Thursday, February 17, 2022
New Book: "Civil Rights Queen: Constance Baker Motley" -- the First Black Woman Appointed to the Federal Judiciary
New Book, Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality
The first major biography of one of our most influential judges—an activist lawyer who became the first Black woman appointed to the federal judiciary—that provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century.
“A must read for anyone who dares to believe that equal justice under the law is possible and is in search of a model for how to make it a reality.” —Anita Hill
Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP's Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary.
Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions--how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.
Thursday, February 3, 2022
Study Shows that Women and Non-White Judges are Substantially More Likely to Rule in Favor of Plaintiff Reaching Discovery
Stephen Burbank & Sean Farhang, Politics, Identity, and Pleadings Decisions on the U.S. Courts of Appeals, U Penn. L. Rev. (forthcoming
We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. ***
In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample.
The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims.
Our results for gender contradict conventional wisdom in the literature that women judges’ preferences differ from men’s only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs’ access to discovery.
Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals.
Monday, January 31, 2022
The Massachusetts Supreme Court published Commonwealth v. Paige in December 2021. The case involved the 1987 killing of Dora Brimage for which the defendant had been indicted in 2016. The defendant and his brother drove Dora home from a party. She was found murdered the next day at a construction site where defendant's brother worked. She died of blunt force injuries to her head and strangulation. The case remained unsolved until 2013 when federal funding supporting the use of DNA testing to solve "cold cases" was used to test sperm located on the victim. The defendant was subsequently charged with felony-murder in the first degree with a predicate offense of aggravated rape. The Supreme Court upheld the conviction after considering several issues on appeal. The case is quite remarkable for the concurring opinion written by Justice Elspeth B. Cypher contextualizing the case as femicide within a larger epidemic of violence again women. The opinion is heavily excerpted below with citations and footnotes largely omitted:
I write separately to more firmly reject our reasoning in Commonwealth v. Scesny, 472 Mass. 185, 34 N.E.3d 17 (2015), and to address the continuing epidemic of violence against women, including femicide. We have not used the term “femicide” in our case law, but I think it should be recognized as a distinct phenomenon.
Femicide is the intentional killing of a woman because she is a woman. Because the victims of femicide are targeted based on their sex, femicide may be understood as a type of hate crime. The violence of these offenses serves to terrorize the victims and, thus, to subjugate women as a group. As such, hate crimes exact a greater toll on society and women, both individually and as a group, than isolated incidents of violence.
Femicide also exists on a continuum of sexual violence, including sex trafficking, rape, aggravated rape, and sexual harassment. When any one of these forms of sexual violence results in death, a femicide has been committed. Femicide is thus “the most extreme form of sexist terrorism, motivated by hatred, contempt, pleasure, or a sense of ownership of women.” J. Caputi & D.E.H. Russell, Femicide: Sexist Terrorism against Women, in Femicide: The Politics of Women Killing 13, 15 (J. Radford & D.E.H. Russell eds., 1992). Where, as here, the jury apparently found that the victim’s murder stemmed from the same criminal episode as her aggravated rape, I believe it is appropriate to refer to her killing as a femicide.
[Omitted discussion of the legal treatment of women historically as context for femicide, including the legality of marital rape and doctrines like the "heat of passion," which implies that the victim, by committing adultery, is partly to blame for the defendant’s violence, and that the defendant was excused in the killing."]
To use the term “femicide” also acknowledges its prevalence in our society at large. Reliable data on the incidence of femicide is unfortunately lacking. No official sources directly study male-on-female homicide or its motivations. An analysis of cross-sex homicide rates generally, however, suggests that femicide is on the rise in the United States. See Violence Policy Center, When Men Murder Women: An Analysis of 2019 Homicide Data 2 (Sept. 2021) (“Since reaching its low ... in 2014, the rate [of women murdered by men in incidents with one victim and one offender] has increased, with 2019’s rate ... up nine percent since 2014”).
The Federal Bureau of Investigation (FBI) Uniform Crime Reporting (UCR) Program provides the primary source of data on such homicides. * * * The UCR shows that in the year 2019, there were 1,647 known killings of women committed by men, compared to 477 killings of men by women. The year before, there were 1,731 killings of women committed by men. While these statistics paint a blurry portrait of femicide in the United States, they demonstrate that its occurrence is significant.
The paucity of statistics is partly to blame for femicide’s lack of recognition. More importantly, femicide also is ignored because of its finality. As Jill Radford appropriately notes, “When a woman is killed, there may be no survivor to tell her story.” Radford, Introduction, Femicide: The Politics of Women Killing at 4. While there may be valid reasons for society’s reluctance to relive the violent murders of women, the failure to do so risks femicide being forgotten or denied.
It is in the context of this finality that I wish to make clear that I reject the reasoning in Commonwealth v. Scesny, 472 Mass. at 193-194, 34 N.E.3d 17. In both Scesny and the present case, the evidence tended to establish that in each case, the sexual encounter with and the killing of the victim were contemporaneous. While it is certainly true that a killing may follow a consensual sexual encounter, that does not appear to have occurred in either case; each woman was apparently murdered so immediately after her rape that neither woman even had the chance to stand up after the assault. Id. at 189-190, 34 N.E.3d 17. Nonetheless, in Scesny, we concluded that there was insufficient evidence of rape because its traditional indicia, such as torn clothing or injured genitalia, were absent. Id. at 193, 34 N.E.3d 17.
This reasoning obscures the context in which the rape occurred: femicide. When a killing takes place following a rape, the victim no longer can testify about the absence of consent in the sexual encounter. She effectively has been silenced. In cases such as these, the jury must be permitted to infer from the evidence of a killing that the sexual encounter was nonconsensual. This is not a “piling [of] ‘inference upon inference’ ” or “conjecture and speculation.” * * * These are reasonable inferences that the jury are entitled to draw.
Additionally, such inferences wholly are in line with our previous holdings that consent is not a defense to serious injuries allegedly inflicted during sexual encounters. Analogously, consent is not present where the jury find that the sexual encounter took place at the same time as a violent killing.
I also wish to address directly the implication that prostituted women are more likely to consent to a sexual encounter before being killed. A prostituted woman is no more likely to do so than a nonprostituted woman. Even outside the context of homicide, evidence that a woman is prostituted does not decrease the likelihood that she was raped. Rather, studies suggest that prostituted women are more likely to be raped than others. * * * Additionally, evidence suggests that homicides occur with similar frequency alongside prostitution as they do alongside rape.
Regardless whether the victims in Scesny and the present case were prostituted, I agree with the court that the jury should be permitted to infer that a sexual encounter was nonconsensual where it occurred contemporaneous with a killing. Permitting the jury to make such a finding acknowledges that femicide and rape both exist on a continuum of sexual violence.
Monday, January 24, 2022
The ACLU summarizes the legal issues raised in Brandt v. Rutledge (Eighth Circuit) and their importance to the plaintiffs:
Four families of transgender youth and two doctors have challenged an Arkansas law that would prohibit healthcare professionals from providing or even referring transgender young people for medically necessary health care. The law would also bar any state funds or insurance coverage for gender-affirming health care for transgender people under 18, and it would allow private insurers to refuse to cover gender-affirming care for people of any age. The lawsuit, filed in federal court, alleges that House Bill 1570 is a violation of the U.S. Constitution.
Some of the families who have sued the state are considering leaving their homes, their jobs, their extended families, and their communities, to ensure their children are able to access gender-affirming care. The care that would be banned by the Arkansas law has been shown in recent studies to dramatically reduce depression and suicidal ideation in transgender young people with gender dysphoria.
The N.Y. Times gave in-depth coverage of the plaintiffs and the uncertainties and anxieties that the underlying statute has created in their day-to-day lives. The Eastern District of Arkansas had enjoined the law concluding that:
The Court finds the Act's ban of services and referrals by healthcare providers is not substantially related to the regulation of the ethics of the medical profession in Arkansas. Gender-affirming treatment is supported by medical evidence that has been subject to rigorous study. Every major expert medical association recognizes that gender-affirming care for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people. Act 626 prohibits most of these treatments. Further, the State's goal of ensuring the ethics of Arkansas healthcare providers is not attained by interfering with the patient-physician relationship, unnecessarily regulating the evidence-based practice of medicine and subjecting physicians who deliver safe, legal, and medically necessary care to civil liability and loss of licensing. If the Act is not enjoined, healthcare providers in this State will not be able to consider the recognized standard of care for adolescent gender dysphoria.
This week, amicus briefs were filed in the matter, including one filed by bioethicists and health law scholars and one filed by Lambda Law and numerous women's rights organizations.
Wednesday, January 19, 2022
How Judges Should Apply the Exceptions to the Hague Abduction Convention to Protect Victims of Domestic Violence
Merle Hope Weiner, You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence, 28 UCLA Women's L. J. 223 (forthcoming)
This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return. The trial judge decides whether a child is returned to the place from which the domestic violence victim fled or whether a child is allowed to remain in the United States pursuant to an exception to the Hague Convention’s remedy of return. This Article canvases the arguments that attorneys make to defeat the application of article 13(b), and refutes them by drawing upon social science, the Guide to Good Practice, its sanctioned Australian Bench Book, case law, and common sense. The Article also argues that if a trial judge cannot grant the article 13(b) exception solely because of unwarranted legal obstacles, the judge should disregard the law. This part of the Article builds upon Jeffrey Brand-Ballard’s book, Limits of Legality: The Ethics of Lawless Judging
Wednesday, January 12, 2022
Amicus Brief in Virginia v. Ferriero (D.C. Cir.)
SUMMARY OF ARGUMENT
The fight for constitutional equality is a long-term project, andprogress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women.
Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.
In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.
This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978.
More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change.
Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.
Tuesday, January 11, 2022
Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment in Spain
The aim of this paper is to provide an explanation of the variation in lower pretrial court judicial decisions over gender-violence cases, under a civil-law system. Despite the typical anonymity of lower-court judges in such legal systems, we are able to exploit a natural experiment in Spain that allows us to estimate the effect of judges’ gender, career incentives, and policy preferences on decisions on restraining orders for victims of gender violence. Although the literature has found ample evidence of gender and ideology effects on judicial behavior when women’s rights are at stake, we argue that due to career and promotion dynamics, career incentives moderate the effect of gender and policy preferences on such decisions. We find that the probability to grant a restraining order to a victim is higher among female judges than male judges, and that left-leaning judges also tend to grant restraining orders at higher rates. However, we also observe that these mechanisms are moderated by career incentives, to the point of blurring their effects when career pressures are high. These findings are a relevant contribution to the understanding of the mechanisms behind judicial inequality under civil-law systems, where judges’ attributes tend to be unobservable by institutional design.
Tuesday, January 4, 2022
By: Sital Kalantry
Published in: Cornell Law Review, Vol. 107, No. 1, 2021
Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.
Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.
Monday, January 3, 2022
The Michigan Court of Appeals vacated Kathie Ann Klages' conviction for making a false statement in the investation of Larry Nassar's sexual abuse. Michigan Radio provides context to the case:
A jury convicted Klages last year of two counts of giving a false statement to a peace officer after determining she lied to investigators in 2018 when she told them she had no memory of two teenage gymnasts telling her in 1997 that Nassar's so-called treatment involved genital penetration.
A judge sentenced Klages to 90 days in jail and 18 months probation, but Klages earned early release from probation at the request of her supervisors who described her as cooperative.
The full case can be accessed here. The opinion summary previews:
The Michigan Attorney General charged Kathie Ann Klages with making a false statement to a peace officer investigating Michigan State University’s knowledge of the sexual abuse perpetrated by Dr. Larry Nassar. Klages made the allegedly false statement in 2018, after Nassar had been convicted, sentenced, and imprisoned. The statement concerned Klages’s memory of conversations with two gymnasts that had taken place 21 years earlier, in 1997. Klages denied any recollection of having been told by the gymnasts that Nassar’s “treatment” had included digital-genital penetration. A jury disbelieved this testimony and convicted her of two counts of lying to a peace officer, MCL 750.479c.
Klages raises several challenges to her convictions. We find one dispositive. No evidence supported that Klages’s false statement regarding the 1997 conversations was material to the criminal investigation conducted in 2018. We vacate her convictions and remand for dismissal of the charges.
Wednesday, December 15, 2021
Chavez-Chilel v. US (3d Cir. Dec. 6, 2021)
Finding substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a particular social group (“PSG”) for asylum or withholding purposes, we will deny the petition.***
At her merits hearing, Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. She explained that she feared she would be sexually assaulted or killed if she was removed to Guatemala. The IJ denied Chavez-Chilel’s applications for asylum and withholding of removal, finding that, while she was credible and that her rape qualified as past persecution, her proposed PSG, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The IJ concluded that this PSG was not “sufficiently particular” because there was no evidence that Guatemalan women share a “unifying characteristic” or present a “unified target” for persecution. ***
Substantial evidence supports the BIA’s and IJ’s finding that “Guatemalan women” is not a cognizable PSG. A PSG must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” S.E.R.L., 894 F.3d at 540 (quotation marks and citation omitted). Particularity “addresses the outer limits of a group’s boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct.” Id. (quotation marks omitted). To satisfy the particularity requirement, “an alleged social group [must] have discrete and . . . definable boundaries that are not amorphous, overbroad, diffuse, or subjective, so as to provide a clear standard for determining who is a member.” Id. at 553 (quotation marks and citation omitted).
Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women). Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), ChavezChilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum.
H/t Brian Soucek
Monday, December 13, 2021
Greer Donley wrote an Op. Ed on December 9 for the Pittsburgh Post Gazette stressing the importance of a pending Pennsylvania abortion case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. This case considers, among other issues, whether "the Pennsylvania Medicaid abortion coverage ban violate[s] the Pennsylvania Constitution’s explicit guarantee of equality on the basis of sex contained in Pa. Const. art. I, § 28 and its separate equal protection guarantee contained in Pa. Const. art. I, §§ 1, 26 & art. III, § 32?" Greer summarizes:
The case challenges a Pennsylvania law that bans Medicaid funds from being used to cover abortion except in the case of rape, incest or to save the pregnant person’s life.
Importantly, the litigants are asking the court to recognize the right to abortion under the Pennsylvania Constitution. If the court recognizes this right — which it has not previously recognized — then even if Roe is overturned, the Pennsylvania Constitution will step up to protect the right to abortion in our state.
Moreover, this protection will survive even if voters elect a Republican governor who is willing to sign a strict abortion ban into law. Why? Because that theoretical ban would be unconstitutional under our Constitution even if it is no longer unconstitutional under the federal Constitution.* * *
[P]regnant people need more than the right to abortion; they need the ability to access it. If the Pennsylvania Supreme Court also invalidates the state law banning Medicaid funds from being used for abortion, it would help poor women access the abortion care they need.
The full Women's Law Project Brief is available here. This case is a powerful example of professors on the ground in Pennsylvania working actively with non-profits to seek law reform.
Tuesday, November 30, 2021
The Yurok Nation is the largest tribe in California, nestled along the Klamath River on the northern Pacific coast. As a sovereign nation, the Yurok Tribe manages its own court system and is able to apply its specific cultural lens to its functioning. Chief Justice Abby Abinanti’s court looks very different from a traditional state, county, or federal court. Judge Abby—as the community calls her—sees herself as a community member, not as a punisher. In her court, the person facing charges helps to decide how they should be held accountable. “We’re a culture that’s responsibility based,” she says. “You have a responsibility to and a responsibility for. Yes, there is a consequence for misbehavior, but they get to help decide how to address it because it was their mistake. That’s the whole thing about humans—we’re pretty mistake prone.”First, Judge Abby gives people the choice of going to trial or working with her to come to a mutually agreeable solution. The majority of people choose the latter option. Second, the individual helps decide how they should be held accountable. In a fishing violation, for example, someone may choose to pay a fine, or they may donate fish to a ceremony or the elders program. In child support cases, Judge Abby works with parents to come to a mutual agreement, which may include requiring the noncustodial parent to provide babysitting, rides to town, or wood or fish to the custodial parent. These noncash payment solutions are particularly valuable in a community with concentrated poverty: 41 percent of families with children and 53 percent of families headed by single mothers in the tribal area live below the federal poverty level. Judge Abby notes that off-reservation courts often garnish wages to resolve child support cases. According to the most recently available Census Bureau data, the average child support payment in the United States is $430 per month.. . .Unlike the U.S. legal system, which Judge Abby calls “stranger justice,” the Yurok system prioritizes the agency of the individuals involved. “What I’m trying to do is say to someone, ‘You have exhibited behavior that is not okay. How are we going to help you get past that? Because we want you in [our] community.’” The tribal court sees a variety of cases—from environmental violations and domestic violence to child support and legal guardianship—but their jurisdiction is limited. The state has criminal jurisdiction over people residing on reservations, including tribal members. In most states, either the federal government or tribes have jurisdiction over their members. But California—along with Alaska, Minnesota, Nebraska, Oregon, and Wisconsin—is a Public Law 280 (PL 280) state. PL 280 was passed in 1953 without consulting tribes, and it gives state governments jurisdiction over all criminal matters on reservations. Tribal advocates argue that PL 280 violates sovereignty. The statute is often cited as a reason that tribes are denied funding for their own systems of justice.. . .The Yurok aren’t alone in revitalizing traditional forms of justice. In Southern California, Quechan tribal judge Claudette White pioneered the use of tribal values and customs in legal proceedings to reduce incarceration rates. She was highlighted in the 2017 documentary Tribal Justice, alongside Judge Abby. The Navajo Nation Peacemaking Program, which prioritizes nonpunitive dispute resolution and restorative justice, has been a parallel entity to the Western-style court for four decades. It is the largest tribal justice system in the world. These tribal communities demonstrate that we can implement alternatives to America’s violent and racist carceral system. And these alternatives are urgently needed. “Your way of doing things is not working,” Judge Abby says. “So you might want to look at how we managed to survive for a few thousand years.”
Wednesday, November 24, 2021
Congress Proposes Giving Plaintiffs the Option to Reject Mandatory Arbitration for Sexual Harassment and Assault Cases
Lily, Wash Post, Forced Arbitration Can Shield Workplace Harassers, Legal Experts Say
On Tuesday, they testified before the House Judiciary Committee. All four women said they reported the behavior to someone at their company. All four women said they were retaliated against for speaking up. And all four women went through mandatory arbitration — an often confidential process that has, for many companies, become the primary way of handling employee disputes.***
Mandatory arbitration, a process that requires employees and consumers to mediate their grievances with the company in a closed-door forum rather than go to court, is now the norm for many businesses, especially nonunion workplaces.
But more than four years after the #MeToo movement propelled a nationwide reckoning of sexual abuse in the workplace, critics of mandatory arbitration say it has protected toxic, abusive workplaces and the people who run them. Changing this particular process is crucial to making substantive strides on workplace harassment, they say.
Supporters of arbitration, meanwhile, claim that the process is a faster, less expensive alternative for workers than filing a lawsuit in court, and could be less intimidating. But workers rights groups and trial lawyers have long argued that the process isolates workers and leaves them at a major disadvantage in winning remedy or compensation from their employers.
In Congress, there is a bipartisan push to amend arbitration rules. On Wednesday, the House Judiciary Committee passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would offer workers the option to resolve their complaints through arbitration or the courts. The Senate Judiciary Committee recently passed an identical version of the bill.
The bill would give workers with sexual abuse claims against their employers the choice to either go through arbitration or pursue their claims in court.
Rachel Wechsler, Victims as Instruments, Washington L. Rev. (forthcoming)
Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.
This Article is the first to analyze the treatment of crime victims through the lens of moral philosophy and liberal legal theory. It demonstrates that the application of these concepts is helpful in evaluating the legitimacy of the state’s approach to GBV victims. Following this analysis, it proposes a normative shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect.
Monday, November 22, 2021
The Rutgers Women's Rights Law Reporter is hosting its Winter 2021 Symposium on December 2, 2021 from 3:00 - 5:00. The program is titled Feminism in the Law: An Exploration of Justice Ginsburg's Legacy. The program is both in-person and virtual. Here is the link to register: https://law.rutgers.edu/WRLR-Symposium-RBG-Hall-Dedication. Here is a list of speakers:
- Professor Jane Ginsburg - Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School. Daughter of Ruth Bader Ginsburg.
- Director Rachel Wainer Apter - Director of the New Jersey Division on Civil Rights. Associate Justice nominee for the Supreme Court of New Jersey.
- Reva Siegel - Nicholas deB. Katzenbach Professor of Law at Yale Law School
- Jhuma Sen - Associate Professor at Jindal Global Law School and Assistant Director, Centre for Human Rights Studies at O.P. Jindal Global University
- Chase Strangio - Deputy Director for Transgender Justice with the ACLU’s LGBT & HIV Project
- Chalana Scales-Ferguson - Director of Academic Success at the University of Missouri - Columbia School of Law
- Earl Maltz - Distinguished Professor at Rutgers Law School, Camden, New Jersey
Moderator: Dean Suzanne Kim - Associate Dean of Academic Research Centers, Professor of Law, and Judge Denny Chin Scholar at Rutgers Law School.
Tuesday, November 16, 2021
BOISE, Idaho (AP) — A former Idaho inmate who became the first person to receive court-ordered gender confirmation surgery after suing the state Department of Correction is asking a judge to order the state to pay more than $2.8 million in attorney fees and other costs associated with the case.
The state has until Nov. 22 to respond to the motion from Adree Edmo, who is no longer in state custody. Gov. Brad Little's office declined to comment on the case because it is still moving forward in court.
Edmo sued the state of Idaho and the Idaho Department of Correction’s health care provider, Corizon Health Inc., in 2017 saying that they violated her Eighth Amendment right against cruel and unusual punishment by not providing the surgery. Prison doctors had diagnosed Edmo in 2012 with gender dysphoria, a condition in which the dissonance between a person’s gender identity and the gender they were assigned at birth is significant and hurtful. But medical professionals disagreed about whether Edmo needed gender confirmation surgery, leading to the lawsuit.
. . .
Edmo’s legal fight didn’t end after her surgery, however, Whelan noted, it continued until October 2020, when the Supreme Court said it would allow the appellate court ruling to stand without review.
. . .
Courts generally award attorney fees to the winning party based on the “customary amount” an attorney would charge for the work. But in certain cases — such as when the case is considered “undesirable,” or especially complex, or when the attorneys have extensive experience or performed exceptionally well — the court will allow the customary amount of fees to be doubled. Edmo is asking for double the customary amounts in her case.
“Here, nothing about this case was run-of-the mill,” Whelan said. Edmo had no attorney when she started the case, and no Idaho attorneys were willing to take on the case on their own.
Excerpted from Believing: Our Thirty-Year Journey to End Gender Violence by Anita Hill, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2021 by Anita Hill.
“Not that bad” reflects the attitude that survivors often internalize; that our abusers’ behaviors “were not the worst thing that ever happened to us” serves as a coping mechanism that is problematic. In her anthology Not That Bad: Dispatches from Rape Culture, the writer, public intellectual, and cultural critic Roxane Gay writes with painful eloquence about how for a long time she minimized the gang rape she survived as a teenager. And the heartrending stories in her book from other women who experienced gender‑based violence include scores who remained friendly or intimate with harassers and abusers. Not That Bad poignantly reminds us of the way we deny our pain to keep living. Convincing herself that her experience was not as bad as others’ was Gay’s way of managing her trauma “instead of allowing the magnitude of it to destroy” her. But as Gay points out, this defense mechanism comes at a cost. In her case, as with countless other victims, it numbed her to the pain of her other bad experiences, as well as the trauma others suffered. “The surface of my empathy became callous,” she writes.
Looking back at how the Senate exchange went, I wonder, was Specter gaslighting me and the public, or was he mansplaining? I’ve concluded that he was doing both. If gaslighting was his intent, he was manipulating me (and the public) into questioning the reality and my perception of my own experiences. Given his condescending tone, Specter was also mansplaining—trying to convince us all that he knows better than me how a woman experiences sexual harassment. Mansplaining was the technique, and gaslighting was the goal. Both are forms of denial employed to discount claims of abuse, and they deserve to be called out because they prevent women from being heard and believed when they testify about abuse. Both tactics foster self‑doubt, coaxing victims into thinking that coming forward is pointless, that no one will care.
. . .
How do three simple words, “not that bad,” become so powerful? They gain steam when they are absorbed in all of our social systems, permeating survivors’ minds. The hold that those three little words have comes from hearing them repeated multiple times over the course of a lifetime. The exact language may change, as do the circumstances, but the message that your hurt is of no consequence, so back off, remains the same. Schools deny and neglect gender violence, undermining survivors’ confidence and secure identity even as small children. The same attitude exists in the workplace, which can lead survivors to feel self‑doubt. Individual denial breeds institutional denial, and survivors pay the price. Specter’s words were aimed at persuading me to doubt my significance. His strategy was to convince other potential witnesses and the American public that the stories survivors seek to share and the people who want to hear them are of no importance. Specter’s belittlement of my pain had one clear beneficiary, Clarence Thomas. To abusers, harassers, and rapists, “not so bad” is an absolution and, in Thomas’s case, an assurance that the Senate confirmation process would protect him. To survivors, these words are like a dagger.
Thursday, November 11, 2021
Veterans Day from a Gender & Law Perspective: Equality, Discrimination, Preferences, Family, Health, Assault, and the Draft
Here is an overview of some of the scholarship and current legal movements regarding gender, veterans, and the miltiary:
The Supreme Court's classic case upholding veterans' preferences despite their disparate impact against women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).
United States v. Virginia (VMI), 518 U.S. 515 (1996) (Ginsburg, J.) (requiring state male-only military college to admit women equally to VMI)
US v. Briggs, 592 U.S. ___ (Dec. 10, 2020) (holding that military rape cases have no statute of limitations)
Gender & the Law Prof Blog, SCOTUS Refuses to Hear Challenge to Male-Only Draft but 3 Justices Dissent (June 15, 2021)
Gender & the Law Prof Blog, Federal Judge Holds Male-Only Military Draft Violates Equal Protection (Feb. 26, 2019)
Gender & the Law Prof Blog, 9th Circuit Hears Challenge to Men Only Draft
Gender & the Law Prof Blog, Senate Overwhelming Votes to Require Women to Register for Draft (2016)
Gender & the Law Prof Blog, Justice Ginsburg's Legacy and the Draft Case
Jamie Abrams, editor at the Gender & Law Prof blog, Examining Entrenched Masculinities Within the Republican Government Tradition, 114 West Va. L. Rev. (2011).
Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 93 (2021).
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).
Melissa Murray, Made With Men in Mind: The GI Bill and the Reinforcement of Gendered Work After World War II, in Feminist Legal History (Tracy Thomas & Tracey Jean Boisseau eds. 2012).
Congress' Deborah Sampson Act Signed Into Law (2021): to improve the benefits and services provided by the Department of Veterans Affairs to women veterans, and for other purposes.
H.R. 2982, Women Veterans Health Care Accountability Act: To direct the Secretary of Veterans Affairs to conduct a study of the barriers for women veterans to health care from the Department of Veterans Affairs.
Gender & the Law Prof Blog, How to Reduce Discrimination in Veterans' Preferences Laws, featuring Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)
Gender & the Law Prof Blog, Parental Right Issues in Military Academies Disproportionately Harms Women
Wednesday, November 3, 2021
The U.S. Senate confirmed Vermont Supreme Court Justice Beth Robinson to the 2nd U.S. Circuit Court of Appeals at New York on Monday, making her the first openly LGBTQ woman to serve on a federal appeals court.
Robinson was one of two nominees confirmed to federal appeals courts, Law.com reports. The other is Toby Heytens, former Virginia solicitor general, confirmed to the 4th Circuit at Richmond, Virginia.
Robinson is a 1989 graduate of the University of Chicago Law School. She has served as an associate justice on Vermont’s top court since 2011. Before that, she was counsel to Vermont’s governor, a civil litigator at Langrock Sperry & Wool and an associate at Skadden, Arps, Slate, Meagher & Flom.
It is possible that the first gay woman federal appellate judge was actually Judge Florence Allen. Allen was the first woman appointed to a federal appellate court, nominated by FDR to the Sixth Circuit (Ohio) in 1932. The jury is still out on whether Allen was gay, with scholars and biographers split. If so, Allen was not open about it. The strongest evidence is that she lived in committed cohabitation partnerships (so-called Boston marriages) with one woman, Susan, and then after her early death, with another woman, Mary for the rest of her life. For more on Allen, see Tracy Thomas, The Jurisprudence of the First Woman Judge: Challenging the Myth of Women Judging Differently, 27 William & Mary J. Race, Gender & Social Justice 293 (2020).
Wednesday, October 27, 2021
A conservative think tank asked a federal appeals court to review the SEC’s approval of Nasdaq Inc. rules intended to boost the number of women and minorities on corporate boards.
The National Center for Public Policy Research on Tuesday submitted a petition with the U.S. Court of Appeals for the Third Circuit to review the regulations the Securities and Exchange Commission approved Aug. 6.
Another group, the Alliance for Fair Board Recruitment, previously filed a challenge to the rules Aug. 10 in the U.S. Court of Appeals for the Fifth Circuit. The alliance also sued over California’s requirement for corporate board diversity.
The Nasdaq rules require companies listed on the exchange to have at least one female board member and at least one who identifies as an underrepresented minority or LGBTQ—or explain why they don’t.
The SEC doesn’t have the authority to approve board diversity requirements for Nasdaq-listed companies, said Peggy Little, senior litigation counsel for the New Civil Liberties Alliance, which is representing the National Center for Public Policy Research.
“Congress could not constitutionally confer this power on any administrative agency,” Little said in a statement. “And the government may not collaborate with Nasdaq to effectuate something it is prohibited by the Constitution to do itself.”
The case is National Center for Public Policy Research v. SEC, 3d Cir., petition for review filed 10/5/21.