Wednesday, October 6, 2021
Sally Kenney, Backlash Against Feminism: Rethinking a Loaded Concept, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds., Forthcoming).
Backlash is a reaction to real or perceived change leaving progressives worse off by catalyzing conservatives to oppose change by, changing their opinions to be more negative, holding opposing views more deeply, or propelling them to act violently. The claim that progressive social change has been counterproductive is an empirical one but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of pre-existing opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, the implicit baggage the concept carries outweighs its usefulness.
The Feminist Legal Theory Collaborative Research Network of the Law and Society Association
Global Meeting on Law & Society, Lisbon, Portugal & Virtual, July 13-16, 2022
Call for Papers – Friday, October 29 Deadline
Dear friends and colleagues,
We write to invite you to participate in panels sponsored by the Feminist Legal Theory Collaborative Research Network (FLT CRN) at the LSA-sponsored Global Meeting on Law & Society, July 13-16, 2022. Information about the conference (including registration and planning your visit) is at: https://www.lawandsociety.org/lisbon-2022-homepage. Please note that the meeting is going to be held later than usual.
The theme for the Global Meeting is Rage, Reckoning, & Remedy. Feminist legal theory should and does have a lot to say about all three topics and the urgency with which we confront them now – globally but amidst vast and escalating inequality and a crisis of rising hate, fascism, and illiberal policies across the globe.
In this context, we are especially interested in papers that bring a critical feminist lens to their topics and that embrace the international character of the conference. Such papers will address the intersectional, gendered aspects of their subjects.
The following non-exhaustive list is intended to provide examples of topic areas, and not to limit scholarly and creative engagement of feminist legal theory with the conference themes:
● Present-day inequalities caused by unacknowledged and unaddressed (or inadequately addressed) legacies of slavery and colonialism.
● Consequences of neoliberal economic and social policies amidst (so-called) globalization.
● World health and environmental crises such as HIV/AIDS, Covid 19, climate change, and military, police, and other pervasive violence against marginalized people and communities around the globe.
● Critiques of international law and human rights approaches and institutions.
● Rule of law, access to justice, and legal empowerment issues and approaches.
● Inequalities related to reproduction and reproductive technologies.
● Perspectives on exploitation and resistance movements.
● Transnational/International/Comparative feminist critiques of any topic.
We especially welcome proposals that would permit us to collaborate with other CRNs and that are (give the multidisciplinary character of LSA) multidisciplinary in approach. We strongly encourage colleagues from the Global South and indigenous colleagues to submit proposals.
Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while proposals may reference work that is well on the way to publication, we are particularly eager to solicit proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.
Per the LSA guidelines, there are several types of submissions:
1. Individual papers
2. Paper Sessions: Panels that are formed around a single theme. These consist of 4-5 paper presenters, 1 Chair and 1 Discussant (who can be the same person), and last 1 hour and 45 minutes.
3. Roundtables: These may be formed around a topic and consist of 4-8 participants, 1 Chair, and last 1 hour and 45 minutes.
4. Author Meets Reader (AMR): These are for scholarly books published in 2021. For more information, please see https://www.lawandsociety.org/author-meets-reader-newbooks- in-the-field/
LSA also encourages submission of other “creative” formats for this conference. If you have an idea that you think would work well in one of these formats, please let us know.
CRN PRIORITIES FOR THIS CONFERENCE
Individual paper submissions. The CRN gives preference this year to individual submissions. A committee of the CRN will assign individual papers to panels based on the subject. Our panels will use the conference format, which requires four papers, but we will continue our custom of assigning a chair for the panel and a commentator for each individual paper. As a condition of participating as a panelist, you must also agree to serve as a chair or commentator for another panel or participant. We will of course take into account your scheduling and topic preferences to the degree possible.
Pre-formed group submissions. Although we prefer individual paper submissions, we will consider pre-formed panels, roundtables, AMR sessions, and other group submissions that meet the following guidelines:
1. The presenters have not presented together at LSA before.
2. Junior colleagues are included.
3. A diversity of institutions are represented.
4. Interdisciplinary and international perspectives are included.
If you are already planning a conference session with at least four panelists and papers that you would like to see included in the Feminist Legal Theory CRN, please let the organizers know.
The duties of a chair are to organize the panel logistically, including registering it online with the LSA and moderating the panel. The chair will develop a 100–250-word description for the session and submit the session proposal to LSA before their upcoming deadline on November 10, 2021, so that each panelist can submit his or her proposal using the panel number assigned. Chairs will also be responsible for assigning commentators but may wait to do so until panels have been scheduled later this winter.
The duties of a commentator are to read a minimum of two papers and provide verbal comments as well as brief written (email is fine) comments.
SUBMISSION PROCESS AND GUIDELINES
Individual Papers: Please email your abstract, up to three key terms (e.g., International law, violence against women, criminal law), and whether you will be virtual to firstname.lastname@example.org with the Email Subject: Individual Paper Last Name.
Panels and Roundtables: Please email your abstract and up to three key terms (e.g., International law, violence against women, criminal law) and all proposal members, identifying chair and discussant and whether any member will be virtual to
email@example.com with the Email Subject: Panel Proposal or Roundtable Proposal Last Name.
Author Meets Reader Panels: Please email your book title and all panel members, identify chair and, whether any panelist will be virtual to firstname.lastname@example.org with the Email Subject: AMR Proposal Last Name.
Please remember that group proposals that are repeated from previous years, that are composed of scholars from a single institution, that contain no junior scholars and other forms of diversity may be rejected.
Be sure to first carefully read the LSA guidelines for submission formats here:
https://www.lawandsociety.org/types-of-submissions/. Please note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.
Please submit all proposals by Friday, October 29. This will permit us to organize papers into panels (and potentially other formats) and submit them prior to the LSA’s deadline on November 10. If we are unable to accept your proposal for the CRN, we will notify you by early November so that you can submit an independent proposal to the conference.
QUESTIONS OR COMMENTS
Please send any questions or comments to the CRN email address: email@example.com. Please do not send questions or submissions to individual committee members or in response to this email.
We look forward to the conference and hope you’ll join us in Lisbon or virtually to discuss our scholarship and connect with others doing work on feminist legal theory.
LSA Planning Committee
Cyra Akila Choudhury (co-chair)
Elizabeth MacDowell (co-chair)
Sheila Velez Martin
Monday, September 13, 2021
Goldburn Maynard, Jr. has posted his recent work Black Queers in Everyday Life on SSRN. This publication is forthcoming in 30 Tulane J. Law & Sex 129 (2021). The abstract previews:
I am using my Black queer identity as a starting point to consider the weaknesses I see in everyday conceptions of intersectionality. Do those who have been educated in the principles of intersectionality and who mean well apply them in online and personal conversations? Recent experiences have shown me that there is a disconnect, wherein even those individuals who know better will double-down on reified, essentialist notions of blackness that exclude the concerns of Black women, queer individuals, and other Black intersectional identities. Zero-sum perspectives are valued over coalitional appeals.
Maynard urges readers to think more critically about applying authentic and holistic commitments to intersectionality.
To what extent are we pushing our students and ourselves to interrogate their own privileges? More work needs to be done to figure this out, since stakes are so high. A lot of the potential interventions and solutions depend on what the reasons are for the resistance to intersectionality principles. A place to start is to explore some possible explanations for the phenomenon: (1) gaps in our teaching of intersectionality (e.g., not providing enough or the most illustrative examples); (2) a mismatch between the theory and some perceived reality that at times you do have to choose between identities (3) some resistance to theory in general because of its association with intellectuals and academia; (4) an almost inevitable reproduction of hierarchy that should be expected; and/or (5) real fears about the loosening of the Black coalition and its implications. I hope we move forward on this because microaggressions within minority communities are that much more painful and traumatic for the individual to recover from.
Wednesday, September 8, 2021
Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion
Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion. President Biden has called on Congress to act. House Speaker Nancy Pelosi has similarly called for action. And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021. It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment.
The Supreme Court too, has periodically suggested this option. For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).
Except that it might not be that easy. The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare. Congress must rely on a source of power specifically articulated in the Constitution.
Here are some options under the Supreme Court’s existing precedent. It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.
- Commerce Clause
Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act. Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).
The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case. In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause. It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance. Inactivity, the Court said, was not economic activity.
The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock. Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”
The Commerce Clause power also requires that a regulate activity be “economic.” This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison. While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity. The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.
The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power. The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause. Abortion services is an economic activity. It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.
The abortion context also seems more clearly interstate. With bans and restrictions on abortion, patients travel out of state to other providers. They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality. If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard. Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court. It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.
- Section 5 of the Fourteenth Amendment
A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment. This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion. But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary. Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court.
That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law. FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors. If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.
However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way. Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison.
Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs. In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality. The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct. In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished. It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation. In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.
The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right. This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt). These are rights that would not necessarily be struck down if Roe is overturned. There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion. There might also be an argument to connect to the provider’s right to work or profession.
A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination. Hibbs provides good precedential support here. In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process. See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).
- The Necessary and Proper Clause
Congress has also cited the Necessary and Proper Clause for authority to legislate abortion. The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case. The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.
- The Taxing Power
Following Sebelius, Congress could structure the abortion legislation as a tax. In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power. The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.
A Roe tax might tax the states which impose bans or regulations on abortion. That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.
- The Ninth Amendment
Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion. That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause. Another possible source of recognizing the right is the Ninth Amendment. In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution. A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment. See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020). The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.
 Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne. See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote). See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).
Wednesday, September 1, 2021
Amia Srinivasan, The Right to Sex: Feminism in the Twenty-First Century
Thrilling, sharp, and deeply humane, philosopher Amia Srinivasan's The Right to Sex: Feminism in the Twenty-First Century upends the way we discuss—or avoid discussing—the problems and politics of sex.
How should we think about sex? It is a thing we have and also a thing we do; a supposedly private act laden with public meaning; a personal preference shaped by outside forces; a place where pleasure and ethics can pull wildly apart.
How should we talk about sex? Since #MeToo many have fixed on consent as the key framework for achieving sexual justice. Yet consent is a blunt tool. To grasp sex in all its complexity—its deep ambivalences, its relationship to gender, class, race and power—we need to move beyond yes and no, wanted and unwanted.
We do not know the future of sex—but perhaps we could imagine it. Amia Srinivasan’s stunning debut helps us do just that. She traces the meaning of sex in our world, animated by the hope of a different world. She reaches back into an older feminist tradition that was unafraid to think of sex as a political phenomenon. She discusses a range of fraught relationships—between discrimination and preference, pornography and freedom, rape and racial injustice, punishment and accountability, students and teachers, pleasure and power, capitalism and liberation.
The Right to Sex: Feminism in the Twenty-First Century is a provocation and a promise, transforming many of our most urgent political debates and asking what it might mean to be free.
Thursday, August 19, 2021
Mary Keyes, Women in Private International Law
There has been almost no consideration of the position of women in private international law. There is very little published research applying a feminist analysis to, or even considering the position of women in, private international law. This field gives almost no attention to the particular interests, positions and experiences of women as subjects of the law, or the contribution of women as makers of the law. In the common law, private international law was largely developed in the 19th century, by male judges who were strongly influenced by commentary written exclusively by men. This chapter establishes that the apparently gender-neutral nature of private international law conceals profoundly ingrained assumptions about gender, in which the masculine is represented as a rational and sophisticated businessman, and the feminine is represented as a legally incapable wife. It then considers the gendered dimension of private international law in international family law, referring in particular to the regulation of international child abduction, international family property agreements, and international commercial surrogacy. Each of these examples demonstrates the differential impact of the law on women, indicating the need for greater awareness of and attention to gender. It concludes that while there have been some advances recently, particularly in terms of increased representation of women in making and commenting on private international law, there remains a great need for further research into the position of women as legal subjects and law-makers in this field.
Alissa Rubin Gomez, Mismeasure of Success, 94 St. John's L. Rev. (2021)
Using feminist standpoint theory, this essay explores the idea that solutions proposed by big law firms to retain women miss the mark because they are still framed from the viewpoint of a white man. This is not because the white male perspective is bad; it is simply not the lived experience of the women for whom the proposed solutions are intended. Reframing the measure of success using a feminist standpoint would have us reconsider whether the primary reason women leave big law firms is actually a “problem.” Instead, having multiple demands on one’s time outside work might be viewed as both normal and an indication of well-roundedness. Building workplace cultures using personal fulfillment as a baseline has the potential to make for happier workers who stay in their jobs longer, and in the time of COVID-19, we may just be at an inflexion point that makes such a culture shift possible.
The closing decades of the twentieth century witnessed an exciting surge in scholarly attention among legal academics to the legal status of women of color. Both traditional civil rights scholars and critical race theorists attempted to integrate into law and legal scholarship the experiences of minority women. This work gave rise to the theory of “intersectionality,” which posited that Black women share unique life experiences that differ from Black men or White women. The theory further suggested that this uniqueness makes (and/or should make) a difference in how legal scholars deconstruct and reconstruct law. Critical race feminism extended this critique beyond the experiences of Black women, focusing on how race, gender, and class interact for women of color within a system of white male patriarchy and racist oppression. Intersectionality and critical race feminism have provided fresh perspectives on the analysis of issues in many legal settings. The purpose of this symposium is to revisit the theoretical and practical possibilities of intersectionality and critical race feminism. The articles in this symposium issue, covering a wide range of topics, have brought to light substantive issues and intellectual tensions that will dominate future debates within critical scholarship and beyond. Together, they provide a compelling portrait of the future of intersectionality and critical race feminism.
Wednesday, August 4, 2021
Karen Engle, Vasuki Nesiah & Dianne Otto, Feminist Approaches to International Law
This chapter offers accounts of three feminist “success stories,” each of which has invoked a sense of crisis to call for carceral and militarized international legal responses. We argue that these projects have reinforced many dangerous aspects of both feminism and international law, as they have used a focus on harm to women – particularly sexual harm – to aid in the legitimization and extension of legal, military and economic institutional arrangements that exacerbate the precarity of marginalized individuals, communities, and states. Their use of crisis has participated in the crowding out of a variety of alternative feminist (and other) perspectives, particularly those that take aim at the often quotidian forms of violence based in the overlapping structures of colonialism, racism, gender normativity, and gross economic inequality. We contend that anti-imperial and sex-positive feminisms as well as queer theory offer important vehicles for challenging the dominant approaches. We gesture toward how they might even consider invoking crisis (such as the often everyday and unnoticeable crises of neocolonial, neoliberal, carceral, and militarized dimensions of global governance) to foster transformative feminist, queer, and redistributive ends.
Thursday, July 29, 2021
Jenna Sapiano, The Boundaries of Peace: A Feminist Analysis of International Mediation Processes
Griffith Law Review, Forthcoming
The assumption that peace mediation is gender-neutral reproduces and reinforces the already gendered aftermath(s) of war. Peace mediation is a multilayered conflict resolution mechanism that ranges from grassroots peacebuilding to high-level diplomacy. As a ‘language of peace’, international law has become foundational in high-level peace mediation processes and institutions. International legal feminist and queer theory are critical of international law for its gendered and heteronormative frameworks that reinforce the binaries of war/peace, masculine/feminine or heterosexual/homosexual. Global governance gender law reforms, such as the Women, Peace and Security agenda, are part of the institutional frameworks that guide peace mediation processes. High-level peace mediators are also members of an ‘epistemic community’ regulated by international and regional organizations. The article analyses how masculine and heteronormative international legal institutions and experts shape peace mediation’s already gendered processes and outcomes. The article concludes that contemporary peace mediation approaches must be rethought and that alternatives to the traditional peace table must be imagined.
Kimberly Houser & Jamillah Bowman Williams, Board Gender Diversity: A Path to Achieving Substantive Equality in the U.S., 63 William & Mary L. Rev. (forthcoming)
While the United States made history this year with Kamala Harris becoming the first woman, Black, and Asian Vice President, the country overall has been rapidly losing its status as a global power founded on democratic principles. This is in part due to the leadership’s active involvement in reducing the rights of women, Black people, and other marginalized groups. We use gender diversity on corporate boards as a comparative example, to examine the legal frameworks designed to promote equality in the EU and U.S.
While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States (U.S.) was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the U.S. from making inroads into positions of power. While legislated board gender diversity mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards with little progress. On September 30, 2018, however, California enacted a law that has stirred much controversy for requiring at least one woman to be on the boards of corporations headquartered in the state by 2020. Based on our analysis, the CA bill and other similar legislative efforts will fail without parallel constitutional action and cultural change in the United States.
We begin by examining the individual, institutional, and cultural reasons why the U.S. lags so far behind the rest of the industrialized world. We then discuss recent activism by powerful institutions such as NASDAQ and Goldman Sachs that may be signs of broader cultural change and receptiveness to positive action. Next, we conduct an analysis of the legislative, cultural, and constitutional factors that have helped the EU succeed in increasing board diversity. We conclude by offering a normative solution that can pave the way to achieving gender equality in the United States. Learning from the EU model, the U.S. must let go of the Equal Rights Amendment and adopt a Substantive Equality Amendment to the Constitution requiring positive action to facilitate laws enabling gender equality. This solution will have broad cultural impact outside of the board context and will help change the lived experiences and outcomes for women in the United Stated for generations to come. It will change the course of history.
Tuesday, July 27, 2021
APPLIED FEMINISM AND “THE BIG IDEA”
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Thirteenth Annual Feminist Legal Theory Conference. We hope you will join us for this exciting conference on Friday, April 8, 2022. This year, we aim to capture, develop, and disseminate cutting edge theorizing around issues of gender equity and intersectionality.
We are in a tumultuous period of history in which we are grappling with a global health pandemic and sharp political polarization, while also experiencing flourishing movements for racial and gender justice. This is a time for innovation and creativity — for highlighting ideas that create a more just society. We want to explore how feminist legal theory is responding and growing during this time and bridging toward a future of greater gender and intersectional justice. Thus, we seek submissions of papers that have “big ideas” about issues related to feminist legal theory and other critical legal theories from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, and Gloria Steinem.
To submit a paper proposal, by Friday, October 29, 2021, please complete this form and include your 500 word abstract: https://forms.gle/L4rdht7te3WuRTtPA We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, the form requests that you indicate if you interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 18, 2022. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Michele Gilman at firstname.lastname@example.org. For additional information about the conference, please visit law.ubalt.edu/caf.
Thursday, July 22, 2021
Anna High, Sexual Dignity in Rape Law, 33 Yale J. Law & Feminism (2021)
Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity”. Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive.
Tuesday, July 20, 2021
[M]ale violence against women....is a tool designed, as Jacqueline Rose writes in her new book, On Violence and On Violence Against Women, “to remind the girl or woman of what she is”—to gender her as female. For Rose ..., gender-based violence is not caused by sexual difference—neither attributes aggression to, for example, an excess of testosterone—rather it establishes the hierarchy of sexual difference.
Rose would ... add that ... violence is not the expression of a power they have, but of power they lack. ... As Rose would put it, he hits her to shore up his “fraudulent authority.”
Psychoanalysis has a word for this behavior, and it is “narcissism.” “Narcissism starts with the belief that the whole world is at your feet, there solely for you to manipulate,” explains Rose.
What is “fraudulent” about the authority of Stanleys everywhere is that it is rooted in denial. Women can and do commit acts of violence. But male violence interests Rose because it expresses the fundamental psychoanalytic mechanism of shame, projection, and denial. Boys and men are taught that masculinity means an absurd omnipotence, mastery, comfort, and prowess. They fail—how could they not?—to live up to that ideal. Many cannot tolerate their own vulnerability, which is coded as weakness, so they project vulnerability onto others, usually women; having disowned and disavowed it, they then try to destroy the woman who has come to represent (or embody) that vulnerability, through harassment, abuse, assault, rape, bullying, blows. The state colludes with this psychological and social project in policies that limit reproductive freedom, cruelly degrade asylum-seekers, and refuse trans people self-determination, to name only a few examples.
Harassment and sexual abuse are not, therefore, “the unadulterated expression of male power and authority”; quite the opposite. Violence against women has a frantic quality; it is something that one can only resort to; it protests too much. Which is not to say that it doesn’t hurt to be hit. Fraudulent authority is often deadly.
Those who have read Rose’s previous books will be somewhat familiar with the contours of this analysis. On Violence and On Violence Against Women takes up a subject she has not covered before—the dynamic that has lately been termed “toxic masculinity”—but it does so according to a conceptual approach she has been refining for decades.
A Feminist Rethinking of Applying Negligent Infliction of Emotional Distress to Nonconsenual Sex Videotaping
Lisa Pruitt, Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments: Rewritten Torts Opinions,
Commentary on Cristina Carmody Tilley's Rewritten Opinion in Boyles v. Kerr (Feminist Judgments: Rewritten Torts Opinions, Cambridge University Press 2020, Forthcoming)
This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.
Using Vulnerability Theory to Address Family and Elder Caregiving and the State's Resistance to Support
Jessica Dixon Weaver, The Perfect Storm: Coronavirus and The Elder Catch,
96 Tul. L. Rev. __ (forthcoming 2021)
The global COVID-19 pandemic has exacerbated an already growing phenomenon: the Elder Catch. This term defines the caregiving dilemma faced by adults who are simultaneously working, caring for elder parents or relatives, and in some cases, raising children at the same time. Few scholars have explored how the state uses the traditional family framework to resist providing comprehensive government support for elder care. Women typically bear the brunt of caregiving costs within the family and become physically and mentally vulnerable in the process. COVID-19 has pushed women caught in the Elder Catch to the brink while sheltering at home, and has illuminated the disparities between genders regarding the high level of expectation society places on the availability of unpaid family caregiving. Coronavirus has also highlighted racial inequities for African American and Latino families, where female caregivers are more likely to be essential workers forced to work outside the home, and therefore more likely to contract and spread the virus within their family and surrounding communities. This article uses vulnerability theory to address the caregiving void that American women are facing. By introducing a new term, resistant assets, within the taxonomy of vulnerability theory, this article introduces a diagnostic tool for scholars and policy makers to analyze why it is so difficult to change state and market dependence on unpaid family caregiving and challenge government opposition to expanding social support of the family. Resistant assets are frameworks used by the state to reinforce the status quo and maintain a posture of legal and social non-intervention. The normative and extended family are resistant assets that prevent a revision of the American Social Contract. This article fills a gap in family law scholarship by exploring how analysis of resistant assets within vulnerability theory can contribute to the development of a theoretical foundation for legal change to support family caregivers.
Monday, July 12, 2021
Matthew Jennejohn, Samuel Nelson, D. Carolina Nunez, Hidden Bias in Empirical Textualism, 109 Georgetown L.J. 767 (2021)
A new interpretive technique called “corpus linguistics” has exploded in use over the past five years from state supreme courts and federal courts of appeals to the U.S. Supreme Court. Corpus linguistics involves searching a large database, or corpus, of text to identify patterns in the way in which a certain term is used in context. Proponents of the method argue that it is a more “empirical” approach than referencing dictionaries to determine a word’s public meaning, which is a touchstone in originalist approaches to legal interpretation.
This Article identifies an important concern about the use of corpus linguistics in legal interpretation that courts and scholarship have overlooked: bias. Using new machine learning techniques that analyze bias in text, this Article provides empirical evidence that the thousands of documents in the Corpus of Historical American English (COHA), the leading corpus currently used in judicial opinions, reflect gender bias. Courts and scholars have not considered that the COHA is sexist, raising the possibility that corpus linguistics methods could serve as a vehicle for infecting judicial opinions with longstanding prejudices in U.S. society.
In addition to raising this important new problem, this Article charts a course for dealing with it. It explains how hidden biases can be made transparent and introduces steps for “debiasing” corpora used in legal interpretation. More broadly, it shows how the methods introduced here can be used to study biases in all areas of the law, raising the prospect of a revolution in our understanding of how discriminatory biases affect legal decisionmaking.
Tuesday, June 15, 2021
Martha Ertman, Contract's Influence on Feminism and Vice Versa, Handbook of Feminism and Law in the U.S. (Debora Burke, Martha Chamallas & Verna Williams eds., forthcoming)
This book chapter for an Oxford Handbook on U.S. Feminist Legal Theory describes the role of contract theory and doctrine in feminist legal theory. After a brief discussion of its roots in political theory re: the social contract, sets out examples of feminist theory that portray contract as a route to gender equality, others that signal dangers of contract colluding with gender subordination, and finally an intermediate approach that views contract as a private law laboratory of sorts to try out new forms of relation that eventually can mature to public law rules that recognize gender equality. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional contract law via doctrines such as good faith in employment contracts, debtor rights in lending relationships, and defenses such as unconscionability and duress. Throughout, this chapter focuses on topics that have generated the most feminist legal attention, which often relate to families.
Friday, June 4, 2021
Jamie Abrams, Feminist Pedagogy in Legal Education, Oxford Handbook of Feminism and Law in the United States, Oxford University Press, 2021 Forthcoming
This chapter, which will appear in the Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas & Verna Williams, eds.), traces and evaluates the influences of feminism in legal education. It explores how feminist critiques challenged the substance of legal rules, the methods of law teaching, and the culture of legal education. Following decades of advocacy, feminist pedagogical reforms have generated new fields, new courses, new laws, new leaders, and new feminist spaces. This chapter captures many reasons to celebrate the accomplishments of our feminist pioneers and champions. It also serves as a critical call to action to modern faculty, administrators, and students to carry the work forward with a vigilant purpose and determination.
Susanna Mancini & Nausica Palazzo, The Body of the Nation: Illiberalism and Gender, Routledge Handbook of Illiberalism (S. Holmes, A.Sajo, R. Uitz eds., forthcoming, 2021)
Gender has become a central feature of illiberal rhetoric and action. While socio-legal scholarship has established a clear relationship between anti-genderism and populist parties and/or the global right, the link between anti-genderism and illiberalism has not yet been clearly established. The aim of this chapter is to fill this gap.
The chapter first explicates the link between anti-genderism and global right/right-wing populism (two phenomena strictly related to contemporary illiberalism). It then establishes a more specific link between anti-genderism and illiberalism, by focusing on illiberal actors’ war on “gender ideology”, and their efforts to reshape human rights epistemology. The analysis corroborates these links by looking at three domains: immigration, religious attire, and sexual and reproductive rights.