Tuesday, December 4, 2018
The Case of Edith Haynes Denied Admission to the Bar in 1900 Australia Because Women Were not "Persons"
Margaret Thornton, Challenging the Legal Profession A Century On: The Case of Edith Haynes, 44 Univ. West. Australia L. Rev. (2018)
This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.
Wednesday, November 28, 2018
Last year, 137 women across the globe were killed every day by intimate partners or relatives.
According to the 2018 report on the killing of women and girls released Sunday by the U.N. Office on Drugs and Crime, about 87,000 were killed worldwide in 2017, 58 percent of them victims of domestic or family violence.
Many of these deaths could have been prevented.
Jean-Luc Lemahieu, director of policy analysis and public information at the U.N. Office on Drugs and Crime, told The Washington Post that more than 30,000 of those deaths were the result of domestic abuse.
Domestic homicides are “the tragic end of a cycle of abuse and violence,” Lemahieu said. “When a female loses her life, it is not without predictions — you see incidences of verbal and other forms of violence. The pattern is established long before the homicide.”***
The report found that the likelihood of women being slain by relatives or intimate partners has increased by more than 10 percent since 2012; women in the Americas and Africa are now the most at risk.
The report also called for a coordinated response from law enforcement that empowers and protects victims and holds their abusers accountable. Several countries have launched initiatives and training to combat gender-based violence.
“Underreporting of domestic abuse highlights the justice system as one area in need of much work,” Lemahieu said. He cited figures from Italy, which reported that 31,500 women out of every 100,000 ages 16 to 70 will experience physical and sexual violence, according to a lifetime survey. Domestic homicides occur in 0.4 percent of those cases, while 35 will report domestic abuse to authorities.
Thursday, November 15, 2018
Women have taken to social media to share photos of their underwear after a 27-year-old man was acquitted in a rape trial during which the woman's 'thong' was brought up in court.
The criminal court case ended with the man being found not guilty of raping a 17-year-old in the city of Cork in Ireland.
But the defence barrister's argument garnered widespread attention after she told the jury to take into account what the teenager was wearing.
"You have to look at the way she was dressed. She was wearing a thong with a lace front," she said, according to the Irish Examiner newspaper on 6 November.
This prompted Irish MP Ruth Coppinger to show blue lacy underwear in the Dáil (Irish parliament) and share a powerful message to her colleagues.
"It might seem embarrassing to show a pair of thongs here... how do you think a rape victim or a woman feels at the incongruous setting of her underwear being shown in a court?"
Since the media attention, many women have turned to social media and post photos of their underwear accompanied by the hashtag 'This Is Not Consent'.
For the original report of the trial and the alleged incident, see Irish Examiner, Counsel for Man Acquitted of Rape Suggested Jurors Should Reflect on Underwear Worn by Teen Complainant
Sharon Thompson, Feminist Relational Contract Theory: A New Model for Family Property Agreements, 45 J. Law & Society 617 (2018)
In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.
Tuesday, November 13, 2018
Ronagh McQuigg, Is it Time for a UN Treaty on Violence Against Women?, 22 Int'l J. of Human Rights 305 (2018)
Violence against women is one of the most prevalent human rights abuses at the global level. However, no specific mention of this issue is made in any of the UN treaties. This article begins by discussing why any express reference to violence against women was excluded from the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and then proceeds to examine existing efforts at the UN level in this area. However the key focus of this article is on the new and important question of whether it is now time for a specific treaty on violence against women to be adopted at the UN level. The article analyses the arguments surrounding the adoption of a global treaty on violence against women, and aims to provide a detailed examination of this highly significant area of law, while seeking to offer original insights on this issue. It is ultimately concluded that, despite the undoubted challenges which would be involved, it is nevertheless time for the development and implementation of a UN treaty on violence against women.
Wednesday, November 7, 2018
The single greatest antidote to poverty and social stagnation is the emancipation of women. Wherever this has been tried, wherever women have been empowered to do as they wish, the economy and the culture have been radically improved.
A new book by Augusto Lopez-Claros, a senior fellow at the School of Foreign Service at Georgetown University, and Bahiyyih Nakhjavani, an Iranian writer and novelist, is among the first to comprehensively test this proposition by surveying data from 189 countries. Titled Equality for Women = Prosperity for All, the book shows how gender inequalities — in education, income, law, employment, and wages — lead to instability and chaos at almost every level of society.
A conversation with the author follows.
Wednesday, October 17, 2018
It was not until Lenahan v. United States that many U.S. domestic violence advocates incorporated the human rights framework in a conscious and organized way. Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan case is then discussed. Part III addresses needed change within the U.S. civil law systems if the country is to affectively adopt a human rights perspective in matters of domestic violence and other human rights abuses.
Monday, October 1, 2018
A policy takes effect on Monday that could increase the risk of deportation for undocumented immigrant victims or witnesses of crimes. The agency that considers visa applications will begin to refer immigrants for deportation proceedings in far more cases, including when a person fails to qualify for a visa. The policy would also constrain officers' discretion.The new US Citizenship and Immigration Services policy specifically applies to visas designed to protect victims of violent crime and trafficking, including some created under the Violence Against Women Act. Those visas will give legal status to victims who report or testify about crimes.The result: Victims who apply for the special visas but fall short, including for reasons like incomplete paperwork or missing a deadline, could end up in deportation proceedings. Previously, there was no guidance to refer all visa applicants who fall short to immigration court for possible deportation. Under the new policy, it'll be the presumption. Advocates for immigrants worry the risk will be too great for immigrants on the fence about reporting their crimes.Other policies that especially impact women and victims include:
- The now-reversed "zero tolerance" prosecution policy that separated thousands of parents and children who crossed the border illegally, many who said they were fleeing violence at home.
- Anti-sanctuary city efforts and arrests of immigrants at courthouses, which local police and immigrant advocates say has already had a chilling effect on immigrant victims reporting crimes.
- Reversing a policy to automatically seek the release of pregnant immigrants from detention, allowing the government to detain more of them.
- Seeking to keep teens in immigration detention from obtaining abortions.
- Dramatically lowering the number of refugee admissions to the US.
- Another Sessions ruling that would restrict immigration judges' ability to close or suspend deportation proceedings while the immigrant is still waiting for the government to rule on their visa application. Some victims' visas have years-long backlogs.
- Tightening asylum thresholds that advocates fear diminish officers' latitude to consider trauma as an explanation for certain behaviors. The concern is traumatized individuals could come across as noncredible when they are rather exhibiting symptoms of their trauma.
- An expected move to stop issuing work visas to the spouses of high-skilled immigrants, which would impact immigrant spouses' ability to have some independence in the marriage.
- Regulations being drafted that would try to prevent immigrants from gaining asylum if they enter the US illegally.
Wednesday, September 19, 2018
The UK's highest court is to have a female majority hear a case for the first time in 600 years.
Almost one hundred years after a law was passed allowing women to practice as barristers, three women and two men will decide a case in the highest court in the country.
Three of the five judges who are set to hear a Supreme Court case on October 3 about a 16-year-old with Asperger's Syndrome and learning difficulties are female.
Lady Hale, the court's first female president, has previously spoken out about the need for more women at the top of the judiciary. Earlier this year she said women were "seriously underrepresented" among senior judges, warning that women were forced to move into the public sector because of the difficulty of combining high-flying legal jobs with family and caring responsibilities.
Wednesday, August 29, 2018
Every year, thousands of people are accused of witchcraft and face persecution, abuse, and even death. Now the United Nations is organizing to defend victims of witch hunts.
According to the UN, reports of witch hunts are on the rise, and cases are becoming more violent and prevalent across the globe. Experts and academics hope that the conference will raise awareness of the phenomenon so that it can be better understood as a human rights problem and integrated into the UN's approach to humanitarian issues.
"Witchcraft beliefs are encountered on virtually all continents," explains Dr. Charlotte Baker, who launched the upcoming meeting with funding from Lancaster University. "Globally, witchcraft accusations and persecution have resulted in serious violations of human rights including beatings, banishment, cutting of body parts, amputation of limbs, torture and murder."
The UN has identified women, children, the elderly, and people with disabilities as those most at risk of witch-related abuse. Foxcroft says that the violence can look different from country to country, from "elderly women being beaten, tortured, and killed in places like Kenya, Papua New Guinea, and India" to abuse in Nigeria and the Democratic Republic of Congo, where it is "mainly children who are targeted." According to the WHRN, those with albinism, autism and Down's syndrome have been targeted by such accusations, while a claim against an older woman is often used as an excuse to acquire her land and property.
What these cases share in common, however, is the startling lack of response from local judicial systems and the resulting impunity for the perpetrators. Branding someone a witch has historically been used to justify abuse, particularly by patriarchal religious leaders (see: the infamous Salem witch trials of the 1690s), and experts like Foxcroft believe that the spread of witchcraft-related human rights abuses is exacerbated once more by faith leaders who spread malevolent beliefs in witchcraft to exploit people or extract money from the fearful public.
Sara Dehm & Jenni Millbank, Witchcraft Accusations as Gendered Persecution in Refugee Law, Social & Legal Studies (2018)
Witchcraft-related violence (WRV), in particular directed towards women and children, has become a source of increasing concern for human rights organisations in the current century. Yet for those fleeing WRV this heightened attention has not translated across into refugee status. This research examines how claims of WRV were addressed in all available asylum decisions in English, drawn from five jurisdictions. We argue that WRV is a manifestation of gender-related harm; one which exposes major failings in the application of refugee jurisprudence. Inattention to the religious and organisational elements of witchcraft practices, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges, or family or community disputes, such that they were not cognisable harms within the terms of the Refugee Convention; or they were simply disbelieved as far-fetched. The success rate of claims was low, compared to available averages, and, when successful, claims were universally accepted on some basis other than the witchcraft element of the case. This article focuses in particular upon cases where the applicant feared harm as an accused witch, while a second related article addresses those fearing persecution from witches or through the medium of witchcraft
Jenni Milbank & Anthea Vogl, Adjudicating Fear of Witchcraft Claims in Refugee Law, J of Law & Society (2018)
This research examines claims of witchcraft related violence (WRV) in asylum decisions. In refugee applications involving WRV those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. We argue that WRV is a manifestation of gender-related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of Religion, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside of what is understood to be objective, verifiable, or Convention-related. Male applicants struggled to make their claims comprehensible as a result of the feminised and ‘irrational’ characterization of witchcraft fears and beliefs.
Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture
Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)
International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.
Monday, August 27, 2018
Felice Batlan, Deja Vu and the Gendered Origins of the Practice of Immigration Law: The Immigrants’ Protective League, 1907-1940, Law & History Rev. (2018)
This essay from Felice Batlan was written after she spent days protesting at Chicago's O'Hare airport in response to Trump's "Muslim Ban." The article is posted on Law and History Review's multi-media digital platform which provides hyperlinks to both primary and secondary sources making it freely accessible and ideal for classroom use.
Donald Trump’s administration has provoked crisis after crisis regarding the United States’ immigration policy, laws, and their enforcement. This has drastically affected millions of immigrants in the U.S. and those hoping to immigrate. Stemming from this, immigration lawyers and immigrant advocacy organizations are challenging such policies and providing an extraordinary amount of direct pro bono legal services to immigrants in need. Yet the history of the practice of immigration law has been largely understudied. This article addresses this history by closely examining Chicago’s Immigrants’ Protective League between 1910 and 1940. The League provided free counsel to tens of thousands of poor immigrants facing a multitude of immigration-related legal issues during a time when Congress passed increasingly strict immigration laws often spawned by xenophobia and racism. The League, always headed by women social workers, created a robust model of immigration advocacy at a time when only a handful of women were professionally trained lawyers. A close and thick reading of the League’s archival documents, manifests how the events of Trump’s immigration policies have a long and painful history. U.S. immigration law and its enforcement have consistently been cruel, inhumane, arbitrary, and capricious. Told from the ground up and focusing upon the day-to-day problems that immigrants brought to the League, one dramatically sees how immigration laws and practices were like quicksand, thwarting the legitimate expectations of migrants, and, at times, leaving people in an endless legal limbo. The League, in response, participated in creating what would become the practice of immigration law, engaging, and quickly responding to changing laws, rules, policies, and the needs of migrants.
Tuesday, July 31, 2018
New Zealand will grant victims of domestic violence paid leave from work, in a move that activists say will give people the time to move out and seek shelter for themselves and their children without losing their jobs.
Members of Parliament approved a bill allowing the change by a vote of 63 to 57 on Wednesday night, giving domestic abuse survivors, as well as those caring for young victims, 10 days off from work in addition to their regular paid vacations.
The measure, known as the domestic violence victims’ protection bill, will take effect next April, making New Zealand the second country in the world to pass such legislation, after the Philippines. * * *
New Zealand gave all women the right to vote in 1893, the first self-governing country in the world to do so, and its prime minister, Jacinda Ardern — currently on parental leave — is the third woman to hold the job. But its domestic and sexual violence rates are among the highest in the world.
A 2011 United Nations report said that 30 percent of women in New Zealand had suffered domestic abuse in the previous decade, with 14 percent experiencing sexual violence. A 2017 report in The New Zealand Herald said that the country had “the worst rate of family and intimate-partner violence in the world,” estimating that 525,000 New Zealanders were harmed every year.
New Zealand has passed legislation granting victims of domestic violence 10 days paid leave to allow them to leave their partners, find new homes and protect themselves and their children.
MPs clapped and cheered as bill passed on Wednesday night with 63 votes to 57. It is the result of seven years of work by Green MP Jan Logie, who worked in a women’s refuge before she became a politician.
Thursday, July 26, 2018
Nermeen Arastu, Janet Calvo, and Julie Goldscheid, What Jeff Sessions' Efforts to Deny Asylum to Domestic Violence Victims Look Like, Slate
Last week, the Department of Homeland Security released a policy memorandum providing guidance on how United States Citizenship and Immigration Services officers should implement Attorney General Jeff Sessions’ decision last month to do away with asylum for most domestic violence survivors. Sessions’ decision in Matter of A–B–, a case involving a domestic violence survivor’s application for asylum, overturned a prior ruling that explicitly recognized that those fleeing domestic violence may qualify for asylum. With the A–B– decision and accompanying guidance, the administration aims to reject decades of reform by flatly stating that these claims “in general” will not be grounds for asylum relief. These steps confirm the administration’s efforts to thwart our country’s prior commitments to end gender violence and support survivors, and to place the United States outside the global consensus, flouting international law.
Caroline Bettinger-López and Rachel Vogelstein, Sessions' Draconian Asylum Decision, Foreign Affairs Mag.
U.S. Attorney General Jeff Sessions made a radical decision that will undoubtedly result in death or significant harm to some of the world’s most vulnerable women: victims of domestic violence who live in countries that do not, or cannot, protect them from their abusive partners. Over the past two decades, the United States has provided a safe haven to many of these women through its asylum laws. In a heartless move that flouts established U.S. law and international human rights standards, Sessions found that a domestic violence victim from El Salvador—perhaps the most dangerous country on earth in which to be a woman—would not qualify for asylum, even though her own country had utterly failed to protect her.
In previous years, whether the United States was under a Republican or Democratic president, such a decision would have been unthinkable. The State Department’s human rights reports routinely criticize other countries for their lack of protections for domestic violence survivors, and U.S. asylum laws have evolved over the years to account for the multiple forms of persecution that victims may suffer—including persecution at the hands of a private actor—when their governments fail to provide protection.
Asylum protections for victims of gender-based violence have been well established for decades—not only in the United States but also under the international human rights system. The United Nations’ 1951 Refugee Convention established the right to claim asylum on the basis of gender-based persecution and crimes. Historically, nations treated domestic violence as a private matter to be resolved between partners and families. But in modern times, violence against women has come to be understood as a human rights violation—a form of gender-based discrimination that subordinates and oppresses women.
Wednesday, June 13, 2018
Attorney General Jeff Sessions on Monday made it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence, in a ruling that could have a broad effect on the flow of migrants from Central America.
Mr. Sessions’s decision in a closely watched domestic violence case is the latest turn in a long-running debate over what constitutes a need for asylum. He reversed an immigration appeals court ruling that granted it to a Salvadoran woman who said she had been sexually, emotionally and physically abused by her husband.
Relatively few asylum seekers are granted permanent entry into the United States. In 2016, for every applicant who succeeded, more than 10 others also sought asylum, according to data from the Department of Homeland Security. But the process can take months or years, and tens of thousands of people live freely in the United States while their cases wend through the courts.
Mr. Sessions’s decision overturns a precedent set during the Obama administration that allowed more women to claim credible fears of domestic abuse and will make it harder for such arguments to prevail in immigration courts. He said the Obama administration created “powerful incentives” for people to “come here illegally and claim a fear of return.”
Asylum claims have expanded too broadly to include victims of “private violence,” like domestic violence or gangs, Mr. Sessions wrote in his ruling, which narrowed the type of asylum requests allowed. The number of people who told homeland security officials that they had a credible fear of persecution jumped to 94,000 in 2016 from 5,000 in 2009, he said in a speech earlier in the day in which he signaled he would restore “sound principles of asylum and longstanding principles of immigration law.”
“The prototypical refugee flees her home country because the government has persecuted her,” Mr. Sessions wrote in his ruling. Because immigration courts are housed under the Justice Department, not the judicial branch of government, he has the authority to overturn their decisions.
“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances,” he added. “Yet the asylum statute does not provide redress for all misfortune.”
His ruling drew immediate condemnation from immigrants’ rights groups. Some viewed it as a return to a time when domestic violence was considered a private matter, not the responsibility of the government to intervene, said Karen Musalo, a defense lawyer on the case who directs the Center for Gender and Refugee Studies at the University of California Hastings College of the Law.
“What this decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it,” she said.
Attorney General Jeff Sessions recently issued a ruling denying asylum to female victims of domestic abuse and gang violence. His decision, which ruled against a Salvadoran woman who had been severely abused by her husband, concludes that such victims "generally" don't qualify for asylum under a federal law that grants asylum to any refugees who is "unable or unwilling to return to [her home country], and is unable or unwilling to avail . . . herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The decision overrules two prior Justice Department Board of Immigration Appeals decisions, which granted asylum to female victims of domestic abuse in Guatemala and El Salvador. Sessions' ruling is legally problematic. But, perhaps even more importantly, it highlights the arbitrary injustice of a policy that denies asylum to victims of horrible persecution as bad as that which falls within the scope of the rules.
The key legal question in the case is whether Salvadoran victims of domestic violence qualify as people with "a well-founded fear of persecution" based on their "membership in a particular social group." The phrase "particular social group" is far from precise. But, as Sessions recognizes, courts have generally defined it as a group "composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." It should be obvious that women qualify as a group that shares "a common immutable characteristic," and that they are also a group that is "socially distinct" and "can be defined with particularity." It is true that gender is not completely immutable in an age of sex change operations. But it is surely sufficiently so to qualify under the rules. And you don't have to be a radical feminist to recognize that, in highly sexist societies like El Salvador and Guatemala, which have a "culture of machismo and family violence" (as one of the BIA decisions overruled by Sessions puts it), domestic violence against women flourishes in large part because of gender bias. And such bias helps account for the failure of the authorities to effectively curtail such abuse. Recognizing that does not require us to assume that all Guatemalan and Salvadoran men are sexist or violent, or that all law enforcement officials in those countries are misogynists, merely that such attitudes are sufficiently widespread in those countries that they account for much of the danger faced by female victims of domestic violence.
Wednesday, March 28, 2018
Foreign Secretary Boris Johnson has been reprimanded by Commons Speaker John Bercow for using sexist language.
Speaker Bercow intervened - to applause from some Labour MPs - after Mr Johnson referred to shadow foreign secretary Emily Thornberry as Lady Nugee.
Ms Thornberry is married to High Court judge Sir Christopher Nugee - but chooses to go by her maiden name.
Mr Bercow said it was "inappropriate" and sexist to refer to her as Lady Nugee.
He said MPs should be called by their names and not by the titles of their spouses.
Mr Johnson had to be reminded of Ms Thornberry's title by MPs, as he answered a question from a Conservative MP on the Commonwealth, calling her "the Baroness, whatever it is, I cannot remember what it is... Nugee".
Mr Bercow rebuked the foreign secretary, telling him: "We do not address people by the titles of their spouses.
"The shadow Foreign Secretary has a name, and it is not 'Lady something'. We know what her name is. It is inappropriate and frankly sexist to speak in those terms, and I am not having it in this Chamber.
"That is the end of the matter. No matter how senior a Member, that parlance is not legitimate. It will not be allowed, and it will be called out."
Mr Johnson subsequently apologised for his "inadvertent sexism."
Ms Thornberry has occasionally been teased about her formal title by Conservative critics and in February last year complained to Mr Bercow when Theresa May referred to her as Lady Nugee in the Commons.
"Is it in order for the prime minister to refer to a member of this House not by her own name, but by the name of her husband?" the Islington South MP said in a point of order.
"I have never been a Lady and it will be a great deal more than being married to a Knight of the Realm in order to make me one."
Mrs May said: "If the Honourable Lady is concerned about the reference that I made to her, of course I will apologise for that.
"I have to say to her, though, that for the last 36 years I have been referred to by my husband's name."
Tuesday, March 27, 2018
Petra Foubert, The Enforcement of the Principle of Equal Pay for Equal Work or Work of Equal Value: A Legal Analysis of the Situation in the EU Member States, Iceland,Liechtenstein and Norway (July 2017)
Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called "unadjusted" gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.
Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context
Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)
Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.
Friday, March 23, 2018
Marcia Zug, Make Immigration Great Again: How Morales-Santana Could Signal the End of Sexist Immigration Law and Provide a Way to Fight the Travel Ban, Wake Forest L. Rev. (forthcoming)
Gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread. However, prior to the Supreme Court's recent decision in Morales-Santana, these distinctions have been consistently upheld. Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is extremely important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination. Moreover, given immigration law’s long history of gender bias, the possibilities for discrimination claims are numerous and thus, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project. International Refugee limited the scope of the government’s proposed travel ban and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.Reading the two cases together, this essay suggests that gender discrimination claims may provide a new and effective means of challenging the travel ban, particularly if the current race and nationality based challenges fail.
Thursday, March 22, 2018
Cindy Ostberg & Matthew Wetstein, Strategic Behavior and Leadership Patterns of Modern Chief Justices
This study uses theories of strategic behaviour, leadership change and feminist theory to examine patterns of judicial activity by the three post-Charter chief justices. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973-2014 period. While Chief Justice Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin after her promotion to chief. She moved from a prolific dissenter as an associate justice to a chief that exhibited behaviour of both a task and social leader, which scholars see as highly uncommon. Her efforts to solidify her central role as a collegial leader within her own court are remarkable, and took place during a period of increasing panel sizes and a shrinking court docket.