Thursday, June 23, 2022
Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021
This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.
The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.
On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.
However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.
These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials.
Friday, June 10, 2022
Ederlina Co, Weathering Invisible Labor, 51 Southwestern Law Review 258 (2022)
Professor Meera Deo’s Unequal Profession: Race and Gender in Legal Academia powerfully demonstrates how the legal academy has adopted many of American society’s social hierarchies as they relate to race and gender. Inspired by Unequal Profession and using a Critical Race Feminism framework, this Essay centers on women of color professors and the problem of invisible labor in legal academia.
Although for many women of color professors invisible labor involves a labor of love, this Essay contends that the legal academy’s unwillingness to recognize it in a meaningful manner marginalizes women of color professors, devalues how important invisible labor is to law students, law schools, and the legal profession, and perpetuates a race-gender institutional bias. This Essay recommends steps that law school administrators and allies can take immediately to recognize invisible labor but also suggests that the time has come for the legal academy to begin to reexamine how it values “service” more broadly.
Monday, June 6, 2022
Exposing the Patent Archives as an Inaccurate Record of US Invention When Viewed Through the Lens of the Black Woman
Kara Swanson, Inventing While a Black Woman: Passing and the Patent Archive, 25 Stanford Tech. L. Rev. (forthcoming)
This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of US invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of “inventor.” Exposing the patent system as raced and gendered terrain, it argues that marginalized inventors participated in invention and patenting by situational passing. It rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. It argues that marginalized inventors adopted this practice, risking the sanction of patent invalidity, to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained all marginalized inventors. Passing, while an act of creative adaptation, also entailed loss. Individual inventors gave up the public status of inventor and also, often, the full value of their inventions. Cumulatively, the practice amplified the patent gaps, systematically overrepresenting white men and thus reinforcing the biases marginalized inventors sought to avoid. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. This research provides needed context to the current effort to remedy patent gaps. Through its intersectional approach, it also brings patent law into broader conversations about how law has supported systemic racism and sexism and contributed to societal inequality.
Friday, May 20, 2022
AKRON, Ohio — As the anniversary nears of Sojourner Truth’s celebrated “Ain’t I a Woman” speech in Akron, a dedicated group of women is at work bringing a years-long dream to fruition — a tribute as memorable and powerful as the life and work of the slave-turned-suffragette, built on the site where she made history.
In less than two years, the Sojourner Truth Project Committee plans to build a 10,000-square-foot plaza that will welcome visitors coming into Akron from the north, with the word “TRUTH” clearly visible on entry. Near the plaza’s center will be a sculpture of Sojourner Truth seated on an Impala lily, a petal design radiating outward from her feet, and her right hand extended in welcome.
“Truth is such a big word. It’s so bold and so concrete. What it stands for is unwavering,” said Summit County Metro Parks’ landscape architect Dion Harris, who the committee commissioned to design the plaza.
Truth was a powerful voice for women’s rights, especially women of color. An emancipated New-York slave born Isabella Baumfree, she changed her name in 1843 before crisscrossing the nation to speak against slavery and for women’s rights.
On May 29, 1851 during an Ohio Women’s Rights Convention, the steps of the Old Stone Church on High Street served as Truth’s platform. She was not invited, nor was she asked to speak, but her speech that day is remembered as a voice for all women.
Although the steps are long gone, the power of Truth’s speech remains, rendering it one of the most important women’s rights speeches on record in the U.S.
Harris researched Truth’s life and work to infuse that meaning into the design, he said. The impala lily is the national flower of Ghana, Truth’s ancestry on her father’s side.
Thursday, May 12, 2022
Michele Goodwin, The New Jane Crow, The Atlantic
With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.
Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.
Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.
Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.
Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.
Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.
Wednesday, April 20, 2022
Book Review, The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration
Aziza Ahmed, Recovering Feminist Lessons from the Past for a Less Carceral Future, JOTWELL, reviewing, Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (2021).
In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.”
Gruber begins her book by connecting the dots between the anti-sexual violence activism of the 19th century and today. In doing so, Gruber centers the role of race in structuring how imaginaries of sexual exploitation and violence occur. The voices of dominant groups (including white feminists) constructed the larger social narrative of sexual violence. Their ideas of sexual exploitation were shaped by the racialized ideas undergirding the political economy of the time, including the anti-immigrant sentiments of Chinese exclusion and the racist ideologies wrapped into slavery.***
Understanding our contemporary moment, and the choices activists are making in calling for criminal justice reforms, requires a sense of the past: the decisions that have come to shape contemporary anti-sexual violence organizing and what feminists could have done better. As Gruber powerfully shows, to find a path forward we cannot simply rely on the dominant feminist visions of prior moments, which often were mired in a racial and carceral feminist politics. Instead, advocates should unearth the dissenting feminist voices that long argued that it was possible to have a world free of sexual violence and without the cruelty of the carceral state
Thursday, April 14, 2022
Moving Beyond a Simplistic Application of Intersectionality Theory in Analyzing Employment Discrimination Against Black Women
Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, Employee Rgts & Employment Policy J (forthcoming)
It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and psychologically disabling consequences of such discrimination, judges have failed to develop a new analytic paradigm for addressing intersectional claims under Title VII. Likewise, Congress has failed to offer a legislative solution, and the Equal Employment Opportunity Commission provides scant guidance for employees, employers, and attorneys attempting to navigate these claims. Even the recent flurry of #MeToo-inspired state legislative reforms miss the opportunity to address this persistent problem. Despite vocal resistance to Critical Race Theory, the ongoing metoo movement and increased receptiveness to address systemic racism following the mass protests in 2020, make this an opportune time to renew our discussion of intersectionality and reshape the meager analytical framework of antidiscrimination law. This Article lays the foundation for future research and second generation law and policy proposals that will take crucial steps towards finally acknowledging and addressing the real discrimination Black women face.
Thursday, April 7, 2022
Ellen D Katz, Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment, forthcoming Georgetown Journal of Law & Public Policy, Vol. 20.
In 1920, eleven States required voters to pay a poll, or capitation, tax as a prerequisite to voting. States assessed these taxes well in advance of an election and required voters to present proof that they paid the tax in order to cast a ballot. Several States made this requirement even more stringent by imposing cumulative obligations, such that would-be voters needed to pay not only the tax assessed for the given year but all taxes past due in order to vote. Ratification of the Nineteenth Amendment gave rise to disputes as to whether States now needed to set identical poll tax obligations for men and women.
This Essay examines two rulings that addressed this question. In the 1921 decision Graves v. Eubank, the Alabama Supreme Court held that the Nineteenth Amendment “placed all women in the state upon the same footing with men” and thus prohibited Alabama from “placing conditions or burdens upon one [sex] not placed upon the other as a condition precedent to the right to vote.” Sixteen years later, the United States Supreme Court overruled Graves in Breedlove v. Suttles and held that nothing in the Nineteenth Amendment limited Georgia’s power to discriminate between men and women when setting poll tax requirements. Where Graves suggested the Nineteenth Amendment set forth a broad principle of gender equality that extended throughout the electoral process, Breedlove saw a narrow prohibition targeting only those state laws that explicitly limited the electorate to men. Graves and Breedlove thus adopted facially incompatible views of the Nineteenth Amendment’s reach.
Read together, Graves and Breedlove are fodder for the narrative, pressed by assorted scholars for decades, that judges, legislators, and other public officials have long read the Nineteenth Amendment too narrowly. These scholars claim that the Amendment is best read to set forth a robust equality norm or, even more broadly, an anti-subordination principle that should have displaced a broad swath of regulations that made or promoted gender-based distinctions.
On this view, decisions like Breedlove failed to implement the Amendment as intended because the Court read it to allow a gender-specific poll tax. By contrast, claims of the sort found in cases like Graves—that, for instance, the Nineteenth Amendment “placed all women . . . upon the same footing with men”—are viewed more favorably. Language of this sort is seen to suggest the possibility of a different storyline, one in which the Nineteenth Amendment was understood to embrace broad equality and anti-subordination principles. This interpretation insists that the Amendment should have occupied a more central place in the fight for gender equality and that it might yet be deployed productively in ongoing disputes.
This Essay relies on a close examination of Graves and Breedlove to introduce a competing account of the Nineteenth Amendment. The underlying claim, which I develop elsewhere in more detail, is that the Nineteenth Amendment was never meant to promote a broad equality principle, much less an anti-subordination norm. Instead, it was crafted as a deliberately circumscribed measure that would eliminate the male-only electorate while preserving and promoting existing social hierarchies. More specifically, advocates of the Nineteenth Amendment repeatedly promised that women could be included in the electorate without destabilizing either the traditional family or white supremacy. Indeed, these advocates promised that women voters would bolster both hierarchies. These promises, while not universally endorsed, dominated discussion of the
Amendment, particularly in the years closest to ratification, and were the ones that shaped how the Amendment was read and applied.
On this understanding of the Amendment, cases like Graves and Breedlove look more harmonious than their seemingly conflicting holdings might otherwise suggest. In particular, this Essay seeks to show that both Graves and Breedlove manifested a determination to preserve existing social hierarchies and read the Nineteenth Amendment to mandate such preservation.
For its part, Graves made sure that newly enfranchised women voters would not threaten the existing racial hierarchy. Graves did so by holding that the Nineteenth Amendment barred Alabama from exempting women voters from the poll tax that it collected from men.
Monday, March 28, 2022
The National Birth Equity Collaborative has launched its "Respectful Maternity Care Initiative." It describes the work as follows:
The maternal health crisis in the U.S. is worsening, and we need a culture of Respectful Maternity Care to change it. Maternal health inequities weigh on Black and Indigenous communities, and data shows that it is due to structural and interpersonal racism. We need to be honest about how Black women are treated during maternity care.
Systems acknowledging the ways racism affects birth outcomes requires exploring innovative anti-racist models and tools for quality improvement. Despite the prevalence of racist microaggressions and bias fueling disrespect in labor and delivery care in the U.S., there are limited tools that can measure disrespect or that support provider behavior change. Health systems are ready for accountability and quality improvement measures for racism, starting with obstetric racism.
Read its report titled The Cycle to Respectful Care: A Qualitative Approach to the Creation of an Actionable Framework to Address Maternal Outcome Disparities to learn more about this issue. The abstract is excerpted here:
Despite persistent disparities in maternity care outcomes, there are limited resources to guide clinical practice and clinician behavior to dismantle biased practices and beliefs, structural and institutional racism, and the policies that perpetuate racism. Focus groups and interviews were held in communities in the United States identified as having higher density of Black births. Focus group and interview themes and codes illuminated Black birthing individual’s experience with labor and delivery in the hospital setting. Using an iterative process to refine and incorporate qualitative themes, we created a framework in close collaboration with birth equity stakeholders. This is an actionable, cyclical framework for training on anti-racist maternity care. The Cycle to Respectful Care acknowledges the development and perpetuation of biased healthcare delivery, while providing a solution for dismantling healthcare providers’ socialization that results in biased and discriminatory care. The Cycle to Respectful Care is an actionable tool to liberate patients, by way of their healthcare providers, from biased practices and beliefs, structural and institutional racism, and the policies that perpetuate racism.
The National Birth Equity Collaborative is hosting a webinar on Tuesday, March 29th at 9:30 a.m. to launch the initiative. Register here.
Monday, March 21, 2022
Come learn more about how reproductive justice issues include so much more than the right to access a safe abortion. This conversation is critical for anti-violence advocates in these times. Reproductive justice has never been readily accessible nationally. This is particularly true for Black and Native American women who also experience the highest rates of sexual violence and pregnancy related deaths.
With ever-increasing government restrictions that further the criminalization and family regulation of survivors of intimate partner violence, our goal is to hold a learning space for advocates working with survivors of intimate partner violence. We will hear the experiences and perspectives of advocates working on the front lines of reproductive and family justice in order to better identify and understand the movements' intersections, develop survivor centered responses and develop allyship.
Monday, March 7, 2022
Elizabeth T. Tyler on "Black Mothers Matter: The Social, Political, and Legal Determinants of Black Maternal Health Across the Lifespan"
Elizabeth T. Tyler has published Black Mothers Matter: The Social, Political and Legal Determinants of Black Maternal Health Across the Lifespan in volume 25 of the Journal of Health Care Law & Policy.
The abstract previews:
Black maternal health disparities have existed for decades. But with America’s recent “racial reckoning,” the public health and medical communities are increasingly focused on understanding the pathways that lead to higher rates of Black maternal morbidity and mortality, and policymakers are exploring legal and policy approaches to reducing inequities. While most of the attention is on reducing racial disparities in mortality during pregnancy, childbirth and postpartum, this article investigates the problem from a life course perspective. Applying public health and medical literature that details the role of allostatic load and weathering in adult and maternal health, this article examines how multiple compounding and intersecting social, political, and legal structures drive poor health outcomes for Black mothers. These structures include the particular social status of Black mothers in American history and society, the political disempowerment and scapegoating of Black mothers that has shaped harmful public policies, and the poorly designed and enforced laws and systems that not only fail to protect Black mothers from discrimination but, at times, exacerbate it. This article reviews and assesses current state and federal proposals for legal and policy reform aimed at addressing the Black maternal health crisis and subsequently proposes the need for a comprehensive multisectoral approach.
Candice Norwood of The 19th News published an informative article titled 41 years before Ketanji Brown Jackson, Amalya Lyle Kearse was Considered for the Supreme Court.
As the country prepares to watch the confirmation process for the first Black woman nominated to the nation’s highest court, The 19th revisits Kearse, who was the first Black woman judge on an appellate court and who still sits on the U.S. Court of Appeals for the 2nd Circuit. She was considered for a Supreme Court nomination by three different presidents, the first Black woman on record to receive such recognition. Kearse was a key figure in paving the way for Black women judges, who even with the high-profile nomination of Judge Ketanji Brown Jackson to the Supreme Court are underrepresented on the U.S. judiciary.
“Amalya Kearse’s existence on President Reagan’s shortlist over 40 years ago is concrete evidence that for as long as women have been allowed to be on the Supreme Court, there have been Black women who have been qualified to be there, and it is a long time coming to finally have that fulfilled,” said Renee Knake Jefferson, a professor at the University of Houston Law Center and co-author of the book “Shortlisted: Women in the Shadows of the Supreme Court.”
Read the article in full for an informative summary of her career.
Monday, February 21, 2022
This discussion explores Rafia Zakaria's new book Against White Feminism, which serves as a counter-manifesto to white feminism's alignment with colonial, patriarchal, and white supremacist ideals to center women of color. The panel participants will consider the legacy of the British feminist imperialist savior complex and what Zakaria describes as "the colonial thesis that all reform comes from the West" to the condescension of the white feminist-led "aid industrial complex" and the conflation of sexual liberation as the "sum total of empowerment." The discussion will build on the work of intersectional feminists, Kimberlé Crenshaw, Adrienne Rich, and Audre Lorde.
Thursday, February 17, 2022
The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws and enforcement policies that, though initially targeting Asian women, now result in discrimination more broadly against Asian Pacific American (APA) women. The marginalization of this community, and the degrading stereotypes integrated within this marginalization, are designed to decitizenize. This Article illustrates how decitizenizing processes that are uniquely aimed at APA women can lead to the justification and excusal of legal and social discrimination.
Monday, February 7, 2022
Jordan Blair Woods has published Destabilizing Policing’s Masculinity Project in volume 89 of the George Washington Law Review. The abstract summarizes:
In the wake of national calls for police reform and nationwide protests of police killings of unarmed people of color, and unarmed Black men in particular, there is a renewed focus on the relationship between masculinity and police violence. This Article, prepared for a symposium on “Addressing the Crisis in Policing Today: Race, Masculinity, and Police Use of Force in America,” evaluates how scholars inside and outside of law have approached issues of masculinity and police violence. The analysis places special emphasis on where these approaches leave us in terms of police reform. As discussed, how police-civilian encounters relate to the social construction of gender and the enactment of masculinity are major focal points of recent literature on masculinity and police violence. From this perspective, interventions are geared towards negating gender hierarchies through processes of professional resocialization and degendering that aim to replace dominant masculinist cultural norms with antimasculinist ones. When adopted for the specific purpose of changing masculinist police culture, antimasculinist officer training and enhanced diversity recruitment (especially aimed at enhancing gender diversity) are noteworthy examples of these professional re-socialization strategies.
This Article aims to incite a conversation about moving discussions of masculinity and policing to a different plane. It evaluates the limits of social constructionist views of masculinity in policing contexts, and more specifically, the types of police reforms that follow from those views. To accomplish these goals, this Article looks outside the field of law to the discipline of criminology. As discussed, criminology is a useful comparative space to consider masculinity issues because for over a century the field has been concerned with its own “sex question” about crime, which revolves around the acknowledgment that most known criminal offenders, especially violent offenders, are men. Looking to literature outside of law, this Article argues that critical theoretical frameworks that move beyond the sex/gender distinction, such as those in postmodern feminism and queer theory, offer promise to dismantle gender hierarchies in policing on a deeper level through discursive and political strategies that challenge basic assumptions about the existing order and structure of contemporary policing. Although this Article is exploratory and invites further reflection and development, its analysis reveals the value in continually scrutinizing and reevaluating the discursive and political strategies in policing’s masculinity project.
Thursday, February 3, 2022
Study Shows that Women and Non-White Judges are Substantially More Likely to Rule in Favor of Plaintiff Reaching Discovery
Stephen Burbank & Sean Farhang, Politics, Identity, and Pleadings Decisions on the U.S. Courts of Appeals, U Penn. L. Rev. (forthcoming
We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. ***
In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample.
The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims.
Our results for gender contradict conventional wisdom in the literature that women judges’ preferences differ from men’s only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs’ access to discovery.
Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals.
Supreme Court Justice Stephen Breyer’s retirement announcement is not even one week old, yet Republican senators and prominent conservatives are already attacking Biden’s unnamed nominee. Instead of celebrating the president’s historic commitment to picking the nation’s first Black woman justice, conservatives have already made up their minds that Biden’s choice of a Black woman makes her automatically unqualified.***
The answer has little to do with Black women’s qualifications to serve on the highest court in the land. For the first 100 years of our country’s history, women and people of color couldn’t even attend law school. The first female federal judge was only appointed in 1928. The first Black federal judge was only appointed in 1949. The first Black woman federal judge was only appointed in 1966. And by 2020, there had still only ever been eight Black women to serve on the courts of appeals—a traditional prerequisite for a seat on the Supreme Court.
That systematic exclusion of Black women lawyers from the judiciary has clearly conditioned many conservatives to believe that there are no Black women good enough to be a Supreme Court justice. The nation is about to learn just how wrong they are.
Tuesday, February 1, 2022
Keerthana Nunna - University of Michigan Law School
W. Nicholson Price II - University of Michigan Law School
Jonathan Tietz - University of Michigan Law School
A potent myth of legal academic scholarship is that it is mostly meritocratic and that it is 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. Acknowledgements 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 impacts 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.
The traditional myth is that legal scholarship is largely meritocratic and largely solitary. Under such a view, what gets you ahead is simply a good idea: a head-turning paper that generates a whirlwind of citations and chatter with its brilliance. Under such a view, demographic considerations like an author’s race, gender, and academic pedigree should matter little in the marketplace of ideas. That myth may comfort those who ended up atop the tower, but it is belied by reality. Hierarchy, race, and gender matter to a legal academic’s success; they matter to the acceptance of her ideas; they matter to her own experience. Against a rich backdrop of theoretical and qualitative work examining these issues, we present here a quantitative study of one way to observe the impact of hierarchy, race, and gender: the acknowledgements sections of law review footnotes, and what they can tell us about legal scholarly networks.
The author footnote—variously known as the star, dagger, biographical, vanity, or bug footnote—gives a peek into who contributed (nominally, at least) to the intellectual product that is the final, published law review article. They provide small, partial portraits of the author’s professional and social networks. Taken in the aggregate, these footnotes give a peek (cloudy, to be sure) into the underlying relationships, interactions, and social networks that make up legal academia. And we can examine that picture for signs of the impact of hierarchy, race, and gender to see whether they show up in a quantitatively observable fashion. (Spoiler alert: they do.)
Here, we examine the star footnotes for nearly 30,000 law review articles published in generalist law journals over about a decade. We probe who acknowledges whom; how school rank matters; and what racial and gender based disparities exist in who gets asked, or who gets credit (it’s hard to tell) for feedback in scholarly papers. Not to hide the ball: we find that authors tend to acknowledge scholars from peer schools, most of all their own school, but also to typically acknowledge folks from somewhat fancier schools. We find that men are acknowledged more than women and nonbinary scholars, and white scholars more than scholars of color. We examine intersectional effects, which are complex; read on to find out more. One bright spot here: networks of scholars of color appear to be particularly robust.
Monday, January 31, 2022
Michelle S. Jacobs has published Sometimes They Don't Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women in Volume 44 of the Harvard Journal of Law and Gender. Here is the abstract:
In the eighteen months between March 2019 and August 2020, at least eight Black women were murdered by the police. Breonna Taylor was one of them. Officer Brett Hankison, one of the three officers who murdered Breonna Taylor, was eventually discharged from the Louisville Police Department. In the memo discharging him, the police chief cited behavior that amounted to an extreme indifference to the value of human life: Hankison blindly fired ten rounds into the home of Ms. Taylor's neighbor. Additionally, in the aftermath of Ms. Taylor's death, two women came forward and accused Hankison of sexually assaulting them while he was in uniform. Breonna Taylor's case highlights the intersection of police violence and sexual violence against Black women. Police who are accused of brutal violence often have histories of misconduct, with numerous complaints from civilians. For many women, the police misconduct is sexual assault. The women don't die, but the assault strips away their dignity and sense of security.
This paper will challenge the belief that police sexual misconduct is an infrequent, hidden crime. In fact, it is a common occurrence and is allowed to continue in most police departments. Both adult women and children are victims of police sexual misconduct. The unwillingness of federal and state authorities to tackle this issue forced researchers and journalists to create their own databases of police officers who commit crimes, including sexual misconduct.
Our nation is primed to tackle the issue of police reform in a way it has not been in recent years.This paper will argue that unless police reform efforts look beyond a narrow, male-centered understanding of police violence, the opportunity to create reform that helps protect Black women from police sexual misconduct will be lost.
Wednesday, January 26, 2022
California Western School of Law, State Violence and Womxn: Defining the Reaches of Modern Policing
The protests against police killings during the summer of 2020 emphasized that race plays a critical role in understanding the nature of state-sanctioned violence. To date, much of the conversation regarding such violence has focused on Black and Latinx men. Nevertheless, there is much to be said about the topic as it relates to race and gender, particularly with respect to cis-women of color and trans women. Moreover, discussions regarding this issue often center around the actions of police, despite such violence also appearing in various law enforcement contexts such as, but not limited to, within prison walls and at border crossings.
To this end, the California Western Law Review is hosting a virtual symposium on March 24, 2022, for the purpose of facilitating a comprehensive discussion on the topic of state-inflicted violence against cis-women of color and trans women in various law enforcement contexts. Ultimately, the goals of the symposium are to identify and bring awareness to critical legal issues underlying this topic and to consider the possibility of positive change for all womxn by adapting current law enforcement practices to incorporate features of restorative justice.
Registration and additional symposium details are forthcoming.
CALL FOR PAPERS
The Law Review Symposium Committee invites those interested in participating in the symposium to submit an abstract that introduces an article (hereinafter “manuscript”) related to the topic described above to be published in the symposium issue of the California Western Law Review.
Abstract Due Date: February 7, 2022
Final Paper Due Date: May 2, 2022
Abstract submissions should include:
The title of the submitted manuscript;
A 300 to 500-word abstract that discusses the proposed symposium topic and outlines the contents of the paper;
The name and email address of the author;
The curriculum vitae of the author; and
A statement indicating whether the author would like their topic to be considered as a featured topic* for a discussion panel at the symposium.
*Please see below for more details regarding discussion panel topics.
Final Manuscript Requirements:
10,000 maximum word limit (approximately 20 single-spaced pages);
Citations must be contained in footnotes and conform to the most recent edition of The Bluebook: A Uniform System
Manuscripts should be timely and provide an original in-depth analysis of the topic above;
The title page should include the author’s full name, their academic/professional affiliations, and complete contact
information where correspondence can be made.
Featured Topics for Discussion Panels:
The symposium will feature three discussion panels, each consisting of no more than three panelists. To determine the topic for each panel, the committee will select four abstracts/manuscripts to be featured as discussion topics. The respective authors will also be invited to participate as panelists for the panel that features their topic.
Author-speakers will receive an honorarium for their contributions.
Prior to the symposium, the four authors will submit a “Symposium Draft” consisting of a general overview of the author’s ideas to be featured in their manuscript as well as potential talking points. This document will be provided to the moderator and fellow panelists for reading. The reason for this is to ensure robust and consistent dialogue during each panel. As a result, the authors and audience members alike will benefit from the overall discussion and engagement that follows. Moreover, all authors will have the opportunity to revisit their manuscripts with potentially new insights and ideas to incorporate in their final drafts due May 2, 2022.
How to Submit:
Please submit abstracts to firstname.lastname@example.org or with “State Violence and Womxn” in the subject line.