Tuesday, September 10, 2019
Jenna Sapiano & Beverley Baines, Feminist Curiosity about International Constitutional Law and Global Constitutionalism, Journal of the Oxford Centre for Socio-Legal Studies, Issue 1, 2019
Cynthia Enloe’s theory of feminist curiosity inspired us to ask whether feminist International Constitutional Law (ICL) scholars and their Global Constitutionalism (GC) counterparts apply the same concept of gender to the internationalization/globalization of constitutional norms. We analyzed ICL scholarship on substantive rights to security and equality (Hilary Charlesworth and Christine Chinkin), freedom from violence (Catharine A. MacKinnon), and parity (Ruth Rubio-Marín) and GC scholarship on processes of contestation (Antje Wiener), proportionality (Anne Peters), and democratic iterations (Seyla Benhabib). Our findings, in the form of a hypothesis, are that gender specificity infuses the former and gender inclusivity, the latter. In other words, these scholars take competing approaches to protecting (ICL) and empowering (GC) women. This hypothesis sets the stage for the conversations we imagine these feminist scholars might have: Charlesworth and Chinkin with Wiener about the rule of law; MacKinnon and Peters about the separation of powers; and Rubio-Marín and Benhabib about democracy. Their collective insights could yield constructive connections that advance women’s protection and empowerment domestically, internationally, and globally.
Monday, September 9, 2019
Stephanie Kelley & Anton Ovchinnikov, "(Anti-Discrimination) Laws, AI and Gender Bias"
We use state-of-the-art machine learning models trained on publicly available data to show that the data governance practices imposed by the existing anti-discrimination laws, when applied to automated algorithmic (“AI”) decision-making systems, can lead to significantly less favourable outcomes for the minority classes they are supposed to protect. Our study is set in the domain of non-mortgage credit provision, where the US and the EU laws prohibit the use of Gender variables in training credit scoring models; the US law further prohibits the collection of Gender data. We show that excluding Gender as a predictor has little impact on the model accuracy and on outcomes for males (the majority) but leads to a 30-50% increase in credit rejection rates for females (the minority). We further show that rebalancing the data with respect to Gender, prior to training models can significantly reduce the negative impact on females, without harming males, even when Gender is excluded from the credit scoring models. Taken together, our findings provide insight on the value of transparency and accountability, as opposed to prohibition for ethically managing data and AI systems, as societies and legal systems adapt to the fast advances in automated, AI-driven, decision making. Additionally, we hope that performing the analyses in a verifiable, open-access way, as we did, will facilitate future inquiries from other researchers and interested public into this critically-important societal issue.
Thursday, September 5, 2019
Lawsuit Challenges California's Board Gender Diversity Law as Presumptively Invalid under Equal Protection
Cydney Posner, A First Challenge to California's Board Gender Diversity Law
It was only a matter of time. As reported here on Bloomberg, a conservative activist group has filed a lawsuit,Crest v. Alex Padilla, in California state court on behalf of three California taxpayers seeking to prevent implementation and enforcement of SB 826, California’s Board gender diversity legislation. This appears to be the first litigation filed to challenge the new law. Framed as a “taxpayer suit,” the litigation seeks to enjoin Alex Padilla, the California Secretary of State, from expending taxpayer funds and taxpayer-financed resources to enforce or implement the law, alleging that the law’s mandate is an unconstitutional gender-based quota and violates the California constitution. Even proponents of the law recognized the possibility of legal challenges. ***
In the complaint, the plaintiffs contend that the law’s requirement for female representation on corporate boards “employs express gender classifications. As a result, SB 826 is immediately suspect and presumptively invalid” under the equal protection provisions of the California Constitution and subject to “strict scrutiny” in the California courts. The complaint requests entry of a judgment declaring any expenditures of taxpayer funds to implement or enforce SB 826 to be illegal and issuance of an injunction permanently prohibiting the Secretary from expending taxpayer funds to enforce or implement the provisions of the legislation.
h/t Stefan Padfield
Judicial Watch, a conservative activist group, has filed the first lawsuit challenging the constitutionality of Senate Bill 826 (SB 826), California’s mandatory board diversity law requiring women on public company boards of directors. The lawsuit was filed against the California Secretary of State on behalf of three California taxpayers on August 6, 2019, in the Los Angeles Superior Court and seeks a judgment that any expenditure of taxpayer funds and taxpayer-financed resources to enforce or carry out the provisions of SB 826 is illegal.
Plaintiffs argue that the gender classifications used in SB 826 can only be justified by a compelling government interest, which the Secretary of State has failed to establish. The lawsuit cites then-Governor Jerry Brown’s words in his signing message acknowledging that SB 826 has “potential flaws that indeed may prove fatal to its ultimate implementation” and that “serious legal concerns have been raised” to the legislation. The complaint is available here.
For my thoughts and analysis on the permissibility of gender quotas, including corporate boards, see Tracy Thomas, Making the Case for Gender Quotas, discussing my article, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).
Tuesday, September 3, 2019
Jessica Clarke, How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong, Texas Law Review Online, Forthcoming
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”
This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title
Thursday, August 29, 2019
Our evidence suggests that when people recognize women might face barriers, they are more able to put aside their own biases," said Toni Schmader, a UBC psychology professor and Canada Research Chair in social psychology. "We don't see any favourability for or against male or female candidates among those committees who believe they need to be vigilant to the possibility that biases could be creeping in to their decision-making."
The study was unique in that findings were based on actual decisions made by 40 hiring committees in France, charged with filling elite research positions with the National Committee for Scientific Research (CNRS) for two consecutive years. Past research in this area has relied mostly on hypothetical scenarios, such as presenting a large sample of participants with identical resumés bearing either male or female names and asking who they would hire. By contrast, the decisions made during this study had real impact on scientists' careers.
With cooperation from the CNRS, the researchers were able to first measure how strongly hiring committee members associated men with science. They did this using an "implicit association test" that flashes words on a computer screen and measures how quickly participants are able to assign those words to a particular category. People who make a strong association between men and science have to think a bit longer, and react more slowly, when challenged to pair female-related words with science concepts....
When the researchers compared these implicit and explicit beliefs with the actual hiring outcomes, they learned that committees attuned to the barriers women face were more likely to overcome their implicit science/male associations when selecting candidates for the job. Among committees that believed "science isn't sexist," those which implicitly associated science more with men promoted fewer women. The difference was especially pronounced in Year 2 of the study, when committee members would have been less conscious of the fact that their selections were being studied.
The findings show that awareness and acknowledgement of the barriers women face might be key to making sure implicit biases don't affect hiring decisions. They also point to the importance of educating hiring committees about gender bias and how to guard against it, Schmader said.
Thursday, August 15, 2019
Hannah Haksgaard, Blending Surnames at Marriage, 30 Stanford L. & Policy Rev. 307 (2019)
In most states, marrying couples are severely limited in their surname choices at the time of marriage. While recent scholarship has focused on men’s limited surname choices, other important problems with the marital surname process exist. For example, the increasingly popular decision to blend surnames — taking parts of both current surnames to create an entirely new surname — is generally not allowed. Four states explicitly allow for surname blending on the marriage license, and three more allow for any surname to be adopted. This article argues the remaining states should follow suit by allowing surname blending and other surname options. In addition to providing too few surname options, in most states the current system creates ambiguities and problems because marriage licenses fail to reflect the married surname of either spouse. This article argues that states should update marriage licenses to include the surname a marrying couple chooses to adopt as the marital name.
Listen to Hannah discuss her work on the Ipse Dixit Podcast
Tuesday, July 23, 2019
Kaci Bishop,"Unconventional Actors," North Carolina J. International L. L & Commercial Regulation (2019)
Asylum cases involving domestic violence or gang-related violence already had high burdens to overcome, but in the summer of 2018, their underlying theories were inverted and pulled out from underneath them with Matter of A-B-. The case involved a woman who had sought asylum in the United States for persecution by her ex-husband on account of her being a member of the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Matter of A-B- narrowed the possible protected grounds for asylum and overruled BIA precedent that recognized certain survivors of gender-based domestic violence as meriting asylum. This decision also departed from precedent to severely restrict who would be recognized as persecutors.
United States’ asylum law was originally designed to protect against persecution committed by a government actor. However, it has long included that someone fleeing harm by a nongovernment actor could be granted asylum, assuming she met the other elements of asylum, if she could demonstrate that her home country’s government was unable or unwilling to protect her from this nongovernmental harm. Matter of A-B- purportedly raised that “unable or unwilling” standard to require that a government had “condoned” the nongovernmental or private harm or had demonstrated a “complete helplessness” to protect against it.
This Article challenges Matter of A-B-’s claims and suggests ways to demonstrate when actions and harms by nongovernment actors are not individual private crimes but products of systemic and cultural norms that are at the very least tolerated by the home country’s government. A central question in evaluating whether a government was unable or unwilling to control a nongovernment actor is whether the nongovernment actor has some de facto power of the state. For applicants, advocates, and adjudicators to analyze when a nongovernment actor has some de facto state power, this Article provides a robust set of factors to evaluate both when a nongovernment actor has usurped that power and when the government delegated or abdicated that power.
Legal Thinking about the Declaration of Sentiments for Women's Rights at Seneca Falls on its 171st Anniversary
July 19 & 20 celebrated the 171st anniversary of women's first official demand for equal political, civil, and religious rights in the Declaration of Sentiments at Seneca Falls, New York. The Women's Rights National Historical Park now sits at the sight of the Wesleyean Church where the convention took place, and is worth a visit.
I have written much about the Declaration of Sentiments and its author, pioneering feminist leader Elizabeth Cady Stanton. The Declaration and its articulation of 18 necessary rights for women, as well as its structural elimination of "separate spheres" of women's inferiority, essentially provided a road map for legal and social reform for women's equality and equity.
I spoke about the history a bit with the National Constitution Center in a forthcoming We the People podcast.
I wrote about the broad agenda of the Declaration and the first women's rights movements in the forthcoming article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford Journal of Civil Rights and Civil Liberties.
I traced its historical origins and legal significance particular in the area of family law and social rights in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016). I blogged about the opening chapters addressing the context and specifics of the Declaration of Sentiments, here at Introduction and here, "What Do You Women Want?.
“The research we have shows that women’s voices are missing from the media,” said Kate McCarthy, who runs WMC SheSource for the Women’s Media Center, a national database designed to connect journalists with female experts. “And frequently when women are called on to offer something up, they are quoted without citation.”
The problem is particularly acute for black women, said Christen Smith, a professor of anthropology at the University of Texas at Austin, and founder of the Cite Black Women Collective, an organization that promotes the citation of black women in academia. “Women in general don’t get quoted, but black women experience it threefold. We get it from all sides,” said Smith, who started the collective after a colleague paraphrased whole sections of her book in a conference presentation without any citation. Black women, Smith said, are far less likely to be seen as “experts” by the media, and are therefore less likely to be approached for an interview in the first place.
New Hampshire voters approve of the job Sen. Elizabeth Warren is doing; they just don’t like her all that much. Same goes for Sen. Kamala Harris.
Despite Harris’s recent bump in New Hampshire following her performance at the first Democratic debate, data in a recently released CNN/UNH Survey Center poll of likely New Hampshire voters found good favorability numbers for both Warren and Harris (67 percent for Warren, 54 percent for Harris). But when pollsters asked, “Which Democratic candidate do you think is most likable?” the numbers for both women were bleak.
Just 4 percent of likely voters polled said they found Warren “likable,” and 5 percent said the same about Harris. The candidates they liked better were all men: 20 percent found both Vice President Joe Biden and Sen. Bernie Sanders likable, while 18 percent found South Bend, Indiana, Mayor Pete Buttigieg likable. (Warren’s favorability rating was the same as Sanders’s and higher than either Biden’s or Buttigieg’s.)
Likability is a tricky, highly subjective political term. Pollsters used to get at the same question by asking, “Who is the candidate you’d rather grab a beer with?” But the question of who voters think is the most likable is difficult to pin down because different people have vastly different ideas of what it means, according to Kathleen Hall Jamieson, director of the Annenberg Public Policy Center at the University of Pennsylvania.
“The construct is an unclear construct,” she told Vox. “We are making it relevant without asking why should it be. We don’t know what it is, anyway.”
One thing is clear: Likability applies differently to male and female candidates. But female candidates need to be liked in order to be elected, research has found.
“This likability dimension is a real barrier for women,” Democratic pollster Celinda Lake told Vox. “Voters are perfectly willing to vote for a man for executive office that they think is qualified that they don’t like, but they are not willing to vote for a woman they think is qualified that they don’t like.”
Tuesday, July 16, 2019
Allison Daminger, The Cognitive Dimension of Household Labor, American Sociology Rev. (July 2019)
Household labor is commonly defined as a set of physical tasks such as cooking, cleaning, and shopping. Sociologists sometimes reference non-physical activities related to “household management,” but these are typically mentioned in passing, imprecisely defined, or treated as equivalent to physical tasks. Using 70 in-depth interviews with members of 35 couples, this study argues that such tasks are better understood as examples of a unique dimension of housework: cognitive labor. The data demonstrate that cognitive labor entails anticipating needs, identifying options for filling them, making decisions, and monitoring progress. Because such work is taxing but often invisible to both cognitive laborers and their partners, it is a frequent source of conflict for couples. Cognitive labor is also a gendered phenomenon: women in this study do more cognitive labor overall and more of the anticipation and monitoring work in particular. However, male and female participation in decision-making, arguably the cognitive labor component most closely linked to power and influence, is roughly equal. These findings identify and define an overlooked—yet potentially consequential—source of gender inequality at the household level and suggest a new direction for research on the division of household labor.
Thursday, July 11, 2019
Suzanne Kim & Edward Stein, "Gender in the Context of Same-Sex Divorce and Relationship Dissolution"
We suggest that marriage is likely to remain gendered in a variety of ways in the near term, although how it may continue to be gendered over time is not clear. We focus here on some ways in which gender may continue to play a role in the dissolution of the relationships of same-sex couples in the U.S., specifically with respect to (i) the grounds for divorce, dissolution, and annulment, (ii) the financial aspects of relationship dissolution, (iii) the custody of children, and (iv) the social experience of divorce and relationship dissolution more generally. We draw on existing social scientific and legal research, but because same-sex marriage has only been legal for just over a dozen years and in place across the country for just over two years, many of the questions about gender and
same-sex divorce cannot be answered without more research and the passage of time.
Thursday, June 20, 2019
Darren Rosenblum, California Dreaming? 99 B.U.L.Rev 1435 (2019)
Over the past few years, California became the setting for shocking tales of sex inequality and abuse in Hollywood and Silicon Valley. Decades after women achieved educational parity, men still run the corporate world. In response to these stories exposed by the #MeToo movement, California joined the transnational corporate board quota movement by converting its voluntary quota into a hard one. Will California’s first-mover status overcome constitutional objections and inspire other jurisdictions to act. Or is just utopian dreaming, California-style? This Essay argues that despite its many flaws, the quota may succeed in curbing male over-representation on corporate boards. After contextualizes the quota within the transnational corporate board quota movement, it rejects the U.S. reaction that emphasizes the private sector’s dominion over equality remedies. Despite the U.S. resistance to quotas, comparative experience reveals both that the private sector manages how quota implementation occurs. The Essay concludes that some public intervention — in concert with private efforts — remains necessary.
Marie-Amelie George, Framing Trans Rights, Northwestern U. L. Rev. (forthcoming)
In the wake of marriage equality, opponents of LGBT rights refocused their attention and made transgender rights their main target. To persuade voters to maintain gender identity anti-discrimination protections, LGBT rights campaigns have presented trans identity in a specific but limited way, emphasizing gender-conforming transgender individuals and thereby implicitly reinforcing the gender binary. Although LGBT rights groups have succeeded in their efforts, their messaging may undermine the movement’s broader litigation strategy and render even more vulnerable the substantial portion the transgender community that identifies as non-binary.
The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To illustrate this tension, this Article details the history of marriage equality campaign strategies, identifying how and why LGBT rights groups applied those frames to trans rights. Using these events, this Article analyzes the factors that both motivate and circumscribe social movements’ framing decisions more generally to identify whether and how to alter trans rights advocacy.
How trans rights are framed is a significant subject that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although political positioning in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative advocacy, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literatures on acoustic separation and popular constitutionalism, this Article identifies why it is that LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It consequently provides suggestions for reframing transgender ballot measures.
Thursday, May 16, 2019
Valeriya Mechkova & Ruth Carlitz, Gendered Accountability: When and Why Do Women's Policy Priorities Get Implemented?
V-Dem Working Paper 2019:88
The past two decades have seen dramatic increases in women occupying positions of political power. Such developments have been welcomed as a means of achieving better outcomes for women in their everyday lives. We interrogate this proposition, developing a "gendered accountability" framework to the delineate conditions under which female representation should have its desired effects. Our empirical analysis applies this framework to sub-Saharan Africa, home to the largest increase in women's political representation in recent years. We find that having more women in the legislature is robustly associated with reduced infant and child mortality as well as greater spending on health. The effect on infant mortality is magnified when women are more active in civil society, and constrained to countries that have gender quotas and a proportional electoral system. We do not, however, find consistent evidence that maternal mortality and access to clean water respond to female representation.
Thursday, May 2, 2019
A House Judiciary subcommittee on Tuesday held the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years as supporters push for ratification.
ERA advocates want a time requirement to be stripped from the amendment’s language. Congress passed the ERA in 1972, but it failed to earn the backing of enough state legislatures to be ratified by a 1982 deadline.
The majority of those testifying Tuesday before the Subcommittee on the Constitution, Civil Rights and Civil Liberties argued the deadline was arbitrary and should be removed.
The panel heard testimony from a pair of female Democratic lawmakers backing legislation that would add language to the Constitution stating everyone is equal under the law.
Other witnesses included actress and advocate Patricia Arquette, as well as legal experts and a state senator involved in getting the ERA ratified in Nevada.
Both Nevada and Illinois have ratified the amendment in recent years. Ratification failed by one vote in Virginia earlier this year.***
Rep. Carolyn Maloney (D-N.Y.) also introduced a measure for a new ERA, but she and Speier have said it's a “fall back” in the case Speier’s measure falls short.
Video, ERA Hearing on CSPAN
When women’s rights activists gathered in Washington on Tuesday for the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years, they seemed to encounter many of the same decades-old strategies that have been used to derail it. Chief among them was the idea that the proposed constitutional amendment, which would enshrine equal protections for women in law, would trigger an unfettered expansion of abortion rights on the state and federal level—an argument some ERA supporters say is intended to sow division.
Friday, April 26, 2019
Book Review Sex and Secularism, Challenging the Idea that Secularism is Synonymous with Gender Equality
In Sex and Secularism Joan Wallach Scott challenges the pervasive idea that secularism has always been synonymous with gender equality, entrenching and codifying the “historical triumph of enlightenment over religion” (p. 1)***
Like many feminist historians educated in the late twentieth century, I studied and absorbed Scott's seminal article, “Gender: A Useful Category of Historical Analysis” published in 1986 in the American Historical Review. It became part of the canon of second-wave feminist theory for scholars in a variety of disciplines. Scott's clear and pervasive analysis demanded that feminist historians understand and dive deeply into dimensions of social and political power that emanated from perceived notions of sexual difference, both historic and contemporary. ***
Utilizing a wide variety of literature written by second-wave feminists and historians of race, colonialism, and religion from the nineteenth to the twenty-first century, Scott provides a plethora of examples from gender and secular discourse on religion, reproduction, and politics—ending with the most recent “clash of civilization” discourse that transcends the “Cold War” rhetoric and supports and justifies Islamaphobia in a post-9/11 world. She effectively argues, first, that gender equality is not inherent in secularism (nor ever has been) and, second, that gender equality has not been ameliorated by white, Christian racial and religious discourse or practices in either public or private spheres of a gendered world. It is her third argument about secularism that provides intriguing food for thought. Scott posits that the discourse of secularism has also “functioned to distract attention from a persistent set of difficulties related to differences of sex” regardless of the nation, government, or period (p. 4). Inequality is ingrained and has been, and continues to be, a moving target in the discourse of secularism that allows Western nations to effectively ignore, if not “hide,” the inherent core of gender inequality under the guise of focusing on the “other”—the latest threat to the “civilized” world.
Thursday, April 25, 2019
Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)
Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.
This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.
The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.
Jane Bambauer & Tauhidur Rahman, The Quiet Resignation: Why Do So Many Female Lawyers Abandon Their Careers?,
Thirty percent of female lawyers leave their careers. The same is true for female doctors. Over time, an increasing number of married professionals have recreated traditional gender roles, and society has lost a tremendous amount of training and well-honed talent as a result. Neither workplace discrimination nor family obligations can fully and satisfactorily explain the trend. Both of those theories assume that women take a more dependent and vulnerable position in the household because of constraints, but in one important respect, men are more constrained than women, and they are better off for it: to maintain social status, men have to work. Women do not.
This Article advances a theory and corroborating evidence that the cultural acceptance of female under-employment is a privilege in the abstract, but a curse in practice. Even under the best conditions, the early stages of professional careers involve mistakes, mismatches, and disappointments. An opportunity to escape the stress of the public sphere by focusing on the family may have great appeal in the short run even though the longrun consequences are severe. Asymmetric cultural acceptance creates an easy off-ramp for females, to nearly everybody’s detriment.
Monday, April 15, 2019
Legal Rules of Professional Ethics as an Enforcement Mechanism Against Gender Violence and Harassment
Katherine Yon Ebright, Taking #MeToo Seriously in the Legal Profession, 32 Georgetown J. Legal Ethics (2019)
With the advent of the #MeToo movement, we have seen unprecedented interest in taking, and real initiatives to take, gender violence and harassment seriously. Actors and directors have been forced out of Hollywood. Conductors have been forced out of their concert halls, chefs out of their kitchens, professors out of the hallowed halls of academia. What of the legal profession? Attorneys are rarely professionally sanctioned for committing rape, sexual assault, sexual harassment, or domestic violence. Indeed, some jurisdictions have interpreted these gendered acts as falling outside the ambit of the rules of professional conduct.
This Article examines how the legal profession has thus far addressed gender violence and harassment, as well as how it might do so in the future. Part I reviews different states’ rules of professional conduct and their interpretations with respect to gender violence and harassment. It homes in on state-to-state discrepancies in interpreting certain shared provisions that could be used for disciplining rape, sexual assault, sexual harassment, and domestic violence. Part II then reviews enforcement patterns for states that either do or might professionally sanction gender violence and harassment. Noting that enforcement rates are staggeringly low, Part II identifies deficiencies in the rules of professional conduct that permit abusers to keep practicing without professional sanction. Part III concludes by proposing a series of reforms that would harmonize states’ understandings of gender violence and harassment and address, to some extent, the enforcement problem.