Friday, May 24, 2024

The Life and Work of the First Woman Elected Justice of the Peace, Catharine Waugh McCullough

Sandra Ryder, Clearing the Bar: Catharine Waugh McCullough and Illinois Legal Reform

Catharine Waugh McCulloch was one of the first women admitted to practice law in Illinois, and the 18th woman admitted to practice in front of the U.S. Supreme Court. After graduating from law school and passing the bar, she experienced difficulty finding a legal position in Chicago, so she opened an office in Rockford, Illinois, where she often took on destitute women clients. She initiated the shared writing among women attorneys, which became the Equity Club. She ran for Attorney General in 1888 and was active in many women's groups. After marrying a classmate from law school, the two formed a partnership in law and marriage; they wrote briefs, tried cases and published legal documents together.
McCulloch drafted a bill which changed guardianship laws, and another which raised the age of consent for girls from 14 to 16, both of which were passed into law. After an Illinois case gave women the right to vote in school elections, McCulloch recognized the significance of this ruling. Together with the Illinois Equal Suffrage Association, she and other suffragists toured the state by auto, speaking and handing out flyers and pamphlets. She drafted a bill by which Illinois women could vote in municipal and presidential elections, and every year, for 20 years, she and others went to Springfield to testify and lobby for her bill; it passed in 1913, and this Illinois suffrage law was instrumental in the passage of the Nineteenth Amendment. Not satisfied, McCulloch worked with the Chicago charter revision committee to have women's suffrage included; she fought to have the Illinois Constitution revised to include women's suffrage; she was successful in both efforts.
Meanwhile, in 1907, McCulloch was the first woman elected to a judicial position, Justice of the Peace, in Evanston, Illinois, and by all men. She was appointed Master in Chancery of the Cook County Superior Court for four, two-year terms. She was selected the first woman elector to the State Democratic Convention in 1916. While practicing with McCulloch & McCulloch, she had one case which used contract law to set public policy regarding wholesomeness of food; this case later was incorporated into one portion of today's Uniform Commercial Code. Since much of their practice dealt with probate and estates, the McCulloch's co-authored A Manual of the Law of Will Contests in Illinois.
With the National League of Women Voters, McCulloch fought for years, again using print media, speeches and women's groups, to have women on juries, and to make the laws concerning women uniform throughout the U.S. *3 Always committed to utilizing law to reform the legal status of women and children, McCulloch wrote plays, essays, legislative bills, speeches, pamphlets, and used the power of print media to convince the public; her plays were still being produced in the 1990s.
After their many years of legal practice and innovation, in 1940 both McCulloch and her husband were named “Senior Counselors” of the Illinois Bar Association. But her legacy is far more reaching; when any woman votes, retains custody of children or property in a divorce, or serves on a jury, it is because of the vision and relentless legal work of Catharine Waugh McCulloch and her peers.
In track and field, clearing the bar indicates that the person has exceeded expectations and is ready to face even more difficult ones. McCulloch did not just pass the bar; because women entering the legal profession was in its infancy, and due to the bulk and import of her legal contributions, McCulloch cleared the bar with room to spare.

May 24, 2024 in Judges, Law schools, Legal History | Permalink | Comments (0)

Monday, May 6, 2024

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?


* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  


It concludes: 


Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

May 6, 2024 in Courts, Gender, Judges, Legal History, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Monday, March 18, 2024

Hillel Bavli on "Stereotypes as Evidence"

Hillel Bavli has published a draft of Stereotypes as Evidence on SSRN. This article is forthcoming in volume 77 of the Stanford Law Review in 2025. It analyzes how the admission of profile evidence "involves substantial risks for the aims of fairness and equal treatment based on race, gender, economic status, and other personal characteristics."

Baserate evidence connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.


In this article, I show that although some forms of baserate evidence are desirable and even critical to achieving an accurate case outcome, a common form of baserate evidence called profile evidence constitutes unrecognized character evidence—evidence that a defendant acted in accordance with a certain character trait and that is prohibited by federal and state evidentiary rules. To show this, and to describe precisely the relationship between baserate evidence and character evidence, I draw on an area of statistics called Bayesian inference to define a new concept that I call population-propensity evidence. It describes a behavioral propensity of a population to suggest that an individual member of the population acted in accordance with this propensity. I show that this evidence—a form of baserate evidence that involves behavioral stereotyping—relies on impermissible character reasoning and therefore determines whether baserate evidence constitutes character evidence.


Finally, I discuss critical implications of my analysis. First, I show how an understanding of population-propensity evidence contributes descriptively to resolving longstanding confusion and inconsistency surrounding baserate evidence and profile evidence in particular. I then demonstrate that applying the rule against character evidence to determine the admissibility of profile evidence is essential to achieving correct and predictable evidentiary decisions, to minimizing the influence of implicit biases based on race and other personal characteristics of a defendant, and to reaching accurate verdicts.


March 18, 2024 in Courts, Judges, Theory | Permalink | Comments (0)

Monday, December 4, 2023

Afsharipour and Jennejohn on "Gender and the Social Structure of Exclusion in U.S. Corporate Law"

Afra Afsharipour and Matthew Jennejohn have published "Gender and the Social Structure of Exclusion in U.S. Corporate Law" in volume 90.7 of the University of Chicago Law Review. The article abstract is excerpted here: 

Prior qualitative research suggests that [professional] networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

December 4, 2023 in Courts, Equal Employment, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, November 7, 2023

Recent Appointments: Women are Improving the Federal Bench


Women Are Improving the Federal Bench: Milestones and Historic Firsts, Ms.

The professional and demographic diversity these judges bring to our federal courts matters. Our diverse nation needs judges who reflect and represent all of us. And we know this: Demographic and professional diversity on our courts has been shown to increase public trust in the judiciary and improve judicial decision-making. More diverse courts include the perspectives of communities who have been traditionally excluded from seats of power in the judiciary’s formal and informal decision-making, and judges from different demographic and legal backgrounds infuse more viewpoints into judges’ deliberations. Diverse courts help communities trust that judicial decisions are fair and do not favor a select few like the wealthy and powerful.

November 7, 2023 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Monday, September 18, 2023

I. India Thusi Reviews Maybell Romero's "Ruined"

I. India Thusi has published a review of Maybell Romero's article, Ruined, 111 Geo. L.J. 237 (2022). Thusi's review is titled Un-Marking Rape Victims. Thusi writes: 

[Romero's] vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined. And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.

* * * 

Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.

Romero's full article is available here

September 18, 2023 in Courts, Gender, Judges, Violence Against Women | Permalink | Comments (0)

Wednesday, August 30, 2023

Judicial Dark Matter and the Continued Gender and Racial Inequalities on Federal Appellate Panels

Nina Varsava, Keith Carlson, Michael Livermore & Daniel Rockmore,  Judicial Dark Matter, 91 U. Chicago L. Rev. (forthcoming)  

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and largely covert practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and racial biases in representation. We argue that these imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, which results in concerning distortions in reported cases. This is the first study of the representation and distribution of judges by gender and race across decision panels. Ultimately, our findings suggest that assessing the distribution of legal power and influence across gender and racial groups based on the numbers of judges from these groups serving on the bench may be misleading and may create an inflated sense of the influence of judges from historically underrepresented groups. The diversity reform agenda, then, as it is typically cast in the scholarly literature, the political sphere, and the popular media alike, is incomplete. One cannot hope to understand how representation translates into power nor to remedy demographic power imbalances in the judiciary without attending to the features of judicial administration examined here. We propose reforms to judicial administration aimed to protect against the kind of demographic biases in representation that we uncover.

August 30, 2023 in Courts, Gender, Judges, Race | Permalink | Comments (0)

Tuesday, July 11, 2023

In Counterman v Colorado SCOTUS Justices Show Dismissal of Victims' Harms from Stalking

Mary Anne Franks, Chief Justice Roberts' Mocker of Stalking Victims Points to a Deeper Problem, Slate

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.***

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.***

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

July 11, 2023 in Constitutional, Judges, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)

Samuel Singer and Amy Salyzyn on "Preventing Misgendering in Canadian Courts"

Samuel Singer and Amy Salyzyn have posted "Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives" on SSRN. This work is forthcoming in the Canadian Bar Review. 

Trans people face significant access to justice barriers and regularly experience discrimination within the Canadian legal system. In this context, respectful forms of address directives seek to prevent the misgendering of courtroom participants by having lawyers and parties proactively identify their titles and pronouns. Multiple Canadian courts have now introduced such directives.

This article situates forms of address directives as simply another control on courtroom speech that contributes to the fair, orderly, and efficient administration of justice. Drawing on examples, including the honorifics used for judges and the evolution of oath and affirmation requirements for witnesses, we detail how courtroom rules have evolved to reflect societal change. The article argues that forms of address directives are an important procedural tool to advance the administration of justice by facilitating equal access to the courts for trans people, providing consistency with the broader legal system’s recognition of trans rights, and facilitating the efficient and orderly administration of justice.

The article then counters arguments that forms of address directives constitute improperly “compelled speech” in violation of the Canadian Charter of Rights and Freedoms guaranteed free expression rights and addresses concerns that these directives may limit a lawyer’s ability to zealously advocate for their clients.

We conclude that forms of address directives are a simple and important mechanism to help address misgendering in courts while emphasizing that much substantive work remains to address trans people’s legal needs in Canada.

July 11, 2023 in Courts, Gender, International, Judges | Permalink | Comments (0)

Friday, June 30, 2023

Women Shortlisted for the US Supreme Court, A Conversation with Judge Diane Wood

Renee Knake Jefferson, Hanna Brenner Johnson & Diane Wood, "Shortlisted: A Conversation Between Judge Diane Wood, Renee Knake Jefferson, and Hannah Brenner Johnson" 106(3) Judicature 8 (2023)

This article includes an edited excerpt from the book Shortlisted: Women in the Shadows of the Supreme Court and a discussion with the authors led by Judge Diane Wood, a senior judge of the United States Court of Appeals for the Seventh Circuit. They discuss the book, the women who were passed over for seats on the Court, and the lessons their stories offer — for women judges and the legal profession as a whole.

June 30, 2023 in Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Thursday, June 8, 2023

MI Supreme Court Proposes Rule That Courts Must Use Parties' Preferred Gender Pronouns

The Michigan Supreme Court has received some pushback on its proposal to require state courts to use preferred pronouns when identifying parties or lawyers.

The proposed rule states that parties and attorneys may include personal pronouns in the name section of case captions.

“Courts are required to use those personal pronouns when referring to or identifying the party or attorney, either verbally or in writing,” the proposal says. “Nothing in this subrule prohibits the court from using the individual’s name or other respectful means of addressing the individual if doing so will help ensure a clear record.”

Bloomberg LawWILX 10 and the Washington Examiner are among the publications reporting on the proposal.

“Response from the judiciary has been lukewarm,” Bloomberg Law reports, “with some staff concerned about the potential pitfalls of making a mistake or creating confusion in court records or proceedings.”

Most appeals judges support the proposal, according to the chief judge of the Michigan Court of Appeals. But 12 appellate judges and 23 trial-level judges oppose the change. And two Michigan Supreme Court judges did not support consideration of the proposal.

A five-second Google search revealed a list of 762 possible pronouns, according to a letter by the trial judges in opposition.

“Perhaps we are wrong, but we seriously doubt that those who refer to themselves as Puppy, honk, Mew, Ci, n3 and splash harbor a deeply seated belief that is their authentic gender,” the letter says. “One need not contemplate long to think what mischievous parties—especially criminal defendants serving life sentences—will do with their newfound power.”

Those who oppose the rule cite three principal arguments, according to Bloomberg Law. They argue that the rule change would interfere with judges’ religious liberty, cause confusion and lead to possible lawsuits.

Bloomberg Law spoke with Charles Geyh, a professor at the Indiana University Maurer School of Law, who argued that the arguments fail to carry weight because judges are already bound by duties of courtesy and civility.

“Put simply: You don’t have to believe that someone is a male when you call them mister, but courtesy dictates that you do so, even if you don’t believe in your heart of hearts that’s true,” Geyh said.

June 8, 2023 in Courts, Gender, Judges, LGBT | Permalink | Comments (0)

Friday, May 26, 2023

The Feminist-Neutrality Paradox of Women Judges

Alissa Rubin Gomez, The Feminist-Neutrality Paradox, 127 Dick. L. Rev. 101 (2023)

Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization – the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis – this article asks whether feminists should stop playing by the rules as well.

May 26, 2023 in Abortion, Courts, Gender, Judges, Theory, Women lawyers | Permalink | Comments (0)

Thursday, May 4, 2023

Justice Alito's Contempt as Seen in the Abortion Pill Dissent

Jennifer Rubin, Washington Post, Opinion, The Supreme Court Delivers a Sign of Relief -- and an Outrageous Dissent

Amy Davidson Sorkin, What's Going on With Samuel Alito?, New Yorker

How many people and organizations can Justice Samuel Alito accuse of having bad will or dishonest motives in a short dissent—fewer than nine hundred words—to a Supreme Court order granting a stay? Let’s try to count.

As a preface, the case involves a lawsuit brought by the Alliance for Hippocratic Medicine, an advocacy group whose members vow, “in the presence of the Almighty,” that they “will not help a woman obtain an abortion.” The A.H.M. is attempting to block access to mifepristone, or RU-486, a drug used in medication abortions, in a suit against the Food and Drug Administration, which was joined in the case by a manufacturer of the drug, Danco Laboratories. ***

Even beyond this case, there is something troubling and unsettling about Alito’s tone and approach. As I’ve written before, observers of the Court have come to expect notes of scornfulness in Alito’s opinions. He may not be the most conservative of his colleagues—Thomas is another contender—but he’s looking like the Court’s sourest Justice. His approach to legal argument is a sad reflection of the state of political discourse generally, as well as a contributor to it. Contempt is a guiding principle of what might now, with a right-wing super-majority, be called the Alito Court—at least until Alito turns on the rest of his colleagues, too

May 4, 2023 in Abortion, Judges, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, March 17, 2023

Gendered Interruptions at Supreme Court Oral Argument and the Role of the Chief Judge

Tonja Jacobi & Matthew Sag, Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, 103 Boston U. Law Review (2023)

 Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices has improved in recent years, and whether the structural change in argument has helped. It shows that interruptions went down during the pandemic but have resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument has had mixed results.

The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows that the Chief has been intervening more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he has directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem.

March 17, 2023 in Courts, Gender, Judges, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, March 14, 2023

New Book Her Honor: Stories of Challenge and Triumph from Women Judges

Lauren Stiller Rikleen ed., Her Honor: Stories of Challenge & Triumph from Women Judges (2023)

At a time when surveys reveal declining trust in our courts, this book offers reasons for hope and even pride. Her Honor features a collection of personal stories by and about some of the country's most respected female judges. Each chapter author openly shares nuanced stories of challenges and successes, including the inequality, bias, and other barriers they faced and overcame in their lives.

The 25 judges featured in Her Honor are from all levels of the state and federal courts, including Chief Judges and two Supreme Court Justices. Their moving stories will be all too recognizable by women who may currently be experiencing similar challenges and biases in their own careers.

Her Honor also demonstrates how the best of our judges share a passion for ensuring an accessible and fair system of justice, without a political agenda. They reveal a deep compassion for humanity along with an abiding respect for the law, respecting precedent but acting with courage if the law offers a way forward.

All the judges in this book have lived lives of deep influence. The stories shared will extend that influence further and inspire future generations to persevere in their careers during even the most difficult time

March 14, 2023 in Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Wednesday, March 8, 2023

New Book First Woman Judge: Florence Allen, Feminism and the Transformation of US Courts

My new book, First Woman Judge: Florence Allen, Feminism & the Transformation of US Courts, will be published by the University of California Press in 2025. The book examines the jurisprudence of Judge Allen's forty years on the courts through the lens of progressive law, feminism, and social justice. 

Judge Florence Allen was the "first" woman judge many times over.  She was the first woman in the country elected to a general jurisdiction trial court, the Cuyahoga County Court of Common Pleas (Cleveland) in 1920 immediately following ratification of the 19th Amendment.  Before that there had been a few women magistrates in the country: two women justices of the peace (WY and IL), two women juvenile court judges (IL and DC), and one woman probate judge (KS). Allen was then the first woman elected to a state supreme court, joining the Ohio Supreme Court in 1922. She was then the first woman appointed to a federal appellate court, nominated by President Franklin D. Roosevelt to the U.S. Court of Appeals for the Sixth Circuit in 1934. And she was the first woman shortlisted to the U.S. Supreme Court--considered ten times by four presidents from two parties.

I've written a basic account of Allen's life and jurisprudence here: The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, 27 William & Mary J. Race, Gender & Social Justice 293 (2021). The book will delve more into Allen's progressive roots, theories of the expansive governmental power, liberal and social feminisms, and work for women's rights and suffrage.




March 8, 2023 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Tuesday, March 7, 2023

New Book The Jurisprudential Legacy of Justice Ruth Bader Ginsburg

I was happy to contribute a chapter to this new book, The Jurisprudential Legacy of Justice Ruth Bader Ginsburg (Ryan Vacca & Ann Bartow, eds. NYU Press 2023).  

My chapter "Justice Ginsburg's Restrained Theory of Remedial Equity" reveals RBG's surprisingly moderate approach to equitable remedies in gender discrimination cases and in restitution more generally.  I suggest her proceduralist view of the courts, and focus on government action account for her growing moderation over the years.

Table of Contents

1 Gender and the Law: Revisiting the Legacy of a Feminist Icon, Deborah L. Brake

2 Administrative Law: The Feminist State(s) of Ruth Bader Ginsburg, Kali Murray

3 Arbitration: Consent, Not Coercion, Jill I. Gross

4 Bankruptcy: The Scholar, the Harmonizer, and the Institutionalist, Mary Jo Wriggins

5 Citizenship and Immigration Law: Through her Opinions, M. Isabel Medina

6 Civil Procedure: The Institutional Pragmatist, Elizabeth G. Porter & Heather Elliott

7 Copyright Law: Never Bet Against the House...or Senate, Ryan Vacca & Ann Bartow

8 Criminal Procedure: Honoring the Spirit of Their Rights, Melissa L. Breger

9 Death Penalty: Precise Analysis but Broad Concerns, Jeffrey L. Kirchmeier

10 Employee Retirement Income Security Act (ERISA): Toward a Reasonable and Coherent Framework, Maria C. O'Brien

11 Employment Discrimination: Justice Ginsburg Dissents, Sandra F. Sperino

12 Environmental Law: Justice Ruth Bader Ginsburg's Principled Legacy, Uma Outka

13 Family Law: The Egalitarian Family, Joanna L. Grossman

14 Freedom of Express: A Practical Evolution, Dr. JoAnne Sweeny

15 Health Law: Equity is Inextricably Linked to Health Care, Tara Sklar & Kirin Goff

16 Parent Law: A Reliable Compass, W. Keith Robinson

17 Race and the Law: Vinay Harpalani & Jeffrey D. Hoagland

18 Remedies: Justice Ginsburg's Restrained Theory of Remedial Equity, Tracy Thomas

19 Taxation: The Litigator, the Judge, the Justice, Patricia A. Cain & Jean C. Love

20 Voting Rights: Democracy in a Hurricane, Lisa Marshall Manheim

21 Teaching the Life and Law of RBG: Exploring Beyond Her Sex Equality Jurisprudence, Elizabeth Kukura & David S. Cohen

Also available on Amazon.  

March 7, 2023 in Books, Constitutional, Courts, Judges, SCOTUS, Theory | Permalink | Comments (0)

Monday, February 27, 2023

New Article on "Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals"

Jeremy Fogel. Mary Hoopes, and Goodwin Liu have published a forthcoming article on SSRN titled Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals. The article is forthcoming in the Harvard Law Review. The abstract states: 

Judicial clerkships are key positions of responsibility and coveted opportunities for career advancement. Commentators have noted that the demographics of law clerks do not align with the student population by law school, socioeconomic background, gender, race, or ethnicity, and that ideological matching is prevalent between judges and their clerks. But extant studies draw on limited data and offer little visibility into how judges actually select clerks. For this study, we conducted in-depth individual interviews with fifty active judges of the federal courts of appeals to learn how they approach law clerk selection and diversity. Our sample, though not fully representative of the judiciary, includes judges from all circuits, appointed by Presidents of both parties, with average tenure of fourteen years. The confidential interviews, which drew in part upon the peer relationship that two of us have with fellow judges, yielded rich and candid insights not captured by prior surveys.

This Article reports our findings, among them: (1) With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary significantly in the dimensions of diversity they seek. (2) Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market. (3) Republican appointees, compared to Democratic appointees, more often identified socioeconomic diversity as the primary dimension of diversity they seek. (4) Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty. (5) Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees. (6) Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate. (7) Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both. (8) Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.

These findings have implications for judicial selection; in short, diversity among judges affects diversity among clerks. Further, one of our most consistent findings is that judges do not discuss clerk hiring or diversity with each other. This silence reflects norms of judicial culture that foster collegiality and mutual deference while tending to inhibit peer-to-peer discussion of how judges select their clerks. Yet many judges want to hire more diverse clerks and would like to learn from their colleagues’ practices. We propose measures to increase transparency, facilitate peer exchange, and increase judges’ capacity to achieve their hiring objectives, whatever they may be.


February 27, 2023 in Courts, Equal Employment, Judges, Law schools, Workplace | Permalink | Comments (0)

Monday, February 6, 2023

Scott Gerber on "The Leak of the Dobbs Draft"

Scott D. Gerber has posted a book chapter on SSRN titled The Leak of the Dobbs DraftThis is a chapter from SCOTUS (Ed. M. Marietta, 2022) published by Palgrave Macmillan. The chapter outlines the history of the Dobbs draft leak and its ramifications. It then offers a history of other Supreme Court leaks, including one involving Roe v. Wade. The chapter then outlines possible reforms to address the leak, including proposed federal legislation and ethical standards governing the Supreme Court. 

February 6, 2023 in Abortion, Courts, Judges, SCOTUS | Permalink | Comments (0)

Friday, January 27, 2023

Study Shows Intergenerational Gap in Decisionmaking by Women Judges, with Women Coming of Age Before 1963 Voting with Significantly Higher Progressive Inclinations

Isaach Unah, Ryan Williams & Stephanie Zaino, Echoes of the Feminine Mystique: Female Judges and Intergenerational Change in the United States Courts of Appeal,  Journal of Law & Politics (forthcoming) 

Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.

January 27, 2023 in Courts, Judges, Legal History | Permalink | Comments (0)