Wednesday, June 29, 2022

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

June 29, 2022 in Constitutional, Family, Legal History, Theory | Permalink | Comments (0)

Friday, June 24, 2022

Developing a Theory of Institutional Betrayals as Actionable Sex Discrimination under Title IX

Emily Suski, Institutional Betrayals As Sex Discrimination, 107 Iowa L. Rev. (2022)  

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe than those resulting from the original sexual harassment. Further, schools do not passively cause institutional betrayals; they impose them in three affirmative ways: Schools punish students for their sexual harassment, blame them for it, and communicate an automatic, default disbelief of students’ harassment.

Because Title IX’s statutory mandate is broad—it prohibits sex discrimination without limitation—courts could recognize as sex discrimination the institutional betrayals that schools impose on students because of their status as survivors of sexual harassment. None of the three extant judicially created forms of sex discrimination under Title IX, however, has the capacity to meaningfully do so. When schools impose institutional betrayals, therefore, courts find that they do not violate Title IX.

To remedy this jurisprudential failing, this Article develops a theory of institutional betrayals as a new form of sex discrimination under Title IX. Drawing on empirical research on institutional betrayals, this theory contends that when schools impose institutional betrayals, they knowingly injure students because they have suffered gender-based harm. This Article also offers a framework for evaluating this new type of sex discrimination that would compel courts to assess institutional betrayals as sex discrimination. With such changes, Title IX jurisprudence would not only effectively recognize institutional betrayals as sex discrimination but also remedy their harms and better fulfill Title IX’s protective purpose.

June 24, 2022 in Education, Theory | Permalink | Comments (0)

Monday, June 20, 2022

Feminism's Problematic Connection with Celebrity Culture

Susan Faludi, Op-ed, NYT, Feminism Made a Faustian Bargain with Celebrity Culture. Now Its Paying the Price

 

The ruination of Roe and the humiliation of Ms. Heard have been cast as cosmic convergence, evidence of a larger forced retreat on women’s progress. “Johnny Depp’s legal victory and the death of Roe v. Wade are part of the same toxic cultural movement,” a Vox article asserted. “These examples may seem disparate, but there’s an important through line,” a USA Today reporter wrote, citing academics who linked the Alito draft opinion, the Depphead mobbing and, for good measure, the “public consumption” of cleavage at the Met Gala (held the same night the Supreme Court draft leaked): “This is backlash.”

 

Backlash it may be. Even so, putting the pillorying of Ms. Heard in the same backlash-deplorables basket as the death rattle of Roe is a mistake. Lost in the frenzy of amalgamation lies a crucial distinction. There’s a through line, all right. Both are verdicts on the recent fraught course of feminism. But one tells the story of how we got here; the other where we’re headed. How did modern feminism lose Roe v. Wade? An answer lies in Depp v. Heard.***

 

Using celebrity and hashtag feminism is a perilous way to pursue women’s advancement because it falls victim so easily to its own tools and methods. In Ms. Heard’s case, her ex-husband turned #MeToo’s strategy against itself. Mr. Depp claimed victimization because he’s a money-generating personality — he could be de-famed because he’s famous. And his massive (and vicious) fan mobilization on social media (nearly 20 billion views for #JusticeForJohnnyDepp on TikTok by June 2) was overwhelming, even by #MeToo standards. By contrast, #JusticeForAmberHeard had about 80 million views on TikTok in the same period.

 

Celebrity representation of feminism is a double-edged sword. If an individual embodies the principle, the principle can be disproved by dethroning the individual. In that way, Ms. Heard became both avatar and casualty of celebrity feminism. When she took the stand, she brought the modern incarnation of the women’s movement into the dock, too, and mobilized those who would see it brought down. If an ambassador for women’s rights wasn’t credible, Ms. Heard’s mob of haters was quick to conclude, then the movement wasn’t, either. No need to fret over those legions of unfamous women who may now think twice before reporting domestic violence.

Coupling the fortunes of feminism to celebrity might have been worth it if it had led to meaningful political victories. But such victories are hard to achieve through marketing campaigns alone, as the right wing understands.

June 20, 2022 in Gender, Media, Pop Culture, Theory | Permalink | Comments (0)

Monday, June 13, 2022

The Effectiveness of Dispute Resolution for Gender Discrimination Claims

Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation 

This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.

The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.

This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.

June 13, 2022 in Business, Courts, Equal Employment, Legal History, Theory | Permalink | Comments (1)

Bringing Feminist Theory to Study the Moral Rights Protections of Copyright Law

Carys Craig & Anupriya Dhonchak, Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution, Research Handbook on Intellectual Property and Moral Rights, Ysolde Gendreau (ed), Edward Elgar (Forthcoming)

The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails.

This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.

June 13, 2022 in Business, Technology, Theory | Permalink | Comments (0)

Friday, June 10, 2022

Recognizing and Crediting the Invisible Labor of Women Law Professors of Color

Ederlina Co, Weathering Invisible Labor, 51 Southwestern Law Review 258 (2022)

Professor Meera Deo’s Unequal Profession: Race and Gender in Legal Academia powerfully demonstrates how the legal academy has adopted many of American society’s social hierarchies as they relate to race and gender. Inspired by Unequal Profession and using a Critical Race Feminism framework, this Essay centers on women of color professors and the problem of invisible labor in legal academia.

Although for many women of color professors invisible labor involves a labor of love, this Essay contends that the legal academy’s unwillingness to recognize it in a meaningful manner marginalizes women of color professors, devalues how important invisible labor is to law students, law schools, and the legal profession, and perpetuates a race-gender institutional bias. This Essay recommends steps that law school administrators and allies can take immediately to recognize invisible labor but also suggests that the time has come for the legal academy to begin to reexamine how it values “service” more broadly.

June 10, 2022 in Books, Law schools, Race, Theory, Women lawyers | Permalink | Comments (0)

Friday, June 3, 2022

Using Private Law of Contract as a Vehicle for Social Change for Gender Equality

Susan Chesler, Using Private Law as a Vehicle for Social Change: A Feminist Approach.

 Even though contracts are so embedded in individuals’ personal and professional lives, rarely (if ever) do we think of contracts as being a vehicle for social change. To effect legal change that addresses societal injustices, we generally rely on our legislative bodies and common law system. In this essay, I argue that private law – by way of contract drafting – should be considered an additional vehicle for seeking and obtaining social change. While it’s easy to envision how contract drafting can be effectively used to create immediate, positive impacts on the transacting parties themselves, contract drafting can also be used as a vehicle for broader societal change. Since performance of the legal obligations of a private contract often affects other individuals who are not parties to the agreement, it follows that the way those private contracts are drafted may improve their circumstances as well. Additionally, while a single individual may lack bargaining power to negotiate the most favorable of contract terms for themselves, groups of individuals – such as labor unions -- may yield great power. And some individuals by virtue of their resources or position can yield substantial power in contracting favorable contract terms, even with more powerful entities. Contract drafting choices also have a direct impact on the way the common law is created in the judicial arena and thus its reach extends beyond the transacting parties. In this essay, I argue that the use of the same or similar contract drafting language in numerous unrelated contracts can have a significant impact and can effectively be used to address societal injustices.

As an illustration of the powers of contract drafting, this essay provides concrete examples of how a feminist approach to contract drafting can be used to eliminate, or at least limit, gender inequality. By applying a feminist perspective to the drafting of employment and premarital agreements, I demonstrate how contract drafting choices can not only lead to positive changes for the contracting parties, but can also lead to broader social change. While advocating for change through legislative and judicial pathways will likely remain the primary avenues for challenging societal injustices, this essay aims to show why contract drafting can also be used as a vehicle for change.

June 3, 2022 in Business, Equal Employment, Family, Gender, Theory | Permalink | Comments (0)

Wednesday, June 1, 2022

Reimagining Gender Through British Equality Law Using Paths from Religion and Disability Law

Flora Renz & Davina Cooper, Reimagining Gender through Equality Law: What Legal Thoughtways do Religion and Disability Offer?, Feminist Legal Studies, 2022

British equality law protections for sex and gender reassignment have grown fraught as activists tussle over legal and social categories of gender, gender transitioning, and sex. This article considers the future of gender-related equality protections in relation to ‘decertification’ – an imagined reform that would detach sex and gender from legal personhood. One criticism of decertification is that de-formalising gender membership would undermine equality law protections. This article explores how gender-based equality law could operate in conditions of decertification, drawing on legal thoughtways developed for two other protected characteristics in equality law: religion and belief, and disability, to explore the legal responses and imaginaries that these two grounds make available. Religious equality law focuses on beliefs, communities, and practices, deemed to be stable, multivarious, and subject to deep personal commitment. Disability equality law focuses on embodied disadvantage, approached as social, relational, and fluctuating. While these two equality frameworks have considerable limitations, they offer legal thoughtways for gender oriented to both its hierarchies and its expression, including as disavowal.

June 1, 2022 in International, Religion, Theory | Permalink | Comments (0)

Tuesday, May 31, 2022

Anti-Subordination Torts -- A Festschrift of Martha Chamallas's Groundbreaking Work

Scott Skinner-Thompson, Anti-Subordination Torts, 83 Ohio State L.J. (2022)  

In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.

But thanks to innovative scholars attentive to power disparities in the law and society, an ever-growing body of scholarship analyzes, critiques, and suggests reforms to tort law based on the racial, gender, ableist, socio-economic, and sexuality-based disparities or stereotyping assumptions that exist within the doctrine and its application. Professor Martha Chamallas’s scholarship has been at the vanguard of this important trend and it’s a joy to celebrate her ground-breaking work in this Festschrift, although a tall order to do it justice.

Her intellectual and moral leadership have helped us realize that tort law—no less than constitutional law, civil rights, or criminal law—is a context where power and identities play a critical role in determining whose lives will be valued, whose injuries will be remedied, and what injustices will be rectified. Or not. This work has implications not just for how tort law is interpreted and applied in courts, but also how it is taught in school. In fact, several of Professor Chamallas’s scholarly endeavors focus specifically on bringing these insights to bear on law school curriculum.

As detailed herein, her substantive contributions to tort scholarship and theory are manifold but include at the top of the list (my list, anyway): (1) critiquing the degree to which harms often (but not exclusively) associated with women are unrecognized or devalued in tort law, (2) unearthing the ways in which the injuries of racism have been ignored, and (3) articulating how constitutional equality principles might be used to reform some of the discriminatory practices of tort law.

All told, I suggest that Professor Chamallas has helped engender an anti-subordination approach to tort law. As characterized here, this anti-subordination approach to tort law does not just simply attempt to redress formal inequalities in doctrine or its application, putting people on formally equal footing in the eyes of the law. Rather, this approach moves the law in favor of prioritizing (with special solicitude) the injuries disproportionately inflicted on marginalized communities and, potentially, being mindful of (instead of ignoring) identity differences to create contextually sensitive rules that may level up those that have historically been subjugated or ignored.

May 31, 2022 in Gender, Theory | Permalink | Comments (0)

Tuesday, May 24, 2022

The Equal Protection Arguments in the Dobbs Abortion Case

Featured on the Legal Theory Blog is Reva Siegel, Serena Mayeri & Melissa Murray, On Equal Protection and the Dobbs Draft, on their article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Columbia J. Gender & Law (forthcoming).

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

 

Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.

 

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.***

 

Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

May 24, 2022 in Abortion, Constitutional, Legal History, SCOTUS, Theory | Permalink | Comments (0)

Monday, May 23, 2022

Free Exercise Arguments for the Right to Abortion

Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29 U.C.L.A. Women's Law J. (2022) 

The popular narrative of the relationship between religion and reproductive rights equates religious belief with opposition to abortion and the exercise of conscience with refraining from the provision of abortion care. The presumption that faith inevitably conflicts with support for reproductive rights is a chapter in a larger story—created and reinforced both legally and culturally —that links religious liberty to conservative views about sex, sexuality, and reproduction.

This Article demonstrates that this typical abortion tale, while well-worn, is one-sided. It traces the history of the claim that restrictions on abortion violate either the Free Exercise Clause or the Religious Freedom Restoration Act (RFRA). This claim asserts that laws that explicitly ban or curtail access to abortion burden pregnant people’s ability to make reproductive decisions that are guided by their sincerely held religious beliefs or burden healthcare providers’ ability to provide abortion care as dictated by their religious beliefs. This Article argues that recovering this lost history reveals a dual erasure: erasure of the fact that faith motivates or even requires people to provide or obtain abortions and erasure of the decades-long legal claim, present from the outset of the first sustained effort to challenge the constitutionality of laws criminalizing abortion in the late 1960s, that protecting the right to abortion is actually more consistent with religious-liberty principles than restricting it. There is a rich tradition of the clergy, the women’s movement, and religious organizations fusing free-exercise arguments with arguments about economic justice, dignity, and pregnant people’s ability to make choices about their lives and families.

The historic and normative groundwork laid in this Article illuminates what are now largely invisible concerns with curtailing not only abortion access but also reproductive healthcare access broadly and creates a more holistic, complete account of what it means to protect religious freedom in the reproductive-rights context.

May 23, 2022 in Abortion, Constitutional, Reproductive Rights, Theory | Permalink | Comments (0)

Thursday, May 19, 2022

The Cramped Parameters of "Liberty" in the Leaked Draft Dobbs Opinion

David Gans, The Framers Were Big Fans of Liberty, Unlike Samuel Alito

Alito’s opinion suggests that liberty is to be feared, not celebrated as a core feature of our constitutional heritage. “Liberty,” he insists, is a “capacious term” that could have hundreds of possible meanings, and he worries that the judiciary will engage in “freewheeling judicial policymaking” in the guise of protecting liberty. He insists that the Supreme Court should be extremely loath “to recognize rights not mentioned in the Constitution” for fear that the Supreme Court will “usurp authority that the Constitution entrusts to the people’s elected representatives.” Because liberty could mean anything, in his view, it means almost nothing.***

 

According to Alito, only the most overwhelming, centuries-old historical evidence—essentially the sort of historical grounding that rights in the Bill of Rights can point to—could possibly justify the protection of an unenumerated fundamental right. The right to abortion recognized in Roe v. Wade, he argues, spectacularly fails this test; extending his reasoning, so might the right of people of different races, or of the same sex, to marry—protected in Loving v. Virginia and Obergefell v. Hodges—and the right to use contraceptives protected by Griswold v. Connecticut, as others have pointed out. Alito’s opinion bulldozes a century of case law protecting fundamental rights to bodily integrity and marriage, and the right to decide for one’s own self whether, when, and with whom to form a family.

 

What fundamental rights have the kind of historical backing Alito seems to demand? What other fundamental rights can claim a historical lineage equivalent to rights in the Bill of Rights? Few, if any, would seem to measure up to the strict standard Alito lays out. That is not a bug, but a feature, of Alito’s approach. To Alito’s way of thinking, many of the rights we cherish as part of our heritage of liberty are not rights at all.

 

As future Supreme Court Justice James Iredell aptly observed, “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.” The Ninth Amendment, which provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” codifies that essential idea.

 

Alito’s basic move defies the Constitution. He disparages the idea that we have fundamental rights that are basic to bodily integrity, human dignity, and equal citizenship, simply because they are not mentioned in the text. He flouts the rule of construction the Ninth Amendment prescribes.

May 19, 2022 in Abortion, Constitutional, SCOTUS, Theory | Permalink | Comments (0)

Monday, May 16, 2022

Trauma as Inclusion

Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review.  It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion": 

Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.

May 16, 2022 in Human trafficking, Legal History, Legislation, Theory, Violence Against Women | Permalink | Comments (0)

Thursday, May 12, 2022

What SNL Got Right About Alito's Leaked Opinion

Slate, What Saturday Night Live Got Right About Alito's Leaked Draft Opinion

Just days after Politico published the leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health OrganizationSaturday Night Live opened with its own comedic analysis of the Supreme Court decision purportedly overturning Roe v. Wade. “Justice Samuel Alito explains that no woman has a right to an abortion, and, in fact, abortion is a crime,” a narrator explains, before highlighting several excerpts from the draft citing 13th century common law on punishments for ending a pregnancy after the “quickening” of a “foetus.”

 

The opening sketch then takes viewers back in time to dramatize the “profound moment of moral clarity” that Alito seems to believe should be the basis of our abortion laws in 2022. British actor Benedict Cumberbatch, in a mock medieval pageboy haircut, comes to a “revelation” about the need to criminalize abortion in an age of constant plague, disastrous hygiene, witch obsession, and flat-earth maps. The sketch brilliantly demonstrates the absurdity of reading a 21st century Constitution in light of a legal and scientific history most Americans would not embrace today.

 

The SNL skit posed an obvious question: Why would it make sense to rely upon 13th century law to decide something so important to half the population of the United States? It’s a question best answered by constitutional law scholars like myself. We all know Alito’s interpretive move—it’s called originalism or textualism—and it is full of theoretical complexity. For the most part, this is legal inside baseball. So why this lesson on originalism on SNL? And why now?

 

Because Alito’s leaked opinion in Dobbs was a bombshell. It takes up some of the most extreme rhetoric of the anti-abortion movement while citing, as SNL points out, centuries-old and outdated legal ideas. And so when people sat down to read the opinion, even the comedy writers at SNL saw what ordinarily the public pays no attention to: the absurdity of a constitutional methodology called originalism at work. 

May 12, 2022 in Abortion, Constitutional, Pop Culture, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)

Monday, May 2, 2022

Insuring Contraceptive Equity

Jennifer Hickey has published her article, Insuring Contraceptive Equity, in volume 17 of the Northwestern Journal of Law & Social Policy (2022). Jennifer Hickey is a postdoctoral fellow with the Vulnerability and the Human Condition Project at Emory University. The abstract previews: 

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

 

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.

 

This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.

May 2, 2022 in Pregnancy, Reproductive Rights, Theory | Permalink | Comments (0)

Thursday, April 21, 2022

Situating the Law of Menopause in the Broader Socio-Legal Context of Pregnancy and Menstruation

Emily Gold Waldman, Naomi Cahn & Bridget J. Crawford, Contextualizing Menopause in the Law, Harvard J. L. & Gender (forthcoming)

  “It is horrendous, but then it’s magnificent,” says one character about menopause in an episode of the 2019 Netflix comedy Fleabag. Her younger interlocutor is incredulous at this proclamation. That younger character, and even the audience, may be somewhat taken aback by this frank discussion. After all, menopause is not a subject that is commonly discussed, let alone praised. Whether among friends, acquaintances, or colleagues (fictional or not), silence about menopause is more likely the norm. This is true in the law, too. The law mostly ignores menopause.

The law’s silence about menopause is linked to a broader cultural silence about the inevitable consequences of the aging process. It is also linked to longstanding silence and stigma around the menstrual cycle. A growing menstrual advocacy movement, however, has begun to chip away at stigmas and shame surrounding menstruation, in the course of pursuing policy and legal changes that make menstrual products more affordable and available. This Article imagines a role for the law in addressing challenges faced by those transitioning to menopause, whether in the workplace or beyond. It considers why that has not yet occurred, and explores the possible contours of a future legal landscape.

To inform this analysis, the Article situates its discussion of menopause in a broader context: the socio-legal treatment of pregnancy, breastfeeding, and menstruation. By viewing the four reproduction-associated conditions or processes together, rather than in silos, it is possible to discern a hierarchy of favorable treatment, with breastfeeding and pregnancy at the top, trailed by menstruation, and with menopause at the bottom. The Article also highlights a connective thread across these processes: law’s abnormal/normal binary often maps uneasily onto them.

Ultimately, the Article argues that the law should move beyond individual one-off accommodations for “abnormal” manifestations of these conditions. The law should instead recognize and incorporate protections for the broad spectrum of what can be considered “normal” experiences. Such an approach challenges the abnormal/normal dichotomy and is necessarily part of a larger scholarly dialogue that challenges binary thinking about gender and disability. By chipping away at the stigma surrounding menopause, this Article seeks for menopause a socio-legal solicitude equal to the one that exists for breastfeeding and pregnancy and that is beginning to emerge for menstruation.

April 21, 2022 in Pregnancy, Reproductive Rights, Science, Theory | Permalink | Comments (0)

Wednesday, April 20, 2022

The Normative Question of Whether the Law Should be Sex Neutral

Doriane Lambelet Coleman, Sex Neutrality, 85 Law & Contemporary Problems (2022)

 This article closes out the volume on Sex in Law in which it appears with reflections on the normative question whether it would be best on balance if the law were to evolve to be sex neutral. Specifically, it considers whether—as some observers and policymakers have suggested—we would be better off if law could not see or act on the basis of sex, and if it prohibited regulated institutions from doing the same. Arguably, this move is the next logical step in the evolution of law’s treatment of sex from its historical use as a basis for ordering society according to the state’s general police powers to its increasingly limited modern use by both the states and the federal government as a basis for addressing discrimination and the differences that continue to stand in the way of sex equality.

The question whether—the biology and ubiquity of the taxonomy notwithstanding—the law should be sex neutral is both current and recurring. That is, we are pressed to consider it today by some of the same groups that have posed it in the past, including those that take one or more of these positions: Law that demands equality should express equality. The best way for the law to contribute to the dismantling of structural “isms”—including sexism—is by forcing neutrality. All forms of group-based affirmative action are inherently unjust. Gender minorities but also females are likely to fare better in the long run if sex is removed from any calculus that yields social goods. Unusual political bedfellows are the norm here, even as related questions about how sex is defined and what sexism is still fair game are front and center in the culture wars. As a result, the debates are more significant and disruptive than they were in earlier periods, an indicator of the kind of great social upheaval that tends to make for the development of new law in the Anglo-American tradition.

This article briefly summarizes the history of sex in law (Structural Sexism) and the reforms of the nineteenth and twentieth centuries (Sex Skepticism) before turning to the current moment in which these debates are taking place (Sex Neutrality). In this context, it describes and then counters the arguments in favor of sex neutrality on the grounds that sex is real, it is significant for individuals and the society in ways that matter to good governance, and it is precisely the law’s role to take such taxonomies into account in the fulfillment of its institutional mission. The article concludes with an effort to settle the terms on which disparately motivated groups might agree to pursue commonly held objectives.

April 20, 2022 in Gender, Legal History, Theory | Permalink | Comments (0)

Thursday, April 14, 2022

New Book on French Feminism, the Legacy of the Witch Hunts, and the Continuation of Misogyny Today

Book Review, NYT, A French Feminist Tells Us to Embrace Our Inner Hag, reviewing, Mona Chollet, In Defense of Witches: The Legacy of the Witch Hunts and Why Women are Still on Trial 

Catalonia’s left-leaning Parliament recently passed a resolution pardoning the hundreds of women executed as witches between the 15th and 18th centuries. A similar bill is making its way through the Scottish Parliament. Both were inspired by growing outrage about historical — and contemporary — femicide and by a post-MeToo impulse to honor women who were burned, hanged or drowned as heretics.

This same spirit of exoneration runs through “In Defense of Witches,” a thought-provoking, discursive survey by Mona Chollet, a bright light of Francophone feminism. Chollet celebrates not only the witches of the past, but also the so-called “witches” of today: independent women who have chosen not to have children, aren’t always coupled, often defy traditional beauty norms (letting their hair go gray), and thus operate outside the established social order. That’s especially true in France, which may celebrate the femme libre, but which, from its tax laws to its robust public day care, is built to promote the family and motherhood. It is also, not incidentally, a country where a certain vision of femininity supports the economy through the biggest beauty industry in the world.

Clearly, Chollet has struck a nerve. “In Defense of Witches,” her first book to appear in English, was a best seller when it came out in France in 2018. A Swiss-born journalist and an editor at Le Monde Diplomatique, she has grown a following with work that calls attention to sexism, the gender gap in salaries and the societal pressures placed on French women in a culture with clear ideas about how women are expected to look and act — and of course to make it all look effortless. Anglo-American women have long been obsessed by clichés of French femininity. (Today that’s perhaps best exemplified by the series “Emily in Paris,” in which a naïve American is inducted into the worldly ways of the French.) But in today’s real France, Chollet has emerged as a quiet revolutionary, pushing back against the clichés and the patriarchy that shapes them.***

“In Defense of Witches” explores how women who assert their powers are too often seen as a threat to men and society, how those who don’t bear children are too often seen as a disturbing anomaly and how women at middle age too often disappear. These days they’re not burned at the stake but sidelined at work by the insidious invisible hand of midcareer misogyny, or by standards of beauty that place a higher premium on youth, with women’s “expiry date” tied to their fertility. Sometimes, by choice or by circumstance, a woman becomes what Chollet calls a “femme fondue,” or dissolving woman, who becomes overwhelmed by “the service reflex” and disappears into motherhood or child care, losing her grip on the first person.

April 14, 2022 in Gender, International, Legal History, Theory | Permalink | Comments (0)

Moving Beyond a Simplistic Application of Intersectionality Theory in Analyzing Employment Discrimination Against Black Women

Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, Employee Rgts & Employment Policy J (forthcoming)

  It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and psychologically disabling consequences of such discrimination, judges have failed to develop a new analytic paradigm for addressing intersectional claims under Title VII. Likewise, Congress has failed to offer a legislative solution, and the Equal Employment Opportunity Commission provides scant guidance for employees, employers, and attorneys attempting to navigate these claims. Even the recent flurry of #MeToo-inspired state legislative reforms miss the opportunity to address this persistent problem. Despite vocal resistance to Critical Race Theory, the ongoing metoo movement and increased receptiveness to address systemic racism following the mass protests in 2020, make this an opportune time to renew our discussion of intersectionality and reshape the meager analytical framework of antidiscrimination law. This Article lays the foundation for future research and second generation law and policy proposals that will take crucial steps towards finally acknowledging and addressing the real discrimination Black women face.

April 14, 2022 in Equal Employment, Race, Theory, Workplace | Permalink | Comments (0)

Wednesday, April 13, 2022

Pornography, Feminist Theory, and Free Speech

Kate Greasley, Pornography and the Limits of Speech Act Analysis, forthcoming in New Directions in Jurisprudence (R. Chang & A. Srinivasan eds., OUP, 2022)

 

Some feminist philosophers have argued that harmful pornography is not mere speech, but, in the right conditions, constitutes the speech act of subordinating women. This chapter considers the ramifications of this speech act analysis for the standard liberal argument that pornography should enjoy protection from legal interference under the principle of free speech. It begins by setting out the putative normative significance of the view that pornography is the ‘illocutionary’ act of subordination, and not only speech that harms. This apparent significance inheres in the idea that free speech only protects expression as such, not harmful conduct carried out through communicative means. It then explores some reasons for which the speech act analysis might be thought to obscure a core thread of the feminist critique of pornography-as-speech, by acceding to, or even further entrenching, the double standard according to which pornography, but not some other harmful speech, is legally assimilated with its expressive content. I end by suggesting some ways in which the speech act analysis can bolster that feminist argument in legal and political terms, by placing the double standard of pornography’s protection into sharper resolution.

April 13, 2022 in Constitutional, Theory | Permalink | Comments (0)