Gender and the Law Blog

Tarek Z. Ismail on "Family Policing and the Fourth Amendment"

Tarik Z. Ismail has published Family Policing and the Fourth Amendment in volume 111 of the California Law Review (2023). The article includes numerous threads about the regulation of Black mothers, including vignettes revealing the regulation of race and gender woven throughout the scholarship. The abstract is excerpted here.  

Each year, Child Protective Services (CPS) investigates over one million families. Every CPS investigation includes a thorough, room-by-room search of the family home, designed to uncover evidence of maltreatment. Most seek evidence of poverty-related allegations of neglect; few ever substantiate the allegations. Despite what in many cities amounts to dozens of daily home invasions by government agents, the most remarkable feature of CPS home searches is how uncommon it has been for courts to clarify their legal parameters. More surprising than the relative dearth of case law and scholarship on the subject is the conclusion some courts have reached that these investigations are outside the familiar rules regulating law enforcement searches of homes.

 

This Article examines how CPS home searches have escaped meaningful Fourth Amendment scrutiny for the past fifty years, despite their explicitly suspicion-based, investigative design. The few courts examining CPS home searches have distinguished them from traditional police investigations. These courts have situated CPS home searches within the “administrative search doctrine”—a confusing web of Fourth Amendment exceptions that the Supreme Court created in the late 1960s for non-law enforcement searches. But when they were created in the 1970s, CPS agencies assumed policing powers initially held by traditional law enforcement—including the powers to investigate maltreatment and to remove children. The co-emergence of the administrative search doctrine and CPS as a new investigative agency with old policing powers resulted in half a century of unnecessary confusion.

 

This Article seeks to resolve that confusion. It provides a brief description of the statutorily required CPS home search, an overview of its legal framework, and a critical analysis of the consequences of CPS searches on the families who experience them. The Article then situates the emergence of the CPS home search within the contemporary Fourth Amendment doctrinal edifice. It analyzes how a government agency conducting millions of suspicion-based home searches could slip through the cracks and demonstrates how none of the administrative search exceptions apply. Finally, the Article suggests a path forward through universal application of traditional Fourth Amendment principles. In so doing, the Article highlights CPS’s unique coercive power, related to—but wholly distinct from—the criminal police. It sets the stage for engagement based on support, not coercion.

 

Infant Mortality Rate Rises by 3%

The National Center for Health Statistics released data on infant mortality for 2022. The infant mortality rate in the United States rose from 2021 to 2022. Roni Caryn Rabin of the New York Times reports on these findings (November 1, 2023): 

The infant mortality rate — defined as the number of babies who die before they are a year old for every 1,000 live births — [] increased by a statistically significant 3 percent last year, to 5.6 infant deaths per 1,000 live births, up from 5.44 deaths per 1,000 live births in 2021 . . .

The mortality rate of babies who were between 4 weeks and a year old increased by 4 percent, while neonatal mortality rates — that of babies less than a month old — increased by 3 percent.

Rates increased significantly among both premature babies born before 37 weeks of gestation and those born extremely early, at less than 34 weeks of gestation.

Overall, the statistically significant increases in mortality rates were seen only among male infants, whose survival rates have always been slightly lower than those among females.

Black infants have the highest mortality rate in the United States, rising slightly last year to 10.86 deaths per 1,000 live births, from 10.55 deaths per 1,000 live births in 2021, an increase that was not statistically significant.

By contrast, the infant mortality rates of both white and Native American and Alaska Native babies increased by statistically significant amounts last year.

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas Genetin, Mike Gentithes, Dr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

Judicial Dark Matter and the Continued Gender and Racial Inequalities on Federal Appellate Panels

Nina Varsava, Keith Carlson, Michael Livermore & Daniel Rockmore,  Judicial Dark Matter, 91 U. Chicago L. Rev. (forthcoming)  

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and largely covert practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and racial biases in representation. We argue that these imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, which results in concerning distortions in reported cases. This is the first study of the representation and distribution of judges by gender and race across decision panels. Ultimately, our findings suggest that assessing the distribution of legal power and influence across gender and racial groups based on the numbers of judges from these groups serving on the bench may be misleading and may create an inflated sense of the influence of judges from historically underrepresented groups. The diversity reform agenda, then, as it is typically cast in the scholarly literature, the political sphere, and the popular media alike, is incomplete. One cannot hope to understand how representation translates into power nor to remedy demographic power imbalances in the judiciary without attending to the features of judicial administration examined here. We propose reforms to judicial administration aimed to protect against the kind of demographic biases in representation that we uncover.

Kashyap on "A Critical Race Feminism Critique of Immigration Laws that Exclude Sex Workers: Moving from Theory to Praxis"

Monika Batra Kashyap has published A Critical Race Feminism Critique of Immigration Laws that Exclude Sex Workers: Moving from Theory to Praxis in volume 38 of the Berkeley Journal of Gender, Law & Justice (2023). The abstract is here: 

This Article is the first to apply a critical race feminism (CRF) critique to the current immigration law in the United States, Immigration and Nationality Act (INA) § 212(a)(2)(D)(i), which excludes immigrants for engaging in sex work. This Article will use critical historical methodology to center the role of women of color as the primary targets of not only the first federal law to criminalize sex workers, but also the first explicitly racist immigration law in United States history. The Article will also employ theories of anti-essentialism and intersectionality to show how INA § 212(a)(2)(D)(i) both silences the voices and experiences of women of color sex workers and refuses to recognize the impacts of multiple intersecting systems of oppression. Finally, the Article will connect the critique of INA § 212(a)(2)(D)(i) to the anti-carceral feminist movement to decriminalize sex work in order to move from theory to praxis, and to inspire advocacy strategies and law reform efforts that point to a broader project of transformation. The ultimate goal of this Article is to strengthen links between critical race and immigration law scholarship so that scholars can continue to use CRF as an exploratory analytical tool to examine the intersections of race, class, and gender within immigration law.

Reva Siegel on "How Dobbs Weaponizes Brown"

Reva Siegel has posted her forthcoming work in the Yale Law Journal on SSRN. The work is titled How Dobbs Weaponizes Brown: The Roots of Dobbs's History-and-Tradition Method in the Defense of Segregation. The abstract is excerpted below. 

In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority for its decision to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—omissions that enabled the Court to weaponize Brown as authority for overturning Roe.

Dobbs interpreted the Constitution’s liberty guarantee by counting state laws that banned abortion at the time of the Fourteenth Amendment’s ratification. In doing so, Dobbs employed a method of interpreting the Amendment popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868. Brown repudiated this tradition-entrenching method of interpreting the Amendment and called upon the nation to align its practices with its constitutional ideals.

Examining the history Dobbs omitted helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an objective standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims. Counting states that segregated education (or banned abortion) in 1868 was not a neutral or objective measure of the Constitution’s meaning; it expressed the interpreters’ values by perpetuating exclusions of the past into the future. The democracy it supported was a thin majoritarianism, democracy without rights that would protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi show how the liberty and democracy Dobbs protects perpetuate and entrench inequalities of 1868.

By reconstructing the lineage of arguments that state laws in 1868 are proxies for the original understanding, we can see how early forms of originalism and Dobbs’s history-and-tradition method grew out of resistance to Brown and backlash to the Warren and Burger Courts. Debate over Brown posed core questions about fidelity to the Constitution. We renew and sustain that debate on Brown’s seventieth anniversary as we ask how claims on the constitutional memory of Brown relate to its constitutional history.

 

On 75th Anniversary of Women's Armed Services Integration Act Recalling Black Women's Military Leadership Since the Civil War

Wash Post, Black Women's Leadership in the Military Dates to the Civil War

This month marks 75 years since passage of the groundbreaking Women’s Armed Services Integration Act, which permitted women to serve as full members of the U.S. armed forces in every branch. It also marks a decade since the Pentagon reversed its “ground combat exclusion policy.” That had allowed women to serve on combat ships, even though it banned them from serving in direct ground combat.

These changes have been monumental. While women represented just 2 percent of the U.S. military in 1948, they currently constitute roughly 18 percent of the armed forces. Yet a 2020 report shows that fewer than 1 percent of deployed active-duty combat troops are women. A fraction of them are African American women.

While the need to recognize and celebrate these historic milestones is paramount, these commemorations often forget that Black women led armies and fought behind enemy lines during the Civil War — long before President Harry S. Truman signed the historic legislation in 1948. Their military achievements have regularly been erased, eclipsed or distorted in service of building a national narrative that appealed to White Americans. Restoring this history to our understanding of the history of women’s role in the military helps us envision a national narrative that is both closer to the truth and that works for us all.

Wilkins on "Stories that Kill: Masculinity and Capital Prosecutors' Closing Arguments"

Pamela Wilkins has published "Stories that Kill: Masculinity and Capital Prosecutors' Closing Arguments" in volume 71 of the Cleveland State Law Review. The abstract previews: 

The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite--or perhaps because of--the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern ideologies around manhood and by the hypermasculinity common within law enforcement. In turn, these ideologies influence capital prosecutors’ sentencing phase closing arguments.

School Book Removals May Create Hostile Environment Violating Student Civil Rights

Wash Post, Book Removals May Have Violated Student Civil Rights, Education Dept. Says

In a move that could affect how schools handle book challenges, the federal government has concluded that a Georgia school district’s removal of titles with Black and LGBTQ characters may have created a “hostile environment” for students, potentially violating their civil rights.

The Education Department’s Office for Civil Rights released its findings in a letter Friday wrapping up its investigation into Forsyth County Schools’ 2022 decision to pull nearly a dozen books from shelves after parents complained of titles’ sexual and LGBTQ content. To resolve the investigation, the district north of Atlanta agreed to offer “supportive measures” to students affected by the book removals and to administer a school climate survey, per the letter. ***

The Education Department’s investigation into the Forsyth district — which involved the examination of school documents, interviews with top school personnel and a review of public board meeting records — was based on a complaint alleging that the January 2022 removal of books created a “racially and sexually hostile environment for students,” according to the department.

The district ultimately removed eight books indefinitely and two temporarily, according to the letter, and it limited four titles to high schools. Superintendent Jeff Bearden told the school board that the books being yanked “were obviously sexually explicit or pornographic,” according to the letter.

Of the books listed for removal, three center on characters of color and one on an LGBTQ protagonist, according to a Washington Post analysis. The nixed titles include “The Bluest Eye” by Nobel Prize-winning author Toni Morrison, the Forsyth County News reported and Caracciolo confirmed.

A study by the Washington Post found that the majority of all school book bans are being filed by a small number of people. See Objection to sexual, LGBTQ content propels spike in book challenges

A small number of people were responsible for most of the book challenges, The Post found. Individuals who filed 10 or more complaints were responsible for two-thirds of all challenges. In some cases, these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents’ groups such as Moms for Liberty.

And the types of claims:

The Post analyzed the complaints to determine who was challenging the books, what kinds of books drew objections and why. Nearly half of filings — 43 percent — targeted titles with LGBTQ characters or themes, while 36 percent targeted titles featuring characters of color or dealing with issues of race and racism. The top reason people challenged books was “sexual” content; 61 percent of challenges referenced this concern.

In nearly 20 percent of the challenges, petitioners wrote that they wanted texts pulled from shelves because the titles depict lesbian, gay, queer, bisexual, homosexual, transgender or nonbinary lives. Many challengers wrote that reading books about LGBTQ people could cause children to alter their sexuality or gender.

 

Dobbs, Plessy, and the New Jane Crow

Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow,  Northern Illinois U. Law Rev. (2023)

Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”

This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.

Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.

Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.

The Supreme Court's Gaslight Docket and the Anti-Equality Effects

Kyle Velte, The Supreme Court's Gaslight Docket, Temple L. Rev. (forthcoming) 

The U.S. Supreme Court’s new conservative supermajority is gaslighting the American public. This article take a systematic look at key cases from the Court’s October Term 2021 through the lens of gaslighting. It describes these case as being part of what it dubs the Court’s “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court’s recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has become to subject of academic and theoretical inquiry. This article identifies gaslighting in the Court’s civil rights cases in both oral arguments and written decisions. It reveals that this gaslighting is trans-substantive, spanning cases involving voting rights, race discrimination/affirmative action, reproductive rights, LGBTQ rights, and the First Amendment’s religion clauses.

Because gaslighting has epistemic dimensions — knowledge production and gaslighting are connected — gaslighters instill epistemic doubt in their victims as a way to have the gaslighter’s production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower” — indeed, it is given the position of ultimate “knower” of the meaning and application of the U.S. Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and anti-democratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalism movement, declaring that those interests are not co-equal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalism ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

Book, Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights

Valena Betty, Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights

When Valena Beety first became a federal prosecutor, her goal was to protect victims, especially women, from cycles of violence. What she discovered was that not only did prosecutions often fail to help victims, they frequently relied on false information, forensic fraud, and police and prosecutor misconduct.
 
Seeking change, Beety began working in the Innocence Movement, helping to free factually innocent people through DNA testing and criminal justice reform. Manifesting Justice focuses on the shocking story of Beety's client Leigh Stubbs—a young, queer woman in Mississippi, convicted of a horrific crime she did not commit because of her sexual orientation. Beety weaves Stubbs's harrowing narrative through the broader story of a broken criminal justice system where defendants—including disproportionate numbers of women of color and queer individuals—are convicted due to racism, prejudice, coerced confessions, and false identifications.
 
Drawing on interviews with both innocence advocates and wrongfully convicted women, along with Beety's own experiences as an expert litigator and a queer woman, Manifesting Justice provides a unique outsider/insider perspective. Beety expands our notion of justice to include not just people who are factually innocent, but those who are over-charged, pressured into bad plea deals, and over-sentenced. The result is a riveting and timely book that not only advocates for reforming the conviction process—it will transform our very ideas of crime and punishment, what innocence is, and who should be free.

 

Meera Deo on "Better than BIPOC"

Meera Deo has published Better than BIPOC in volume 41 of Law and Inequality: A Journal of Theory and Practice (2023). The abstract is here: 

 

Race and racism evolve over time, as does the language of antiracism. Yet nascent terms of resistance are not always better than originals. Without the deep investment of community engagement and review, new labels—like BIPOC—run the risk of causing more harm than good. This Article argues that using BIPOC (which stands for “Black, Indigenous, and People of Color”) as a synonym for People of Color not only does a disservice to the People of Color history and legacy, but also is a dangerous example of virtue signaling that promises symbolic progress without meaningful change. Applying this thesis to the context of legal education using empirical data from law students and law faculty, it becomes evident that People of Color is the appropriate term to use when making comparisons to whites; similarly, Women of Color works best when considering raceXgender intersectionality. Furthermore, academics, advocates, and allies should recognize that while pursuing commonalities and drawing from shared experiences is often critical for political and strategic purposes, aggregating disparate groups under one umbrella, whatever term is used, risks obscuring marginalized populations. In these instances, we should be even more precise in naming each community individually, which serves the twin goals of promoting accuracy in reporting and furthering anti-subordination.

Urgent Appeal and Call to Action Sent to U.N. Explaining how U.S. Anti-Abortion Legislation Violates International Law

A coalition of groups, including Human Rights Watch, Pregnancy Justice, the National Birth Equity Collaborative, Physicians for Human Rights, Amnesty International, and the Global Justice Center, have authored a letter to United Nations mandate holders. The letter issues an urgent appeal and call to action: 

By overturning the established constitutional protection for access to abortion and through the passage of state laws, the US is in violation of its obligations under international human rights law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information.

 

The signatories call on the UN mandate holders to take up their calls to action, which include communicating with the US regarding the human rights violations, requesting a visit to the US, convening a virtual stakeholder meeting with US civil society, calls for the US to comply with its obligations under international law, and calls for private companies to take a number of actions to protect reproductive rights.

The full 53-page appeal is available here. It outlines all of the ways that women's health and lives are threatened by the Dobbs decision. The letter is signed by dozens of organizations and individuals. It is a great, comprehensive resource for advocates. 

Etienne C. Toussaint on "The Purpose of Legal Education"

Etienne C. Toussaint has posted forthcoming work on SSRN titled The Purpose of Legal Education. This article is to be published in Volume 111 of the California Law Review (2023). The abstract previews:  

 

When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop antiracist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with so

 

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.

 

 

Study Shows Hierarchy, Race and Gender Impact Scholarly Networks and Who is Helped on Their Legal Academic Path

Keerthana Nunna, W. Nicholson Price II & Jonathan Tietz, Hierarchy Race and Gender in Legal Scholarly Networks, 75 Stanford Law Review 71 (Feb. 2023)

A potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape we illustrate is depressingly unsurprising in basic contours but awash in details. Hierarchy, race, and gender all have substantial effects on who gets acknowledged and how, what networks of knowledge co-production get formed, and who is helped on their path through the legal academic world.

Thalia González and Rebecca Epstein on "Critical Race Feminism, Health, and Restorative Practice in Schools: Centering the Experiences of Black and Latina Girls"

Thalia González and Rebecca Epstein have posted their article on SSRN: Critical Race Feminism, Health, and Restorative Practice in Schools: Centering the Experiences of Black and Latina Girls, 29 Michigan J. of Gender & Law (2022). The abstract provides: 

 

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory systems, we argue it reflects an unnecessarily limited understanding of its potential and has generated unintended consequences in the field of RP research. First, the reactive RP model of analysis focuses more exclusively on behavioral change, rather than systemic improvement, to address discipline disparities. Second, RP research has insufficiently examined the potential role of RP in achieving health justice. Third, RP research too rarely engages in intersectional analyses that critically examine gendered racism. This study is intended as a course correction. Building on the work of legal scholars, public health researchers, sociologists, restorative justice practitioners, and our own prior work, this original study is the first to examine non-disciplinary RP through a critical race feminist lens, and—just as importantly—a public health praxis. Our findings reveal that the interplay between RP and adolescent health, race, and gender can no longer be overlooked. Proactive non-disciplinary RP was found to promote supportive school environments that enhance five key protective health factors for Black and Latina girls. Additionally, results indicate that RP improved the mental health and wellbeing of Black and Latina girls, building fundamental resilience skills that can help overcome the complex array of social structures that serve to disempower and disenfranchise girls and harm their educational and health outcomes.

Injustice Watch Investigation of U Visa Denials in Chicago

Injustice Watch reported on Chicago police denied scores of undocumented crime victims a path to citizenship. 

 

An Injustice Watch investigation found that the department has denied hundreds of U visa certification requests from undocumented crime victims this year, many of them at odds with federal certification standards and some that appeared to violate state law.

Two Chicago police sergeants, Brandon Ternand and John Poulos, issued most of the denials reviewed by Injustice Watch. Both sergeants have fatally shot civilians and had serious questions raised by investigators about their credibility. Both also faced termination, but in 2018 the Chicago Police Board allowed them to keep their jobs. The city has paid out more than $3 million in settlements and judgments relating to the two sergeants.

Police watchdogs said the decision to designate Ternand and Poulos as U visa certifiers raises questions about CPD’s selection process for the job.

* * *  

[A]fter Injustice Watch started reporting this story and following weeks of complaints from immigration attorneys to officials in Mayor Lori Lightfoot’s office, sources said that CPD said it would revise its policies on U visa certifications. The most significant change will require the department’s Office of Legal Affairs to review all denials as well as handle appeals of previously denied requests.

The City Council is also considering calling for hearings on this issue seeking more transparency.  

New Study on "The Impact of Legal Abortion on Maternal Mortality"

A new study analyzing The Impact of Legal Abortion on Maternal Mortality was posted to SSRN by scholars Sherajum Farin, Lauren Hoehn-Velasco, and Michael Pesko. The conclusion describes the results of their study: 

In this study, we consider whether the 1960s and 1970s legalization of abortion in the United States led to improvements in maternal health. Our findings suggest that legal abortion reduced non-white abortion-related mortality by 30-60% and non-white maternal mortality by 30-40%. In the first year after the passage of legal abortion, this percentage decline translates into 41 non-white maternal deaths averted in early-legal states and 113 non-white maternal deaths averted nationally. To ground the magnitude of the deaths averted in present-day maternal deaths, a total of 299 non-white women died from maternal causes of death in 2019, despite a broader classification of maternal deaths today. * * * [T]he estimated decline in maternal mortality represents the "tip of the iceberg" in terms of the health effects of legal abortion * * *.

 

In an era where Roe v. Wade no longer determines abortion laws in the United States, we conclude with two facts worth considering for policy today. First, during the period of our study, legal abortion acts primarily through lower abortion-related deaths, rather than a change in pregnancy-related risk factors. The importance of abortion-related maternal mortality indicates that eliminating unsafe and illegal abortion was likely the main driver of mortality declines discovered in this study. Second, legal abortion appears most important for non-white women, and also has the largest impact in counties with lower levels of income, educational attainment, and healthcare resources. Put together, the impact of legal abortion shows marked heterogeneous impacts by race and socioeconomic status, where legal abortion appears most important for less advantaged groups.

 

Still, based on these observed facts, the maternal mortality impacts of a post-Roe v. Wade legal landscape are unclear. A number of factors are different today than in the 1970s. Most notably, the availability of medical abortion, which can be prescribed through telemedicine appointments, sent through the mail, and safely administered at home * * * Instead, we conclude by emphasizing the importance of legal abortion for non-white maternal health during the period of initial legalization. Today, in the U.S., non-Hispanic black women already suffer three times the maternal mortality of white women * * * , and if there is a health impact of legal abortion restrictions, it will likely be for this group.

NALP Publishes its Annual Report on Diversity in U.S. Law Firms

The National Association of Law Placement has published its 2022 data on Diversity in U.S. Law Firms.

The introduction outlines the findings and conclusions of this important annual report: 

Overall, women and people of color continued to make measured progress in representation at major U.S. law firms in 2022 as compared with 2021, according to the latest demographic findings from the analyses of the 2022 NALP Directory of Legal Employers (NDLE) — the annual compendium of legal employer data published by NALP. At the associate level, women now make up almost half of all associates — and will soon likely become the majority based on the summer associate demographics — where women have surpassed the 50% threshold for the past 5 years.

 

By race/ethnicity, Black associates saw the biggest year-over-year increase in representation, up by more than half of a percentage point to 5.77% of all associates. Likewise, Black summer associates saw large gains this year, increasing by 0.7 percentage points to 11.85% of all summer associates. The share of summer associates who are women and/or people of color continues to exceed that of associates by 6-15 percentage points, suggesting that the associate ranks will persist in their diversification over the next few years.

 

Progress at the partnership level has moved at a more sluggish pace, particularly for women of color. Black and Latinx women each continued to account for less than 1% of all partners in 2022. The percentage of Black partners overall increased by just 0.1 percentage points, from 2.22% of all partners in 2021 to 2.32%. Latinx partners experienced a similar increase, growing from 2.86% of all partners in 2021 to 2.97% in 2022.