The Cyptocurrency Gender Gap

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Ms. Magazine has the details here.  I can’t say I’m surprised at the stats.  Apart from whether cryptocurrency is a good/bad investment (and maybe women have figured out what isn’t great about it….), there are significant business opportunities that require fluency with electronic currency concepts and operations.

Long story short: attorneys, bankers, business advisors, entrepreneurs of all genders should get up to speed on on this rapidly-changing field.

I am aware of groups like Women4Blockchain and CryptoChicks that hold events with female professionals as their target audiences. Women4Blockchain is holding a “Hackathon & Conference” in a few weeks at NYU, for anyone in the New York area. It’s being billed as “The first blockchain hackathon combining business, legal, and technical minds.” Hard to evaluate the veracity of that claim, but it looks like a worthwhile program.

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Posted in Feminism and Economics, Feminism and Technology, The Underrepresentation of Women, Upcoming Conferences | Leave a comment

Stop Treating Professional Cheerleaders (and Women in General) Like Property

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Professional cheerleaders are in the news lately and this time it’s not for their horrifically low pay, which, supposedly, is being fixed across the NFL and NBA.  This time, it’s about the ridiculous rules that cheerleaders have to follow, mostly about their appearance and their social media behavior.  In addition to requiring them to buy their own uniforms, keep to an ideal weight, and even act as personal escorts for male sponsors, some teams even dictate what their cheerleaders can wear when they’re not working – no sweatpants in public, ever.  With regard to social media, cheerleaders’ social media activities are often monitored, sometimes without the cheerleaders’ knowledge, and they are forbidden from socializing with the players.

Needless to say, cheerleaders’ athlete counterparts do not have to follow any such rules.  This disparity in treatment led a New Orleans Saints’ former cheerleader to file an E.E.O.C. complaint against the team for gender discrimination after she was fired for posting a “racy” photo on Instagram and talking to a Saints player at a party.  A former Miami Dolphins cheerleader filed a similar complaint with the Florida Commission on Human Relations after being fired for publicly saying she is a virgin and openly discussing her Christian faith.  The crux of their complaints: similarly situated male employees are not treated this way.  Before anyone jumps in here, let me just remind you that cheerleaders are skilled athletes who are required to spend hours training and practicing their routines.

A brief history of professional cheerleading shows how we got here.  At first, only men were “yell leaders” at ivy league college sport events in the 1800s.  During the 1920s, women got involved and then took over the industry during World War II to fill the absences left by the men at war.  Things shifted again in 1960 when the general manager of the Dallas Cowboys decided to have “pretty girls” on the sidelines so the audience (including the television audience) would have something to look at.  In 1972 the mission expanded to have a full complement of professional dancers and the televised 1976 Superbowl sealed the deal.  Over time, beautiful cheerleaders were added to almost every NFL team and to every NBA team.  And the strict rules on appearance and socialization were added at the same time.

This history shows what cheerleaders were created to do: be objects that men can look at.  That’s why they have to look a certain way (follow the makeup “look” they have been given at the beginning of the season), weigh a certain amount (pass the “jiggle test”), wear only the right kinds of clothes when they aren’t working (nothing too skimpy but no sweatpants either).  Otherwise, they aren’t serving their role of pretty objects for men to fantasize about.

Cheerleaders’ socialization restrictions are clearly in place for the same reasons.  Supposedly, the socialization rules are put in place to “protect” the cheerleaders from players harassing them but the players themselves are not given any rules to follow; the onus is on the cheerleaders themselves to prevent their own victimization.  So cheerleaders are expected to both look good for the male gaze and be responsible for any negative fallout that results.  Moreover, the asymmetrical policy belies an underlying intent to control the cheerleaders, to dictate what they do and how they look even when they’re not at work, to essentially treat them like property that belongs to the team.

The two recent NFL gender discrimination complaints were filed in the wake of the #metoo movement, and one hopes that many more will follow.  Underpaid, controlled and devalued, cheerleaders deserve better.  What is more troubling to me, however, is that the way these women are treated speaks of a larger cultural issue of men feeling entitled to control women’s bodies.  The recent rash of “incel” violence against women – committed by men who feel they are not given the sex they are entitled to by women – and some of the media’s hand-wringing response to it further highlights how far we have to go before women, even professional cheerleaders in the public spotlight, are treated like equal human beings in control over their own bodies.  It’s 2018.  It’s time.

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Waldman on “The Preferred Preferences”

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Emily Gold Waldman (Pace) has posted to SSRN her article The Preferred Preferences, (forthcoming, 97 North Carolina Law Review (2018)).  Here is the abstract:

Emily Gold Waldman

In theory, customer preferences cannot justify discriminatory treatment by employers. The reality is more complicated. Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination.

This Article explores when and which customer preferences can enter those openings. In particular, I focus on what I deem the “preferred preferences”: the customer preferences that have formed the basis of successful employer defenses to discrimination claims. I identify six such preferences, ranking them according to how much deference they receive: (1) aesthetic appeal; (2) physical privacy from employees of the opposite sex; (3) psychological comfort/affinity with employees of the same sex; (4) an English-speaking environment; (5) the desire not to be proselytized to/feel judged; and (6) convenience. I also analyze a potential seventh “preferred preference”—diversity—that courts have yet to consider.

I show that each individual preferred preference is not just a one-off exception to the supposed irrelevance of customer preferences, but part of a collective body of doctrine that operates according to its own principles. Although courts are not explicit about this, these preferences intuitively strike courts as reasonable and natural, both because they do not seem invidiously discriminatory and because they align with ingrained social conventions and norms. As a result, courts either (1) consider them weightier than “mere preferences” and/or (2) view compliance with them as imposing only a minor burden on employees. The more that these two factors are satisfied, the more “preference deference” we see.

But courts are not striking the right balance in their preference deference. This largely stems from the tension between the claim that customer preferences are irrelevant in antidiscrimination law and the reality that they sometimes do count. In order to reconcile this dissonance, courts elevate the preferred preferences into virtual needs or minimize how much they burden employees. In the process, biases and inconsistencies sneak in. Courts should begin by acknowledging that all of these preferences are indeed preferences rather than virtual necessities, and show greater awareness of the ways in which policies responding to these preferences can impose differential burdens—particularly with respect to the protected characteristics of sex, race, national origin, and/or religion—on employees. Although I do not argue that all customer preferences should be held invalid, I propose two important guideposts in analyzing these issues: (1) a context-specific look at whether the preference relates to the employee’s actual performance of the specific job and (2) a broad look at the extent to which the preference limits equal employment opportunity in the workplace. Applying these principles, I argue that a re-ordering of the current preference hierarchy is in order.

The full article is available here.

 

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Gilman and Green on “The Surveillance Gap”

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Michele E. Gilman (Baltimore) & Rebecca Green (William & Mary) have posted to SSRN their article The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 NYU Rev. L. & Soc. Change 253 (2018). Here is the abstract:

Michele E. Gilman

Rebecca Green

We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for

example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to enjoy these benefits because they reside in a “surveillance gap.” These people include undocumented immigrants, day laborers, homeless persons, and people with felony conviction histories suffering collateral consequences of their convictions. Members of these groups often remain outside of the mainstream data flows and institutional attachments necessary to flourish in American society. The harms that surveillance gap residents experience can be severe, such as physical and mental health injuries and lack of economic stability, as well as data marginalization and resulting invisibility to policymakers. In short, having too much privacy can be as injurious as having too little.

The sources of the surveillance gap range from attempts to contain and control marginalized groups to data silos to economic exploitation. This article explores the boundaries of the surveillance gap, evaluates how this emerging concept fits within existing privacy paradigms and theoretical frameworks, and suggests possible solutions to enhance the autonomy and dignity of marginalized people within the surveillance gap.

The full paper is available here.

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Kukura on “Obstetric Violence” in @GeorgetownLJ

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Elizabeth Kukura (VAP, Drexel) has posted to SSRN her article Obstetric Violence, 106 Geo. L.J. 721 (2018).  Here is the abstract:

Professor Elizabeth Kukura

Maternity care in the United States is in a state of crisis, characterized by high cesarean rates, poor performance on various mortality and morbidity measures, and a steep price tag. There are many factors that impede access to high-quality, evidence-based maternity care for certain women. Grassroots organizers have raised awareness about the extent to which giving birth in the United States has become overly medicalized. Perhaps less widely known, however, is the extent to which women experience abuse, coercion, and disrespect while giving birth.

Inspired by activists in Latin America, advocates in the United States have begun to adopt the language of “obstetric violence” to describe and condemn such mistreatment. However, the existing research on obstetric violence is limited, which complicates the task of defining the problem and identifying solutions. To that end, this Article explores the profound mistreatment that some women experience during childbirth at the hands of their health care providers. It identifies various types of provider behavior that qualify as obstetric violence and paints a broad picture of how childbirth can be a damaging experience for some women, even when they leave the hospital with a healthy baby. Having developed a nuanced view of provider mistreatment and its implications, this Article then examines the current failure of law and regulation to provide meaningful prevention or recourse. It concludes by suggesting forms of advocacy within the legal and health care systems that offer promising approaches to shifting maternity care culture and, ultimately, to securing necessary changes in the tort system for women harmed by provider mistreatment during childbirth.

The full article is available here.

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Posted in Feminist Legal Scholarship, Women's Health | Leave a comment

Financial Planning Websites for Women are so . . . Pink

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From Glamour magazine, no less, this article, Financial Sites for Women Are Game Changing—but Do They Have to Be So Pink?  Here is an excerpt:

Yup, a pink purse; from Biker Boutique. No product endorsement intended.

If it succeeds, Dolla Dolla World will launch as an IRL pop-up, first in New York City, then roving across the country, where attendees can take part in workshops about everything from planning a personal budget to investing in the stock market. A project from Gen Z online think tank Irregular Labs (which is also the team that launched the lauded Gen Z community School of Doodle), Dolla Dolla World is woke, social media savvy, and yes, feminist. Whatever winds up happening with the funding, the branding is on point and already fully baked.

Sprinkled with cheeky GIFs and pops of Barbie Dreamhouse pink, the promo material has that certain digital native sparkle, from the vibe and the lingo to the swag and the promo video, which features a haughty Marie Antoinette holding court in a mall alongside Frida Kahlo, Joan of Arc, Cleopatra, and, somewhat inexplicably, the Virgin Mary. The platform is targeted to young millennial and Gen Z women, who are “more sophisticated and demand more from their money” than their predecessors, according to the fund-raising page. It’s also in good company: In 2018 financial fempowerment platforms are officially trending.

The full article is available here.  No product endorsement intended.

Sigh!  I myself teach Income Tax; Estate & Gift Tax; Wills, Trusts & Estates; and Corporations, so perhaps I’m not the target audience for these girly-fied websites, but I’m guessing I’m not the only woman who would prefer a little less…pink.

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I Support @ProfKFranke, Free Speech and Democracy

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From today’s New York Times, this story about Columbia Law professor (and longtime FLP blogroll member) Katherine Franke who was detained for 14 hours at Tel Aviv’s Ben Gurion Airport and then deported from Israel:

Professor Katherine Franke

Franke told [Roger Cohen of the NYT]: “They were not interested in why I was there. They already had a story. I was a leader of Jewish Voice for Peace. I was there to promote the Boycott, Divestment and Sanctions movement — all this untrue. It quickly ramped up to where the guy was yelling at me for lying. He Googled my name and came up with right-wing trolling sites like Canary Mission or AMCHA that push out ugly stuff about faculty held to be enemies of Israel.” How is it, Franke asked, that “Israel delegates to right-wing trolls the job of determining who should be admitted to Israel?”

Franke has visited Israel a half-dozen times before. She supervises dissertations by graduate students there. She had meetings scheduled with civil rights advocates. She has worked on the Academic Advisory Council of Jewish Voice for Peace and generally she supports its aims but is not a leader of it. A critic of Israel’s human rights record, she has boycotted conferences paid for by the Israeli government, but has participated in other academic conferences in Israel. Faculty members at Tel Aviv University and Hebrew University have told her they are going to write to express their outrage.

In other words, she’s the kind of tough critic a free and democratic society should welcome. Any healthy society is defined by its ability to accommodate civilized debate, not by cries of “traitor” directed at dissenters. Sending her and Vincent Warren, the executive director of the Center for Constitutional Rights, back to America was a measure of how far Israeli political culture has closed.

The full story is here. This treatment of two U.S. academics is outrageous and antithetical to true and meaningful dialogue about democracy and human rights laws in all their complexities.

I support Katherine Franke’s to speak as she sees fit and encourage all supporters of free speech to retweet this post or spread the news in a way that seems appropriate to you.

-Bridget Crawford

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Thomas on Leveling Down Gender Equality

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Tracy A. Thomas, University of Akron School of Law, is publishing Leveling Down Gender Equality in volume 42 of the Harvard Journal of Law and Gender (2018). Here is the abstract.

The U.S. Supreme Court in Sessions v. Morales-Santana (2017) revived its decades old jurisprudence of “leveling down” — that is, curing an equal protection violation by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges that continuation of the conventional acceptance of leveling down or the “mean remedy” and the assumption that leveling down is an equally legitimate remedial option as leveling up for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only rarely by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality as well as the correlative due process right to a meaningful remedy.

Download the article from SSRN at the link.

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@SheWritesToLive on “Why I’m Giving Up on Intersectionality”

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In Quartzy (a “weekly dispatch about living well in the global economy”) over at QZ.com, contributing writer Tamela J. Gordon has an essay entitled, Why I’m Giving Up on Intersectional Feminism. Here is an excerpt:

As time progressed, any hope that intersectional feminism would be this magical path to racial and cultural harmony between white women and non-white women disappeared. Despite the legion of spaces dedicated to intersectionalism—including my own book club, it always seemed that every environment was divided by race. I know what sisterhood is and I know what white women think sisterhood is; they got it all wrong.

Deep down inside I knew what the problem was, I just didn’t have the heart to admit it. Intersectional feminism doesn’t mean anything if white women still struggle to support and advocate for those who’s identities cross intersections that are foreign to theirs.

The full article is available here.  You can follow Tamela Gordon on Twitter @SheWritesToLive.

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ClassCrits New Website and CFP: “Rising Together for Economic Hope, Power and Justice,” Nov 2 & 3, 2018

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ClassCrits has a new website here.

For those who aren’t familiar with this group, ClassCrits is a self-described (see here) “network of academics and activists focused on economic justice. Formed in 2007 in response to growing economic inequality, the name ‘ClassCrits’ reflects our connections to other critical legal scholarship movements, such as critical feminist theory, critical race theory, LatCrit, and queer theory.”

Anyone who is interested in joining the group’s mailing list can become an “Associate Member” at no charge. To become a full “Member” with rights to vote for the ClassCrit board and to receive a discounted conference registration fee, one must pay $25 in annual dues.

ClassCrits has issued its call for participation for its eleventh annual conference to be held at West Virginia University College of Law in Morgantown, WV on November 2 and 3, 2018.  The theme for the 2018 conference is “Rising Together for Economic Hope, Power and Justice.” Here is an excerpt from the CFP:

The current administration continues its reactionary campaign to “Make America Great Again” by rolling back progress in key areas of labor, environmental, health, and civil rights.

A rising and brazen alt-right movement, with its calls for a white ethnostate, empowered by Trump’s victory, continues to grow ever more vocal at campuses across the country. Immigrants are being targeted for deportation, building on authority laid down by the past administrations. Trump’s saber rattling creates the real possibility of a military showdown between the US and North Korea. And the new federal tax law, fueled by plutocratic influence, will exacerbate income inequality by shifting even more money from working Americans to wealthy people and corporations. * * *

Catalyzed by the movement for Black Lives, the West Virginia teacher’s strike, the Women’s March, the Dakota Access Pipeline protests, and the #MeToo movement, an unprecedented number of people are speaking up to challenge workplace sexual harassment, wage disparities, and other forms of patriarchal economic and social oppression.

Now is the time to rethink issues of basic political economy to form the basis of a new politics that seeks to reduce inequality and wealth disparity, and reinvigorate civil rights protections for disadvantaged communities.

The full CFP is here.

Proposals for panels or individual papers are due by  June 1, 2018.  More details are available here. The conference organizers especially welcome junior scholars and have planned works-in-progress sessions for junior scholars to get feedback in small group sessions.

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Maynard on “How the NCAA Infringes on the Freedom of Families”

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Goldburn P. Maynard Jr. (Louisville) has published in the Wisconsin Law Review Online his essay “They’re Watching You: How the NCAA Infringes on the Freedom of Families.”  Here is an excerpt:

This Essay argues that the NCAA’s surveillance of the family and enforcement of its rules amount to a sumptuary restraint on the families of talented NCAA athletes. In order to keep its cartel in place, the NCAA must bar not only the athlete but everyone in his family from extracting any value from his talent. Luxury purchases are in effect barred for poor families. This is where the NCAA’s enforcement and investigative arms step in. Disproportionately, the families of black athletes are put on notice that any signs of extravagant consumption (that is, beyond the level they should be able to afford) will lead to investigations and potential suspensions. At the moment when these families should be happiest, they have to worry lest they give off any appearance of living beyond their means. I argue that the NCAA’s rules disproportionately disadvantage poor individuals of color. This underscores the inherently unjust nature of the college sports system and the complicity required to keep it in place. * * *

The NCAA’s rules affect all athletes, but they disproportionately disadvantage black ones. Once we limit the college athletic arena to the big sports (i.e., football and basketball) and the revenue generating schools, the statistics are stark. A recent study by Shaun Harper found that black men made up only 2.5 percent of undergraduate students enrolled across all 65 such institutions, but they comprised 56 percent of basketball teams and 60 percent of football teams. The study also showed that 16 percent of those coaches at these schools were black. The average salary for the 65 athletics directors in the major conferences was $698,755, but just 14.7 percent of them were black. And none of the commissioners of those conferences, who earned on average $2.58 million annually, were black.

Citations omitted. The full essay is available here.

The essay draws on financial history, sports law, family law, theories of punishment/discipline and critical race theory to provide a new spin on a topic that may be familiar to many sports fans. In a footnote, the author acknowledges that the University of Louisville is currently subject to NCAA sanctions and has weathered quite a few NCAA scandals (see, e.g., here). It is not lost on me that I’m a professor at a school currently suffering sanctions.  Professor Maynard writes, “Fortunately, the NCAA has made itself so unpopular that no one should suspect that there is a causal connection” between his employer and his criticism of the NCAA.

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Boo-hoo! Male Artists Fret About Depicting the Female Form

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In a think-piece with the title Who’s Afraid of the Female Nude?, over at The Cut, author Michael Slenske asks, “Is it still an artistically justifiable pursuit for a man to paint a naked woman?” He proceeds:

13th century depiction of Adam and Eve from portal of the Cathedral of St. Lawrence, Trogir, Croatia (13th century). Source: http://www.christianiconography.info/adamEve.html

To answer this question, I reached out to a number of prominent male artists known for doing just that (as well as for painting nude men). But most of them — including Currin, Carroll Dunham, Jeff Koons, and the young Mexican-American painter Alex Becerra (some of whose nudes are drawn from escort ads) — declined to talk about their work’s relationship to the current social climate. Presumably, they worried about unintentionally saying the wrong thing that would then echo endlessly across social media, damaging their reputations. For emerging artists, there is the fear of a possibly career-derailing gestalt fail.

As expected, essay is full of quotes from male artists blaming hyper-sensitive women for making it impossible for them to express themselves in all their artistic glory.

Read the full piece here, along with a contrasting/companion piece by author Molly Langmuir. Langmuir’s article focuses on seven female artists’ take on the way they represent the female form in their art.

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Haverford College Seeks 1-Yr, Pre-Tenure Visitor for Peace, Justice and Human Rights Program

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From the FLP mailbox:

Haverford College invites applications for a one-year visiting Assistant Professor in its Peace, Justice and Human Rights Program for AY2018-19. The position is open to scholars at all pre-tenure levels with training in the humanities or social sciences who focus in their work on questions of justice, peace and conflict, human rights and related fields. Candidates should be able to teach an introductory course in issues of human rights, as well as offer more specialized courses. The teaching load is five courses.

Candidates for the position should have a Ph.D and demonstrated evidence of strong teaching at all levels of the curriculum. ABD candidates may apply but must also provide assurance of completion of the degree by September 1, 2018 and evidence of relevant teaching experience. Salary is competitive and commensurate with experience and qualifications.

Those wishing to be considered for the job should submit a cover letter addressing your fitness for the position, curriculum vitae, a sample course syllabus for “Intro to Peace, Justice and Human Rights,” and names of three references to jstauffe@haverford.edu. Applications will be read on a rolling basis until the position is filled.

The program in Peace, Justice and Human Rights is an interdisciplinary concentration. Its goal is to foster cross-disciplinary collaboration and creative new perspectives on entrenched problems. For more information, see here.

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@GonzagaLaw Seeks Lecturer for Federal Tax Clinic

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From colleagues at Gonzaga:

GONZAGA UNIVERSITY SCHOOL OF LAW seeks applicants for a three-quarter-time Lecturer in its Federal Tax Clinic, with flexibility to serve in other areas as needed by the clinical program. This position is dependent on a Low Income Taxpayer Clinic (LITC) grant awarded from the IRS. Gonzaga Law School has been receiving the LITC grant for over 15 years. Gonzaga Law embraces its humanist mission of educating the whole person and preparing lawyers to serve marginalized populations in an increasingly international legal market.

MINIMUM QUALIFICATIONS: Juris Doctor degree earned from an ABA-accredited law school; experience practicing in the area of Federal tax law; excellent academic records; superior recommendations; eligibility to supervise law students. Complete information about eligibility is available here .

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Henderson on “The Intersectional Life and Times of Lutie A. Lytle”

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Taja-Nia Y. Henderson (Rutgers) has published a new article in the Iowa Law Review:

Lutie Lytle

I Shall Talk to My Own People’: The Intersectional Life and Times of Lutie A. Lytle, 102 Iowa L. Rev. 1983 (2017). For those not familiar with Lytle, she was the daughter of slaves who became a law professor. Here is an abstract of the article:

In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments — her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school — have been largely lost to historians of legal education. She is not among

those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.

The full article is available here.

Taja-Nia Y. Henderson

Some colleagues may not know that Professor Lytle’s legacy lives on in the Lutie Lytle Black Women Law Faculty Writing Workshop, an annual workshop for current and aspiring black women law faculty.  More info about the Lytle Workshop is available here.

 

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Parenting in an Activist High School

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High school students in Parkland, Florida have showed us that our teenagers can be brave and effective when mobilized around a cause. Their work is breathtaking to read about. My children’s high school in New Jersey also made national news recently for related reasons. Last year around the same time the high school was also in the national news. Both times students themselves created the story—using their emerging-activist voices to protest a school policy. This year it is about both a teacher who was suspended for reasons we don’t fully know, but that appear to center on things said during a class discussion about school safety, and also underlying security concerns that our students find unacceptable in the wake of the Parkland and other school shootings.

In the last week of February, students planned and executed two school walkouts, and flooded school superintendent and school board meetings. They appeared on local and national news. After initially threatening the students with suspension and the rescission of their ability to participate in graduation, the senior class trip, and the prom, the school principal wrote a humble retraction letter and the school board began work on a student-activism policy.

Just as Dahlia Lithwick noted about the education system in Parkland, students in our school system enjoy an education that affords them opportunities to learn how to speak in public. They are also taught to speak out on issues they care about, in effect, making them activists-in-training. My kids’ —two teenage daughters—activism generally centers on inclusivity because their activities, volunteer hours, and internships bring them in direct contact with kids who come from different backgrounds and perspectives. They have also participated in national marches for women and for science. Each daughter has addressed our hard-working school board on more than one occasion, talking about issues they care about, ranging from the health issues related to idling cars in school parking lots to the lack of women’s history or gender studies in the high school curriculum.

The first use of Kamagra Oral Jelly coincided with a bad dream, so there was dizziness and generally it was not good. Next time it was normal. Sometimes the head rustles slightly, but in general it is quite acceptable. After several uses, the action lasted longer than expected, possibly for psychological reasons. Summary: it is quite suitable, but still Cialis (tadalafil) is more sympathetic.

In my town, the residents agree that schools should be a laboratory for learning to become fully-empowered citizens. That helps explain the regular standing-room-only school board meetings we have been seeing that are filled with as many students as parents. But all of this has also led to some weird calculations that the students have had to make concerning how being an activist can affect their regular studies and their relationships with their peers.

As their parent and a lawyer, I have given a lot of advice and encouragement to my daughters about making their voices heard as they have grown up. My late father’s greatest joys in his law practice came from his ACLU and other civil rights work, and I am delighted that my daughters are following suit. That said, I feel conflicted in advising as a parent because it’s all so new. I believe the questions my daughters ask me are telling of the pressures teens face when trying to balance their desires to change the world with the more mundane aspects of actually living in the world. Continue reading

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Sparer Forum @BrooklynLaw March 22: Low-Income Workers and Sexual Harassment

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Thursday, March 22
4 to 6 p.m.
Reception to follow

Brooklyn Law School
Subotnick Center
250 Joralemon Street
Brooklyn

RSVP online
About the Forum
Amid all of the uproar about sexual harassment in the workplace, little attention has been paid to the lives of women who work in low-income jobs. These women (and sometimes men) often suffer from harassment by supervisors and co-workers on a daily basis and face additional intersectional discrimination on the basis of race, national origin, and age. Their claims rarely surface in the courts since attorneys are typically reluctant to represent low-wage earners. This program will consider the legal and policy issues specific to these workers that should be addressed as employers, courts and legislators re-examine their understanding of sexual harassment.

The annual forum of the Edward V. Sparer Public Interest Law Fellowship Program will feature Tanya K. Hernández, Archibald R. Murray Professor of Law, Fordham University School of Law, a leading scholar in intersectional discrimination; Elizabeth S. Saylor, Partner, Emery, Celli, Brinckerhoff & Abady LLP; LaDonna Powell, the plaintiff in a major sexual harassment lawsuit involving the security guard industry; and Minna Kotkin, Professor of Law and Director, Employment Law Clinic, Brooklyn Law School. Elizabeth Schneider, Rose L. Hoffer Professor of Law and Director of the Sparer Program, Brooklyn Law School, will moderate.

The Edward V. Sparer Fellowship Program
Brooklyn Law School alumnus, Professor Edward V. Sparer, was one of the leading poverty lawyers in this country. The Edward V. Sparer Public Interest Law Fellowship Program was established in 1986 to honor him and encourage law students and lawyers to carry on his legacy. For more information about the Sparer Fellowship program, visit www.brooklaw.edu/sparer.

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Posted in Feminism and the Workplace, Sexual Harassment, Socioeconomic Class, Upcoming Conferences, Women and Economics | Comments Off on Sparer Forum @BrooklynLaw March 22: Low-Income Workers and Sexual Harassment

Welcome to the Blogroll, @CardozoLaw Colleagues!

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Over the last few days, we have welcomed to the blogroll several new fabulous feminist colleagues from the Benjamin N. Cardozo School of Law at Yeshiva University:

So glad to have so many Cardozo colleagues, including @CardozoLaw’s dean, join us!

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Welcome to the Blogroll, Loyola LA Colleagues!

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In the last two days, we have welcomed to the blogroll twelve new fabulous feminist colleagues from Loyola Law School Los Angeles:

They join longstanding blogroll member Yxta Maya Murray.

So glad to have so many Loyola LA colleagues join us!

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Campbell on “Women, Poverty, Equality The Role of CEDAW”

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Meghan Campbell (University of Birmingham [U.K.]) has a new book published by Hart Publishing called Women, Poverty and Equality: The Role of CEDAW. Here is the publisher’s description:

The stark reality is that throughout the world, women disproportionately live in poverty. This indicates that gender can both cause and perpetuate poverty, but this is a complex and cross-cutting relationship.The full enjoyment of human rights is routinely denied to women who live in poverty. How can human rights respond and alleviate gender-based poverty? This monograph closely examines the potential of equality and non-discrimination at international law to redress gender-based poverty. It offers a sophisticated assessment of how the international human rights treaties, specifically the Convention on the Elimination of Discrimination Against Women (CEDAW), which contains no obligations on poverty, can be interpreted and used to address gender-based poverty. An interpretation of CEDAW that incorporates the harms of gender-based poverty can spark a global dialogue. The book makes an important contribution to that dialogue, arguing that the CEDAW should serve as an authoritative international standard setting exercise that can activate international accountability mechanisms and inform the domestic interpretation of human rights.

Readers of the Feminist Law Prof blog can receive a 20% discount on the book by contacting the marketing manager at Hart and mentioning that you saw the post here at FLP.

 

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Posted in Feminist Legal Scholarship, Sisters In Other Nations, Socioeconomic Class, The Overrepresentation of Women, Women and Economics | Comments Off on Campbell on “Women, Poverty, Equality The Role of CEDAW”

Keeping Up With Feminist Scholarship in Other Disciplines

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Feminist Periodicals is an online quarterly generated by the Office of Gender and Women’s Studies Librarian at the University of Wisconsin. It reprints the tables of contents of 150 (non-law) magazines and journals for researchers scanning the current literature in the field of Gender and Women’s Studies. I find that this is a fantastic way to quickly become familiar with articles being published non-law fields.

  • Feminist Periodicals has recently undergone a revamp that makes it more user-friendly and accessible.  Here are some cool methods of searching the resource:
  • One can search and browse via keywords, tags and collection name here.
  • There are links to all of the recent periodicals here.
  • You can browse the most recent issue here.

The display is pretty good on mobile devices, too.  Good way to keep up with feminist scholarship when you’re waiting for the subway or in line at the grocery store!

Thank you to the Gender and Women’s Studies Librarian at the University of Wisconsin.  This is a great service for us all!

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Weissman on “Due Process Should Apply to Victims, Too”

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President Donald Trump recently announced that he favors due process of law. In this instance, however, his concern was on behalf of powerful men who have faced public allegations of gender violence and sexual harassment. * * * Domestic violence victims and advocates know full well the benefit of procedural justice. When administered in a fair and respectful manner, it provides a sense of legitimacy about the law, which in turn serves to encourage people to obey the law. Procedural justice requires all parties in a legal matter to be able to state their case, to be heard, and to be treated with the dignity we might expect to be an inherent characteristic of an unbiased judiciary. * * *

Judges often refuse to consider the full relief that victims require to stay safe, repeating a refrain that “granting custody in DVPO cases is something I don’t do.” Judicial demeanor often is a factor in whether a case is properly heard. Judges may display boredom, appear impatient, or otherwise indicate an eagerness to hurry through the proceedings with little “due process” accorded to either the victim or the perpetrator….Would that the president tweet about that.

Read the full op-ed here.

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Tenzer on #MeToo, Statutory Rape Laws, and the Persistence of Gender @ProfLGTenzer

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Leslie Y. Garfield Tenzer, Pace University School of Law, has published #MeToo, Statutory Rape Laws, and the Persistence of Gender. Here is the abstract.

In the late 1970’s and early 1980’s, feminists pushed for reform of statutory rape laws. At that time, states’ laws explicitly provided that only males could be charged with the crime of having sexual intercourse with a female below a certain age. The victims of statutory rape were always female. Feminists advocated that the law should be rewritten in gender-neutral terms. They hoped that formal equality in statutory rapes laws would lead to the recognition that both males and females have sexual agency and greater equality in society as a whole. Unfortunately, the prosecutorial discretion granted by the language of these laws perpetuate rather than abolishes traditional male/female stereotypes.

In October 2017, a social movement erupted out of the unacceptable exercise by men of their power over female subordinates. The #MeToo movement exposed the widespread prevalence of sexual harassment, sexual abuse, and sexual violence that women experience in the workplace. The #MeToo movement’s objective is not dissimilar to the goal of proponents of gender-neutral statutory rape laws, which seek to have men and women treated equally. Unfortunately, #MeToo and state adoption of gender-neutral statutory rape laws share another phenomenon. Both the #MeToo movement and the practical enforcement of gender-neutral laws create a “victimology paradigm.” It seems that recognizing inequality among genders requires conceding perceived female frailties.

Using the example of statutory rape laws, this article explains how movements for increased equality between men and women can fail to meet their stated goals. The article begins by exploring traditional statutory rape laws, which stereotypically gendered perpetrators and victims. It follows with a discussion of the political forces behind the nation-wide change to neutralize gendered statutes. The article dedicates significant attention to the flaws of gender-neutral statutory rape laws, which, by removing gender designations of victims and perpetrators, grant prosecutors unchecked discretion to choose which partner to charge in cases of mutual consent to the same prohibited conduct. Today prosecutors are three times more likely to charge males with statutory rape than they are to charge females with the crime. Parents of females’ alert authorities of prohibited sexual activity of their daughters at a rate that is largely disproportionate to that of parents of males. Prosecutorial stereotyping as it pertains to prohibited sexual intimacy between consenting teens has created an unfortunate return to the female-victim paradigm that proponents of gender-neutral statutory rape laws sought to erase. The article concludes with a recommendation for achieving a more balanced application of gender-neutral laws.

Cultural movements can have unintended consequences. This article explains how the women’s rights movement’s campaign to neutralize gendered statutory rape laws failed to achieve its goal of an equal society. Today, a growing number of voices suggest that #MeToo, like the practical application of gender-neutral statutory rape laws, disempowers women. This article exposes the pernicious effects of the legislative shift to gender neutrality and explains how it serves as a cautionary tale to the #MeToo movement and the fight for workplace equality.

The full text is not available for download from SSRN.

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Funny/Not Funny Parody of Non-Disclosure Agreement in Sexual Harassment Cases

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Feminist law prof Yxta Maya Murray (Loyola-LA) has published with the LA Review of Books a “Leaked Non-Disclosure Agreement Between [Name Redacted] and [Name Redacted] International.” Here is an excerpt:

Professor Yxta Maya Murray

The Releasee understands that the Releasor may disclose via screaming in a stall of the Releasee’s Women’s Restroom, half-articulate yet still overhearable crying to her mother on her iPhone, self-medicatingly drunken texting to a college friend, horrifyingly detailed complaint-making to a journalist, and/or engaging in other forms of post-traumatic candor that must be suppressed through legally binding mechanisms as soon as possible, information relating to an alleged sexual assault, which the Releasee does not admit occurred, and never really happened, but which may have been performed upon the Releasor’s person in a hotel room during an ill-advised “meeting” that an employee of the Releasee, hereinafter referred to as “the Rainmaking Partner,” held with her in order to hammer out details about his wealth, maleness, social status, and consequent license to socialize in a lively manner with female subordinates, and which is hereinafter referred to as “Confidential Information.”

Read the full piece here. It’s very good.

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Are Female Babies Worth “Less” Than Male Babies?

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Lawrence Spizman (SUNY Oswego, Economics) has posted to SSRN a new paper Damages to a Child and the Fair Calculations Act. Here is the abstract:

The Fair Calculations Act introduced in the House of Representatives (H.R.6417) and Senate(S.3489) seeks to prohibit courts from using race, ethnicity, gender, religion, or actual or perceived sexual orientation in awarding damages to plaintiffs in civil actions. The following case study examines economic damages of a male and female child suffering the same traumatic injury shortly after birth assuming the Fair Calculation Act becomes law.

Some of the interesting conclusions from the paper:

[W]hen gender neutral work-life, earnings, and life expectancy are used, the economic damage awards for females with less than a high school degree increase by $78,133 (0.79 percent) compared to gender specific model increasing $94,553 (.9 percent) with a high school degree. The largest increase for females using gender neutral data is $147,463 (1.19 percent) with a Bachelor’s degree. Male economic losses also increased using gender neutral work-life with less than a high school degree ($30,480 or .031 percent) and with a high school degree ($59,608 or 0.57 percent). Economic loss for males with a college degree declined by $725,661 or 5.46 percent) using gender neutral data.

* * * Assuming the jury awards the same yearly damages for pain and suffering to both children, the pain and suffering award to the female child will decline using gender neutral life expectancy while the male child’s award for pain and suffering will increase. Pain and suffering is always a “wild card” in jury awards but, all things the same, a gender neutral life expectancy will lower the award to a female compared to gender specific life expectancy.

For torts scholars, trusts & estates scholars, tax scholars and others whose work involves life expectancy calculations, this paper is an interesting read.  The full paper is available here.

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Law Student Scholarship Opportunity – Katherine Baird Darmer Equality Scholarship

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The M. Katherine Baird Darmer Equality Scholarship Fund was named in memory of the late M. Katherine Baird Darmer, an activist, law professor, and champion of change for the LGBT community in Orange County and beyond. The Fund, which is sponsored by the Orange County Lavender Bar Association (OCLBA) and the Orange County Equality Coalition (OCEC), will award one or more scholarships each year to academically qualified law students who have demonstrated commitment to advancing equality for the lesbian, gay, bisexual, and transgender community in Orange County. Determinations regarding the amount and number of awards are at the sole discretion of the scholarship committee jointly appointed by OCLBA and OCEC and the Liberty Hill Foundation.

ELIGIBILITY CRITERIA

To be considered for the Darmer Equality Scholarship, an applicant must meet all of the following criteria:

  • Be a current or incoming law student.
  • Demonstrate commitment to advancing equality for the LGBT community in Orange County.
  •  Make every effort to be available for a personal interview should one be required.

More information and applications are available here.  Deadline is 5:00 p.m. on May 15, 2018.

H/T Francine Lipman

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Gonzaga Seeks LRW Visitor

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From colleagues at Gonzaga:

Gonzaga University School of Law seeks an LRW visitor. This position is a visitor appointment that begins August 2018 and ends May 2019. This position is a non-renewable sabbatical replacement. The Law School anticipates the visitor will teach up to three sections of Legal Research and Writing each semester. Visiting faculty provide instruction to law students, service to the law school and University and engage with other professionals and the public to contribute to the intellectual exchange of ideas, to improve the law, and to educate the profession about the law.

Essential Functions
Minimum Qualifications
o Juris Doctor degree earned from an ABA-accredited law school
o Three years of legal practice experience
o Excellent research and writing skills
o Excellent academic record

Desired Qualifications
o Teaching experience at a law school
o Excellent teaching evaluations
o Ability to interact with students and colleagues in a collaborative environment

Posting Detail Information
Open Date 02/09/2018
Close Date 03/01/2018

Gonzaga Law embraces its humanist mission of educating the whole person and preparing lawyers to serve marginalized populations in an increasingly international legal market.

To apply, please visit our website at www.gonzaga.edu/jobs. Applicants must complete an online application and electronically submit (1) a cover letter, (2) a curriculum vitae, and (3) the names and contact information for three professional references. Inquiries can be directed to the Appointments Chair, Prof. Kim H. Pearson, School of Law, pearsonk@gonzaga.edu. Position closes on March 1, 2018, midnight, PST. For assistance with your online application, call Human Resources at 509.313.5996.

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Richmond Times Editorial Board Supports Ending Virginia’s Tampon Tax

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From the Richmond Times-Dispatch editorial board on January 28, 2018:

As a general rule, taxes ought to serve a single function: raising revenue for the government. Lawmakers should not use the tax code as a vehicle for social engineering — giving favorable tax treatment to some constituents and activities and disfavoring others.

In Virginia, though, that horse left the barn long ago. So legislation before the General Assembly aimed at “menstrual equity” deserves approval. The bills would make tampons and sanitary pads more readily available in schools and correctional institutions, and would exempt them from the sales tax.

Advocates say the products are a necessity — which indeed they are. And if need justifies a tax exemption, then the case for exempting hygiene products certainly equals or outweighs the case for many other items that currently are exempt from Virginia’s sales tax, such as gold bullion; rabbits, quail, and llamas; eggs sold at roadside stands; firewood; and suborbital space facilities and space propulsion systems. (We don’t want people skipping over the border to buy their suborbital space facilities in North Carolina, after all.)

Read the rest of the editorial here.

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Posted in Women and Economics, Women's Health | 1 Comment

CFP – Feminist Judgments: Employment Discrimination Cases Rewritten

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The U.S. Feminist Judgments Project seeks contributors to rewrite judicial opinions to reflect feminist perspectives, and commentaries on the rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Employment Discrimination Opinions Rewritten. This edited volume is part of a collaborative project among law professors and other legal specialists to rewrite, from feminist perspectives, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Cambridge University Press has published the first volume in the series, Feminist Judgments: Rewritten Tax Opinions (2017).  Other approved volumes in the series include family law and reproductive justice. Cambridge University Press welcomes proposals for additional volumes in the series that focus on other areas of law.

The Employment Discrimination volume will be edited by Ann McGinley and Nicole Porter. We seek prospective authors for a number of employment discrimination opinions, listed below.[1] We have selected the cases with the goal of creating a body of cases that can be largely internally consistent and that ultimately would improve employment discrimination law from feminist perspectives. Opinion authors will be given the freedom to choose how to rewrite their opinions from various feminist perspectives. The volume editors will provide initial guidance on how the rewritten opinions might have improved the outcomes for all women (and some men), regardless of the particular feminist approach taken by the author of the rewritten opinion. We are open to your ideas, and would love to discuss them and our own ideas with you. We are particularly interested in opinions that use intersectional and multidimensional analyses, and that recognize the rich diversity of individuals who are protected by the employment discrimination laws.

Interested prospective contributors should submit a proposal to either: (1) rewrite an opinion (subject to a 10,000 word limit, including footnotes), or (2) comment on a rewritten opinion (4,000 word limit, including footnotes). Unlike the original volume, and because we seek to create a body of consistent opinions, all rewritten opinions should be written as majority opinions of the court, without regard to whether political or practical considerations would have permitted the author to achieve an actual majority at the time of the original opinion. Authors of rewritten opinions will be bound by the law and precedent in effect and supplemental materials available at the time of the original decision. Commentators should explain the original court decision and its context, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. Commentators may also explain how the rewritten opinion would have changed the law, for example, by noting subsequent cases that would not have been decided or would have been decided differently, if the rewritten opinion had been adopted.

Those who are interested in rewriting an opinion or providing commentary should apply no later than February 12, 2018, by e-mailing the following information to Ann McGinley, ann.mcginley@unlv.edu and Nicole Porter, nicole.porter2@utoledo.edu:

  1. Your CV, your areas of employment discrimination interest or expertise, and why you are interested in and well suited to participate in this project. We are committed to including authors and commentators from diverse backgrounds and encourage applications from authors representing traditionally marginalized groups (for example, gender, race, ethnicity, sexual orientation, or status within the academy). If you feel an aspect of your personal identity is important to your work on this project, please feel free to include that information.
  2. Your top three preferences from the list of proposed cases below, whether you propose to write a commentary or a feminist majority opinion; and
  3. Any time constraints and other obligations that may impact your ability to meet the submission deadlines.

The editors will inform selected authors and commentators by February 26, 2018. After we have selected the authors and commentators, and the authors have had an opportunity to begin thinking about their drafts, we plan to host a Feminist Judgments Writing Workshop at the University of Nevada, Las Vegas, Boyd School of Law on April 20 and 21, 2018. All authors, commentators, and members of the Advisory Board are invited and urged to attend. Selection of authors does not depend on their ability or willingness to attend the April workshop. Draft opinions will be due by June 30, 2018. Draft commentaries will be due by August 15, 2018. If review and approval takes longer than expected, we may have to extend these deadlines, as we do not expect authors to begin to draft opinions until after the publisher has accepted the proposal for publication.

See below the fold for the list of proposed cases.

Continue reading

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Posted in Call for Papers or Participation, Employment Discrimination | 1 Comment

For Men in the Legal Academy Who Want to Help Fight Sexism

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Men in the legal academy, if you want to help fight sexism…

…do cite good scholarship by women. Empirically survey your own footnotes before sending in that manuscript….don’t accept invites to speak on panels without racial and gender balance. Ask the question before accepting….do call out other men who speak over women in faculty meetings.

…do ask each law review that offers to publish your article about the racial and gender balance of the authors the journal has published in the last five years.

…do advocate for key committee leadership by women of all colors, men of all colors and other minority groups. Faculty hiring might look a wee bit different.

…do look at racial and gender salary disparities on your own faculty, if the information is publicly available. Ask questions. In. Front. Of. Everyone.

…don’t close your office door fully when meeting with any students, especially women.  In confidential situations, draw the door partially closed and speak quietly.

…don’t date students.  If you respect women, men, and yourself, you can wait until after graduation.

…don’t call on a female student to give the “woman’s perspective;” don’t call on a student of color to give the “black/brown/Asian/other” perspective.  No one speaks for an entire group. No one student should carry the burden of educating the rest of the class. You’re the teacher.

…don’t wait for a student to raise issues of gender, race, class, sexuality.  Lead by example and signal that these issues can be important.

…when teaching Crim Law, do remember that there are rape survivors in your classroom.  They are not snowflakes; they are strong; but be considerate.

…don’t comment on any student’s appearance.  If the student needs some friendly advice about what is or is not appropriate clothing for class or interviews, there’s a Dean of Students for a reason.

…do instruct moot court judges that they are not to comment on students’ appearances. If there are concerns that could hurt the student’s career, rely again on the Dean of Students, not the moot court judges, to convey the info.

…don’t call a mixed-gender group of staff or students “guys” (e.g., don’t say, “Have the guys in the IT department check your computer,” when there are women who work in the IT department, too.)

…do object to the use of the word “guys” to refer to a mixed-gender group of students, colleagues, staff (e.g., “Those guys did a great job”). Your vocal objection to the use of “guys” in a case like this would be a rare instance in which “mansplaining” is welcome, especially to other men. Don’t make it women’s work to be the ones who remind everyone else of the importance of gender-neutral language. Your school may even have a policy on it.

These suggestions are compiled and modified from tweets sent by me via @FeministLawPrfs earlier this month.

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Posted in Academia, Feminists in Academia, Law Schools, Law Teaching, Legal Profession | 2 Comments

SMU Series on “Excavate, Energize, Equalize: Propelling American Women in Thought and Deed”

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Some of you may be interested in the event linked here that I am helping to organize, along with colleagues in the SMU departments of Theology, History
and English.

This third event in our SMU Dedman College Interdisciplinary Institute cluster titled “Excavate, Energize, Equalize: Propelling American Women in Thoughtand Deed,” features speaker Judy Norsigian, author of the multi-volume book Our Bodies, Ourselves.

The event will be held on February 22 at 3:30 p.m. in The Great Hall in Prothro Hall of SMU Perkins School of Theology.

You may register here.

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Posted in Reproductive Rights, Sex and Sexuality, Upcoming Conferences, Women's Health | 1 Comment

CFP: American Univ. Journal of Gender, Social Policy & the Law Issue on Sexual Harassment and Sexual Assault

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From the FLP mailbox:

You are invited to submit articles for possible inclusion in a special themed edition of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of sexual harassment and sexual assault.

The Journal will consider articles that propose a new argument or perspective about the legal issue and that include analysis of U.S. law in addition to any international focus. Authors seeking publication in the upcoming issue should submit their pieces by January 5, 2017.

See below the fold for the official Call for Papers with detailed requirements and deadline information, and direct questions and final submissions to the Senior Articles Editors: Sahar Ahmed and Kathryn Suma at gl-articles@wcl.american.edu.

Continue reading

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Univ. of Ottowa Visiting Scholar in Women’s Studies 2018-2019

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From the FLP mailbox:

The Institute of Feminist and Gender Studies at the University of Ottawa (Ottawa, Canada) is inviting applications for its Bank of Montreal Visiting Scholar in Women’s Studies for 2018-2019. The deadline to apply is December 31, 2017. More information here.

The purpose of this fund is to attract highly qualified researchers working on feminist, women’s or gender issues. The Visiting Scholar’s stay should be from three (3) to six (6) months within the university’s academic year, from September to April.

The Institute of Feminist and Gender Studies invites applications from Canadian and non-Canadian scholars, both tenured and untenured faculty, and from post-doctoral or independent scholars who are pursuing critical feminist research. Individuals must have a Ph.D. to be considered for this position.

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Of Mosquitoes and “Moral Convictions”: How Rolling Back the Affordable Care Act’s Contraceptive Mandate Jeopardizes Women’s and Children’s Health

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December 5 is the deadline to submit comments on the Trump Administration’s recent action to gut the Affordable Care Act’s contraceptive mandate, which requires employer-sponsored health plans to ensure women’s access to free, effective contraception.  This decision, announced in October in two Interim Final Rules, threatens serious harm to American children, because of the risk that women who lack access to contraception will become pregnant, contract Zika, and unwittingly transmit the virus to their developing fetus.  Since 2015, as an exponentially expanding Zika epidemic swept across Latin America, the United States, and its territories, thousands of children around the globe have been born with microcephaly.  On the U.S. mainland alone, almost 100 children have been diagnosed with microcephaly or other Zika-associated birth defects.   In Florida, the Department of Health has recently reported a new, sexually transmitted, case of Zika in Miami-Dade County.  In 2017 alone, 225 cases of Zika infection were confirmed in Florida; 119 are pregnant women, and three infants have been born with congenital Zika syndrome.  New York City, more than 400 pregnant women have been diagnosed with Zika since January 2016 and at least 20 infants have been born with microcephaly or other Zika-associated birth defects.

The World Health Organization, Centers for Disease Control (CDC), and other health agencies have scrambled to reduce Zika’s threat by controlling the mosquito population and minimizing the risk of sexual transmission of Zika.  The CDC have been particularly outspoken, urging women of reproductive age to consider Zika’s risks to a developing fetus when deciding whether to travel to a Zika-affected area and, indeed, whether to become pregnant at all.

In the face of such a dangerous disease, the Trump Administration’s drastic action to limit contraceptive access is both short-sighted and flawed legally.  The Administration announced two new regulations in October authorizing expanded exemptions and accommodations for employers, universities, and other health plan sponsors who wished to deny women free access to FDA-approved contraception, based on the plan sponsor’s religious beliefs or “moral convictions” (82 Fed. Reg.47658 and 82 Fed. Reg. 47838).   No exemption or accommodation was provided for plan sponsors seeking to opt out of any other health care service.  These new rules make it quite likely that many, especially poor and middle-income, women, will be denied access to effective contraception.  While the Fact Sheet accompanying the regulations states that low-income women whose employers opt out may seek contraceptive care through community health centers it conveniently ignores the fact that pending Republican legislation seeks to dramatically reduce federal funding for family planning services, including contraception, and that Republican efforts to repeal the Affordable Care Act would have authorized states to deny Medicaid recipients coverage for such services.

With infectious diseases like Zika, citizens expect government to take direct steps to minimize the chance of disease transmission and to advise them about how to protect themselves.  Those most at risk for contracting the Zika virus are, as usual, the poor, who live in substandard housing that fails to protect them from mosquitoes and lack financial and other resources to access effective healthcare, including contraception and abortion.  Further, in states like Florida and Texas, even women and girls with financial means are frequently prevented from obtaining the full range of reproductive health care by restrictive federal and state laws governing access to contraception and abortion.

Recent natural disasters compound the problem. Puerto Rico provides a striking example of the intersection of legal and economic barriers; similar problems exist in Florida and Texas.  In Puerto Rico, two-thirds of all pregnancies are unintended; recent rates in Florida and Texas were 58% and 56%, respectively. Like their counterparts on the mainland, many Puerto Rican women, both married and single, want effective contraception, especially long-acting reversible contraception (LARC), such as IUDS and hormonal implants, which prevent pregnancy most effectively.  However, until the ACA contraceptive mandate became law, LARC was out of reach for almost all middle-class and poor women because of its higher upfront costs.

Today, Puerto Rican women of all economic strata face significant hurdles in controlling mosquitoes and accessing healthcare, due to Hurricane Maria’s massive destruction of island infrastructure.  Yet even before the hurricane struck, women living in Puerto Rico were at high risk of contracting Zika and of being unable to plan for the birth of a healthy child.  Since December 2015 more than 34,000 people have been infected with Zika in Puerto Rico, more than 3,300 of them pregnant women. Nearly 150 infants have been diagnosed with serious Zika-associated birth defects.

Officials from the CDC and Puerto Rico’s Department of Health have worked over the last two years to increase public awareness of the risks posed by Zika, expand access to effective contraception, and minimize Zika transmission to pregnant women.  However, since Hurricane Maria, efforts to combat Zika have largely stalled, as both federal and Puerto Rican government officials have focused on other pressing needs – food, safe drinking water, electricity, and other infrastructure repair.

In the face of recent natural disasters, the Trump Administration’s decision to gut access to contraceptive coverage threatens a public health emergency of immense proportion, risking the health of vulnerable women and children. At the very moment that women in Florida, Texas, Puerto Rico, and the U.S. Virgin Islands are in the greatest need of government assistance due to devastating hurricanes, the Administration has erected major barriers to contraception and effective family planning, limiting the ability of women and their families to make informed decisions about the risks of bringing a potentially disabled child into the world.  This directly contravenes the Affordable Care Act’s command that “the Secretary of Health and Human Services shall not promulgate any regulation that– (1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; or (2) impedes timely access to health care services….” (42 U.S.C.A. § 18114).

While the Administration asserts that its new contraceptive coverage policy is necessary to preserve the religious freedom and moral convictions of employers and other health plan sponsors, its promulgation of two Interim Final Rules that limit only women’s healthcare access displays an utter disregard for the constitutional guarantees of equal protection, due process, and personal privacy.  Finally, the decision to publish these controversial regulations as Interim Final Rules, with no opportunity for public notice and comment before they go into effect, contravenes the essential requirements of agency rule-making in a democracy.

Everyone committed to gender equity, access to preventative health care, and protecting the public from infectious diseases should consider commenting on the Interim Final Rules before the December 5 deadline.  Here is the link.

Linda C. Fentiman

(cross-posted with permission from PublicHealthLawWatch.org)

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Posted in Women's Health | 1 Comment

New Zealand Women May Get a Break on the Tampon Tax

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From the (New Zealand) Dominion Post, this article about a government-appointed appointed working group that will look at the country’s goods and services tax (akin to the sales tax imposed in the U.S.):

[F]inance Minister Grant Robertson said the panel would have a “wide mandate” to look at the whole tax system but it had been directed to look at specific areas such as GST.

When asked if the group would consider removing the goods and services tax (GST) from women’s products, Robertson said “it’s up to the working group”, though he would not be “taking anything on or off the table”.

“If the working group decide to go down that path, we’ll be happy to do that. What we are saying is the rate for GST is not to be included in [its discussions].”

Robertson said if the working group could deliver a concrete step forward earlier than planned, the Government would consider acting.

Last year, it was reported that some young Kiwi women were skipping classes when they had their period as they couldn’t afford sanitary products.

Labour MP Louisa Wall said some women stayed home from university or school when they didn’t have enough money to buy tampons or pads, which can cost between $5 and $15 a week.

“Female sanitary products aren’t a luxury, but for young Kiwi women on tight budgets, they’re an expense that’s hard to afford.”

The full article is here.

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Drew On Limiting Criminal Law’s Influence on the Title IX Process @margaretbdrew

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Margaret B. Drew, University of Massasschusetts School of Law, is publishing It’s Not Complicated: Limiting Criminal Law’s Influence on the Title IX Process in the Tennessee Journal of Race, Gender, and Social Justice. Here is the abstract.

Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in policy review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through investigation and decision-making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This article addresses change considering campus sexual assault allegations and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay limits discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.

The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticisms raised by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on Title IX processes. Part of this exploration will include the ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations, although to date it has not. As of this publication, Secretary of Education, Betsy DeVos, met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. The Secretary also accepted comments on deregulation, which included a review of Title IX regulations. The proposed regulation review was part of the administration’s “Enforcing the Regulatory Reform Agenda.” We can anticipate change, although when and what change is undetermined now. To date, the primary action taken by Secretary DeVos is the recision of the Obama Era “Dear Colleague” letter discussed early in this article. Incorporated throughout this discussion are the changes, as well as the complications, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student.

Download the article from SSRN at the link.

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Medina on Why Arizona’s Prohibition of Ethnic Studies Violates Equality @LOYNOLAW

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M. Isabel Medina, Loyola University New Orleans College of Law, has published Silencing Talk about Race: Why Arizona’s Prohibition of Ethnic Studies Violates Equality at 45 Hastings Const. L. Q. 47 (2017). Here is the abstract.

In 2010, Arizona made national headlines when it enacted laws targeting undocumented immigrants, perceived in the state to be primarily Mexican. Arizona experienced population growth that projected it would become a minority majority state within one or two decades. Republican politicians spearheaded a ban on ethnic studies, with its intended target a successful Mexican American studies program at the Tucson Unified School District. The Mexican American studies program was initiated as part of a desegregation decree in ongoing desegregation litigation against the Tucson Unified School District. State superintendents of education in Arizona branded the program “racist” because students were encouraged to think critically about U.S. history and question the role that race plays in the development of U.S. society. This Article examines ethnic studies, their role as a desegregation remedy, and in crafting a more accurate and informed view of history. Ethnic studies are a vibrant and vital educational tool to explore and challenge established historical and cultural orthodoxies that adversely affect formation of individual and group identity, and they encourage and develop critical thinking about race and ethnicity in all student populations. This Article contends that state efforts to prohibit ethnic studies programs are constitutionally infirm and should engage strict scrutiny under the Equal Protection Clause because they classify and prohibit curricular content and offerings on the basis of race or ethnicity, burdening only minority races.

Download the article from SSRN at the link.

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How to Get Involved in Menstrual Equity Activism: Advice from Jennifer Weiss-Wolf

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The indominitable Jennifer Weiss-Wolf (previously profiled on Feminist Law Profs here) has published a book called Periods Gone Public: Taking a Stand for Menstrual Equity (Arcade Publishing, New York: 2017).  Here is the publisher’s description:

After centuries of being shrouded in taboo and superstition, periods have gone mainstream. Seemingly overnight, a new, high-profile movement has emerged—one dedicated to bold activism, creative product innovation, and smart policy advocacy—to address the centrality of menstruation in relation to core issues of gender equality and equity.

In Periods Gone Public, Jennifer Weiss-Wolf—the woman Bustle dubbed one of the nation’s “badass menstrual activists”—explores why periods have become a prominent political cause. From eliminating the tampon tax, to enacting new laws ensuring access to affordable, safe products, menstruation is no longer something to whisper about. Weiss-Wolf shares her firsthand account in the fight for “period equity” and introduces readers to the leaders, pioneers, and everyday people who are making change happen. From societal attitudes of periods throughout history—in the United States and around the world—to grassroots activism and product innovation, Weiss-Wolf challenges readers to face stigma head-on and elevate an agenda that recognizes both the power—and the absolute normalcy—of menstruation.

Jennifer Weiss-Wolf; Photo (c) Jesse Torrey

Weiss-Wolf also gave an interview with the Toronto Star in which she was asked how people could get involved in menstrual activism.  Here was her smart advice:

The first step toward action is acknowledging that menstruation matters and is a viable political issue. Changing our law will improve the lives of many who are marginalized – the incarcerated and homeless – it’ll improve the lives of low-income people who struggle to afford these products, and it’ll improve the lives of all women when our bodies are treated as normal.

Activism takes many forms. Some people like to write, some are poets, some are musicians, some are athletes and some are just really good on Twitter. Everybody has something to contribute. It’s not hard to be an activist.

In terms of making policy change, it doesn’t have to involve speaking to your government officials. It can be as simple as going to your local school board, or your gym or your local library and saying, “Hey, you know if you provide menstrual products in your bathroom you’d make it more useful to half the people who use it.”

I’m going to go off on a slight tangent here, but it’s important: Bathroom laws sound sort of silly – how much social change happens in bathrooms? Well, right now public bathrooms provide certain products and we treat that as very normal. We expect there to be toilet paper, hand soap, some way to dry our hands after we wash them, not because we were born feeling entitled to toilet paper, but because our laws made that the norm. Who decides that toilet paper is free, but tampons are not? And to all those people saying “who’s gonna fund this? Just carry your own tampons.” It’s a fairly quick retort: “Yeah, well, what about all that government-funded toilet paper you’ve been wiping you’re a– with your whole life?”

The full interview is available here.

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SSRN Just Added a “Women’s & Gender Studies Research Network”

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The Social Science Research Network has launched a Women’s & Gender Studies Research Network with a robust list of topics and subtopics, as well as the customary Professional Announcements and Professional Job Openings.

Although I remain wary of the future and operations of SSRN after its acquisition by Elsevier (I, for one, have found that it has become more difficult to post there substantive materials — other than published articles), I do think the new Women’s & Gender Studies Research Netwoork is a boon for legal scholars doing work related to women, gender and sexuality.  A list of all the topics and subtopics appears after the fold.

Continue reading

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Sexual Harassers May Lose Their New York Tax Breaks

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New York State Assemblymember Linda B. Rosenthal (D-WF/Manhattan) plans to introduce legislation that would eliminate city state tax breaks for companies that knew of  and failed to respond to sexual harassment by one of their employees, or if the company knew about the harassment and engaged in a cover up.  Law360 has the full story here.  Here is an excerpt:

Rosenthal on Monday noted that sexual harassment isn’t unique to the film industry. Accordingly, she said her legislation will include property tax abatements, which are used to encourage construction, and similar tax incentive programs across all industries on the city and state level.

Under the proposed legislation, which is currently being drafted, any company applying for a city or state tax credit would be required to disclose its sexual harassment policy. In addition, the company would have to disclose sexual assault, harassment or discrimination cases within the previous five years involving their employees, Rosenthal said.

If it’s decided that the company has not properly handled those cases, it will not be eligible for the tax benefit, according to the statement.

Whether Pigouvian taxes (meant to discourage activity that has a negative impact on third parties) are good or bad is subject to significant scholarly debate. See, e.g., Jonathan S. Masur and Eric A. Posner, Toward a Pigouvian State, 164 U. Pa. L. Rev. 93 (2015).  But like I tell my students, the tax law is everywhere; it is a powerful tool that can be applied in just about any situation.

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Women Don’t Bleed Blue (Even Yalies and Members of the Social Register)

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Several years ago, Ann Bartow blogged here about U.S. advertisers’ first use of a “red dot” to illustrate blood on a menstrual hygiene pad.

According to this article in the Scottish Daily Mail, an ad for Bodyform in the U.K. is drawing controversy for using red liquid — instead of the customary blue — to illustrate the pad’s absorbency. The ad uses the hashtag #bloodnormal and features a man buying menstrual hygiene products, a woman floating on a white pad-shaped mattress in a swimming pool, and woman in a shower with blood flowing down her legs.

The ad has been called “disgusting” by one person but “groundbreaking” by none other that Cosmo magazine (itself at the forefront of the menstrual equity movement, joining with Jennifer Weiss-Wolf to promote an on-line petition against the tampon tax).

I’m all for #bloodnormal, but in, say, a diaper commercial, I wouldn’t want to see yellow or brown stand-ins for a baby’s digestive output. Hypocritical? Probably.

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Is Access to Affordable Menstrual Products a “Right”? Men and Women Disagree. But Men are Curious About Robots.

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(c) 2008 Keira Morgan via Flickr Creative Commons License

This week Eleanor Goldberg, a reporter at the Huffington Post, published an article, “Lots Of Men Still Don’t See Tampons As A Basic Right.” Here is an excerpt:

In a YouGov survey of more than 2,000 American adults released this week, just 46 percent of men said they agreed that having access to affordable tampons and pads should be categorized as a right, not a privilege. Of the women surveyed, 65 percent said it should be considered a right.

Meanwhile, 33 percent of men and 24 percent of women surveyed said they disagreed that it was a right, with the rest unsure or opting not to say.

More advocates are working to convince lawmakers to make tampons and pads less expensive and more readily available in public restrooms. The goal is to ensure that women and girls of menstruating age don’t miss out on school and work opportunities or have their dignity compromised just because they can’t afford a tampon.

While research hasn’t determined the precise number of women and girls who can’t afford tampons or pads in the U.S., surveys suggest it’s a widespread issue affecting various low-income communities. The YouGov report found that almost 40 percent of women surveyed have been in a situation more than once where they didn’t have a tamponor pad when they needed it.

(c) 2005 “Robot Cutie” by Bernat Agulla via Flicker Creative Commons License

You can read the full article here.  The YouGov survey is here.

BTW, an earlier YouGov survey revealed that 49% of all Americans predicted that sexual intercourse with robots will become a common practice within the next 50 years. One in four men would currently consider having sex with a robot. My guess is that robots won’t be programmed to menstruate.

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Pratt on Tax Deductions for IVF, Egg Donation, and Surrogacy

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Over at the TaxProf Blog, Professor Katherine Pratt (Loyola-L.A.) has an op-ed, Morrissey Creates New Uncertainty Regarding Tax Deductions for IVF, Egg Donation, and Surrogacy.  Commenting on the Tax Court’s decision in Morrissey v. United States (11th Cir. Sept. 25, 2017), Pratt writes:

The Morrissey court states that “[a]s a matter of both policy and practice, the IRS has consistently refused deductions sought by heterosexual taxpayers for IVF-related expenses similar to Mr. Morrissey’s.”  This statement is, at best, confusing and, at worst, simply false. The IRS has, in fact, allowed different-sex married couples tax deductions for both IVF and egg donor costs. In addition, although the IRS has challenged tax deductions for surrogacy expenses, the IRS also has settled surrogacy cases in favor of medically infertile different-sex married taxpayers who deducted surrogacy expenses.

Read the full post here.

Katherine Pratt is also a contributor to the forthcoming Feminist Judgments: Rewritten Tax Opinions, providing the commentary on Jennifer Bird-Pollan‘s feminist rewrite in Magdalin v. Commissioner, 96 T.C.M. (CCH) 491 (2008), aff’d, 2010-1 U.S. Tax Cas. (CCH) ¶ 50,150 (1st Cir. 2009), another case in which a single man was denied a medical expense deduction for costs associated with assisted reproduction.

More about the contributors and contents of Feminist Judgments: Rewritten Tax Opinions is available here.

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Kotkin on “How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment”

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Professor Minna Kotkin

Blogroll member Minna Kotkin (Brooklyn) has a fantastic op-ed in today’s WaPo, with the headline “How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment.” Here is an excerpt:

Less than 3 percent of employment discrimination cases go to trial, with a public verdict. Legal scholars and researchers estimate that close to 80 percent of the cases result in settlements, with the remainder dismissed before trial. Cases that settle are protected by confidentiality agreements, so we don’t know what the terms look like.

Another factor that contributes to secret settlements relates to how attorneys are paid for representing employees and the pressure they may place on their clients. Most employment lawyers work on a contingency-fee basis, receiving a percentage — usually one-third — of the settlement. When an employer offers a sum to make a case go away, it comes attached to a confidentiality clause; if the plaintiff refuses the clause, she gets nothing at all — and neither does her lawyer. Ethical standards enforced by state bar associations and courts require that settlement decisions be made by clients, but attorneys who want to collect their fees have every incentive to steer their clients toward accepting the confidentiality clause. And retainer agreements often say an attorney may withdraw if a client “unreasonably” fails to accept a settlement offer. Some lawyers have been known to switch to an hourly fee if a client refuses a settlement, an ethically questionable tactic that can make it financially impossible for the employee to continue with her claim.

Confidentiality agreements help protect serial harassers. But with public attention now focused on harassment, victims and their lawyers can shift the balance of power in settlement negotiations. They can agree with their lawyers at the outset that they will not accept a settlement that includes confidentiality — just as defendants now claim that they will never settle without it. Plaintiffs must be equally assertive, especially once a court action is filed and the underlying facts are in the public record. If employers balk, they can always go to trial and take their chances in front of a jury.

You can read the full op-ed here.

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Halder and Jaishankar on Celebrities and Cyber Crimes: An Analysis of the Victimization of Female Film Stars on the Internet

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Debarati Halder, Centre for Cyber Victim Counselling, and Karuppannan Jaishankar, Raksha Shakti University, have published Celebrities and Cyber Crimes; An Analysis of the Victimization of Female Film Stars on the Internet. Here is the abstract.

 

With the advent of internet and digital communication technology, online crimes targeting celebrities have gained a momentum. This article argues that, among the celebrities, actresses of Hollywood and Bollywood are particularly targeted online mainly because of their sex appeal and easy availability of contents including their images, video clippings, their private geo-location information, etc. The perpetrators are mostly fans who may wish to view the actresses as sex symbols. This article suggests that production houses should take primary responsibilities to prevent such victimisation and the actors themselves may avail legal policies such as right to be forgotten to approach the internet companies including search engines like Google to prevent victimisation and remove the offensive contents.

Download the article from SSRN at the link.

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Me, One: Sexual Harassment and the Single Voice

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I am disquieted by the “me too” campaign that is going around social media. It involves people, mostly women, repeating a statement that they, too, have been subjected to sexual harassment or abuse. The apparent purpose of the “me too” campaign is to show just how pervasive sexual assault and harassment are. Another purpose is to lend support for, and, I suppose, credibility to the women who share their stories of sexual harassment and abuse.

Public testimony is an important element of having a message heard. But why must so many say what one voice should be able to say just as forcibly and believably?  Yes, it happens all the time. I wrote about sexual harassment in the workplace a few years ago in a blog post titled Clarence Thomas, Bill Cosby, and the Absence of Memory. And though the personal episode of harassment I wrote about occurred many years ago when I was a law student, that was only the first of many such experiences. Me, one.

On the topic of the “me too” campaign, I find instructive a series of Tweets by Ijeoma Oluo:

<You don’t need my “me too” and I don’t need yours.
I believe you. Even if it’s only you.
It’s not only you. But you knew that. I knew that.
Because we believe women. If others don’t, they need to start. Not because it’s 100 women. Not because its 1 million women. Not because it’s 1 in 5 women. But because it’s each woman who says she was. Each one.
[….]
One woman should be enough.
[….]
The gendered history and weaponization of sexual assault aims to silence and shame you. It aims to keep your numbers from even being known.
[….]
I’m not coming for what y’all are doing. Or to force anyone to justify why. I’m saying you shouldn’t have to. Again.>>

I’m with Ijeoma Oluo.

I will also add to Ms. Oluo’s comments that, sadly, some women are complicit in this culture of silence around sexual assault and harassment. I have seen and experienced having sexual harassment used as a weapon by women who perfectly well know that it happens, but choose to ignore it, not out of fear, nor out of not knowing what to do, and not out of having no power to act. Rather, some women use sexual harassment  as a way of hurting or marginalizing other women. For some women there is a grim satisfaction when the monster with the potential to harm us all catches one of us that is disliked or devalued by others. So it goes sometimes.

Perhaps worse yet are the allegedly sympathetic friends who “want to believe you” when you tell them, but they have doubts, because “he’s such a nice man,”  and “he never did that to me.” Only when they see it for themselves, or when it happens to someone they care about, does it dawn on them that you are a truth teller.

I wish us all the best in this campaign of shining light on the problem of sexual harassment and abuse. However, I think that we may need to consider some reframing of this notion of needing the voices of so many to show what one voice should be amply able to show. Because me, one.

(cross-posted from Ain’t I a Feminist Legal Scholar, Too?)

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CFP: Gender Sidelining Symposium

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Call for Proposals in Gender Sidelining Symposium

California Western School of Law

California Western School of Law invites proposals for its Gender Sidelining Symposium to be held April 26-27, 2018 in San Diego, California.  The symposium will bring together legal academics, practicing lawyers, business leaders, judges, and others to discuss subtle yet pernicious forms of unequal treatment that often are not actionable under anti-discrimination or other laws, but that nonetheless may hinder the ability of women to advance in their respective professions.  We refer to this unequal treatment as Gender Sidelining.  There are a myriad of behaviors, policies, and practices that lead to this phenomenon of Gender Sidelining that the law does not (and arguably should not) proscribe, but which still require solutions.

The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic.  The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality.  The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response.  Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.

In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture.  Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme.  Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons.

Proposals should be submitted to jfink@cwsl.edu no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line. Questions should be directed to Prof. Jessica Fink at jfink@cwsl.edu.  More complete descriptions of the salon sessions appear below.

Employment: Women in the workplace often face obstacles which may impede their advancement and success, but which may not – without more – provide grounds for legal action.  For example, women are significantly under-represented in positions of leadership and power across professional sectors; they often are not given adequate credit or recognition for their work; they may find their voices silenced in meetings with their male peers; they may lack appropriate mentors or other professional guidance.  While such barriers and slights, standing alone, generally will not rise to the level of being legally actionable, the aggregation of these incidents leads to egregious inequality in the workplace that begs solutions.  In this salon, participants will contribute to a vibrant discussion on this visible, yet often unactionable, inequality in employment contexts like academia, the military, religious institutions, law enforcement, law, medicine, and beyond.

Entrepreneurship and Business: The news has been replete of late with stories of sexism at tech startups and reports finding gender bias in business funding, especially in the world of venture capital.  For this salon, we invite contributions to a discussion about how gender sidelining plays a role in business and entrepreneurship.  How does gender impact decisions about which entrepreneurs are funded, which markets are “disrupted,” or who is appointed to boards of directors and other leadership positions? How might these decisions affect both women in the business world and women as consumers?  How do issues of intersectionality complicate this analysis?  And is there a role for the law to play in addressing these issues, which are traditionally left to the market to sort out?  Ideally this salon will feature a mix of academics, practitioners, and business leaders.

Popular Culture: Popular culture often contributes to narratives that displace women and make them secondary in status to men within the collective imagination. From sports, to movies, to mainstream news and music, popular culture reproduces cultural norms, practices, and narratives that allow women to be overlooked and disregarded. Proposals that address the relationship between popular culture and gender sidelining might consider any of the following questions: How does mainstream news media coverage overlook the contributions of women politicians, lawyers, judges, and businesswomen, or subject them to different standards than men? How are women athletes and other women in entertainment exposed to unequal conditions due to gender sidelining? How do pop culture portrayals of women politicians, athletes, professionals, and artists create barriers that prevent or discourage women from entering these fields, or make it difficult for women within these fields to advance? Is there a role for the law to mitigate any of these issues?

Symposium Committee

Hannah Brenner
Leslie Culver
Jessica Fink
Catherine Hardee
India Thusi
Daniel Yeager

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A Review of a New Book On the Movement To Pass the Equal Rights Amendment

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Linda Greenhouse reviews Marjorie J. Spruill’s new book Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics (Bloomsbury, 2017) here, for the New York Review of Books. 
Divided We Stand: The Battle Over Women's Rights and Family Values That Polarized American Politics by [Spruill, Marjorie J.]
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Ben-Asher on Faith-Based Emergency Powers

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Noa Ben-Asher (Pace) has posted to SSRN her article, Faith-Based Emergency Powers, forthcoming in the Harvard Journal of Law &  Gender. Here is the abstract:

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three key components: (1) a rhetoric of war, emergency or catastrophe; (2) a legal argument for suspension of existing human rights; and (3) a designation of decision-makers in real or perceived emergencies who are allegedly more qualified than courts or legislatures to address the national-security emergency. The consequence is temporary suspension of human rights in real or perceived national-security emergencies.

The principal claim of this Article is that in contemporary culture wars, conservative politicians, lawmakers, and litigants have imported these emergency powers rationales to a range of legal contexts including marriage-equality, the Affordable Care Act (ACA), and general antidiscrimination laws. For example, the Supreme Court has recently granted certiorari in the case of a Denver baker who refused to sell a wedding cake to a same-sex couple. In its 2017-2018 session the Court will decide whether an individual’s religious or moral objection to same-sex marriage trumps state public accommodations laws. In this case and in many others, the conservative position typically follows the rationales of traditional emergency powers in (1) applying rhetoric of war and emergency; (2) arguing for suspension of legal rights of women and sexual minorities and; (3) claiming deference to religious or moral dissenters. The end goal, as in the war-on-terror, is to suspend or diminish legally recognized individual rights. The Article concludes that lawmakers ought to defend the rule-of-law and individual rights by rejecting Faith-Based Emergency Powers.

The full paper is available here.

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Antoinette Sedillo Lopez Running for Congress

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Antoinette Sedillo Lopez (Professor Emerita, University of New Mexico School of Law) is running for Congress!

Her official campaign page is here.  The page includes the candidate’s views on a variety of issues including these:

Antoinette believes strongly that women need to be in control of their bodies and their own healthcare decisions. These personal and private decisions are not the government’s business. She will fight to protect a woman’s right to health care services, including access to critical preventative care services like mammograms and ovarian cancer screenings, access to clean and safe abortion care, and access to contraceptives. In addition to ensuring birth control coverage and access to safe abortion services, Antoinette will fight pregnancy discrimination that too often is forgotten as an essential part of reproductive freedom.

Professor Sedillo Lopez is a long-time teacher of Women and the Law at UNM, and many in the academy know her through the AALS or other conferences.

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