Monday, October 25, 2021
On Friday, the Supreme Court agreed to hear limited arguments on November 1st regarding Texas's S.B. 8. The issue before the Court is framed as:
May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.
Justice Sotomayor powerfully wrote concurring in part and dissenting in part (citations omitted):
I cannot capture the totality of this harm in these pages. . . . [T]he State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.
These ruinous effects were foreseeable and intentional. Were there any doubt, proponents of S. B. 8 have boasted in this very litigation that “Texas has boxed out the judiciary” and crowed that “[a]bortion . . . is a court-invented right that may not even have majority support on the cur- rent Supreme Court.”
There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative re- lief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.
There are women in Texas who became pregnant on or around the day that S. B. 8 took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State. Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out-of-state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help. None of this is seriously in dispute.
These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many. Once again, I dissent.
Tuesday, October 12, 2021
Transgender lawyer sues for declaration that bias based on gender identity violates attorney ethics rules
Transgender lawyer Sheryl Ring has filed a lawsuit seeking a declaration that attorney ethics rules in Illinois do not allow discrimination based on gender identity.
Ring contends the ban on sex discrimination in Illinois ethics rules should encompass a ban on discrimination due to gender identity, gender expression, nonbinary status and transgender status, Law360 reports. She sued the administrator of the Illinois Attorney Registration and Disciplinary Commission in an Oct. 4 complaint filed in Cook County, Illinois. CBS 2 Chicago also has coverage.
Ring, a lawyer in McHenry, Illinois, cites the U.S. Supreme Court’s June 2020 decision, Bostock v. Clayton County, which held the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers.
Ring has also created a Change.org petition asking the IARDC “to join states like California, Pennsylvania, Washington, Maryland, Oregon, New York, Massachusetts, Florida [and] Oklahoma and the District of Columbia, and ban discrimination on the basis of gender identity and expression in the Illinois legal system.”
Monday, October 11, 2021
Bloomberg Law's article Women Make Gains But Still Trail Men at Supreme Court provided updated data on gender disparities in Supreme Court advocacy.
Seven women attorneys will argue at the Supreme Court during the October sitting, as the justices headed back to the courtroom for the first time since February 2020.
That’s an increase in the percent of female advocates—35%—which typically ranges between 12% to 21% each term. That number was near the bottom of the range last term, when 20 women argued all term, compared to 136 men.
The Sentencing Project, National Women's Justice Institute, and the Cornell University Center on the Death Penalty Worldwide published a report concluding that more women are serving life sentence. This collaborative report "seeks to highlight the experiences of incarcerated women and girls, to eliminate extreme sentences, and to reduce the influence of racial and gender bias in the criminal legal system."
The report reveals that:
Extreme punishments, including the death penalty and life imprisonment, are a hallmark of the United States’ harsh criminal legal system. Nationwide one of every 15 women in prison — over 6,600 women — are serving a sentence of life with parole, life without parole, or a virtual life sentence of 50 years or more. The nearly 2,000 women serving life-without-parole (LWOP) sentences1 can expect to die in prison. Death sentences are permitted by 27 states and the federal government, and currently 52 women sit on death row. This report presents new data on the prevalence of both of these extreme sentences imposed on women.
It concludes that:
Women represent a small but growing portion of the prison population facing extreme sentences. Reforms advanced to end the use of extreme sentences will need to pay attention to the nuanced life experiences of women serving life in prison, as these have shaped their behaviors as well as their prison experiences. A wealth of evidence suggests that women encounter gender-based stigma and bias that negatively affects their court outcomes. Their experience of violence--both as victims and as perpetrators--are distinct from the experiences of men, but women are subjected to a criminal legal system that does not acknowledge these important differences.
Rewire reports on the upcoming case of Cameron v. EMW Women's Surgical Center being argued in the Supreme Court tomorrow. The issue before the court is "whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law." While it will not address the merits of abortion law, the stakes are still high:
If Cameron is able to intervene and the law gets upheld, it could effectively ban abortion after 15 weeks in a state that has just two clinics and multiple restrictions, including a 24-hour waiting period and bans on insurance coverage of the procedure. Both clinics are in downtown Louisville, which means access is limited for people in other areas of the state.
Notably, the article also revisits the issue of struggles to enforce Louisville's new ordinance imposing a clinic buffer zone. The article notes the disparities in how racial justice protesters were handled after Breonna Taylor's death, compared to anti-abortion protesters. Interviewing the owner of EMW Women's Medical Center, Ona Marshall, and clinic escort and support fund director, Meg Sasse Stern, Rewire reports that:
[A]dvocates pushed for the safety zone because of the lack of enforcement of various city ordinances regulating things like harassment, noise, and sidewalk access. She also noted that these same ordinances were enforced against social justice protests after Breonna Taylor’s death, and the Louisville Metro Police Department is now under a pattern and practice investigation by the U.S. Department of Justice. LMPD arrested the state’s only Black woman lawmaker, state Rep. Attica Scott, during a September 2020 protest.
“Anti-abortion protesters are ignored and just treated differently than other protesters,” Marshall said. Stern agreed that the difference is obvious: “I cannot ignore the vast difference in treatment received by these anti-abortion protesters and the way that our police department treats protesters that are demanding police stop killing Black and brown people.”
Both Marshall and Stern are skeptical that the safety zone around EMW will be enforced due to anti-abortion sentiments in the police department. During an August 2020 Metro Council meeting about the proposed safety zone, former council member David Yates, now a Democratic state senator, said he received text messages from police officers asking, “who’s going to enforce this – lol.”
Tuesday, October 5, 2021
By: Nausica Palazzo
Published in: Columbia Journal of Gender and Law, Forthcoming
Same-sex marriage is now recognized in several jurisdictions in the West. This result is ascribable to the untiring work of LGBTQ groups, that have utilized much of their energies to attain it. Pervasive forms of discrimination because of one’s sexual orientation are still in place, such as legislation restricting access to foster and adoption services. But there is little doubt that marriage equality constituted a watershed moment for LGBTQ politics. As Justice Roberts’ immortal words in Obergefell attest to, “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union two people become something greater than once they were.” After the Supreme Court’s decision in Obergefell, gay and lesbian couples could also finally create the most profound of all unions, and cease being second-class citizens. Since marriage was seen by many as “the final stop for ‘full equality’ for lesbians and gay men,” a question lurked behind these events: “what now?” The question has various ramifications. “What now?” within the LGBTQ movement? Since the final objective has now been reached, the structure, financing, and strategies of the LGBTQ movement are inevitably changing. It will thus be interesting to see which battles the movement will prioritize in the next decades. A second, more crucial “what now?” bears upon the future of family law and policy. It concerns the fate of nonmarital statuses, that have been erased at the stroke of a pen after marriage equality.
. . .
Nonmarital statuses can promote a more pluralistic model of relationship recognition, and, as I will argue, offer legal protection to families that eschew the paradigm of the traditional marital family. The case of jurisdictions that have adopted nonmarital statuses as an alternative to marriage compellingly demonstrates this point. A nonmarital status is considered as an alternative to marriage when both opposite and same-sex partners can sign up. The rationale of alternative statuses is not that of offering a separate-but-equal regime for same-sex couples but a distinct regime that any couple can choose in lieu of marriage. Examples of jurisdictions adopting these laws are Illinois, Hawaii, and Colorado and, outside of the U.S., France, Belgium, The Netherlands, and Luxemburg. Interestingly, in these countries, not only are nonmarital statuses being preserved but they are also becoming increasingly popular amongst heterosexual couples.
Tuesday, September 28, 2021
Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?
By: Linda C. McClain
Published in: Family Court Review (Forthcoming)
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.
. . .
This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.
Monday, September 27, 2021
A Loudon County, Virginia judge has held a domestic violence victim in contempt after she testified as a witness in the criminal case. The stated reason for the contempt ruling and subsequent incarceration was the judge's belief that the witness appeared intoxicated. The judge concluded that the witness "rocked back and forth in the witness stand" and that “her speech was lethargic and rambling, and at times unnaturally alternating between high and low tones.” The witness admitted to having smoked marijuana earlier in the day.
She was sentenced to ten days in jail. In a motion seeking to vacate the ruling, however, several witnesses contradicted the judge's perception. The victim's lawyer sought to vacate the contempt ruling, arguing that the judge had no basis for the citation and that she was denied her due process rights. The judge denied this motion.
The Washington Post reports that this jailing has "angered women's rights groups" who already face stark challenges in getting domestic violence victims to testify against their abusers. The victim's lawyer indeed explains that the witnessed appeared "agitated because she was facing her alleged abuser at trial and testifying on a difficult subject matter."
Tuesday, September 14, 2021
By: Danielle Conway
Forthcoming in: 13.1 Ala. C.R. & C.L. L. Rev. 1 (forthcoming 2022)
America is at an unprecedented time with self-determination for Black women, and this phase of the movement is reverberating throughout this nation and around the world. There is no confusion for those who identify as Black women that this movement is perpetual, dating back to the enslavement of Black people in America by act and by law. One need only look to the intersecting crises of 2020 to discern the reality of Black women’s — and by extension the Black community and by further extension individuals and groups marginalized, subordinated, and oppressed by white patriarchy — perpetual struggle for civil and human rights.
To appreciate the genealogy of this perpetual struggle for civil and human rights, it is instructive to look back on the 100th Anniversary of the 19th Amendment and to be immersed in the stories and the legacies of Black women suffragists to gain insights about modern contestations against limiting the franchise. In the forming of this nation, Black women were intentionally excluded and erased from conceptions of humanity. This exclusion and erasure of Black women’s voices and contributions from the annals of social, political, and economic movements throughout history, such as abolitionist and women’s suffrage movements, tarnish the legitimacy of our democratic institutions, our laws, and our collective progress toward equality.
This article centers Black women’s lived experiences in the struggle for universal suffrage while also leading and supporting their communities in the fight against racial inequality and oppression. By making the sojourn through history using the lens of Black women, an opening is created to understand the perpetuation of racial injustice and oppression through the practices of withholding citizenship and the franchise. It also offers a window into the expertise and resilience of Black women in building and maintaining relationships, alliances, and coalitions to press for the larger vision of universal suffrage, even when their putative partners choose self-interest over the collective. The purpose of highlighting the duality of the movement is to contribute to the literature that seeks to reveal how Black women and their lived experiences with racism and oppression during the women’s suffrage movement up through and after the ratification of the 19th Amendment can inform today’s efforts at successful coalition building to support modern movements against injustice and inequality.
As Seen through the Eye of the Camera: A Portrayal of How Cultural Changes, Societal Shifts, and the Fight for Gender Equality Transformed the Law of Divorce
By: Taylor Simpson-Wood
Published in: 42 Women's Rts. L. Rep. 1 (2020).
This article explores how changing societal forces and cultural mores have configured to mold the law of divorce from the turn of the Twentieth Century though the rise of no-fault divorce in 1970. It highlights that, irrespective of the varying, contemporaneous views of divorce of different eras, there is one common theme which runs beneath and unites the six decades, gender inequality. To illustrate this premise, it employs representative films for each covered time period to paint a picture of the cultural influences and forces that gave rise to that era’s perspective about divorce as it strove to make a better society.
Specifically, the essay traces the key components of film censorship implemented via the Hays Code in the 1930s and explores how divorce was transformed post-Code from being an anathema to an accepted, if not expected, part of mainstream American life. It also confronts the continuing myth that the 1950s constituted the golden age of the American family. The “ideal” family portrayed each evening on the television was not a documentary and, despite cinematic representations of life during the 1950s, the era was a time of great stress for both spouses. Husbands faced the specter of becoming an “organization man,” while many homemakers were suffering from “the problem that has no name.” The rise of new social mores is often a counter-reaction to those of the immediately preceding time period. This was certainly the case in the 1960s, when the rejection of the values of the 1950s led to a psychological shift resulting in the birth of a new “divorce culture” premised on the idea that when a spouse is unfulfilled due to an unsatisfying the marital relationship, divorce is not only justified, but paves the road to self-realization.
Wednesday, September 8, 2021
Texas Judge Grants Temporary Injunction to Stay Lawsuit by Texas Right to Life under New 6-Week Abortion Ban
A Texas state judge on Friday temporarily blocked an anti-abortion group from enforcing Texas's new 6-week abortion ban against Planned Parenthood, handing a narrow legal victory to abortion rights advocates.
Judge Maya Guerra Gamble's (D) ruling does not invalidate the new law but rather halts Texas Right to Life and its associates from suing abortion providers and workers at Planned Parenthood clinics under the statute, S.B. 8, that took effect Wednesday.
“The Court finds that S.B. 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8,” Gamble wrote.***
Judge Gamble’s temporary restraining order is due to expire in two weeks, but her Friday order also announced a Sept. 13 hearing which could lead to the pause on the anti-abortion group’s enforcement authority being extended.
Monday, August 30, 2021
Scott Stern has published The NAACP’s Rape Docket and the Origins of Criminal Procedure in volume 24 of the University of Pennsylvania Journal of Law & Social Change. The abstract summarizes that:
This Article provides the definitive account of the surprisingly voluminous docket of rape cases argued by the National Association for the Advancement of Colored People (NAACP). It argues, for the first time, that the NAACP’s rape docket was central to the development of modern criminal procedure—to the establishment of the right to counsel, the right to remain silent, the right to a trial free from mob violence or influence, the right against self-incrimination via a coerced confession, and the right to a jury of one’s peers selected without discrimination. Drawing on original archival research, this Article demonstrates that all of these rights have their origins in the hundreds of cases argued by the NAACP on behalf of Black men accused of sexual assault by white women. * * * *
[T]his Article examines cases in which the NAACP advocated for Black women who accused white men of sexual assault. Throughout its history, the national office of the NAACP advocated for Black female rape survivors only rarely. In contrast, the local branches of the Association did advocate for dozens of Black women who had been raped by white men, often pushing the police to investigate, the prosecutors to bring charges, and sometimes even hiring their own attorneys to aid in prosecutions. Yet at no point did NAACP attorneys ever challenge the rape laws that placed punitively high demands on assault survivors and impeded countless prosecutions. This was largely because NAACP attorneys embraced the very politics of respectability that justified sexist rape laws; indeed, NAACP attorneys capitalized on the gendered aspects of these laws in their representation of Black men accused of rape. Although many Black women throughout the decades demanded the NAACP engage more often in anti-rape work, such pleas usually met with silence. Had the NAACP acceded to these demands and pushed for a criminal procedure focused on protecting rape survivors as well as rape suspects, the greater protections that contemporary rape laws now provide for survivors could have come about much sooner.
The article also unpacks some of the relationship between the NAACP’s rape docket and its relationship to the feminist movement.
Monday, August 23, 2021
Lift Louisiana and If/When/How filed a motion for an injunction arguing that Louisiana's Act 482 violates the Louisiana Constitution because it deprives minors of meaningful and effective access to the Courts when seeking judicial bypass to terminate a pregnancy. Prior to the Act, Louisiana minors could either pursue a judicial bypass in the jurisdiction in which they are domiciled or in the jurisdiction in which the clinic is located. Under the prior jurisdictional rule, most bypass proceedings were heard in the parishes where two of the three remaining clinics are located. This broader approach protected the anonymity of minors, ensured that the courthouses were savvy in handling these proceedings, created a path for out of state minors to seek a bypass, and worked more expeditiously. Act 482 limits the jurisdictional rules such that minors can only pursue bypass proceedings in the parish of their domicile. Lift Louisiana and If/When/How seek an injunction blocking Act 482 before it causes irreparable injury. The plaintiffs argue that this Act deprives plaintiffs of their right to access the courts under the Louisiana Constitution and violates the due process and privileges and immunities clauses of the Fourteenth Amendment of the United States Constitution.
Tuesday, August 10, 2021
Federal appeals court will hear novel argument, invoking 19th Amendment, against felon voting restrictions
A federal appeals court rendered a decisive victory for Gov. Ron DeSantis and legislative Republicans last year in upholding Florida’s law requiring felons to pay all fines, fees, and restitution before they can win back the right to vote under 2018’s Amendment 4.
But that ruling, by the full U.S. Court of Appeals for the 11th Circuit, didn’t quite kill every challenge to the law, known as SB 7066.
. . .
The plaintiffs now before the court are Rosemary McCoy and Sheila Singleton, two Black women with felony records who have been denied the right to vote under the Florida law because their criminal records prevent them from getting jobs that would pay enough for them to satisfy restitution orders.
The defendants include DeSantis and Laurel Lee, Florida’s secretary of state, who oversees elections.
“Appellants’ lawsuit requires the state of Florida to acknowledge the compounding impact of race, class, and gender in a law like Senate Bill 7066 that ties the payment of legal financial obligations (“LFOs”) to the right to vote, but artificially disentangles the continuing burdens low-income women of color face in satisfying those financial obligations,” their lawyers wrote in their opening brief.
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.