Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, November 28, 2018

Using Tort Law to Transform Discrimination Law

Relevant to today's legal debate re: #MeToo.  Adopting a tort construct for sexual harassment claims might also mean changing the "reasonable person" standard to define the aggressor rather than the victim. 

Marcia McCormick, Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination Claims, 76 Ohio State Law Journal Furthermore (2015) 

Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort, makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases, even having gone so far as to have called employment discrimination statutes federal torts. This development has created significant concern among scholars, including Professor Sperino herself.

 

Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a novel approach: she takes the Court at its word, spinning out how embracing tort concepts and tort methodology would transform discrimination law. In sum, she explores how using tort concepts could “clarify the roles of intent and causation in discrimination analysis, [should] alter the way courts conceive intent, [should] lower the harm threshold for some sexual harassment cases,” and would transform current approaches to statutory interpretation, allowing the law greater “flexibility to respond to changing circumstances.” This response essay applauds Professor Sperino’s work in this area, her suggestion of a silver lining in a problematic trend, and the roadmap she lays out for a more positive trajectory. At the same time, I worry that she is unlikely to succeed because the actors she relies upon to effect the changes she projects are unwilling to do so.

November 28, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Monday, November 19, 2018

The Epistemic Commitments of Nondiscrimination: What Not to Believe

Deborah Hellman, The Epistemic Commitments of Nondiscrimination

Abstract

A commitment to nondiscrimination at times appears to require both that one not act in particular ways and that one not believe certain things. This is potentially troubling if one ought to believe what one has warrant to believe, and to the extent that one can take actions that affect what one comes to believe, one ought to do so with the aim of acquiring true beliefs. This article argues that current social controversies – like the debate over the memo by the Google employee which claimed that women are less suited for careers in technology fields – demonstrate that some defenders of norms of nondiscrimination understand these norms as including epistemic commitments. The article articulates what these epistemic commitments are, explores whether they can themselves be epistemically justified and, if not, situates the popular controversy in a philosophical debate about whether moral considerations properly encroach on epistemic norms.

From the Introduction:

"My aim in what follows is to connect up these political controversies to the philosophical debate about whether moral and pragmatic considerations can and should affect beliefs and credences. Doing so illuminates what is at stake in these disputes by enabling us to locate the precise points of philosophical disagreement. At the same time, reflecting on how the political controversies play out may tell us something about how to make progress in the philosophical domain."

November 19, 2018 in Theory | Permalink | Comments (0)

Thursday, November 15, 2018

A New Model of Feminist Relational Contract Theory

Sharon Thompson, Feminist Relational Contract Theory: A New Model for Family Property Agreements, 45 J. Law & Society 617 (2018)

In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.

November 15, 2018 in Family, International, Theory | Permalink | Comments (0)

Tuesday, November 13, 2018

The Gendered Impact of the Incapacitation Rationale for Incarceration

Priscilla Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018)

 Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country. Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world. Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women. The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood. Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers. Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms. Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.

November 13, 2018 in Family, Reproductive Rights, Theory | Permalink | Comments (0)

Wednesday, November 7, 2018

"They, Them and Theirs": Taking Nonbinary Gender Seriously

Jessica Clarke, They, Them, and Theirs, 132 Harvard Law Rev. (2019)  

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.

November 7, 2018 in Gender, LGBT, Theory | Permalink | Comments (0)

Tuesday, November 6, 2018

Support for the Term "Feminist" on the Campaign Trail

Surprising Support for the Term "Feminist" on the Campaign Trail

Asked whether she was a feminist, Amy McGrath, the former Marine fighter pilot running for Congress in Kentucky, was emphatic: “Hell yeah, I’m a feminist.” Her opponent, Representative Andy Barr, turned her words into an attack ad.

 

Many politicians have considered the word “feminist” toxic. But that might be changing. In 11 battleground districts nationwide, including Kentucky’s Sixth, about half of voters said they supported electing feminists, compared with roughly a third who opposed it, according to Upshot/Siena House polls this fall. About a fifth said they didn’t know.

 

We don’t have past surveys asking the same question to compare with these results, and support of feminist candidates is still not a majority opinion — more Republicans opposed electing them than supported it. But the overall support our polls found would have been unthinkable in even recent elections, scholars say. Some compare this moment to the feminist political movements of the 1920s and 1970s.

 

The spark, people across the political spectrum said, was the MeToo movement, after the misogyny seen in the 2016 presidential campaign.

 

“An embrace of the term in political candidates? That’s news,” said Estelle Freedman, a professor at Stanford who specializes in women’s history. “We know that women have been really politicized by the perceived assault on women’s rights writ large. The kindling was there, and it got ignited by the misogyny.”

 

One reason that voters’ support for feminist candidates is surprising is that in a variety of surveysonly a fifth or fewer identify as feminists themselves. (The share goes up when the word is defined as equal rights for men and women, or when specific feminist policies are mentioned.) Our polling question, asked in 14 districts, was whether respondents supported or opposed electing more people who describe themselves as feminists. It did not define the term.

November 6, 2018 in Gender, Pop Culture, Theory | Permalink | Comments (0)

Wednesday, October 31, 2018

Exploring the Feminist Critique of #MeToo

Brenda Cossman, #MeToo, Sex Wars 2.0 and the Power of Law, Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming)

In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s. I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.

October 31, 2018 in Legal History, Media, Theory, Violence Against Women, Workplace | Permalink | Comments (0)

Wednesday, October 24, 2018

Feminist Judgments and #MeToo

Margaret Johnson, Feminist Judgments & #MeToo

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate gender justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.


Narrative’s power is evidenced by the #MeToo movement, which resurged on October 16, 2017. People posted their personal stories of being subjected to sexual  harassment or assault—often contradicting previously assumed or accepted narratives told by powerful people. Within twenty-four hours, there were more than twelve million #MeToo posts on Twitter, Facebook, and other social media platforms. And people listened to the en masse telling of how (generally) men had exercised the power and control of sexual assault, harassment or misconduct. The listening shifted power structures. In less than two months, these narratives led to the removal of influential men from their previously vaunted positions. ***

 

The Feminist Judgments Project questions the assumption that published court opinions are the only acceptable narrative of a judicially addressed conflict. In rewriting landmark opinions from a feminist perspective, the project brings to the surface untold, ignored, and suppressed alternative narratives of those conflicts. The project examines court opinions and rewrites them using the same facts and case precedent as the original opinion—but in a new light. That new light is feminist legal theory. With the new perspective, or what Professor Carolyn Grose calls “goggles,” in place, different facts and precedent may come into view.

October 24, 2018 in Gender, Scholarship, Theory, Workplace | Permalink | Comments (0)

Thursday, October 18, 2018

Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims

Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)

This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”

October 18, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

After MeToo, Using the Law of Agency for Strict Liability for Employers for Sexual Harassment

David Oppenheimer, Twenty Years After Faragher and Ellerth, Is It Time to Revisit Strict Liability for On-the-Job Sexual Harassment?

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.

 

As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.

 

This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

October 18, 2018 in Business, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Tuesday, October 9, 2018

CFP Applied Feminism and MeToo

The Center for Applied Feminism at the University of Baltimore announces its call for papers its call for papers for the 2019 Feminist Theory Conference.  

2019 Feminist Legal Theory Conference
Call for Papers

APPLIED FEMINISM AND #METOO

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Eleventh Feminist Legal Theory Conference.  We hope you will join us for this exciting conference on Friday, April 12, 2019.  The theme is the #MeToo movement.

 

The resurgent #MeToo movement and the Kavanaugh confirmation hearings have put a spotlight on sexual harassment and sexual assault in our society.  Across America, the #MeToo movement has spurred women to share their stories of sexual harassment, run for office, advocate for change, litigate abuses, and build coalitions.  As a result of this social movement, there are emerging proposals to change the law, workplaces, schools and family dynamics to decrease sexual harassment and assault and ensure better responses to complaints.  In addition, the Kavanaugh hearings have created discussions about credibility, trauma, anger, and employment qualifications.  In sum, we are at a critical moment, a reckoning, of the persistent systemic sexual harassment and assaults of women.  At the same time, certain voices seem less visible in the movement, such as men who are harassed and assaulted, women who are low-income, women of color, women living with disabilities, and those who are imprisoned or subject to police violence.  And proposals for change may be too limited. 

 

We seek submissions of papers that focus on the topic of Applied Feminism and #MeToo.  This conference aims to explore the following questions: What impact has #MeToo had on feminist legal theory, critical race feminist theory, class crit feminist theory, and other critical legal theories? How has #MeToo changed law and social policy? What more needs to be done, and how? How can #MeToo be expanded to address all victims and survivors of sexual harassment and assault? How can we respond to intersecting forms of oppression like race, class, and disability? How can law and theory address the barriers to persons making claims of sexual harassment and assault? How can law and theory address distrust and anger towards sexual harassment and assault claims? What should be individual and systemic responses to sexual harassment and assault claims? What more can be done to eradicate sexual harassment and assault in the workplace, institutional, and other settings? 

 

We welcome proposals that consider these questions and any other related questions 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, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, U.S. District Judge Nancy Gertner, and Obama administration official Jocelyn Frye.

 

To submit a paper proposal, by Friday, November 2, 2018, please complete this form and include your 500 word abstract: https://docs.google.com/forms/d/e/1FAIpQLSeTVf_gKjDmLaMlx_OX_AvKY9iUPCNy-CULsiThkpb_ie89ZQ/viewform?usp=sf_link.  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 22, 2019. 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. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

October 9, 2018 in Call for Papers, Theory, Workplace | Permalink | Comments (0)

Thursday, September 20, 2018

Tracing Catharine MacKinnon's Equality Theory

Chao-Ju Chen, Catharine A. MacKinnon and Equality Theory in Robin West and Cynthia Bowman eds, Research Handbook on Feminist Jurisprudence (2018, Edward Elgar), Forthcoming

This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.

September 20, 2018 in Theory, Women lawyers | Permalink | Comments (0)

Wednesday, September 19, 2018

On Feminist Theorist Martha Fineman's Legacy and Contribution to the Law

Linda McClain, Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects, 67 Emory L. J. (2018)

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In evaluating Fineman’s call to move beyond identities and antidiscrimination law, the essay explores the rhetoric of vulnerability in the briefs in the recent Masterpiece Cakeshop litigation. This essay also charts my own critical engagement with Fineman’s critique of liberalism and the liberal subject in my constructing a form of liberal feminist legal and political theory. The essay identifies parallel concerns about the role of the state and civil society, comparing a liberal feminist formative project of fostering capacity and vulnerability theory’s project of building resilience.

September 19, 2018 in Theory | Permalink | Comments (0)

Tuesday, September 18, 2018

Will Tort Law Have its MeToo Moment

Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)

Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.

September 18, 2018 in Theory, Violence Against Women, Workplace | Permalink | Comments (0)

Wednesday, August 29, 2018

Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture

Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)

International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.

August 29, 2018 in International, Theory, Violence Against Women | Permalink | Comments (0)

Applying an Intersectional Theory of Criminal Law to Sex Work

I. India Thusi, Harm, Sex, and Consequences, Utah L. Rev. (forthcoming)

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for re-examining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly-impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reigning in a system that seems to be ever-expanding, and reframing a criminal legal theory that has grown ambivalent about this expansion.

August 29, 2018 in Theory | Permalink | Comments (0)

Tuesday, August 14, 2018

Federalism as Feminism in Health Reform

Elizabeth McCuskey, The Body Politic: Federalism as Feminism in Health Reform, 11 St. Louis J. Health L. & Policy 303 (2018)

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act’s federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politicThe essay concludes by revisiting — from a feminist perspective — scholars’ arguments that equity in health insurance is essential for human flourishing.

August 14, 2018 in Healthcare, Theory | Permalink | Comments (0)

Tuesday, July 31, 2018

Podcast: Catharine MacKinnon on Sexual Harassment in the Age of MeToo

Podcast: Signs, Ask a Feminist: Catharine MacKinnon and Durba Mitra Discuss Sexual Harassment in the Age of #MeToo

Durba Mitra (DM): Today as part of Signs’ Ask a Feminist series, I have the opportunity to speak about sexual harassment and the #MeToo movement with feminist legal scholar Catharine MacKinnon, a lawyer, writer, teacher, and activist who is Elizabeth A. Long Professor of Law at the University of Michigan Law School and the James Barr Ames Visiting Scholar of Law at Harvard Law School since 2009, and one of the most cited legal scholars in the English language. MacKinnon is the author of numerous books, including the groundbreaking work Sexual Harassment of Working Women: A Case of Sex Discrimination, published in 1979 by Yale University Press, when Professor MacKinnon was completing her PhD at Yale. MacKinnon went on to write the brief and win, as cocounsel, the landmark Supreme Court case Meritor Savings Bank v. Vinson, which established sexual harassment as discrimination. MacKinnon has authored numerous books on critical issues, including Feminism UnmodifiedToward a Feminist Theory of the State, and Are Women Human? I had the opportunity before this interview to read some of Professor MacKinnon’s research related to her landmark first book in an extraordinary resource, her own papers, acquired by the Arthur and Elizabeth Schlesinger Library on the History of Women in America at the Radcliffe Institute at Harvard. Her study, published almost forty years ago, became the basis of transformations not only in sexual harassment law but in wider discourses that shaped the public perception of the very idea of sexual harassment. Supreme Court Justice Ruth Bader Ginsburg cites MacKinnon’s Sexual Harassment as the landmark study, the foundation for legal debates and social understanding on discrimination on the basis of sex.

July 31, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, July 26, 2018

CFP Public Feminisms

CFP Public Feminisms, Signs

Special Issue: Public Feminisms

Even as antifeminist and right-wing forces have gained footholds worldwide, feminists have forcefully asserted themselves in the public sphere as key voices of resistance. From the Women’s Marches around the world that took place the day after Donald Trump was inaugurated, to the 2012 protests in Delhi, to a new resurgence of writers proudly adopting the moniker, feminists have organized to claim public space and a public voice. It is no overstatement to claim that “the resistance” is being led by women, with intersectional feminism at its core.

Meanwhile, a shifting media landscape has enabled contradictory dynamics: feminists—through innovative uses of social media and online media outlets, as well as mainstream media—have found (and created) platforms to amplify their public voices, yet the pool of public intellectuals and the punditry continues to be largely dominated by white men.

This special issue seeks to address these dynamics through a multifaceted and interdisciplinary discussion of “Public Feminisms.” Signs has sought—through the creation of the Feminist Public Intellectuals Project—to actively advocate for feminist voices in both the scholarly and the public sphere, building a critical mass of public intellectuals who speak with a feminist voice to audiences outside of academia. These multipronged efforts have engaged feminist theorizing and historicizing with the pressing political and social problems across the globe. This special issue seeks to further extend the discourse of public feminisms.

 

Possible areas of focus might include:

  • How have new forms of media enabled new public forms of feminism (or antifeminism)? How does changing media create new risks for feminist discourse or feminist individuals?
  • How are feminist publics and public feminisms represented in literature, film, television, theater, dance, or other cultural forms today and in prior moments of resistance? How can these forms of expression be put to feminist use?
  • How has feminism either challenged or contributed to the concept of publicness itself? What historical models of publicness has feminism adopted or transformed?
  • How has claiming public space related to claiming discursive space, or vice versa? How have feminisms conjured new publics or counterpublics?
  • How do race, nation, religion, class, sexuality, and caste structure where and which feminisms tend to become public? How have feminists across time challenged these dynamics?
  • How do nonfeminist forces shape what circulates in the name of feminism, and how can feminists combat it?
  • What can comparisons among different historical eras, geographical areas, or political climates tell us about the conditions under which public feminisms can emerge?
  • To what extent are new languages necessary to shifting public discourses about feminism? How are new conceptual languages or vocabularies adopted as part of public discourse?

Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why public feminism demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now. We seek essays that are passionate, strongly argued, and willing to take risks.

The deadline for submissions is September 15, 2018.

Please submit full manuscripts electronically through Signs’ Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://www.journals.uchicago.edu/journals/signs/instruct.

July 26, 2018 in Call for Papers, Theory | Permalink | Comments (0)

Friday, May 11, 2018

Reconceptualizing Sexual Harassment, Again

Vicki Schultz, Reconceptualizing Sexual Harassment, Again

Twenty years ago, I published an article in the Yale Law Journal entitled “Reconceptualizing Sexual Harassment.” Five years later, I published a follow-up article in YLJ. These two pieces anchored a body of writing that proposed a new theory of sexual harassment. 

Recent events reveal the work still depressingly relevant. Still relevant, because sexual harassment remains far too widespread, despite forty years of activism and legal reform. And still relevant, because the need for an adequate theoretical framework to guide action remains as pressing as ever, twenty years later.

Now is the time to reinvigorate theory. With the election of Donald Trump and the rise of the #MeToo movement, we are witnessing an extraordinary cultural moment of resistance against sexual harassment — one that could enable real change. I am heartened by the courage, tenacity, and smarts of the women and men who have come forward to challenge harassment in an effort to change the status quo. I include here not only the survivors who have risked so much to share their stories, but also the reporters who have worked to expose long-held secrets in the entertainment, technology, media, and other important industries. Most reports have focused on workplace or career-related harassment, a focus that is unsurprising given the centrality of work and workplace inequality to women’s lives. For that reason, this essay will focus on workplace harassment (though much of the analysis would apply also to sexual harassment on campus, a sphere that is important in its own right and as a training ground for professional life).

May 11, 2018 in Theory, Violence Against Women | Permalink | Comments (0)