Gender and the Law Prof Blog

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

Tuesday, August 13, 2019

Feminist Law Professors Critique Title IX and Domestic Violence Law

Chronicle, The Revolt of the Feminist Law Professors

 In the fall of 2011, the Department of Education’s Office for Civil Rights issued informal, non-binding guidance on how colleges should treat claims of sexual assault and harassment in a document now referred to as the Dear Colleague letter. It was accompanied by public claims of an ongoing crisis of sexual violence on universities made by President Barack Obama and Vice President Joe Biden. In 2014, Gersen and three of her colleagues — Elizabeth Bartholet, Janet Halley, and Nancy Gertner — led a contingent of their peers in calling out the system of investigation and adjudication that emerged during the Obama years as “so unfair as to be truly shocking.” The four were joined by 24 of their Harvard Law colleagues in an open letter published in The Boston Globe decrying Obama’s Title IX recommendations as “overwhelmingly stacked against the accused.”

 

In a statement called “Fairness for All Students Under Title IX,”  jointly authored with Halley, Bartholet, and Gertner, Gersen noted that at many colleges, investigators are trained to start by believing the complainant. Many schools would “improperly house the functions of investigation and adjudication” in the same office, with “strong incentives” to keep the schools in the Office for Civil Rights’ “good graces.” “Some schools,” they wrote, “allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decisionmaker.” The evidentiary threshold required was the lowest one, the “preponderance of the evidence” standard, meaning anything greater than 50 percent certainty should yield a finding of wrongdoing. 

August 13, 2019 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Monday, July 29, 2019

The Increasing Use of Anonymous Pseudonyms in Sexual Harassment Cases

Erin Mulvaney & Hassan Kanu, Anonymous Workplace Harassment Suits Double in #MeToo Era

The workers wanted to hold their former employers accountable for alleged harassment and discrimination. What they feared was using their names to do so.

 

Since the start of 2019, courts have confronted: a woman who didn’t want the details of an alleged sexual assault made public; a man who said he was harassed for being gay but didn’t want his sexuality revealed to his family; and a group of women who feared “career suicide” as they challenged what they describe as a fraternity culture in their workplace.

 

They wanted to sue under pseudonyms. But in each case, workers wrestled with the difficult choice of whether to go forward publicly, risking retaliation and embarrassment. Attorneys who represent workers say forcing employees to proceed under those circumstances can create a chilling effect, provide leverage to companies, and may mean that alleged victims fear coming forward.

 

These cases are among the growing number of discrimination lawsuits filed in recent years that forced courts to balance potential harm to plaintiffs with the company and public’s right to an open judicial system.

 

A Bloomberg Law analysis showed that discrimination and harassment lawsuits filed anonymously doubled in the wake of the ongoing #MeToo movement. There were 52 of those suits filed in 2018, up from 24 the previous year and just 17 in 2016. They’re on pace to reach 2018 levels this year as well, with 24 filed through the first half of 2019—about as many as in all of 2015 through 2016.

See also Female FBI Trainees Can Pursue Class Suit Anonymously, For Now

July 29, 2019 in Courts, Equal Employment, Workplace | Permalink | Comments (0)

Rediscovering the First Woman Judge, Florence Allen

The Cleveland Plain Dealer has some recent articles highlighting Judge Florence Allen and calling for her recognition.  Allen is colloquially known as "the first woman judge" as she was the first woman elected to a trial court of general jurisdiction (Cuyahoga County Court of Common Pleas, Cleveland), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit, 1932), and the first woman shortlisted for the U.S. Supreme Court.

Andrea Simakis, Before RBG, A Cleveland Judge Made History

Andrea Simakis, Women Lawyers, Judges of Ohio "On Fire" to Honor Judge Florence Allen

Allen is the subject of my current book project, "'A Manly Mind': Judge Florence Allen, The First Woman Judge."  The book is an intellectual biography of this famous first, seeking to exploring her ideas, motivations, and jurisprudence.  I've spent two years reviewing the historical and legal archives, and now am writing in earnest.  A shorter journal article summarizing some of the findings from the research and on Allen's life will be forthcoming in the journal of the new Ohio Legal History Project, an initiative of the Ohio State Bar Foundation.  

Florence Allen was an icon of the woman's suffrage movement as both an activist and an advocate.  Her suffrage work led to her inclusion as one of the inaugural members of the Social Justice ParkSocial Justice Park, in Columbus, Ohio.  Allen was a moderate, believing strongly in the nonpartisan nature of the judiciary, tempering her decisions with logic and reason, and searching within the system for a practical solution.  She prided herself on hard work, logic and intellect, and rejected society's limited role for women.  

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July 29, 2019 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Tuesday, June 11, 2019

The Gendered Effects of Using Algorithms of Recidivism

Melissa Hamilton, The Sexist Algorithm, 38 Behavioral Sciences & the Law 145 (2019)

Algorithmic risk assessment tools are informed by scientific research concerning which factors are predictive of recidivism and thus support the evidence‐based practice movement in criminal justice. Automated assessments of individualized risk (low, medium, high) permit officials to make more effective management decisions. Computer generated algorithms appear to be objective and neutral. But are these algorithms actually fair? The focus herein is on gender equity. Studies confirm that women typically have far lower recidivism rates than men. This differential raises the question of how well algorithmic outcomes fare in terms of predictive parity by gender.

This essay reports original research using a large dataset of offenders who were scored on the popular risk assessment tool COMPAS. Findings indicate that COMPAS performs reasonably well at discriminating between recidivists and non‐recidivists for men and women. Nonetheless, COMPAS algorithmic outcomes systemically overclassify women in higher risk groupings. Multiple measures of algorithmic equity and predictive accuracy are provided to support the conclusion that this algorithm is sexist.

June 11, 2019 in Courts, Science | Permalink | Comments (0)

Friday, May 17, 2019

Study Examining Whether Women Judges are More Likely than Men Judges to Affirm Reproductive Health Rights

Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation,  87 Fordham L. Rev. (2019)

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (vis-à-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, but unnecessary, and even harmful and sabotaging, to a participatory democracy.

Building from two years of empirical research and examining each federal appeals court’s record on abortion and each judge’s vote on a particular case, this project studies whether women are more likely than their male counterparts to affirm reproductive health rights. We examined 302 cases across each federal appellate circuit, including the District of Columbia and the Federal Circuit. Our findings have both normative and sociological implications. This project tells an important story about the composition of the federal appellate judiciary and the slow climb for women, including women of color, within the elite branches of the courts. This is a story expressed in numbers and it reflects the historical marginalization of women within the law and the problem of homogeneity in the courts.

May 17, 2019 in Abortion, Courts, Judges, Reproductive Rights | Permalink | Comments (0)

Thursday, April 25, 2019

Judges on Transnational Courts: Why Simply Adding Women is not the Answer to Judicial Diversity

Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)  

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.

This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.

The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.

April 25, 2019 in Courts, Gender, International, Judges | Permalink | Comments (0)

Tuesday, April 9, 2019

An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation

Catherine Ross Dunham & Christopher Leupold, Third Generation Discrimination: An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation 

 In this progressive era of #MeToo and other movements which highlight the reality of women’s experiences in the workplace and other settings, the question arises as to why discrimination-based civil lawsuits are not more successful for female litigants. The courts have served as an important tool in reforming discriminatory workplace cultures by directly addressing and punishing overtly discriminatory workplace behavior such as blatant pregnancy and gender discrimination or grievous acts of sexual harassment. But the same courts have not been able to function as a safe haven for women who have their careers curtailed by implicit bias-based gender discrimination brought under Title VII. Gender discrimination lawsuits brought under a theory of bias-based discrimination, more specifically bias-based gender discrimination, have not offered reliable remedies for female litigants and have not impacted workplace culture in any meaningful way.

Bias-based gender discrimination theory involves structural discrimination – facially neutral workplace policies that are applied to favor the male dominant group and consequently written and managed by a male-dominated upper hierarchy. Successful litigants in bias-based gender discrimination cases must convince the judicial decision-maker not only that the law of Title VII applies, not only that the facts at issue constitute discrimination, but also that the workplace is mired in multi-layer structural discrimination flowing from an implicit bias against female employees. In order for the federal courts to function fully as interpreters of Title VII, policing our workplaces for equity and inclusion, the judicial gatekeepers must engage their own biases and preconceptions when evaluating the subject workplace.

This article follows an earlier piece which theorized there is an additional layer of implicit bias-based discrimination which inhibits the success of plaintiffs in Title VII lawsuits. That article argued that lawsuits seeking relief under facts of implicit bias-based workplace discrimination are further inhibited by bias in the courts, specifically the implicit biases of the federal judges who monitor the progress of the plaintiff’s case. This additional layer of implicit bias-based discrimination, Third Generation Discrimination, theorizes that a federal judge may be influenced by his or her own traits when evaluating gender discrimination cases which involve bias-based theories of gender discrimination.

This article is based on the authors’ study of Title VII cases in federal district courts over a ten-year period. The authors studied the judicial rulings on dispositive motions in Title VII cases and compared those outcomes to demographic information for the deciding judge, including race, gender, age and political affiliation. Part II of the article summarizes the theories of Second and Third Generation Discrimination, creating a framework for the research to follow. Part III of the article describes and explains the relevant research by outlining the parameters of the sample, explaining the statistical method followed, and discussing the research results. Part IV of the article analyzes the results of the authors’ research and theorizes how the authors’ findings can inform future discussions of gender discrimination.

 

April 9, 2019 in Courts, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Reproductive Rights Stories: FMLA and the Supreme Court's Decision in Nevada Dept of Human Resources v. Hibbs

Sam Bagenstos, Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice" 
Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel, eds., Forthcoming)

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton — just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism — the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project.

April 9, 2019 in Books, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Thursday, April 4, 2019

Justice Ginsburg's Legacy and the Draft Case

Linda Greenhouse, Why R.B.G. Matters, NY Times

For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.

 

Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.

 

Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.

 

As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opiniondeclaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.

 

What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.

April 4, 2019 in Constitutional, Courts, Judges | Permalink | Comments (0)

Wednesday, April 3, 2019

Shortlisting Women Creates the Appearance of Gender Diversity, But Maintains the Status Quo of Exclusion

Redressing Gender Disparity in Legal Leadership

Professor Renee Knake is on a mission to expose the increasing trend of women being shortlisted—i.e. qualified for a position but not selected from a list, a phenomenon that creates the appearance of diversity but preserves the status quo.

Speaking ahead of her keynote at The Legal Festival in Sydney in June, Prof. Knake says that leadership in the legal sector does not reflect the public it serves, even though women have entered law in numbers equal to men for decades.

“This phenomenon often happens with any pursuit of professional advancement, whether the judge in the courtroom, the partner in the corner office, or the coach on the playing field. Women, and especially female minorities, regularly find themselves equally or more capable than the other candidates on the shortlist, but far less likely to be chosen.”

The legal profession should reflect the diversity of the public it serves, argues Prof. Knake, who currently holds the Fulbright Distinguished Chair in Entrepreneurship and Innovation at RMIT University and is also the Doherty Chair in Legal Ethics at the University of Houston. “Having diverse representation is important for institutional legitimacy and the credibility of rule of law and access to justice.”

April 3, 2019 in Courts, Gender, Women lawyers | Permalink | Comments (0)

The Informal (yet Effective) Process of MeToo

Jessica Clarke, The Rules of #MeToo, Univ. Chicago Legal Forum (forthcoming)

Two revelations are central to the meaning of the #MeToo movement. First, sexual harassment and assault are ubiquitous. And second, traditional legal procedures have failed to redress these problems. In the absence of effective formal legal procedures, a set of ad hoc processes have emerged for managing claims of sexual harassment and assault against persons in high-level positions in business, media, and government. This Article sketches out the features of this informal process, in which journalists expose misconduct and employers, voters, audiences, consumers, or professional organizations are called upon to remove the accused from a position of power. Although this process exists largely in the shadow of the law, it has attracted criticisms in a legal register. President Trump tapped into a vein of popular backlash against the #MeToo movement in arguing that it is “a very scary time for young men in America” because “somebody could accuse you of something and you’re automatically guilty.” Yet this is not an apt characterization of #MeToo’s paradigm cases. In these cases, investigative journalists have carefully vetted allegations; the accused have had opportunities to comment and respond; further investigation occurred when necessary; and the consequences, if there were any at all, were proportional to the severity of the misconduct. This Article offers a partial defense of the #MeToo movement against the argument that it offends procedural justice. Rather than flouting due process values, #MeToo’s informal procedures have a number of advantages in addressing sexual misconduct while providing fair process when the accused person is a prominent figure.

April 3, 2019 in Courts, Equal Employment, Media, Pop Culture | Permalink | Comments (0)

Tuesday, April 2, 2019

Legal Implications of the #MeToo Movement for Employment Law and Practices

Elizabeth C. Tippett, The Legal Implications of the #MeToo Movement, 103 Minnesota L. Rev. 229 (2018)

This Article examines the implications of the MeToo movement for employment law and employment practices. Employers are likely to face increased liability for harassment, as courts eventually update their standards for what qualifies as “severe or pervasive” harassment, and demand more of employers seeking to establish the Faragher/Ellerth defense. Employers also face greater risks of public scandals, as employees speak out and state legislatures limit the enforceability of non-disclosure agreements.

 

Consequently, employers can be expected to take a more punitive approach to documented instances of harassment. This will not only include termination, but also meaningful intermediate forms of discipline like a demotion or the removal of supervisory responsibilities. To limit their potential liability associated with these more punitive measures, employers are likely to modify standard language in executive employment agreements and privacy policies.

 

Lastly, the Article explores how standard harassment policies may have contributed to the problems exposed by the MeToo movement. The Article advocates for transparent harassment policies that disclose the contextual factors that influence disciplinary decisions. Employers should also draft broader discrimination policies that treat discriminatory and harassing comments by supervisors as a breach of trust. These changes would harmonize employer policies with their underlying litigation risks, and better convey employer expectations in the MeToo era.”

April 2, 2019 in Business, Courts, Equal Employment, Workplace | Permalink | Comments (0)

Friday, March 15, 2019

Sexual Harassment Policies Adopted for Federal Judiciary

Sexual Harassment Policies Adopted for Federal Judiciary

The federal judiciary will change its response to workplace sexual misconduct charges effective immediately, the policy-making body for the federal courts announced today.

 

It is itself “misconduct not to report misconduct,” Chief Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit, said in a press briefing following the bi-annual Judicial Conference meeting.

 

The changes clarify what behavior is prohibited, address informal methods to report misconduct, and provide for training mechanisms to educate employees on prohibited behaviors, said Garland, who heads the Executive Committee of the Judicial Conference.

 

The changes stem from a June 2018 report Chief Justice John G. Roberts Jr. commissioned after sexual harassment allegations against then-Ninth Circuit Judge Alex Kozinski emerged. Kozinski has since retired.

 

Roberts’ year-end report detailed the steps the judiciary has already taken to address concerns in the #MeToo era, including the creation of a working group to address inappropriate workplace conduct for law clerks and court employees.

 

The working group made the recommendations implemented today and Garland said it will remain in place to “keeps tabs” on the judiciary’s progress and perhaps make suggestions in the future.

 

The codes of conduct don’t officially apply to Supreme Court justices, but they have previously said they consult and follow them.

 

Justice Elena Kagan said during a budget hearing March 7 that Roberts is currently studying whether to develop a code of conduct that applies specifically to Supreme Court justices. It’s something that’s being “very seriously” weighed, she said.

March 15, 2019 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)

Why Voters are Starting to Prefer Women as Judges

Male Judges "Close to Extinction": Why Women Rule Louisville Courtrooms

When voters elected the first judges to Louisville's new Jefferson District Court in 1978, only two were women.

 

Now, only two are men.

 

Women hold 32 of the 40 judgeships in Jefferson County — including 88 percent of the seats on District Court. And women have vanquished men in 15 of the last 17 head-to-head judicial races.***

 

Why do female candidates fare so well in judicial races? Some scholars say it's because voters often know little about those running and rely on stereotypes to make their choice.

 

Among them is the notion that women will be "more honest and have higher integrity" on the bench than men, said Brian Frederick, chair of the political science department at Bridgewater State University near Boston.

 

Male candidates pay a price because men historically have dominated politics and are seen as more like likely to use the system to enrich themselves, he said.

 

"Women are not seen as part of the system and are seen as less corrupted by it," Frederick said.

 

Laura Moyer, political science professor at the University of Louisville who has studied judicial elections, said gender is especially important in non-partisan judicial elections because voters cannot fall back on their party affiliation.

 

Gold puts it more simply: "I don’t think men vote for men, but women do vote for women."

 

Jefferson County wasn't the only place where women candidates for judge cleaned up at the polls in November, aided by the #MeToo Movement and a backlash against President Donald Trump:

Still, even though women account for half of all law school graduates, only about one-third of the 10,000 state court judges in the U.S. are female, according to the American Constitution Society.

District Judges, Jefferson County, KY

Women now how 15 of the 17 District Court judgeships in Jefferson County

 

March 15, 2019 in Courts, Gender, Judges | Permalink | Comments (0)

Thursday, February 21, 2019

The Feminist Case Against Individualized Adjudication of MeToo Claims

Lisset Pino, Wal-Mart v. Dukes: The Feminist Case Against Individualized Adjudication, 30 Yale Journal of Law & Feminism (2018)

Discussions of due process often focus on individualizing trials in order to provide persons an opportunity to be heard. In keeping with this traditional understanding, Justice Antonin Scalia’s majority opinion denying class certification in Wal-Mart v. Dukes describes class actions as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” This Comment grapples with the normative implications of the American legal focus on individualized (rather than collective) adjudication. It argues that the “usual rule” of individualized adjudication makes it much more difficult for the American legal system to adequately evaluate claims of widespread discrimination. When such claims arise from the behavior of numerous bad actors operating within an institutional context, the adjudicative focus on individuality tends to obscure how oppressive institutional dynamics have made the discrimination possible. These dynamics often only become evident when individual experiences are considered in the aggregate, in two key ways. First, as the #MeToo movement shows, aggregation of claims results in believability: one woman accusing a powerful man of sexual misconduct can be easily dismissed, but hundreds of accusers are more difficult to ignore. Second, aggregating claims can often demonstrate the institutional dimension of discrimination, proving that discriminatory behavior is not due to a single bad actor, but rather has been enabled by institutional structures that must be changed to prevent the behavior from recurring.

February 21, 2019 in Courts, SCOTUS, Workplace | Permalink | Comments (0)

Monday, February 18, 2019

Gender and Judging: Evidence from the European Court of Human Rights

Erik Voeten, Gender and Judging: Evidence from the European Court of Human Rights, 

Are women’s appeals for judicial remedies more likely to be successful if there are more women on the bench? Examinations of this question have mostly been confined to the North American context. This article evaluates this question in the European Court of Human Rights using a new dataset that incorporates both the gender of judges and applicants to the Court. Using matching within judgment, the analysis confirms findings from the U.S. context that female judges are more favorably disposed towards discrimination cases filed by women. Yet, female judges are not more likely than male judges to support rights claims filed by women on other legal issues. There is, however, strong evidence that female judges are more favorably disposed towards male and female applicants who allege physical integrity rights violations, such as torture. This is consistent with the attitudinal theory of judging. Thus, gender composition affects issues beyond those traditionally thought to be women’s rights issues. Moreover, the analysis reveals that women disproportionally file property rights claims, an issue that has gotten very little attention in the literature on gender and courts

February 18, 2019 in Courts, International, Judges | Permalink | Comments (0)

Wednesday, January 16, 2019

Remembering Judge Patricia Wald, First Woman on the DC Circuit

Patricia Wald, Pathbreaking Federal Judge Who Became Chief of DC Circuit, Dies at 90

Shortly before she graduated from Yale Law School in 1951, Patricia Wald secured a job interview with a white-shoe firm in Manhattan. The hiring partner was impressed with her credentials — she was one of two women on the law review — but lamented her timing.

 

“It’s really a shame,” she recalled the man saying. “If only you could have been here last week.” A woman had been hired then, she was told, and it would be a long time before the firm considered bringing another on board.

 

Gradually, working nights and weekends while raising five children, she built a career in Washington as an authority on bail reform and family law. Working for a pro bono legal services group and an early public-interest law firm, she won cases that broadened protections for society’s most vulnerable, including indigent women and children with special needs.

 

She became an assistant attorney general under President Jimmy Carter, who in 1979 appointed her to the U.S. Court of Appeals for the District of Columbia Circuit — often described as the country’s most important bench after the U.S. Supreme Court. She was the first woman to serve on the D.C. Circuit and was its chief judge from 1986 to 1991. Later, she was a member of the United Nations tribunal on war crimes and genocide in the former Yugoslavia.

 

Judge Wald, whom Barack Obama called “one of the most respected appellate judges of her generation” when he awarded her the Presidential Medal of Freedom in 2013.

January 16, 2019 in Courts, Judges | Permalink | Comments (0)

Tuesday, January 15, 2019

Examining the Oral Arguments in Roe v. Wade and How They Shaped Feminist Legal Theory

Catherine Martin Christopher, Nevertheless She Persisted: Comparing Roe v. Wade's Two Oral Arguments, 49 Seton Hall L. Rev. 307 (2018).

There is a longstanding and popular sentiment in the legal profession that oral arguments do not really matter; rather, everything rides on the written briefs. This Article takes that old adage head on, and does so through analysis of one of the most controversial cases ever decided by the United States Supreme Court: Roe v. Wade. It is a little-known fact that Roe was argued before the Court not once, but twice, which presents a unique opportunity to consider the place and power of oral arguments in Supreme Court jurisprudence.

This Article offers a comprehensive analysis and critique of the two oral arguments in Roe. The Article first analyzes the oral arguments pragmatically, undertaking a scholarly investigation of the arguments to investigate their impact on the majority opinion. Next, the Article proceeds theoretically, engaging in a feminist legal theory analysis to assess how the Roe arguments were both a product of their time and shaped feminist legal theory going forward.

January 15, 2019 in Abortion, Courts, SCOTUS, Theory | Permalink | Comments (0)

Monday, November 19, 2018

Judges' Subject Matter Expertise and Personal Ideologies May be Linked to More Gender Bias in Rulings

ABA J, Judges' Expertise May Correlated with More Gender Bias in Some Cases, Study Says

Judges' subject-matter expertise—and personal ideologies—may be linked to more gender bias in their rulings, according to a recent study of jurists and laypeople. The study asked respondents to read and decide how to resolve hypothetical custody cases and workplace discrimination claims with similar fact patterns but different races and genders assigned to parties. 

 

The study, conducted by Andrea Miller when she worked as a postdoctoral researcher at the American Bar Foundation, surveyed 619 state court trial judges and 504 laypeople. A state supreme court—Miller did not disclose which one—provided administrative and financial support for the survey. Miller will share the results of the survey with the judges and help them rely less on their personal biases, according to a news release about the study.

 

“Judges tend to believe that their vast amount of legal training and logical thinking skills make them immune to these mistakes. This research is showing that judges are not as immune as maybe they think they are,” Miller, a psychology professor at the University of Illinois at Urbana-Champaign, said in the news release about the study, which also examined race. The race-focused piece of her research will be published at a later date.

 

In the shared-custody hypothetical, judges were more likely than laypeople surveyed to give the mother more time with a child, the release said. The survey also asked the judges about their personal ideologies regarding gender roles after they made their rulings in the hypothetical cases. Those identified as supporting traditional gender roles, with women mostly confined to domestic caregiving roles and men in public, career-based ones, were more likely to give mothers more time in the custody hypotheticals, according to the study.

November 19, 2018 in Courts, Gender, Judges | Permalink | Comments (0)

Friday, November 9, 2018

Women Hold All 10 Common Pleas Judge Seats in NE Ohio County

In my little corner of the world, 

Akron Beacon J., Women Rule in Summit County Claiming All 10 Common Pleas Judge Seats

Women rule in Summit County.

 

For what may be the first time in history, the Summit County Common Pleas bench – once all male – will be made up of all women after Tuesday’s election.

 

In the only male-female match-ups for Summit County Common Pleas Court, Kathryn Michael and Kelly McLauglin defeated Tom McCarty and Dave Lombardi, according to unofficial election results.

 

“The two men are going down in flames,” said McCarty, whose wife, Alison, is already on the common pleas bench.

 

These wins will mean all 10 judges on the common pleas bench will be women and, overall in Summit County, women will occupy just more than 70 percent of the elected judicial seats.

 

“That will put us in the most unusual position of any other county across the state of Ohio,” said Michael, an Akron judge who ran for a common pleas seat for the fourth time.

November 9, 2018 in Courts, Judges | Permalink | Comments (0)