Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, November 1, 2019

The Elusive Goal of Gender Equity in Law School Enrollment

Deborah Jones Merritt & Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal, Journal of Legal Education (forthcoming)

Women finally make up more than half of law students nationwide, but that milestone masks significant gender inequities in law school enrollment. Women constitute an even larger percentage of the potential applicant pool: for almost two decades, they have earned more than 57% of all college degrees. As we show in this article, women are less likely than men to apply to law school — or to be admitted if they do apply. Equally troubling, women attend less prestigious law schools than men. The law schools that open the most employment doors for their graduates enroll significantly fewer women than schools with worse job outcomes and weaker access to the legal profession.

We explore here the factors that may contribute to this ongoing gender gap in law school attendance. We also propose several strategies for closing the gap. Enrollment equity alone will not put women on an equal footing with men; a sizable literature probes gender biases that pervade the law school environment. Recognizing and addressing the enrollment gap in legal education, however, is an essential first step toward improving the representation of women throughout the legal profession.

November 1, 2019 in Education, Gender, Law schools | Permalink | Comments (0)

The Pink Tax: The Cost of Being a Female Consumer

The Pink Tax: The Cost of Being a Female Consumer

The pink tax refers to the extra amount women are charged for certain products or services. Things like dry cleaning, personal care products, and vehicle maintenance. So not only do women make less but they pay more. Women also live longer so they actually need more money for retirement. It’s a load of crap. 

There has been a lot of research on the pink tax that found that overall, women were paying more than men 42% of the time. How much more?  About $1,351 more a year in extra costs. Yup – that’s $1,351 that can’t go into her retirement fund. ***

 

Did you know, tampons and pads are charged sales tax because they are considered “luxury” items. Periods are certainly not a luxury and I’m sure every woman on the planet would agree.***

 

The New York City Department of Consumer Affairs released a study comparing the prices of over 800 products. The goal of the study was to estimate the price differences male and female shoppers face when buying the same types of items.

The results: Products for women or girls cost 7% more than comparable products for men and boys.

  • 7% more for toys and accessories
  • 4% more for children’s clothing
  • 8% more for adult clothing
  • 13% more for personal care products
  • 8% more for senior/home health care products

WBUR, Here and Now, Is Sales Tax on Tampons and Pad Unconstitutional?

Menstrual products like tampons and pads are subject to sales tax in 34 states.

On average, women and people who menstruate spend an estimated $150 million a year just on the sales tax for these items. One in four women struggle to afford period products, according to the nonprofit PERIOD.

Now, there’s a push to outlaw the so-called “tampon tax” across the country.

Jennifer Weiss-Wolf, an activist and co-founder of Period Equity, says she got together with a group of lawyers to make the case that taxing menstrual products is “sex-based discrimination and therefore unconstitutional and therefore illegal.”

“It's not really just a matter now of asking legislators to do the right thing,” she says, “but it's bringing the force of the law to let them know that they must cease this practice.”

In June, California put a pause on the taxation of menstrual products — but only for a two-year period. But Weiss-Wolf is arguing for a permanent solution by mobilizing to get all 50 states to permanently end sales tax on menstrual products.

 

November 1, 2019 in Gender, Pop Culture | Permalink | Comments (0)

Wednesday, October 23, 2019

An Equal Protection Analysis of Gender-Differentiated Indecent Exposure Laws

Nicholas Mignanelli, Equal Protection and the Male Gaze: Another Approach to State of New Hampshire v. Lilley, 22 Journal of Gender, Race & Justice (2019)

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey’s concept of the “male gaze” to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so long as they apply equally to women and men.

October 23, 2019 in Constitutional, Gender | Permalink | Comments (0)

Friday, October 4, 2019

New CA Law Allows Campaign Funds to be Used for Childcare to Promote Gender Parity Among Elected Officials

Bill Promoting Gender Parity Among Elected Officials Signed into Law by Governor Newsom

A bill introduced by Assemblymember Rob Bonta (D-Oakland) that would allow campaign funds to be used for child care by those who choose to run for elected office in California was signed into law Monday by Governor Gavin Newsom.

 

“AB 220 will help create greater gender parity among elected officials in California and more broadly help all parents with young children seek and serve in public office by allowing the use of campaign funds for child care expenses,” said Bonta. “I’m excited and extremely grateful to Governor Newsom for signing AB 220 into law.” 

 

AB 220 amends the Political Reform Act of 1974 to expressly allow campaign funds to be used for child care by those who choose to run for elected offices in California. 

 

Currently, there is no statute in California or official ruling by the California Fair Political Practices Commission (FPPC) allowing candidates to use campaign funds for child care purposes. That meant any person who attempted to use campaign funds for child care expenses had no statutory protection and would have been relying on a 20-year-old, non-binding advice letter by the FPPC which does not carry the weight of law. AB 220 provides certainty for parents of young children seeking office by placing this allowance in statute. 

October 4, 2019 in Family, Gender, Legislation, Work/life | Permalink | Comments (0)

Wednesday, October 2, 2019

New Books: The Preacher's Wife on Women's Search for Spiritual Authority

Kate Bowler, The Preacher's Wife: The Precarious Power of Evangelical Women Celebrities

Whether standing alone or next to their husbands, the leading women of megaministry play many parts: the preacher, the homemaker, the talent, the counselor, and the beauty. Boxed in by the high expectations of modern Christian womanhood, they follow and occasionally subvert the visible and invisible rules that govern the lives of evangelical women, earning handsome rewards or incurring harsh penalties. They must be pretty, but not immodest; exemplary, but not fake; vulnerable to sin, but not deviant. And black celebrity preachers' wives carry a special burden of respectability. But despite their influence and wealth, these women are denied the most important symbol of spiritual power―the pulpit.

The story of women who most often started off as somebody's wife and ended up as everyone's almost-pastor, The Preacher's Wife is a compelling account of women's search for spiritual authority in the age of celebrity. 

October 2, 2019 in Books, Family, Gender, Media, Pop Culture, Religion | Permalink | Comments (0)

Tuesday, October 1, 2019

Examining Effective Negotiation Skills Through a Gender Lens

Andrea Kupfer Schneider, "What's Sex Got to Do With it: Questioning Research on Gender & Negotiation" 
Nevada Law Journal, Vol. 19, No. 3, 2019


Negotiation scholars and teachers often talk about negotiation skills through the metaphor of tools in the toolbox. This article focuses on the fact that negotiation scholarship primarily studies the hammer, the skill of assertiveness in negotiation. In fact, the majority of empirical negotiation studies take this even further—studying only the hammer and imagining only a single opportunity to hit the nail on the head. Based on those studies, we make conclusions that if one chooses not to use the hammer at all or does not hold it as well as another, one is not a good builder. And negotiation scholars’ advice is also too often focused only on this hammer—how to swing it harder, how to position your hands, the angle of the swing, and so forth. We see this as well in the study of gender differences in negotiation where the vast majority of articles examining gender and negotiation focus on assertiveness—the hammer—and how women need to pick it up, swing harder, or hold it differently. Women’s supposed lack of assertiveness has been used to explain the pay gap between the salaries of women and men along with a whole host of other inequities. This story falls short primarily because our research falls short. And when our research falls short—when we are only researching and emphasizing a part of the skills that are needed to be effective—this does a disservice to all negotiators.

First, researchers focus on assertiveness, a typically masculine trait, and only one of several important negotiation skills. Therefore, we assume that both men and women need only to master that skill to the detriment of the mastery of any other negotiation skills. Second, assertiveness has become the only regularly tested negotiation skill as it is easily quantified. By failing to study the impact of any other skills—including skills that women might be better at than men—the practice to theory to practice cycle is hijacked by this narrow focus. Third, we tend to study negotiation in one-shot interactions with distributive outcomes. Far less often do we study the possibility of integrative outcomes. Even when we set up studies that focus on repeated interactions, they are often limited to prisoner’s dilemma or dictator game scenarios—highly stylized and unrealistic structures. What this means is that while women are not recognized for the skills at which they might be inherently better, it also means that we are failing men by not highlighting opportunities for growth and improvement.

This article attempts to fill in the picture of the skills necessary for effective negotiation by examining the existing negotiation and gender literature discussing traits and skills related to negotiation and the gender literature of those traits outside of the negotiation context. Importantly, this article outlines what we know—and what is still missing—in terms of research on negotiation skills and research on gender differences in these skills. Understanding this gap is the first step toward recognizing what we should be studying and testing in the future.

This article will examine five negotiation skills—social intuition, empathy, ethicality, flexibility, and assertiveness—each of which has been shown to make negotiators more effective and add importantly to each negotiator’s toolbox. Each section will outline how the skill is generally defined in negotiation literature, what gender differences exist or research has been done under each category, and then where future research might be needed. Particularly, this article will note how much more research is needed in all of these other skills to help negotiators learn the specific behaviors that can increase effectiveness. Finally, the article will circle back to assess what we have learned about using a gender lens to study negotiation and the importance of broadening the skill base for all negotiators.

October 1, 2019 in Gender, Women lawyers | Permalink | Comments (0)

Monday, September 30, 2019

Podcast: Law Professor Discusses Gender and US Asylum Law and the Difference Feminist Legal Thought Made

Signs, Ask a Feminist: Deborah Anker Discusses Gender and US Asylum Law

Aziza Ahmed: Hi, this is Aziza Ahmed. I’m a law professor at Northeastern University’s School of Law, and I’m so happy to be talking to Deborah Anker today as part of the Signs “Ask a Feminist” series.  Deborah, thank you so much for taking the time to be with us on this podcast today.

Deborah Anker: My pleasure.

AA: Your work has been so instrumental in helping advocates and lawyers acknowledge the complexity that gender brings to immigration and asylum law.

***

AA: I was curious to hear from you about when you felt like feminism really came to immigrants’ rights work. I’m sure in communities themselves it was there…

DA: I really thank the women’s movement for challenging the public-private distinction. That was key. And we learned that from the women’s movement—that so-called “private acts of violence” were of public concern and of human-rights concern, or were human rights violations. That was incredibly important.

AA: And became foundational to the types of gender-based asylum claims…

DA: It became very, very foundational for the cases that we brought. It was really the women’s movement that made us start thinking about it. People would come in and we would interview the man and find out what his problems were. We never thought that what happened to women would rise to the level of persecution or would be considered persecution by the adjudicators and by the authorities. That was incredibly important. That rape could constitute prosecution, that “private acts of violence” could constitute prosecution. I think we now understand that being forced to leave your child as a form of persecution.

September 30, 2019 in Family, Gender, International, Women lawyers | Permalink | Comments (0)

Wednesday, September 18, 2019

Rethinking the Supreme Court's Decision in Muller v. Oregon through an Intersectional Lens

Emily Prifogle, Law & Laundry: White Laundresses, Chinese Laundrymen, and the Origins of Muller v. Oregon  
Forthcoming, Studies in Law, Politics, and Society

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely the entangled histories of white laundresses’ labor and labor activism in Portland, as well as the labor of their competitors — Chinese laundrymen. In so doing, the article offers an intersectional reading of Muller that incorporates regulations on Chinese laundries and places the decision in conversation with a long line of anti-Chinese laundry legislation on the West Coast, including that at issue in Yick Wo v. Hopkins (1886).

September 18, 2019 in Constitutional, Gender, Legal History, Race | Permalink | Comments (0)

Tuesday, September 17, 2019

Projecting Concepts of Gender Onto Same-Sex Divorce

Suzanne A. Kim & Edward Stein, Gender in the Context of Same-Sex Divorce and Relationship Dissolution. 

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with couples’ intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same-sex relationships.

September 17, 2019 in Family, Gender, LGBT | Permalink | Comments (0)

Exploring the Relationship Between Trusts and Gender

Deborah S. Gordon, Engendering Trust, Wisconsin Law Review, 2019

This article, part of a Wills, Trusts, and Estates Meets Gender, Race, and Class Symposium, explores the relationship between trusts and gender by looking at the language, myths, and trends that appear in current trust law. After discussing the relationship between gender and inheritance law more generally, the article focuses on the three dominant characteristics: divided ownership; privacy; and existence over time. Using a universe of recent cases, it discusses how gender affects fiduciary and settlor identity, including who is being chosen and by whom to serve as trustee and what language is being used to describe this important role. It then considers the impact of trustee identity and power from the perspective of trust privacy. It concludes by examining trust duration, which captures a larger problem having to do with “objectivity.” In Justice Engendered, Martha Minow explains that the “special burden and opportunity” of the law is to create “opportunities for insight and growth,” to “engender” justice by using language to help “remake the normative endowment that shapes current understandings.” This article argues that an “engendered” approach to trust law uses perspective, rhetoric, and “subtexts” to disrupt rather than ignore or reinforce existing social patterns and myths, to unearth embedded assumptions in language, and to notice when a particular vantage point is being used and “appreciate a perspective other than one’s own.” It concludes that although some courts are taking this “engendered” approach toward trusts and trustees, there is work yet to do.

September 17, 2019 in Gender, Theory | Permalink | Comments (0)

Tuesday, September 10, 2019

Gender and the Globalization of Constitutional Norms

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.

September 10, 2019 in Constitutional, Gender, International, Theory | Permalink | Comments (0)

Monday, September 9, 2019

Excluding Gender from Credit Application Automated Calculus Increases Credit Rejection for Women

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.

September 9, 2019 in Business, Gender | Permalink | Comments (0)

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

Lawsuit Challenges Constitutionality of California Law Mandating Women on Public Company Boards

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).

September 5, 2019 in Business, Constitutional, Gender | Permalink | Comments (0)

Tuesday, September 3, 2019

How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong

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

September 3, 2019 in Courts, Equal Employment, Gender, LGBT | Permalink | Comments (0)

Thursday, August 29, 2019

Awareness Can Help Hiring Committees Ensure that Implicit Gender Biases Don't Impact Decisions

Hiring Committees that Don't Believe in Gender Bias Promote Fewer Women

Our evidence suggests that when people recognize  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  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  members associated men with . They did this using an "" 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 ....

 

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  and how to guard against it, Schmader said.

August 29, 2019 in Equal Employment, Gender | Permalink | Comments (0)

Thursday, August 15, 2019

Most States Prohibit Blending Surnames at Marriage

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

August 15, 2019 in Family, Gender, Pop Culture | Permalink | Comments (0)

Tuesday, July 23, 2019

Recognizing Gender-Based Domestic Violence as Meriting Asylum from Nongovernmental Actors

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.

July 23, 2019 in Gender, International, Violence Against Women | Permalink | Comments (0)

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?.

 

July 23, 2019 in Abortion, Books, Constitutional, Family, Gender, Legal History | Permalink | Comments (0)

Female Academic Voices Are Missing from the Media, Even when their Work Isn't

It's Not Just Sarah Milov. Female Academics aren't Credited in the Media All the Time

“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.

 

July 23, 2019 in Gender, Media, Scholarship | Permalink | Comments (0)

How Candidate "Likeability" is Gendered

Vox, "Likeability" Ratings in Recent New Hampshire Poll Show Just How Tough Female Candidates Have It

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.”

July 23, 2019 in Gender, Media, Pop Culture | Permalink | Comments (0)