Linda L. Berger, Kathryn M. Stanchi & Bridget J. Crawford, 94 Notre Dame L. Rev. Online 1 (2018)
Monday, November 18, 2019
Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.)
Tuesday, July 23, 2019
“The research we have shows that women’s voices are missing from the media,” said Kate McCarthy, who runs WMC SheSource for the Women’s Media Center, a national database designed to connect journalists with female experts. “And frequently when women are called on to offer something up, they are quoted without citation.”
The problem is particularly acute for black women, said Christen Smith, a professor of anthropology at the University of Texas at Austin, and founder of the Cite Black Women Collective, an organization that promotes the citation of black women in academia. “Women in general don’t get quoted, but black women experience it threefold. We get it from all sides,” said Smith, who started the collective after a colleague paraphrased whole sections of her book in a conference presentation without any citation. Black women, Smith said, are far less likely to be seen as “experts” by the media, and are therefore less likely to be approached for an interview in the first place.
Tuesday, June 11, 2019
A message from the organizers of the Feminist Legal Theory Critical Research Network:
Dear Feminist Legal Theory CRN members,
First, thank you for a fabulous annual meeting! Our twenty-two panels were an enormous success, generating tremendous interest and engagement. The submission cycle for 2020 will come before we know it, so we need volunteers to plan the CRN panels for the LSA annual meeting in Denver in 2020. If you are interested in helping to plan next year’s meeting, please sign up here by Friday, June 7th.
Second, we write to follow up on the evening of action. As you know, we converted the CRN’s social event into a brainstorming session to explore what we can do – as CRN members – in our scholarship, teaching, and advocacy to further gender equality generally and especially in light of the Supreme Court’s current make-up. There was a lot of energy and enthusiasm, and we generated many terrific ideas (see below) for each track: scholarship, teaching, and advocacy. Our next step is that we need volunteers to (1) play a leadership role for each track, and (2) serve on the committee for each track. Our goal is for each committee to develop an action plan for achieving some of the ideas we identified. Each committee will work separately and then present the action plan at a gathering that will coincide with the AALS annual meeting, in D.C. in January. If you are interested in either leading or participating in these efforts, please use this sign-up sheet and respond by Friday, June 7th.
Finally, Susan Hazeldean volunteered (thank you, Susan!) to reactivate our TWEN site. We will use this for all CRN communications from now on. More information to come soon.
Wednesday, June 5, 2019
History of Woman Suffrage (six volumes), available on Project Gutenberg
Tina Cassidy, Mr. President, How Long Must We Wait? Alice Paul, Woodrow Wilson, and the Fight for the Right to Vote (Simon & Schuster 2019)
J. Kevin Corder & Christina Wolbrecht, Counting Women's Ballots(Cambridge 2016)
Lynda Dodd, Sisterhood of Struggle: Leadership and Strategy in teh Campaign for the Nineteenth Amendment, in Feminist Legal History (Tracy A. Thomas & Tracey Jean Boisseau, eds. 2011)
Ellen Carol DuBois, Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820-1878, in 74 J. Amer. History 836 (1987).
Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (1978)
Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Simon and Schuster forthcoming Feb. 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)
Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement, 1890-1920 (1965)
W. William Hodes, Women and the Constitution: Some Legal History and a New Approach to the Nineteenth
Amendment, 25 Rutgers L. Rev. 26 (1970)
JoEllen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA Women's L. J. 113 (1994)
Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)
Corrine McConnaughy, The Woman Suffrage Movement in America: A Reassessment (Cambridge 2013)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, and Federalism, 115 Harv. L. Rev. 847 (2002)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote: 1850-1920 (1998)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford J. Civil Rights & Civil Liberties (forthcoming)
Marjorie Spruill Wheeler, ed. One Woman, One Vote: Rediscovering the Woman Suffrage Movement (1995) (many excellent contributions inside this collection)
United States v. Susan B. Anthony, 11 Blatchford 200, 202 (1873)
Sally Roesch Wagner, ed. The Women's Suffrage Movement (2019)
Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2018)
Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev. 1456 (2001)
Tuesday, April 30, 2019
My latest article, More than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, forthcoming in a symposium edition of the Stanford Journal of Civil Rights and Civil Liberties along with articles by Felice Batlan and Lisa Tetrault.
The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.
This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.
This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.
Tuesday, March 5, 2019
Re-upping this for Women's History Month:
I've developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar.
This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting. It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was not illegal for a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s. The list goes on and on.
My scholarly goal is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books. But for now, at least, the history is being recovered and analyzed, and the transmission of that discovery has been started.
Women’s Legal History: A Reading List
Tracy A. Thomas
Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)
Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)
Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)
Understanding Feminist Legal Theory
Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)
Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)
Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)
Nancy Cott, The Grounding of Modern Feminism (1987)
Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)
Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)
EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)
Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)
Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)
Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)
Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)
Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)
Coverture, Marital Status in the Family, Marital Property
William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)
Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)
Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (2016)
Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)
Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).
Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)
Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651
Ken Burns, Not For Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)
Declaration of Sentiments, July 1848
History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Ellen DuBois, Feminism & Suffrage: The Emergency of an Independent Women's Movement in America, 1848-1869 (1978)
Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)
Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)
Minor v. Happersett, 88 U.S. 162 (1974)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)
Iron Jawed Angels (2004) (video)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)
Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
Muller v. Oregon, 208 US 412 (1908)
Adkins v. Children's Hospital, 261 US 525 (1923)
The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)
Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)
Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015)
Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)
James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)
Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)
Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)
Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).
Fred Strebeigh, Equal: Women Reshape American Law (2009)
Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)
Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)
TJ Boisseau & Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 YEARS OF THE NINETEENTH AMENDMENT: AN APPRAISAL OF WOMEN’S POLITICAL ACTIVISM (Lee Ann Banaszak & Holly J. McCammon, eds.)
Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)
Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)
Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (2010)
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)
Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)
Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)
Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)
Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)
Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work (2016)
Joanna Grossman, Nine to Five:How Gender, Sex, and Sexuality Continue to Define the American Workplace (2016)
Women in the Courts
Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)
Holly McCammon, The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (2012)
Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)
Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)
Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).
Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)
Bradwell v. State, 83 U.S. 130 (1872)
In re Lockwood, 154 U.S. 116 (1894)
Women’s Legal History Biography Project, at http://wlh.law.stanford.edu
Wednesday, October 24, 2018
Margaret Johnson, Feminist Judgments & #MeToo
The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate gender justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.
Narrative’s power is evidenced by the #MeToo movement, which resurged on October 16, 2017. People posted their personal stories of being subjected to sexual harassment or assault—often contradicting previously assumed or accepted narratives told by powerful people. Within twenty-four hours, there were more than twelve million #MeToo posts on Twitter, Facebook, and other social media platforms. And people listened to the en masse telling of how (generally) men had exercised the power and control of sexual assault, harassment or misconduct. The listening shifted power structures. In less than two months, these narratives led to the removal of influential men from their previously vaunted positions. ***
The Feminist Judgments Project questions the assumption that published court opinions are the only acceptable narrative of a judicially addressed conflict. In rewriting landmark opinions from a feminist perspective, the project brings to the surface untold, ignored, and suppressed alternative narratives of those conflicts. The project examines court opinions and rewrites them using the same facts and case precedent as the original opinion—but in a new light. That new light is feminist legal theory. With the new perspective, or what Professor Carolyn Grose calls “goggles,” in place, different facts and precedent may come into view.
Online Symposium on Feminist Judgments: Rewritten Opinions of the US Supreme Court, 94 Notre Dame Law Rev. Online (2018)
Rewriting Judicial Opinions and the Feminist Scholarly Project
Feminist Judgments and Women's Rights at Work
Feminist Judgments and the Rewritten Price Waterhouse
Revisiting Roe to Advance Reproductive Justice for Childbearing Women
How is Sex Harassment Discriminatory?
The Love in Loving: Overcoming Artificial Racial Barriers
Looking to the Litigant: Reaction Essay to Feminist Judgments: Rewritten Opinions of the United States Supreme Court
Extending the Critical Rereading Project
Feminist Judgments and the Future of Reproductive Justice
Feminist Judgments & #MeToo
Tuesday, October 9, 2018
Lawsuits Against Harvard and NYU Law Reviews Allege Illegal Racial and Gender Preferences for Editors and Articles Harm White Men
A Texas-based group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) sued the Harvard Law Review on Oct. 6 and the New York University Law Review on Sunday, claiming that their racial and gender preference policies violate federal anti-discrimination laws. The lawsuits come at a time when law reviews—the traditional bastion of white males—are celebrating the increased diversity of their membership ranks. Harvard Law School, for example, had its first black women editor-in-chief in 2017. The Columbia Law Review has its first black male editor-in-chief ever this year.***
The new suits allege that policies at both law reviews violate the rights of students by giving women and minorities an unlawful advantage in getting onto those sought-after organizations. Moreover, the suits allege policies that give a preference to articles written by women and minority scholars violate the rights of others hoping to place articles there.
“Harvard Law School and Harvard University are violating Title VI and Title IX by allowing the Harvard Law Review to use race and sex preferences when selecting its members, editors, and articles—in direct contravention of the Law School’s supposed non-discrimination policy,” read the Harvard Law Review suit.
Tuesday, June 19, 2018
Leading Law Scholars on MeToo and Sexual Harassment Law in Joint Collaboration of Yale and Stanford Law Reviews
The #MeToo movement has prompted a national dialogue about sexual harassment. This Companion Collection, launched in collaboration with the Stanford Law Review, aims to draw lessons from the #MeToo movement for activists, scholars, policymakers, lawyers, and judges. Across the two journals, the Collection offers twelve scholars’ insights on the ways sexual harassment produces and is produced by broader forms of inequality. Companion Essays can be found at the Stanford Law Review Online.
Articles in Yale Law Journal
Vicki Schultz, Reconceptualizing Sexual Harassment, Again
The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz's previous work to explore those institutional drivers of harassment.
Brian Soucek, Queering Sexual Harassment Law
Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World
Angela Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement
Tristin K. Green, Was Sexual Harassment Law a Mistake? The Stories We Tell
Essays in Stanford Law Review
Tuesday, December 19, 2017
Men Invited to Give Twice as Many Academic Talks as Women--and its not Because Women Turn them Down or That There Aren't Enough Qualified Women
Colloquium talks, where academics are invited to discuss their research, give speakers a chance to publicize their work, build collaborations with new colleagues, and boost their reputations. The talks can lead to promotions or job offers. They are big opportunities. But as Hebl’s student Christine Nittrouereventually found, they are opportunities that are predominantly extended to men.
Nittrouer and her team scanned the websites of the top 50 U.S. universities, as ranked by U.S. News, to build a database of every colloquium speaker from six departments: biology, bioengineering, political science, history, psychology, and sociology. They chose those six to represent a breadth of disciplines, and to exclude departments with either a very low or very high proportion of women. And they found that men gave more than twice as many talks as women: 69 percent versus 31 percent.
That result should not be too surprising. Several studies have shown that menoutnumber women among the speakers of several scientific conferences. There’s even a site that collates examples of all-male panels.
Why does this happen? Hebl accounted for several of what she calls “yeah-but explanations,” which underplay these figures as the result of anything other than discriminatory biases. For example, some might argue that men outnumber women in many fields, and so any equitable selection process would naturally lead to more male speakers. But the team estimated the full pool of available speakers by counting every professor in their six chosen fields at each of the top 100 U.S. universities. And even after adjusting for the relative numbers of men and women in the various fields or ranks, they found that men are still 20 percent more likely to be invited to give colloquium talks than women.
Skeptics might also argue that the problem is a generational one: Science, for instance, has historically been skewed toward men, and when colloquia committees decide whom to invite, they’re prisoners of that history. But if that were true, and the arc of academia was slowly bending toward equality, then when assistant and associate professors—who are younger and more junior than full professors—are selected to give talks, the gender difference should be narrower. Hebl’s team found no such trend. “The people in whom we should see more parity aren’t showing us more parity,” she says.“People sometime say: You know what? Maybe it’s the women,” says Hebl. “Maybe they don’t want to give talks, or they’re declining because they’re staying home with their kids.” That’s not what she found when she surveyed 186 professors who didn’t give colloquium talk at prestigious universities, but were in the same departments as those who did. Their answers clearly showed that women don’t decline colloquium invitations more than men, that they feel just as strongly that these talks are important for their careers, and that they’re no more likely to decline such talks because of family obligations.
“This dispels the widely held myth that women are less frequent speakers because they travel less,” says Jo Handelsman, from the University of Wisconsin at Madison. “Clearly, we need to test such assumptions before we absolve ourselves of culpability in creating biased slates.”
“Despite their presence in departments, women are not being asked to contribute to the intellectual development of their fields in the most coveted ways,” says Robin Nelson, from Santa Clara University, who has studied the prevalence of harassment in science. “This gendered discrimination minimizes women’s visible contributions to their fields, validating the idea that the greatest intellectual contributions are made by a few brilliant men.”
“We can account for all the yeah-buts,” Hebl says, “but we still have this bias, and we need to do something about it.”One solution is to give women more power over inviting colloquium speakers. The team found that when those committees are chaired by women, half of the invited speakers are women; that’s compared to just 30 percent when the committees are chaired by men.
Thursday, December 7, 2017
Call for Papers: American University’s Journal of Gender, Social Policy & the Law
You are invited to submit articles for possible inclusion in a special themed edition of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of sexual harassment and sexual assault. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender and social policy.
The Journal will consider articles that propose a new argument or perspective on a timely legal issue relating to sexual harassment or sexual assault. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars. Articles selected for publication in the Journal must include an analysis of U.S. law in addition to any international focus. All contributions are required to conform to the author policies available at: http://digitalcommons.wcl.american.edu/jgspl/policies.html#whocansubmit
While not an exhaustive list, the Journal encourages authors to submit articles on any of the following topics:
● Institutional responses to sexual assault (e.g., schools, universities, the military, and prisons)
● Sexual assault in the workplace
● Statutory limitations in sexual harassment and sexual assault cases
● Selection of impartial venues
● The Department of Education Q&A on Campus Sexual Misconduct
● Judicial discretion and sentencing requirements
Deadlines for Submission:
Contributions for this special edition must be submitted by January 5, 2018. All submissions must include the article, a resume/CV, and contact information for the author(s).
Please direct questions and final submissions to the Journal Senior Articles Editors: Sahar Ahmed and Kathryn Suma (email@example.com).
Thursday, October 26, 2017
SSRN is pleased to announce WGSRN, our new Women’s & Gender Studies Research Network, where researchers in women’s and gender studies and related interdisciplinary areas can share ideas and other early-stage research. Users can post preprints and working papers and can quickly upload and read free WGSRN papers, spanning subject areas including gender in the global research landscape, feminist methodology, theory, and philosophy, women and law, politics and justice, and several other growing topics.
Join our SSRN team on November 2 at 11a.m. to 11:30a.m. EDT for an informative webcast on the interdisciplinary nature of Women’s & Gender Studies and how sharing early research makes a difference can change the world.
Wednesday, September 13, 2017
I have just published the edited collection, Women and the Law (Thomson Reuters 2017 ed.). This annual reference book collects the leading scholarship in the field of women and law from the prior year -- kind of a "greatest hits" of law review scholarship on litigated topics in this field.
This year's articles:
A. Violence Against Women: The Campus Sexual Assault Debate
Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kan. L. Rev. 891 (2016)
Jacob Gersen & Jeannie Suk, The Sex Bureucracy, 104 Cal. Law Rev. 881 (2016)
Deborah L. Brake, The Trouble with "Bureaucracy", 7 Cal. L. Rev. Online 66 (2016)
Suzanne B. Goldberg, Is There Really a Sex Bureaucracy?, 7 Cal. L. Rev. Online 107 (2016)
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. Forum 281 (2016)
Katharine K. Baker, Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, 64 Kan. L. Rev. 861 (2016)
Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kan. L. Rev. 963 (2016)
Aya Gruber, Consent Confusion, 38 Cardozo L. Rev. 415 (2016)
Eric R. Carpenter, Patriarchy, not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. 225 (2017)
B. Gendered Immigration
Joanna J. Kallinosis, Refugee Roulette: A Comparative analysis of Gender-Related Persecution in Asylum Law, 6 DePaul J. Women, Gender & L. 55 (2017)
Blaine Bookey, Gender-Based Asylum Post-Matter of ARCG: Evolving Standards and Fair Application of the Law, 22 Southwestern J. Int'l Law 1 (2016)
C. Reproductive Rights
Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L.J. Forum 149 (2016)
Saru M. Matambanadzo, Reconstructing Pregnancy, 69 SMU L. Rev. 187 (2016)
D. Women in the Workplace
Joanna L. Grossman, Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law, 95 B.U. L. Rev. 1029 (2015)
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Georgetown L.J. 559 (2017)
Jennifer Bennett Shinall, The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, 101 Minnesota L. Rev. 1099 (2017)
E. Feminist Legal Theory
Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016)
Stephanie Bornstein, Unifying the Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L. Rev. 919 (2016)
Jamie R. Abrams, Debunking the Myth of Universal Male Privilege, 49 U. Mich. J. L. Reform 303 (2016)
Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 Boston College L. Rev. 1287 (2016)
For the list of articles from the 2016 editions of Women and the Law, see here.:
Tuesday, April 18, 2017
Jane Murphy & Solangel Maldonado, Reproducing Gender and Race Inequality in the Blawgosphere, in The Fate of Legal Scholarship (forthcoming Cambridge Press)
Abstract: The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this emerging form of scholarship. Finally, we offer suggestions for reversing these trends and creating a more inclusive blogosphere and enriching its potential for lively, informed scholarship.
III. Gender and Legal Blogging: Why Don’t More Women Promote Their Scholarship Through Blogging?
Given all these benefits [of blogging], you would expect to see a broad and diverse range of law faculty bloggers, including a high percentage of women blogging on these oft cited, highly visible legal blogs. The opposite is true. While women are more active participants than men in social media generally and on some legal blogs, they are underrepresented in these highly rated law-related academic blogs.
The relative lack of female voices in the upper echelons of the legal blogosphere may be traced to gender patterns in traditional legal scholarship. A variety of studies have documented the gender disparity in law review publication.
Commentators have suggested a number of possible explanations for women’s underrepresentation in scholarship. They include the fact that women, overall, have been teaching in law schools for fewer years than men, they appear in fewer numbers in highly ranked schools, and they tend to be under represented in subjects like Constitutional Law that appear more frequently in prestigious law journals. And just as in traditional scholarship, it appears that the subjects most often discussed in the blogs viewed as most scholarly---Constitutional Law, Civil Procedure, Criminal Law—are subjects taught more often by men. While there are blogs focusing on Family Law, Trusts and Estates, and Feminist Jurisprudence and other areas where female scholars blog in greater numbers, these blogs do not have the visibility of the highly rated blogs.
Women faculty also tend to have less time for scholarship given that they devote more time to serving law schools in committee work and student contact. And women, including law school faculty, still take on greater share of family responsibilities than their male counterparts
While the ease of blogging may offer new opportunities for female scholars, at least one commentator has concluded that “[T]he online world of legal scholarship may ultimately replicate many of the hierarchical and gendered structures found in the offline world of legal scholarship.” The reasons for this prediction echo those that have contributed to women’s inability to keep pace with men in the world of traditional scholarship. It begins with having the time to blog. Even with the shorter, more informal style of blogging, being a regular contributor to a blog takes time.
A more speculative and less quantifiable reason for women’s lagging behind in both traditional scholarship and blogging is what has become known as the “confidence gap” between men and women. This term refers to the research findings that conclude a “vast confidence gap that separates the sexes. Compared with men, women don’t consider themselves as ready for promotions, they predict they’ll do worse on tests, and they generally underestimate their abilities.”
When women do assert themselves and express strong points of view, they expose themselves to negative, gender-based comments. This may also account for female scholars’ reluctance to blog. An increasingly well-documented body of research indicates that women face a disproportionate amount of gender-based online or “cyber harassment” in social media.
Recommendations from the authors for change:
- First, we should all be alert to the racial and gender disparities and explore ways to address them. For example, bloggers on general interest blawgs can blog about these disparities and explain why we should all be concerned when the perspectives of women and minorities are absent.
- Second, bloggers should look beyond their informal networks when inviting faculty to blog and when selecting books to review for online symposia.
- Third, law schools should recognize the contributions that bloggers make and support faculty who wish to blog by counting it as scholarship or service.
Thursday, November 3, 2016
Here is the Introduction to the terrific line-up of articles in the just published collection, Women and the Law (Thomson Reuters 2016).
OVERVIEW AND INTRODUCTION
The theme of this year’s edition of Women and the Law is captured best by contributor Deborah Brake’s article entitled, “On Not Having it All.” The recent scholarly literature focuses on women’s so-called struggle to have it all and the difficult legal intersections of work and family. For decades, women have been encouraged to be Superwomen, to “bring home the bacon,” and “fry it up in a pan,” all while taking primary responsibility for family care. The structures of the law, workplace, and the family, however, have not accommodated this dual dynamic. Male workplace norms, long grounded in assumptions of workers’ exclusive dedication to a job, supported by the unpaid home labor of wives and mothers, create an inadequate foundation for women’s full and equal entry. Instead, we see women either “leaning in” to a 24/7 effort for workplace success, or “opting out” for a prioritization of family work. All of which assumes the privilege of profession and ignores the economic reality that most women work in paid labor because they have to, whether due to basic need, recession, or marital status.
The focus of the scholarly literature and the related litigation reflects the equivocation in women’s coping strategies and in critiques of the legal systems that perpetuate gender inequality. Much of the recent research overlaps the fields of employment, reproductive rights, and family law. This intersection of legal thought mirrors women’s interwoven realities of work, family, and life, where the private and public spheres are merged, and conflicts are not easily settled within one traditional body of law. Women’s first encounters with sex discrimination today are more often delayed to this point of work/family conflict. Suddenly pregnancy accommodations, maternity leaves, workplace norms, sexual harassment, implicit bias in hiring and promotion, and equal pay take on new meaning.
The scholarship reflects this lived experience. There is much discussion of pregnancy and maternity and how they interface with the workplace. These intersections reveal conflicts in the law the sex equality battle assumed had been resolved. Scholars are searching for new legal frameworks to address these situations, borrowing analogies from other equality, disability, and medical regimes. This recent scholarship rejects the private/public binary and the assumption that private family life of health, children, pregnancy, and relationship exists isolated from the workplace. And it pragmatically searches for alternative theories and solutions that can make a meaningful difference to women’s lives.
Wednesday, November 2, 2016
I have just published the annual edition of Women and the Law (Tracy A. Thomas, ed. Thomson 2016). This is an edited collection of some of the "greatest hits" in scholarship affecting women's rights published over the last year. The book reprints the articles as a collection as a resource book intended for practitioners to stay current on developing ideas and for academics to appreciate the breadth and depth of working theories.
Table of Contents
Foreword, On Not Having it All, Tracy A. Thomas
Part A Reproductive Rights
Chapter 1 Abortion and the “Woman Question”: Forty Years of Debate, Reva B. Siegel
Chapter 2 Roe as We Know It, Cary Franklin
Chapter 3 Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty, Mary Ziegler
Chapter 4 Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement, L. Camille Hébert
Part B Feminism and the Family
Chapter 5 Marriage Equality and the “New” Maternalism, Cynthia Godsoe
Chapter 6 Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, Rona Kaufman Kitchen
Chapter 7 The Bad Mother: Stigma, Abortion and Surrogacy, Paula Abrams
Chapter 8 The Fourth Trimester, Saru M. Matambanadzo
Part C Violence Against Women
Chapter 9 For the Title IX Civil Rights Movement: Congratulations and Cautions, Nancy Chi Cantalupo
Chapter 10 Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, Elizabeth Katz
Chapter 11 Constrained Choice: Mothers, the State, and Domestic Violence, Rona Kaufman Kitchen
Part D Women in the Workplace
Chapter 12 Taking Sex Discrimination Seriously, Vicki Schultz
Chapter 13 On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, Deborah L. Brake
Chapter 14 Employment Discrimination Class Actions after Wal-Mart v. Dukes, Michael Selmi and Sylvia Tsakos
Part E Feminist Legal Theory
Chapter 15 Review Essay: Why (Re)Write Judgments?, Heather Roberts and Laura Sweeney
Chapter 16 Domestic Disorders: Suffrage and New York's Constitutional Convention of 1867, Felice Batlan
Chapter 17 Marriage (In)Equality and the Historical Legacies of Feminism, Serena Mayeri
Chapter 18 Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey, Gina Viola Brown and Andrea Kupfer Schneider
Thursday, September 1, 2016
Roman, Hannah. Foster parenting as work. 27 Yale J.L. & Feminism 179-225 (2016). [H]|[L]|[LA]|[W]|[WN]
Elengold, Kate Sablosky. Structural subjugation: theorizing racialized sexual harassment in housing. 27 Yale J.L. & Feminism 227-286 (2016). [H]|[L]|[LA]|[W]|[WN]
Abrams, Jamie R. The feminist case for acknowledging women's acts of violence. 27 Yale J.L. & Feminism 287-329 (2016). [H]|[L]|[LA]|[W]|[WN]
Nicolas, Peter. Fundamental rights in a post-Obergefell world. 27 Yale J.L. & Feminism 331-361 (2016). [H]|[L]|[LA]|[W]|[WN]
Monday, July 25, 2016
Why? Is it confidence? production? specialization?
A new study led by sociologists at Stanford University and uploaded to the Arxiv preprint server shows that, since the 18th century, male academics cite their own papers on average 56 percent more than their female counterparts. And although you might expect this trend to level off as women occupy more tenure track positions and publish more papers, the opposite appears to be true: In the past two decades, the rate of self-citation among men was 70 percent higher than that of women....
An increased propensity to point to one’s own work—“manciting,” if you will—is no small thing when the number of citations a paper has is often used as a proxy to measure a scientist’s importance by both peers and employers....
Self-citation, or referencing a work that has an author in common with your own paper, makes up nearly 10 percent of total citations across all 1.5 million papers on the academic database JSTOR, which the researchers used for their study. King noted that a previous study looking at over half a million scientific papers concluded that each self-citation leads to nearly three additional total citations of an author’s work over the next few years, due to increased visibility—meaning that pointing people to your own work can have a multiplicative effect.
“Women aren't getting the credit from themselves, or the credit that accrues to them from others, and that's a pretty significant gap,” said King
The researchers speculate that men may self-cite more because they tend to evaluate their own abilities more positively than women, and because women may face a social penalty for self-promoting....
King says male academics tend publish more papers, possibly leaving them with more work to cite. And men also tend to be more specialized, meaning that with a narrower range of literature available they have no choice but to point to their own work.
Saturday, April 23, 2016
She is a feminist to her bones, and gives no quarter to the kind of historical relativism that ringfences the brutality of the past as something natural and unremarkable, like eating songbirds. “It’s very hard to get positive female role models in the history of the Roman empire. You think you’ve got one, and then, oh no. She’s been raped. And killed herself. If you’re going to remove the sexual violence, you cannot tell the story of Rome.”She is resolute on her purpose in public life, and has no qualms about the distinction of scholarship: “What is the role of an academic, no matter what they’re teaching, within political debate? It has to be that they make issues more complicated. The role of the academic is to make everything less simple.”