Tuesday, July 20, 2021
Using Vulnerability Theory to Address Family and Elder Caregiving and the State's Resistance to Support
Jessica Dixon Weaver, The Perfect Storm: Coronavirus and The Elder Catch,
96 Tul. L. Rev. __ (forthcoming 2021)
The global COVID-19 pandemic has exacerbated an already growing phenomenon: the Elder Catch. This term defines the caregiving dilemma faced by adults who are simultaneously working, caring for elder parents or relatives, and in some cases, raising children at the same time. Few scholars have explored how the state uses the traditional family framework to resist providing comprehensive government support for elder care. Women typically bear the brunt of caregiving costs within the family and become physically and mentally vulnerable in the process. COVID-19 has pushed women caught in the Elder Catch to the brink while sheltering at home, and has illuminated the disparities between genders regarding the high level of expectation society places on the availability of unpaid family caregiving. Coronavirus has also highlighted racial inequities for African American and Latino families, where female caregivers are more likely to be essential workers forced to work outside the home, and therefore more likely to contract and spread the virus within their family and surrounding communities. This article uses vulnerability theory to address the caregiving void that American women are facing. By introducing a new term, resistant assets, within the taxonomy of vulnerability theory, this article introduces a diagnostic tool for scholars and policy makers to analyze why it is so difficult to change state and market dependence on unpaid family caregiving and challenge government opposition to expanding social support of the family. Resistant assets are frameworks used by the state to reinforce the status quo and maintain a posture of legal and social non-intervention. The normative and extended family are resistant assets that prevent a revision of the American Social Contract. This article fills a gap in family law scholarship by exploring how analysis of resistant assets within vulnerability theory can contribute to the development of a theoretical foundation for legal change to support family caregivers.
Monday, June 14, 2021
Chinyere Ezie, Not Your Mule?: Disrupting the Political Powerlessness of Black Women Voters, 92 U. Colorado L. Rev. 659 (2021)
On the one hundredth anniversary of the Nineteenth Amendment, this Article reflects on the legacy of Black women voters. The Article hypothesizes that even though suffrage was hard fought, it has not been a vehicle for Black women to meaningfully advance their political concerns. Instead, an inverse relationship exists between Black women's political participation and their relative level of socioeconomic and political well-being. Taking recent national elections as a case study, the Article identifies two sources of Black women's political powerlessness: “caretaker voting” and the "trapped constituency problem.” The Article concludes that Black women's strong voter turnout coupled with their reliable support of the Democratic Party has had the perverse outcome of cementing their irrelevance in the electoral system. To disrupt this trend, the Article proposes a new path forward
Sophia Shepherd, The Enemy is the Knife: Native Americans, Medical Genocide, and the Prohibition of Nonconsensual Sterilizations, 27 Michigan J. Race & L (forthcoming 2021)
In the early 1970s, Tribal Nations learned that doctors at Indian Health Service (IHS) hospitals were sterilizing at least 25 percent of Native American women of childbearing age. Most of the women were sterilized without their knowledge or without giving valid consent. This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It explains the obstacles that Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations. In the last decade, living victims of nonconsensual sterilization programs in other parts of the country have received compensation for their losses. Native American women deserve them too.
Tuesday, June 8, 2021
Deborah Weissman, Gender Violence, the Carceral State, and the Politics of Solidarity, forthcoming, University of California, Davis
Legal epistemologies have tended to ignore issues of gender violence, in large measure because much of the law itself has been implicated in the normative arrangements through which such harms are sustained. State violence against women was practiced as a facet integral to colonial expansion. Gender violence has a long history of legal sanction and political “authorization,” including enslavement, subjugation, and rape of indigenous women. Chattel slavery and Jim Crow laws legalized all forms of abuse of Black women. Forced sterilization and the eugenics movement impacted all women, but especially poor women and almost always women without representation, including Black, brown, and immigrant women. Rape laws favored male propertied interests over women’s rights.
As the principal victims of gender violence, women obtained meager remedy of such harms until feminist mobilizations confronted the problem. Feminist demands to resituate gender violence from the margins of social concern into mainstream public debate found a receptive political environment in the law-and-order climate of the 1970s and 1980s. The criminal legal system thus expanded networks of carceral responses with little regard for safety or ending the problem of gender violence but rather produced pernicious outcomes that resulted in new forms of harms with devastating consequences.
The present re-evaluation of methods of policing and the practice of incarceration offers an occasion to examine prevailing approaches to gender violence. Anti-carceral advocates have urged a shift away from criminal system responses and have campaigned to curb police violence within newly imagined strategies for public safety. The criminal legal system has tended to produce and reproduce patterns of racism and poverty. That it functions in similar fashion to gender violence has received less attention.
These considerations provide the framework of this article: to examine the ways that crimes of gender violence can be accommodated within progressive criminal reform campaigns and included within the broader struggle for social justice, all at a time of a shifting cultural response to crime. It argues that anti-carceral proponents must consider whether the response to gender violence is to be included within other criminal legal reform movements, including recent initiatives to address abusive police practices, bail reform, and COVID-19 compassionate release campaigns. At this present “moment of agitation,” it is both timely and urgent that scholars and advocates contemplate strategies that incorporate gender violence issues within a progressive anti-carceral agenda and to acknowledge the connection between harmful acts within interpersonal relationships and the failure of the State.
The article proposes a “politics of solidarity,” that is, a broad lens through which to address gender-based violence as a social problem conditioned by the failures of a political economy that acts to perpetuate inequality and racism. It suggests that anti-carceral strategies that center gender violence may help to strengthen the broad demands for a more progressive political economy which then mitigates the determinants of transgressive behaviors.
NYT, Book Review, Why "Unwell Women" Have Gone Misdiagnosed for Centuries
Reviewing: Elinor Cleghorn, UNWELL WOMEN: Misdiagnosis and Myth in a Man-Made World
In order to recognize illness, you have to know what health looks like — what’s normal, and what’s not. Until recently, medical research generally calibrated “normal” on a trim white male. Such a patient, arriving in an emergency room clutching his chest as they do in the movies — and in the textbooks — would be immediately evaluated for a heart attack. But heart disease in women, inconveniently, doesn’t always come with chest pain. A woman reporting dizziness, nausea and heart-pounding breathlessness in that same E.R. might be sent home with instructions to relax, her distress dismissed as emotional rather than cardiac.
Heart disease has clear markers and proven diagnostic tools. When a woman’s symptoms are less legible or quantifiable — fatigue, vertigo, chronic pain — the tendency to be dismissive grows. In “Unwell Women,” the British scholar Elinor Cleghorn makes the insidious impact of gender bias on women’s health starkly and appallingly explicit: “Medicine has insisted on pathologizing ‘femaleness,’ and by extension womanhood.”
A woman’s purpose was to procreate; if she wasn’t well, it was probably her womb that was to blame. One Roman writer described the uterus as “an animal within an animal,” with its own appetites and the capacity to wander through the body in search of satisfaction. Most female afflictions could be reduced to “hysteria,” from the Greek word for womb. “The theory that out-of-work wombs made women mad and sad was as old as medicine itself,” Cleghorn notes. The standard cure was marriage and motherhood. As Hippocratic medicine was refracted through the lens of Christianity, the female anatomy was additionally burdened with the weight of original sin.
Moving steadily through the centuries, Cleghorn lays out the vicious circles of women’s health. Taught that their anatomy was a source of shame, women remained in ignorance of their own bodies, unable to identify or articulate their symptoms and therefore powerless to contradict a male medical establishment that wasn’t listening anyway. Menstruation and menopause were — and often still are — understood as illness rather than aspects of health; a woman’s constitution, thus compromised, could hardly sustain the effort required for scholarship or professional life.
The intersection of class and race complicates things further. As early as 1847, the Scottish physician James Young Simpson argued in favor of anesthesia during labor and delivery, contradicting the age-old belief that the pain of birth was part of God’s judgment. (To this day, women who opt for an epidural instead of “natural childbirth” can feel a nagging sense of failure.) But even liberal-minded men like Simpson believed that what he called the “civilized female” needed his revolutionary innovation more than her less privileged sisters. Black women were thought to be less sensitive to pain and working-class women were considered hardier in general; certainly no one worried about whether these women could work while menstruating.
Each scientific advance came with its own shadow. Margaret Sanger may have campaigned for contraception “as a way for women to reclaim their bodies and lives from medical and social control” — but for women of color, birth control was presented more as a duty than a right, a weapon against overpopulation and poverty requiring the policing of women.
Friday, May 28, 2021
Jonathan Adler, Volokh Conspiracy, Sixth Circuit Enjoins Use of Race and Sex Preferences for Coronavirus Relief Funding
Yesterday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted a temporary injunction barring the Small Business Administration from prioritizing applications for COVID-19 relief funding based upon the race or sex of the business owner applying for the relief. Judge Amul Thapar wrote for the court, joined by Senior Judge Alan Norris. Judge Bernice Donald dissented.
Judge Thapar's opinion in Vitolo v. Guzman begins with a simple and straightforward description of the case and holding: "This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot."
The policy at issue prioritizes applications for relief funding from businesses owned by women and racial minorities. The American Rescue Plan Act of 2021–the most recently enacted coronavirus relief bill–authorized $29 billion for restaurant owners suffering economic hardship. The money is allocated to qualifying businesses on a first-come, first-served basis until the funding runs out. The catch, however, is that for the first 21 days of processing applications, the SBA will only consider applicants that are at least 51 percent owned and controlled by women, veterans or the "socially and economically disadvantaged." This latter category is defined to cover those who have been "subjected to racial and ethnic prejudice" or "cultural bias," and the SBA presumes that members of specific racial and ethnic groups satisfy this criterion. According to the plaintiffs in this case, this policy constitutes unconstitutional race and sex discrimination, as those who are not members of the relevant groups risk missing out on relief funding. In its defense, the government acknowledged the use of race and sex to prioritize relief applications, but argued that the limited use of race and sex here was nonetheless constitutional.***
Although the government argued the policy was justified to remedy past societal discrimination, the majority noted that the Supreme Court has held that the use of race to remedy past discrimination only when three criteria are met: 1) "the policy must target a specific episode of past discrimination," and not societal discrimination at large; 2) "there must be evidence of intentional discrimination in the past," not merely statistical disparities; and 3) "the government must have had a hand in the past discrimination it now seeks to remedy." The court further concluded that even if a compelling interest had been shown, the policy in question was not narrowly tailored to satisfy that interest.
The opinion is here: Vitolo v. Guzman (6th Cir. May 27, 2021)
Wednesday, May 19, 2021
Micaela Simpson, The Marshall Factor: How Forced Sterilization of Native American Women Birthed Generational Reproductive Injustice, Southern University L. Rev.
Native American women have suffered years of systematic injustice; the most tyrannical act in modern times may arguably be eugenics' practice through forced sterilization. Despite recent feminist movements and reproductive health reform, Native American women are missing from the conversation. The Marshall Trilogy's longstanding effects, comprised of three foundational Supreme Court decisions, has served as jurisprudence in federal Indian law and a catalyst to irreparable harm suffered by Native American women. Without proper redress, Native Americans will continue to be afflicted by perpetual generational injustice.
This Comment examines the direct correlation between Indian women's reproductive injustice and the Marshall Trilogy. The author examines precedence established in the Marshall Trilogoy and the Plenary Power Trilogy, in parallel with the Indian Constitution and the U.S. Constitution. Studies provide that the government-funded and performed forced sterilization on Native American women through the Indian Health Services. The constitution, treaties, and jurisprudence define the standard of care and protection the federal government must provide to Indian Nations. Readers can interconnect the government's delivery of care and protection or lack thereof to the current state of poor Indian and the federal government relations, high occurrence of poor health outcomes, lack of resources and funding, the improper exertion of power executed federally over Indians, and generational reproductive injustices suffered by Native American women.
The author concludes that the forced sterilization of Native American women and continued reproductive injustice result from the broken treaties and abuse of power founded in the Marshall Trilogy, and redress is warranted. The author offers federal reform, autonomy empowerment, and a grassroots approach to redress and eradicate reproductive injustice and the domino effects suffered by Native Americans
Legal and Historical Examination of Obstetric Racism and the Limits of Informed Consent for Black Women
Colleen Campbell, Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women, 26 Mich. J. Race & L. 47 (2021)
This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic of biological race. Though the principle of informed consent traditionally protects the rights of autonomy, bodily integrity, and well-being, medicine nevertheless routinely subjects Black women to medically unnecessary procedures. This Essay adopts the framework of obstetric racism to analyze Black women’s overmedicalization as a site of reproductive subordination. It thus offers a critical interdisciplinary and intersectional lens to broader conversations on race in reproduction and maternal health.
Wednesday, February 24, 2021
This article asks the question: Can sex discrimination law do positive work for the project of dismantling anti-Black racism and white supremacy? This article’s answer is “yes.”
White supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the murder of George Floyd to the daily exclusions of Black bodies from white spaces, the nation’s failure to right the wrongs of chattel slavery and racism continues to be highlighted in stark relief. This article centers the racism made manifest through #LivingWhileBlack aggressions—the phenomenon of white people calling 911 to report Black people engaging in lawful, routine, everyday activities—and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It contends that analyzing #LivingWhileBlack aggressions through the lens of sex discrimination law may yield two positive results: First, looking at the problem with a new perspective may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy. Second, utilizing a sex discrimination frame to consider #LivingWhileBlack aggressions holds the potential to make legible to white women the connection between their own oppression and the oppression of Black people, thus create the opportunity for coalition building.
The article proposes what it calls a “touchstone theory” of inquiry for understanding #LivingWhileBlack aggressions. This theory envisions multiple “touchstones”—legal, political, and cultural, to name a few—that may inform our analysis of white supremacy. It asserts that lessons from sex discrimination law are one such analytical touchstone, while recognizing that a number of touchstones are necessary to fully unpack and address #LivingWhileBlack aggressions. In providing another touchstone for thinking about and resolving the #LivingWhileBlack problem, the article contributes to the scholarly dialogue addressing this pervasive and harmful phenomenon.
The article first explores the sex stereotyping theory established in Price Waterhouse v. Hopkins and uses it to develop a derivative theory of racial stereotyping, which it describes as a White Privilege Stereotype. Framing #LivingWhileBlack aggressions as white people retaliating against Black people for claiming white privilege parallels Price Waterhouse’s framing of the rejection of Ann Hopkins as a partner in an accounting firm as punishing a woman for claiming male privilege. The article then engages with the history of the campaign for inclusion of “sex” in public accommodations laws. The article describes how the lessons learned from the history of prohibiting discrimination against sex in public spaces can help us to understand #LivingWhileBlack aggressions—punishing Black people attempting to live their “race in public.”
In proposing a sex discrimination touchstone as one among many salient touchstones for analyzing #LWB aggressions, the article builds on the idea of a symbiotic dynamic through which multiple systems of subordination work together. As applied to the sex discrimination touchtone theory, this dynamic means that white (straight) women who are exercising white privilege in #LivingWhileBlack aggressions are doing so at the expense of reinforcing male privilege (to their own detriment). Exposing this dynamic through a sex discrimination touchstone inquiry of #LivingWhileBlack aggressions may encourage white women to work in coalition with Black individuals and organizations to engage in anti-racist work.
Thursday, February 18, 2021
Black Women Challenge Florida's Felony Disenfranchisement Law as Undue Burden and Violative of 19th Amendment
New filings in the nation’s sole 19th Amendment felony disenfranchisement suit seek acknowledgement of historical and economic factors that impact Black women in particular.
After nearly two-thirds of the state voted to restore the right to vote to those convicted of felony offenses, McCoy and more than 700,000 Floridians lost access to the voting box in 2019, when Gov. Ron DeSantis signed Senate Bill 7066 into law. The legislation requires formerly incarcerated people to pay any restitution, fines, fees or court costs — also known as legal financial obligations — before regaining the right to vote. McCoy learned that she owed about $7,500 in victim restitution, including interest, and her county expected her to pay it all at once. Advocates call the law a modern-day poll tax.
Now, the Southern Poverty Law Center (SPLC), which sued Florida on behalf of McCoy and another Black woman named Sheila Singleton, is asking an appeals court to require a new analysis of the nation’s sole felony disenfranchisement lawsuit alleging a violation of the 19th Amendment. Lower courts dismissed SPLC’s analysis of the law’s disproportionate financial, “undue burden” on women of color. ***
The 11th Circuit Court of Appeals upheld Florida’s felony disenfranchisement laws in September, but, according to court documents filed on February 10, McCoy’s lawyers want the court to weigh in on The 19th Amendment more directly because of the law’s disparate impact on women of color.
At the core of this renewed legal battle is the question of intent. Lawyers for the state of Florida argue that McCoy and her legal team have to prove that lawmakers and the governor intended to disenfranchise women with the law. But Nancy Abudu, the deputy legal director for the SPLC, filed an appeal for Florida to focus on the impact of this law on women of color.
“We have to move away from having to prove that people are racist and sexist,” Abudu told The 19th. “If that is our burden of proof, then we might as well not bring any of these cases. Instead, we need to focus on what is the impact of these laws. You can’t feel comfortable with a system that incarcerates mostly poor Black people just because the system doesn’t say arrest poor Black people.”
Attorneys representing DeSantis and Florida’s secretary of state did not respond to a request for comment at press time.
Nationwide 57 percent of men made less than $23,000 prior to incarceration, this is true for 72 percent of women, court documents read. The SPLC’s past filings include data from Prison Policy, a nonpartisan criminal justice think tank, showing the unemployment rate among formerly incarcerated people between the ages of 35 to 44 was 44 percent among Black women and 35 percent for Black men, and 23 percent among White women compared to 18 percent of White men.
Abudu sees this as a timely fight. Black women’s votes ushered in the first ever woman in the White House, and Black women like Stacey Abrams, who’ve been largely uncredited with this work, became household names. Yet laws like Florida’s felony disenfranchisement law have the heaviest burden on Black women, Abudu said.
“Our argument essentially is that because of that legislative history, and because of the political history of Black women and voting in our country, that that leads to the conclusion that Black women, or women of color in general, need greater protection when it comes to their voting rights,” Abudu said.
As the SPLC argues in new court documents, the 19th Amendment claim should be read in a way that grants the greatest protection to women, especially because when Congress passed it in 1920, it hardly enfranchised all women.
“The aim of enfranchising women was not simply so they could cast a ballot, but so they could directly influence the other areas of life that ultimately infringe upon their right of self-determination,” the lawsuit reads.
h/t Paula Monopoli
Tuesday, February 9, 2021
Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice,48 Capital Law Review 285 (2020)
Improving the “diversity” of the bench often has been discussed as a component of judicial selection and presented as a goal that nominally has had the support of the mainstream legal community. Judicial selection methods that support fairness and impartiality are particularly important at a time when there is significant evidence of bias and animus on the part of the Executive. Today, there is deep concern that on the federal level, the goal of judicial diversity has been not only abandoned, but reversed. This article examines difficulty in improving judicial diversity despite oft-stated support for greater inclusion. It then discusses the role philosophical theories of justice embracing a “view from nowhere” has been used, erroneously, to link impartiality to colorblindness (read “whiteness”). It critiques this transcendental approach and offers a different philosophical “view from everywhere” which argues that the inclusion of persons representing diverse views and experiences supports impartiality and open-mindedness and should be a key consideration in improving justice and supporting greater diversity on the bench.
Monday, February 1, 2021
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.
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.
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 13, 2020
Study Documents Gender Pay Disparities Among Tenured Law Faculty, Particularly Acute for Women of Color
CJ Ryan & Meghan Dawe, Mind the Gap: Gender Pay Disparities in the Legal Academy, Georgetown J. Legal Ethics (forthcoming)
Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.
Part I of this Article introduces the concepts of human capital and social capital as important factors underpinning inequalities in outcomes for the legal profession. We then provide an overview of how careers in law—and particularly in the legal academy—are stratified by access to social capital and returns to human capital. In Part II, we introduce the After Tenure survey, from which our data originate. Next, we describe our analytical approach, examining the demography of the legal academy and the legal profession more broadly to discuss the ways in which law professors experience their jobs differently along lines of gender and race. In Part III, we provide evidence of gendered earnings disparities among tenured law professors that is particularly acute for women of color. We conclude by demonstrating how these disparities stem from the differential valuation of human capital.,
Friday, October 2, 2020
New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood
Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)
Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.
Monday, September 28, 2020
Executive Order Against Training Federal Employees, Contractors and Military on Racism Applies to Sexism Too
Executive Order on Combating Race and Sex Stereotyping, White House (Sept. 22, 2020)
This executive order is an expression not only of white fragility, but also of male fragility. It reads as a defense of the oppressors. It embodies defensiveness in the face of illustrations of racial and gender privilege, while it reacts to perceived affronts to white men's moral character. While titled as an order about "stereotyping," it is most concerned with what the order calls "race and sex scapegoating."
The prohibitions on addressing racism in federal employment training and contractors have been mentioned in the media and challenged by scholars.
Less discussed have been the provisions that also prevent teaching about sexism. The Order prohibits federal workplaces, unions, military, and federal contractors from teaching about such "divisive concepts" as sexism, male privilege, or systemic sexism.
It decries "sex scapegoating," defined as: "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."
The order provides an example of a training of concern: "Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other."
Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)
In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.
Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.
Friday, September 25, 2020
Call for Papers: Examining Black Citizenship from Reconstruction to Black Lives Matter
The Center for Constitutional Law at Akron
Virtual Symposium (online)
Friday, Feb. 5, 2021, 9am to 5pm
This year celebrates 150 years of the Fifteenth Amendment, 100 years of the Nineteenth Amendment, 55 years of the Voting Rights Act, and just over 55 years of Title VII. Each of these laws brought some systemic change to the participation of Black citizens in the polity. This symposium will explore the ways in which the reconstructed Constitution intended or neglected to establish political and civil citizenship rights regardless of race. Drawing on current social movements like Black Lives Matter, MeToo, SayHerName, and Defund the Police, this academic discussion reflects on the role of law in creating, sustaining, and resolving the identified problems.
Topics for presentation in the broad umbrella of this symposium might include: how social movements transform or engage the law, how academics translate social movements, a reconstructed history of the 15th or 19th Amendment, the Jim Crow and Jane Crow eras and their continuing effects, current battles for voting rights regarding felons, polling restrictions, and other limitations with disparate impact, intersectional dimensions of justice including Black feminism, the causes and consequences of Black Lives Matter, vestiges of slavery, reparations for slavery, policing reform, mass incarceration, judicial remedies for citizenship violations, and/or the gendered differences of black citizenship rights.
The Virtual Symposium is sponsored by the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial for the purpose of promoting scholarship and education on matters of constitutional law. The Center includes five affiliated faculty fellows, student fellows, an online journal, ConLawNOW, a JD certificate program in constitutional law, a social justice project, and a Masters of Law in social justice.
Papers presented will be published in a symposium edition of ConLawNOW. ConLawNOW is an online, open-access journal that is also indexed in Westlaw, Lexis, and Hein. It is designed to publish shorter works of 10-20 pages within a short editorial timeframe to get scholarship into the public discourse more quickly. Recent authors published in ConLawNOW include Larry Solum, Paula Monopoli, Ernie Young, Harold Koh, Helen Norton, Judge Jeffrey Sutton, Ruthann Robson, and Julie Suk.
Those interested in presenting a paper should submit a proposal detailing the intended presentation to Professor Tracy Thomas, Director of the Center for Constitutional Law, at firstname.lastname@example.org by December 1. Draft papers should then be submitted by January 20, 2021 for circulation among the other participants for the symposium. Final papers will be due by March 1, 2021, and expected to publish by early April.
Wednesday, August 26, 2020
My own work
Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)
Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)
Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)
Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)
Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)
Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)
Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920
Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)
Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)
Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)
Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)
Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)
Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)
Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev. 1456 (2001