Gender and the Law Prof Blog

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

Wednesday, December 4, 2019

The Racialized and Sexually Exploitive US Citizenship Transmission Laws

Blanche Cook, Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the 'WHP') or Johnny and the WHP, 31 Yale J. Law & Feminism (2019) 

Title 8, United States Code, Section 1409—one of this country’s citizenship transmission laws—creates a white hetero-patriarchal property right in philandering, sexual exploitation, and rape (the “WHP”). Section 1409 governs the transmission of citizenship from United States citizens to their children, where the child is born abroad, outside of marriage, and one parent is a citizen and the other is not. Section 1409, however, draws a distinct gender distinction between women and men: An unwed female American citizen who births a child outside the United States, fathered by a foreign man, automatically transmits citizenship to her child. An unwed male American citizen, by contrast, who fathers a child abroad with a foreign woman has the distinctly male prerogative to either grant or deny citizenship to his foreign-born non-marital child at his leisure.

On the surface, it might appear that § 1409 treats men and women differently because it is easy to determine a child’s mother, as opposed to a child’s father, at birth. In fact, a majority of the Supreme Court has deployed these “natural” differences between men and women to shield § 1409 from three separate gender-based equal protection challenges. Justice Ginsburg, however, has keenly observed, “History reveals what lurks behind § 1409.” What lurks behind § 1409 is a long legacy of white hetero-patriarchy deploying the legal category of citizenship to perfect sovereignty in itself and vulnerability in “foreign” women for the very purpose of sexual domination.

The historical model for this racialized regime of sexual domination is the classic case of Dred Scott, where the denial of citizenship to anyone of African descent further facilitated a white hetero-patriarchal property right in philandering, sexual exploitation, and rape. In Dred Scott, the exclusion of anyone of African descent from person-hood, through the legal mechanism of citizenship, perfected power in white men and vulnerability in racialized others. By excluding anyone of African descent from citizenship, enslaved owners continued to enjoy an unbridled property right in the use and enjoyment of the enslaved. The denial of citizenship to the enslaved facilitated their use as property. Following suit, § 1409 makes citizenship the property of men, through which they can exclude their non-marital foreign-born children from membership in the American polity. Section 1409 vests in these fathers not just a right to exclude their children, but to discard them, leaving them profoundly vulnerable to the sting of “illegitimacy,” ethnic and racial animus, and financial precarity — a form of destruction, while simultaneously empowering these fathers to sexually possess, control, use, and enjoy foreign women. Section 1409 understands all too well: in order to sexually exploit the mother, one must control the status of the child.

December 4, 2019 in Gender, International, Legal History, Race | Permalink | Comments (0)

The Potential Persuasive Influence of the Feminist Judgments Project on Judicial Decision Making

Kate Webber Nunez, Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making, British Journal of American Legal Studies (Vol. 9 2020 Forthcoming)

The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP’s alternative jurisprudence can influence future decisions. The FJP rewrites the law in order to reveal the underlying biases that exist in purportedly neutral decision making. In doing so, the FJP seeks to influence future advocacy and, ultimately, change the law. According to the Project’s commentary, this change will come by revealing unconscious bias and opening judicial minds to previously unknown perspectives; a method that draws on psychological theories of decision making, such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science on how judges decide cases. The article’s analysis is relevant because certain prominent theories in the political science field would challenge the utility of the Project. Specifically, given an increasingly conservative judiciary and Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. This article explains, however, that the field of political science would not universally nor completely dismiss the Project’s efforts. An alternative line of thought, historical institutionalism, presents a theoretical explanation for why and how the FJP’s re-envisioned law could possibly create persuasive arguments that will influence the judiciary. This article applies historical institutionalist concepts to the FJP, exploring how, and the degree to which, this view of decision making supports the Project’s utility. Ultimately, it concludes that the path of persuasion is somewhat narrow and limited, but possible.

December 4, 2019 in Courts, Legal History, Theory | Permalink | Comments (0)

AALS Programs on the History and Modern Implications of the 19th Amendment

Legal History Section, A Century of Women's Suffrage

2020 marks one hundred years since the Nineteenth Amendment was ratified, ushering in a century of women's suffrage in the United States. This program brings together scholars writing on the history of women's suffrage, including scholars who will explore the suffrage movement that culminated in the Nineteenth Amendment; address how the Nineteenth Amendment affected political parties in the subsequent century; and compare the women's suffrage movement to analogous social movements.

Speaker: Dr. Martha S. Jones, Johns Hopkins University

Speaker from a Call for Papers: Elizabeth D. Katz, Washington University in St. Louis School of Law

Speaker: Holly McCammon, Vanderbilt University Law School

Speaker from a Call for Papers: Kara W. Swanson, Northeastern University School of Law
 
Moderator: Evan C. Zoldan, University of Toledo College of Law
 
 
Women in Legal Education, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?
This session will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, care taking, sexual freedom, and protection from violence. Despite significant success, much work remains. This session will consider the future of the women’s movement through a critical examination of our past.
Speaker from a Call for Papers: Lolita K. Buckner Inniss, SMU Dedman School of Law
Speaker from a Call for Papers: Nan D. Hunter, Georgetown University Law Center
Speaker from a Call for Papers: Leslie G. Jacobs, University of the Pacific, McGeorge School of Law
Moderator: Rona Kaufman, Duquesne University School of Law
Speaker from a Call for Papers: Diane J. Klein, University of La Verne College of Law
Speaker from a Call for Papers: Danaya C. Wright, University of Florida Fredric G. Levin College of Law
 
 
Constitutional Law Section:. The Constitution and the Modern Right to Vote

In honor of the 100th anniversary of the Nineteenth Amendment and the 150th anniversary of the Fifteenth, the Constitutional Law Section is putting on a joint program with the Section on Election Law (co-sponsored by the Section on Legal History). The program will run from 2 pm – 5 pm on Thursday, January 2nd in Virginia Suite C.

The overall program is described as follows:

While the constitutional amendments related to voting rights have suggested that all citizens ought to be included in the franchise, the modern right to vote has nonetheless been heavily contested. The efforts to meaningfully include all citizens in the franchise in the century after the Nineteenth Amendment (and the 150 years after the Fifteenth Amendment) have been complicated, fraught, and have often diverged from the underlying idea of inclusion. Tensions still exist in modern voting rights law regarding the meaning of the right to vote, as illustrated by the litigation and activism around issues such as partisan and racial gerrymandering, voter identification, and proof of citizenship requirements. These examples reveal the complexities of the project of democratic inclusion, and this panel will explore how those complexities have evolved and are manifest in today’s right-to-vote doctrine.

Panel 1 (2:00 pm - 3:30 pm): This panel will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage.

Speakers:   

Steven Calabresi, Northwestern University Pritzker School of Law
Paula A. Monopoli, University of Maryland Francis King Carey School of Law (selected from a Call for Papers)
Reva B. Siegel, Yale Law School
Julie C. Suk, The Graduate Center, City University of New York

Moderator:  Louis J. Virelli III, Stetson University College of Law

 

December 4, 2019 in Conferences, Constitutional, Gender, Law schools, Legal History | Permalink | Comments (0)

Wednesday, November 20, 2019

The History of Constitutional Amendments for Women's Equality, from the 16th to the 19th to ERA

Here is a short piece I wrote for the American Bar Association's public education online magazine:

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

The Nineteenth Amendment to the U.S. Constitution guaranteeing women’s right to vote was passed by Congress one hundred years ago on June 4, 1919. Many[JD1]  states quickly ratified the amendment, though it would be a close call when the final state, Tennessee, pushed the amendment into law in August 2020. When first proposed, the vote or “suffrage” was just one of many civil and social rights demanded by women. But it became the primary focus of the women’s rights movement in the late nineteenth and early twentieth centuries, fueled by political allegiances with conservative temperance women and supported by focus on the vote as the primary right of citizenship as embodied in the new Fourteenth and Fifteenth Amendments. 

One year after the passage of the Nineteenth Amendment, women’s rights leaders resurrected the demands for gender equality in aspects of society by proposing the first Equal Rights Amendment (ERA) in 1921. The ERA would have guaranteed that civil and legal rights cannot be denied “on the basis of sex.” From the beginning, however, the ERA was met with opposition including from women themselves, with conservative women concerned about impact on the family and progressive women concerned about impact on labor and union rights. It would take another fifty years before both national political parties would endorse the ERA, and Congress passed the ERA in 1972 guaranteeing that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The necessary two-thirds of the states, however, failed to ratify the ERA, even after an extension of the deadline. 

A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.

November 20, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

On the Constitutionality of the Deadline for Constitutional Amendments like the ERA

Danaya Wright, "Great Variety of Relevant Conditions, Political, Social and Economic": The Constitutionality of Deadlines on Amendment Proposals Under Article V, 28 Wm. & Mary Bill Rts. J. 1 (2019)

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature.

With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.

November 20, 2019 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Thursday, October 31, 2019

Women and the Law, Halloween Edition. (Hint: It's About Witches)

Image result for salem witch trials

 

It's Halloween... which for law and gender means time to remember the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

See also Gender Law Prof Blog, Witchcraft Related Violence: Human Rights Violations Against Women Labeled "Witches"

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October 31, 2019 in Legal History, Pop Culture | Permalink | Comments (0)

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

Wednesday, October 2, 2019

Reading the 19th Amendment into Constitutional Jurisprudence

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution

Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.

Abstract:

This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.

Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.

October 2, 2019 in Constitutional, Family, Legal History, SCOTUS | Permalink | Comments (0)

Monday, September 30, 2019

History of the French Shadow Jury of Women

Sara Kimble, Of "Masculine Tyranny" and the Women's Jury": The Gender Politics of Jury Service in Third Republic France, Law & History Review (2019)

In 1905 Hyacinthe Bélilon (1846–1913) and Camille Bélilon (1851–1930), two sisters working under pseudonyms as writers, began attending criminal trials and issuing unofficial verdicts as part of a new organization: the jury féminin, the women’s jury. Led by the sisters, this organization consisted of a panel of twelve female jurors who attended trials in Paris.  As witnesses to the courtroom spectacle, these women would have been seated as members of the public audience, behind the gates of the barreau, the open space where attorneys and witnesses addressed the judges. Following each trial, the jury féminin issued their own unofficial verdicts and published their reasoning in the monthly newspaper Journal des femmes over a period of 5 years.  The resulting trove of verdicts for eighty cases highlights the ways in which these unauthorized female jurors made decisions to exonerate or assign responsibility to the defendants.

 

The jury féminin contributed to a sustained public protest against male bias in the justice system, a condemnation of official all-male juries’ role in perpetuating a double moral standard and the inequalities of the French civil and penal codes. Their feminist legal commentary on criminal cases challenged the assumption that the legal system provided equal treatment for female victims or defendants. These activists’ courtroom appearances and published articles were forms of protest that furthered the political campaign to admit women to criminal juries, and by extension, to promote an enlarged role in civic life for women.

September 30, 2019 in Courts, International, Legal History | Permalink | Comments (0)

Wednesday, September 18, 2019

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

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

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

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

Tuesday, September 10, 2019

Anna Julia Cooper, Activist for Black Women's Suffrage and Social Service

The Atlantic, How Black Suffragettes Subverted the Domestic Sphere

A few decades after her graduation from Oberlin College, the scholar and educator Anna Julia Cooper wrote a stern missive in the Ohio university’s alumni journal. Having relocated to Washington, D.C., where she worked in the district’s first Colored Settlement House, Cooper wrote in the early 1900s with clarity and conviction about the importance of social service. She exalted the domestic sphere as a cornerstone of broader community support—and, in doing so, also illustrated just how unevenly groups like white religious entities metered their care. Her letter, published amid the struggle against gendered discrimination at the ballot box, revealed rifts in which groups of Americans most readily earned others’ sympathy and respect. One hundred years after the passage of the 19th Amendment guaranteed white women the right to vote, Cooper’s work still offers an instructive lens through which to consider social movements and interpersonal dynamics alike.

Like those made by other black suffragettes, the statement, titled “The Social Settlement: What It Is and What It Does,” was an often pithy indictment of the sociopolitical landscape—and, implicitly, a blueprint for what might be improved. ***

 

Sometimes referred to as the mother of black feminism, Cooper was born into slavery around 1858 in Raleigh, North Carolina. She would go on to spend most of her long academic and community–oriented career living in Washington, D.C., where she helped establish the Colored Women’s League (which later became part of the National Association of Colored Women’s Clubs, led by the likes of Mary Church Terrell, the organization’s first president). As white women across America endeavored to secure voting rights for themselves—and made calculated choices to exclude black people from those efforts—Cooper produced some of the most foundational analysis of injustice in the United States, most notably the overlaps of racism and sexism.

September 10, 2019 in Legal History, Race | Permalink | Comments (0)

Thursday, September 5, 2019

CFP Rethinking First Wave Feminism

Signs Special Issue: Rethinking “First Wave” Feminisms

Over the past several decades, scholarship in a variety of disciplines has challenged the “wave” model of feminism. Inspired by the 2020 centennial of the Nineteenth Amendment, this special issue seeks to rethink “first wave” feminisms in a heterogeneous and expansive way—by pushing geographic, chronological, and ideological boundaries and by broadening the definition of whom we usually think of as early feminists. While contributions on the Nineteenth Amendment in the United States, and the suffrage movement worldwide, are welcome, we also encourage submissions that consider early manifestations of feminism and feminist movements in broad and global terms. Scholars from all disciplines are encouraged to submit their work.

The editors invite essays that consider questions along but by no means limited to the following lines:

  • How were the era’s signal achievements—the global movement for universal suffrage, international labor legislation for women and children, international human rights, and transnational solidarities around a range of goals—achieved? What compromises were entailed in the legislative accomplishments, and what possibilities did their passage enable? What accomplishments were outside the realm of legislation?
  • In our scholarly and popular retellings, what is celebrated, and what is silenced? Are there historical figures, or events that have been written out of the story, and why?
  • What were the racial politics of the first manifestations of feminism? How do we understand—in light of the intervening history—the compromises and political exigencies that led to the passage of the Nineteenth Amendment and similar developments worldwide? How do the exclusions of the era help us recognize the exclusions of our own?
  • What were the sexual politics of early feminisms? What role did class- and race-based understandings of respectability play? What role did reproductive rights and justice play?
  • What are the feminist implications of the medical history of the era, notably the movement for birth control, underground abortion networks, and early transgender movements?
  • What were the class politics of early feminisms, and what role did political economy and labor play in feminist thought and activism?
  • How do we understand first-wave feminisms through the frames of the Romantic and modernist turns? How did new literary, visual, and musical representations of women shape (and how were they shaped by) women’s newfound status as public and political actors?
  • How do we understand the long history of feminism in terms of coterminous (and overlapping) movements and developments, including but not limited to war, imperialism, revolution, socialism, migration, urbanization, pandemic, progressivism, abolitionism, Reconstruction, segregation, and fascism—and how does this confluence shed light on the present era?
  • Can we understand early feminisms as media phenomena shaped by (and shaping) the communications and technological developments of their era, notably the telegraph, radio, and the increasing proliferation of print culture? What key texts (including literary texts) articulated important feminist theories and galvanized activism?
  • Finally, how could we understand the initial emergences of feminism and its subsequent history if we rejected the wave metaphor and instead conceive of early feminism—with its limitations and its extraordinary achievements—as a beginning that casts a clear and compelling light on the feminist activism to come?

Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We seek essays that are passionate, strongly argued, and willing to take risks.

The deadline for submissions is September 15, 2020. The issue will be guest edited by Susan Ware, general editor of the American National Biography and Honorary Women’s Suffrage Centennial Historian at the Schlesinger Library, and Katherine Marino, assistant professor of history at UCLA.

Please submit full manuscripts electronically through Signs’ Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.

September 5, 2019 in Call for Papers, Legal History, Theory | Permalink | Comments (0)

Book Podcast The Importance of Studying Women's History

Cover of Oxford Handbook of American Women's and Gender History

 

Podcast, The Case for Women's History

In the spring of 2019, a widely circulated column assailed the field of history for being too “esoteric,” in particular calling out subfields like women’s and gender studies. The executive director of the American Historical Association, Jim Grossman, wrote a response suggesting that the critic should have talked to actual historians about why fields that may seem esoteric are actually very valuable. Today’s guests are the editors of the Oxford Handbook of American Women’s and Gender History.

 

Ellen Hartigan O’Connor and Lisa Materson, both professors of history at the University of California, Davis, join us to discuss the field of women’s studies, which as they’ve argued in the introduction to the book, is not an esoteric topic at all, but actually quite critical to our understanding of American history.

***

 

So the core of women’s and gender history as a field is archive innovation. Because, to your point about, you know, the lack of sources, or voices don’t appear in archives, the whole field is built around, in many instances, writing histories of people who either appear sparsely in records, in court cases, in business correspondence, or in diplomatic treaties for example. So they appear either very infrequently or not at all. And alternatively, these are archives, or the records that have been created, not from the perspective of women. And so as a result, the field has developed a range of approaches that interrogate the archive, and are innovative in the in the way that they approach it to recover the history of those of women, for example, and those individuals who haven’t historically appeared in the archive.

 

And I think it’s worth mentioning that what are sometimes just referred to as silences, or “the sources are not there.” I think the most recent scholarship on Women’s and Gender history points out that those silences are deliberate that the sources are the result of records created by people in institutions in order to consolidate power. That that was an essential part of creating the archive is to consolidate power over women over other women, men over women, heterosexuals over non binary folks. And so rather than to lament the sources that are not there–and it’s the task of women’s agenda historians both to read against the grain as they say–but also to critically analyze the way that the archive itself deliberately silences these voices.

September 5, 2019 in Books, Legal History | Permalink | Comments (0)

Thursday, August 29, 2019

How the Equal Rights Amendment would Affect Women's Rights

 I'm quoted in this article in Time on the history and future of the ERA.

Tara Law, Time, The U.S. Constitution Doesn't Guarantee Equal Rights for Women. Here's Why.

When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights.

 

And yet, the U.S. Constitution does not say that people are equal regardless of their sex.

 

This fact came close to changing in 1972, when the U.S. legislature passed the Equal Rights Amendment (ERA), which stated that rights cannot be denied “on account of sex.” But after conservatives mobilized opposition to the ratification of the proposal, the amendment fell short of the three-quarters majority needed to add the ERA to the Constitution. Now, as the Equal Rights Amendment has regained momentum — with two more states, Illinois and Nevada, recently ratifying it — advocates say that there’s a new opportunity for the ERA to move ahead. ***

How would an Equal Rights Amendment affect women’s rights?

Although American women have made significant gains in equality since the 1970s — and certainly since the 1920s — advocates say that an Equal Rights Amendment could still have a profound effect on the law and on American society.

 

Advocates say that the amendment is help back by the sense among some people that it’s not necessary, but proponents argue that it could strengthen the legal basis for combating violence against women, pay inequality and maternity leave.***

 

Professor Tracy Thomas of The University of Akron School of Law tells TIME that the law would prevent women’s rights from sliding back, and eliminate some “wiggle room” that leaves space in the law for stereotypes to affect civil rights. She also argues that protecting women’s rights in the Constitution would have a major cultural impact.

 

There’s this overriding structure of the highest law in the land that has this absolute command, and so that has to trickle down,” says Thomas. She says that recent events such as the rise of the #MeToo movement reveal how quickly society can change. “Once you start changing the culture and the dialogue, things that were acceptable become unacceptable really quickly.”

August 29, 2019 in Constitutional, Equal Employment, Legal History | Permalink | Comments (0)

CFP AALS Women in Legal Education Section "A Century Since Suffrage"

Call for Presentations and Papers – Monday, September 23 Deadline


The Women in Legal Education (WILE) Section of the American Association of Law Schools Seeks submissions for the American Association of Law Schools Annual Meeting January 2-5, 2020 in Washington, D.C.

The Section on Women in Legal Education is pleased to announce a Call for Papers from which presenters will be selected to participate in the Section’s main program at the AALS 2020 Annual Meeting in Washington, D.C. The program, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, caretaking, sexual freedom, and protection from violence. Despite significant success, much work remains.

This session will consider the future of the women’s movement through a critical examination of our past as guided by three multi-faceted inquiries:
(1) How did we get here?
Topics can include, for example: Who shaped the movement’s path? What were the movement’s guiding ideologies, practices, and priorities? Where did the movement fail? How did the exclusion of African American and other minority women shape the movement’s trajectory and goals? How did the prioritization of some issues over others impact women’s lives and the reality of sex equality?
(2) Where will we go?
Topics can include, for example: What are or should be our priorities as we move forward? How do we continue our work given the current political climate, assault on women’s rights, and status of our world? How will our understandings of gender shift the goals of the women’s movement? What impact will intersectionality have on the movement?
(3) How will we get there?

Topics can include, for example: Who will shape our actions and goals as we move forward? Which philosophies will guide us? What are the obstacles in our path? What have we learned from our past and how will that knowledge guide us into the future?
Submission guidelines: We welcome proposals for 30-minute presentations on these topics. Proposals for presentations should be sent as an e-mail file attachment in MS Word to

Professor Rona Kaufman at kitchenr@duq.edu by Monday, September 23, 2019. She will confirm receipt of all submissions. Proposals for presentations should be 500-1500 words long, and should denote the topic to be addressed, any special technological needs for the session, the presenter’s background, years of teaching, institutional affiliation, and contact information. All abstracts will be reviewed by members of the WILE Program Committee. Selected professors will present their work at the 2020 AALS Annual Meeting. Full drafts of articles based on conference presentations will be due by July 1, 2020. Final versions of the articles will be due by August 19, 2020. Accepted articles will be published in the Winter 2021 issue of the Duquesne Law

August 29, 2019 in Call for Papers, Conferences, Legal History | Permalink | Comments (0)

Tuesday, August 13, 2019

Central Park's First Statute of Real (rather than Fictional) Women Redesigned to Include Sojourner Truth with Women's Suffrage Leaders Elizabeth Cady Stanton and Susan B. Anthony

From Press Release:

Today, Monumental Women’s Statue Fund announced a redesigned statue that will honor pioneering women’s rights advocates and will be the first statue depicting real women in the 165-year history of New York City’s Central Park.

The amended design includes Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth.  All three are remarkable and monumental women’s rights pioneers who were New Yorkers and contemporaries. In the amended design, nationally-recognized sculptor Meredith Bergmann shows Anthony, Stanton, and Truth working together in Stanton's home, where it is historically documented they met and spent time together.

The NYC Public Design Commission must review the amended design of the statue, which will be unveiled on The Mall in Central Park on August 26, 2020, the 100th anniversary of the ratification of the 19th amendment, when women constitutionally won the right to vote. Next year is also the 200th anniversary of Susan B. Anthony’s birth.

“Our goal has always been to honor the diverse women in history who fought for equality and justice and who dedicated their lives to the fight for Women's Rights. We want to tell their stories and help create a full and fair historical record of their vast and varied contributions. When the Public Design Commission unanimously approved our previous design with Anthony and Stanton, but required that a scroll with names and quotes of 22 diverse women’s suffrage leaders be removed, we knew we needed to go back to the drawing board and create a new design.  It is fitting that Anthony, Stanton, and Truth stand together in this statue as they often did in life.” said Pam Elam, President of Monumental Women.

Central Park's First Statute of Real Women Redesigned to Include Sojourner Truth

Last year’s unveiling of designs for the first statue in Central Park’s 165-year history that depicts real historic women–a sculpture of Elizabeth Cady Stanton and Susan B. Anthony–was met with mixed reviews: Why didn’t the statue, set to be dedicated in August of 2020, marking the 100th anniversary of nationwide women’s suffrage, include any of the many African-American women who aided in the cause? Today it was announced that a redesigned statue honoring pioneering women’s rights advocates will include Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth, an escaped slave and abolitionist who joined the fight for women’s rights.

August 13, 2019 in Legal History, Pop Culture | Permalink | Comments (0)

Monday, July 29, 2019

Rediscovering the First Woman Judge, Florence Allen

The Cleveland Plain Dealer has some recent articles highlighting Judge Florence Allen and calling for her recognition.  Allen is colloquially known as "the first woman judge" as she was the first woman elected to a trial court of general jurisdiction (Cuyahoga County Court of Common Pleas, Cleveland), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit, 1932), and the first woman shortlisted for the U.S. Supreme Court.

Andrea Simakis, Before RBG, A Cleveland Judge Made History

Andrea Simakis, Women Lawyers, Judges of Ohio "On Fire" to Honor Judge Florence Allen

Allen is the subject of my current book project, "'A Manly Mind': Judge Florence Allen, The First Woman Judge."  The book is an intellectual biography of this famous first, seeking to exploring her ideas, motivations, and jurisprudence.  I've spent two years reviewing the historical and legal archives, and now am writing in earnest.  A shorter journal article summarizing some of the findings from the research and on Allen's life will be forthcoming in the journal of the new Ohio Legal History Project, an initiative of the Ohio State Bar Foundation.  

Florence Allen was an icon of the woman's suffrage movement as both an activist and an advocate.  Her suffrage work led to her inclusion as one of the inaugural members of the Social Justice ParkSocial Justice Park, in Columbus, Ohio.  Allen was a moderate, believing strongly in the nonpartisan nature of the judiciary, tempering her decisions with logic and reason, and searching within the system for a practical solution.  She prided herself on hard work, logic and intellect, and rejected society's limited role for women.  

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July 29, 2019 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Podcast: The Constitutional Legacy of Seneca Falls

I enjoyed discussing the history and constitutional relevance of the first woman's rights movement in this We the People Podcast with the National Constitution Center.

The Constitutional Legacy of Seneca Falls (July 2019)

July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Women and law scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen.

My discussion draws on my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) tracing pioneering women's rights leader Elizabeth Cady Stanton's work in organizing the Seneca Falls Convention and leading the first women's rights movement for over fifty years.

Here is the Declaration of Sentiments waterfall outside the Women's Rights National Park in Seneca Falls, reflecting Stanton's words.

DeclarationWaterfall2015

July 29, 2019 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, July 23, 2019

Legal Thinking about the Declaration of Sentiments for Women's Rights at Seneca Falls on its 171st Anniversary

July 19 & 20 celebrated the 171st anniversary of women's first official demand for equal political, civil, and religious rights in the Declaration of Sentiments at Seneca Falls, New York.  The Women's Rights National Historical Park now sits at the sight of the Wesleyean Church where the convention took place, and is worth a visit.

I have written much about the Declaration of Sentiments and its author, pioneering feminist leader Elizabeth Cady Stanton. The Declaration and its articulation of 18 necessary rights for women, as well as its structural elimination of "separate spheres" of women's inferiority, essentially provided a road map for legal and social reform for women's equality and equity.

I spoke about the history a bit with the National Constitution Center in a forthcoming We the People podcast

I wrote about the broad agenda of the Declaration and the first women's rights movements in the forthcoming article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford Journal of Civil Rights and Civil Liberties.

I traced its historical origins and legal significance particular in the area of family law and social rights in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).  I blogged about the opening chapters addressing the context and specifics of the Declaration of Sentiments, here at Introduction  and here, "What Do You Women Want?.

 

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

Thursday, July 18, 2019

The Competing State and Federal Strategies for Winning Women's Right to Vote under the 19th Amendment

Lisa Tetrault, Winning the Vote: A Divided Movement Brought About the 19th Amendment, 40 Humanities (Summer 2019)

In 1869, a bold new idea was born. . . .“Woman’s Suffrage by the proposed Sixteenth Amendment is before the nation for consideration,” one newspaper heralded. Demanding their enfranchisement through a constitutional amendment, “women,” another column remarked, “strike out in a new path.” Women had been demanding the vote for some time, but this new approach was extremely far-fetched. ***

 

Although women demanded the vote as far back as the 1840s, they did not call for a federal amendment until after the Civil War, when a new battle over the status of recently emancipated freed people split the nation. What rights should former slaves have, if any? Rejecting most of African Americans’ demands upon freedom, a band of congressmen nevertheless supported freedmen’s demands to vote. They proposed to accomplish this through amending the Constitution.

 

Passing Congress in 1869, the Fifteenth Amendment declared that voting “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” When ratified in 1870, the amendment struck down state requirements that voters be “white,” enfranchising black men nationwide. This creation of voters through federal amendment had never before been tried.

 

Congressional passage of the Fifteenth Amendment, however, tore apart the feminist-abolitionist community and split the movement. Often working together in the same prewar coalitions, women’s rights and antislavery advocates regrouped after the Civil War to form the American Equal Rights Association (AERA). The AERA advocated the enfranchisement of both African Americans and women, as twin demands.

 

When the Fifteenth Amendment advanced only one of those goals, Elizabeth Cady Stanton and Susan B. Anthony—leading suffragists—balked. At the group’s 1869 annual convention, the pair refused to support the amendment’s ratification because it omitted women. ***

 

Angrily, Stanton and Anthony bolted from the AERA and formed a new organization, the National Woman Suffrage Association. Stanton and Anthony used their National Association to oppose the Fifteenth Amendment and advocate for their newly conceived idea for a Sixteenth Amendment, granting women’s suffrage.

 

In their eyes, the Fifteenth Amendment had only one redeeming feature: It had nationalized suffrage, shifting voting regulation from the states to the federal government. This meant suffragists no longer had to labor at the state level, attempting to remove the word “male” from the voting qualifications in each and every state—an excruciatingly onerous fight. Now they could focus all their energies on a single citadel, the U.S. Constitution.

 

Not all suffragists agreed with Stanton and Anthony’s constitutional logic, however. Their rivals in the AERA, which included most of its leading membership, countered the pair by forming an opposing American Woman Suffrage Association. Overseen by Lucy Stone—a prominent white reformer and peer of Stanton and Anthony—the American Association not only supported the Fifteenth Amendment, but also insisted the vote must still be won in the individual states. They rejected Stanton and Anthony’s arguments that constitutional authority around voting in the U.S. had been remade. The Fifteenth Amendment had been no more than a postwar exigency, ratified in order to redress the evil legacies of slavery.

July 18, 2019 in Constitutional, Legal History | Permalink | Comments (0)