Tuesday, October 13, 2020
Brooke Coleman, #SoWhiteMostlyMale Federal Procedural Rulemaking Committees, UCLA L. Rev. Disc. (Forthcoming)
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That’s 94% of the committee membership. Of that same group, 513—or 81%—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while expert—are not disinterested actors. This essay examines racial and gender diversity across six different committees. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the Judiciary, and the Bar should demand it.
Monday, October 12, 2020
A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.
Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
Tuesday, September 15, 2020
A legal fight against Walmart Inc. that became the largest employment class-action lawsuit in history will become a series at Netflix Inc. from actress Amy Adams and “The Big Short” director Adam McKay.
“Kings of America” will follow three women involved in the lawsuit, which went to the Supreme Court in 2011: a Walmart heiress, an executive and a saleswoman at the retail chain. Adams stars as one of the women, and McKay will direct the first episode of the series.
The case involved female employees suing Walmart for alleged gender discrimination -- including pay disparities and favoring male workers -- on behalf of potentially more than a million employees. That made it the largest lawsuit of its kind. Walmart is the biggest private employer in the U.S. and the world’s largest company based on revenue.
With billions of dollars at stake for Walmart, the Supreme Court blocked the suit from proceeding as a class action in a 5-4 vote in June 2011. The late Justice Antonin Scalia argued there was no “convincing proof of a companywide discriminatory pay and promotion policy.”
Wednesday, September 9, 2020
Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)
The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?
This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.
Thursday, September 3, 2020
The appointment of female judges in South Africa is part of the transformative constitutional project. This chapter examines the question of gender equality and specifically the contribution of female judges to the transformation of the judiciary in. It explores whether women judges have, in their judgements, conscripted and interpreted the Constitution to highlight and guarantee its transformative potential and possibilities. The chapter attempts to answer two questions: What difference has the cohort of women judges made since their appointment in significant numbers post-1994? What is the impact of women judges on constitutional jurisprudence with respect to gender equality? I conclude that despite some overlap between the opinions of the female and male judges, the opinions of the female judges differ in some significant ways from their male counterparts. This difference is located in the distinct way that female judges have framed the legal issues. The chapter has pointed out that considerable institutional obstacles continue to impede women’s appointment to the judiciary, but once on the bench, they really make a difference.
Thursday, July 23, 2020
Federal Judge Rejects Weinstein Settlement, Saying it Fails to Adequately Compensate Victims and Creates Inequality Among Victims
A federal New York judge has thrown out a proposed $18.9 million settlement between convicted rapist and former movie producer Harvey Weinstein, and several women.
U.S. District Judge Alvin Hellerstein said the offer failed to adequately compensate many of the victims who allege they were sexually assaulted or raped by Weinstein.
He also faulted the money included in the settlement that would help pay Weinstein's legal bills.
In a telephone hearing, Hellerstein said it was unfair to include women who'd merely met Weinstein with those making more grievous charges, Reuters reported.
"Not every woman was captured in the same way," Hellerstein said. "Your settlement would create inequality among all of those people."
Under the proposal, which was drafted after years of negotiation, each woman would have been entitled to file a claim for up to $750,000. A sum attorneys representing alleged victims say doesn't come close to covering the pain, suffering and legal costs many of the women have faced.
Weinstein would not have admitted any wrongdoing under the settlement.
See also Wash Post, Judge Rejects Tentative $19M Weinstein Deal with Accusers
Monday, July 6, 2020
Law Professors File Amicus Arguing Question of Equal Rights Amendment Ratification is a Political Question
Julie Suk, Who Decides the Future of the Equal Rights Amendment?, Take Care blog.
In January 2020, the Virginia legislature voted to ratify the Equal Rights Amendment to the U.S. Constitution, almost forty years after the ratification deadline.
Has the Constitution been amended? In a lawsuit filed in DC federal court, Virginia says that the ERA is now part of the Constitution. But the defendant National Archivist won’t publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.
Who is right, Virginia or the Archivist? More importantly, who decides?
Last week, I filed an amicus brief in the case, joined by constitutional law colleagues Erwin Chemerinsky, Noah Feldman and Reva Siegel. Supporting none of the litigants, we argue that whether the ERA is part of the Constitution under these unprecedented circumstances is a political question for Congress in the first instance, not the courts or the Executive Branch.
Virginia, Nevada, and Illinois – the states that ratified after Congress’s deadline -- are asking a court to decide that the ERA was validly ratified and order the Archivist to publish it. Five states that did not ratify the ERA, or that ratified and rescinded their ratifications, have intervened. Their Answer tells the court that “[n]o state could have ‘ratified’ the Equal Rights Amendment in recent years because the deadlines for ratifying that amendment expired years ago.” The Archivist seems to think it’s up to the Executive Branch. If the court reaches the merits of the ERA’s validity, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA. But Congress should be the first mover on whether an amendment is ratified, particularly when states disagree.
The question of who decides matters, for the long-term legitimacy of the amendment in the eyes of the American people. In Congress, the House passed a resolution lifting the deadline on ratification in February, and a similar resolution has been introduced in the Senate with 48 sponsors so far. Thirty-five Senate seats are on the ballot this November. Consistent with Coleman v. Miller, which affirmed Congress’s power to determine reasonable time frames for the ratification of constitutional amendments, a court should not prematurely pronounce on whether the ERA has been or can yet be ratified.
Although the prospect of getting a federal judge to add the ERA to the Constitution now may have immediate appeal for ERA proponents, much can be gained by persuading Congress to lift the deadline, validate late ratifications, and reject rescissions. An amendment’s procedural path makes a difference to its meaning and transformative potential. The legislative process by which Congress is weighing the ERA’s timeliness provides opportunities for the ERA’s meaning to be updated for the twenty-first century. These opportunities help legitimize a constitutional amendment after a generation has gone by. Moreover, congressional debate about the broad range of issues implicated by the ERA– rather than court adjudication of the states’ Article V theory – is more likely to produce an ERA with the bite that its proponents seek.
Amicus Brief of Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, in Virginia v. Ferriero (D.D.C.) is here.
Thursday, July 2, 2020
Challenging the Idea of Women Judging Differently: The Jurisprudence of the First Woman Judge, Florence Allen
I've just posted my recent research on Judge Florence Allen, a law review article previewing the book in progress.
Tracy A. Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently (posted July 2, 2020)
A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.
This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), 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 in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.
Wednesday, May 27, 2020
One prosecutor in rural Maine is trying to change the norms of evidence around prosecutions for domestic violence and sexual assault—she wins, even when she loses. In the era of progressive prosecution, two different historical injustices are pulling prosecutors in opposite directions. Patriarchy has kept too many men from being prosecuted for gender-based crimes, while tough-on-crime policing has resulted in too many men being prosecuted for other crimes. This week we look at what it means to be a feminist prosecutor, and whether advocacy for more policing and prosecution on behalf of women can backfire for progressive causes. Guest voices include Maine District Attorney Natasha Irving, Villanova law professor Michelle Madden Dempsey, University of Colorado law professor Aya Gruber, and University of Maryland law professor Lawrence Sherman.
In Slate Plus, Sarah Lustbader, senior legal counsel at the Justice Collaborative and contributor at the Appeal, and Barry talk about whether the adversarial system of prosecution and defense makes the criminal justice system a bad way to pursue improvements in gender relations and reduce gender-based crime.
Friday, May 22, 2020
Kimberly Kessler Ferzan, #BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life, forthcoming NOMOS: Truth and Evidence
The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.
First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I spend additional time on one particular interpretation, an understanding that ties a cry for trust to a non-reductionist position with respect to the justification for believing testimony — that is, the idea that we have reason to believe someone, and are justified in so doing, just on her say-so. Although it is not my contention that this view is superior to other understandings, I believe it has received less attention in the literature and thus warrants additional examination. Next, I demonstrate how complicated our calculations are in life. Then, I turn to law. Here, I show how the various interpretations of #BelieveWomen raise distinct legal questions, but also note that flat footed understandings of this demand have created confusions. I suggest the law may meet the demands of #BelieveWomen through a corrective of the kind proposed by Miranda Fricker, evidentiary instructions, and (potentially by) alterations of the burden of proof, but that full belief may be too much to ask in this context. That is, law may be unable to accommodate a demand that we believe women, though it may be able to treat them respectfully as epistemic agents. In making this claim, I reject that increasing one’s credence in light of testimony “counts” as believing someone.
Second, I look at the presumption of innocence, noting that under the Supreme Court’s jurisprudence it amounts to no more than the requirement that in a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Additionally, following Larry Laudan, I endorse the view that the presumption in law is simply the claim that a juror has no evidence. But that is not what we want in life. The questions we want to ask in life are (1) what do we owe each other and (2) when there are contested factual situations, what is the default position. The presumption of innocence rhetoric assumes the answers to these questions.
Tuesday, May 5, 2020
Emma Decourcy, The Injustice of Formal Gender Equality in Sentencing, 47 Fordham Urb. L.J. 395 (2020)
Over the past 40 years, the entire United States penal population has grown at an unprecedented rate, and the rate of female incarceration is growing at twice the rate of men. Given that there does not appear to be an increase in female criminality that corresponds with the increase in female incarceration, it may be inferred that the rising rate of female imprisonment is the result of changes in criminal justice law and policy that prescribe simplistic, punitive enforcement responses to complex social problems.
While criminological research has paid increased attention to women and girls over the past decade, there is still much work left to be done. This Note aims to address a perceived gap in existing scholarship on female incarceration — existing research and proposed solutions have tended to focus on prison conditions and post-incarceration re-entry. While such work is imperative, an examination of the female pathways to incarceration is equally important. This Note argues reforms that target the front end of the incarceration process, namely sentencing, should be employed to address the rapidly rising rate of female incarceration.
Part I of this Note first provides a brief overview of the mass incarceration crisis in America and the changes in criminal justice policy, namely sentencing policy, to which it is attributed. Part I then discusses the impact of changes in sentencing policy on female sentencing outcomes. Part II proposes a framework of inquiry to be used by policymakers engaged in the creation of gender-responsive sentencing policies. This framework includes an analysis of the scope and nature of female incarceration, the correlates of female criminality, and the impact of existing gender-neutral policies on women involved in the criminal justice system. Finally, Part III discusses the efficacy of gender-neutral sentencing policies in action and identifies two policies that exemplify proper application of the framework presented in Part II.
Historic First SCOTUS Phone Arguments Involve Two Women Attorneys, Bringing Brief Gender Equality to the Judicial Forum
And with that, the Supreme Court made history Monday, hearing arguments by telephone and allowing the world to listen in live, both for the first time.
The arguments were essentially a high-profile phone discussion with the nine justices and two arguing lawyers. The session went remarkably smoothly, notable for a high court that prizes tradition and only reluctantly changes the way it operates.***
The court chose a somewhat obscure case about whether the travel website Booking.com can trademark its name for its first foray into remote arguments. The more high-profile arguments come next week.***
Roberts asked the first questions of government attorney Erica Ross, who was arguing that Booking.com should not be allowed to trademark its name because it is a generic term followed by “.com.” The justices then asked questions in order of seniority instead of the usual free-for-all, rapid-fire style that questions are asked in the courtroom. That meant Justice Brett Kavanaugh, who joined the court in 2018, went last.
One mild surprise came early in the arguments when Roberts passed the questioning to Justice Clarence Thomas, who once went 10 years between questions and has said he thinks his colleagues pepper lawyers with too many. But in this format, Thomas spoke up, asking questions of both lawyers. It was the first time in more than a year that he had asked a question.***
Several justices said “good morning” to the lawyers, a telephone nicety not often heard in the courtroom. And Roberts occasionally interjected to keep things moving, saying, “Thank you, counsel,” when he wanted Ross or Booking.com’s lawyer Lisa Blatt to stop talking so he could move to the next justice.
“It is a fundamental principle of trademark law that no party can obtain a trademark for a generic term like ‘wine,’ ‘cotton,’ or ‘grain,’” Ross told the justices, pointing them to an 1888 Supreme Court case in which the justices ruled that adding a word like ”Company” or “Inc.” to a generic term doesn’t make it eligible to be trademarked.
Some of the exchanges were playful, as happens from time to time in the courtroom. Breyer used pizza.com and cookies.com as examples of websites and discussed with Blatt searching on the internet for toilet paper.
The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: g ender equality.
Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.
Monday, April 27, 2020
Brooke Coleman, JOTWELL, The Real World: Reviewing Diane Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.
Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.
To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.
Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record. This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.
What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival.
Monday, April 13, 2020
Court Dismisses on Standing Grounds, Lawsuit Against NYU Law Review for Gender and Racial Preferences for Staff and Articles
The New York University Law Review has won dismissal of a suit challenging preferences given to women and minorities in selection of members and choice of articles.
U.S. District Judge Edgardo Ramos tossed the suit Tuesday by Faculty, Alumni and Students Opposed to Racial Preferences but allowed the group to file an amended complaint. Ramos said the FASORP had not demonstrated standing to sue and had not stated a viable claim for relief.
Law360 has coverage.
The FASORP had alleged that its members were being subjected to race and sex discrimination when they submitted articles for publication, and when their work was judged and edited by “less capable students” who won spots on the law review through preferences.
The New York University Law Review has 50 spots available each year. Fifteen students are selected based on a writing competition, 15 are selected based on their first-year grades, and eight are based on a combination of both, Ramos said in his March 31 opinion. The remaining 12 slots are filled by the law review’s diversity committee.
Authors of articles submitted for publication in the law review are invited to include demographic information that includes their race, sexual orientation and gender identity. The law review says it is committed to publishing scholarship by “authors from underrepresented backgrounds.”
The FASORP had sued for alleged violations of Title VI of the Civil Rights Act of 1964 and Title IX of the of the Education Amendments of 1972. Title VI bars racial and national origin discrimination in programs receiving federal financial assistance, while Title IX bars discrimination in education programs receiving federal assistance.
Ramos found several problems with standing.
The FASORP had failed to identify even one injured member with specific allegations of harm, Ramos said. The FASORP also failed to plead a concrete and particularized injury or a real or immediate threat of repetition of that injury, he said.
Tuesday, March 31, 2020
5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court
A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.
The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.
In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.
"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday.
Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.”
Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic.
Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.
Thursday, March 19, 2020
The Legal and Ethical Implications of Non-Disclosure Agreements and Arbitration Clauses in the MeToo Era
We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. Now. But often these incidents took place many years ago, and we are just learning why and how. Secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims. Oftentimes through private and alternative dispute resolution (ADR) processes such negotiation, mediation, or arbitration. In most cases, the parties were represented by lawyers, loyal advocates, who are also officers of the court; third-party neutrals serving as mediators or arbitrators administered the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large. This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predators, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for non-disclosure leaves similarly situated non-parties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.
Thursday, March 5, 2020
The Navajo Nation Council confirmed Tina Tsinigine as an associate justice for the tribe's Supreme Court.
Tsinigine will serve alongside Chief Justice JoAnn Jayne and Associate Justice Eleanor Shirley, marking the first time three women will serve simultaneously on the three-member court.
It is an outcome that Delegate Mark Freeland noted before casting a vote in favor of Tsinigine's appointment.
"That is a testament for Navajo women. … Our women are strong," Freeland said.
The confirmation ends nearly a decade-long vacancy on the high court and Tsinigine will serve a probationary period of two years then undergo the process for permanent appointment.
The council considered the legislation for Tsinigine's appointment during the winter session on Jan. 28 in Window Rock, Arizona.
Tsinigine spoke to delegates about her career, which started as a mathematics instructor for the Tuba City Unified School District in Arizona before she earned a master's degree in Indigenous Nations Studies from the University of Kansas in 2003 followed by a Juris Doctor from the University of New Mexico School of Law in 2007.
Friday, February 28, 2020
On Monday morning, a Manhattan jury found Harvey Weinstein guilty of two of the five charges prosecutors brought against him: criminal sexual act in the first degree and rape in the third degree. The jury also acquitted Weinstein of two counts of predatory sexual assault, the most serious charges prosecutors had brought against him, which would have required the jury to conclude that Weinstein had committed first-degree sex crimes against two or more victims. In other words, the verdict is a mixed bag: Harvey Weinstein has now been convicted of rape. The counts that he was acquitted on, however, seem at odds with the number of allegations that have publicly surfaced against him.
This was just one trial, set up to evaluate a specific set of crimes and circumstances. But it has been impossible to think of it as anything other than a referendum on the entire contemporary #MeToo movement. Weinstein was the person whose long-ignored abuses and alleged assaults spurred thousands of women to reassess their own experiences. Donna Rotunno, Weinstein’s lead attorney, has spent her weeks in the spotlight accusing rape survivors of failing to take responsibility for their own mixed signals and explaining how the #MeToo movement has denied men their due process rights, even as her own client was enjoying his in the courtroom. Since the fall of 2017, when dozens of women first shared their stories about Weinstein, countless defenses and dismissals of the sexual misbehavior of other men have rested on the conviction that if sexual offenses don’t rise to the level of Weinstein’s misbehavior, they don’t merit consideration under the purview of #MeToo. Weinstein’s trial morphed into the ultimate #MeToo test: If a jury couldn’t convict Weinstein, the benchmark against which all other alleged abusers are now measured, what hope does any other survivor have of holding a rapist accountable in the criminal justice system?
On Monday, the system worked.
Jurors found Harvey Weinstein, a disgraced media mogul who has been accused of assault or harassment by at least 100 women, guilty of sexual assault and rape. His verdict, along with that of comedian Bill Cosby in 2018, sends a strong message that the jurors are capable of believing survivors over powerful men. A legal process in which less than 1% of sexual assault cases lead to convictions sided with survivors over a millionaire whose sexual misconduct has been an open secret for decades.
It was empowering. But while Weinstein’s guilty verdict is progress, it won’t fix a deeply broken system.
Many experts and survivors told HuffPost they thought the conviction was important but ultimately, and unfortunately, symbolic. While high-profile cases help shift cultural attitudes toward sexual assault, that doesn’t always change how the legal system treats average victims whose cases may not get the widespread media attention, the high-profile legal representation or the support of multiple accusers that the Weinstein trial did. ***
“A high-profile conviction just says that, in this case, there was enough to convict this person,” said Leigh Goodmark, the director of the gender violence clinic at the University of Maryland Carey School of Law. “But it doesn’t make any grand pronouncements for me about the system’s friendliness to people who’ve been raped and sexually assaulted.”***
There is silent, everyday violence and suffering committed against women that just don’t meet the threshold of public interest,” said Aya Gruber, a law professor at the University of Colorado.
“And Harvey Weinstein going to jail isn’t going to do anything for them.”
In the swirl surrounding Harvey Weinstein’s mixed conviction and acquittal on rape and related charges, it can be easy to overlook what hasn’t changed in the wake of #MeToo. The movement has put a spotlight on the starkly divergent views that Americans hold about what kinds of behaviors cross the line into unwanted — and, at times, criminal — acts, and about what should happen when they do.***But Weinstein’s trial and all the other changes #MeToo has brought won’t put an end to the roiling debates about what counts as consent and how we should judge long-ago assaults. We’ll continue to disagree, too, about what legal and social sanctions should apply to conduct that is “bad but not as bad” as Weinstein’s.
This is a good thing. As uncomfortable and frustrating as these conversations can be, we cannot afford to stop talking about what we expect from each other when it comes to sex and to workplace interactions.
Wednesday, February 12, 2020
In the #MeToo era, women who make sexual misconduct allegations against powerful men can count on public support, but the rape trial in New York of former movie producer Harvey Weinstein has shown that accusers should brace for far less friendly treatment in a court of law. ***
During the trial that began on Jan. 6, Weinstein’s attorneys have questioned his accusers about their appearance at the time of the alleged attacks, their drinking habits and whether they used Weinstein to land a Hollywood acting job.
“Just because we live in the Me Too era doesn’t mean you don’t attack in defense of your clients,” said Tom Mesereau, who represented comedian Bill Cosby in his sexual assault trial.***
Legal experts said the movement has complicated the work of defending someone like Weinstein because a jury is more likely to sympathize with the alleged victims.
But accusers should not expect a shift in legal standards or tactics, experts said.
***As more survivors have come forward to call out perpetrators of sexual assault and harassment, a legal backlash to the MeToo movement has been brewing. While it’s well known that powerful men have preemptively quashed accusations with payoffs and nondisclosure agreements, less well known is that dozens of men who claim they are victims of false allegations have sued their accusers for speaking out publicly. The plaintiffs include celebrities and college students, professional athletes, professors, and politicians. At least 100 defamation lawsuits have been filed against accusers since 2014, according to Mother Jones’ review of news reports and court documents. Prior to October 2017, when the MeToo hashtag went viral, almost three in four claims were brought by male college students and faculty accused of sexual misconduct; they usually sued their schools as well as their accusers. Since MeToo took off, cases have been filed at a faster rate, with three in four coming from nonstudents.
This list of cases is not comprehensive, but attorneys confirm that these suits are becoming more common. The Time’s Up Legal Defense Fund, which helps workplace harassment victims pay their legal bills, has assisted 33 accusers, including Lopez, who have been sued for defamation in the past two years—nearly 20 percent of its caseload. As the number of cases grows, so does the chilling effect: Defamation lawsuits are being used “more and more to try to silence people from coming forward,” says Sharyn Tejani, director of Time’s Up. “It was not something that we expected would take as much of our time and money as it has.”
Bruce Johnson, a Seattle lawyer who specializes in First Amendment cases, says that before fall 2017, he was contacted twice a year by women who were worried about being sued if they spoke out about sexual violence or harassment or who were threatened with legal retribution for doing so. Now it’s every two weeks, he says. Alexandra Tracy-Ramirez, a lawyer who represents both survivors and accused perpetrators in campus-related cases in Colorado and Arizona, has also noticed more accusers speaking out and facing the prospect of being sued.