The COVID care crisis and other multiplying effects of related shutdowns, embedded inequalities, and health and safety risks are likely disproportionately impacting people with caregiving responsibilities in academia. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” Increasingly, employers have begun to reshape what used to be the private domain of family and home through “work at home” or in-person presence requirements that disregard the ways in which care work happens.
Wednesday, February 24, 2021
Kayal Munisami, Legal Technology and the Future of Women in Law, 36 Windsor Yearbook of Access to Justice 164, 2019
Much has been written about how automation will change the legal profession as a whole, less so about how automation might affect women in legal practice. This paper briefly maps the likely changes that legal tech (legal technology) will bring to the provision of legal services, and explores how these changes might affect the barriers to advancement that women face in the profession. It determines that, while the use of legal tech may improve women’s work/life balance and overall job satisfaction by bringing about more flexible working hours, positive changes to the billing hours’ system, and fairer hiring and promotion mechanisms, an unfettered inclusion of legal tech might lead to increased working hours for less wages, increased competition for case files among associates, and the perpetuation of existing gender biases when using algorithms in the hiring and promotion process. Finally, the paper makes several recommendations on how law societies, bar associations and other relevant regulatory bodies could ensure that legal tech promotes rather than hinders Equality & Diversity in the legal profession. It proposes that:
(1) detailed data on men and women lawyers should be collected to better inform equality and diversity policies;
(2) law firms should be required to report on their progress in pursuing equality and diversity;
(3) management techniques to promote work/life balance and more flexible pricing systems should be encouraged;
(4) female entrepreneurship in legal tech should be promoted; and,
(5) technological due process procedures should be required when using algorithms in law firm management to ensure fairness, accuracy and accountability.
Thursday, February 4, 2021
Maryam Ahranjani, "Toughen Up, Buttercup" versus #TimesUp: Initial Findings of the ABA Women in Criminal Justice Task Force, 25 Berkeley J. Crim. L. (2020)
"Practicing criminal law as a woman is like playing tackle football in a dress.” Andrea George, Executive Director of the Federal Public Defender for Eastern Washington and Idaho, began her testimony to the American Bar Association’s Women in Criminal Justice Task Force with that powerful observation. In the wake of the #MeToo movement, the ABA has focused on ways to enhance gender equity in the profession and in the justice system. The Criminal Justice Section of the ABA has invested significant resources in the creation of the Women in Criminal Justice Task Force (WCJ TF), which launched its work in January 2019. Written by the WCJ TF Reporter, this Article describes the current status of women criminal lawyers by situating the Task Force’s research within the larger literature on gender equity in the legal profession and in criminal law in particular, sharing unique original qualitative data from the project’s listening sessions, and proposing solutions and next steps for supporting women who choose the important societal role of criminal attorney.
Monday, February 1, 2021
Recovering the Aspiration of the Equal Rights Amendment to Overcome Gendered Disempowerment in the Work of Pauli Murray
Julie C. Suk, A Dangerous Imbalance: Pauli Murray's Equal Rights Amendment and the Path to Equal Power, 107 Virginia L. Rev. Online 3 (Jan. 30, 2021)
This Essay recovers the aspiration of the 1970s ERA to overcome gendered disempowerment, which was most acutely experienced by Black women. That aspiration did not become part of the “de facto” ERA through Fourteenth Amendment litigation. Whether the ERA would sufficiently respond to “intersectional” discrimination, as it later came to be known, became a point of contention in Illinois’s 2018 ratification debates. This Essay begins by highlighting the leading roles that African American women legislators have played in sponsoring and framing the 1972 ERA in the three states that have ratified it after the statutory deadline. It posits that this should matter to the ongoing debates about the legitimacy of these post- deadline ratifications. These states ratified the ERA long after the deadline imposed by an overwhelmingly white male Congress, but they did so as soon as women—including women of color and LGBTQ women—accumulated the modicum of power necessary to insist on their constitutional inclusion. These legislators’ twenty-first century vision of the ERA resonates with Pauli Murray’s testimony in favor of the ERA in congressional hearings in the 1970s, which built on her work as a member of the President’s Commission on the Status of Women, as a founder of the National Organization for Women in the 1960s, and as a board member of the ACLU.12 Murray built a strategy for women’s empowerment using the race equality victories under the Fourteenth Amendment as a template. Her writings laid the intellectual architecture for the gender equality victories won by Ruth Bader Ginsburg throughout the 1970s. Murray argued that African American women had the most to gain from an ERA,15 which could end their disempowerment, beyond merely winning litigated cases. The quest for empowerment, more so than doctrinal legal change, is driving the ERA’s twenty-first-century resurgence. Women seek empowerment not only to help themselves but also to help save democracy from dangerous abuses of power that threaten its legitimacy.
Part I begins in the present, highlighting the leadership and opposition by Black women in the state legislative debates leading to ERA ratification since 2017. Part II analyzes Pauli Murray’s 1970 written testimony to the Senate Judiciary Committee, in which she articulated African American women’s stake in the ERA for a congressional audience. Part III situates Murray’s vision of the ERA in the context of her 1960s writings for the President’s Commission on the Status of Women and as a co- founder of the National Organization for Women. Coining the term “Jane Crow” to focus on discrimination faced by Black women, Murray’s initial ambivalence about the ERA centered her work on a litigation strategy based on the Fourteenth Amendment. But by the end of the decade, she persuaded ERA skeptics, including colleagues at the ACLU, where she served on the Board, to pivot and support the ERA. Part IV develops the implications of Murray’s analysis of equal rights as equal power for contemporary efforts to overcome women’s underrepresentation in positions of power.
Tuesday, January 12, 2021
Symposium, COVID Care Crisis, Jan. 14 & 15 (Zoom) (registration free)
At the same time, schools and other institutions providing support to families and marginalized groups are temporarily closed, permanently shutting down, or buckling in response to state or local mandates as well as financial and personnel pressures.
In the months since the start of the COVID-19 pandemic, women’s scholarly output and publications have dropped in various disciplines, while service and care responsibilities that fall disproportionately on junior or marginalized faculty and staff have likely increased. Compounding these pressures, Black faculty and faculty of color more generally have also been coping with the emotional effects of the police killings of George Floyd and others, at the same time that COVID-19’s health effects are concentrating along lines of race and inequality in these communities specifically. All of these factors threaten the output, visibility, status and participation of women and other primary caregiving faculty and staff in legal academia.
Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize women and the perspectives they bring to legal scholarship, education, and public dialogue. This symposium seeks to raise awareness of the current COVID care crisis and its impacts on academia, and to begin a dialogue on concrete and innovative responses to this crisis.
I enjoyed hearing about this new book at the AALS conference this year. Understanding the history, and discrimination of women law professors from those featured in the book and on the panel was interesting if also frustrating.
Herma Hill Kay, Paving the Way: The First American Women Law Professors, edited by Patricia Cain (forthcoming April 2021, U California Press)
Book Blurb: When it comes to breaking down barriers for women in the workplace, Ruth Bader Ginsburg’s name speaks volumes for itself—but, as she clarifies in the foreword to this long-awaited book, there are too many trailblazing names we do not know. Herma Hill Kay, former Dean of UC Berkeley School of Law and Ginsburg’s closest professional colleague, wrote Paving the Way to tell the stories of the first fourteen female law professors at ABA- and AALS-accredited law schools in the United States. Kay, who became the fifteenth such professor, labored over the stories of these women in order to provide an essential history of their path for the more than 2,000 women working as law professors today and all of their feminist colleagues.
Because Herma Hill Kay, who died in 2017, was able to obtain so much first-hand information about the fourteen women who preceded her, Paving the Way is filled with details, quiet and loud, of each of their lives and careers from their own perspectives. Kay wraps each story in rich historical context, lest we forget the extraordinarily difficult times in which these women lived
The point made by Melissa Murray was also well taken that the limitations of this study, focused as it was on ABA accredited and AALS schools, omitted many important women of color who taught at other institutions. For an earlier post about one of these women, Lutie Lytle, see The Story of the First Woman -- and the First Black Woman -- Law Professor, Lutie Lytle (2/1/2019)
Monday, November 2, 2020
Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett
I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court. Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court. The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.
Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court
Monday, October 12, 2020
A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.
Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
Wednesday, October 7, 2020
Anietie Akpan, Examining the Model Rules of Professional Conduct to Include Women's Moral Experience and Feminist Ethics, 28 American J. Gender, Social Policy & Law 29 (2019)
[F]eminism is often dismissed, its core values minimized, and its unique interconnectedness to matters such as socioeconomics, education, and health policy fall on deaf ears.
The relationship between the female experience and the law is perhaps even more complex: for decades, men have comprised the majority of state and federal lawmakers, resulting in past legislation being completely uninformed of the complex and intersectional social, political, and economic needs of women.
Feminist jurisprudence, the nexus of feminism and the law, is a philosophy of law based on the equality of the sexes, beginning as a field of legal scholarship in the 1960s. The premise of this legal theory is that patriarchy infuses the legal system and all its workings, making the legal system inadequate in identifying gendered components of seemingly neutral laws and practices. Such practices affect for example, employment, reproductive rights, domestic violence, and sexual harassment.
This article purports that existing jurisprudence is "masculine" because it reflects the connection between patriarchal laws and humanity. Masculine jurisprudence not only perpetuates the methods of lawmaking, but it infiltrates the mode of construction for the codes of professional conduct. Feminist jurisprudence seeks to remedy this matter by recognizing male power, calling for substantive changes necessary to bring gender equality, and encouraging consciousness-raising in the practice of law.
As with most "doctrines" governing behavior, the Model Rules of Professional Conduct are constructed with a male-oriented convention, rooted in "traditional" ethics completely uninformed of women's moral experience. The construction of traditional ethics is based on our social system being male-centered and therefore, not only have men devised all philosophical and moral thought,' but such thought is universally codified. Feminist
critique on traditional ethics examines components of moral conduct that male philosophers praise (i.e., rationality, partiality, universality) with components of moral conduct that are disparaged (i.e., community,
Monday, September 28, 2020
Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)
In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.
Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.
Wednesday, September 9, 2020
Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)
The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?
This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.
Wednesday, August 26, 2020
Susan Frelich Appleton, Book Review, Telling the Story of Justice Sandra Day O'Connor, 62 Wash. U. J. Law & Policy 5 (2020)
[T]his brief review critically examines First: Sandra Day O'Connor, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. ***
I detected elisions and oversimplifications that I suspect other authors, especially those more attuned to gender and feminist jurisprudence, might well have avoided. Two examples help make my point. First, although Justice O’Connor is certainly entitled to reject the label “feminist,” it would have been easy to note how her pragmatic and context-sensitive approach to deciding cases tracks a methodology that feminist legal theorists call “feminist practical reasoning.” Indeed, Thomas comes so close when he writes: “by judging in her one-case-at-a time fashion—by looking closely at the facts and broader social context—she did bring a uniquely female perspective: her own.” He could have enriched this analysis with a brief reference to feminist legal methodologies,
adding force and complexity to O’Connor’s supposed rejection of the idea that women decide cases differently and her clerks’ reported bewilderment “at her lack of self-awareness.”
Second, the biography includes only the skimpiest mention of O’Connor’s concurring opinion in J.E.B. v. Alabama, when—again— situating it in feminist jurisprudence would have provided a deeper view of
the significance of gender to O’Connor. ***
By the end, the book left me puzzling over several questions about the author, diverting attention from the Justice herself: How reliable a narrator is Thomas in telling her story? How did Thomas’s own intimate relationship color his “intimate portrait”? How confident can readers feel that Thomas captured and presented a full picture of O’Connor, especially when it comes to how gender, and society’s construction of it, shaped her and her history making life?
Thursday, July 2, 2020
Challenging the Idea of Women Judging Differently: The Jurisprudence of the First Woman Judge, Florence Allen
I've just posted my recent research on Judge Florence Allen, a law review article previewing the book in progress.
Tracy A. Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently (posted July 2, 2020)
A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.
This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.
Wednesday, June 10, 2020
In Disciplinary Proceeding Against Judge, Lawyer Argues Use of the C-Word for Woman Attorney was not Gender Bias, but Indirect Compliment
A part-time judge's use of the C-word doesn’t amount to obvious gender bias, his lawyer argued before New York's top court Tuesday.
Lawyer Michael Blakey told the New York Court of Appeals that a censure would be sufficient punishment for his client, Judge Paul Senzer of the Northport Village Court of Suffolk County, Law360 reports.
The New York State Commission on Judicial Conduct had recommended removal of Senzer for language in nine emails he sent while representing two clients seeking the right to visit their grandchild.
According to the commission, Senzer used the B-word to describe the client’s daughter, and the C-word to describe the daughter’s lawyer.
In one email, he referred to the daughter’s lawyer as a “c- - - on wheels.” In another, he referred to the lawyer as “eyelashes.” Senzer also referred to a court’s attorney referee as an “asshole” and the daughter and her ex-husband as “scumbags.”
Law360 covered Blakey’s argument, made in-person before the court judges, with the exception of one judge who participated remotely.
“We don’t think the gender bias is obvious and we don’t concede it. We could go into multiple interpretations of the words used, but I don’t think that’s necessary. I can just point out the worst one—the C-word,” Blakey said.
“It’s not a C-word by itself. It’s a term of art: ‘C on wheels.’ Which, obviously, refers to the aggressiveness of that attorney. It’s a left-handed compliment is one way to look at it,” Blakey said.
Blakey added that the language is “obviously inappropriate” but argued that its use didn’t merit removal.
Senzer was referring to lawyer Karen McGuire in the C-word email. She offered a sarcastic reaction when contacted by Law360.
“Isn’t it every female attorney’s dream to be called a c- - - on wheels? Right?” she said, spelling out the letters for the word. “Don’t we swear our oath and say, ‘This is what I want my legacy to be’?”
Friday, May 29, 2020
Caroline Osborne & Stephanie Miller, The Scholarly Impact Matrix: An Empirical Study of How Multiple Metrics Create an Informed Story of a Scholar's Work
Does gender impact citation and exposure?
a. Does gender impact citation?
Another important observation is that men are more likely to be in the frequently and significantly cited intervals than women. At the significantly cited level men are fourteen percent, on average, more likely to be cited. At the frequently cited interval men are eight percent, on average, more likely to be cited. This suggests that men have a citation advantage at both frequently and significantly cited intervals. These results are in contrast to another recent study that finds there is no gender citation advantage in legal scholarship. Christopher A. Cotropia and Lee Petherbridge, Gender Disparity in Law Review Citation Rates, 59 WM. & MARY L. REV. 771 (2018) (study exploring gender disparity in scholarly influence).
b. Does Gender impact exposure in an IR or on SSRN?
Gender provides an advantage in exposure to men at the frequently and significantly downloaded intervals with a twelve percent advantage to men in the frequently downloaded interval on SSRN. That advantage evaporates at the significantly downloaded interval on SSRN with men and women enjoying parity. The twelve percent advantage at the frequently downloaded interval is significant when recalling that the frequently downloaded interval is the interval with the greatest number of downloads and thus, arguably, the interval demonstrating the greatest impact. The absence of a difference in downloads between men and women on SSRN at the significantly downloaded interval was the anticipated result. As noted in the discussion on gender and citation, a 2018 study suggests that there is no gender bias in citations to legal scholarship. Id.
Wednesday, May 27, 2020
One prosecutor in rural Maine is trying to change the norms of evidence around prosecutions for domestic violence and sexual assault—she wins, even when she loses. In the era of progressive prosecution, two different historical injustices are pulling prosecutors in opposite directions. Patriarchy has kept too many men from being prosecuted for gender-based crimes, while tough-on-crime policing has resulted in too many men being prosecuted for other crimes. This week we look at what it means to be a feminist prosecutor, and whether advocacy for more policing and prosecution on behalf of women can backfire for progressive causes. Guest voices include Maine District Attorney Natasha Irving, Villanova law professor Michelle Madden Dempsey, University of Colorado law professor Aya Gruber, and University of Maryland law professor Lawrence Sherman.
In Slate Plus, Sarah Lustbader, senior legal counsel at the Justice Collaborative and contributor at the Appeal, and Barry talk about whether the adversarial system of prosecution and defense makes the criminal justice system a bad way to pursue improvements in gender relations and reduce gender-based crime.
Tuesday, May 26, 2020
LaCrisha McAllister, "Quarters in the Court: How the Gender Pay Gap Affects Black Women in Law"
Women constitute almost half of the national workforce. For half of American families, they are the sole source of income or they are a co-breadwinner. They earn more degrees than men. They work in a broad spectrum of professions and industries and they serve in a multitude of capacities, from administrators to upper management to laborers and everything between. Despite these things, women are paid significantly less than their male counterparts. Efforts to address this have been fodder for discussion for some time. Currently, less than 1% of elected prosecutors are Black women, less than 8% of judges are Black Women in State Trial Courts and State Appellate courts respectively, and a report from the National Association for Law Placement found that Black Women make up about 1.73% of all attorneys included in their survey. This paper seeks to address the ways that the Gender Pay Gap affects Black women in the legal field and how the legal profession can place equity in pay at the base of its mission.
Tuesday, May 12, 2020
Call for Papers
AALS Section on Professional Responsibility 2021
Co-Sponsored by AALS Sections on Civil Rights,
Employment Discrimination Law, Leadership, and Minority Groups
Legal and Judicial Ethics in the Post-#MeToo World
The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g) to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond. Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.
Topics discussed at the program might include:
- Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment?
- Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
- What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
- Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
- If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
- What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
- Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
- How should reporting systems be improved?
To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at email@example.com Preference will be given to completed papers, though works-in-progress are eligible for selection. The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses. Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.
Tuesday, May 5, 2020
Until recently, few knew the story of Jean Hortense Norris, her life, lawyering, and judicial role adjudicating cases of alleged “fallen women.”
[I]hus, it may have seemed unlikely when about a decade later Mrs. Jean Hortense Norris—who continued using her married name—managed to graduate from New York University Law School to become one of the city’s first women lawyers and a leader in feminist legal activities, including representing defendants accused of prostitution in New York City’s Women’s Court. It may have been even more astonishing that ten years after joining the bar she was named New York’s first woman judge, appointed to serve in the same Women’s Court where she previously defended alleged wayward women. And they may have become most shocked of all when, a decade after that, she was the focus of a high-profile investigation for unfair treatment of the accused sex workers before her, leading to what has been described as another downfall—her public removal from the bench in 1931 for being “unfit.” Or, perhaps these things did not surprise those closest to her at all.
Previous scholarship largely focused on her alleged misconduct as a jurist and official fall from grace. My prior Kansas Law Review article, Fallen Woman (Re)Framed, sought to surface and document more about Jean Hortense Norris—including details about her work as one of this country’s first practicing women attorneys and actions as a feminist legal activist even from the bench.
This said, as noted in that work, its more holistic telling was not intended to absolutely absolve Norris as a jurist. Rather, it promised future presentation of at least some additional facts about the judge and her life—including evidence that Seabury and his staff apparently did not investigate or introduce. This essay offers that expanded record. Exploring two different avenues of investigation that were overlooked by Seabury’s formal proceedings—or any other it seems—as postscript, this additional account may raise more questions than it answers.
Historic First SCOTUS Phone Arguments Involve Two Women Attorneys, Bringing Brief Gender Equality to the Judicial Forum
And with that, the Supreme Court made history Monday, hearing arguments by telephone and allowing the world to listen in live, both for the first time.
The arguments were essentially a high-profile phone discussion with the nine justices and two arguing lawyers. The session went remarkably smoothly, notable for a high court that prizes tradition and only reluctantly changes the way it operates.***
The court chose a somewhat obscure case about whether the travel website Booking.com can trademark its name for its first foray into remote arguments. The more high-profile arguments come next week.***
Roberts asked the first questions of government attorney Erica Ross, who was arguing that Booking.com should not be allowed to trademark its name because it is a generic term followed by “.com.” The justices then asked questions in order of seniority instead of the usual free-for-all, rapid-fire style that questions are asked in the courtroom. That meant Justice Brett Kavanaugh, who joined the court in 2018, went last.
One mild surprise came early in the arguments when Roberts passed the questioning to Justice Clarence Thomas, who once went 10 years between questions and has said he thinks his colleagues pepper lawyers with too many. But in this format, Thomas spoke up, asking questions of both lawyers. It was the first time in more than a year that he had asked a question.***
Several justices said “good morning” to the lawyers, a telephone nicety not often heard in the courtroom. And Roberts occasionally interjected to keep things moving, saying, “Thank you, counsel,” when he wanted Ross or Booking.com’s lawyer Lisa Blatt to stop talking so he could move to the next justice.
“It is a fundamental principle of trademark law that no party can obtain a trademark for a generic term like ‘wine,’ ‘cotton,’ or ‘grain,’” Ross told the justices, pointing them to an 1888 Supreme Court case in which the justices ruled that adding a word like ”Company” or “Inc.” to a generic term doesn’t make it eligible to be trademarked.
Some of the exchanges were playful, as happens from time to time in the courtroom. Breyer used pizza.com and cookies.com as examples of websites and discussed with Blatt searching on the internet for toilet paper.
The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: g ender equality.
Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.
Friday, April 17, 2020
New Series "Mrs. America" Showcases Feminist Leaders and the 1970 Fight for the ERA, While Featuring Staunch Opponent, Phyllis Schlafly
FX on Hulu’s breathtaking “Mrs. America,” from the “Mad Men” writer Dahvi Waller, picks up in 1971. . . . The story of the fight for and against the Equal Rights Amendment, it’s not a sequel, either literally or in format: It’s a nine-part series following real historical figures.***
Like “Mad Men,” “Mrs. America” finds a fresh angle on a much-observed age of revolution by focusing, first, on a counterrevolutionary: Phyllis Schlafly (Cate Blanchett), the cold warrior who, in Waller’s telling, seized on the culture war over women’s rights to raise her political profile and advance a broader conservative agenda.***
The insight of “Mrs. America,” in the punchy words of Representative Bella Abzug (Margo Martindale), is that Schlafly “is a goddamn feminist. She may be the most liberated woman in America.” She just chooses not to see herself that way.***
Parallel to Schlafly’s story is an ensemble series about the 1970s feminist movement. Its principals aren’t introduced until the end of the first episode: among them, Abzug, Gloria Steinem (Rose Byrne), Representative Shirley Chisholm (Uzo Aduba), Betty Friedan (Tracey Ullman) and some less-celebrated E.R.A. warriors, including the G.O.P. activist Jill Ruckelshaus (Elizabeth Banks).***
The decade-long fight that unfolds is epic and swaggering, bubbling with cultural ferment and bouncing along on a soul-laced soundtrack. There is an “Avengers Assemble” feeling here, both in the gathering of historical figures — a young Ruth Bader Ginsburg even appears, briefly — and the bumper crop of acting talent. Waller is producing feminism’s most ambitious crossover event, and she relishes it.***
While Schlafly is the driving force of the series — it is not, after all, called “Ms. America” — the show spotlights one character at a time. The third episode, about Chisholm’s 1972 run for the presidency, rings familiar not just in the story of an outsider fighting what she calls a “rigged” party machine, but in the intra-movement clashes over whether race and gender are equal priorities. (Chisholm, whom Aduba gives a fierce magnetism, gets this from black politicians, too, who see her more as a “women’s” candidate. “I don’t look black to you?” she asks.)