Gender and the Law Blog

Aya Gruber Publishes "A Tale of Two Me Toos"

Aya Gruber has published A Tale of Two Me Toos in volume 2023 of the Illinois Law Review. The abstract is excerpted here: 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.

Reviewing Clarke's Sex Discrimination Formalism

Leah Litman, Toggle Boggle, JOTWELL, reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions

New Study Shows that Even With Tenure Women are More Likely to Leave Higher Ed

Chronicle, Even With Tenure, Women Are More Likely to Leave Higher Ed

Across academe, women are more likely to leave their faculty positions than men, and attrition is highest for women who have tenure or work in fields outside of science, technology, engineering, and math, according to a new study.

And even when men and women leave at the same rate, their reasons for doing so are gendered: Early-career women are more likely to leave due to issues with work-life balance, while women later in their careers are more likely to leave because of a hostile work environment. Men tend to cite professional reasons, such as a lack of resources or support.***

Women were more likely to leave their faculty roles than men at every career stage, and the gap grew wider at the top of the ladder. At the assistant-professor level, women were 6 percent more likely to leave than men. Among full professors, that figure was 19 percent.

Tenured faculty leaving at the highest rate is surprising, Raj said. But she speculated that women with tenure might be able to transition into other careers more easily than their less-experienced colleagues if the environment drives them out.

Women at less prestigious institutions were also more likely to quit.

Women most often cited issues with workplace climate as their reasons for leaving, such as harassment, dysfunctional department leadership, and feelings of not belonging. Men most often recounted professional reasons for leaving, such as difficulty obtaining funding or poor administrative support.

Previously, research has shown that one of the biggest drivers of inequity between women and men on the faculty is responsibilities at home. Additionally, Raj has observed gender gaps in sponsorship from more senior academics and in service work such as mentoring students.

Study, Science Advances, Gender and Retention Patterns Among US Faculty

Women remain underrepresented among faculty in nearly all academic fields. Using a census of 245,270 tenure-track and tenured professors at United States–based PhD-granting departments, we show that women leave academia overall at higher rates than men at every career age, in large part because of strongly gendered attrition at lower-prestige institutions, in non-STEM fields, and among tenured faculty. A large-scale survey of the same faculty indicates that the reasons faculty leave are gendered, even for institutions, fields, and career ages in which retention rates are not. Women are more likely than men to feel pushed from their jobs and less likely to feel pulled toward better opportunities, and women leave or consider leaving because of workplace climate more often than work-life balance. These results quantify the systemic nature of gendered faculty retention; contextualize its relationship with career age, institutional prestige, and field; and highlight the importance of understanding the gendered reasons for attrition rather than focusing on rates alone.

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas Genetin, Mike Gentithes, Dr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

Domestic Violence and the Functional Parent Doctrines

Courtney Joslin & Douglas NeJaime, Domestic Violence and Functional Parent Doctrines, 30 Virginia J. Soc. Pol'y & Law 67 (2023)  

Today, approximately two-thirds of the states have a functional parent doctrine. Under these doctrines, a court can extend parental rights based on the conduct of forming a parental relationship with a child, regardless of whether the person is the child’s biological or adoptive parent. In recent years, these functional parent doctrines have garnered significant attention. Some critics fear that perpetrators of domestic violence will misuse functional parent doctrines to abuse, harass, and coerce their victims. These critics often imagine a paradigmatic case — one involving a former nonmarital different-sex partner who has a limited relationship with the child and uses the doctrine in a post-dissolution custody action as a way to continue to harass and control his former partner, the child’s mother.

Drawing upon relevant findings from our empirical study of all electronically available decisions issued in the last forty years applying functional parent doctrines, this Article sheds light on these fears by reporting what we know about allegations of domestic violence in cases decided under these doctrines. Ultimately, our findings reveal that the paradigmatic case that critics envision is quite rare. Former nonmarital different-sex partners constitute only a small share of the functional parent claim-ants. Instead, the population of claimants is characterized by diversity. Indeed, our study includes more than twice as many relatives — a group routinely overlooked in conversations about functional parent doctrines — than different-sex nonmarital partners. Even as allegations of domestic violence are more common in cases involving intimate partners, they are hardly a common feature. Moreover, even the small share of cases that would seem to be of most concern — those involving allegations of domestic violence against only the functional parent — rarely present the straightforward facts that structure objections to functional parent doctrines.

Rather than finding that functional parent doctrines are routinely used in ways that disrupt children’s lives, we find that the doctrines often function to provide stability and security for children. Our account raises questions about opposing functional parent doctrines altogether based on fears that male ex-partners will use the doctrines for abusive ends. Instead, given the important benefits of functional parent doctrines for children, we conclude that concerns about domestic violence, which are in-disputably serious and must be taken into consideration, should be addressed within functional parent doctrines, as some states recently have done.

Deep Disagreements in the Last Five Years of Equality Jurisprudence at the Supreme Court of Canada

Jennifer Koshan & Jonnette Watson Hamilton, "'Clarifications' or 'Wholesale Revisions'? The Last Five Years of Equality Jurisprudence at the Supreme Court of Canada" (2023) Supreme Court Law Review (Forthcoming)
Presented at the Asper Centre's Litigating Equality Symposium at the University of Toronto in May 2023

Over the past five years, the Supreme Court of Canada’s equality jurisprudence under the Canadian Charter of Rights and Freedoms has revealed deep disagreements within the Court. This paper reviews the six decisions that comprise that jurisprudence, drawing out the major points of contention on the role of substantive equality, the test for section 15(1), adverse effects discrimination, causation, evidence, contextualization, and positive obligations. Our argument is that while the section 15 majorities in the first three decisions – Alliance, Centrale, and Fraser – attempted to respond to the critiques of equality-seeking groups, these decisions could not paper over the profoundly ideological disagreements embedded in equality rights jurisprudence, particularly in cases of systemic discrimination. In light of the recent push-back by a significant proportion of the Court in R v CP and a majority in Sharma, we also discuss the implications of the six decisions for equality-promoting litigation strategies going forward.

Publication of Gender & Law 2023-2024 Volume

Thomson Reuters has published the 2023-2024 volume of Gender & Law (previously titled Women & Law). The Table of Contents is here. This series is edited by Anibal Rosario Lebron, Daniela Kraiem, and Jamie R. Abrams. The articles were selected by an Editorial Board, including April G. Dawson, Elizabeth R. Kukura, Neoshia R. Roemer, and Laura Lane-Steele.

This series is described as: 

Gender and the Law is the new title for our long-running Women and the Law publication. Gender and the Law provides timely coverage highlighting the most pressing legal questions in the realm of gender and law. Assembled by a team of expert editors, this work collects the best research addressing legal issues affecting women, the law and masculinities, gender identity and expression, and sexuality published within the last year.

The Foreward states: 

Gender, in all its guises, is at the center of the United States conversation. As we move into the next presidential election cycle, legislation and litigation on these linked gender-based legal questions will come with relentless fury. The authors and advocates represented in this 2023 Gender and Law volume have been working on these questions for years, in some cases many decades. This volume presents them as a selection of the most interesting and important scholarship in what is now a deep tradition in legal scholarship that takes gender, along with race, class, and disability seriously. The questions that will come before courts and legislatures in the next few years will set the course for the next generation. These scholars are best situated to guide lawyers and advocates who want to engage in thoughtful legal analysis and not just superficial appeals to ideology.

A Linguistic Approach to Understanding Implicit Gender Bias in the Legal Profession

Emily Kline, Stolen Voices: A Linguistic Approach to Understanding Implicit Gender Bias in the Legal Profession, 30 UCLA Women's L.J. (2023)  

Relying heavily on socio-linguistical (language and society) studies, this article makes the case that the legal profession’s obedience to stereotypical masculine language “practices” significantly contributes to implicit gender bias. A large body of socio-linguistic scholarship dating back to the 1970’s has found that men and women exhibit subtle but significant lexical differences in the way that they speak and write. Though these differences are arguably linked equally, if not more, to issues of power, socialization, and cultural expectations than to biology, the differences still operate to erect barriers to success for professional women – particularly in a male dominated profession such as the law. Further, socio-linguistic and management theory scholarship demonstrates that professional women regularly encounter bias based upon stereotypes of what their communication style should be – creating untenable situations where women must make strategic and often no-win decisions about how to “perform” language.

Nobel Prize in Economics Awarded to Claudia Goldin for Work on the Gender Pay Gap

The Nobel Prize explains the relevance of her research:

Historically, much of the gender gap in earnings could be explained by differences in education and occupational choices. However, this year’s economic sciences laureate Claudia Goldin has shown that the bulk of this earnings difference is now between men and women in the same occupation, and that it largely arises with the birth of the first child. 

  ***

By trawling through the archives and compiling and correcting historical data, this year’s economic sciences laureate Claudia Goldin has been able to present new and often surprising facts. She has also given us a deeper understanding of the factors that affect women’s opportunities in the labour market and how much their work has been in demand. The fact that women’s choices have often been, and remain, limited by marriage and responsibility for the home and family is at the heart of her analyses and explanatory models. Goldin’s studies have also taught us that change takes time, because choices that affect entire careers are based on expectations that may later prove to be false. Her insights reach far outside the borders of the US and similar patterns have been observed in many other countries. Her research brings us a better understanding of the labour markets of yesterday, today and tomorrow.

UChicago Alum Claudia Goldin Wins Nobel Prize for Research on Gender and Labor

        Detailing Goldin's work and books.

Podcast, Claudia Goldin: Why do Women Still Make Less Than Men?, Harvard Magazine.

 

Toward a Socio-Legal Theory of Male Rape

Orna Alyagon-Darr and Ruthy Lowenstein Lazar published Toward a Socio-Legal Theory of Male Rape in volume 113 of The Journal of Criminal Law & Criminology (2023). The abstract is excerpted here: 

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

 

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works.

 

Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes.

 

The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits.

Ageism and Senior Women

Alan Gutterman, Ageism and Older Women,  

According to estimates based on data compiled and analyzed by the World Bank, the global population of women aged 65 and over as of 2020 was 397 million (an increase of 106 million from a decade earlier), representing 55% of the total global population of persons aged 65 and over (722 million) and 10.35% of the world’s total female population (compared to 8.5% a decade earlier). In 2009, the UN projected that the number of older women living in less developed regions would increase by 600 million within the period 2010 to 2050. When just five years is added to the definition of “older women” the size of the group becomes even more impressive, with data showing that the global population of women age 60+ was 605 million as of 2020 and is expected to reach 1.14 billion by 2050.

The World Health Organization has called the “feminization of aging” one of the central challenges to be addressed by its program of “active aging”, noting that while women have the advantage in length of life, they are more likely than men to experience domestic violence and discrimination in access to education, income, food, meaningful work, health care, inheritances, social security measures and political power, and thus more likely than men to be poor and to suffer disabilities in older age. The UN Independent Expert on the Enjoyment of All Human Rights by Older Persons has observed that the combination of ageism and sexism has a unique and aggravating effect on discrimination and inequality which leads to older women being disproportionately affected by some health conditions, including depression, and suffering from the impact of gender inequalities in older age that manifest in multiple aspects, including legal status, access and control of property and land, access to credit, and inheritance rights.

There is no international treaty or convention that specifically covers the human rights of older persons, but older women have been called out for special attention in various human rights instruments and declarations. Of course, older women are entitled to all of the rights enshrined in the UN Convention on the Elimination of Discrimination against Women, which are applicable to all stages of a woman’s life, and the UN Committee on the Elimination of Discrimination against Women has argued that full development and advancement of women, including the enjoyment of human rights by older women, can only be achieved through a “life-cycle approach that recognizes and addresses the different stages of women’s lives −from childhood through adolescence, adulthood and old age−“, since the cumulative impact of those stages is so readily apparent when assessing the lives and needs of older women from a human rights perspective.

This work discusses ageism and gender and realization of the human rights of older women and covers a range of subjects including legal and policy frameworks; health; housing; work; education and lifelong learning; participation in political and decision-making processes; poverty, economic empowerment and property rights; participation in community activities; gender stereotyping and ageist myths; caregiving and families; abuse, violence and neglect; access to justice; emergencies; older women as members of various vulnerable sub-groups (e.g., rural older women, refugees and older lesbian, bisexual, transgender and intersex women); intergenerational solidarity; and the role of businesses and entrepreneurs in the realization of the human rights of older women.

Conference on Gender, Health and the Constitution at The Center for Constitutional

A terrific program we have coming.  Register now at this link:  2023 Conference Registration

New Study Disputes Conventional Wisdom on Gender Gap in Negotiations

Michael Conklin, Is It Really a Man's World? Using Real-Life Negotiations to Reframe the Negotiation Gender, S.L.U L. J. (forthcoming)

Abstract:

This first-of-its-kind study utilizes a dataset of over 1,000 negotiations from the television show Pawn Stars to analyze the role gender plays in negotiations. The results call into question commonly accepted beliefs about the negotiation gender gap. For example, most studies on the negotiation gender gap consist of hypothetical negotiations in which participants do not experience the real-life consequences of their negotiated outcomes. As the findings of this study attest, drawing conclusions about real-world negotiations from such hypothetical negotiations is problematic. By using a dataset of real-world negotiations, this study provides a valuable framework from which to analyze negotiations and gender bias. The far-reaching ramifications of this study call into question the use of hypotheticals in negotiation studies, proposed solutions to the gender pay gap, how people negotiate differently depending on the gender of their opponents, and negotiation advice specifically offered to women. The methodology for this study allows for further analysis into how men and women negotiate in a real-world setting, such as willingness to walk away from the negotiation, use of a counteroffer rather than accepting a first offer, use of objective language, and implementing cognitive anchoring through an extreme initial offer. Additionally, this study analyzes an aspect of gender discrimination research that is often overlooked—the possibility of counterbalancing gender biases that produce seemingly gender-neutral results. Finally, the findings of this study help rebut the notion that the gender pay gap is simply the result of men’s superior negotiation ability and proclivity to engage in the practice.

Conclusion:

The primary finding of this research—that seller gender was not a factor in negotiated outcome—elicits discussion predominantly for how counterintuitive it was. The existing literature on negotiations and gender strongly support the conclusion that, on average, women receive worse outcomes than men.***

While not always approaching statistical significance, it is a notable finding of the present research that men acted in accordance with negotiation best practices better than women in every metric measured. They were more willing to walk away from the negotiation, more likely to use objective language in their offer, more likely to counteroffer, and more likely to implement an extreme initial offer. Nevertheless, the men did not receive any better negotiated outcomes than the women.***

The gender negotiation gap is widely cited as a leading cause for the gender pay gap. But unfortunately for women, explanations for the gender pay gap likely go beyond just differences in negotiation propensity and ability. Even if female new hires did negotiate with the same frequency and techniques as men, there is evidence to suggest they would nevertheless receive disproportionately unequal outcomes. As previously discussed, women find themselves in a double bind when negotiating because female traits can be viewed as poor negotiation strategy but adopting masculine traits can result in being punished for violating gender norms. Also previously discussed, just the expectation that women are not skilled negotiators may result in more of an unwillingness to offer concessions to them during a negotiation, thus resulting in suboptimal negotiating results compared to their male counterparts.

 

I. India Thusi Reviews Maybell Romero's "Ruined"

I. India Thusi has published a review of Maybell Romero's article, Ruined, 111 Geo. L.J. 237 (2022). Thusi's review is titled Un-Marking Rape Victims. Thusi writes: 

[Romero's] vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined. And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.

* * * 

Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.

Romero's full article is available here. 

The Supreme Court's Rhetoric of Motherhood

Lucy Williams, Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood, 102 N.C. L. Rev. (forthcoming 2024)  

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language.

My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently.

These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

TX is the Latest State to Drop the Tampon Tax, Bringing the Total States Now to 24

NYT, TX Drops the "Tampon Tax," the Latest State to Do So

On Friday, a bipartisan Texas bill that eliminates sales taxes on menstrual products went into effect, making it the 24th state in the country, as well as District of Columbia, to remove what is colloquially known as the “tampon tax.”

Before the shift, Texas had classified period products, including pads, tampons, menstrual cups, discs and sponges, as optional or luxury items and applied a 6.25 percent tax. Opponents of the tampon tax have long claimed that because other items — like contact lenses and over-the-counter medications in most states — are categorized as necessary and therefore sold tax-free, the tax on period products is discriminatory against those who menstruate.

“Every woman knows that these products are not optional,” Republican State Senator Joan Huffman, who spearheaded the bill in the Senate, said in a statement. “They are essential to our health and well-being and should be tax exempt.”

The new law also eliminates taxes on adult and children’s diapers, baby wipes, bottles, maternity clothes and breast pumps. Sales taxes on period products, which can cost up to $20 every month, vary by state but they range from 4 to roughly 7 percent.

Dropping the tampon tax is part of a broader effort by student activists and lawmakers to make these products more accessible, echoing efforts in other countries, like Scotland, where period products are available for free. In the United States, 26 states and the District of Columbia have laws to offer free menstrual products in schools, and 25 states have laws to provide them in prisons. A new law introduced in Congress this year, the Menstrual Equity for All Act, proposes mandating Medicaid coverage of period products.

There are 21 states in which menstrual products are taxed, while other products, like Viagra, candies and condoms, are generally not, Ms. Herman said. (The remaining five states don’t have sales taxes on anything.)

The first state in the country to drop the tampon tax was Minnesota in 1981, but the issue had been “largely ignored” elsewhere for decades, said Laura Strausfeld, founder and executive director of Period Law.

Judicial Dark Matter and the Continued Gender and Racial Inequalities on Federal Appellate Panels

Nina Varsava, Keith Carlson, Michael Livermore & Daniel Rockmore,  Judicial Dark Matter, 91 U. Chicago L. Rev. (forthcoming)  

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and largely covert practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and racial biases in representation. We argue that these imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, which results in concerning distortions in reported cases. This is the first study of the representation and distribution of judges by gender and race across decision panels. Ultimately, our findings suggest that assessing the distribution of legal power and influence across gender and racial groups based on the numbers of judges from these groups serving on the bench may be misleading and may create an inflated sense of the influence of judges from historically underrepresented groups. The diversity reform agenda, then, as it is typically cast in the scholarly literature, the political sphere, and the popular media alike, is incomplete. One cannot hope to understand how representation translates into power nor to remedy demographic power imbalances in the judiciary without attending to the features of judicial administration examined here. We propose reforms to judicial administration aimed to protect against the kind of demographic biases in representation that we uncover.

Bridget Crawford on "Pink Taxes and Other Tropes"

Bridget J. Crawford has published new work titled Pink Taxes and Other Tropes in volume 34 of the Yale Journal of Law & Feminism (2023). Here is an excerpt from the article's abstract:

The “pink tax” is an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. Note at the outset that the majority of existing research in the field deploys a binary understanding of gender as cis male and cis female. In relying on that research, this Article builds a more nuanced account of the complex operation of discrimination on the basis of gender. Such discrimination limits all people, regardless of whether and how they do (or do not) fit within narrow categories. This Article builds to the argument that only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well-served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to law reform in at least eleven jurisdictions, with more states expected to follow. Indeed, generalized “pink tax” rhetoric describing figurative taxes likely will not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk or figurative tax tropes.

Bruce Ching on "Through a Lens of Genocide: A Different Approach for Hate Crimes Legislation"

Bruce Ching has published a new article, Through a Lens of Genocide: A Different Approach for Hate Crimes Legislation, in 75 Rutgers U. L. Rev. 535 (2023). Here is the abstract. 

Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents that feature the perpetrators’ systemic intent, without focusing on more marginal occurrences. Thus, the hybrid model of hate crime as genocide could appeal to the remaining legislatures that have refused to adopt hate crime statutes, as well as to prosecutors who have had reservations about charging suspects under existing hate crimes statutes. The conceptualization of hate crime as genocide on a state or local level could also encourage local authorities to take action when federal law enforcement is either unable or unwilling to do so.

Women's Weak Language is a Source of Strength

Adam Grant, Op Ed, NYT, Women Know Exactly What They're Doing When They Use "Weak Language."

“Stop using weak language.” If you’re a woman, you’ve probably gotten this advice from a mentor, a coach or a teacher. If you want to be heard, use more forceful language. If you want a raise or a promotion, demand it. As the saying goes, nice girls don’t get the corner office.

This advice may be well intentioned, but it’s misguided. Disclaimers (I might be wrong, but …), hedges (maybe, sort of), and tag questions (don’t you think?) can be a strategic advantage. So-called weak language is an unappreciated source of strength. Understanding why can explain a lot about the way women acquire power and influence — and how men do, too.

It turns out that women who use weak language when they ask for raises are more likely to get them. In one experiment, experienced managers watched videos of people negotiating for higher pay and weighed in on whether the request should be granted. The participants were more willing to support a salary bump for women — and said they would be more eager to work with them — if the request sounded tentative: “I don’t know how typical it is for people at my level to negotiate,” they said, following a script, “but I’m hopeful you’ll see my skill at negotiating as something important that I bring to the job.” By using a disclaimer (“I don’t know …”) and a hedge “(I hope …”), the women reinforced the supervisor’s authority and avoided the impression of arrogance. For the men who asked for a raise, however, weak language neither helped nor hurt. No one was fazed if they just came out and demanded more money.

In 29 studies, women in a variety of situations had a tendency to use more “tentative language” than men. But that language doesn’t reflect a lack of assertiveness or conviction. Rather, it’s a way to convey interpersonal sensitivity — interest in other people’s perspectives — and that’s why it’s powerful.***

New evidence reveals that it’s not ambition per se that women are being penalized for. In fact, women who are perceived as intelligent and capable, determined and achievement-oriented, independent and self-reliant are seen as more promotable to leadership positions.

The problem arises if people perceive them to be forceful, controlling, commanding and outspoken. These are qualities for which men are regularly given a pass, but they put women at risk of being disliked and denied for leadership roles