Sonora Smart Dodd, whose father raised her and her siblings after their mother died in childbirth, was inspired to propose the holiday in 1910 after attending a church service honoring mothers. Even so, while federal law enshrined the second Sunday in May as Mother’s Day in 1914, it took another half-century for fathers to receive similar recognition, first with Lyndon B. Johnson issuing a presidential proclamation in 1966 and then with Congress enacting an official holiday in 1972.
Monday, October 3, 2022
Thomson Reuters has published its 2022 volume of Women and the Law.
Women and the Law provides timely coverage of the major areas surrounding litigation of women’s rights. It collects the best legal research from top legal scholars in the past year and examines legal issues under current law as relevant to those practicing in the field.
The Table of Contents revealing the selected 2022 scholarship is available here.
This volume marks a transition to a new editorial model. Professor Tracy A. Thomas, of this blog, brilliantly edited this series from 2011 to 2021. The entire community of Women and the Law readers, authors, and editors extends its deepest gratitude to Professor Thomas for her leadership and commitment to advancing the impact of scholarship on women and the law. Professor Thomas’s last volume highlighted the centenary of the Nineteenth Amendment, which granted some, but not all, women the right to vote in the United States. This volume marks the start of the next one hundred years, asking the critical question: Where is the field of Women and the Law now and what trajectories is it following?
This volume pivoted to a collaborative approach to identifying the key articles. Daniela Kraiem (American University), Aníbal Rosario Lebrón (Rutgers University), and Jamie R. Abrams (American University) carried the series forward as Lead Editors. The Lead Editors worked collaborative with an Editorial Board that included Swethaa Ballakrishnen (University of California, Irvine); Nancy Chi Cantalupo (Wayne State University); April Dawson (North Carolina Central University); Elizabeth Kukura (Drexel University); and Stu Marvel (Emory Law).
Elizabeth Kukura has posted her essay, Punishing Maternal Ambivalence, on SSRN. The work is published in 90 Fordham Law Review 2909 (2022). The abstract previews:
There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into parents. These rituals and experiences are culturally salient, confirming that the participants are conforming to societal expectations about preparation and fitness for parenthood.But the transition from not being a parent to being a parent can take many different forms and embody different types of social meaning for the people involved. For some women, becoming a parent is much more fraught than the cultural narrative outlined here because they feel ambivalent about being a parent or about adding an additional child to their families. Maternal ambivalence has important, usually negative, social meaning and, increasingly, also legal significance for the mothers, children, and families involved. But the experience of ambivalence is usually invisible— something individual women feel privately and will perhaps share with trusted friends or a therapist, but which is not considered appropriate to discuss more publicly. The cloak of silence shielding these feelings from public awareness reflects the social stigma that attaches to maternal ambivalence, leading to emotional and psychological harm for some women who feel ambivalent about their pregnancies. The strength of this stigma enables feelings of ambivalence to be weaponized against pregnant and parenting women, sanctioning them for their deviance from social stereotypes regarding who is a “good” mother. This Essay explores the punishment of maternal ambivalence, drawing on three case studies to illustrate the strength of the stigma that attaches to such feelings. In these cases, the stigma of ambivalence turns such feelings into a weapon for disciplining women who fall short of societal expectations for mothers. These women (and others like them) are marked by social disadvantage, either because they are women of color in a racist society or because they are economically marginal, relying on low-wage jobs or an abusive husband in order to survive. Their race and class status may contribute to their ambivalence, making them reluctant to have a child whose basic needs they may not be able to satisfy. Such statuses also mark them for scrutiny and criminal sanction in a way that reflects not only gendered stereotypes but also racialized and class-based stereotypes about parental fitness and about who is deserving of society’s compassion and empathy.
Tuesday, September 27, 2022
Vivian Rotenstein & Valerie Hans, Gentlewomen of the Jury, Michigan Journal of Gender & Law, Forthcoming 2023
This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.
Friday, September 23, 2022
The notion that the selflessness and tenderness babies require is uniquely ingrained in the biology of women, ready to go at the flip of a switch, is a relatively modern — and pernicious — one. It was constructed over decades by men selling an image of what a mother should be, diverting our attention from what she actually is and calling it science.
It keeps us from talking about what it really means to become a parent, and it has emboldened policymakers in the United States, generation after generation, to refuse new parents, and especially mothers, the support they need.
New research on the parental brain makes clear that the idea of maternal instinct as something innate, automatic and distinctly female is a myth, one that has stuck despite the best efforts of feminists to debunk it from the moment it entered public discourse.
To understand just how urgently we need to rewrite the story of motherhood, how very fundamental and necessary this research is, it's important to know how we got stuck with the old telling of it.
Wednesday, August 10, 2022
Albertina Antognini & Susan Frelich Appleton, Sexual Agreements, 99 Wash. U. L. Rev. (2022)
Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself.
A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or “immoral” and invoke the illegality of prostitution as the reason for this limit, sex not only can form a part of some contracts, it is inherent to the very definition of certain relationships. While courts reject private agreements between spouses regarding sex, they nonetheless deem sex “essential” to the existence of marriage, and they quantify just how much sex matters when considering loss of consortium claims. Moreover, several contemporary developments cast doubt on the proposition that sex, or a perceived similarity to prostitution, must always doom agreements. In the parentage context, for example, legislatures and courts increasingly treat paid surrogacy arrangements as enforceable contracts, rejecting earlier arguments that emphasized the parallels to illegal sex work. Courts have also become more willing to acknowledge parentage agreements that involve sexual conception, and surrogate partner sex therapy and adult entertainment employment have escaped legal sanction. Beyond the incipient recognition of sexual arrangements as legal contracts, contract-based ideas have become salient in contemporary sexual regulation. Modern understandings of crimes like rape and sexual assault emphasize sexual autonomy and make consent and its absence the pivotal considerations, displacing earlier elements of force, resistance, gender, and nonmarriage.
This Article juxtaposes the traditional approach to sexual contracts with the emerging convergence of sex and contract. In so doing, this Article argues that what is frustrating couples’ contracts, both in and out of marriage, is neither sex, nor prostitution, but rather marriage itself. Given that sex is not actually differentiating the contracts that courts enforce from those they do not and given the various inequities that result from the current system, this Article ends by considering what it would mean to carry the contractual approach to its logical conclusion by recognizing sex itself as subject to contract.
Monday, July 11, 2022
Paula Monopoli, Gender, Voting Rights, and the Nineteenth Amendment, 20 Georgetown J. Law & Public Policy (2022)
One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that 'there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment'. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.
Monday, June 20, 2022
Susan Faludi, Op-ed, NYT, Feminism Made a Faustian Bargain with Celebrity Culture. Now Its Paying the Price
The ruination of Roe and the humiliation of Ms. Heard have been cast as cosmic convergence, evidence of a larger forced retreat on women’s progress. “Johnny Depp’s legal victory and the death of Roe v. Wade are part of the same toxic cultural movement,” a Vox article asserted. “These examples may seem disparate, but there’s an important through line,” a USA Today reporter wrote, citing academics who linked the Alito draft opinion, the Depphead mobbing and, for good measure, the “public consumption” of cleavage at the Met Gala (held the same night the Supreme Court draft leaked): “This is backlash.”
Backlash it may be. Even so, putting the pillorying of Ms. Heard in the same backlash-deplorables basket as the death rattle of Roe is a mistake. Lost in the frenzy of amalgamation lies a crucial distinction. There’s a through line, all right. Both are verdicts on the recent fraught course of feminism. But one tells the story of how we got here; the other where we’re headed. How did modern feminism lose Roe v. Wade? An answer lies in Depp v. Heard.***
Using celebrity and hashtag feminism is a perilous way to pursue women’s advancement because it falls victim so easily to its own tools and methods. In Ms. Heard’s case, her ex-husband turned #MeToo’s strategy against itself. Mr. Depp claimed victimization because he’s a money-generating personality — he could be de-famed because he’s famous. And his massive (and vicious) fan mobilization on social media (nearly 20 billion views for #JusticeForJohnnyDepp on TikTok by June 2) was overwhelming, even by #MeToo standards. By contrast, #JusticeForAmberHeard had about 80 million views on TikTok in the same period.
Celebrity representation of feminism is a double-edged sword. If an individual embodies the principle, the principle can be disproved by dethroning the individual. In that way, Ms. Heard became both avatar and casualty of celebrity feminism. When she took the stand, she brought the modern incarnation of the women’s movement into the dock, too, and mobilized those who would see it brought down. If an ambassador for women’s rights wasn’t credible, Ms. Heard’s mob of haters was quick to conclude, then the movement wasn’t, either. No need to fret over those legions of unfamous women who may now think twice before reporting domestic violence.
Coupling the fortunes of feminism to celebrity might have been worth it if it had led to meaningful political victories. But such victories are hard to achieve through marketing campaigns alone, as the right wing understands.
For decades, there was less political will to honor fathers, especially because many men regarded the holiday as “silly.” Such thinking continues to this day, as some men celebrate being fathers by using the holiday as a ticket to spend a day at the golf course, enjoying hours on “their” day away from their children.
This understanding of Father’s Day, though, misses the ways in which Americans have used the holiday as a political vehicle. In the latter decades of the 20th century, Father’s Day was a key battleground regarding parental rights and responsibilities for activists radicalized by the nation’s rapidly shifting familial landscape. At the root of this politicization of Father’s Day — maybe surprisingly — was the history of divorce.***
Enter Father's Day. As some feminists came to view child support enforcement as a key women’s issue, they turned to the new holiday as an opportunity to publicize their cause. In 1971, a group of women and children from the Association for Children Deprived of Support (ACDS) picketed the home of California assemblyman, and potential gubernatorial candidate, Robert Moretti on Father’s Day to press him to champion child-support reforms.
Several years later, in 1975, NOW chapters in Tulsa, Pittsburgh and Hartford, Conn., all participated in “Father’s Day Actions.” The Tulsa protesters promised, in a news release, that “Fathers who are not paying child support can expect that their names and the amounts they are in arrears will be announced” and publicly “displayed by mothers, children and concerned NOW members.” The Hartford women, for their part, laid a wreath at the door of the Superior Court of Connecticut to “mourn the loss of paternal responsibility by all the fathers involved in divorce, separation, and enforcement.”
Some divorced fathers, however, had their own political agenda for Father’s Day.
Fathers’ rights advocates objected to being used as “wallets” and claimed that their ex-wives purposely kept them from seeing their children in violation of visitation orders. In 1971, the National Council for Family Preservation — one of several failed attempts by fathers’ rights advocate Richard F. Doyle to form a robust national organization like NOW — urged its member groups to hold protests on the Saturday before Father’s Day, noting that fathers might “want to be elsewhere with their children on Sunday.” In a news release, Doyle called for the recognition of the “stupid and cruel divorce laws and practices that have made this holiday a mockery for countless fathers and children.”
Friday, June 17, 2022
Fourth Circuit En Banc Holds Charter School's Dress Code of Skirts for Girls is Gender Discrimination under Equal Protection and Maybe Title IX
Peltier v. Charter Day School, No. 20-1001 (4th Cir. June 14, 2022)
Charter Day School (CDS),1 a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys (the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to discrimination and denial of the full benefits of their education in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).
In response, despite CDS’ status as a public school under North Carolina law, CDS and its management company disavow accountability under the Equal Protection Clause by maintaining that they are not state actors. These entities also assert that Title IX, the federal statute designed to root out gender discrimination in schools, categorially does not apply to dress codes.
Upon our review, we affirm the district court’s entry of summary judgment for the plaintiffs on their Equal Protection claim against CDS, and the court’s judgment in favor of the management company on that claim. We also vacate the court’s summary judgment award in favor of all defendants on the plaintiffs’ Title IX claim and remand for further proceedings on that claim.***
As part of this educational philosophy [traditional education as it was 50 years ago], CDS has implemented a dress code to “instill discipline and keep order” among students. Among other requirements, all students must wear a unisex polo shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or “skort.” In contrast, boys must wear shorts or pants. All students are required to comply with the dress code unless they have physical education class, when they wear unisex physical education uniforms, or an exception is made for a field trip or other special event. A student’s failure to comply with the dress code requirements may result in disciplinary action, including notification of the student’s parent, removal from class to comply with the dress code, or expulsion, though no student has been expelled for violating the dress code.
In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating: "The Trustees, parents, and other community supporters were determined to preserve chivalry and respect among young women and men in this school of choice. For example, young men were to hold the door open for the young ladies and to carry an umbrella, should it be needed. Ma’am and sir were to be the preferred forms of address." There was felt to be a need to restore, and then preserve, traditional regard for peers. Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” Mitchell further explained that, in implementing the skirts requirement, CDS sought to “treat [girls] courteously and more gently than boys.”
In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that “girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” with the result that boys “feel empowered” and “in a position of power over girls.”
The plaintiffs also described the impact of the skirts requirement on their ability to participate in school activities. On one occasion, when a first-grade female student wore shorts to school due to a misunderstanding of the dress code, she was removed from class and was required to spend the day in the school’s office. The plaintiffs also explained that they avoid numerous physical activities, including climbing, using the swings, and playing soccer, except for days on which they are permitted to wear their unisex physical education uniforms. The plaintiffs further testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses regarding the effects that the skirts requirement and gender stereotypes have on female students.
Deep in the thicket of a new en banc decision from 4th U.S. Circuit Court of Appeals on the constitutionality of a charter school’s “skirts-only” dress code for girls, there’s a nuanced legal debate about whether public charter schools can be sued under the Equal Protection Clause of the 14th Amendment.
In a 10-6 decision in Peltier v. Charter Day School Inc, the 4th Circuit majority determined that under North Carolina’s statutory framework for public charter schools, the schools are state actors — and therefore bound by the Equal Protection Clause — when it comes to setting and enforcing educational policies. The judges in the majority found that Charter Day School’s dress code, which requires girls to wear skirts, skorts or dresses, is unconstitutional because it serves no educational purpose but was adopted, according to statements from school officials, to telegraph the message that girls are “fragile vessels” who require boys' protection, rather than equal treatment.
That message “blatantly perpetuates harmful gender stereotypes ... with potentially devastating consequences for young girls,” wrote Judge Barbara Keenan for the majority. “If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this court.”
But six 4th Circuit judges said it's not at all clear that the Charter Day School is a state actor. In particular, wrote Judge Marvin Quattlebaum in the court's primary dissent, there's a strong argument that North Carolina did not compel Charter Day to adopt its dress code, so the policy cannot be considered a state action
Monday, June 13, 2022
California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws
In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more. We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”
Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.
It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.
Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.
The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***
It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.
We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027
Wednesday, June 8, 2022
I enjoyed hearing a little bit about this book at today's Summer Feminist Theory Workshop, and the ways in which it can be incorporated into doctrinal classes like Con Law and others.
Bridget Crawford & Emily Waldman, Menstruation Matters: Challenging the Law's Silence on Periods (NYUP 2022)
Approximately half the population menstruates for a large portion of their lives, but the law is mostly silent about the topic. Until recently, most people would have said that periods are private matters not to be discussed in public. But the last few years have seen a new willingness among advocates and allies of all ages to speak openly about periods. Slowly around the globe, people are recognizing the basic fundamental human right to address menstruation in a safe and affordable way, free of stigma, shame, or barriers to access.
Menstruation Matters explores the role of law in this movement. It asks what the law currently says about menstruation (spoiler alert: not much) and provides a roadmap for legal reform that can move society closer to a world where no one is held back or disadvantaged by menstruation. Bridget J. Crawford and Emily Gold Waldman examine these issues in a wide range of contexts, from schools to workplaces to prisons to tax policies and more. Ultimately, they seek to transform both law and society so that menstruation is no longer an obstacle to full participation in all aspects of public and private life.
Tuesday, June 7, 2022
Tracey E. George, Albert Yoon, Mitu Gulati, Gender, Credentials and M&A
Since the 1990s, women have made up roughly half of law school classes. Attrition between entry to law firms and partnership results in women comprising 20 and 25 percent of partners. But who makes it to the top of the partnership? Is there yet more gendered attrition? Constructing a unique dataset of publicly-filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10 percent of deal leaders. When we look at the factors that determine who becomes a deal leader we find that credentials – both educational and professional – matter. But they matter more for women. And one credential – attending a top law school – seems to matter a lot. Using conversations with senior lawyers, we try to get at some answers for why.
Monday, June 6, 2022
Michael Bikard & Isabel Fernandez-Mateo, Standing on the Shoulders of (Male) Giants: Gender Inequality and the Technological Impact of Scientific Ideas"
We argue that gender inequality in science and technology means that ideas are less likely to be built upon if their author is a woman versus a man. Testing this empirically is challenging because men and women tend to work on different ideas whose potential is largely unobservable. To address this challenge, we exploit the occurrence of simultaneous discoveries in science – i.e., instances when a man and a woman have published the same idea around the same time – and track the citations to their subsequent publications in patented inventions. We find that scientific publications receive fewer patent citations, that is, they have a lower technological impact, when their main author is a woman. This gap is not driven by women’s lower propensity to produce patented inventions based on their own ideas, but rather by other inventors’ lower likelihood to build on those ideas. Additional analysis suggests that supply-side factors alone, such as the greater saliency of men’s work, are unlikely to drive our results. Rather, inventors seem to pay more attention to men’s ideas. Our research highlights that gender inequality shapes more than individuals’ careers. It also shapes the extent to which their ideas are used to create new technologies.
Friday, June 3, 2022
Even though contracts are so embedded in individuals’ personal and professional lives, rarely (if ever) do we think of contracts as being a vehicle for social change. To effect legal change that addresses societal injustices, we generally rely on our legislative bodies and common law system. In this essay, I argue that private law – by way of contract drafting – should be considered an additional vehicle for seeking and obtaining social change. While it’s easy to envision how contract drafting can be effectively used to create immediate, positive impacts on the transacting parties themselves, contract drafting can also be used as a vehicle for broader societal change. Since performance of the legal obligations of a private contract often affects other individuals who are not parties to the agreement, it follows that the way those private contracts are drafted may improve their circumstances as well. Additionally, while a single individual may lack bargaining power to negotiate the most favorable of contract terms for themselves, groups of individuals – such as labor unions -- may yield great power. And some individuals by virtue of their resources or position can yield substantial power in contracting favorable contract terms, even with more powerful entities. Contract drafting choices also have a direct impact on the way the common law is created in the judicial arena and thus its reach extends beyond the transacting parties. In this essay, I argue that the use of the same or similar contract drafting language in numerous unrelated contracts can have a significant impact and can effectively be used to address societal injustices.
As an illustration of the powers of contract drafting, this essay provides concrete examples of how a feminist approach to contract drafting can be used to eliminate, or at least limit, gender inequality. By applying a feminist perspective to the drafting of employment and premarital agreements, I demonstrate how contract drafting choices can not only lead to positive changes for the contracting parties, but can also lead to broader social change. While advocating for change through legislative and judicial pathways will likely remain the primary avenues for challenging societal injustices, this essay aims to show why contract drafting can also be used as a vehicle for change.
Thursday, June 2, 2022
Johan Lindholm, Mattias Derlen & Daniel Naurin, 'Nevertheless, She Persisted': Gender and Dissent on the Swedish Supreme Court
From the abstract:
In line with gender-based stereotypes and ideals of female agreeability and cooperativeness, research has shown that women tend to cooperate more and compete less than men (the competitiveness theory). The article empirically studies whether Swedish Supreme Court Justices practice of writing dissenting opinions follows the gender-based patterns that can be expected from the competitiveness theory. Issuing dissenting opinions is a well-established practice on the Supreme Court, but it is also a public form of collegial disagreement that is potentially especially socially costly for female Justices. We therefore hypothesize that female Justices avoid writing dissenting opinions, particularly alone, and help foster agreement on panels compared to male Justices. These hypotheses are not supported by the data and the behavior of Swedish Supreme Court Justices thus does not follow the competitiveness theory. We propose some explanations for this result, which runs counter to previous research, and point to possible future research.
The conclusion from the introduction:
Generally speaking, however, empirical evidence of an effect of gender on merit-based voting in previous research must be characterized as relatively weak. As observed by Leonard and Ross (2020, 278), “anyone hoping to find convincing evidence of consistent gender differences in decisions across a broad range of issues would be sorely disappointed by the extant literature”. The lack of more clear and strong empirical evidence of gender-based differences in judicial behavior is commonly explained by what is often characterized as the organizational theory. According to this theory, gender-based differences in judicial behavior are tempered by professional and organizational factors. While there is room for different legal reasoning, judges are restricted by the relatively narrow scope of what, in the mind of judges and other lawyers, constitutes acceptable legal reasoning and interpretations of the law, and individuals that fail to show an ability to act in accordance with and within these limits will have a difficult time becoming judges. In this way, the characteristics of the law in combination with the process involved in becoming a judge – a process that starts with an individual graduating from law school and ends with a judicial appointment – will both select individuals that behave in a particular way and shape those individuals’ behavior to conform with what the profession considers acceptable and appropriate behavior. Moreover, an argument can be made that the pressure to conform to existing (male-based) norms and to prove their competence is particularly strong on women who come in as ‘outsiders’ to judicial institutions that have traditionally been a male dominated environment (Davis, Haire, and Songer 1993, 133; see also Boyd, Epstein, and Martin 2010, 392; Boyd 2016, 790; Sisk, Heise, and Morriss 1998, 1453–1454). If
correct, the organizational theory could explain why previous research has not been able to show a strong and consistent effect of gender on merits voting.
Tuesday, May 31, 2022
Scott Skinner-Thompson, Anti-Subordination Torts, 83 Ohio State L.J. (2022)
In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.
But thanks to innovative scholars attentive to power disparities in the law and society, an ever-growing body of scholarship analyzes, critiques, and suggests reforms to tort law based on the racial, gender, ableist, socio-economic, and sexuality-based disparities or stereotyping assumptions that exist within the doctrine and its application. Professor Martha Chamallas’s scholarship has been at the vanguard of this important trend and it’s a joy to celebrate her ground-breaking work in this Festschrift, although a tall order to do it justice.
Her intellectual and moral leadership have helped us realize that tort law—no less than constitutional law, civil rights, or criminal law—is a context where power and identities play a critical role in determining whose lives will be valued, whose injuries will be remedied, and what injustices will be rectified. Or not. This work has implications not just for how tort law is interpreted and applied in courts, but also how it is taught in school. In fact, several of Professor Chamallas’s scholarly endeavors focus specifically on bringing these insights to bear on law school curriculum.
As detailed herein, her substantive contributions to tort scholarship and theory are manifold but include at the top of the list (my list, anyway): (1) critiquing the degree to which harms often (but not exclusively) associated with women are unrecognized or devalued in tort law, (2) unearthing the ways in which the injuries of racism have been ignored, and (3) articulating how constitutional equality principles might be used to reform some of the discriminatory practices of tort law.
All told, I suggest that Professor Chamallas has helped engender an anti-subordination approach to tort law. As characterized here, this anti-subordination approach to tort law does not just simply attempt to redress formal inequalities in doctrine or its application, putting people on formally equal footing in the eyes of the law. Rather, this approach moves the law in favor of prioritizing (with special solicitude) the injuries disproportionately inflicted on marginalized communities and, potentially, being mindful of (instead of ignoring) identity differences to create contextually sensitive rules that may level up those that have historically been subjugated or ignored.
Wednesday, May 25, 2022
Stephanie Holmes Didwania, Gender Favoritism Among Criminal Prosecutors, Journal of Law and Economics (Forthcoming)
Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.
Thursday, May 19, 2022
Republicans are introducing a "Women's Bill of Rights" in order to enshrine into law protections for females based on their biological sex.
Rep. Debbie Lesko, R-Ariz., is leading lawmakers on the Republican Study Committee (RSC), the largest group of conservative lawmakers on the Hill, in formally introducing the legislation Thursday morning.
"I am proud to introduce the Women’s Bill of Rights to affirm the importance of acknowledging women and their unique and distinguishing characteristics and contributions to our nation. As the Left continues to erase women, we must fight for women and their place in our society. Whether it’s keeping the word "mother" in written law, or ensuring women’s domestic violence shelters do not have to accept biological men, we must stand up for women," Lesko told Fox News Digital.
The bill states that the Women's Bill of Rights is necessary to establish in order to "reaffirm legal protections afforded to women under Federal law" due to that face that males and females have unique biological differences, which increases as they age.
The lawmakers' bill says that due to biological differences, only females are able to "get pregnant, give birth, breastfeed children." In addition, males are larger and possess greater strength than females due to biology. The text also states that females are subjected to more specific forms of violence, including sexual violence....
"This common-sense document will help codify our common understanding and the reality we all know of the words ‘female,’ ‘woman,’ and ‘sex’, and I am proud to support it," Rep. Miller added.
The legislation clarifies, "for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth" and the term "mother" means "parents of female sex and ‘father’ is defined as parent of the male sex." It continues: "there are important reasons to distinguish between the sexes with respect to athletics, prisons, domestic violence shelters, restrooms, and other areas, particularly where biology, safety, and privacy are implicated."
Thursday, April 28, 2022
The ruling overturns decades of patriarchal family legacy, which largely left women out of the decision-making process.
Italy’s top court ruled on Wednesday that children born in the country will be given their mother’s and father’s surnames at birth, declaring the automatic practice of only giving children their father’s surname “constitutionally illegitimate.”
Parents will be able to choose the order of surnames or decide to use only one, a statement on the ruling from Italy’s Constitutional Court read, citing principles of equality and the children’s interest. Except in certain circumstances, Italian families have been unable to give their children their mother’s surname alone.
“Both parents should be able to share the choice of a surname, which is a fundamental element for one’s personal identity,” the court wrote.
Compared with other European countries where both surnames can be used for children, like France, Germany and Spain, Italy has been slow in embracing the recognition of the mother’s family name.
“The Constitutional Court canceled the last patriarchal legacy in family law,” Cecilia D’Elia, a member of Parliament and a leader on women’s issues in the Democratic Party, wrote on Twitter. “The mother’s name will have the same dignity as the father’s, a sign of civilization.”***
In Italy, wives used to take their husbands’ names and be solely responsible for children before the law. Though norms have since changed, the law automatically giving children their father’s surname has stayed, causing the European Court of Human Rights to rebuke Italy for discrimination.
Wednesday, April 27, 2022
In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding.2
As the authors note, the mere fact that women experience systematically better outcomes in some contexts, like custody disputes, cannot prove the existence of gender bias among judges, as other factors unique to those individual cases might influence outcomes.