A federal appeals court on Tuesday revived a former public defender’s lawsuit challenging the federal judiciary’s handling of her sexual harassment and discrimination claims about a supervisor’s unwelcome attention at work.
Monday, June 20, 2022
Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman's Reflections as a Law Professor
Angelique Eaglewoman, Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Southwestern U. L. Rev. (2022)
This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. "Unequal Profession: Race and Gender in Legal Academia" is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.
In Part I of this Essay, the necessity of trailblazing is discussed due to the lack of Native American women in the legal academy. Issues around visibility, ethnic fraud, and tribal sovereignty will be discussed. Part II will explore the challenges identified in "Unequal Profession" through a raceXgender framework and provide a personal perspective on dealing with such challenges. The themes of invisibility and lack of respect experienced as a Native American woman law professor will be discussed. The final section in Part III will provide insight into the motivation to stay the course and continue to make space in legal academia. In living a purposeful life, there is a choice to be a law professor as a Native woman with the goal of holding the door open for more Native American faculty, law students, and legal administrators to walk through.
Friday, June 10, 2022
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.
Thursday, June 9, 2022
From the Legal History Blog, Jeon on Women-Led, Non-Lawyer Legal Aid in Boston
Kelsea A. Jeon, the holder of an M.Phil in Socio-Legal Research from the University of Oxford, has published Legal Aid Without Lawyers: How Boston’s Nonlawyers Delivered and Shaped Justice for the Poor, 1879–1921 in the Georgetown Journal on Poverty Law & Policy:Women nonlawyers were some of the first actors to provide organized legal aid to America’s poor. Yet, today, unauthorized practice of law statutes bar nonlawyers from providing legal help, citing concerns about malpractice and public harm. This Article uses a historical case study to challenge conceptions that nonlawyers cannot provide effective legal services to the people. The study focuses on the development of legal aid in Boston via two organizations, the nonlawyer-led Women’s Educational and Industrial Union and the lawyer-centric Boston Legal Aid Society. Although organized legal aid in Boston began with the nonlawyers at the Union, they were eventually overtaken by the lawyer-centric Legal Aid Society. This paper examines this transition in legal aid practitioners, emphasizing how nonlawyers provided effective legal help. In doing so, it challenges the modern-day conception that access to justice requires access to an attorney and serves as a powerful counter to claims that nonlawyer practitioners endanger the public.
For more on the history of women-led legal aid, see Felice Batlan, Women and Justice for the Poor: A History of Legal Aid , 1863-1945 (Cambridge Press 2015):
This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women's history in dialogue, it demonstrates that nineteenth-century women's organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor
Tuesday, June 7, 2022
Kristin Kalsem, Feminist Judging: Theories and Practices, in Oxford Handbook of Feminism and Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds.) (Oxford University Press, 2022 Forthcoming)
This chapter begins by examining the original liberal feminist goal of increasing the number of women judges to attain equal gender representation. Part I canvases multiple reasons why greater gender diversity on the bench is desirable, from its symbolic value to its potential for reducing and counteracting implicit bias of legal actors. It also charts how scholarship has grown to encompass “outsider” judges, marked by race, ethnicity, and other marginalized identities, with particular attention to the experiences of female judges of color.
Part II then turns to analyzing scholarship that focuses on the ideal of “feminist judging.” It recounts how, borrowing from cultural feminism, feminist scholars have applied the concept of an “ethic of care” and discussed the possibilities and impacts of empathetic judging. Lastly, it explores how feminist judging takes into consideration the racial and gender dimensions of controversies and brings context to the forefront, employing an intersectional and social justice lens.
Moving from theory to practice, Part III discusses two recent scholarly projects that integrate feminist judging into the real-world practices of judges. One such project applies the methods of legal participatory action research (“legal PAR”) to design and implement a state wide judicial training on best practices in intimate partner abuse cases. Using a community-based research and problem-solving paradigm, legal PAR effectuates a bottom-up approach to law and policymaking. The second project – the Feminist Judgments project -- critiques the idea of judicial objectivity and reimagines landmark legal cases through the rewriting of judicial opinions from feminist perspectives. Inspired in the United States by similar projects in Canada and Great Britain, it has grown from a volume of twenty-five rewritten U.S. Supreme Court opinions to multiple volumes devoted to specific areas of law like employment discrimination and reproductive justice.
Part IV concludes with considerations for future feminist agendas in reaching the end goal of achieving social justice in the process and outcomes of judging. Throughout, this chapter is guided by the belief that what judges decide, as well as the process through which they reason and explain their decisions, matters.
Tracey E. George, Albert Yoon, Mitu Gulati, Gender, Credentials and M&A
Since the 1990s, women have made up roughly half of law school classes. Attrition between entry to law firms and partnership results in women comprising 20 and 25 percent of partners. But who makes it to the top of the partnership? Is there yet more gendered attrition? Constructing a unique dataset of publicly-filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10 percent of deal leaders. When we look at the factors that determine who becomes a deal leader we find that credentials – both educational and professional – matter. But they matter more for women. And one credential – attending a top law school – seems to matter a lot. Using conversations with senior lawyers, we try to get at some answers for why.
Thursday, April 28, 2022
4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment
The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.
In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.
The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)
C. Strickland’s equal protection claim
We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***
The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.
In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.
We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.
The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).
***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.
We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***
Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***
Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.
Thursday, April 21, 2022
Milan Markovic & Gabriele Plickert, "The Gender Pay Gap and High-Achieving Women in the Legal Profession"
Law and Social Inquiry, Forthcoming
Although women have made significant strides in the legal profession, female attorneys continue to earn far less than male attorneys. Relying on survey data from a large sample of full-time attorneys in Texas, we find a gender pay gap of $35,000 at the median that cannot be explained by differences in human capital or occupational segregation. We also provide evidence that the legal market especially disadvantages women who excel in law school. Whereas high academic achievement boosts male lawyers’ incomes substantially, it does not have the same effect on female lawyers’ incomes. High-achieving female lawyers earn less than high-achieving male lawyers across practice settings and earn less than their lower-achieving male counterparts in private practice. We conclude that discrimination in the legal profession operates partly by devaluing female attorneys’ human capital, such that sterling academic credentials and other traits that are valued in men are far less valued in women.
Monday, April 4, 2022
Tim Stelloh of NBC News reported on March 31, 2022 that a navy ship will be named after Justice Ginsburg:
A Navy fuel ship will be named for the late Supreme Court Justice Ruth Bader Ginsburg in recognition of her efforts to advance women's rights and gender equality, Navy Secretary Carlos Del Toro said Thursday.
The future John Lewis-class replenishment oiler — a ship that transfers fuel to the Navy's operating carrier strike groups — will be the eighth such vessel to be named for an historic figure who fought for civil and human rights
Others include former Supreme Court Justice Thurgood Marshall, abolitionist and women's rights activist Sojurner Truth, gay rights icon Harvey Milk and civil rights leader John Lewis.
Wednesday, March 30, 2022
Updated March 30, 2022
Each year Gender & the Law Prof tracks the new appointments of women deans in law schools. We begin the list here, expecting updates as the spring progresses.
Michele Alexandre, Loyola Chicago (former Dean, Stetson)
Nicola Boothe, Univ. Illinois, Chicago (former Interim Dean, Associate Dean, Florida A&M)
Camille Carey, New Mexico (former Vice and Associate Dean, New Mexico)
Lisa Freudenheim, New England (former Co-Acting and Associate Dean, New England)
Leah Chan Grinvald, UNLV (former Associate Dean, Suffolk)
Emily Janoski-Haehlen, Akron (former Associate Dean, Akron)
Melanie Jacobs, Louisville (former Associate Dean, Michigan State)
Sudha Setty, CUNY (former Dean, Western New England)
Melanie Wilson. Washington & Lee (former Dean, Tennessee)
For the 2021 list, see 2021 New Women Law Deans, Gender & the Law Prof, which also includes some historic data and discussion.
The number of women and people of color in law school dean positions is growing, but those hired through search firms were mostly white men, according to a new study released by the Association of American Law Schools.
The American Law School Dean Study surveyed 197 deans of ABA-accredited law schools and 222 former deans who served between 2010 and 2020. It was also compiled by the National Opinion Research Center at the University of Chicago, also known as the NORC.
According to the study, released Tuesday, women headed 41% of law schools in 2020, compared to 18% in 2005. Also, 31% of the law schools in 2020 had deans who were people of color or Hispanic, compared to 13% in 2005.
According to the study, 18% of the law school deans in 2020 identified as Black or African American, and 6% identified as Hispanic or Latino. The number of law school deans who identify as American Indian, Alaska Native, Asian, Native Hawaiian or other Pacific Islander was also increasing, in small amounts, according to the study.
Monday, March 28, 2022
Shanta Trivedi writes for Ms. Magazine The Supreme Mom Guilt is Real: Judge Ketanji Brown Jackson and Motherhood.
The struggles of employed motherhood in a society that is not built to support mothers (formal wage-earners or stay-at-home moms) has been documented time and again. But, in many ways, what Jackson was expressing is unique to Black women. Black women have historically been more likely to be a part of the workforce than their white counterparts. Black women and other women are color are also more likely to do work that supports white women’s ability to work outside the home, such as caregiving and housecleaning. And, for many Black women, they are the “only” of both their gender and race at work, putting even more pressure on them in already complicated work settings where they regularly face microaggressions, harassment or blatant misogynoir—the toxic, combined discrimination against Black females.
* * *
All mothers feel pressure to be perfect and the judgment that they face is real, but Black mothers face a microscope unlike no other, particularly when compared to the upper-middle class white version of Pinterest and Etsy-fueled parenting. In the midst of an exercise designed to scrutinize her and her life, despite her perfect resume, she highlighted her perceived imperfection as a parent. But perhaps there is no better evidence to the contrary than from her own children.
ABA Model Rule of Professional Conduct 8.4(g) prohibits attorneys from “knowingly engag[ing] in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.” The Eastern District of Pennsylvania granted plaintiff's motion for summary judgment in the case of Greenberg v. Goodrich finding a likelihood that the rule will chill speech.
While [the Office of Disciplinary Counsel] asserts that the Amendments only prohibit verbal conduct that actually targets an individual, not speech that is perceived to be discriminatory or harassing, this is nonsensical and subjective at best. It is nonsensical to say that an individual's perception is irrelevant where the Rule relies on complaints filed by the public to start an investigation into the attorney's conduct. It is also nonsensical to consider anything under the umbrella of harassment to be devoid of perception. Whether an individual perceives another's conduct to be welcome or unwelcome is a basic premise for harassment. For example, if a person in a protected class hears an otherwise offensive joke from a friend at a Pennsylvania Bar event, it may not be considered by that person as discrimination or harassment, while the same exact joke made by a panelist at a CLE would more likely be deemed offensive. * * * Outside of the third party's perception, it is also the subjective assessment of ODC as to whether the verbal conduct is actual or perceived. The standards for that assessment are, at best, subjective, and, at worst, completely unknown to both Pennsylvania licensed attorneys like Mr. Greenberg and even ODC itself. Therefore, speech . . . . will continue to be so affected under the revised Rule.
* * * This assures that attorney's speech is targeted by the Rule and will continue to be broadly monitored and subject to government censure under this Rule. The Rule limits what a lawyer may say and it serves as a warning to Pennsylvania lawyers to self-censor during the course of their interactions that fall within the Board's broad interpretation of the practice of law. * * *
Read the full opinion here.
Wednesday, March 23, 2022
[T]his book explores different questions in different North American and European geographical jurisdictions and courts, demonstrating the value of a gender analysis of courts, judges, law, institutions, organizations, and, ultimately, politics. Gender and Justice argues empirically for both more women and more feminists on the bench, while demonstrating that achieving these two aims are independent projects.
"In this impressive work of seminal scholarship, Professor Kenney documents and articulates a persuasive case for the value a gender analysis of legal systems and decisions, as well as there needing more politically and judicially astute women appointed to the bench. – Library Bookwatch, Midwest Book Review
Susan Tolchin, The Exclusion of Women from the Judicial Process, Signs J. (1977)
Amid the areas from which women are excluded one stands out, neglected by scholars, public officials, representatives of women's groups and the national media: the representation of women in the judicial system. Only when Supreme Court vacancies open is there public dialogue on the feasibility of appointing women. Then the tone of debate is too often one of frivolity or outrage. ***
The key to judicial selection lies in the political system. The exclusion of women from the bench is therefore a reflection of women's lack of political power, which has enabled both major political parties to ignore them. The power to select judges rests with selected elites. Whom they choose as judges depends on a variety of factors, not the least of which are their political and personal obligations.3 Bar association elites, for example, often predominate in merit-selection plans (such as the Missouri Plan) since they overwhelm the laymen on the selection panels, while party leaders tend to dominate the election process. Since judgeships are still regarded as relatively unimportant by the public at large, party leaders who slate nominees for judicial office wield greater control over judgeships than over offices which attract more public attention.
On the federal level, the American Bar Association exercises an extraordinary amount of influence over judicial appointments. The composition of the officers and board of governors of the ABA may best reveal why women occupy less than 2 percent of all federal judgeships. Of the seven officers and twenty-two members of the board of governors, not one is a woman.
My own work on Florence Allen, the first woman appointed to a federal appellate court (Sixth Circuit, 1934 by FDR), bears out this idea and history. See Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen, 27 W&M J. Race, Gender & Soc. Justice 293 (2021).
Tuesday, March 15, 2022
In recognition of International Women's Day, global law firm Mayer Brown teamed up with Women In Law Hong Kong to launch a joint project that will explore gender biases in Hong Kong's legal industry.
The "Everyday Behaviour Project" will involve an anonymous survey to collect data on the everyday experiences of women in the Hong Kong legal sector. The objective of the project is to examine the behaviours that women face, including gender biases and micro-aggressions – the everyday, subtle, often unintentional comments and interactions that may contribute to gender inequality.
Results will be announced later in the year and will aim to shine a light on whether everyday behaviour is adversely affecting women's careers in the Hong Kong legal industry.
. . .
“The 'leaky pipeline' issue in the legal profession is well known,” [said Harris, a partner at Mayer Brown's litigation and dispute resolution practice and co-chair of the firm's Asia women's network, Retain and Advance Women.] “For many years, the vast majority of junior solicitors in Hong Kong are women but only 30 percent or less become partners. We see binary data on gender disparity issues in the Hong Kong legal profession, but going beyond this to examine more nuanced, everyday behaviours will offer a new perspective."
Tuesday, March 1, 2022
By: Maryam Ahranjani
In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention, and promotion of women criminal lawyers. Sprinting a Marathon follows up on the initial findings of the TF as published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine and on the ABA Criminal Justice Section website. This Article describes the results of a survey of diverse criminal lawyers and judges conducted at the end of 2020, as well as the focus groups and follow-up survey to high-level criminal justice leaders hosted by the TF in late 2021.
Concluding that hiring, retention, and, particularly, promotion of women in criminal justice continue to be a problem, the 2020 follow-up survey also revealed the following serious obstacles: (1) limited flexibility with work schedules; (2) insufficient wellness resources; (3) deficient training opportunities, particularly in state and rural criminal law offices; and (4) short supply of meaningful mentorship. Some employers seem receptive to change but many do not. This Article shares high-level takeaways and recommendations that the TF summarized in a one-page chart to address the barriers faced by women criminal lawyers. The Article describes the 2021 focus group and survey responses to four key questions and concludes with next steps for the TF, including the creation of a robust tool kit and efforts to achieve systemic endorsement of Ten Principles for Gender Equity in Criminal Law, first within the ABA and then among the larger justice community.
Thursday, February 3, 2022
Supreme Court Justice Stephen Breyer’s retirement announcement is not even one week old, yet Republican senators and prominent conservatives are already attacking Biden’s unnamed nominee. Instead of celebrating the president’s historic commitment to picking the nation’s first Black woman justice, conservatives have already made up their minds that Biden’s choice of a Black woman makes her automatically unqualified.***
The answer has little to do with Black women’s qualifications to serve on the highest court in the land. For the first 100 years of our country’s history, women and people of color couldn’t even attend law school. The first female federal judge was only appointed in 1928. The first Black federal judge was only appointed in 1949. The first Black woman federal judge was only appointed in 1966. And by 2020, there had still only ever been eight Black women to serve on the courts of appeals—a traditional prerequisite for a seat on the Supreme Court.
That systematic exclusion of Black women lawyers from the judiciary has clearly conditioned many conservatives to believe that there are no Black women good enough to be a Supreme Court justice. The nation is about to learn just how wrong they are.
Wednesday, January 26, 2022
Afra Afsharipour, Women and M&A, 12 UC Irvine Law Review (2022 Forthcoming)
Corporations, law firms and investment banks all state that diversity matters. This Article shows that there is a chasm between discourse and action. For the most important decisions undertaken by companies—large merger and acquisition (M&A) transactions—a gender gap persists. This Article provides a holistic examination of the entire network of lead actors involved in M&A, revealing that women’s leadership opportunities continue to be vastly unequal. Using hand-collected data from 700 transactions, this Article reveals that thirty years after women began to account for almost half of all law students, gender parity in M&A leadership lags far behind. To illustrate, over a 7-year period, women make up on average 10.5% of lead legal advisors for buyers in M&A. Moreover, this Article documents the lack of transparency on leadership data for other players in M&A. This Article argues that understanding, documenting, and disclosing the gender gap in M&A leadership is critical for increasing accountability and for determining the solutions that may work to reduce such disparities
Monday, January 17, 2022
Teneille R. Brown has posted Stereotypes, Sexism, and Superhuman Faculty on SSRN. This article is a preprint of a work forthcoming in volume 16 of the Florida International Law Review. This is a powerful and personal read capturing many important takeaways of pandemic teaching as its hardships have mapped on to gender, race, and parental status.
Despite our relative privilege, lawyers are not immune to the pandemic’s breathtaking ability to expose gender inequality. While working moms in other industries are afforded far fewer supports, and often cannot work from home, the lack of support offered by law schools and law firms has still been appalling. We risk losing much of the fragile equality we have won, as women scale back their pursuit of leadership positions, and have less focused time to spend researching cases, preparing for class, giving talks, or writing. The data are in: women lawyers’ productivity plummeted during the pandemic. This carried over to academic writing generally, where women’s submissions nosedived in the spring and summer. Women with children have lost 500 hours of research time, which makes them “disproportionately less likely to be promoted in rank and perhaps even more likely to drop out of academia altogether.”
* * *
As it might be clear by now, treating people as superhuman is an insidious and hollow form of adulation. Even though it seems positively valenced, it nonetheless reflects a form of dehumanization.
* * *
Law faculty are not superhumans, and there is no virtue in regarding ourselves as such. We are individuals—empowered with the full range of complex thoughts and emotional vulnerabilities. This is not to say that all humans experience emotions to the same degree, or that we all draw from the same emotional depth or complexity. But for some, denying our emotional experience is a rejection of the self. Further, treating faculty as superhumans leads to workplace environments that are cold, uncaring, and discriminatory.
Unfortunately, the depth and complexity of the problem is disheartening, and there are no easy solutions. It is not enough to have women in leadership roles if those women espouse ambivalent sexism in their speech or policies. And it is not enough to respond to requests by working moms for accommodations, as those requests will often render those asking for them less competent. Research does suggest that women take less of a hit to their competence if they frame requests as advocating for others, and when they explicitly draw attention to sexist stereotypes. Thus, by making colleagues and administrators aware of the [Stereotype Content Model] and the deep social psychological roots of ambivalent sexism, we can begin to open their eyes. But because of the blow we take to competence when we mention our caregiving roles, professional women cannot make systemic change alone.
Tuesday, January 4, 2022
By: Amanda M. Fisher
Published in: Rutgers Journal of Law and Public Policy, Volume 19:1
The modern woman lawyer faces many of the same challenges that women in law faced during their earliest entry into the profession. While circumstances have certainly improved for women in law, gendered stigma is still prevalent in the profession. In this article, “gendered stigma” refers to circumstances resulting from one’s gender as a salient feature of their work, serving to discredit one’s abilities and accomplishments. Women began to enter the legal profession in large numbers in the 1970s, gaining attention as they did so. Although early research on women in the law focused on blatant discrimination, that type of discrimination is fortunately less common now. Much of the modern research addressing women’s status in the legal profession, however, focuses on the quantitative evidence, like the number of women in the profession and their salaries as compared to men. Numerical evidence does show progress, but qualitative evidence reveals that the gender-driven experiences of women new to the profession are eerily similar to those of women who have long retired from the profession. This belies the assumption that simply improving numbers, e.g., having more women in the profession, would solve the disparities between men and women who practice law. This article relies on identity theory and stigma to inform the cycle of gendered stigma prevalent in the legal profession to critically examine basic tenets of the profession that must change for progress to flourish. This theoretical foundation can then inform practical solutions for mitigating the negative effects of gendered stigma on the profession and the individuals serving within it.
Tuesday, December 14, 2021
Find the original ABA Report here: How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys
The number of male attorneys arguing at the U.S. Court of Appeals for the Seventh Circuit continues to greatly surpass women, according to a study published by the American Bar Association this week.
The study’s authors, Seventh Circuit Judge Amy J. St. Eve and Munger, Tolles & Olson associate Jamie Luguri, found that women represented 24% of attorneys who argued before the Chicago, Illinois-based federal appeals court in 2009. In 2019, the percentage rose only slightly to 28%.
“If the rate of change remains constant, it will be another four decades before half of all attorneys arguing before the court are women,” the authors wrote.
Despite women and men entering the legal profession in equal numbers, the gender gap among arguing attorneys has been widely reported across the country, including the U.S. Supreme Court.
But St. Eve and Luguri looked at a number of other factors that influence the size of the gap, such as the nature of the case, the client represented and the attorney’s practice setting.
They found that women argued at lower rates in civil cases compared to cases involving the government. In 2019, women comprised 24% of all attorneys arguing in civil cases at the Seventh Circuit and 33% in criminal cases.
Even among civil litigation, the gender disparity was more pronounced in some areas than others. Complex civil matters—such as antitrust and insurance cases—had a lower percentage of women arguing, according to the study.
The authors attributed the slight increase in women taking the lead in oral arguments at the Seventh Circuit to the federal government’s improved pipeline of female attorneys over the past decade. In 2019, 40% of all attorneys who represented federal, state or local governments were women, compared to 32% in 2009. Meanwhile, only 22% of attorneys for non-governmental clients were women.
“While the number of women who argued appellate cases on behalf of federal and local governments increased significantly in the last decade, the number of women who had that role for non-government clients remained relatively stagnant,” the report says.
Possible solutions to closing the gap can start in law school, the authors wrote. They recommended that faculty encourage women to apply to federal appellate court clerkships and provide opportunities for students to join appellate advocacy clinics.
Law firms, for their part, should help associates—who are largely women—get oral argument experience by letting them argue cases where the firm was court-appointed. Law firms should also encourage female associates to take pro bono work, and senior attorneys should split their allotted argument time with associates, St. Eve and Luguri said. Holding leadership positions can help women attorneys gain credibility and experience too, they added.
“Across all these domains, a clear picture has emerged: the pipeline is leaking. Law schools, firms, corporate clients, and courts all have a role to play in fixing those leaks, and we have outlined concrete steps that each can take to increase the number of women arguing in front of appellate courts,” they wrote. “It is our hope that these suggestions for change mean that the next decade will bring more progress than the last.”