Gender and the Law Blog

Feminist Legal Theory Sessions at Law & Society Meeting this Week

This week at the Law & Society Association annual meeting (by Zoom), the Feminist Legal Theory Collaborative Research Network will offer 26 sessions from May 26 to May 30.

Here is a listing and description of the FLT Program.

Download FLT-CRN events at LSA 2021

For more information about the rest of the Law & Society program, see Law & Society Conference 2021

New Book: Women and the Law (2020), Annual Edition of Selected Greatest Hits in Legal Scholarship on Women's Rights

I've just published the 2020 edition of Women and the Law (Thomson Reuters).  It is an annual edition of selected works on women and the law likely to be of interest to practitioners in the field.  Kind of a "greatest hits" if you will of the legal scholarship from the prior year.

Here is this year's Table of Contents:

Part A Special Issue: The Nineteenth Amendment

Chapter 1 More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Tracy A. Thomas

Chapter 2 The Nineteenth Amendment and the Democratization of the Family, Reva B. Siegel

Chapter 3 The Constitutional Development of the Nineteenth Amendment In the Decade Following Ratification, Paula A. Monopoli

Chapter 4 Thin and Thick Conceptions of the Nineteenth Amendment Right To Vote and Congress's Power To Enforce It, Richard Hasen and Leah M. Litman

Chapter 5 The “Welfare Queen” Goes to the Polls: Race Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Catherine Powell and Camille Gear Rich

Part B Women in the Workplace

Chapter 6 Sexual Harassment Litigation with a Dose of Reality, Diane P. Wood

Chapter 7 What's Reasonable Now? Sexual Harassment Law After the Norm Cascade, Joan C. Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, and Rayna Saron

Chapter 8 Beyond the Bad Apple—Transforming the American Workplace for Women After #MeToo, Claudia Flores

Chapter 9 Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, Orly Lobel

Part C Reproductive Rights

Chapter 10 The Continued Rise of the Reproductive Justice Lawyer, Leigh Creighton Bond and Monika Taliaferro

Chapter 11 Contracting Pregnancy, Rachel Rebouché

Part D Feminism and the Family 

Chapter 12 Unsexing Pregnancy, David Fontana and Naomi Schoenbaum

Chapter 13 Settling in the Shadow of Sex: Gender Bias in Marital Asset Division, Jennifer Bennett Shinall

Part E Violence Against Women

Chapter 14 Straight Outta SCOTUS: Domestic Violence, True Threats, and Free Speech, Jessica Miles

Chapter 15 Retraumatized in Court, Negar Katirai

Chapter 16 #MeToo and Mass Incarceration, Aya Gruber

Part F Theory

Chapter 17 Sex in Public, Elizabeth Sepper and Deborah Dinner

Chapter 18 Leveling Down Gender Equality, Tracy A. Thomas

Chapter 19 Engendering Trust, Deborah S. Gordon

Chapter 20 The Body Politic: Federalism as Feminism in Health Reform, Elizabeth Y. McCuskey

Bibliography: Gender and Law Scholarship in Japan

Mark Levin & Kallista Hiraoka, Gender and Law Scholarship in the Law in Japan Field: A Comprehensive Bibliographic Study, 21 Asia-Pacific Law & Policy J. 1 (2020)

This bibliography, inspired by a 1990 journal article by Professor Veronica Taylor titled, Teaching about Law and Society in Japan: Does Gender Matter?, 10 JAPANESE STUD. 47 (1990), and Professor Vera Mackie’s commanding body of work in this field of study [N.1], aims to offer a tool for students and researchers interested in issues relating to gender and law in Japan. We started this bibliography by compiling and snowballing from sources in Levin’s office collection and a variety of title word searches in legal journal databases. We shared our findings first to a select list of scholars who kindly shared feedback and advised us of missing items, and secondly, on SSRN, which also allowed us to obtain additional input. The bibliography contains more than 150 publications including monographs, book chapters, textbook materials, and journal articles from 1962 to 2019.

 

N.1 Vera Mackie, Equal Opportunity in an Unequal Labour Market: The Japanese Situation, 4 AUSTL. FEMINIST STUD. 97 (1989); Vera Mackie, Equal Opportunity and Gender Identity: Feminist Encounters with Modernity and Postmodernity in Japan, in JAPANESE ENCOUNTERS WITH POSTMODERNITY 95 (Jóhann Páll Árnason & Yoshio Sugimoto eds., 1995); VERA MACKIE, FEMINISM IN MODERN JAPAN: CITIZENSHIP,
EMBODIMENT AND SEXUALITY (2003).

Study Documents Disparity in Research Productivity during the COVID-19 Pandemic

Ruomeng Cui, Hao Ding & Feng Zhu, Gender Inequality in Research Productivity During the COVID-19 Pandemic" 

We study the disproportionate impact of the lockdown as a result of the COVID-19 outbreak on female and male academics' research productivity in social science. We collect data from the largest open-access preprint repository for social science on 41,858 research preprints in 18 disciplines produced by 76,832 authors across 25 countries in a span of two years. We find that during the 10 weeks after the lockdown in the United States, although the total research productivity increased by 35%, female academics' productivity dropped by 13.9% relative to that of male academics. We also show that several disciplines drive such gender inequality. Finally, we find that this intensified productivity gap is more pronounced for academics in top-ranked universities, and the effect exists in six other countries. 

Study Documents Disparity in Research Productivity during the COVID-19 Pandemic

Ruomeng Cui, Hao Ding & Feng Zhu, Gender Inequality in Research Productivity During the COVID-19 Pandemic" 

We study the disproportionate impact of the lockdown as a result of the COVID-19 outbreak on female and male academics' research productivity in social science. We collect data from the largest open-access preprint repository for social science on 41,858 research preprints in 18 disciplines produced by 76,832 authors across 25 countries in a span of two years. We find that during the 10 weeks after the lockdown in the United States, although the total research productivity increased by 35%, female academics' productivity dropped by 13.9% relative to that of male academics. We also show that several disciplines drive such gender inequality. Finally, we find that this intensified productivity gap is more pronounced for academics in top-ranked universities, and the effect exists in six other countries. 

Study Documents Disparity in Research Productivity during the COVID-19 Pandemic

Ruomeng Cui, Hao Ding & Feng Zhu, Gender Inequality in Research Productivity During the COVID-19 Pandemic" 

We study the disproportionate impact of the lockdown as a result of the COVID-19 outbreak on female and male academics' research productivity in social science. We collect data from the largest open-access preprint repository for social science on 41,858 research preprints in 18 disciplines produced by 76,832 authors across 25 countries in a span of two years. We find that during the 10 weeks after the lockdown in the United States, although the total research productivity increased by 35%, female academics' productivity dropped by 13.9% relative to that of male academics. We also show that several disciplines drive such gender inequality. Finally, we find that this intensified productivity gap is more pronounced for academics in top-ranked universities, and the effect exists in six other countries. 

New Study Shows Gender Impacts Scholarly Influence and Citation in Law

Caroline Osborne & Stephanie Miller, The Scholarly Impact Matrix: An Empirical Study of How Multiple Metrics Create an Informed Story of a Scholar's Work

Does gender impact citation and exposure?

a. Does gender impact citation?

Another important observation is that men are more likely to be in the frequently and significantly cited intervals than women. At the significantly cited level men are fourteen percent, on average, more likely to be cited. At the frequently cited interval men are eight percent, on average, more likely to be cited. This suggests that men have a citation advantage at both frequently and significantly cited intervals. These results are in contrast to another recent study that finds there is no gender citation advantage in legal scholarship. Christopher A. Cotropia and Lee Petherbridge, Gender Disparity in Law Review Citation Rates, 59 WM. & MARY L. REV. 771 (2018) (study exploring gender disparity in scholarly influence).

b. Does Gender impact exposure in an IR or on SSRN?

Gender provides an advantage in exposure to men at the frequently and significantly downloaded intervals with a twelve percent advantage to men in the frequently downloaded interval on SSRN. That advantage evaporates at the significantly downloaded interval on SSRN with men and women enjoying parity. The twelve percent advantage at the frequently downloaded interval is significant when recalling that the frequently downloaded interval is the interval with the greatest number of downloads and thus, arguably, the interval demonstrating the greatest impact. The absence of a difference in downloads between men and women on SSRN at the significantly downloaded interval was the anticipated result. As noted in the discussion on gender and citation, a 2018 study suggests that there is no gender bias in citations to legal scholarship. Id.

CFP Summer Feminist Legal Theory Series

SUMMER FEMINIST LEGAL THEORY SERIES

This summer, the U.S. Feminist Judgments Project, together with the Elisabeth Haub School of Law at Pace University and the William S. Boyd School of Law at the University of Nevada, Las Vegas, will host a new biweekly Summer Feminist Legal Theory Series. The series is coordinated by Bridget J. Crawford (Pace), Kathy Stanchi (UNLV) and Linda Berger (UNLV). It will meet biweekly online via Zoom on Wednesdays from 2:00pm-3:00 Eastern/11am-12:00pm Pacific, starting May 27, 2020 and running for six sessions.

The Call for Papers opens today and will close on May 20, 2020 at 5pm Eastern/2pm Pacific. If you are interested in presenting in the Summer Feminist Legal Theory Series, please send the following to [email protected], [email protected], and [email protected]:

1. Your name, title, and affiliation.
2. The paper title and an abstract of no more than 1,000 words.
3. Whether or not you already have a draft of the paper. (We expect to circulate a draft of each paper—at least 10 pages—a week in advance of each talk.)
4. Whether or not the paper has been accepted for publication.
5. A list of any of the Wednesday dates that you would not be available to present, or a statement that any Wednesday in that date range would work for you.

Sessions will take place on these dates:

• May 27, 2020
• June 10, 2020
• June 24, 2020
• July 8, 2020
• July 22, 2020
• August 5, 2020

In selecting papers, preference will be given to papers that are in draft form, unpublished and on topics of general interest to a wide range of scholars. Papers can involve any domestic or international issues of interest to feminist scholars. The topics can be theoretical in nature or represent applications of feminist legal theory. Preference will be given to topics of the widest range of interest and applicability. Papers are welcome, but not required, to relate in some way to feminist influences on judicial reasoning and opinion-writing. Speakers will be strongly encouraged to limit their prepared remarks to 20 minutes, to allow ample time for questions and discussion.

Attendees from all parts of the academy with a verified academic email address are welcome to attend any and all sessions, regardless of whether you are selected to present a paper. Preregistration for all participants is required here. All attendees including speakers must register. Attendees need to register only once and then can attend any of the sessions in the summer series.

LSA Announces Prize to Article on the Nordic Model of Criminalizing the Purchase, Rather than the Sale, of Sex

LSA Honorable Mention Prize

Niina Vuolajarvi is a Mellon/ACLS dissertation fellow at the Department of Sociology at Rutgers University, and a visiting PhD student at the Gender and Sexuality Studies Program at Princeton University. Her research focuses on technologies and cultures of governance, migration, sexuality and gender and precarization. Her article “Governing in the Name of Caring—the Nordic Model of Prostitution and its Punitive Consequences for Migrants Who Sell Sex,” examines the Nordic Model, which aims to abolish commercial sex by criminalizing the buying of sexual services while not criminalizing the selling, as the aim is to protect, rather than punish, women. Her article argues that in a situation where the majority of people who sell sex in the region are migrants, the regulation of commercial sex has shifted from prostitution to immigration policies, resulting in a double standard in the governance of national and foreign sellers of sexual services.

 

Women Submitting Less to Academic Journals Should Scare You

Ms., Women Submitting Less to Academic Journals Should Scare You

The New York Times recently published a report on the impacts of COVID-19 on working moms.

 

“I feel like I have five jobs: mom, teacher, C.C.O., house cleaner, chef,” Sarah Joyce Wiley—chief client officer at a Massachusetts health services company—told the New York Times. “My kids also call me ‘Principal mommy’ and the ‘lunch lady.’ It’s exhausting.”

 

It’s not that men aren’t feeling stressed—but in heterosexual relationships, domestic responsibilities, more often than not, tend to fall on the mother.  As Andrea Flynn, director of health equity at the Roosevelt Institute, wrote in a viral op-ed for Ms.:

Three weeks ago, most of us—proud feminists and progressives—would have said we shared the burden of parenting relatively evenly. (I say relatively because research shows that, despite couples feeling they have egalitarian relationships, women still do the lion’s share of domestic labor.)

 

Why then, at times of crisis, do these imbalances emerge? 

 

Because structural sexism is always lurking just below the surface, ready to rear its ugly head and quickly upset any semblance of intra-household gender equity. 

 

The scary thing? The pressure of women to balance everything at home isn’t just going to go away once COVID-19 ends. Women’s careers are at sake. 

 

Recently, the Lily published a report on the impacts of COVID-19 on academia—specifically how it can impact tenure and future opportunities for women and men. 

 

[COVID-19] threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus? 

 

Prior to the pandemic, some studies showed that in recent years, the gender gap in academia—specifically related to tenure and doctorate degrees—was beginning to level out.

 

However, since the onset of coronavirus, editors have noticed a trend: Women academics are submitting fewer papers during coronavirus—with some fields like astrophysics reporting a 50 percent productivity loss among women. This could mean the gender gap in higher education is rearing its ugly head again. 

 

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” Gonzales told the Lily. “We don’t want to make that our benchmark [of deciding tenure or not].”

See also No Room of One's Own: Data Suggests COVID Negatively Affecting Women's, but Not Men's, Research Productivity

Call for Nominations Women in International Law Scholarship Prize

Women in International Law Interest Group

Scholarship Prize

2020-2021

Call for Nominations

            The Inaugural WILIG Scholarship Prize Committee (Lori Damrosch, Adrien Wing, Viviana Krsticevic, Nienke Grossman and Milena Sterio) invites you to submit a nomination for the first WILIG Scholarship Prize.

            The WILIG Scholarship Prize aims to highlight and promote excellence in international law scholarship involving women and girls, gender, and feminist approaches. Although scholars have utilized gender and feminist analyses in international law for at least a quarter of a century, such approaches frequently fail to permeate the mainstream of international legal scholarship and practice. This prize, awarded every two years, recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly.

            WILIG’s Scholarship Prize Committee invites all ASIL members to submit a single article, chapter, or book published in the last three years, for consideration. Self-nomination is welcome, as is nomination of others. The Committee will consider the following criteria in granting the award, and encourages nominators to include a brief cover letter describing how the submitted work meets these criteria:

• Appropriate Substance. The work utilizes a feminist lens or lenses, addresses a topic that disproportionately affects women and girls, or considers the impact of international law or policy on gender more broadly.
• The work addresses topics not covered by previous scholars, highlights diverse perspectives on law and policy, uses new theoretical or methodological approaches, or applies theoretical or methodological approaches to topics in new ways.
• The work demonstrates in-depth knowledge and expertise concerning a topic.
• The work has affected or has the potential to affect the way scholars and policy-makers view or address a particular topic or issue going forward.

Please email your cover letter and scholarly work to [email protected] with subject line “WILIG Scholarship Prize Submission” by June 15, 2020.  Questions about the prize can be emailed to [email protected].

The WILIG Scholarship Prize will be awarded at the WILIG Luncheon at the 2021 ASIL Annual Meeting.

No Room of One's Own: Data Suggest Covid-19 is Negatively Impacting Women's, but not Men's, Research Productivity

Early Journal Submission Data Suggest COVID-19 is Tanking Women's Research Productivity

It was easy to foresee: within academe, female professors would bear the professional brunt of social distancing during COVID-19, in the form of decreased research productivity.

 

Now the evidence is starting to emerge. Editors of two journals say that they’re observing unusual, gendered patterns in submissions. In each case, women are losing out.

 

Editors of a third journal have said that overall submissions by women are up right now, but that solo-authored articles by women are down substantially.

 

In the most obvious example of the effects of social distancing carving into women's research time, Elizabeth Hannon, deputy editor of the British Journal for the Philosophy of Science, wrote on Twitter that she’d received “negligible” submissions from women within the last month. “Never seen anything like it,” she added***

 

This doesn’t mean that COVID-19 "hasn’t taken a toll on female authors, though," Dolan and Lawless wrote, as women submitted just eight of the 46 solo-authored papers during this time. That’s 17 percent, compared to 22 percent of solo-authored papers in the larger data set.

 

"As a percentage change, that’s substantial," the editors said. "Even if women’s overall submission rates are up, they seem to have less time to submit their own work than men do amid the crisis.”

 

The revelations generated much chatter, including from gender studies scholars and women in all fields who are desperately trying to balance teaching and otherwise working from home with increased caregiving responsibilities. Those responsibilities include all-day minding of children due to school and daycare closures, homeschooling, and the cooking and cleaning associated with having one’s family at home all day, every day. Women are also spending time checking in with friends, relatives and neighbors.***

 

 It’s not that men don’t help with all this, or that they’re not also individually overwhelmed by work and family life. But women already juggled more domestic and affective, or emotional, labor with their actual work prior to the pandemic.

 

Female academics, as a group, also struggled more with work-work balance, as well: numerous studies show they take on more service work than men and are less protective of their research time, to their detriment.

 

The coronavirus has simply exacerbated these inequities by stripping away what supports women had in place to walk this tightrope, including childcare.*** “My husband is working full-time at home, as am I, and what I’m finding is for men, there is more of an expectation that he can be working all the time than there is for me.”***

 

“Silence and concentration are pivotal for my thinking and teaching,” she wrote. “This means I have less time for writing scientific articles.”

 

While she and her colleagues know they’re lucky to be employed and healthy at this time, it still feels “as if I am my own subject” in some work-life balance study.

 

Minello also expressed concern about when the crisis is over, both parents and nonparents “will participate together in open competition for promotion and positions, parents and nonparents alike.”

 

Just like academic fathers, nonparents don’t have it easy right now -- no one does. But, again, there are well-documented challenges that academic mothers, in particular, face. Those challenges, together, have been dubbed the motherhood penalty. And they’re laid bare right now.

Women Academics Submitting Fewer Papers to Journals During Coronavirus

Six weeks into widespread self-quarantine, editors of academic journals have started noticing a trend: Women — who inevitably shoulder a greater share of family responsibilities — seem to be submitting fewer papers. This threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus?

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” says Gonzales. “We don’t want to make that our benchmark.”

Leveling Down Gender Equality by Denying Remedies for Equal Protection Violations

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.) 

Female Academic Voices Are Missing from the Media, Even when their Work Isn't

It's Not Just Sarah Milov. Female Academics aren't Credited in the Media All the Time

“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.

 

Feminist Legal Theory CRN Engagement

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 7^th.  

 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 7^th.  

 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.   

 Many thanks,

 

Jamie Abrams 

Maxine Eichner

Clare Huntington

Daniela Kraiem

Elizabeth MacDowell

Maya Manian 

Seema Mohapatra

The 19th Amendment: A Reading List

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)

 

More than the Vote: The 19th Amendment as a Proxy for Gender Equality

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.

Women's Legal History: A Reading List

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

General

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 (7^th Cir. 1988)

Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)

Colonial Period

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)

 Suffrage

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)

Labor

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)

 Reproductive Rights

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)

Equality

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).

Pregnancy Discrimination

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)

 Employment

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

 

Feminist Judgments and #MeToo

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 and Rewritten Opinions of the US Supreme Court

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

Linda L. Berger, Kathryn M. Stanchi & Bridget J. Crawford, 94 Notre Dame L. Rev. Online 1 (2018)

 

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Feminist Judgments and Women's Rights at Work

Gillian Thomas, 94 Notre Dame L. Rev. Online 12 (2018)

 

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Feminist Judgments and the Rewritten Price Waterhouse

Sandra Sperino, 94 Notre Dame L. Rev. Online 17 (2018)

 

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Revisiting Roe to Advance Reproductive Justice for Childbearing Women

Elizabeth Kukura, 94 Notre Dame L. Rev. Online 20 (2018)

 

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How is Sex Harassment Discriminatory?

Noa Ben-Asher, 94 Notre Dame L. Rev. Online 25 (2018)

 

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The Love in Loving: Overcoming Artificial Racial Barriers

Justice Leah Ward Sears (Ret.) & Sasha N. Greenberg, 94 Notre Dame L. Rev. Online 28 (2018)

 

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Looking to the Litigant: Reaction Essay to Feminist Judgments: Rewritten Opinions of the United States Supreme Court

Claire B. Wofford, 94 Notre Dame L. Rev. Online 32 (2018)

 

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Extending the Critical Rereading Project

Gabrielle Appleby & Rosalind Dixon, 94 Notre Dame L. Rev. Online 37 (2018)

 

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Feminist Judgments and the Future of Reproductive Justice

Sarah Weddington, 94 Notre Dame L. Rev. Online 44 (2018)

 

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Feminist Judgments & #MeToo

Margaret E. Johnson, 94 Notre Dame L. Rev. Online 51 (2018)

 

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