Friday, February 3, 2023

Research on Gender Stereotypes as to Moral and Legal Culpability for Deception

Gregory Klass & Tess Wilkinson-Ryan, Gender and Deception: Moral Perceptions and Legal Responses, Northwestern University Law Review, Forthcoming

Decades of social science research has shown that the identity of criminal defendants and alleged victims often affects case outcomes. Parties’ race, gender, class, and age affect decisions of prosecutors, judges, juries, and other actors in the criminal system. Less studied has been how identity might affect other forms of legal regulation. This essay begins to explore how parties’ gender might figure into legal decisionmakers’ responses to deceptive behavior. More specifically, we explore the hypothesis that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.

The hypothesis is consistent with research into gender stereotypes, which has shown for example that women are perceived as less capable of protecting themselves against deception and that men have special duties to protect women. The hypothesis is also of a piece with recent work on moral typecasting, which explores how attributions of agency and patiency affect perceptions of moral wrongfulness, as there is evidence that men tend to be associated with agency and women with patiency.

We report the results of three studies designed to test the hypothesis. We use simple vignette experiments to elicit subjects’ off-the-cuff intuitions about men and women deceiving and being deceived. We examine the effects of gender by randomly varying party names (Ashley or Josh), by randomly varying the gender associated with a product (e.g., beard trimmer vs. hair dryer), and by randomly varying the gendered noun identifying the victims of a fraud (brothers vs. sisters). We ask subjects to report on their reactions to different deceptive situations by reporting on the ethicality of a behavior, on their support for a regulatory approach, and on their preference for level of punishment. We also explore differential responses of male- and female-identified subjects.

We find preliminary support for the proposition that men deceiving women and firms deceiving women are regarded as somewhat more problematic than men or firms deceiving men. We find suggestive but limited evidence that paternalistic regulation of women’s transactions is more welcome than that of regulation of men’s consumer choices. We find robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong, and that corporations are viewed as male. The studies reported here also suggest the challenges of studying how the gender of deceiver and deceived might affect moral and legal judgments. Subjects’ politics, for example, appear to correlate both with the effect of parties’ gender on their judgments and with subjects’ views on the appropriateness of regulation. We suggest how future research might disaggregate these effects and explore the mechanisms behind gender-driven moral and legal judgments regarding deception.

February 3, 2023 in Business, Gender, Masculinities | Permalink | Comments (0)

Monday, January 30, 2023

Kate Redburn on "Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement"

Kate Redburn has published Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1962-86, Law & History Rev. 1 (2023). The abstract provides: 

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

January 30, 2023 in Constitutional, Gender, LGBT | Permalink | Comments (0)

Study Analyzes Why the Gender Pay Gap Has Stalled

Peter Blair and Benjamin Posmanick have published a working paper titled Why Did Gender Wage Convergence in the United States Stall with the Human Capital and Economic Opportunity Global Working Group. The abstract provides: 

During the 1980s, the wage gap between white women and white men in the US declined by approximately 1 percentage point per year. In the decades since, the rate of gender wage convergence has stalled to less than one-third of its previous value. An outstanding puzzle in economics is “why did gender wage convergence in the US stall?” Using an event study design that exploits the timing of state and federal family-leave policies, we show that the introduction of the policies can explain 94% of the reduction in the rate of gender wage convergence that is unaccounted for after controlling for changes in observable characteristics of workers. If gender wage convergence had continued at the pre-family leave rate, wage parity between white women and white men would have been achieved as early as 2017.

The article concludes: 

[U]sing the introduction of family-leave policies, we explain 94% of the stagnation in gender wage convergence that is unaccounted for after controlling for changes in observable characteristics between men and women. A key lesson from our work is that legally-mandated labor market flexibility can have the unintended effect of stymieing gender wage convergence, notwithstanding the increasing evidence that flexibility which arises endogenously in the labor market through technological innovation, or from firms changing their own policies, can lead to reduced gender wage gaps * * * .

 

The evidence that we provide on the impact of leave policies on gender wage convergence in the US contributes to a growing literature documenting negative impacts of leave policies on gender wage equality in Europe and other OECD countries * * *. Because the leave offered in the US is less generous that what is offered in peer countries, our results suggests an important role for economists to consider what features of family-leave policy design can soften the equity-efficiency trade-off arising from the introduction of family-leave policies. We leave this work to future studies by other scholars having answered the question: “why did gender wage convergence in the United States stall?”

January 30, 2023 in Equal Employment, Gender, Work/life, Workplace | Permalink | Comments (0)

Friday, January 27, 2023

Study Shows Individual Level Traits of Vocal Masculinity Influence Corporate Executive Status for Women

John Lynch, CEOs, Masculinity, and Language" 

The lack of female CEOs and the persistent gender pay gap, especially at higher income levels, have become popular topics both in academics and society. Most studies focus on the differences between males and females that perpetuate this "glass ceiling," while few look at within-gender traits that can help mitigate its effects. In this paper, I use novel measures of CEO and CFO vocal masculinity and language complexity to gain insight into how these individual-level traits influence executive status and compensation both within and across genders. I find that vocal masculinity, within females, positively impacts their likelihood of becoming a CEO while the opposite is true for males. When it comes to communication, CEOs speak with greater complexity than CFOs while both female CEOs and CFOs use more complex language and speak longer during earnings calls than their male counterparts. Differences in CEO-CFO language complexity are greater at low entrenchment firms while differences in masculinity are greater at high entrenchment firms. Additionally, while boards with greater female representation hire more female CEOs, they surprisingly seem to place a greater emphasis on female masculinity, while male masculinity plays a larger role at firms with male-dominated boards. Finally, for both male and female CEOs, compensation is positively related to masculinity, while increased language complexity only matters for females. These results help provide insight into the determinants of CEO status and compensation and may help explain how boards view and reward perceived competency across genders.

January 27, 2023 in Business, Gender, Masculinities, Workplace | Permalink | Comments (0)

Reforming the Armed Forces Penal Code for an "Officer and a Gentleman"

Nino Monea, An Officer and a Gentlewoman: Why Congress Should Modernize Article 133 of the UCMJ, 61 Washburn L.J. (2022)

 Article 133 of the Uniform Code of Military Justice—the penal code for the armed forces—makes it a crime for an officer to do anything that is “unbecoming an officer and a gentleman.” This Article argues that Congress should modernize the statute to acknowledge the contributions of servicewomen to the officers’ corps and the unequal treatment they had to endure in order to serve their country by making the offense gender neutral. Given that Congress is poised to overhaul the military justice system, there is no reason why this relic should not be addressed.

January 27, 2023 in Gender | Permalink | Comments (0)

Wednesday, January 25, 2023

Death by a Thousand Cuts: The Impact of Implicit Gender Bias on Women's Career Progression

Jasmijn C. Bol & Hila Fogel-Yaari,  Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression,
in Diversity, Equity, and Inclusion: Theory, practice, and case histories (Chapter 3A) (forthcoming 2023)

Progress has been made in the last century toward reducing gender bias in society at large and in the workplace specifically. The negative impact gender differentiation has on women’s careers, however, is not gone. Differential treatment and biases have moved from explicit to more implicit. These biases are rooted in decades of modeling and stereotyping women as communal and men as agentic, thereby casting women as caregivers and men as leaders. The stereotyping influences women’s professional lives by tainting both supervisors’ and employees’ decisions. The differentiation starts already in hiring decisions, which include decisions on who to hire, at what rank, and how much to pay. Once women are hired, the bias continues in task allocation and performance evaluation, which determine immediate compensation and subsequent promotions. Thus, women’s career progressions are made more complicated throughout their entire participation in the workforce. The multifaceted nature of the problem suggests that only a holistic approach can significantly reduce gender bias.

January 25, 2023 in Business, Equal Employment, Gender | Permalink | Comments (0)

Monday, January 23, 2023

The Consequences of Misgendering After Death

Orion Rummler writing for The 19th documents the harms that trans people face when misgendered after death. 

Without updated identity documents, such as a driver’s license or other government-issued I.D., trans people are likely to be misgendered and have the wrong name on their death certificates — in spite of their lived experience, gender expression or physical transition. That acute loss of self weighs heavily on the minds of many trans people, especially those with unsupportive families or those without resources to change their documentation.

* * * 

The paperwork, policies and software used to record death vary from state to state. Without state or federal requirements to gather LGBTQ+ data after death, crucial choices on the remembrance of deceased transgender people are left in the hands of individual funeral directors, medical examiners and death investigators working within a convoluted and underfunded system. 

The article profiles a recent study out of Portland concluding: 

Of the 47 trans and nonbinary people who died from 2011 to 2021 that researchers could find, more than half had their genders marked incorrectly on their death certificates. That number was small — 29 trans people over that 10-year period were misgendered on their death certificates.But the time-consuming manner that researchers had to use to prove even that sliver of information underlines the key problem: For Oregon and most other states, there is no formal record of someone’s gender identity after death at all. 

The article recommends legal changes to avoid what the Portland study co-authors described powerfully as the "nonconsensual detransitioning after death.” "Lawmakers should create policy to ensure transgender people can be recognized as their true selves after death if they lack updated identity documents, * * * especially since the process of obtaining those documents can be difficult in some states."  

Read the full article here

January 23, 2023 in Gender, Healthcare, Legislation | Permalink | Comments (0)

Friday, January 20, 2023

The Equality Problems with Erasing Gestation as an Important Feature of Constitutional Parenthood

Katharine K. Baker, Equality, Gestational Erasure and the Constitutional Law of Parenthood,  
35 J of the American Academy of Matrimonial Lawyers 501 (2022)

This article calls into question the abundance of academic writing that criticizes, as inconsistent with equality principles, the constitutional law of parenthood. Some of this criticism, concerned with gender stereotypes, argues that the current doctrine’s preferential treatment of gestational mothers inexcusably discriminates against fathers. Other critics focus on how the Supreme Court’s approach to gestational investment excludes same sex partners from parental rights. Both of these critiques argue that the work of gestation has been overvalued. They both endorse a kind of gestational erasure, but they differ sharply on where they root the essence of parenthood. Those concerned about equal treatment for fathers root parenthood in genetics. Those concerned about equal treatment for same sex partners root parenthood in parental investment. This article highlights the tension between these positions and challenges those willing to erase the relevance of gestation at both a normative and practical level. It explains how discounting the relevance of gestation will have serious consequences for the law of abortion, adoption and custody, placing already vulnerable women at more risk of being controlled by men they want to escape. Further, this article argues that the current constitutional doctrine, which recognizes the salience of gestation, necessarily incorporates what LGBTQ advocates argue must be incorporated into decisions about parenthood: parental investment. What is inconsistent with LGBTQ equality in parenthood is not a regime that recognizes gestational investment, but one that reifies the genetic essentialism on which the gender-stereotype critique relies.

January 20, 2023 in Constitutional, Family, Gender, Reproductive Rights | Permalink | Comments (0)

Wednesday, January 11, 2023

SCOTUS Asks SG to Weigh in on Granting Cert for NC Charter School Case Mandating Girls Wear Skirts

Supreme Court Could Consider Charter School Dress Code

The Supreme Court is asking the Biden administration to weigh in on whether it should take up a case over a North Carolina charter school’s dress code requiring its girl students to wear skirts or dresses.

In a brief order Monday, the justices invited U.S. Solicitor General Elizabeth Prelogar to weigh in on whether the court should take up that case, Charter Day School v. Peltier, one of several major court cases in recent years that challenge school dress code policies as sexist and discriminatory.

Charter Day School, a K-8 public charter school operated by a private contractor in Leland, North Carolina, says it seeks to provide a “classical, traditional-values-based education,” enforced in part with a dress code designed to promote “mutual respect between boys and girls.” The case centers around the school’s policy, blocked by a federal court, requiring girls to wear a skirt, skort or jumper to school. ***

In 2019, District Judge Malcolm Howard ruled in favor of the plaintiffs, represented by the American Civil Liberties Union, and prohibited the school from enforcing the skirt requirement. Both parties appealed the case to a panel of the U.S. Court of Appeals for the 4th Circuit, which ruled that dress codes treating boys and girls differently violated Title IX, but that the school was not an actor of the state and thus couldn’t be sued on constitutional grounds for its dress code policies. 

The full 4th Circuit reheard the case and largely ruled against the school in a 10-6 ruling in June 2022, finding that the school is a state actor and thus violated the Equal Protection Clause with its skirt requirement. The ruling remanded whether the policy violated Title IX back to the district court. 

Judge Barbara Milano Keenan wrote the court’s opinion and noted that “nothing in the Equal Protection Clause prevents public schools from teaching universal values of respect and kindness.”

“But,” she continued, “those values are never advanced by the discriminatory treatment of girls in a public school. Here, the skirts requirement blatantly perpetuates harmful gender stereotypes as part of the public education provided to North Carolina’s young residents.”  

In September 2022, Charter Day School asked the U.S. Supreme Court to take up the case. 

January 11, 2023 in Constitutional, Education, Gender, SCOTUS | Permalink | Comments (0)

Wednesday, January 4, 2023

Second Circuit Upholds Transgender Sports Policy Allowing Male Students who Identify as Female to Compete in Girls' Athletics

Female Track Athletes Lose Appeal Against Connecticut's Transgender Sports Policy

A federal appeals court has rejected a challenge to Connecticut’s policy allowing male students who identify as female to compete in girls’ athletics, a case with national implications for the debate over fairness and inclusion in competitive sports.
 
The Second Circuit Court of Appeals in New York affirmed on Tuesday the dismissal of a lawsuit filed by four female high school athletes against the Connecticut Interscholastic Athletic Conference’s transgender-participation policy after losing races to biological males.
 
The 29-page decision, written by senior U.S. District Court Judge Denny Chin, an Obama appointee, found that the girls lacked standing because they were still afforded the opportunity to compete in state track meets. The ruling affirmed a federal district court’s decision to dismiss the case in April 2021.

January 4, 2023 in Gender, LGBT, Sports | Permalink | Comments (0)

Tuesday, January 3, 2023

How Gender Bias Worsened the Academic Peer Review Crisis

Chronicle of Higher Ed, How Gender Bias Worsened the Peer Review Crisis

Mounting evidence suggests the peer-review crisis in academic publishing was worsened, in part, by a system that favors male scholars and discourages women.

A new study of nearly 50 journals in the British Medical Journals Publishing Group found that women accounted for less than one in three peer reviewers — scholars who are experts in their field and are critical to vetting new research before it’s published in academic journals. The proportion of female peer reviewers grew by only 2.9 percentage points between 2009 and 2020. ***

At a time when journal editors across fields and publishing houses say finding peer reviewers is harder than ever, why aren’t more tapping into the pool of female professors and researchers?

Ana-Catarina Pinho-Gomes, an academic clinical lecturer at the University College London who researches biases against women in medical research, said the gap can be traced back to how editors select reviewers.

In the early days of peer review, journal editors, who were predominantly white men, would mine their own professional networks — also comprised of mostly white men — to find reviewers. Today, most journals use search engines, like PubMed or Google Scholar, and internal databases to identify, track, and make requests of reviewers. In theory, this system would cut down on individual editor bias. But in practice, Pinho-Gomes said, it carries forward biases from earlier in the pipeline of academic research.

Scholars with more published work are more likely to come up in databases and search engines as potential reviewers, Pinho-Gomes said. For decades, research has shown that women have published less frequently than men in part because women still take on the lion’s share of child and elder care for their families, leaving less time for career advancement and research pursuits. Thus, more-published scholars tend to be men

January 3, 2023 in Books, Gender, Scholarship | Permalink | Comments (0)

Monday, December 19, 2022

Patrice Ruane Publishes Article on Women's Employment from the Great Depression to the Great Recesssion

Patrice Ruane has published From Pin Workers to Essential Workers: Lessons About Women's Employment and the Covid-19 Pandemic from the Great Depression and the Great Recession in volume 29 of the UCLA Journal of Gender and the Law. The abstract is here: 

This Article argues that inaccurate ideas about women and work during economic downturns, including misconceptions about which women work and how they work, lead to inadequate policy responses and ultimately hurt working women. New Deal-era federal women’s aid programs, designed around an artificial picture of the average working woman, did not provide the same robust level of jobs support that men’s programs provided. Similarly, the major federal stimulus package during the Great Recession invested in male-majority industries but failed to invest in industries dependent upon women’s labor, in part because of the misconception that working women were already “winning” the jobs race. Framing the average working woman during the pandemic recession as a remote worker in a two-income household has the potential to steer federal policy away from avenues that would help the majority of women workers who are not remote workers in two-income households. Recovery efforts during the Great Depression and the Great Recession were gender-informed and effective, but biased toward men. These recovery efforts were concentrated in male-majority industries and consequently led to men’s employment recovering long before women’s employment did. Because pandemic-related job losses have been so unevenly borne by women, gender-informed recovery policies are not only justifiable, but necessary to achieve equitable recovery.

 

This Article also questions the speculation, articulated in an influential paper by a group of economists, that the COVID-19 pandemic will accelerate changing social norms and lead to greater gender parity by increasing the number of people who are accustomed to working remotely and driving men to take on additional childcare responsibilities. The conditions following the Great Depression and the Great Recession were more conducive to changing gender norms and expectations because both events disrupted traditional male-breadwinner models of the family and resulted in large numbers of families in which the woman was employed and the man unemployed. But neither resulted in lasting improvements in gender equity in the home or at work. Both events were followed by a reactionary impulse to return to a traditionally gendered view of the organization of labor. The pandemic recession does not present the opportunity to disrupt gender norms by creating more households headed by women breadwinners, yet the risk of a conservative reversion to more traditionally gendered norms is still present.

 

December 19, 2022 in Equal Employment, Family, Gender, Work/life, Workplace | Permalink | Comments (0)

Wednesday, December 14, 2022

Cambridge Dictionary Updates Definition of Woman to Include Trans Woman

Cambridge Dictionary Updates Definition of "Woman" to Include Trans Woman

The Cambridge Dictionary recently updated its definitions for “woman” and “man” to include transgender people, becoming the latest dictionary to formally expand what it means to be a woman.

A Cambridge Dictionary spokeswoman told The Washington Post on Tuesday that its editors “made this addition to the entry for ‘woman’ in October,” but the change only gained attention this week after Britain’s Telegraph newspaper first reported the news.

“They carefully studied usage patterns of the word woman and concluded that this definition is one that learners of English should be aware of to support their understanding of how the language is used,” Sophie White, a spokeswoman with Cambridge University Press and Assessment, said of the editors’ decision in a statement to The Post.
 
In the Cambridge entry for “woman,” the longtime definition for the word — “An adult female human being” — is still there and “remains unchanged,” White said. But an additional definition of the word appears below.

“An adult who lives and identifies as female though they may have been said to have a different sex at birth,” it reads.

December 14, 2022 in Gender, LGBT, Pop Culture | Permalink | Comments (0)

Tuesday, December 6, 2022

Court Attempts to Combat Misgendering by Judges

Marcus Alan McGhee, Judicial Cognition of Gender Transition: One Court's Attempts at Combating Misgendering by Judges,  6 HOWARD HUMAN & CIVIL RIGHT L. REV. 1 (September 12, 2022).

Members of the transgender community—especially those that identify as transgender women of color—encounter more incivility in one day than most will in a year’s time. When they enter the court system, a beacon of integrity and impartiality, they should find refuge from disenfranchisement. Instead, many transgender individuals encounter judicial officers ensconced in their intransigence and unwilling to accept binding precedent that permits them to change their name and gender markers to align with their identity. Beyond this failure to follow the law, some jurists have even purposefully rejected a litigant’s requests to be identified by their preferred pronouns. Other judges have amplified the discourteousness by deliberately misgendering litigants or referring to them as “whichever” or “it.” This article posits that to curtail a court’s churlish behavior, such instances should be referred to judicial misconduct commissions to investigate whether the judge violated established ethical rules, and when appropriate, enter an official misconduct finding to hold that judicial officer accountable.

December 6, 2022 in Courts, Gender, LGBT | Permalink | Comments (0)

Monday, December 5, 2022

NPR Article on Increasingly Common Bills Targeting Trans Youth

NPR published an article covering how Bills targeting trans youth are growing more common -- and radically reshaping lives

An NPR analysis of this fast-changing landscape found that over the past two years, state lawmakers introduced at least 306 bills targeting trans people, more than in any previous period. A majority of this legislation, 86%, focuses on trans youth.

While not every proposal has succeeded — about 15% of the bills have become law — the surge of legislative activity reflects what many advocates see as an increasingly hostile environment for LGBTQ rights in statehouses across the country and even some corners of Congress.

Some of the new laws have been temporarily blocked by the courts. But legal challenges have done little to slow the pace of new proposals, according to Katie Eyer, a professor at Rutgers Law School. It's an echo, she says, of the period after Brown v. Board of Education, when the U.S. Supreme Court struck down segregation in schools, but many states kept trying to pass laws to obstruct the ruling.

In four states — Alabama, Arkansas, Arizona and Tennessee — lawmakers have enacted either a partial or total ban on access to gender-affirming care, though in Alabama and Arkansas the laws are not currently in effect due to court injunctions. At least 20 others have tried.

Many of these proposals have sought to restrict anyone under the age of 18 from care that includes puberty blockers, hormone replacement therapy or transition-related surgery. In some of those states, health care providers now face the threat of jail time for offering gender-affirming care.

* * * 

Advocates fear the overall fallout could be dramatic. An estimated 300,000 American youth ages 13 to 17 identify as transgender, and according to a March study by the Williams Institute at the UCLA School of Law, at least 53,800 were at risk of losing gender-affirming medical care.

The article includes useful visual maps depicting the states that have passed laws restricting health care access for trans youth and the state that have enacted anti-trans laws centered on schooling. 

December 5, 2022 in Gender, Legislation, LGBT | Permalink | Comments (0)

Thursday, December 1, 2022

Gender Gaps in Legal Education and the Impact of Class Participation Assessments

Kenneth Khoo & Jaclyn Neo, Gender Gaps in Legal Education: The Impact of Class Participation Assessments 

The gender gap is a well-studied phenomenon in education policy. While prior research has illustrated the presence of this gap in U.S. Law Schools, questions remain as to whether these findings are generalizable to other jurisdictions where national, cultural, historical, institutional and societal norms are substantially different. In this article, we investigate the presence and nature of a gender gap in one of Asia’s leading law schools, the National University of Singapore (“NUS Law”). Employing a novel dataset with granular data on student, instructor, course, and component characteristics, we provide evidence that the gender gap persists over numerous cohorts of students. Even after controlling for a wide range of covariates such as standardized entry scores, high school rankings, income proxies, and a large array of fixed effects, female students systemically underperform their male counterparts across numerous metrics of law school performance. To examine the plausibility of possible causal mechanisms behind the gender gap, we exploit a natural experiment in which NUS Law randomly assigned first and second-year students to a range of mandatory courses with different class participation assessment weights. We provide evidence that female students who were assigned to courses with larger class participation weights had relatively lower class participation scores when compared to male students. Remarkably, however, policies that permitted female students to choose their courses in their third and fourth years eliminated this negative relationship – even after accounting for heterogeneity across class sizes and course choices. Our work suggests that pedagogical policy should consider the relationship between assessment modes and female student autonomy in narrowing the gender gap in legal education.

December 1, 2022 in Education, Gender, International, Law schools | Permalink | Comments (0)

Study Shows Women Lawyers Rarely Litigate Patent Cases

Paul Gugliuzza & Rachel Rebouche, Gender Inequality in Patent Litigation, 100 N.C. L. Rev. 1683 (2022)

This Article presents an empirical study of gender diversity—or, more accurately, the lack thereof—among the lawyers who handle patent cases in the federal courts, focusing on appellate litigation at the Federal Circuit and the Supreme Court. Drawing on two original datasets, the Article finds that, over the past decade, 87.4% of oral arguments in patent appeals at the Federal Circuit have been presented by men. The numbers are similar at the Supreme Court: over the past thirty years, more than 90% of arguments in patent cases have been delivered by male attorneys.

The typical explanation for these sorts of gender gaps is that men are disproportionality represented in the science and technology fields that underlie patent practice. But a closer look at the numbers shows that gender parity exists in specific areas of patent litigation. Until a recent retirement, half of the Federal Circuit’s twelve active judges were women, and the women on the court tend to have more pre-appointment experience in patent law than their male counterparts. In addition, the data collected for this study demonstrate that, when the government becomes involved in patent litigation (usually because a case involves the Patent and Trademark Office), women present oral argument at the Federal Circuit 48.5% of the time—more than five times as frequently as the rate for private-sector litigants.

The story this Article tells—of women being largely absent from high-level patent litigation—is actually a story about gender inequality among the lawyers hired by large corporations, particularly the Federal Circuit’s most frequent litigants, including Apple, Amazon, Google, and Samsung, all of which have been represented by women in less than 15% of their arguments over the past decade.

Figuring out why women rarely litigate patent appeals for private-sector clients is challenging, but the disparity between law firms and the government parallels inequalities in law practice more generally. To that end, this Article suggests both small steps that would increase gender balance among the lawyers arguing patent cases as well as broader structural reforms that would improve diversity across the bar.

December 1, 2022 in Business, Courts, Gender, Women lawyers | Permalink | Comments (0)

Wednesday, November 30, 2022

Gender is One of the Top Topics Legal Scholars are Writing About in 2022

What Legal Scholars are Writing About: 2022 Edition

As 2022 comes to a close, it’s prime time to catch up on the latest legal scholarship published this year — and there’s no shortage of content to explore!

Are you wondering what topics scholars have been focusing on?

Last year, Scholastica dug into our law review data (anonymized and aggregated) to look at some of the most popular keywords added to law review submissions and shared a list of 25 that stood out with examples of related articles. Since interest was high, we decided to keep it going in 2022.

In this blog post, we highlight the 25 most-used keywords for articles accepted via Scholastica from January 1st, 2022, to present and some notable pieces related to those topics. This list is not meant to be interpreted as a ranking of any kind. It is simply intended to provide a window into what legal scholars have been writing about this year. The keywords appear in no apparent order.

Gender is among the most common topics among articles submitted in the recent submission season.  This strikes me as particularly relevant given the historic discounting of  law professors writing about "niche" issues like gender.

November 30, 2022 in Gender, Scholarship | Permalink | Comments (0)

Monday, November 21, 2022

J.S. Welsh Publishes Article on the Pro-Trans Legal Movement in the California Law Review

J.S. Welsh has published "Assimilation, Expansion, and Ambivalence: Strategic Fault Lines in the Pro-Trans Legal Movement" in Volume 110 of the California Law Review. The abstract previews:  

For the past five decades, lawyers advocating on behalf of trans people have used arguments based in a binary understanding of gender to win critical legal battles in the fight for gender justice. These binary arguments clearly serve a strategic purpose: achieving major legal victories. Judges from state trial courts to the U.S. Supreme Court seem determined to reify traditional notions of gender identity. But this assimilationist strategy has its costs. The lived experiences of many queer, trans, and gender-nonconforming people is not necessarily consistent with the political goals implicit in the assimilationist approach. As the trans rights movement enters the law reform mainstream, this rift is increasingly exposed. This Article explores the conflicts that arise between groups within the pro-trans legal movement over who “counts” as trans for purposes of organizing and litigating, what compromises are necessary to push the movement forward, and who is included and excluded from political benefits.

November 21, 2022 in Courts, Gender, LGBT, Theory | Permalink | Comments (0)

Wednesday, November 2, 2022

The Problematic Treatment of Sex Exceptionalism in Criminal Law

Aya Gruber, Sex Exceptionalism in Criminal Law, 75 Stanford L. Rev. (forthcoming)

 Sex crimes are the worst crimes. People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate. However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law. Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance—an account that undergirds contemporary calls for broader criminal regulations and higher sentences. In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy. Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity. Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional. Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy. Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation. Sex dazzles theorists of all types. For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones. Critics of mass incarceration selectively abandon their principled stance against expanding the penal state. Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation. 

November 2, 2022 in Gender, Violence Against Women | Permalink | Comments (0)