuel Nelson, D. Carolina Nunez, Hidden Bias in Empirical Textualism, 109 Georgetown L.J. 767 (2021)
A new interpretive technique called “corpus linguistics” has exploded in use over the past five years from state supreme courts and federal courts of appeals to the U.S. Supreme Court. Corpus linguistics involves searching a large database, or corpus, of text to identify patterns in the way in which a certain term is used in context. Proponents of the method argue that it is a more “empirical” approach than referencing dictionaries to determine a word’s public meaning, which is a touchstone in originalist approaches to legal interpretation.
This Article identifies an important concern about the use of corpus linguistics in legal interpretation that courts and scholarship have overlooked: bias. Using new machine learning techniques that analyze bias in text, this Article provides empirical evidence that the thousands of documents in the Corpus of Historical American English (COHA), the leading corpus currently used in judicial opinions, reflect gender bias. Courts and scholars have not considered that the COHA is sexist, raising the possibility that corpus linguistics methods could serve as a vehicle for infecting judicial opinions with longstanding prejudices in U.S. society.
In addition to raising this important new problem, this Article charts a course for dealing with it. It explains how hidden biases can be made transparent and introduces steps for “debiasing” corpora used in legal interpretation. More broadly, it shows how the methods introduced here can be used to study biases in all areas of the law, raising the prospect of a revolution in our understanding of how discriminatory biases affect legal decisionmaking.
Wednesday, June 30, 2021
Study Shows Benevolent Sexism in Judges in More Favorable Decisions for Women in Child Custody Relocation and Criminal Sentencing Cases
Jeffrey Rachlinski & Judge Andrew Wistrich, Benevolent Sexism in Judges, 58 San Diego L. Rev. 101 (2021)
Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.
Friday, June 4, 2021
On the eve of the Nineteenth Amendment’s ratification in 1920, Carrie Chapman Catt—the leader of the National American Woman Suffrage Association (NAWSA)—envisioned the establishment of a nonpartisan body dedicated to female voters’ political education that would help newly enfranchised women develop a voice in public affairs. To this end, Catt guided the conversion of NAWSA into a post-suffrage association called the National League of Women Voters (LWV). While Catt’s goal of training women for full citizenship was abstract, many state and local Leagues took a more practical approach, learning from the experience of tackling specific social problems. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. It draws from the archival papers of the San Francisco Center of the LWV, as well as other primary sources, to reveal the contradictions and shortcomings, as well as the achievements, of newly enfranchised California women who sought to carry on the suffragists’ legacy.
During the four decades between 1911 and the middle of the twentieth century, the San Francisco Center advocated gender-specific approaches to crime with varying degrees of success or failure. Initially prompted to investigate the ills of lower-level criminal courts (known as “police courts”) by a local judge’s mishandling of rape cases, San Francisco clubwomen launched a full-fledged effort to establish a Women’s Court. Part I of this Article discusses the origins, goals, and limitations of the Women’s Court and the San Francisco Center’s subsequent campaign for the appointment of a female prosecutor and municipal judge. Although influenced by Progressive ideas about the use of specialized courts and trained experts, League members mostly confined their efforts to morals offenses that recalled the Victorian social purity movement, rather than seeking remedies for domestic violence and other aspects of crime that affected women.
Part II explores another project supported by the San Francisco Center that exemplified how Progressive tools might perpetuate essentially Victorian values. During the first half of the twentieth century, San Francisco clubwomen urged the SFPD, with little success, to hire a substantial number of female police officers. The San Francisco Center emphasized prostitution and other vices of “fallen” women as areas of law enforcement for which female officers supposedly possessed special skills. Limited both by the SFPD’s reluctance to hire women and female reformers’ myopic interest in preventing prostitution, the San Francisco Center doggedly pursued an agenda that entrenched gender segregation on the police force without bringing real remedies to systemic sexism or the victimization of women.
Part III describes the most revolutionary criminal justice reform project that members of the California LWV spearheaded in the first half of the twentieth century: the creation of a “prison without walls” for female offenders. Based on the notion that women who committed crimes, even felonies, might be taught law-abiding ways through education, hard work, and humane treatment, the Tehachapi prison experiment demonstrated that newly enfranchised female voters had gained traction in public life. However, while the creation and operation of the women’s prison gave substance to a rehabilitative ideal more forward-looking than many LWV proposals for moral enforcement, the male-dominated legal system created substantial impediments to the success of the Tehachapi facility.
The Conclusion assesses the contributions of the LWV and its state and local branches in California. Like their sisters in the national organization, members of the San Francisco Center worked tirelessly on social welfare issues and civil service reform, opening unprecedented paths to jobs and community involvement for women. In contrast, their criminal justice reform efforts were hampered, not only by the differing interests and continued power of male jurists, police chiefs, and prison officials, but also by the clubwomen’s obsession with prostitution. The affluent white activists of the San Francisco Center and the state-level LWV failed to advocate structural changes that might have liberated women, especially poorer and racial-minority women, from gendered violence. Yet despite the San Francisco Center’s limited success in obtaining justice for victims of sexual exploitation, integrating the San Francisco Police Department, and rehabilitating female offenders, its activities helped put women into public office and provide concrete opportunities for political engagement in the first few decades after suffrage was achieved.
Renee Knake Jefferson, Judicial Ethics in the #MeToo World, 89 Fordham L. Rev. 1197 (2021)
This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report such behavior. But many argue the reforms do not go far enough. Congress, in the wake of media outcries, held hearings in early 2020. The judiciary’s tepid response holds consequences not only for the judges and the survivors of sexual misconduct but also for the legal profession as a whole. Leaving meaningful #MeToo remedies to journalists and lawmakers threatens judicial independence; it sets a precedent that could influence further intervention into other areas of professional conduct governance that is traditionally reserved for the courts. After offering additional reforms for addressing sexual misconduct in the judiciary, this Article concludes by reflecting on lessons that can be drawn about the judicial role in professional ethics regulation more broadly.
Thursday, May 6, 2021
This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.
We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.
Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases—family law, eviction, and debt collection—all disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, their individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.
Thursday, February 18, 2021
Black Women Challenge Florida's Felony Disenfranchisement Law as Undue Burden and Violative of 19th Amendment
New filings in the nation’s sole 19th Amendment felony disenfranchisement suit seek acknowledgement of historical and economic factors that impact Black women in particular.
After nearly two-thirds of the state voted to restore the right to vote to those convicted of felony offenses, McCoy and more than 700,000 Floridians lost access to the voting box in 2019, when Gov. Ron DeSantis signed Senate Bill 7066 into law. The legislation requires formerly incarcerated people to pay any restitution, fines, fees or court costs — also known as legal financial obligations — before regaining the right to vote. McCoy learned that she owed about $7,500 in victim restitution, including interest, and her county expected her to pay it all at once. Advocates call the law a modern-day poll tax.
Now, the Southern Poverty Law Center (SPLC), which sued Florida on behalf of McCoy and another Black woman named Sheila Singleton, is asking an appeals court to require a new analysis of the nation’s sole felony disenfranchisement lawsuit alleging a violation of the 19th Amendment. Lower courts dismissed SPLC’s analysis of the law’s disproportionate financial, “undue burden” on women of color. ***
The 11th Circuit Court of Appeals upheld Florida’s felony disenfranchisement laws in September, but, according to court documents filed on February 10, McCoy’s lawyers want the court to weigh in on The 19th Amendment more directly because of the law’s disparate impact on women of color.
At the core of this renewed legal battle is the question of intent. Lawyers for the state of Florida argue that McCoy and her legal team have to prove that lawmakers and the governor intended to disenfranchise women with the law. But Nancy Abudu, the deputy legal director for the SPLC, filed an appeal for Florida to focus on the impact of this law on women of color.
“We have to move away from having to prove that people are racist and sexist,” Abudu told The 19th. “If that is our burden of proof, then we might as well not bring any of these cases. Instead, we need to focus on what is the impact of these laws. You can’t feel comfortable with a system that incarcerates mostly poor Black people just because the system doesn’t say arrest poor Black people.”
Attorneys representing DeSantis and Florida’s secretary of state did not respond to a request for comment at press time.
Nationwide 57 percent of men made less than $23,000 prior to incarceration, this is true for 72 percent of women, court documents read. The SPLC’s past filings include data from Prison Policy, a nonpartisan criminal justice think tank, showing the unemployment rate among formerly incarcerated people between the ages of 35 to 44 was 44 percent among Black women and 35 percent for Black men, and 23 percent among White women compared to 18 percent of White men.
Abudu sees this as a timely fight. Black women’s votes ushered in the first ever woman in the White House, and Black women like Stacey Abrams, who’ve been largely uncredited with this work, became household names. Yet laws like Florida’s felony disenfranchisement law have the heaviest burden on Black women, Abudu said.
“Our argument essentially is that because of that legislative history, and because of the political history of Black women and voting in our country, that that leads to the conclusion that Black women, or women of color in general, need greater protection when it comes to their voting rights,” Abudu said.
As the SPLC argues in new court documents, the 19th Amendment claim should be read in a way that grants the greatest protection to women, especially because when Congress passed it in 1920, it hardly enfranchised all women.
“The aim of enfranchising women was not simply so they could cast a ballot, but so they could directly influence the other areas of life that ultimately infringe upon their right of self-determination,” the lawsuit reads.
h/t Paula Monopoli
Julia Ann Simon-Kerr, Relevance Through a Feminist Lens, Philosophical Foundations of Evidence Law, Oxford University Press: Christian Dahlman, Alex Stein & Giovanni Tuzet, eds (Forthcoming 2021)
Evidence theorists have long recognized that relevance is contingent upon generalizing from social understandings or experience. Because knowledge and experience shape our understanding of relevance, assessing relevance naturally raises fundamental questions that are at the heart of feminist inquiry: Whose knowledge, and whose experience? The answers to these questions drive relevance determinations in ways that have been subject to feminist critique. At the same time, relevance’s social contingency holds the potential to validate alternative ways of knowing and to expand the process of arriving at truth. This chapter begins by exploring the contingent nature of the relevance inquiry from a feminist perspective. It then considers the practical importance of relevance in incorporating new baseline positions into legal judgment as a result of legal or non-legal change.
Friday, February 12, 2021
Using Emerging Science of Women's Sex-Based Brain Differences of Emotional Harm to Support a Reasonable Woman Standard
Betsy Grey, Sex-Based Brain Differences and Emotional Harm, 70 Duke L.J. Online 29 (2020)
Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.
This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.
This article considers how the law of sexual assault in Canada addresses cases involving intoxicated complainants. There are two main aspects to the law of capacity to consent to sexual touching in the context of intoxicated women. The first involves the evidence of intoxication courts typically require in order to prove lack of capacity. The second pertains to the legal standard to which that evidence is applied. The nature of the evidence required to establish incapacity turns on the level of capacity the law requires. A comprehensive review of Canadian caselaw involving intoxicated complainants reveals a legal standard that is too low and an evidentiary threshold that is too high. The result: no matter how severely intoxicated a woman was when the sexual contact occurred, courts are unlikely to find that she lacked capacity to consent unless she was unconscious during some or all of the sexual activity.
Hannah Brenner Johnson, Standing in Between Sexual Violence Victims and Access to Justice: The Limits of Title IX, 73 Oklahoma L. Rev. (2020)
Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by the Supreme Court to provide a private right of action by which victims can hold institutions accountable.
In the most typical cases, one enrolled student accuses another enrolled student of sexual assault. The university investigates, perhaps holds a hearing panel, issues a determination after applying the relevant evidentiary standard, and, where warranted, imposes appropriate sanctions. If a student victim is dissatisfied with the institutional response, they have the right to sue the school in federal court. Not all cases follow this typical example, however, raising the question of who, specifically, is entitled to avail themselves of the protections of Title IX. Sometimes victims are visitors or "outsiders" who have been raped or assaulted on campus by enrolled students. Their right to sue educational institutions has been called into question by courts that have denied them standing to sue the schools in federal court.
Historically, some judges have used the standing doctrine to deny access to the courts to certain minority groups. Victims of sexual violence represent a new addition to this cohort of excluded parties. A growing number of federal district courts have barred this class of victims from pursuing their grievances against colleges and universities based ostensibly on their "outsider" or "non-student" status, and federal appellate courts have, to date, been reluctant to take a stand either way. A new case that has emerged along these same trend lines is currently percolating in the Sixth Circuit, brought by a woman who was sexually assaulted in a dormitory at the University of Kentucky (UK). The plaintiff in this case was not actually enrolled at UK but resided in campus housing while attending a community college per a formal agreement between institutions. When she sued UK under Title IX for its deliberate indifference in responding to her reported rape, the trial court dismissed her case without reaching the merits. Instead, the court used a narrow interpretation of standing, finding that in order to sue a school under Title IX, an individual must be formally enrolled as a student or enrolled in a program or activity of that institution.
This distinction between insider and outsider rape victims is wholly problematic. Colleges and universities, while reliant on the presence of and tuition generated by their enrolled students, cannot entirely depend on insiders to succeed. They actively solicit, depend on, and profit from engagement with outsiders every single day as a means to fulfill their educational mission. This Article will use Doe v. University of Kentucky as a point of contemporary illustration (filled in by the decisions of other similar cases) to argue that individuals who are sexually assaulted on college campuses should be afforded equal access to Title IX protections and, specifically, should be granted standing to sue regardless of their enrollment status.
Tuesday, February 9, 2021
Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice,48 Capital Law Review 285 (2020)
Improving the “diversity” of the bench often has been discussed as a component of judicial selection and presented as a goal that nominally has had the support of the mainstream legal community. Judicial selection methods that support fairness and impartiality are particularly important at a time when there is significant evidence of bias and animus on the part of the Executive. Today, there is deep concern that on the federal level, the goal of judicial diversity has been not only abandoned, but reversed. This article examines difficulty in improving judicial diversity despite oft-stated support for greater inclusion. It then discusses the role philosophical theories of justice embracing a “view from nowhere” has been used, erroneously, to link impartiality to colorblindness (read “whiteness”). It critiques this transcendental approach and offers a different philosophical “view from everywhere” which argues that the inclusion of persons representing diverse views and experiences supports impartiality and open-mindedness and should be a key consideration in improving justice and supporting greater diversity on the bench.
Thursday, February 4, 2021
Maryam Ahranjani, "Toughen Up, Buttercup" versus #TimesUp: Initial Findings of the ABA Women in Criminal Justice Task Force, 25 Berkeley J. Crim. L. (2020)
"Practicing criminal law as a woman is like playing tackle football in a dress.” Andrea George, Executive Director of the Federal Public Defender for Eastern Washington and Idaho, began her testimony to the American Bar Association’s Women in Criminal Justice Task Force with that powerful observation. In the wake of the #MeToo movement, the ABA has focused on ways to enhance gender equity in the profession and in the justice system. The Criminal Justice Section of the ABA has invested significant resources in the creation of the Women in Criminal Justice Task Force (WCJ TF), which launched its work in January 2019. Written by the WCJ TF Reporter, this Article describes the current status of women criminal lawyers by situating the Task Force’s research within the larger literature on gender equity in the legal profession and in criminal law in particular, sharing unique original qualitative data from the project’s listening sessions, and proposing solutions and next steps for supporting women who choose the important societal role of criminal attorney.
The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?
Tuesday, January 26, 2021
Why It Remains So Difficult for Employers to Prevent and Respond Effectively to Workplace Harassment
This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls—about policy, procedures, training, and operations—shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result.
By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “lowgrade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts.
The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise.