Gender and the Law Blog

Call for Guest Bloggers at Gender and the Law Blog

The Gender and the Law Blog, a member of the national Law Professor Blog Network, invites faculty and practitioners to guest blog on the site. We are seeking original content blog posts that address an area of research or analysis of an emerging issue. Posts generally range from 600-1000 words. To submit a proposed post, please send your manuscript to Prof. Tracy Thomas @[email protected].  

Exposing the Patent Archives as an Inaccurate Record of US Invention When Viewed Through the Lens of the Black Woman

Kara Swanson, Inventing While a Black Woman: Passing and the Patent Archive, 25 Stanford Tech. L. Rev. (forthcoming)

This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of US invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of “inventor.” Exposing the patent system as raced and gendered terrain, it argues that marginalized inventors participated in invention and patenting by situational passing. It rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. It argues that marginalized inventors adopted this practice, risking the sanction of patent invalidity, to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained all marginalized inventors. Passing, while an act of creative adaptation, also entailed loss. Individual inventors gave up the public status of inventor and also, often, the full value of their inventions. Cumulatively, the practice amplified the patent gaps, systematically overrepresenting white men and thus reinforcing the biases marginalized inventors sought to avoid. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. This research provides needed context to the current effort to remedy patent gaps. Through its intersectional approach, it also brings patent law into broader conversations about how law has supported systemic racism and sexism and contributed to societal inequality.

An Argument for Using "They" as Pronouns

Until I'm Told Otherwise, I Prefer to Call You "They"

Ian Ayres is a professor and deputy dean at Yale Law School. Their preferred pronoun is “they.”

With the start of a new school year this fall, I am adopting a new practice. It is already common for my university colleagues and me to ask our students for their preferred pronouns at the beginning of the semester. In these efforts to thoughtfully ascertain how people choose to be described, not enough attention is paid to circumstances when it is most appropriate not to specify gender at all. I would never intentionally misidentify someone else’s gender — but I unfortunately risk doing so until I learn that person’s pronouns. That’s why, as I begin a new school year, I am trying to initially refer to everyone as “they.”

 

In so doing, I am employing a “default rule” — a concept whose importance I have studied during my career as a law professor. A default rule fills in the gaps in a legal relationship, setting a condition that holds generally until a specific value is agreed on.... 

 

In the case of personal identity, I am drawn to default pronouns that don’t assume others’ gender. Instead of assuming someone’s gender identity based on how they look or dress or act, it is more appropriate to refer to them as “they” until I know better. And whenever possible, it is important to create early opportunities to learn their chosen pronouns, which has become standard practice in academic and other settings.

 

Starting with the inclusive default “they” is less likely to cause offense than using harmful stereotypes to guess at someone’s pronouns. In grade school, one of my children was advised to adopt a similar strategy to address female teachers as “Ms.” until the teacher said that they prefer “Miss” or “Mrs.” Non-identification is a much less costly default than misidentification.

 

Some people harp on how difficult it is to make this kind of linguistic change. But broadly adopting the singular “they” can actually reduce a speaker’s cognitive load. Years ago, my parents told me they liked “Ms.” because they no longer had to presume whether a woman was married or not. Calling people “they” by default similarly relieves the speaker of having to guess at someone’s gender. More importantly, it has the advantage of reducing gender-related assumptions that listeners might make. And it has the crucial benefit of more respectfully addressing people with nonbinary identities. Just as all-gender bathrooms make life easier for transgender people, using the singular “they” default, until told otherwise, affirms linguistic space in the classroom for people who do not exclusively identify as men or women.

Meet New Gender and the Law Prof Blog Editor Professor Jamie Abrams

Today Professor Jamie Abrams joins the Gender and Law Prof Blog team of editors.  Professor Abrams has been a guest blogger in the past here at the blog, and we welcome her as a regular editor.  Meet the rest of the new editors later this week

 

Professor Jamie Abrams, University of Louisville School of Law

 

Jamie R. Abrams teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered violence, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Her most recent publications include The Polarization of Reproductive Decision-Making and Parental Decision-Making forthcoming in the Florida State Law Review, The #MeToo Movement: A Feminist Invitation to Critique the Crisis Framing of Sexual Assault Responses published in the University of Richmond Law Review (2018), and Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review (2017). A full collection of her publications is available below.

Professor Abrams was awarded the University of Louisville Brandeis School of Law's Teacher of the Year Award in 2016 and the University of Louisville's Presidential Multicultural Teaching Award in 2014 for her demonstrated commitment to teaching, research, and service that integrate diverse perspectives. She also received the 2011 Innovations in Teaching Award from the American University Washington College of Law for her work spearheading an integrated curriculum skills simulation for 1Ls. She was also awarded the Mussey-Gillett Shining Star Award from the District of Columbia's Women's Bar Association for her work co-authoring reports on the status of women and women of color in the legal profession as part of the WBA's nationally recognized Initiative on Advancement and Retention of Women.

Professor Abrams previously taught at Hofstra University School of Law and American University Washington College of Law. She was a visiting faculty member during the 2017-2018 Academic Year at the Georgetown University Law Center in Washington, D.C. where she taught Legal Practice: Writing and Analysis; Family Law II: Parent, Child, and State; and a Law Fellow Seminar. She has also been a visiting professor at the University of Turku in Finland teaching State Regulation of the Family and a visiting scholar at the University of Leeds researching the relationship between parental decision-making and reproductive decision-making.

In 2014, she co-founded the Brandeis Human Rights Advocacy Program, which works actively with other nonprofits and stakeholders in the community to advance the human rights of immigrants, refugees and noncitizens. She co-directed the program from 2014-2017. During her time with the program, it published a community resource guide, a comprehensive community needs assessment, and separate reports on educational access, language access, and media rhetoric studying how these topics impact the Kentucky immigrant/noncitizen/refugee immigrant community.

Before entering law teaching, she worked as a Litigation Associate at Willkie Farr & Gallagher LLP where she specialized in complex civil litigation matters. She began her career at Beveridge & Diamond, P.C., specializing in white collar criminal defense and environmental law. She received her LL.M from Columbia University and her J.D. from the American University Washington College of Law, receiving the highest academic honors from both institutions. She received her B.A. from Indiana University–Bloomington.

 

Guest Blogger Julie Suk on the ERA as a Political Question

Guest Blogger, Julie Suk is Professor of Sociology & Political Science, The Graduate Center - CUNY, and Visiting Professor at Yale Law School.  She is the author of the new book We the Women: The Unstoppable Mothers of the Equal Rights Amendment (forthcoming August 2020). You can follow her @JulieCSuk

 

Julie Suk, The Feminist ERA Worth Fighting For:: A Political Question

Virginia became the 38^th state to ratify the Equal Rights Amendment earlier this year, one hundred years after the Nineteenth Amendment and nearly fifty years after the ERA was adopted by Congress. My forthcoming book, We the Women, chronicles women’s long battle for the ERA to argue that the 1972 Equal Rights Amendment should be added to the Constitution, despite the passage of roughly forty years after the ratification deadline.

But the procedural path by which the ERA gets saved will shape the ERA’s long-term legitimacy and feminist potential. That is why I filed an amicus brief in the litigation brought by Virginia in pursuit of a judicial declaration of the ERA’s validity, arguing that Congress, not the courts, should decide in the first instance what to do about the ERA ratification deadline. Joined by distinguished constitutional law professors Erwin Chemerinsky, Reva Siegel, and Noah Feldman, our brief applies the logic of Coleman v. Miller, which affirmed Congress’s power over time frames for ratification, and treated the reasonableness of ratification time frames as a nonjusticiable political question. In the lawsuit, the three states that ratified the ERA after the deadline are suing the National Archivist, who refuses to publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.  Virginia claims that Article V does not authorize Congress to impose ratification deadlines on sovereign states. The court has allowed an intervention by states that have not ratified the ERA, or voted to rescind their prior ratifications. In their motion for summary judgment, filed earlier this week, the intervenors urge the court to conclude that “the ERA that Congress proposed in 1972 failed of adoption in 1979 and can no longer be ratified,”and that they possess sovereign power as states to rescind their ratifications. If the court reaches the merits of the intervenor states’ arguments, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.

Our amicus brief supports no party, even though Virginia’s goal of a court declaring the ERA to be part of the Constitution now, after a century of struggle, is admittedly enticing for the ERA proponent. But here’s what ERA proponents can gain if Congress votes to removes the deadline first: feminist legislative history that guides its future meaning. This path could take longer, because congressional action to save the ERA might not be accomplished until after November’s election.

Pro-ERA groups like the ERA Coalition have already made incrementally successful efforts to persuade Congress to remove the deadline. In Congress, the House passed a resolution lifting the deadline on ratification in February 2020, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  (Thirty-five Senate seats are on the ballot this November). The ERA’s long-term legitimacy depends on Congress taking action to remove the deadline before Trump-appointed federal judges take the opportunity to declare the ERA forever expired. 

More importantly, congressional action is more likely to produce the robust ERA that its proponents are fighting for.  As 8 amicus briefs filed by many women’s groups make clear, ERA proponents want the ERA to go farther than judicially-created sex equality under the Equal Protection Clause, to reach pregnancy discrimination, the problems brought to light by the #MeToo movement, and the gender inequities in caregiving and essential work laid bare by the Covid-19 crisis.  They want the U.S. Constitution to learn from gender equality provisions promoting real equality in other constitutional democracies around the world that were adopted after the ERA was proposed. That robust ERA, moving beyond what was intended or imagined in the 1970s, is already being made by lawmakers through legislative hearings and debates about removing the deadline. This overtly political debate will not be part of a judicial decision in a litigation about Article V.

The 116^th Congress had record numbers of women and women of color elected. When the House voted in February 2020 to recognize the ERA as valid “whenever ratified” by three-fourths of the states – which occurred when Virginia became the 38th state to ratify the ERA in January, that vote came after two hearings and a floor debate. In April 2019, due largely to the persistent advocacy of the ERA Coalition, the House Judiciary Committee held a hearing on removing the deadline on the ERA.  In that hearing, constitutional law giant Kathleen Sullivan pointed to the gender equality provisions in constitutions around the world, and called the absence of such a provision in the United States a “national embarrassment.”  In November 2019, the House Judiciary Committee voted to report the ERA deadline removal favorably for a full vote by the House.  Unlike the all-male House Judiciary Committee that reported the ERA out in 1971, nearly one-third of the current committee consists of women. Several women of color on the committee, like Congresswoman Sheila Jackson Lee of Texas, explained why the ERA was still needed in the markup hearing.  Congresswoman Pramila Jayapal said that the ERA could reach discrimination based on pregnancy, childbirth, and caregiving responsibilities.  “A vote for the ERA is a vote for families,” she said, countering the 1970s STOP-ERA campaigns depicting the ERA as anti-family.

The House Judiciary Committee’s written report, issued in January 2020, suggested that the ERA

could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace. Additionally, under some theories, the ERA could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women, or support efforts to create gender balance in certain contexts.  Additionally, the ERA's prohibition against discrimination “on account of sex” could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.

In the floor debate leading to the House’s vote to lift the deadline, several Congresswomen from various states, ranging in age, race, and ethnic background, spoke to give the ERA meaning, including some who opposed it.  Speaker Nancy Pelosi said the ERA would help protect pregnant women and new mothers who were in the workforce.  Congresswoman Rashida Tlaib, the first Muslim woman ever elected to Congress, said that the ERA was “about women of color, women with disabilities, transgender women, immigrant women.” In both the Judiciary Committee report and the floor debate, ERA opponents expressed the fear that the ERA would expand abortion access, to which Judiciary Committee Chairman Nadler responded, “If people on the other side want to admit that equality of rights under the law means there must be a constitutional right to abortion, well, that is wonderful.“ Congress – the lawmaking body of democratically elected representatives from throughout the nation – is the only institution that can make the ERA address twenty-first century concerns, as new constitutional meanings emerge from dynamic dialogue with the political opposition.

In the Senate, Republican Lisa Murkowski has cosponsored S.J. 6, lifting the ERA deadline, along with Democrat Ben Cardin.  The Senate resolution now has 48 cosponsors.  On June 4, 2020, Senator Murkowski recognized the 101st anniversary of the Senate’s adoption of the women’s suffrage amendment. She pointed to Virginia’s ratification of the ERA and urged her Senate colleagues to remove the deadline. “I have asserted time and again . . . that you cannot put a time limit on women’s equality. . . Women’s equality is fundamental to the American way of life, and it is far past time to be expressly recognized in the Constitution.” In that same speech, she acknowledged the persistence of racial injustice and its connection to the struggle for women’s equality: “Today, June 4, is not only a recognition of women’s suffrage, but it is the funeral of George Floyd.”

Congressional efforts to remove the ratification deadline create opportunities for lawmakers to articulate why the ERA remains necessary and what its twenty-first century goals are. Congressional completion of ERA ratification will make the contributions of women lawmakers part of the twenty-first century ERA’s legislative history.  A judicial decision about the ratification deadline simply can’t do the feminist heavy lifting that the women in Congress are doing.  In 1978, women in Congress led the first extension of the ERA deadline, and clarified the ERA’s goals in those debates.  In the past year, as it debated the deadline removal, Congress has been at the center of updating the ERA to respond to the twenty-first century needs of all the nation’s people.  These meanings will become part of the ERA if Congress acts to remove the deadline.

Guest Blogger: MeToo in the Legal Profession

#MeToo in the Legal Profession

Daniela Kraiem, Associate Director Women and the Law Program, American University Washington College of Law

 

Anita Hill testifying at the confirmation hearing of Clarence Thomas was one of the events that shaped my life as a lawyer, a feminist, and a human being.  As the country watched this intelligent, competent black woman give her testimony, I saw what it meant to speak truth to power.  I understood that power would not pin laurels on you for bravery, but would instead denigrate you and spit on you and tell you to your face that your experience was a lie.   I learned that action requires much more than bravery, it requires sacrifice.

I also understood, when Clarence Thomas responded that the proceedings had descended into a high-tech lynching just how heavy weight of intersectional oppression is, and how it is always deployed in the service of protecting power. What white supremacy cannot accomplish, patriarchy will. 

At that time, as a young waitress, I had endured my own ration of sexual harassment.  But it wasn’t until much later, until I graduated from law school and started to make my way as a young lawyer and experienced a few very sketchy, borderline moments that I think I grasped the depths of what Anita Hill was up against.

Lawyers expect our profession to provide us with a kind of shield.  We are powerful, privileged people, even if we are also female or gay or a person of color or all or none of the above.  Our identity as a member of the bar provides us with the ability move freely in the halls of power….until we are harassed by someone even more powerful. 

The harassers within the legal profession are among the most powerful people on the planet—bar none.  When you’re harassed as a lawyer, it’s often by a judge, a legislator, the partner of your firm, the CEO of the company or the big client.  A person with unparalleled resources, cultural capital to burn, and ability to use the law as both a shield and a cudgel against you.   

We operate in a profession where confidentiality and discretion are paramount, refusing assignments is difficult, and our reputations are our currency.  Harassers use and abuse the ethical and social conventions of our profession to prevent victims from speaking out and speaking up.  The result? Persistent gender-based inequality among lawyers that seems to have no discernable cause. 

Much of the conversation around #MeToo starts to bleed—quite rightly in some cases—into conversation about crimes, about assault, and about a culture of violence.  But sexual harassment is also fundamentally an economic issue, one that warps our profession.  The cost is not just to the victims, who must figure out how to earn a living, despite the hostile environment they’re operating in. The cost is to all of us.  How many of us have not applied for a job, or turned down a plum assignment because taking it would have put us into close contact with someone who either the whisper network or gut instinct said would not be safe?  Avoiding sexual harassment shapes our choices, delimiting our options.  The language of choice (“You chose to turn down the assignment”; “You choose the less prestigious clerkship”) masks a sick, systemic tolerance for discriminatory behavior.  It’s not a leak in the pipeline, it’s the gaping hole.

The #MeToo moment is an opportunity for change, not just in the general law, but in lawyers.  There are specific and concrete steps that we can take now to make our workplaces exactly that—places where we work.  Where we represent our clients, or draft legislation, or decide cases.  Not places where we have to think about our basic safety and security. 

In February, a group of us came together to discuss concrete steps for change at #MeToo: Preventing Sexual Harassment in the Legal Workplace (February 19, 2018, American University Washington College of Law), sponsored by the Women and the Law Program at AU. I was inspired by these women and daunted by the amount of work to be done, starting with:

• Llezlie Green Coleman’s call to rethink the use of non-disclosure, confidentiality, and binding arbitration agreements in employment litigation;
• Cara Greene’s assessment that ethical obligations with teeth are needed to reinforce that our profession will not tolerate sexual harassment in any form; and
• Emily Martin’s reminder that of the need for federal legislation to create humane and effective procedures for reporting sexual harassment on the Hill, as well as her call to get involved with Time’sUp.

(See also these remarks by Daniela Kraiem, or watch the entire panel discussion complete with introductions by Kendra Brown, closing remarks by Ann Shalleck, and Q&A).

We also need to lead the change in our own workplaces.  Because of the immense cultural and political power wielded by harassers in the legal profession, we have to pay special attention to the even wider power differential for those who work with us, but who are not also lawyers. Court reporters, paralegals, administrative assistants, law clerks, interns, interpreters, bailiffs, correctional officers.  If a harasser is willing to risk harassing someone who is in any other context not afraid to sue your ass, how much more complicated is it for someone without our professional badges and power suits to shield them? We, as lawyers, have an especial obligation to the people we work with—to listen and watch and ask and to believe them when they tell us that something is making them uncomfortable—or worse.  Because of the power we possess, ours is a heightened obligation to not be complicit.

In the wake of #MeToo, I’ve thought often of Anita Hill and the lessons her experience etched on us. I’m looking for ways to repay the immense debt that I, at least, owe her for speaking out when doing so meant that she walked alone.  Working to end harassment in the legal profession—the context in which Clarence Thomas harassed Anita Hill, and the context in which Anita Hill fought back--is the right place to begin.

Too Pretty to be a Lawyer

From Guest Blogger Catherine Dunham, Professor of Law, Elon University School of Law 

Too Pretty: An Essay

The #MeToo moment is powerful and encouraging to those of us who have worked in uncomfortable environments for years.  In my high school years, there were retail managers who made up reasons to brush behind you as you ran the cash register.  Then, there were the college food service job years which included outright sexual propositions from same age colleagues and groping opportunities disguised as rides home (“let me reach across and get that door for you.”). Fast forward to my first professional environment with new shoes and proper clothes.  I was asked to pick things up, to walk across the room, to sit with older male clients and keep them company as they waited for my boss.  I knew it was creepy but I perceived myself as someone without power.  Also, the men were much older and seemed harmless.  To me, they were sad and unthreatening but, in retrospect, they probably saw themselves as first rate opportunities for a young gal like me.  I spent eight post college years in subordinate professional roles and literally lost count of the times I was propositioned and of the men who made the overtures.  At one particularly low point, a supervisor who positioned himself as my mentor, some 20 years my senior, made a full-scale play for me after months of uncomfortable flirting.  The encounter ended with me saying, “please don’t do this – I need this job.”  Thank goodness, he relented.  I left that encounter thinking I need to get into a better professional position so as not be treated like the Gal Friday, possibly available for anything, for the rest of my career.  So, I went to Law School.  Certainly, after I became a lawyer, this would stop. 

Law school was an oasis in my professional story.  I had great male and female student colleagues and felt respected for my intellect and hard work.  This calm faded as I entered the profession, particularly private practice where I was called upon for coffee runs in depositions when I was the only women in the room.  I was mistaken for a paralegal, a court reporter, a clerk, with one time reprimanded by an out-of-county lawyer who demanded I remain behind the bar as the counsel tables were available only for licensed attorneys.  I was called “honey,” “sweetie,” and “girl” by a person on every rung of the legal professional ladder.  There were also appearance-based comments by judges and jurors and the occasional “you are just too pretty to be a lawyer.”  For the record, I am not that pretty.  I was simply female and young and offered an alternative version of what lawyers in my rural practice area were supposed to look like.  But because I was a young woman, comments on my physical appearance were to be considered compliments. 

I learned to manage this terrain.  I refused coffee runs, openly chastised lawyers who called me “honey,” and responded to the “too pretty” comments with a good Southern comeback like, “thank you – you are much too old to be looking at women my age.”  In fact, my small firm which was all male sans me remains the most gender balanced environment I have ever worked in.  My male superiors were excellent trial lawyers who valued hard work and intelligence without a care about how you looked, who you slept with, and whether you had a life outside of the office.  If you did well, you were celebrated.  If you screwed up, you heard about it and received some direction to keep you from making the same mistake again. The firm environment was fair, which made up for the constant inequities of the rural southern courts where I practiced.  Even so, those years were the time in my life when I was most often a woman among men and I got a glimpse of the ease the permeates a non-diverse world.  The language was not modern but it was not all menacing.  I had grown up with good people who used old-fashioned language to discuss women so learned not to be too quick to judge a gendered, albeit gracious, phrase.

I expected the switch to legal academia to expose me to the Holy Grail of gender equality.  Law professors were progressive and would create and propagate fair and balanced environments.  Wrong.  Twenty years after that first brush up behind the cash register, I was still deciding how to deal with a creep.  The only difference was the creep’s tactics.  Law academia has included being told by a Dean that I should “just go home, take care of my kids, and let my husband pay the bills.”  Another Dean promised to “take care of me” if I followed his lead on voting and retaliated when I did not.  And I once had a student tell me he could not attend my class because it was against his personal beliefs for a man to learn from a woman. I have seen women colleagues painted as “shrill,” “passive,” “too aggressive,” “brash,” and just overall not good enough to play in the big leagues of real law teaching.  I have sat in meetings trying to convince male colleagues that when viewing the teaching evaluations of women (and minority) faculty, particularly those who teach in predominantly male, white schools, you must account for the power differences, understanding that minority teachers do not get the benefit of the doubt.  And I have watched male colleagues protect their territory against female interlopers by appointing themselves the junior female colleague’s unofficial mentor then using that access to offer an ostensibly credible assessment of the junior faculty member to the rest of the faculty.  “I have really worked with her but she just isn’t getting there.” On this point, I have seen male colleagues praised for protecting the quality of instruction and women colleagues criticized for being territorial.  Territorial men are protectors and providers.  Territorial women are like my border collie when the repairman comes; a nasty bitch.

Why do we accept that women will deal with a certain amount of skirt chasing and “boys will be boys” behavior in the workplace?  Because we view men as more and view women as less. Our cultural views come through in our language, public and private, whether we know it or not.  For a woman of my age, raised in the culture of the American South, language was a complicated mix of the sweet and the cruel which offered few guiderails for my journey into professional adulthood. It took years for me to begin to challenge the words used to describe me and other women and the subtext beneath the conscious word choices of my peers.  I must admit that when I was first told I was too pretty for something, it read as a compliment.  It took time for me to understand that words which celebrated physical attractiveness when those traits are not relevant are words that diminish.

I have lovely memories of my Great Uncle holding my hand and telling me I looked like Snow White. However, a father, grandfather, or uncle could show the same affection with other words, words which do not connect physical appearance with value thus confounding those two things in a way that confuses young women on their personal value.  In truth, members of my own family told me I was too pretty to be a lawyer, telegraphing the cultural assumption that attractive women can get husbands so don’t need careers.  These messages sent me off into the world confused about my value and my role.  When our cultural rhetoric focuses on the physical attributes of women, we devalue women and invite the aggressors.  And we are all too pretty for that.

Catherine Dunham is a Professor of Law at Elon University School of Law where she teaches Civil Procedure, Civil Litigation, and Litigation Skills including Trial Practice.  She has also served as a trial analyst for several major news outlets, including NBC and CNN. In addition to procedural topics, Prof. Dunham’s scholarship explores social psychology and legal education, as well as topics related to gender equity and unconscious bias. Prof. Dunham is also prior recipient of the ABA Smyth-Gambrell Award for Teaching Professionalism.

Gender and Political Discourse

By Guest Blogger Jamie Abrams

This is my third summer guest blogging with the Gender and Law blog.  In prior years, I have comfortably crafted an idea, polished the text, and published the blog for critique and discussion.  I have always received thoughtful engagement on the blog posts and the process of writing them has made me a better writer, scholar, and teacher.  For some reason, however, this approach has not worked this summer.  I have struggled greatly with why that is so, particularly in a year in which the battle for gender equality seems to be slipping so far in the wrong direction.  Indeed there are endless articles and current events on which I could be writing.   

In struggling to understand this newfound writer’s block, I came across the article The Believing Game – Methodological Believing by Peter Elbow.  This article resonated with me on a deep level in thinking about the status of modern political discourse and its relevance to gender equality.  In summary, the author argues that we are born as methodological “believers.”  We begin life inherently believing the things our parents and those in authority tell us.  We are welcome to new ideas and open to listening eagerly and sincerely.  Over time, we are taught to engage instead in what Elbow calls “The Doubting Game.”  This, Elbow explains, “represents the kind of thinking more widely honored and taught in our culture” in which we learn the “disciplined practice of trying to be as skeptical and analytic as possible with every idea we encounter.”  This doubting game dominates modern thinking and indeed it dominates the traditional law school curriculum.  Applying Elbow’s thesis to modern times, the doubting game seems to govern how we process news, how we vote, how we interact with others in nearly every political and social respect.

As a culture, however, Elbow argues that we have not developed methodological believing to match our skills for doubting.  By this he means that we don’t know how to use belief as a tool to decide whether to accept or reject a particular position.  Yet the believing game offers critical additional tools to help us find flaws in our own thinking.  It allows us to test our very assumptions by trying to understand what is valid and worthy of belief in a different viewpoint.  It allows us to find “hidden virtues” in positions as a tool to strengthen our own thinking.  The “believing game” pushes us to “dwell in an idea” to try to understand it.  The question of rejecting or accepting the idea is another matter entirely, but it is through belief in the idea that we process and understand the idea in the first instance.

These methodological approaches are also closely connected to gender norms.  The doubting game – which dominates so much of our political and social discourse today – is associated with masculinity, Elbow notes, in its emphasis on arguing, challenging, resisting, pushing back.  Whereas the believing game is much more associated with femininity in that it emphasizes listening, relating, understanding. 

Elbow ultimately concluded in 2008 that we are losing the lens and the language to engage in methodological believing.  This thesis seems even truer today.  As I absorbed this article, a lot of things began to fall into place for me.  I wondered if my struggle to blog, or even to engage in any political discourse on social media since the election comes from the painful realization that such efforts are largely futile to the extent that they try to promote a greater understanding. 

This article leads me to a few conclusions.  First, it reminds me that the stagnant role of women in politics is deeply concerning for the longstanding critique of who is governing and the representativeness of our political leadership.  But also that gender inclusion and diversity more broadly in politics stands to shape how we are governing and engaging in political discourse generally.  Second, it reminded me that rather than digging in deeper on defending and supporting our views, we need to better frame the rigor of political discourse.  How to do that, of course, is the bigger question to which I have no answers.  All that I share here is that diagnosing the problem as one rooted in our very approach to the methodology of critical thought helped me for a moment to see past the “fake news” and ideological divides that govern the headlines today.  It helped me to realize that the gender equality project is about more than just a group of individual legislative reforms or initiatives.  It is connected to the very values that we embrace and idealize in political discourse.

Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism.

The N.F.L.’s Domestic Violence Policy: Revealing the Limits of an Internalities Approach to Domestic Violence

From Guest blogger, Jamie Abrams:

The National Football League’s (NFL’s) response to domestic violence provides a good example of the limits of internalities and the expansive and transformative power of externalities to apply a framework introduced in my last blog entry.  In August 2014, the NFL Commissioner Roger Goodell announced a new Personal Conduct Policy. The policy was enacted after a high profile case of domestic abuse involving Ray Rice and his then-fiancée.  Commissioner Goodell faced harsh criticism for allegations against him ranging from giving Rice an inappropriately light punishment to attempting to cover up the scandal by ignoring the existence of the security camera footage until the media released it.  The revised policy stated that assault, battery, domestic violence or sexual assault involving physical force would be subject to a suspension of six games without pay for the first offense.  The suspension would apply regardless of whether the player was formally charged.  A second qualifying offense would lead to a lifetime ban from professional football.    The NFL sought to ensure a “fair and consistent process for player and employee discipline” that would “set a higher standard.”

The NFL’s response, however, rested entirely on internalities.  It depended on the victim coming forward to report the allegations of assault.  It added an additional punitive and professional outcome to the existing criminal and civil consequences.  In its application, the policy only raised the stakes for the victim in coming forward to report domestic violence against prominent athletes.  This approach is inherently limited in its efficacy and insulates the NFL (which is a proxy for the state in this example) from accountability.

When understood in the context of externalities and broader political framings, the NFL could have dramatically reframed its approach in actually using its power as the NFL to change behaviors.  The culture of the NFL could have been more closely examined to see the ways in which it acts as a provoker of domestic violence and the ways in which it could better prevent domestic violence.  For example, in a highly masculine environment, might the publicity, threatened job loss, and income loss embedded in the NFL policy – particularly when initiated by the victim – actually exacerbate the risk of domestic violence?  Might the NFL work to change its culture of masculinity in ways that effectively address the medical, social, and statistical risks of domestic violence that are unique to NFL culture? 

Expanding the lens to include externalities offers an insightful contrast to consider what might be missing from an internalities approach.  It reveals how the NFL camaraderie and the team atmosphere of the NFL might be leveraged to create positive peer associations and stronger cultural values and beliefs about healthy relationships.  It reveals how the NFL might also provide more support for its players who are prior victims of abuse or witnesses of abuse or hold other risk factors.  With the power and resources of the NFL expanded to an externalities approach, perhaps stronger lasting change could be achieved.

 

Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

Moving Beyond the Internalities of Domestic Violence

Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

 

Imagine if domestic violence activists could reframe its politicization and present the issue for public response anew.  How would the issue be framed and described?  What legal solutions would be identified?  Who would be accountable for effective results?  I suggest that such an exercise would reveal that the domestic violence movement is politicized around the internalities of victims and perpetrators in ways that collaterally restrain efforts to end domestic violence. 

Internalities are the condition of being internal or contained within.  This term describes the ways in which domestic violence is politicized as a problem internal to the relationship in which it occurs.  In this internalities framing, there are two actors – the victim and the perpetrator.  Other actors, such as law enforcement, social support services, and lawyers, all intervene to assist once initiated, but the problem and legal responses to it are understood and defined by its internalities.  The internalities framing puts our focus on the victim and the perpetrator as a contained unit:  How can this victim be protected?  How at risk is this victim for future violence?  How will the perpetrator be prevented from contact with this victim?   The “crisis” of domestic abuse is built around the victim and her needs, an understandable point of emphasis from a public safety and health standpoint,  but a narrow one from the perspective of ending domestic violence.

There are considerable strengths to an internalities framing, particularly when understood in historical context.  It uniquely grew out of understandings of domestic violence as discerned from women victims and the consciousness-raising dialogues that brought these individual experiences together collectively. This framing gave powerful voice to a silent epidemic historically insulated in the family with minimal state intervention or response.   Giving voice to the experiences of survivors and developing social, political, and legal interventions to those experiences is one of the greatest accomplishments of the second-wave feminist movement.

There are also inherent limitations to this approach.  From a politicization perspective, an internalities framing risks politicizing domestic violence as if it spontaneously erupts out of the relationship, which insulates the state from accountability.  Consider, for example, the iconic “Cycle of Violence.”  It visually depicts and explains abuse as a single victim and a single perpetrator on a continuous cycle without externalities or collateral harms to family, community, employers, the economy, etc.  It pretends that abuse just erupts and sustains itself on this cycle within the internal family unit, without consideration of the political, economic, social, legal, medical triggers that also play a role.  Lethality risk assessments likewise ask victims about internalities only, such as victim pregnancies, perpetrator drug/alcohol abuse, perpetrator weapon access, and recent violent incidents between the two.

There is an interesting power paradox embedded in this internalities approach.  Victims gain autonomy by shaping law reform approaches and framing domestic violence in the public arena, but they, in turn, hold implicit accountability for the effectiveness of those interventions.  This autonomy paradoxically immunizes the state and perpetrators from accountability, which was the exact goal of the early battered women’s movement.  This creates an insider-outsider politics that positions the victim as the insider party accountable for effective interventions and risk assessments.  The state is cast merely in a supporting role coming to her aid as an outsider.  This insulates the state from accountability and casts the crisis and accountability for effective solutions around the victim, rather than the perpetrator. 

This framework ignores the ways in which state actors in the judicial and law enforcement process might provoke or exacerbate risks of family violence or might exercise more proactive risk assessments and accountability.  It also ignores the ways in which those externalities will likely lead the perpetrator to recidivist behaviors with a new partner even if the state were able to successfully break the cycle of violence in the preceding relationship.

Missing from this framing of violence are the ways in which externalities can play a critical role in exacerbating, triggering, and facilitating domestic violence.  Some examples of relevant externalities systemically excluded from our politicization of domestic violence are economic distress, the perpetrator’s own history of prior abuse, job loss or dissatisfaction, mental illness, larger gender inequality and cultural norms, and changes in custody/parenting status.  Ignoring externalities compromises the extent of state interventions; fictionalizes the family as an isolated unit separated from other political and social systems; and reveres state actors as universally working to end family violence, ignoring the possibility that state action can also sometimes provoke or exacerbate violence.

Note:  This blog post previews arguments that I make in a forthcoming chapter in the book The Politicization of Safety (N.Y.U. Press) following a conference on The Politicization of Safety organized by Jane Stoever at the University of California–Irvine School of Law this April. 

Modern Pedagogical Challenges (and Opportunities) in Teaching Gender Courses

 

We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

 

As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses.  When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation.  After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques. 

In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements.  The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord.  Law schools are notably implementing these pedagogical reforms in a time of great political division.  From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity.  University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.  

Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content.  This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog.  How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers?  The stakes are high.  In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods.  This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.  

This is a pedagogical conversation that gender faculty should lead and engage.  In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback.  Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing.  We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.

Guest Blog: MothersEsquire: A Professional Community for Lawyer Moms

We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

 

MothersEsquire:  An Introduction to a Supportive Community

As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession.  I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained.  I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups.  The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life.  The same outsider phenomenon can also describe the role of students attending these events.  I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.  

This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession:  MothersEsquire.  This year has been an important one for the organization of women’s groups.  From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year.  The MothersEsquire organization stands out in a couple of key ways. 

First, it is not limited to geographical boundaries or bar licensure borders.  For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside.  This is an obstacle, or at least a deterrent, to my participation in local bar events.   The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner. 

Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc.  As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities.  For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time.  The organization is also working on breastfeeding accommodations.  It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.

Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations.  Certainly, not all women lawyers are mothers or identify as mothers.  Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession.   For those that do, however, this group provides an outlet, an information source, a networking portal, and more.  Its website explains:

“We are Moms.  We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school.  We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night.   And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”

Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin.  Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so.  This group is distinctively inclusive.  It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that.  Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers. 

For more information about MothersEsquire join the Facebook group or check out its website:  I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.     

Re-Entrenching Stereotypes About Gendered Violence?

 In thinking about new ways to end gendered violence, it may be time to reconsider the ways in which the law normalizes male violence and marginalizes women’s violence and how this binary treatment re-entrenches stereotypes. Consider, for example, the standards in the Kentucky Batterer’s Intervention Program (BIP). Many aspects of the Kentucky BIP requirements are the same for men and women, such as the requirements to provide content defining domestic violence, discussing the cycle of violence, and developing nonviolent methods for resolving conflict. 920 Ky. Admin. Regs. 2:020 (1)(10) (2015). Male abusers, however, are uniquely instructed in the: “confrontation of rigid sex role stereotyping” and “development of a relapse prevention technique.” Importantly, the focus on relapse prevention is in addition to the requirements of challenging a male client’s “pattern of aggression in a conflict with a victim” and exploring “a constructive and nonviolent method for resolving conflict in a relationship” that already apply to both men and women’s BIP programs.

Women share the male curriculum, except for the provisions cited above, which do not apply to women. Women do not consider sex stereotyping or the prevention of relapse. Instead, women’s programs focus on the following areas unique to women’s BIPs: “[e]xploration of life experiences and belief systems that have fostered choices for violent behavior;” and “[s]afety planning and knowledge of domestic violence resources.”

This suggests that women must uniquely account for their violence. It suggests that something went wrong for women in their lives and experiences, whereas men were expected to commit violence. Men’s violence is framed as uncontrollable and relapses are expected. Women’s violence is an aberration and a choice. Women do not plan to relapse; they prepare to be future victims accessing domestic violence resources. Instruction on safety planning and resources is a startling requirement for perpetrators of domestic violence, particularly after women under this statute are already uniquely required to qualify for eligibility.

These gendered differences in BIPs suggest that some life experience fostered violence as an aberration for women. Why should women not study the sex stereotypes that underlie their use of violence as well? Why should men not also explore the life experiences and belief systems that fostered their behavior? Is not men’s violence a choice as well? Seemingly, these differences might send a message of despair and pessimism to victims of men’s violence and a message of incredulity to victims of women’s violence. Is the law here re-entrenching gendered stereotypes about violence in problematic ways?

This blog is adapted from my research originally published in The Feminist Case for Acknowledging Women’s Acts of Violence available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790940.