Gender and the Law Blog

The Big Ten Law Schools Present Webinar 4/9 on Rearticulation of Sex and Gender

The Big Ten Law Schools present Rule of Law in 2025

All panels can be joined virtually by returning to this URL each Wednesday. https://law.unl.edu/ruleoflaw/

All panels begin at 2 p.m. Pacific/4 p.m. Central/5 p.m. Eastern. We will begin admitting people to the webinar a few minutes before the start time. The event is limited to the first 1,000 participants and will not be recorded.

JOIN WEBINAR

The Big Ten law schools have coordinated a series of virtual panel discussions that examine the Rule of Law in 2025 after an unprecedented series of executive orders, legal interpretations, and administrative actions by the Trump administration over the last several months. Distinguished panelists will present a broad range of perspectives and nuanced views on the rule of law during a period of constitutional, legal, and governmental recalibration.

 

April 9 | Indiana University Maurer School of Law
Rearticulation of Sex and Gender
Panelists:

Valena Beety, McKinney Professor of Law, Indiana University Maurer School of Law

Katie Eyer, Professor of Law, Rutgers Law School

Marc Spindelman, Isadore and Ida Topper Professor of Law, The Ohio State University Moritz College of Law

Deborah Widiss, John F. “Jack” Kimberling Chair and Professor of Law, Indiana University Maurer School of Law

Christiana Ochoa, Dean & Herman B Wells Professor of Law, Indiana University Maurer School of Law (moderator)

 

 

Gender Inventorship Equity in Patent Prosecution

Michael Schuster & Jordana Goodman, Gender Inventorship Equity in Patent Prosecution,  
15 Scientific Reports 2070

There are pervasive gender gaps throughout the patent process. Here, we add to the literature by providing an in-depth analysis of gendered outcomes across each stage of patent prosecution. We show that female inventors are more likely to face rejection, experience unsuccessful appeals, and exhibit lower responsiveness to rejections than male counterparts. Not only are women less likely to patent their invention, but each stage of examination individually contributes to a lower aggregate grant rate for female inventors. Our research finds that, unlike small and large entity industry equivalents, university-filed patent applications demonstrate increased gender parity in allowance rates and continued prosecution after rejection. Moreover, small entities—patent applicants with typically smaller budgets—are either more than or equally likely to exhibit gender parity when compared to larger firms. We anticipate this study to be a starting point for a more sophisticated discussion around closing gender gaps in patenting and STEM.

A Pluralist Approach to Gender-Based Discrimination

Sophia Moreau, Faces of Gender Inequality,  in Frontiers of Gender Equality: Transnational Legal Perspectives, edited by Rebecca J. Cook, 19-37. Philadelphia: University of Pennsylvania Press, 2023. 

In this paper, I argue that in order to make progress addressing gender-based discrimination, we need to think not just about the harms that discrimination does, but about the ways in which it wrongs people.  I argue that we need a pluralist account of these wrongs: sometimes, discrimination wrongs people on the basis of their gender because it subordinates them to others; sometimes, because it denies them important freedoms; and sometimes, because it denies them access to a basic good. I consider a number of practices that involve gender-based discrimination and use this general pluralist theory of wrongful discrimination to help shed light on what is wrongful in these cases.  I also explain how my pluralist theory can be used together with the prioritarian approach outlined by Shreya Atrey and together with the four-dimensional approach to substantive equality laid out by Sandra Fredman.

Study Shows Gender Gap in Class Counsel in Multidistrict Litigation

Alissa Del Riego, The Class Counsel Draft Gender Gap: An Analysis of Class Counsel Applicants  

The vast multidistrict litigation (“MDL”) and class counsel gender gap has caused much alarm in the past decade. What had been previously only described anecdotally, became sobering statistics in recent studies—women served in only 13% of lead counsel in class actions and held less than 25% of leadership positions in MDLs. While this is a troubling fact on its own, it is even more troubling because class members do not hire class counsel. Instead, courts appoint counsel to represent class members. The gender gap has thus reeked of court-sponsored discrimination and bias. Understandably, reform proposals to narrow the gender gap have largely focused on the judiciary. But are courts responsible for the class counsel gender gap? More pointedly, are courts systematically demonstrating a preference for male over female attorneys when making appointment decisions or could the MDL class counsel gender gap be attributable to something else? To date, no empirical research has asked, much less answered, this question. This Article for the first time ever surveys applications filed by attorneys to serve as class counsel, including the applications of attorneys that were not ultimately appointed.

Upon reviewing over 1,500 class counsel applications from 835 attorneys in over 100 class action MDLs in the last decade, the Article finds that the MDL class counsel gender gap is strongly correlated with the MDL class counsel draft gender gap, i.e., the pool of attorneys applying to serve as class counsel. Female attorneys were responsible for 24.8% of class counsel applications and held 26.6% of class counsel positions. The correlation existed across all time periods and all class counsel positions. The data also reveals that female attorneys experienced extremely similar (and often higher) success rates than male attorneys, suggesting courts, if anything, demonstrated a preference for female attorneys. While the data shows the MDL class counsel gender gap has narrowed in recent years, the last complete year of data (2022) suggests the gap is once again widening. With courts’ diversity efforts in Constitutional jeopardy after the Supreme Court’s recent ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the gap will likely only further widen. Efforts must now focus on the presently male-dominated class counsel bar to overcome biases that have plagued the profession and recruit, train, retain, and sponsor female class counsel candidates.

Bipartisan Women Congress Reps Lead Effort to Allow Proxy Voting for New Parents

2 Mothers Bring the House to a Halt Over Push to Allow Proxy Voting for New Parents

Two moms brought business on the floor of the House of Representatives to a grinding halt on Tuesday over their push to allow remote voting for new parents.

"We said don't f*** with moms," Rep. Brittany Pettersen, D-Colo., said on the steps of the U.S. Capitol alongside Rep. Anna Paulina Luna, R-Fla.

"We worked as a team," Luna said. "And I think that today is a pretty historical day for the entire conference in showing that the body has decided that parents deserve a voice in Washington and also to the importance of female members having a vote in Washington, D.C."

Luna and Pettersen have been working to pass legislation that would allow new parents to vote by proxy for 12 weeks around the birth of a new child. Luna tried several different tactics to get the bipartisan bill passed. House Speaker Mike Johnson, R-La., originally refused to put the bill on the floor. So Luna teamed up with Democrats to bypass the speaker and force a vote.

When it became clear they had the 218 votes needed to do that, Johnson still tried to stop them. He took the unusual step of designing a special rule to prevent a vote, but nine Republicans voted alongside Democrats to block it.

Pettersen thanked the Republicans who stood with her and Luna and told reporters she expects more GOP members will support the bill when it eventually comes to the floor.

 

Recalling Carrie Kilgore and Women's History of Demanding the Vote and the Right to Practice Law

Unsung Heroine of the Suffragists Can Show Us How to Deal with Failure, Ms.

In the research for my remarks, I discovered that Kilgore was a doctor, lawyer and early suffragist, and while known to an extent in the Pennsylvania legal community, her papers have largely been unpublished, and her achievements largely unknown to the public. This is a shame—not only did she live a fascinating, meaningful life, but I think there are lessons that we can take from it as we confront the urgent challenges of the present moment. 

The crux of my research centered around Kilgore’s work in 1871, where she took two major actions considered radical at the time. 

First, she tried to earn admission into Penn’s Law School. In 1871, it was seen as unacceptable, even unconscionable, for a woman to practice law in Pennsylvania. The Dean of the school went on record saying that he would rather resign than allow a woman or a Black person to attend the institution. It took a decade of persistent lobbying, and more than one dean to resign, for Penn’s law school to finally allow her to matriculate.

That wasn’t the end, however, of Kilgore’s fight to practice law. After graduating, it took more years of lobbying for Kilgore to gain admittance to practice before both the Pennsylvania Courts of Common Pleas and the Supreme Court of Pennsylvania.***

The second action she took in 1871 was that she tried to vote. She was, of course, refused at the ballot box, and decided to sue, representing herself pro se before an escalating series of courts, finally ending up at the Pennsylvania Supreme Court to make her case. 

At the Court, she passionately advocated for her right to vote, and the justices heard her plea, but did not listen. The Court did not even bother to hear arguments from opposing counsel before rejecting her petition. 

Guest Blog from Professor Bridget Crawford: Achieving Gender Balance in Conference Speakers in the Twenty-first Century

[The Gender & the Law Blog warmly welcome Professor Bridget J. Crawford, University Distinguished Professor of Law at Elisabeth Haub School of Law, for this guest post. Professor Crawford teaches Federal Income Taxation; Estate and Gift Taxation; and Wills, Trusts and Estates. Her scholarship focuses on issues of taxation, especially wealth transfer taxation; property law, especially wills and trusts; tax policy; and gender and the law. Professor Crawford's scholarship has been published in journals including the Washington University Law Review, The University of Chicago Legal Forum, Boston University Law Review, U.C. Davis Law Review, Washington & Lee Law Review, and specialty journals at Harvard, Yale, Columbia, the University of Pennsylvania, and the University of Michigan.]

 

Achieving Gender Balance in Conference Speakers in the Twenty-first Century

For anyone interested in the issue of gender diversity in academic panels and strategies for achieving it, here are some articles of interest from outside of law:

• María Bordons et al., Closing the Gender Gap at Academic Conferences: A Tool for Monitoring and Assessing Gender Inclusion, 15 PLOS ONE e0243549 (2020), https://doi.org/10.1371/journal.pone.0243549.
• Jörg Matthes et al., Gender Diversity at Academic Conferences—The Case of the International Communication Association, 73 J. Comm. 601 (2023), https://doi.org/10.1093/joc/jqad027.
• Stephanie L. Merkley et al., Gender Disparity in Prestigious Speaking Roles: A Study of 10 Years of Gambling Studies Conferences, 23 Int’l Gambling Stud. 351 (2023), https://doi.org/10.1080/14459795.2023.2218239.
• Jennifer L. Martin, Ten Simple Rules to Achieve Conference Speaker Gender Balance, 10 PLOS Computational Biology e1003903 (2014), https://doi.org/10.1371/journal.pcbi.1003903.
• Nadia E. Brown & David J. Samuels, Gender Representation and Strategies for Panel Diversity: Lessons from the APSA Annual Meeting, 51 PS: Pol. Sci. & Pol. 394 (2018), https://doi.org/10.1017/S1049096518000464.
• Maria do Mar Pereira, Thoughtful Gatherings: Gendering Conferences as Spaces of Learning, Knowledge Production and Community, 31 Gender & Educ. 602 (2019), https://doi.org/10.1080/09540253.2019.1691718.

One doesn’t have to agree with all of the solutions to find something insightful here. (Sorry for the paywall on some of the articles; others are open-source.)

-Bridget Crawford

Veronica Thronson on "The Derivative Dilemma: The Gendered Role of Dependency in Immigration Law"

Veronica Thronson has published "The Derivative Dilemma: The Gendered Role of Dependency in Immigration Law" in 28 U. Pa. J. L. & Soc. Change 147. The introduction is excerpted below: 

* * *  U.S. immigration law implements “derivative” status in a manner that creates hierarchies that enable the exploitation and the imposition of constraints upon migrant women. Derivative provisions in immigration law, those in which one person’s immigration status is linked and subordinated to another’s through a familial relationship, create situations of fragility and dependency that have major implications for those relegated to dependent status. This is especially true for migrant women, as the hierarchies of immigration law overwhelmingly reinforce other gender-based societal hierarchies and patterns of discrimination, perpetuating these not just in fact but with the imprimatur of law.

* * *

Although ostensibly gender neutral, in reality, the applications and consequences of derivative provisions in U.S. immigration law are quite gendered, as is true in other aspects of immigration law. As for derivative provisions, in the context of employment-based visas for nonimmigrants, noncitizen workers who are principal visa holders are overwhelmingly male, while women are more often derivative spouses and thus vulnerable. As this article explains, the status of a wife in this context is dependent on her husband on two fronts: on her husband’s visa status as well as the continuity of her legal relationship to her husband, who is the principal visa holder. First, if for any reason the principal visa holder loses his visa, a derivative spouse’s lawful status also ends. This creates the necessity and incentive for wives to subordinate their own ambitions to advance those of their husbands. Limits on the activities of derivatives further channel wives into traditional, gendered support roles. Second, the lawful status of derivative wives ends upon the termination of the underlying relationship. This means that after a divorce, the derivative former spouse will lose her status and often will not have other viable means to remain in the United States. This is true even as the principal spouse, and importantly any children of the couple, generally will have a continuing, unaltered ability to remain lawfully in the United States.

* * *

Despite progress in remedying the exploitation of women through the immigration system, much more needs to be done to ensure that the U.S. immigration system is an equal one and that gender concerns extend not just to those who suffer domestic violence. The systemic inequalities embedded in the immigration system, despite their deep roots and pervasiveness, can, in some instances, be resolved with simple administrative adjustments. Other fixes will require statutory reform, which has been elusive in immigration law for decades. With that said, efforts to address issues of domestic violence and gender have proven virtually the only front in which progressive immigration reform has been legislatively achieved. Whether by administrative action or legislation, fixes will require political will to recognize and address the barriers that women face as they continue to suffer the consequences of antiquated, gendered immigration laws.

Angelos, Bilek, Howarth, and Merritt on "Langdell's Subjects"

Claudia Angelos, Mary Lu Bilek, Joan W. Howarth, and Deborah Merritt have published Langdell's Subjects in 102 U. Detroit Mercy L. Rev. 1 (2024). The abstract is excerpted below.  

When Christopher Columbus Langdell founded the law school curriculum that we teach, Jim Crow flourished. Women could not vote. The Supreme Court interpreted the Constitution to invalidate worker protections, but not racial apartheid. In that backwards era, more than 125 years ago, Langdell established our familiar first-year curriculum consisting of courses examining appellate cases in Property, Contracts, Torts, Civil Procedure, and Criminal Law.

Today, our law schools continue to graduate lawyers whose required course of study inscribes nineteenth century notions, categories, and values. Is this really the right foundational curriculum for today’s lawyers?

This Essay explores the origins and constraints of today’s foundational curriculum; analyzes the staying power of that curriculum; describes a workshop we organized to explore ways to free ourselves from Langdell; and presents five proposals for new starting places in the required law school curriculum. Workshop participants generated four of these proposals about what law students should learn first, giving those foundational courses these titles: The Police; American Indian Law in the United States; Solving People’s Problems; and Broken Promises. The fifth proposal for how to start, Families and Work, is our own.

We have not catalogued all the flaws in the Langdellian curriculum, nor have we fully imagined all the possibilities for a new program of legal education. The task of curricular redesign and implementation falls to law professors and faculties who are committed to rethinking legal education in collaboration with great lawyers. We intend this Essay to be a provocation and invitation.

 

Book Review, Writing Women's History in Portraits of Women in International Law

Aoife O'Donoghue, Radical Remembering, reviewing Immi Tallgren, Portraits of Women in International Law: New Names and Forgotten Faces (Oxford Press 2023), 38(2) Cambridge Review of International Affairs 228–233 (2025).

Why do we forget those who contribute to our collective knowledge, understanding, and critical thinking? This is a complicated question to answer, partially because maintaining that forgetfulness may be important for canon creation and partially because it is so considerable as to be inexplicable. Yet, it remains an important question to ask and attempt to respond to. For to answer that question opens the possibility of remedy, and critically to not repeat our forgetting. For forgetting creates a void, an empty space where others, and their knowledge, skills and, perhaps – scholarly, diplomatic, or societal ways to be – should properly be. This space where others should be is desolate because it has been constructed as such. We have intentionally forgotten, there is an aphasia that has produced these silences which is not accidental (Murphy Citation2006, 65; Thompson Citation2013, 133, 135). Even where we might still have the international legal, political or philosophical ideas that they brought with them, without knowing where those ideas came from and, critically, why they came from where they did, we are lesser. And because we have lost both the individual and collective memory of how transformations occurred, we are reduced in our self-understanding of transformation itself. We are lesser because we have forgotten.

Women, and particularly non-white women, are often those most likely to be forgotten, and this remains as true today as it ever was. Mary Astell (Citation2013), writing in the early 1700s, stated that as men in general write our histories, they rarely bother to chronical what women do, and this is especially true when women act against their sex and do men’s work. This wilful omission becomes worse when those same women act against their race, disability or gender identity. Feminism has long understood this, and from the outset feminist activism has been careful to create its own archives, maintain its own histories and tell its own stories, because it knew that otherwise it would not be done.Footnote¹ Immi Tallgren’s Portraits of Women in International Law is part of that tradition, part of maintaining women’s histories, stories and actions because there has been a distinct failure in international law to do so. Even the much lauded ‘turn to history’ within international law a moment if there ever was one to undertake such acts of retrieval, has up to this point decisively failed to undertake this work. This book is an act of feminist redress. The book places itself in this feminist tradition, carefully naming and citing these fellow examples of acts of radical remembering, itself an act of feminist academic activism. Naming those we act with, not compete against in these acts of feminist historical radical remembering.

The Thirteenth Amendment as a Guarantee of Personal, Sexual and Reproductive Autonomy

Zanita E. Fenton (Miami), (Re)Birth of a Nation: Reconstruction's Unfinished Business, 30 Michigan J. Race & Law (Spring 2025) 

This Article seeks to demonstrate that self-ownership emanates from Amendment Thirteen and that, by its original meaning, the proposition includes personal autonomy over sexual and reproductive choices. Beginning with the narrative and case of Harriet Robinson Scott, as background to Dred Scott v. Sanford, this Article explores the dual subordinating effects of the laws supporting traditional marriage regarding both gender equality and slavery. It then makes comparisons between these antebellum practices and modern forms of subordination and exploitation in three ways: (1) identifies sex-trafficking as an existing form of slavery, (2) identifies criminalization of prostitution as supporting the perpetuation of sex-trafficking and as a vestige of enslavement that required sexual servitude, and (3) identifies state control over reproduction as a vestige of the promotion of breeding as integral to domestic slave markets. This Article completes the comparison between the relevant eras with a discussion of the ways in which Dobbs v. Jackson Women's Health Organization replicates Dred Scott v. Sanford.  These comparisons serve as incentive to reimplement the Thirteenth Amendment to find solutions and social redress by inspiring its reinvigoration.

Germany's New Parliament Has Less Women Lawmakers Than Before

NYT, Germany's New Parliament is Sworn In, But Where are the Women?

Two days after a coalition of conservatives won Germany’s federal election last month, the governor of Bavaria took to Instagram to say the parties were “ready for political change” and posted a group picture of the likely future chancellor, Friedrich Merz, with five other leaders.

But the photo seemed to suggest that a changed Germany will look remarkably like the country of old: It shows six white middle-aged white men sitting around a table of snacks. The only apparent concession to modern sensibilities was that half of the men are not wearing neckties.

Three-and-a-half years after Angela Merkel, the only woman to serve as chancellor, retired, German national politics seem to be backsliding when it comes to gender parity. The new German Parliament, which met for the first time on Tuesday, has always been more male and less diverse than the population it represents, but the new one will be even more male and — compared with the society as a whole — less diverse than the one before it.

Only 32 percent of the 630 new lawmakers are women, a drop from 35 percent when the last Parliament was formed in 2021.

In a country where society has appeared at times reluctant to turn away from traditional gender roles, the number of women in the highest elected body has been stagnating since 2013, when it hit a high of 36 percent. The president of Germany, Frank-Walter Steinmeier, pointed to this statistic during a speech at a recent Women’s Day celebration.

“When our democracy has a problem with women, then our country has a problem with democracy,” Mr. Steinmeier said. He noted that even if every elected woman from all of the country’s parties voted together as a bloc, they would not reach the one-third minority needed to block changes to the Constitution.

Assessing the Legislative Reform Sparked by the MeToo Movement

Deborah A. Widiss, The Sexual Harassment Silo, 174 U. Pa. L. Rev. __ (forthcoming)

The #MeToo movement exposed the pervasiveness of sexual harassment in employment and made clear that legal remedies were sorely lacking. Federal and state lawmakers responded by passing laws broadening access to court and enhancing remedies; requiring training, policies, and data collection; and modifying substantive harassment law, most commonly by rejecting the requirement that victims prove they were subject to “severe or pervasive” conduct. Although some of these reforms apply to harassment or discrimination on the basis of any protected trait, many create special rights for victims of sexual harassment. Collectively these laws establish what I term “the sexual harassment silo.”

This Article offers the first comprehensive assessment of legislative reform sparked by #MeToo, as well as the salience of the new laws in the current—much changed—political environment. In addition to providing an overview of the new laws, the Article uses the most prominent federal response to #MeToo, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), as a case study to explore in depth the potential (and limits) of this siloed approach. This is the first detailed analysis of case law interpreting EFAA. It demonstrates that courts are properly applying key features of the statute—a flexible definition of sexual harassment, and a provision that specifies it applies to any “case” that includes such harassment—that broaden EFAA’s impact. By contrast, other #MeToo laws codify an outdated definition of harassment limited to unwelcome sexual advances or touching, while excluding other common forms of sexual harassment, such as insults, vulgar epithets, or sabotage of work.

Upon taking office, President Trump issued executive orders repudiating the application of sex discrimination law to discrimination based on gender identity and dismantling diversity, equity, and inclusion initiatives. Because legislation cannot be swept aside by presidential fiat, the #MeToo laws can help safeguard protections for victims of harassment. But the popular debate over President Trump’s actions has highlighted the resentment that policies perceived as providing “special” treatment can engender. The Article concludes by suggesting that in addition to enforcing policies addressing harassment, employers should take steps to actively promote civility and respect within workplaces. Research suggests that effectively addressing bullying or offensive behavior, regardless of whether it is based on protected traits, can help reduce unlawful harassment—and it can make workplaces more welcoming for all.

Megan S. Wright on "More Choosers, Fewer Choices? Supported and Medical Decision-Making Post-Dobbs"

Megan S. Wright has published "More Choosers, Fewer Choices? Supported and Medical Decision-Making Post-Dobbs" in Volume 45 of the Pace Law Review 139 as part of the Bioethics after Dobbs Symposium. The abstract is excerpted here: 

This Article focuses on two conflicting trends in the law of medical decision making. More states are adopting supported decision-making legislation, wherein an individual with a disability receives decision-making assistance from someone they elect to serve as a “supporter.” In the absence of supported decision making, adults with significant decisional impairments may be disqualified from making contemporaneous medical decisions. But with the advent of supported decision making, more patients with impaired cognition may have the legal authority to make contemporaneous medical decisions. While the number of people eligible to make decisions is potentially increasing due to widespread adoption of supported decision-making laws, states simultaneously are restricting access to some types of medical procedures including abortion, use of assisted reproductive technologies, and gender affirming medical care. This Article demonstrates that these two legal trends may result in more patients making medical decisions while having access to fewer medical procedures. That is, states are both facilitating and restricting patient autonomy. This Article discusses possible reasons for these conflicting trends and highlights directions for future research.

Rebecca Zahn and Miriam Kullmann on "Discovering the Contributions of Academic Wives to the Development of Labour Law"

Rebecca Zahn & Miriam Kullmann have published "Discovering the Contributions of Academic Wives to the Development of Labour Law: Liesel, Kahn-Freund" in Volume 54 of the Industrial Law Journal (March 2025). The abstract is excerpted here: 

This article’s starting point is a strand of historical and sociological studies literature on ‘academic wives’ which reveals the social and, above all, unpaid labour that facilitated an academic career up until the mid-twentieth century. The article then draws on primary and secondary sources in order to trace the life of Otto Kahn-Freund’s wife, Elisabeth (Liesel) Kahn-Freund. We suggest that Liesel was an indispensable facilitator of her husband’s career. She provided valuable scholarly and intellectual support; by taking on responsibility for domestic tasks and care responsibilities, she gave her husband uninterrupted time and space to build his network, travel internationally, and, perhaps most importantly, concentrate on and pursue his research. In doing so, she, and many like her, played a significant albeit largely unrecognised role in the creation of labour law as we now know it. A better understanding of the labour performed by an “academic wife” provides a more nuanced picture of where labour law has come from and the factors that went into its creation. It also encourages labour law scholars to re-evaluate what kind of labour is recognised as part of labour law and is the focus of future labour law scholarship.

Yelena Duterte on "A Feminist Critique of the VA Rating Schedule"

Yelena Duterte has published "A Feminist Critique of the VA Rating Schedule" in Volume 34 of the Michigan Journal of Gender and the Law 311. The conclusion is excerpted here: 

The VA rating schedule is fundamentally flawed. The VA and its regulations focus on white men, because white men historically made up the military ranks. As our country and military force have significantly diversified, Congress and the VA have the responsibility to ensure that all veterans are treated with dignity and fairness when they are discharged from the military. By allowing the VA to create a system of ratings that lacks horizontal and vertical equity, Congress has abdicated its responsibility to care for those whom it put in harm’s way. This piece provides many options for Congress and the VA to provide equity for veterans who have served our country. If Congress decides to keep the rating schedule in place, it must determine whether it will provide any oversight of the VA’s rating system or allow the VA to continue to live in “splendid isolation."

Exposing the Stereotypes Fueling Reproductive Wrongful Convictions

Valena Beety, "Unfit": Gender, Ableism and Reproductive Wrongful Convictions, UCLA L. Rev. (forthcoming 2026)  

This article draws a straight line from wrongful convictions of women in the past to criminal charges based on pregnancy and parenting behaviors today. Faulty forensic evidence and biased evidence based on sex-stereotypes have, in combination, been used to convict innocent women, particularly in situations where an accident or health event was misconstrued to be a criminal act. 74% of known exonerated women were wrongly convicted where no crime occurred. Similarly, in criminalizing pregnancy behaviors, police, medical personnel, or prosecutors erroneously label a non-criminal event such as a miscarriage or stillbirth as criminal. Criminal charges are being brought against new mothers who test positive for their own legally prescribed medicine, for morphine that was given to them by the hospital for pain during labor, or for a controlled substance when the child is born healthy and unharmed.

This article elucidates the concept of what I call “reproductive wrongful convictions,” and exposes how marginalized women are being labeled as “unfit” and becoming particularly vulnerable to these charges. Through interviews with diverse women wrongly convicted of harming their children, the article includes the experiential knowledge of participants in the medical and legal systems, relying on different epistemic backgrounds to conceptualize transforming the law. In addition, the Supreme Court’s recent case Andrew v. White demands a greater reckoning of the due process violation that occurs when courts admit character evidence that overwhelmingly relies on sex-based stereotypes and justifies incarceration of the defendant, whether she has committed the charged offense or not.

Ohio Appellate Court Strikes Down Ban on Gender-Affirming Care on Grounds of Parental Rights and Health Care Freedom

The Ohio Court of Appeal for the Tenth District declared the state's ban on gender-affirming medical care unconstitutional on its face. The court relied on the state's unique constitutional amendment of Health Care Freedom and parents' fundamental rights. 

The Health Care Freedom Amendment was passed by the voters as a conservative referendum to make a symbolic declaration ion against federal healthcare insurance. It has been applied by the courts only a handful of times, for example to uphold reproductive freedom and to support Amish parents' refusal to use court-mandated cancer treatment for their child. I've written about the history of the Ohio HCFA here:  Tracy Thomas, Protecting Abortion with Health Care Freedom of Choice. 51 Journal of Law, Medicine & Ethics 601 (2023).

The decision on gender-affirming care is here:  Madeline Moe v. Yost, (Ohio App. 10th Dist. Mar. 18, 2025)

*** [W]e reverse the August 6, 2024 judgment of the trial court and declare H.B. 68 unconstitutional on its face. We
therefore remand this case to the trial court to impose a permanent injunction as to enforcement of H.B. 68’s provisions banning the use of puberty blockers and hormones “for the purpose of assisting the minor individual with gender transition.”

Abandoning "Lawtalk" so that Ordinary People Can Recapture Sociocultural Norms for Democracy

Cristina Tilley, Supreme Fragility and the Everyday Fix, Michigan State Law Rev. (forthcoming)

Like it or loathe it, the Roberts Court is top of mind in modern political discourse. As movement conservatives cheer the Court's rollback of race and gender precedents and movement liberals shudder at every toppled landmark, lay Americans struggle to make sense of the rules that govern daily life. Is our shared addiction to judicial drama healthy? Or is a symptom of democracy gone awry? This Essay takes a broad view of democratic practice, suggests that Americans have been outsourcing their sociocultural responsibilities to a mercurial apex Court, and imagines new paths ahead. It opens by deconstructing the erosion of stare decisis norms in the Roberts Court and confronting the resulting fragility of individual rights, which today seem mere pawns in the justices' intramural power struggles. The Essay particularizes this dynamic in a use case, suggesting that liberal justices have cleverly turned their colleagues' contempt for precedent against an emerging conservative gun jurisprudence. From there, it takes a more holistic view and asks whether this judicial tit-for-tat might present opportunities for ordinary people to recapture a muscular role in their own democracy. It traces the history that led Americans to abandon the deliberative practice of "everyday talk" with neighbors and peers in favor of "lawtalk" among professional elites, a mode of discourse that has colonized the sociocultural arena. The Essay concludes with a second use case, showing how everyday abortion talk faded during the Roe years but poured forth in the wake of Dobbs. This torrent of intimate, non-linear conversation, and the early success of abortion rights initiatives at local ballot boxes, illustrates how ordinary Americans freed from lawtalk can develop sustainable sociocultural norms through self-searching deliberation across difference.

Reforming the Assumed Consent Premise of Sexual Violation Law

Anna High, Mistakes And Ignorance Of Law: Lessons For Sexual Violation Reform From New Zealand 

In successive waves of sexual violation law reform, many common law jurisdictions have attempted to retreat from 'assumed consent', the premise that it can reasonably be assumed another person internally consents in the absence of any communication thereof. In Aotearoa New Zealand, the general trajectory of sexual violation law reform has been away from 'assumed consent' and towards the idea that consent must be communicated, and there are increasing calls for going further by way of adopting affirmative consent reform. However, throughout, a competing concern has been at play: that if the law is reformed to fully reject assumed consent, this might unfairly punish those who are ignorant of law's updated normative stance. This concern is apparent in both reform debates and in historical case law in which a 'mistake of law' has effectively been treated by appellate courts as exculpatory; it is also likely to continue to influence jury decision-making regardless of further doctrinal consent reforms. The 'ignorance of law' concern will need to be squarely confronted in jurisdictions contemplating possible updates to the law of consent. Relatedly, it is arguable that affirmative consent reform itself might play an important educative role, contributing to shifts in prevailing normative views over time.