Monday, April 12, 2021
Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control.
Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.
Thursday, April 1, 2021
Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)
In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.
The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.
In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.
Friday, March 19, 2021
Honored to receive the 2021 Beyer Award for Best Faculty Publication for my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, XV Stanford J. Civil Rights & Civil Liberties 349 (2020).
The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.
This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.
This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault
Thursday, March 11, 2021
Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.
The Supreme Court found that both arguments flopped: when suffrage had been granted to all male citizens regardless of race the Amendment had held up, despite the change to the electorate, and the ratification powers Leser questioned had in fact been granted by the Constitution. (And in a few states where things were iffy, it didn’t matter because enough other states had ratified.)
So, while the 19th Amendment granted women the right to vote, Leser made sure that the right could actually be used, even where the state constitution said otherwise. It’s not one of the more famous Supreme Court decisions in American history, but without it the electorate would be, well, lesser.
For scholarship on Leser v. Garnett, see Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Press 2020) and Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 Harvard L. Rev. 945 (2002).
Erika Rackley & Rosemary Auchmuty, The Case for Feminist Legal History, 40 Oxford J. Legal Studies 878 (Dec. 2020)
It may be that we are witnessing a highpoint of interest in the lives of early women lawyers, and women’s legal history generally, both within and outside the academy, fuelled by the twin centenaries of the (partial) extension of the vote to women in 1918 and the formal admission of women to the legal profession the following year.1 Without doubt the anniversaries provide an opportunity to insert women into legal history (and history generally) and to mark the dedication, commitment and sacrifice of those involved in bringing them about. But without a strong scholarly method, politics and purpose, there is a danger that these celebrations will also encourage the proliferation of well-meaning but uncritical heroine narratives replete with myths and anecdote.
Feminist legal history provides a counter to this. Anchored in a commitment to disciplinary, social and political change, feminist legal history seeks not only to inform about women in law in the past, to uncover new histories, but also to challenge, and ultimately transform, our understandings of the past and present, and indeed the future. Its purpose is twofold: unlike its popular dopplegangers, typically focusing on women in the legal professions, feminist legal history is concerned with both ‘the production of knowledge of the past’ (an important end in itself, when so little is still known about women’s history) and, crucially, setting down ‘the substantive terms for a critical operation that uses the past to disrupt the certainties of the present’, opening up the possibility of imagining different futures.2
However, the doing of feminist legal history as an academic discipline and method remains largely undeveloped in the UK.3 This article seeks to address this absence by delineating its method, scope and purpose. We begin by exploring the exclusion of women and women’s engagement with policy and law reform more generally within traditional accounts of legal history. We go on to consider the methodological and substantive goals of feminist legal history, which relate both to the production of knowledge (by including women’s stories and establishing women as agents of change) and to feminist legal history’s disruptive purpose (by asking the ‘women’ question, challenging assumptions of progress, debunking heroine narratives and (re)locating the position and role of men). Drawing on examples of women’s experiences in and of law in the UK and Ireland, we seek to demonstrate the agency of women—both individually and in groups—in effecting legal, political and social change. We conclude with a call for scholars to take up the insights and methods of feminist legal history—to acknowledge the existence and different experiences of women in/and law, the ways they negotiated and fought to overcome the legal obstacles and opposition they faced (and still face)—before climbing onto their shoulders and continuing the fight for justice.
Historian TJ Boisseau and I similarly have argued for a feminist legal history in our book, aptly titled, Feminist Legal History (NYU Press 2011). See also Tracy A. Thomas & Tracey Jean Boisseau, Law, History & Feminism, introduction to Feminist Legal History.
h/t Kimberly Hamlin
Friday, March 5, 2021
the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.
The week March 8th, International Women’s Day, was chosen as the focal point of the observance....
In 1979, Molly Murphy MacGregor, a member of our group, was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.
The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981...
By 1986, 14 states had already declared March as Women’s History Month. This momentum and state-by-state action was used as the rational to lobby Congress to declare the entire month of March 1987 as National Women’s History Month. In 1987, Congress declared March as National Women’s History Month in perpetuity. A special Presidential Proclamation is issued every year which honors the extraordinary achievements of American women.
Friday, February 19, 2021
Symposium: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment, Minnesota Law Review
Symposium “Glass Ceilings, Glass Walls: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment," Minnesota Law Review, April 1 & 2, 2021
The Nineteenth Amendment was a milestone for women’s rights but has often been criticized for being passed at the expense of people of color. Our 2020-21 Symposium will look back on the one hundred years since women were given the right to vote using a rough chronological approach. We will open the day with a historical overview of the Nineteenth Amendment, discussing who contributed to its ratification and who was left out after its passage. This background will create a basis for our subsequent gender equality conversations around the Equal Rights Amendment, Gender Identity and Sexual Orientation, and the #MeToo Movement, culminating in a panel discussing the current state of voting rights. Our Keynote speaker Desmond Meade will present about his role in fighting for legislative change in Florida to restore the right to vote to 1.4 million Floridians.
Registration for the Symposium is free and CLE credits are expected.
Symposium Speakers and Authors
Keynote Speaker: Desmond Meade, President and Executive Director of Florida Rights Restoration Coalition (FRRC)
As President and Executive Director of FRRC, which is recognized for its work on voting and criminal justice reform issues, Desmond led the FRRC to a historic victory in 2018 with the successful passage of Amendment 4, a grassroots citizen’s initiative which restored voting rights to over 1.4 million Floridians with past felony convictions. Amendment 4 represented the single largest expansion of voting rights in the United States in half a century and brought an end to 150 years of a Jim Crow-era law in Florida. Desmond is the author of the book “Let My People Vote” which shares the great journey of him crossing the finish line in restoring 1.8 million citizens’ right to vote.
Kat Calvin, Founder and Executive Director of Spread The Vote and Co-Founder and CEO of the Project ID Action Fund
Jessica Clarke, Professor of Law and FedEx Research Professor and Co-Director of the George Barrett Social Justice Program, Vanderbilt Law School
Jill Elaine Hasday, Distinguished McKnight University Professor and Centennial Professor in Law, University of Minnesota Law School
Phylicia H. Hill, Counsel, Economic Justice Project, Lawyers’ Committee for Civil Rights Under Law
Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History and the SNF Agora Institute, John Hopkins University
Serena Mayeri, Professor of Law and History, University of Pennsylvania Carey Law School
Terry Ao Minnis, Senior Director of Census and Voting Programs, Asian Americans Advancing Justice – AAJC, and Senior Fellow, Democracy Fund
Tracy A. Thomas, Seiberling Chair of Constitutional Law and Director of the Center for Constitutional Law, University of Akron School of Law
Kyle C Velte, Associate Professor of Law, University of Kansas School of Law
Joan C. Williams, Distinguished Professor of Law, Hastings Foundation Chair and Director of the Center for WorkLife Law at the University of California, Hastings Law
Monday, February 1, 2021
Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)
In this article, historian Faye Dudden carefully and persuasively refutes the claims of modern pro-life activists that pioneering feminists Elizabeth Cady Stanton and Susan B. Anthony originated the "feminist" demand for anti-abortion laws and thus serve as appropriate figureheads for the modern movement. (For example, in the appropriation of Anthony's name for the "Susan B. Anthony List," a pro-life fundraising and political action organization). Dudden agrees with my own conclusions that 1) the historical evidence attributed to Stanton and Anthony is not theirs, but the work and beliefs of their male co-editor, former minister and abolitionist Parker Pillsbury, and that 2) other early feminists' personal dislike of abortion did not support legal regulation of women's autonomy. See Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 176-85, 232-36 (NYU Press 2016); Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1, 2-68 (2012).
Ever since Roe v. Wade, opponents of legal abortion have invoked women’s history to justify themselves. A group called Feminists for Life (FFL) first came up with the idea that the founders of the women’s rights movement, including Susan B. Anthony and Elizabeth Cady Stanton, had opposed abortion and “worked to outlaw” it. FFL saw their historical vision widely adopted in the Right-to-Life movement in the early 1990s as it tried to appeal to younger women with pro-woman and “women-protective” arguments. When a political action committee was formed in 1993 to support anti-choice candidates, it doubled down on this historical claim by calling itself the Susan B. Anthony List. But FFL and kindred groups have played fast and loose with the evidence, as the historian Ann D. Gordon and others have already pointed out.
In fact, a number of early feminists expressed decided skepticism about outlawing abortion. They disliked abortion but thought anti-abortion laws did not apply “the proper remedies,” according to one nineteenth-century women’s rights pioneer. Such laws “do not touch the case,” declared another. FFL assumed that it was enough to show that “the original feminists condemned abortion in the strongest terms” to infer that they favored legal sanctions. The sources show, however, that this assumption was wrong; feminists could condemn abortion but remain quite skeptical of its criminalization. This article revisits the sources and context to better understand how early women’s rights advocates thought about both abortion and abortion laws. While discussing disputed evidence in some detail, it goes beyond a verdict of “not proven” on Right-to-Life claims to argue that the early feminists’ insights about the law have lasting power.
h/t Kimberly Hamlin
Recovering the Aspiration of the Equal Rights Amendment to Overcome Gendered Disempowerment in the Work of Pauli Murray
Julie C. Suk, A Dangerous Imbalance: Pauli Murray's Equal Rights Amendment and the Path to Equal Power, 107 Virginia L. Rev. Online 3 (Jan. 30, 2021)
This Essay recovers the aspiration of the 1970s ERA to overcome gendered disempowerment, which was most acutely experienced by Black women. That aspiration did not become part of the “de facto” ERA through Fourteenth Amendment litigation. Whether the ERA would sufficiently respond to “intersectional” discrimination, as it later came to be known, became a point of contention in Illinois’s 2018 ratification debates. This Essay begins by highlighting the leading roles that African American women legislators have played in sponsoring and framing the 1972 ERA in the three states that have ratified it after the statutory deadline. It posits that this should matter to the ongoing debates about the legitimacy of these post- deadline ratifications. These states ratified the ERA long after the deadline imposed by an overwhelmingly white male Congress, but they did so as soon as women—including women of color and LGBTQ women—accumulated the modicum of power necessary to insist on their constitutional inclusion. These legislators’ twenty-first century vision of the ERA resonates with Pauli Murray’s testimony in favor of the ERA in congressional hearings in the 1970s, which built on her work as a member of the President’s Commission on the Status of Women, as a founder of the National Organization for Women in the 1960s, and as a board member of the ACLU.12 Murray built a strategy for women’s empowerment using the race equality victories under the Fourteenth Amendment as a template. Her writings laid the intellectual architecture for the gender equality victories won by Ruth Bader Ginsburg throughout the 1970s. Murray argued that African American women had the most to gain from an ERA,15 which could end their disempowerment, beyond merely winning litigated cases. The quest for empowerment, more so than doctrinal legal change, is driving the ERA’s twenty-first-century resurgence. Women seek empowerment not only to help themselves but also to help save democracy from dangerous abuses of power that threaten its legitimacy.
Part I begins in the present, highlighting the leadership and opposition by Black women in the state legislative debates leading to ERA ratification since 2017. Part II analyzes Pauli Murray’s 1970 written testimony to the Senate Judiciary Committee, in which she articulated African American women’s stake in the ERA for a congressional audience. Part III situates Murray’s vision of the ERA in the context of her 1960s writings for the President’s Commission on the Status of Women and as a co- founder of the National Organization for Women. Coining the term “Jane Crow” to focus on discrimination faced by Black women, Murray’s initial ambivalence about the ERA centered her work on a litigation strategy based on the Fourteenth Amendment. But by the end of the decade, she persuaded ERA skeptics, including colleagues at the ACLU, where she served on the Board, to pivot and support the ERA. Part IV develops the implications of Murray’s analysis of equal rights as equal power for contemporary efforts to overcome women’s underrepresentation in positions of power.
Tuesday, January 26, 2021
After progress on the federal Equal Rights Amendment stalled in the late 1970s, states began to take matters into their own hands by adopting their own Equal Rights Amendments. In the forty-plus years since the federal Equal Rights Amendment was initially passed by Congress, twenty-eight states have adopted some form of their own Equal Rights Amendment. In that time, both state and federal courts have been tasked with interpreting these state Equal Rights Amendment. This decisional authority is uniquely relevant to the question of how the federal Equal Rights Amendment is likely to be interpreted if and when it is made a part of the United States Constitution. This essay endeavors to explore the subject matter areas in which state Equal Rights Amendment litigation has been prevalent and how that litigation is likely to impact the interpretation of the federal Equal Rights Amendment
Wednesday, January 13, 2021
Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment
The Nineteenth Amendment’s ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women’s equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions and strategies for women’s empowerment after they got the constitutional right to vote. They divided over the ERA. Their disagreements, this Essay argues, productively postponed the ERA, and reshaped its meaning over time to be more responsive to the challenges women faced in exercising economic and political power because they were mothers. An understanding of how and why the amendment stalled speaks directly to the current controversy in Congress and the courts about whether a congressional time limit should stop the ERA from achieving full constitutional status. Such an understanding recognizes that suffragists disagreed in the immediate aftermath of the Nineteenth Amendment’s ratification over the ERA, and that these divisions undermined the ERA’s prospects for at least a few decades. Ultimately, however, the ERA that earned congressional adoption and 38 ratifications over almost a century was stronger because of this postponement.
Tuesday, January 12, 2021
I enjoyed hearing about this new book at the AALS conference this year. Understanding the history, and discrimination of women law professors from those featured in the book and on the panel was interesting if also frustrating.
Herma Hill Kay, Paving the Way: The First American Women Law Professors, edited by Patricia Cain (forthcoming April 2021, U California Press)
Book Blurb: When it comes to breaking down barriers for women in the workplace, Ruth Bader Ginsburg’s name speaks volumes for itself—but, as she clarifies in the foreword to this long-awaited book, there are too many trailblazing names we do not know. Herma Hill Kay, former Dean of UC Berkeley School of Law and Ginsburg’s closest professional colleague, wrote Paving the Way to tell the stories of the first fourteen female law professors at ABA- and AALS-accredited law schools in the United States. Kay, who became the fifteenth such professor, labored over the stories of these women in order to provide an essential history of their path for the more than 2,000 women working as law professors today and all of their feminist colleagues.
Because Herma Hill Kay, who died in 2017, was able to obtain so much first-hand information about the fourteen women who preceded her, Paving the Way is filled with details, quiet and loud, of each of their lives and careers from their own perspectives. Kay wraps each story in rich historical context, lest we forget the extraordinarily difficult times in which these women lived
The point made by Melissa Murray was also well taken that the limitations of this study, focused as it was on ABA accredited and AALS schools, omitted many important women of color who taught at other institutions. For an earlier post about one of these women, Lutie Lytle, see The Story of the First Woman -- and the First Black Woman -- Law Professor, Lutie Lytle (2/1/2019)
Monday, November 30, 2020
Understanding Sojourner Truth's Role in Passage of the Nineteenth Amendment and the Fight for Black Women's Rights
Lolita Buckner Inniss, "While the Water is Stirring": Sojourner Truth as Proto-agonist in the Fight for (Black) Women’s Rights, 100 Boston U. L. Rev. 1637 (2020)
This Essay argues for a greater understanding of Sojourner Truth’s little discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in particular, were created and sustained by the work of antebellum activists like Sojourner Truth, a towering figure who was tied to nineteenth-century movements for abolition and women’s suffrage. Sojourner Truth’s advocacy on behalf of women was premised upon a womanist approach to speech and action that centered the experiences of black women in the business of equal rights both in terms of race and gender. Sojourner Truth’s work as a justice-seeking sage with a goal of advancing the legal, political, and economic rights of women in general and black women in particular is a source of inspiration and a model for making contemporary black women protagonists and co-agonists—co-centric figures—in the work that is still much needed at the centennial of the Nineteenth Amendment.
I've just posted a new book chapter, The Long History of Feminist Legal Theory, forthcoming in in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams eds. Oxford Univ. Press).
This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred and fifty years. This chapter traces that development. It begins with the establishment of the core theoretical precepts of gender and equality grounded in the surprisingly comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. It then shows how feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality, and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.
Thursday, November 19, 2020
Sally Roesch Wagner, How Native American Women Inspired the Women's Rights, Suffrage Movement
“Never was justice more perfect; never was civilization higher,” suffrage leader Matilda Joslyn Gage wrote about the Haudenosaunee, or Iroquois Confederacy, whose territory extended throughout New York State.
Matilda Joslyn Gage led the National Woman Suffrage Association (NWSA) along with Elizabeth Cady Stanton and Susan B. Anthony, the three women trading executive positions over the 20 years of the organization’s existence.
According to Gloria Steinem, Gage was “the woman who was ahead of the women who were ahead of their time.” When the women’s suffrage leadership grew conservative, Gage dropped out of the movement. Suffragists stopped remembering her progressive contributions, like her 1893 revelation of the sex trafficking of women and girls in the United States.
Gage, and to a lesser extent Stanton, were largely dropped from the history. With their exclusion, we also lost this story of how they saw women’s rights in action in the native culture of the Haudenosaunee, and realized they could create the conditions for it in their own society.
Having worked for women’s rights for forty years, Gage and Stanton became increasingly frustrated with their inability to make major gains in their social, economic or political positions as women by the 1880’s.
In their disappointment, they looked beyond the Euro-American culture that was already known intimately to them and gained a vision of a world of equality from their nearby neighbors. Stanton and Gage grew up in the land of the Haudenosaunee, the six nations of the Iroquois Confederacy: the Onondaga, Mohawk, Seneca, Cayuga, Oneida and Tuscarora who had social, religious, economic and political positions far superior to their own, they wrote.
The Six Nation Haudenosaunee Confederacy had, and still have today, a family/governmental structure based on female authority. Haudenosaunee women controlled the economy in their nations through their responsibilities for growing and distributing the food. They had the final authority over land transfers and decisions about engaging in war.
Children came through the mother’s line, not the father’s, and if the parents separated, the children stayed with their mother, and if she died, with her clan family. Women controlled their own property and belongings, as did the children. Political power was shared equally among everyone in the Nation, with decisions made by consensus in this pure democracy, the oldest continuing one in the world.
Tuesday, October 27, 2020
Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, 108 Georgetown L.J. 73 (2020)
The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote on behalf of all household members. On this understanding, coverture and the state functioned as interlocking systems of governance. The nineteenth century Women’s Rights Movement was a campaign to reshape American democracy; eliminating coverture and extending full citizenship rights to women were necessary to achieve that goal. To use a phrase that we now associate with same-sex couples, it was the nation’s first marriage equality movement.
Adoption of the Nineteenth Amendment marked a new social under-standing that constitutional principles and democratic norms must apply to women’s role in marriage as well as to women as citizens. The movement began by articulating a concept of collective liberty, which grew out of experiences in the anti-slavery movement and which expanded on the Founders’ more individualist concept of liberty in the Declaration of Independence. After the Civil War, the equality discourse of the Reconstruction Amendments and the rejection of women’s demands for the vote by both Congress and the Supreme Court reshaped the dominant theme of women’s rights efforts into a campaign for equality. The refusal by federal lawmakers to address women’s issues left them no recourse except to lobby state legislators, which women’s groups undertook on both suffrage and marriage law. But the diffuse, localized nature of family law presented insuperable barriers to ending coverture in one pre-emptive action.
The Nineteenth Amendment reflects these dual goals in its text and sub-text. The former prohibits denial of the vote based on sex, and the latter, by enabling women’s full participation in political life, rebuts the heart of the rationale for coverture: that women’s role in society lay solely in the domestic sphere of home and marriage.
Failure to understand the centrality of marriage-law reform to the social and political meaning of the Nineteenth Amendment has impoverished the constitutional grounding for contemporary challenges to the legal regulation of marriage, including the Supreme Court’s decision in Obergefell v. Hodges. In Obergefell, which prohibited the exclusion of same-sex couples from marriage, the Court missed an opportunity to draw on the history and meaning of the Amendment to frame the issue as implicating dual systems of governance, both of which must be bound by constitutional principles. Instead, the Court described marriage as a largely prepolitical realm of private, idealized relations. The opinion of the Court failed to comprehend the extent to which marriage today continues to function as an institution of the state and a zone of governance, no longer because of coverture but because it is foundational to the privatization of collective responsibility that is embedded in the nation’s primary systems of social insurance.
Friday, October 23, 2020
In Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress, Alasia Nuti explores the relationship between history and the provision of justice by focusing on women as a historical-structural group subject to historical injustices that continue to impact the present. This is a very welcome contribution to the literature, writes Ebru Demir, providing both deep and rigorous analyses of its case studies and proposing thought-provoking new terminology.
Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress. Alasia Nuti. Cambridge University Press. 2019.
Why should an unjust history matter for egalitarians seeking justice in the present? How and why does history relate to the provision of justice both theoretically and practically? Alasia Nuti’s Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress not only engages with such longstanding questions but also makes an important contribution to the existing literature as it centres on the argument that women as a historical-structural group (HSG) are the subjects of historical injustices.
One of the main arguments of the book is that ‘unjust history that should normatively matter in justice-based considerations is present because it has been reproduced over time through different means’ (4). In the first half of the book, Nuti builds this argument on very solid ground by engaging with the relevant literature and by providing examples to validate this very point. ‘De-temporalising injustice’, borrowed from Reinhart Koselleck’s terminology, is significant and necessary in order to capture the relation between past and present injustices (13). The book contributes to the de-temporalising of injustice by suggesting that past and present injustices have possible connections and all backward-looking approaches to injustice consider only past injustices as significant enough to address (15). According to Nuti, past and present cannot be separated if one seeks to provide justice for historical-structural injustices (HSIs) that have been committed. For this very reason, the division between past and present becomes deceptive. The present reproduces the unjust past ‘over time and through changes’ (8). Thus, change also becomes a suspect in perpetuating unjust history.
The second half of the book forms a study of women as a group and as the subjects of The second half of the book forms a study of women as a group and as the subjects of historical injustices. Although previously Catherine Lu has argued that women are a group suffering from enduring injustice, by carrying this argument one step further, this book provides a thorough analysis of how such a group is defined. Nuti, being aware of intersectional identities and differences, argues that to be categorised as a woman, one is not obliged to have been through systematic oppression: it is sufficient for one to be more likely to be exposed to unjust constraints and abuses (90). Therefore, possibility and potentiality become the requirements for being categorised as a group undergoing historical injustices.
Revaluating Marital Norms in the Administrative Cases Brought by Deserted Wives Seeking Homesteading Rights in the 19th and early 20th Centuries
Hannah Haksgaard, The Homesteading Rights of Deserted Wives: A History, Nebraska Law Review (Forthcoming)
During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.
Wednesday, October 21, 2020
Recalling the First Comprehensive History of Women's Rights, Eleanor Flexner's 1959, Century of Struggle
In the 1950s, Eleanor Flexner, a left-wing activist and writer, decided to compile a comprehensive history of the women’s rights movement in the United States, exploring a span of more than 300 years. Her timing could not have been less auspicious. Feminism was virtually a dirty word, described in Ferdinand Lundberg and Marynia F. Farnham’s celebrated book “Modern Woman: The Lost Sex” (1947) as “at its core, a deep illness.”
Moreover, the House Un-American Activities Committee, or HUAC, was engaged in a ruthless investigation of Communist influence in the United States, attacking left-wing artists and intellectuals. Flexner had been a member of the Communist Party from 1936 through 1956, and although she was not hauled before HUAC, the careers of some of her closest friends and associates had been ruined.
Nonetheless, Flexner, with no formal training as a professional historian, began what became a pathbreaking, wide-ranging account of activism for women’s rights in America.
“Century of Struggle: The Women’s Rights Movement in the United States” (1959) was the first authoritative narrative of one of the great dimensions of American democratic history. The book, based largely on her original research in the Library of Congress, the Sophia Smith Collection of Women’s History at Smith College and elsewhere, covered an immense amount of material, from Anne Hutchinson, the 17th-century rebel against Puritan clerical authority in Massachusetts, to the dramatic final years of the ratification of the 19th Amendment, by which women won the right to vote. It remained the pre-eminent text on the topic for more than half a century, and is still taught in schools and consulted widely by historians today.