Monday, November 19, 2018
Deborah Hellman, The Epistemic Commitments of Nondiscrimination
A commitment to nondiscrimination at times appears to require both that one not act in particular ways and that one not believe certain things. This is potentially troubling if one ought to believe what one has warrant to believe, and to the extent that one can take actions that affect what one comes to believe, one ought to do so with the aim of acquiring true beliefs. This article argues that current social controversies – like the debate over the memo by the Google employee which claimed that women are less suited for careers in technology fields – demonstrate that some defenders of norms of nondiscrimination understand these norms as including epistemic commitments. The article articulates what these epistemic commitments are, explores whether they can themselves be epistemically justified and, if not, situates the popular controversy in a philosophical debate about whether moral considerations properly encroach on epistemic norms.
From the Introduction:
"My aim in what follows is to connect up these political controversies to the philosophical debate about whether moral and pragmatic considerations can and should affect beliefs and credences. Doing so illuminates what is at stake in these disputes by enabling us to locate the precise points of philosophical disagreement. At the same time, reflecting on how the political controversies play out may tell us something about how to make progress in the philosophical domain."
Justice Sonia Sotomayor in an interview with CNN's David Axelrod said that Justice Brett Kavanaugh was welcomed into the Supreme Court "family" in the wake of his polarizing confirmation process.
When you're charged with working together for most of the remainder of your life, you have to create a relationship," Sotomayor said in an "Axe Files" interview airing Saturday."The nine of us are now a family and we're a family with each of us our own burdens and our own obligations to others, but this is our work family, and it's just as important as our personal family. * * *Sotomayor said despite the contentious confirmation, she told Kavanaugh that the focus on him will settle on his actions as part of the court."It was Justice (Clarence) Thomas who tells me that when he first came to the Court, another justice approached him and said, 'I judge you by what you do here. Welcome.' And I repeated that story to Justice Kavanaugh when I first greeted him here," she said. * * *Sotomayor, who was first confirmed to the court in 2009, also pushed back on the notion that Kavanaugh's presence cements a conservative tilt on the Court -- an institution she said is above "political terms.""Conservative, liberal, those are political terms," she said. "Do I suspect that I might be dissenting a bit more? Possibly, but I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we've agreed in quite a few cases, we've disagreed in a bunch, But you know, let's see."When asked modern political discourse, Sotomayor said too large of an emphasis has been put on differences rather than common "human values.""We all have families we love, we all care about others, we care about our country, and we care when people are injured," she told Axelrod. "And unfortunately, the current conversation often forgets that. It forgets our commonalities and focuses on superficial differences whether those are language or how people look or the same God they pray to but in different ways."Those differences truly are not important," she added. "What is important is those human values we share and those human feelings that we share. But I worry that we forget about that too often."
Judges' Subject Matter Expertise and Personal Ideologies May be Linked to More Gender Bias in Rulings
Judges' subject-matter expertise—and personal ideologies—may be linked to more gender bias in their rulings, according to a recent study of jurists and laypeople. The study asked respondents to read and decide how to resolve hypothetical custody cases and workplace discrimination claims with similar fact patterns but different races and genders assigned to parties.
The study, conducted by Andrea Miller when she worked as a postdoctoral researcher at the American Bar Foundation, surveyed 619 state court trial judges and 504 laypeople. A state supreme court—Miller did not disclose which one—provided administrative and financial support for the survey. Miller will share the results of the survey with the judges and help them rely less on their personal biases, according to a news release about the study.
“Judges tend to believe that their vast amount of legal training and logical thinking skills make them immune to these mistakes. This research is showing that judges are not as immune as maybe they think they are,” Miller, a psychology professor at the University of Illinois at Urbana-Champaign, said in the news release about the study, which also examined race. The race-focused piece of her research will be published at a later date.
In the shared-custody hypothetical, judges were more likely than laypeople surveyed to give the mother more time with a child, the release said. The survey also asked the judges about their personal ideologies regarding gender roles after they made their rulings in the hypothetical cases. Those identified as supporting traditional gender roles, with women mostly confined to domestic caregiving roles and men in public, career-based ones, were more likely to give mothers more time in the custody hypotheticals, according to the study.
Thursday, November 15, 2018
Women have taken to social media to share photos of their underwear after a 27-year-old man was acquitted in a rape trial during which the woman's 'thong' was brought up in court.
The criminal court case ended with the man being found not guilty of raping a 17-year-old in the city of Cork in Ireland.
But the defence barrister's argument garnered widespread attention after she told the jury to take into account what the teenager was wearing.
"You have to look at the way she was dressed. She was wearing a thong with a lace front," she said, according to the Irish Examiner newspaper on 6 November.
This prompted Irish MP Ruth Coppinger to show blue lacy underwear in the Dáil (Irish parliament) and share a powerful message to her colleagues.
"It might seem embarrassing to show a pair of thongs here... how do you think a rape victim or a woman feels at the incongruous setting of her underwear being shown in a court?"
Since the media attention, many women have turned to social media and post photos of their underwear accompanied by the hashtag 'This Is Not Consent'.
For the original report of the trial and the alleged incident, see Irish Examiner, Counsel for Man Acquitted of Rape Suggested Jurors Should Reflect on Underwear Worn by Teen Complainant
The text of the ERA is simple: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” The language was developed by lawyer and suffrage fighter Alice Paul in 1943, although the equality amendment was first introduced in 1923.
When, under the amendment process, it was approved in 1972 by two-thirds of the members of the U.S. House of Representatives and Senate, a deadline for ratification by the states was inserted—at first seven years, then extended to 10 years. The ratification fell three states short of the 38 needed, and in 1982, the ERA was declared dead.
Now, new impetus is reviving it. Two key strategies have emerged to make the ERA a reality: One approach is to gain the final three ratifications and amend the original congressional time limit; the other is to “start over” with a vote in Congress and gather 38 new state ratifications.
“All along, since 1982, there was a little hum of energy,” says lawyer Jessica Neuwirth, author of the 2015 book Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now. “It went from a hum to a whisper,” Neuwirth notes, “and now it’s an ascendant line. It’s steady and it’s strengthening. Not like a roar, but a much greater awareness than there used to be.” Neuwirth is cofounder of the ERA Coalition, a D.C.-based entity that serves as a resource for more than 70 organizational members working on the issue. [http://www.eracoalition.org] ***
A “three-state strategy” aims to gather three more ratifications to add to the 35 passed from 1972–1982 and reach the magic number of 38. The concept was developed in 1992 after the Twenty-Seventh Amendment (the “Madison” amendment) on congressional pay was added to the Constitution, 203 years after it was first passed by Congress.
In May 2017, Nevada became the 36th state to ratify the federal ERA, and the first since 1977. In May 2018, Illinois followed suit to become the 37th state.
For more on the history of the ERA, see my recent book chapter: Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018).
Sharon Thompson, Feminist Relational Contract Theory: A New Model for Family Property Agreements, 45 J. Law & Society 617 (2018)
In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.
Tuesday, November 13, 2018
Priscilla Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018)
Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country. Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world. Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.
This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women. The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood. Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers. Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms. Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.
November 12 is the anniversary of the birthday of women's rights pioneer Elizabeth Cady Stanton (1815-1902). I spent a decade studying her work on law, including the law of marriage, marital property, child custody, domestic violence, reproductive rights, juries, and constitutional reform. That work was encapsulated in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016).
I blogged about each of the chapters, linked here:
Introduction, overview, biography, and conclusions
Chapter 1, "What Do You Women Want?" on marital property reform
Chapter 2, "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage
Chapter 3, "Divorce is not the Foe of Marriage" on advocacy of no-fault divorce and domestic violence protections
Chapter 4, "The Incidental Relation of Mother" on reproductive rights and birth control
Chapter 5, "Our Girls" on child custody, feminist parenting, and equality in education
Conclusion: “Still Many Obstacles” on Stanton's legacy in 21st century family law.
The book is reviewed by Prof. Paula Monopoli here in the Journal of Legal Education.
My response is here, The Multiple Feminisms of a 19th Century Women's Rights Thinker
I talk about the book on the New Book Network Podcast.
Ronagh McQuigg, Is it Time for a UN Treaty on Violence Against Women?, 22 Int'l J. of Human Rights 305 (2018)
Violence against women is one of the most prevalent human rights abuses at the global level. However, no specific mention of this issue is made in any of the UN treaties. This article begins by discussing why any express reference to violence against women was excluded from the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and then proceeds to examine existing efforts at the UN level in this area. However the key focus of this article is on the new and important question of whether it is now time for a specific treaty on violence against women to be adopted at the UN level. The article analyses the arguments surrounding the adoption of a global treaty on violence against women, and aims to provide a detailed examination of this highly significant area of law, while seeking to offer original insights on this issue. It is ultimately concluded that, despite the undoubted challenges which would be involved, it is nevertheless time for the development and implementation of a UN treaty on violence against women.
Friday, November 9, 2018
Google Has New Sexual Harassment Policies Following Employee Walkout, Including Ending Forced Arbitration
Google said it would end its requirement for employee sexual-harassment claims to be handled in private arbitration, a move that comes one week after thousands of workers walked out of the company’s offices around the world to protest its handling of workplace issues.
In a memo on Thursday, Chief Executive Sundar Pichai told staff that Google will also include greater detail on sexual-harassment claims in regular reports and provide more services to employees who raise concerns, including counseling and career support.
The policy change for harassment claims is a victory for the organizers of the world-wide walkout, in which employees huddled outside of Google offices from Singapore to San Francisco chanting “Time’s Up!” and holding signs that read “Worker’s rights are women’s rights.”
The protest organizers published a letter with five demands, including an end to forced arbitration, a system that encourages HR staff to treat victims of harassment fairly and greater transparency around the reports on harassment claims. In its steps announced Thursday, Google didn’t address two of the demands: that the company commit to end pay inequity for women and minorities; and that the company’s chief diversity officer report directly to the CEO.
In a separate statement, Google outlined its commitments and actions policies in detail. Most significantly, the company will make arbitration optional for individual sexual harassment and sexual assault claims (according to the note, it has never required confidentiality in the arbitration process). It will make its policies on harassment, discrimination, retaliation, standards of conduct and workplace concerns more public to workers. It will also create an investigations practice guide and publish it internally so employees understand how the company handles concerns. The policies only apply to full-time employees, however.
In my little corner of the world,
Akron Beacon J., Women Rule in Summit County Claiming All 10 Common Pleas Judge Seats
Women rule in Summit County.
For what may be the first time in history, the Summit County Common Pleas bench – once all male – will be made up of all women after Tuesday’s election.
In the only male-female match-ups for Summit County Common Pleas Court, Kathryn Michael and Kelly McLauglin defeated Tom McCarty and Dave Lombardi, according to unofficial election results.
“The two men are going down in flames,” said McCarty, whose wife, Alison, is already on the common pleas bench.
These wins will mean all 10 judges on the common pleas bench will be women and, overall in Summit County, women will occupy just more than 70 percent of the elected judicial seats.
“That will put us in the most unusual position of any other county across the state of Ohio,” said Michael, an Akron judge who ran for a common pleas seat for the fourth time.
Noya Rimalt, The Maternal Dilemma, 103 Cornell Law Rev. (2018)
This article questions the sufficiency of contemporary parental policies in undermining the gendered division of care-work at home. It reveals that despite the optimistic expectations that accompanied the enactment of gender-neutral leave legislation such as the FMLA, and the provision of equal care opportunities for men, a marked gap separates the law's target of equal parenting from the persistence of a maternal reality in most families. Moreover, because women remain responsible for family caregiving much more than men, the stereotype that women are less competent workers continues to thrive, and gender bias and discrimination still shape women's experiences in the workplace. This discriminatory reality is often masked by legal narratives presenting the rise of egalitarian and choice-based patterns of parenting as actual products of contemporary parental policies. Gendered patterns of care and work are thus legitimized as reflecting the individual lifestyle preferences of both women and men in a world in which equality and choice shape these preferences.
The article suggests naming this problem “the maternal dilemma” and calls for re-evaluation of current male-centered policy solutions designed to address it by encouraging men to assume more care-taking responsibilities at home. It adds a comparative analysis to illustrate that the maternal dilemma is not a unique American problem, with its very “thin” model of parental supports, restricted to narrow and primarily negative protections. The maternal dilemma prevails also under more progressive regimes of parental supports that provide additional incentives for men to assume greater care-taking responsibilities at home.
Building on comparative lessons as well as on the scope and significance of the maternal dilemma in the American context, the article argues that in their efforts to recruit men to the task of care-taking at home, feminists, legislators and policy makers have neglected an additional and equally important set of issues relating to the structures and forces that shape women's decision to remain the primary caretakers at home.In deliberating these issues the article suggests acknowledging that gendered patterns of care-work at home are not simply the product of women’s subordination. They also reflect the complex relationship between women’s disempowering experience in the labor market and the historical and contemporary significance of motherhood in their lives. Restoring the focus to women and addressing their specific needs and concerns are thus crucial for moving forward. Naming this problem the maternal dilemma serves as a reminder of where the core of the problem is; it also signals that the path to gender equality might require more than gender-neutrality and similar treatment.
Her school, Charter Day School in Leland, North Carolina, prohibits female students from wearing pants or shorts — a policy that an ongoing lawsuit claims is illegal.
Charter Day is hardly the first school to come under fire for a controversial dress code policy, but their skirts-only rule is “definitely an outlier,” Galen Sherwin, an ACLU attorney who is involved in the case, told TODAY Style.
“This is definitely an extreme case,” she said. “Certainly none of the schools in the local area have a similar requirement, including the Catholic schools.”
Wednesday, November 7, 2018
The single greatest antidote to poverty and social stagnation is the emancipation of women. Wherever this has been tried, wherever women have been empowered to do as they wish, the economy and the culture have been radically improved.
A new book by Augusto Lopez-Claros, a senior fellow at the School of Foreign Service at Georgetown University, and Bahiyyih Nakhjavani, an Iranian writer and novelist, is among the first to comprehensively test this proposition by surveying data from 189 countries. Titled Equality for Women = Prosperity for All, the book shows how gender inequalities — in education, income, law, employment, and wages — lead to instability and chaos at almost every level of society.
A conversation with the author follows.
Jessica Clarke, They, Them, and Theirs, 132 Harvard Law Rev. (2019)
Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.
Sherry Colb, What Does #BelieveWomen Mean?, Verdict, Justia
As the #MeToo movement gathered steam, exposing many long-ignored instances of sexual misconduct, other hashtags followed in its wake. One of these is #BelieveWomen. In this column, I will analyze some ways of understanding #BelieveWomen and suggest that properly understood, it can provide us with a better way to approach not only women but anyone who brings disfavored messages to our doorstep.
What Does “Believe Women” Mean?
The #BelieveWomen hashtag responds to a very old and longstanding prejudice. The prejudice held (and, to some extent, still holds) that when women say that they were raped, there is a good chance that they are lying. Seventeenth century English jurist Lord Chief Justice Matthew Hale said “[rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Well into the second half of the twentieth century, Hale’s concern about women’s false rape accusations distorted the process of adjudicating rape claims in criminal courts.
Judges, for instance, gave juries special instructions cautioning them about the danger of lying rape victims and the need to be extra skeptical of their testimony. Courts often required corroborating evidence as well, even though witnesses who testified about other crimes required no similar corroboration. As Susan Estrich put it in her 1988 book, Real Rape, the law had difficulty believing women who came forward to complain of rape. The law accordingly placed stumbling blocks in the path of prosecution and conviction, including the special cautionary instruction and the need for corroboration.
. . .
So What Would It Mean to Believe All Women?
If we acknowledge that women sometimes bring false accusations, does that mean we should believe only some women but not all women? We can still believe all women, so long as we make sure to follow up with other potential evidence sources before convicting the defendant of rape.
Tuesday, November 6, 2018
Excerpt from my book: Tracy A. Thomas, chp. 2, "What Do You Women Want?", Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016)
Nineteenth-century women's rights leader Elizabeth Cady Stanton on the economic, political, and constitutional import of the vote and property ownership for women.
Property as Citizenship
This connection between taxation, property, and political rights was part of Stanton’s initial philosophy articulated in the Declaration of Sentiments. In the Declaration, she identified the abuse of power from taxation of single women and widows without a voice in governance. “If single and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.” The Declaration made a broad demand for women’s status as “citizens” and full members of the community with all civil, economic, and political rights.[i] For citizens, unlike the more general category of “persons,” have power and participatory rights in the governance through political action. She challenged the deprivation of “the first right of a citizen, the elective franchise,” and demanded women’s “immediate admission to all the rights and privileges which belong to them as citizens.” These rights included “the right to protect one’s person and property; to govern one’s self; to have a voice in the law and rulers; to enjoy all the advantages and opportunities of life of which one is capable. This is citizenship in a republic. The natural right to life, liberty, and happiness.”[ii]
“The Declaration of Sentiments ushered in a new conception of citizenship, for its crucial themes included natural and inalienable rights, suffrage and national citizenship, and legal protection derived from right of contract.”[iii] Stanton utilized liberal political theories of natural, individual rights, arguing that women, the same as men, were entitled to participation in the public sphere in accordance with rights of self-government.[iv] She also appealed to republican political theories of the virtuous citizen working for the collective common good, arguing that women had abilities, as property holders, taxpayers, and morally superior people meriting citizenship.[v]
Women’s point of entry into this citizen class, though, was not clear. Citizens were defined by their privileges and obligations of voting, jury service, and military service, all of which excluded women.[vi] Women’s obligations of citizenship had instead been defined in terms of their family. “From the era of the American Revolution until deep into the present, the substitution of married women’s obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women, including unmarried women, to state power.”[vii] Republican values of political citizenship after the Revolutionary War created the cultural ideology of Republican motherhood, which held that women contributed their civic duty through their obligation to their families and in educating and raising citizen sons.[viii] This ideology valued women’s caregiving, even while it confined women to the private family sphere. Stanton attacked this notion of a “woman-citizen” as something supernatural, a “monster, half-human, half-beast,” derived from man’s false creation of the image of womanhood sentimentally worshipping her superior virtue yet fearing her emotional and religious nature in the public sphere.[ix] Understanding the reciprocal nature of citizenship, Stanton argued that women were ready to assume the duties of citizenship, like jury duty and liability for debts, if only granted the benefits.[x]
Stanton tried to break into this closed circle of citizenship by first latching onto the traditional American basis for granting citizenship rights, property holding.[xi] “In the eighteenth century, the liberal individual (male) was defined by owning property, voting, participating in the public sphere.”[xii] Many states inherited the traditional English system requiring property ownership for voting.[xiii] Property qualifications were viewed as properly extending suffrage to those “seen as having a vested stake in society” and excluding those “too poor to have a will of their own” and too easily coerced by those who controlled their livelihoods.[xiv] These property qualifications allowed women, briefly, in New Jersey to vote between 1776 and 1807, because, as the Supreme Court held, for single, propertied women, “the law supposes them to have wills of their own.”[xv]
Relying on this historical precedent, Stanton argued that women’s ownership of property entitled women to the vote, and thus citizenship.[xvi] “A citizen, says Webster, in the United States is a person native or naturalized who has the privilege of exercising the elective franchise in the qualifications which enable him to vote for senators and to purchase, hold real estate.”[xvii] She endorsed the property connection, arguing “There is no principle of equity more universally admitted than that the owner of property shall have a word to say in its use.”[xviii] Quoting Benjamin Franklin, she said: “If a man’s property can be taken from him without his consent, he is a slave.”[xix]
Stanton also tried to break into citizenship by linking suffrage to taxation.[xx] Echoing the American sentiment from the Revolutionary War, she decried the “tyranny of taxation without representation.” Stanton later developed this theme in an 1873 speech delivered to the Rochester Women Taxpayers’ Association and a later draft lecture, “Taxation,” focusing on the basic idea that “Webster’s defines ‘tax’ as a “sum of money assessed on the person or property of a citizen.” [xxi] She emphasized the citizenship link: “Thus in taxing women the state pays them the compliment of recognizing in them the dignity of citizenship.”
On what principles of justice are there large numbers of men allowed to vote without paying taxes, while the women are compelled to pay taxes without voting? Whatever property the state protects should I think contribute its proportion to the state’s support. Hence as loyal law-abiding citizens we are willing to pay our share for the support of the state. But as our taxes are increased in proportion as many other classes and many kinds of property are exempt. We have a reason to complain of this injustice and to insist that women as large property holders throughout the United States should have a vote on this question.[xxii]
Stanton’s taxation arguments had popular appeal and were easily adopted by women’s rights advocates.[xxiii] Several famous protests by women refusing to pay their taxes were “frequently and widely recounted” by the women’s movement.[xxiv] These protestors included eighty-year old sisters, Julia and Abby Smith, who had their cows seized and sold at auction to pay the taxes, and abolitionist Abby Kelley Foster and her husband Stephen Foster who refused to pay taxes until Abby, and all women, could vote.[xxv] “Popular narratives, valuing as they did the Boston Tea Party, continued to convey that civic authority was related to democratic control of taxation.”[xxvi] These connections between property and taxation voting were partially successful in obtaining women’s right to vote in school or municipal elections, though they enfranchised only relatively well-to-do women.[xxvii] But the arguments failed to achieve Stanton’s greater purpose of establishing women’s full status of citizenship.
After the Civil War, the resulting constitutionalism of the Civil Rights Amendments provided alternative legal arguments to add to these political rationales for voting. Stanton returned to one of the demands from the Declaration of Sentiments insisting that women be given “immediate admission to all the rights and privileges which belong to them as citizens of the United States.”[xxviii] The Fourteenth Amendment, enacted in 1868, seemed to grant exactly this by guaranteeing that “all persons” are “citizens” against whom states cannot abridge “the privileges and immunities of citizenship.” In 1869, Missouri reformer Virginia Minor and her attorney husband, Francis Minor, devised an argument for woman’s suffrage based on the plain language of the newly-enacted privileges and immunities clause.[xxix] Stanton quickly adopted Minor’s argument, appreciating that the Fourteenth Amendment provided the textual hook women needed. She called it the “title deed” to woman suffrage for “without or without intent, a law stands as it is written.”[xxx] This textual argument became the foundation of Stanton’s NWSA legislative and judicial campaigns of “the New Departure” as hundreds of women, including Susan B. Anthony, civilly disobeyed the law by voting under the claimed authority of the privileges and immunities clause.[xxxi]
Stanton however extended the legal argument beyond mere textualism. She “proposed a dynamic model of constitutional interpretation designed to keep the principles of the text current with present social conditions and needs.” Adam Winkler has argued that Stanton theorized in what was then a “radically different way of understanding constitutional interpretation,” by arguing that the constitution should develop in a dynamic way to meet the ever-changing understanding of society. This idea of a changing, dynamic “living constitution” would become “the dominant mode of constitutional construction in the twentieth century.” Stanton’s use of the method not only foreshadowed modern critiques of originalism, but according to Winkler, secured her place as “its most important innovator.”[xxxii] Stanton described the fundamental law as “the organic law of the land” that should be “so framed and construed” to emphasize the progressive development of individual rights.[xxxiii] She argued in her speech to the Joint Committees of the District of Columbia, considering women’s suffrage in D.C., that “As history shows . . . each step in civilization has been a steady approximation to our democratic theory, securing larger liberties to the people.”[xxxiv] She gave the example of men’s suffrage, which had evolved from rights only for propertied white men, then expanded to universal white male suffrage including laborers, and then extended to black men. In another example, she cited the legal developments of the married women’s property acts that evolved from a new understanding of women’s civil rights departing from coverture. “Woman has not been standing still, but has been gradually advancing to an equal place with the man by her side.”[xxxv]
In January 1872, appearing before the Senate Judiciary Committee in support of woman’s suffrage, Stanton “added a stinging condemnation of the dominant method of constitutional interpretation, originalism, which was proving to be the primary stumbling block for suffrage reform.” “Though the world has been steadily advancing in political science, and step by step in recognizing the rights of new classes, yet we stand to-day talking of precedents, authorities, laws, and constitutions, as if each generation were not better able to judge of its wants than the one that preceded it. If we are to be governed in all things by the men of the eighteenth century, and the twentieth by the nineteenth, and so on, the world will be always governed by dead men.[xxxvi] Stanton argued for an evolutionary understanding of the entire Constitution from 1789 to 1870, arguing that the meaning of the privileges and immunities clause, contained originally in Article IV, had changed.[xxxvii]
Stanton needed to depart from the traditional legal constitutional interpretation of originalism because the framers of the Fourteenth Amendment clearly did not intend to include the right to vote in its guarantees. This legislative intent was recent history and familiar to all, especially Stanton’s congressional audience, many of whom were the framers themselves.[xxxviii] Their primary intent had been to grant civil, legal rights to freed slaves; they explicitly did not include the right to vote, which was envisioned separately as a political compromise in the Fifteenth Amendment granting suffrage to black men.[xxxix] The national citizenship of the Fourteenth Amendment was defined not by the vote, but as the reciprocal obligation of allegiance by the individual to the nation in exchange for protection by the state.[xl]
The U.S. Supreme Court agreed, rejecting Stanton and Minor’s claim of a constitutional right to vote. In Minor v. Happersett, the Court easily recognized women as citizens.[xli] As John Bingham, the primary drafter of the Fourteenth Amendment had explained in a Senate Report several years before, there was “no longer any reason to doubt that all persons” born or naturalized in the United States were citizens as declared by the amendment.[xlii] But that was a conclusion without significance, for the catch was that citizens did not automatically have the right to vote. That had been the feminists’ assumption: that voting was the distinguishing privilege of a citizen, and why they focused their goal on establishing women as full citizens.[xliii] Stanton attacked Bingham’s report and its implication that “women are not ‘citizens,’ but ‘members’ of the nation!—mere appendages to the State, the Church and the home.” She snarked, “If this, indeed, be woman’s normal condition, may God grant us a wiser, nobler type of manhood as our prefix than John Bingham, of Ohio.”[xliv]
The Court Supreme Court in Minor agreed that voting was not a privilege of national citizenship protected by the Fourteenth Amendment, but was instead a political right discretionarily granted by the state.[xlv] The Court defined “privileges and immunities” by reference to its antecedent in Article IV of the Constitution and the intent of the founders which did not include the vote as a privilege of citizenship. The republicanism of the founders believed in virtual representation by which only an elite few property owners were qualified to govern with political rights of voting. The Court applied the traditional originalist interpretation of the intent of the framers, both constitutional and amendment, refusing to engage Stanton’s dynamic interpretation.
Undeterred, Stanton continued to press for what she thought was self-evident, even as she simultaneously pursued alternative political strategies like a new Sixteenth Amendment for women’s suffrage. “By every principle of fair interpretation we need no amendment, no new definitions of the terms ‘people,’ ‘persons,’ ‘citizens,’ no additional power conferred on Congress” to enable Congress to grant women suffrage.[xlvi] She continued to believe that the text of the Fourteenth Amendment, properly interpreted, should grant women the right to vote. Her argument, however, “was still too radical for its time.”[xlvii]
[i] Declaration, 3; McClain and Grossman, 1, 8.
[ii] ECS, “Women Do Not Wish to Vote,” National Bulletin, Apr. 1894.
[iii] Isenberg, 32.
[iv] ECS to SBA, July 4, 1858; ECS, “The Power of the Statute Legislature,” Woman’s Tribune, Mar. 1, 1885.
[v] ECS, “A Household of Women,” Woman’s Tribune, Oct. 6, 1900; Mrs. Stanton’s Suffrage Convention Letter, Washington Chronicle¸ Jan. 28, 1883; Davis, 2, 19-20.
[vi] Kerber, Ladies, 94; Isenberg, 13.
[vii] Kerber, Ladies, 11.
[viii] Kerber, Republic, 283; Norton, Liberty’s, 247-49.
[ix] Isenberg, 198; ECS, 1860 NY Address; ECS, “The Degradation of Woman,” Rev., Jan. 15, 1868; Miller, 173.
[x] ECS, “Editorial Correspondence,” Rev., Mar. 17, 1870; “Rev. Thompson.”
[xi] ECS, Bible and the Church Degrade Woman.
[xii] Clark, “Self-Ownership,” 905.
[xiii] Isenberg, 26.
[xiv] Kerber, Ladies, 94.
[xv] Isenberg, 24
[xvi] ECS, Speech to the Women Taxpayers’ Association in Rochester, New York, Oct. 31, 1873.
[xvii] ECS, Taxation Lecture, 15-16 (1877).
[xviii] Taxation Lecture, 23h.
[xx] Declaration; Bible and Church, 1-12.
[xxi] Taxpayers’ Speech.
[xxii] Taxation Lecture, 23e-g.
[xxiii] Rochester Proceedings, 15.
[xxiv] Kerber, Ladies, 100-04; Jones, 265, 269.
[xxv] Jones, 269.
[xxvi] Kerber, Ladies, 113.
[xxvii] Jones, 272-73.
[xxviii] Declaration, 4.
[xxix] “Francis Minor,” Rev., Oct. 21, 1869; “Mrs. Francis Minor,” Rev., Oct. 28, 1869; “Fundamental Rights,” Rev., Jan. 20, 1870.
[xxx] Argument of Mrs. Stanton Before the Judiciary Committee, reprinted as “Woman Suffrage,” Daily Morning Chronicle, Jan. 13, 1872.
[xxxi] Winkler, 1456, 1475-77, 1483; DuBois, “Taking the Law,” 23-34.
[xxxii] Winkler, 1456-59, 1468, 1480, 1515.
[xxxiii] ECS, Speech to Joint Committees of D.C., in “The Women in Washington,” Rev., Jan. 27, 1870.
[xxxiv] Id.; HWS, v.II, 411-16.
[xxxv] HWS, v.II, 510.
[xxxvi] “Woman Suffrage; HWS, v.II, 510.
[xxxvii] Winkler, 1482-83.
[xxxviii] Id. 1472-74.
[xxxix] Jack M. Balkin, “How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure,” 39 Suffolk University Law Review 27, 46 (2005); John Bingham, H.R. Rep. No. 41-22, Report, Committee on the Judiciary, 41st Cong., House of Rep., Jan. 30, 1871.
[xl] Bingham Report.
[xli] 88 U.S. 162 (1875).
[xlii] Bingham Report.
[xliii] “Rev. Thompson”; HWS, v.I, 412; see 41st Cong., 3d Session, H.R. Rep. 22, Jan. 30, 1871, by Reps. Loughridge and Butler (pt. 2, minority) (Judiciary Committee) (Minority Report, 9); HWS, v. II, 594.
[xliv] ECS, Letter to Editor, Woodhull and Claflin’s Weekly, Mar. 11, 1871.
[xlv] 88 U.S. 162 (1875); Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).
[xlvi] ECS, “Statement of Mrs. Elizabeth Cady Stanton,” Woman Suffrage, to the Senate Select Committee on Woman Suffrage, Apr. 2, 1888.
[xlvii] Winkler, 1465.
Ann D. Gordon, The Trial of Susan B. Anthony, Federal Judicial Center (2005)
United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”
Primarily a case about woman suffrage and sexual discrimination, United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.
Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote.
Asked whether she was a feminist, Amy McGrath, the former Marine fighter pilot running for Congress in Kentucky, was emphatic: “Hell yeah, I’m a feminist.” Her opponent, Representative Andy Barr, turned her words into an attack ad.
Many politicians have considered the word “feminist” toxic. But that might be changing. In 11 battleground districts nationwide, including Kentucky’s Sixth, about half of voters said they supported electing feminists, compared with roughly a third who opposed it, according to Upshot/Siena House polls this fall. About a fifth said they didn’t know.
We don’t have past surveys asking the same question to compare with these results, and support of feminist candidates is still not a majority opinion — more Republicans opposed electing them than supported it. But the overall support our polls found would have been unthinkable in even recent elections, scholars say. Some compare this moment to the feminist political movements of the 1920s and 1970s.
The spark, people across the political spectrum said, was the MeToo movement, after the misogyny seen in the 2016 presidential campaign.
“An embrace of the term in political candidates? That’s news,” said Estelle Freedman, a professor at Stanford who specializes in women’s history. “We know that women have been really politicized by the perceived assault on women’s rights writ large. The kindling was there, and it got ignited by the misogyny.”
One reason that voters’ support for feminist candidates is surprising is that in a variety of surveys, only a fifth or fewer identify as feminists themselves. (The share goes up when the word is defined as equal rights for men and women, or when specific feminist policies are mentioned.) Our polling question, asked in 14 districts, was whether respondents supported or opposed electing more people who describe themselves as feminists. It did not define the term.
Monday, November 5, 2018
Michelle Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, Seton Hall L. Rev. (forthcoming)
The dean search process can be viewed as a bellwether for the health of a law school. Within the microcosm of a civilized “dean search committee” can lie the tensions of rival factions attempting to impose their visions for the next chapter of the law school enterprise. If law school revenue is down, the factions may be fighting for their own survival.
Not surprisingly, therefore, the dean search process is a lightning rod for the stresses facing law school faculty and staff and university administrators. As a result, the implicit biases of individuals and institutions can play a major (if unseen) role in the selection of a dean. Despite the regularity of dean searches in American law schools, no scholar to date has fully examined the ramifications of implicit bias in the dean search process.
This article stems from my experience chairing multiple dean searches and my research interest in the causes and effects of implicit bias. Part II reviews the role of a law school dean, with special consideration of the ways the Great Recession and its effects transformed the role of the dean. Part III describes the typical dean search process and evaluates dean diversity statistics to determine which candidates are selected for these powerful roles in today’s law schools. Part IV introduces the concept of implicit bias, specifically focusing on in-group favoritism. Part IV also analyzes the ways implicit biases can manifest in the dean search process, focusing on racial, gender, socioeconomic, and sexual orientation biases. Finally, Part V suggests recommendations to minimize implicit bias on the part of dean search committees, and offers new and creative ways to change the traditional dean search process.