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.

Posted in Academia, Feminism and Law | Tagged | Leave a comment

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.

Posted in Activism, Women and Economics, Women's Health | Leave a comment

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.

Posted in Feminism and Culture, Women and Economics, Women's Health | Comments Off on Women Don’t Bleed Blue (Even Yalies and Members of the Social Register)

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.

Posted in Feminism and Economics, Feminism and Technology, Sex and Sexuality, Women's Health | Comments Off on Is Access to Affordable Menstrual Products a “Right”? Men and Women Disagree. But Men are Curious About Robots.

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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CFP: Feminism, Gender and Temporal Belongings

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Tanya Kennedy (Women’s Studies, Univ. of Maine at Farmington) has issued this call for papers/panelists for a conference on “The Social Life of Time: Power, Discrimination and Transformation,” sponsored by the Temporal Belongings network June 7-8, 2018 in Edinburgh, Scotland:

In her essay, The Times We’re In: Queer Feminist Criticism and the Reparative “Turn,” Robyn Wiegman discusses recent feminist theorizations of affect and time: “with so much in flux and with governments, like people, finding themselves awash in everyday attrition, scholarship that seeks to analyse the condition of the present – both its political comportment and its historical theorisation – has proliferated under a different set of terms: debt, crisis, precarity, bare life, biopolitics, neoliberalism, and empire.” Wiegman states that much of this “scholarship attends to the condition of the present through the converging analytics of affect and time.” I am seeking papers for a proposed panel for the 1st International Temporal Belongings Conference in Edinburgh, Scotland that engage this analytic in recent feminist theory by examining gender, affect, and time in contemporary U.S. culture. Possible approaches include:

*Discussions of feminist temporal logics and affects in feminist criticism and history

*Utopian time of capital and affective communities

*Feminist approaches to the temporal geographies of U.S capital (the Rust Belt, approaches to ideas of obsolescence, the Wall, border politics)

*Gender and the care economy

*Race, gender and feminist temporalities of belonging and resistance

*Temporal affects of resistance in the Trump era

*Feminist imaginaries of time (e.g. science fiction, historical fiction)

*The temporal logics of social media and feminism (e.g. feminist labor/community building)

*U.S. feminism, war, imperialism

Deadline for 200-word abstracts and 100-word bios is September 30, 2017 to tanya.kennedy@maine.edu

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Tait on “Corporate Family Law”

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Allison Anna Tait (Richmond) has published Corporate Family Law, 112 Nw. U. L. Rev. 1 (2017).  Here is the abstract:

There is no such thing as corporate family law. But there are corporate families, and corporate families fight. What happens when corporate family members fight and the conflict is so severe that one or more of the parties wants out of the corporate relationship? Corporate law provides some solutions, but they are shaped by the assumption that all parties will bargain effectively for protections when seeking to exit a corporate relationship. Under this theory, family business is, after all, just business. The problem with this assumption is that corporate family members do not bargain the way that corporate law expects. Corporate family members are idiosyncratic bargainers who operate from a position of bounded rationality and self-interest. Consequently, they are unlikely to take steps to protect themselves against corporate oppression. The result is a mismatch between corporate law and its underlying assumptions for a substantial swath of family business owners who are subject to corporate law and corporate oppression. Thus far, lawmakers have not looked to family law to solve this problem. This Article argues that they should. Family wealth laws—divorce and inheritance—offer an alternate model of asset allocation at the end of a relationship, providing robust financial protections for parties who are vulnerable in light of their idiosyncratic bargaining position. Such laws provide the theoretical foundation for a more realistic and fair conception of protection for corporate family members subject to corporate oppression. There may be no such thing as corporate family law, but there should be.

The full paper is available for download here.

Posted in Feminism and Economics, Feminism and Families, Feminist Legal Scholarship | Comments Off on Tait on “Corporate Family Law”

CFP: Feminist Legal Theory Collaborative Research Network at Law and Society

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Bumping up to front because deadline for proposals is September 17, 2017.

From this year’s organizers of the FLT Collaborative Research Network at Law and Society:

Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting (Toronto in June 2018) Call for Papers – Sunday September 17 Deadline for Proposals

We invite you to submit a proposal to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in Toronto in June 2018.  The Feminist Legal Theory CRN brings together law and society scholars across a range of fields who share an interest in feminist legal theory. This year’s meeting invites us to explore LAW AT THE CROSSROADS/LE DROIT A LA CROISÉE DES CHEMINS.  We seek proposals that explore the application of feminist legal theory to this rich theme, across any substantive area.  If you would like to propose a paper for inclusion in a CRN panel, please submit a 500 word abstract by September 17, 2017.  For more information and to submit your abstract, please visit here. Information about the larger Law and Society meeting is available here.

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Shayara Bano v. Union of India: A Watershed Moment in the Battle for Women’s Rights in India

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The following is a guest post by Malcolm Katrak. Mr. Katrak is a Law Clerk to Justice (Retd.) S. N. Variava, Former Judge, Supreme Court of India. In the past, he has worked with Mr. Darius Khambata, Former Vice-President, London Court of International Arbitration. 

Hanafi Muslims who make up 90% of India’s Sunni Muslim population practice a form of divorce which many criticize. This practice is called Talaq-e-biddat, whereby the husband can divorce his wife by pronouncing the word ‘Talaq’ once or three successive times. Hanafis believe that this practice has been enshrined in the Quran. On October 16, 2015, asuo motu public interest litigation was filed in the Supreme Court of India to examine whether this type of divorce violates women’s dignity.

In the past, India’s Supreme Court has often fallen short in matters pertaining to religion and personal laws (i.e. laws relating to marriage, divorce and succession). The practice of Talaq-e-biddat (hereinafter referred to as Triple Talaq) had been legally sanctioned in India pursuant to Section 2 of the Shariat Act of 1937.

On August 22, 2017, India’s Supreme Court decided in Shayara Bano v. Union of India that the Triple Talaq is unconstitutional. The 3-2 decision analyzed the Quran, the customs practiced and the related constitutional provisions. The Supreme Court reasoned that the Triple Talaq is unconstitutional because it violates the basic fundamental right to equality under Article 14 of the Constitution of India. This post provides an overview of the Supreme Court’s judgment and also analyzes the dissenting opinion.

The Majority Decision: Striking the Foundations of Discriminatory Personal Laws

The Quran is divided into Suras (chapters) and the Suras are divided into verses. Together, the Suras describe the ways Muslims should live. The Quran specifically addresses procedures for marriage and divorce. After analyzing the relevant verses, the Supreme Court came to the conclusion that there is no explicit mention of Triple Talaq in the Holy Quran. Apart from the questions relating to Talaq, the case also considered allied matters such as polygamy and Halala into account. In the words of Justice Kurian Joseph, “What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case.”

The Court concluded that Triple Talaq in itself lacks legal sanctity and cited Shamim Ara v. Union of India in support of the conclusion that the practice is unconstitutional. The case of Shamim Ara quoted several Muslim jurists and concluded that the Indo-Anglian judicial exposition of the Islamic Law of divorce has been inaccurate up to this point. Marginal distortions are inevitable when India’s postcolonial judiciary has to interpret religious texts such as the Quran, which originated in the Middle East. The Court expressed its view that the Muslim husband’s arbitrary, unilateral power to inflict instant divorce is not consistent with Islamic law.

Justice Nariman, who wrote the majority judgment, was of the firm opinion that the right to freely practice one’s own religion is ensconced in the Constitution for the purposes of facilitating the ideal of secularism. However, he reasoned that when the religion has practices that discriminate on the basis of gender, the practices are not legally protected.  Although the Court did not mention gender equality in its decision, it seems implicit that the Court’s objection was the unilateral nature of the Triple Talaq (i.e., it could be issued by a husband to a wife but not vice versa).

The Minority Opinion: A Case of Contradictions?

The dissent by Chief Justice Khehar and Justice Abdul Nazeer is astonishing in several ways. The dissenters argued that the Parliament must draft a law in respect of the Triple Talaq, rather than striking down Section 2 of the Shariat Act. The dissent reasoned that declaring that Section to be unconstitutional would have serious consequences. Firstly, the dissenters argued, the Court would set a precedent of infringing conscience-based religious practices, suggesting that every matter of faith which does not meet the constitutional requirement of equality will be replaced or completely eliminated. Secondly, the dissenters reasoned, because religion is a matter of faith and not logic, the courts cannot accept an egalitarian approach over a practice which is an integral part of religion. Rather, the dissent proposed a temporary injunction disallowing the practice of Talaq-e-biddat until legislation could be passed to redefine it (in relation to three pronouncements of ‘talaq’ at one and the same time) or to do away with it altogether. If the legislature failed to take any action or decided to not proceed with any changes within six months, the proposed injunction would cease to operate.

It is pertinent to note that the minority decision states that a personal law (such as relating to marriage or divorce) can be constitutionally protected through Article 25 of the Constitution which allows freedom to profess and propagate religion. The minority decision thus implies that a personal law is protected by the Constitution. However, the dissenters failed to analyze the true nature of the fundamental right to equality which is superior to the fundamental right to practice and profess religion. The right to practice and profess religion is subject to the overriding principles of equality enumerated under Article 14 of the Constitution of India, as elucidated previously by the Supreme Court in the cases of John Vallamatom v. Union of India and Javed v. State of Haryana. Further, if the dissenters believe that the Triple Talaq were constitutionally protected, it is unclear why they would agree to limiting the practice even through a temporary injunction. The dissenters concluded that the Triple Talaq is a matter of faith and thus is protected under Article 25 of the Constitution (which endeavours to protect and preserve the belief of separate entities). They failed to focus on the ways in which the law is both discriminatory and arbitrary. Above all, there was no mention of right to equality by Justice Khehar in his dissenting opinion.

As someone trained in Indian law, I believe that if any law is discriminatory and arbitrary, it must be declared unconstitutional, even if it is a personal law (i.e., one relating to marriage or divorce) that has some lesser constitutional protection.

Conclusion

In 1972, Justice Khalid had raised several questions regarding the plight of Muslim women in his frequently quoted decision Mohammed Haneefa v. Pathummal Beevi (1972 Kerala Law Times 512):

Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed.

Issues involving the striking down of hardened religious practices due to their inconsistency with constitutional provisions has often resulted in violence by religious zealots. The resulting violence unfortunately often falls upon Muslim women themselves. Five male judges analyzing arcane questions of constitutional law had an opportunity to rise above the politics and religion and to speak with one voice in a way that would provide true justice for Muslim women. The judgment has been widely celebrated throughout the country, as many consider it the beginning of a long overdue overhaul of archaic and discriminatory personal laws. One thing is for sure, though: The battle for gender equality still has a long way to go, and this is a minor victory along that path.

 

 

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Temple Law School Hiring Announcement

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From colleagues at Temple:

Temple University Beasley School of Law is seeking to fill two faculty positions beginning in fall 2018. The first is for the Murray H. Shusterman Professorship in Transactional and Business Law. For this position, we expect to hire an established, tenured expert in the field. We particularly invite applicants whose scholarship and/or teaching focus on commercial law, broadly construed (e.g., secured transactions, sales, bankruptcy, consumer protection, e-commerce, and related fields), though we also invite highly qualified applicants from other areas of business and transactional law to apply.

The second is an entry-level or junior lateral position, where our subject matter interests include intellectual property, law & technology, and criminal law. Potential candidates for either position may contact Brishen Rogers, at brishen.rogers@temple.edu.

Temple University is an equal opportunity/affirmative action employer, and we strongly encourage women, minorities, individuals with disabilities, LGBTQ individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.

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CFP Feminist Judgments Project India, @FJP_India

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From colleagues at Jindal Global Law School in India, this Call for Participation:

The Feminist Judgment Project India imagines the possibilities of collaborative writing of alternate judgments for several Indian cases across a broad range of legal issues having a significant bearing on women. At the heart of the project are a set of basic questions—can one formulate a distinctively feminist judicial practice? If so, what are the limitations to that approach? In what manner does this approach differ from the common law approach the court takes? Neither the practice of academic rewriting of judgment is new, nor is specifically the practice of feminist rewriting of judgments. The Feminist Judgment Project India borrows from the sister projects in Canada, UK, Ireland, Australia, New Zealand and USA where feminist academics, lawyers, activists have written alternate versions of judgments originally authored by judges. * * *

The India project too will serve as a shadow judgment writing project by bridging the distance between feminist theory and practice where we will reimagine the role of the judge to adjudicate differently by maintaining fidelity to the same constitutional and legal rules that bind her. For example, what are the ways in which the Supreme Court of India could have reasoned in Tukaram v. State of Maharashtra (prosecutrix’ credibility in rape trial) or Githa Hariharan v. Reserve Bank of India (guardianship rights of a Hindu mother during the lifetime of the father) to advance a jurisprudence of gender justice? Could one imagine how a rewritten judgment in State of Bombay v. Narasu Appa Mali (holding that person law was immune from constitutional scrutiny) would look like if women were central to its reasoning? Indeed, could we reimagine and rewrite the judgments that uphold women’s interest; the so-called “good” judgments, like Vishaka v. State of Rajasthan (laying down guidelines to address sexual harassment at workplace) or Shayara Bano v. Union of India (invalidating instant triple talaq)? What are the feminist critiques that would inform and accompany such judgment rewriting process? These examples are just a few to probe the radical possibilities of this project.

We imagine that the ‘alternative judgments’ or ‘missing judgments’ or ‘dissenting opinions’ will reveal the extent to which cases could (and should) have been decided while remaining faithful to legal and constitutional limitations. We invite contributions from interested collaborators in two categories

  • Judgments: Those who are interested to (re)write judgments (6000-8000 words), please submit a proposal of 300-500 words, indicating the name of the case you wish to write on, and briefly explaining how the case would benefit from a feminist analysis.
  • Commentaries: Those who are interested to write commentaries (3000-4000 words), please indicate in a 200-300 worded proposal, the case for which you want to write the commentary explaining why you think such case merits a feminist analysis.

More information, including a list of cases for potential consideration and details on how to apply, is available here.

The deadline for applications is November 5, 2017.

Posted in Courts and the Judiciary, Feminist Legal Scholarship, Sisters In Other Nations | Comments Off on CFP Feminist Judgments Project India, @FJP_India

SMU Interdisciplinary Conference: “Women’s Rights in America: From Early Stirrings to Third Wave Feminism”

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From colleagues at SMU’s Dedman College Interdisciplinary Institute (including Feminist Law Prof Lolita Buckner Inniss):

Join us in Dallas on Sept 22, 2017 for the launch of a three-year program that connects conversations in academic communities on feminist theory and history to intersectional movements in social justice and feminist activism nationwide. We welcome leading thinkers and activists from philanthropy, business, and faith communities to encourage conversations in our broader communities that excavate women’s roles in history. This will energize Americans so that we can move to equalize the legal positions of men and women by 2020, the 100th anniversary of American women achieving suffrage.

More information is available here.

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Welcome to the Blogroll, University of Detroit Mercy Feminist Law Profs

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A group of seven ten faculty members from University of Detroit Mercy School of Law have recently joined the FLP blogroll.  Welcome to:

They join long-time Detroit Mercy blogroll members Julia Belian and Julie St. John.

Any self-identified feminist law professor (whatever that means to you) is welcome to join the blogroll.  I know (because I have received emails from people all over the country) that students and staff use the blogroll to identify faculty members who will be open to certain perspectives. Detroit Mercy now has a generous list of feminist law profs on whom students can rely.

If you want to join the blogroll, feel free to email me.  It doesn’t commit you to doing anything other than having your name listed. (You don’t have to write a blog post, but are welcome to anytime!).

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Where are the Women? Faulkner Law Review Edition

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This is an outright embarrassment.

Were there really no women available to talk about “The Role of the Judge in the Anglo-American Legal Tradition?” Makes me wonder if the students at Faulkner know about the National Association of Women Judges or the National Association of Women Lawyers or any of the amazing legal scholarship done about the historic role of women judges.

8 FAULKNER LAW REVIEW, NO. 1, FALL, 2016.

Editor-in-Chief Caleb M. Rush. Introduction on behalf of the Faulkner Law Review Editorial Board. 8 Faulkner L. Rev. i-ii (2016).

Symposium on the Role of the Judge in the Anglo-American Legal Tradition. 8 Faulkner L. Rev. 1-200 (2016).

Layne S. Keele. Symposium foreword: the role of the judge in the Anglo-American tradition. 8 Faulkner L. Rev. iii-xv (2016).

Robert Lowry Clinton. Democracy, the Supreme Court, and our two Constitutions. 8 Faulkner L. Rev. 1-27 (2016).

Hon. William H. Pryor Jr. Textualism after Antonin Scalia: a tribute to the late great justice. 8 Faulkner L. Rev. 29-47 (2016).

Allen Mendenhall. The corrective careers of concurrences and dissents. 8 Faulkner L. Rev. 49-71 (2016).

Joshua Segev. The (unified?) fiduciary theory of judging: hedgehogs, foxes, and chameleons. 8 Faulkner L. Rev. 73-130 (2016).

John G. Browning. The judge as digital citizen: pros, cons, and ethical limitations on judicial use of new media. 8 Faulkner L. Rev. 131-155 (2016).

John A. Dove. The economic effects of judicial selection. 8 Faulkner L. Rev. 157-173 (2016).

Harold See. The meaning of the Constitution and the selection of judges. 8 Faulkner L. Rev. 175-200 (2016).

 

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Call for Authors – Feminist Judgments: Rewritten Trusts and Estates Opinions

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DEADLINE:  Friday, September 29, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Trusts and Estates Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, 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.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editors Deborah Gordon, Browne C. Lewis and Carla Spivack seek prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished trusts and estates scholars, the editors have selected decisions that have not appeared in other Feminist Judgment volumes; potential authors are welcome to suggest opinions which do not appear on the list, but inclusion of cases not already on the list is at the sole discretion of the editors and the advisory board.   Further, as befits a T&E focused volume, authors should be prepared to rewrite cases in ways that bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, immigration status, and beyond.

Proposals must be either to 1.rewrite an opinion (subject to a 10,000-word limit) or 2.comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy.  To apply, please attach a brief cv and please rank three choices from the list (below the fold).

Continue reading

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How Clothes (Un)Make the (Wo)Man

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I read a wonderful piece this morning in the Chronicle of Higher Education about the ways in which some black academics use fashionable clothing to signal identity. This academic fine dressing is described as part of the black dandy movement, the historic wearing of highly visible, fashionable clothing in the black community. Scholar Monica L. Miller has called this process  “stylin’ out”—using dress to challenge or problematize  traditional expectations of race, gender, and sexuality. This close engagement with fashion among some black people was not always positive, nor was it historically by choice.  As Professor Miller describes in her book Slaves to Fashion, many of the original black dandies were eighteenth century “luxury slaves” who dressed to signal their occupations. These were carefully educated, well-dressed young African ancestored enslaved men who served as visible embodiments of the wealth of their white owners. The oppressive nature of such dressing was altered when black men began to adopt elite, often highly exaggerated modes of dress by their own choice and for their own self-expression. Fancy and/or fanciful dress  allowed a move away from representing the meaning of the empowered to producing meaning among the disempowered.  As I wrote in an article in the NYU Review of Law and Social Changesome black arrayment in finery was far more than a material practice of mimicking the socially elite.  Rather, black adornment often involved an explicitly metaphoric practice meant as social critique and intended to tear down social norms, eliminate boundaries and invert established hierarchies.

Some of the black academics interviewed in the Chronicle article noted how highly stylized dress often gave them a sense of pride, a sense of belonging and a sense of command and mastery when leading students and working with faculty colleagues. Clothes, for these academics, make the (wo)man. Undoubtedly, clothing is a part of how property in self, or personhood, is formed. Erving Goffman noted in his essay “Characteristics of Total Institutions” that the poorly fitting, poor quality clothing that is often compulsory wear for persons in “total institutions” such as mental institutions is an  important mechanism for diminishing inmate self-worth.

I am reminded of an incident that occurred many years ago when I was a law student interviewing for a summer job at a large, prestigious law firm, the most prestigious of the firms that interviewed me. Part of the elaborate call-back process involved going to lunch in an upscale restaurant with two of the firm’s partners. I had dressed as well as I could for an impoverished law student: I wore an attractive, reasonably well-fitting discount store suit.  Under the suit I wore a matching blouse that gave a nice appearance under the suit but was decidedly tattered everywhere except the part that was visible under the suit.  It was a very hot day, and after a few minutes in the restaurant, the partners removed their jackets.  They invited me to remove my jacket as well. Knowing the ragged condition of my blouse, I declined. I dripped with sweat as the lunch progressed, and they once again strongly encouraged me to remove the jacket. I again demurred.

I did not get that job.  I am sure that it was partly because I did not seem to understand that refusing their invitation to informality in dress meant that I did not understand social norms.  The partners likely exercised what has been described as “enclothed cognition” wherein they ascribed certain attributes and beliefs to what I was wearing.  It did not help that I was a young black woman faced with two middle-aged white men who likely had few interactions with people like me.  Thus, I was doubly clothed in the black skin that lay under my clothes.  Enclothed cognition can be a two-way street–others make assumptions about us based on our clothing, and at the same time our self-concept is shaped by our clothing. In that law firm luncheon, I was being closely evaluated for “fit” into firm culture, and I failed the test.  Only later did it occur to me that the decision to undress can be as crucial as the decision to dress. The regulation of both dress and undress is frequently of legal and even constitutional import. This has been discussed by scholar Ruthann Robson in her book Dressing Constitutionally. The legal import of dress or undress often raises especially thorny gender issues. Just ask some Muslim  women who have been assailed for their decisions to cover their bodies more than some other women. But it is the sub-legal social regulation of being clothed and of deshabille that can be especially damaging for women.

I shared the story of my failed interview lunch with my Critical Race Theory students yesterday because yesterday, on my first day of class, it was very warm in the seminar room.  Though I had tried to lower the thermostat, the room continued to swelter as the minutes passed. When I finally concluded that I would have to remove my jacket, I self-consciously looked down to check that my blouse was not torn, though I knew that it was not.  I told the story in a light-hearted manner, but my chagrin at having worn that ragged blouse, all those years ago, is unending.  That seemingly small matter unmade me professionally in some ways, and I have been continually engaged in the re-making ever sense.

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Free Candy with Your Tampons, in Texas of all Places!

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from Blue Bag Grocery

In Denton, Texas, an indie grocery store owner is offering a free candy bar with the purchase tampons (but oddly, not pads).  The Dallas Morning News reports (here) that store owner Jacob Moses says, “I think the sales tax is unjustified….”It doesn’t change anything in legislature, but it’s an opportunity to show love to our female patrons.”

Several bipartisan bills have been filed in Texas seeking elimination of the sales tax on menstrual hygiene products, but none are expected to progress to a vote. (More info here.)

To be sure, the candy bar gimmick is good publicity for the Texas store. But it is also part of a larger movement of retailers that are highlighting the unfairness of the tampon tax. In the UK, supermarket chain Waitrose and Tesco are cutting prices and/or paying the tampon tax on behalf of their customers. (More info here.)

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History of Forced Sterilizations in California: No Justice Yet

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Over at governing.com, writer Chris Kardish writes about how different states have approached forced sterilization and compensation for its victims:

image by Fred Dungan, http://www.fdungan.com/prison.htm

Forced sterilization by the government sounds like a ghastly practice that ought to be safely locked away in the distant past. But for some states, it’s an issue that’s very much in the present.

Take California. When the state formally apologized in 2003 for its history of forcing sterilization on prisoners and the mentally ill, most people thought the practice had died out. But this past June, a state auditor’s report found that 39 female inmates had received tubal ligations without lawful consent between 2005 and 2013.

California prison regulations already forbid forced tubal ligations, vasectomies and any other procedure that isn’t medically necessary. * * *

Involuntary sterilization gained traction in the U.S. in the early 1900s, along with the eugenics movement. Eventually 33 states had sterilization laws on the books before a wave of repeals beginning in the 1970s. It’s estimated that California sterilized 20,000 people from 1909 to 1963, accounting for about a third of all procedures performed in the U.S. Another state with one of the nation’s highest sterilization numbers was North Carolina, which in 2013 became the first to provide reparations. The state set aside $10 million for claims from its estimated 1,800 still-living sterilization victims.

Critics are wondering why California can’t do the same. “I think what North Carolina did by stepping up and making dollars available to compensate men and women who were sterilized — that’s a good model,” says Areva Martin, a California civil rights attorney. A 2013 Santa Clara Law Review paper estimated that some 500 people sterilized in California were still alive in 2012.

The full article is here.

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Class Actions for Refund of Sales Tax: From Tampons to Tea

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Those following the “tampon tax” cases seeking refunds for sales tax paid on menstrual hygiene products may be interested in this story of a suit brought against Walgreens for a refund of tax on non-sugary drinks:

A Schaumburg man is suing Walgreens for allegedly wrongly charging Cook County’s new sweetened beverage tax on unsweetened sparkling water.

The lawsuit, filed Friday by Vincent De Leon, comes days after the county’s penny-per-ounce tax took effect.

The tax went into effect Wednesday and applies to nonalcoholic beverages that are either sugar- or artificially sweetened, including fountain drinks as well as bottled and canned beverages.

LaCroix and similar flavored bubbly waters, such as Perrier and Soleil, aren’t supposed to be taxed because they’re not sweetened.

The full article from the Chicago Tribune is here.

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Northern Kentucky University Hiring Announcement

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From colleagues at NKU:

NORTHERN KENTUCKY UNIVERSITY, SALMON P. CHASE COLLEGE OF LAW, anticipates hiring up to two entry-level or junior lateral, tenure-track, J.D.-credentialed faculty members to begin in the 2018-2019 academic year.

JOB DESCRIPTION/QUALIFICATIONS

We are seeking stellar candidates with great teaching and scholarly potential. We are open to candidates in all subject areas who will contribute to the scholarly excellence and intellectual diversity of Chase. Although we are not limited by subject, we seek to include in our candidate pool individuals who would add to our strength in the fields of Criminal Law, Elder Law, Evidence, Health Law, Intellectual Property, Property, Race and the Law, Torts, Trusts & Estates, and Uniform Commercial Code. Applicants capable of contributing to Chase’s commitment to producing practice-ready lawyers and enhancing the NKU Chase Law + Informatics Institute and/or the W. Bruce Lunsford Academy also are encouraged to apply. See http://chaselaw.nku.edu/about.html.

Northern Kentucky University is an Equal Opportunity/Equal Access/Affirmative Action institution. We embrace inclusiveness, equity, and global awareness in all dimensions of our work and seek excellence through diversity among our students, administrators, faculty, and staff. Application by members of diverse groups is highly encouraged.

ABOUT OUR PART OF THE WORLD

Chase is located in Highland Heights, Kentucky, a few minutes outside of downtown Cincinnati, Ohio. The Cincinnati/Northern Kentucky metro area has a population exceeding 2.1 million. The region is an enjoyable place to live that is undergoing exciting urban revitalization and economic growth. The area includes a great variety of attractions, such as museums (art, historic, children’s and more), a plenitude of live music venues, professional football, baseball and soccer, riverfront parks, biking trails, a fantastic zoo, large aquarium, and many festivals. Educational options for children are diverse, and affordable housing options range from downtown lofts to renovated turn-of-the-century homes to quaint farm houses.

APPLICATION PROCEDURE

Please send a cover letter, C.V. and job talk paper to Professor Jack Harrison, Chair of Faculty Appointments Committee, at harrisonj4@nku.edu.

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Pitt Seeks to Hire Tax Prof

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From colleagues at the University of Pittsburgh:

The University of Pittsburgh School of Law invites applications for a tenure-stream position, beginning in the 2018-2019 academic year, to teach courses in the tax area. The successful candidate will become an integral part of Pitt Law’s tax program, which includes a Tax Law Concentration, a Low-Income Taxpayer Clinic, and the peer-reviewed Pittsburgh Tax Review. We anticipate hiring for this position at the rank of assistant, associate, or full professor, depending on the candidate’s qualifications. We strongly encourage applications from lateral candidates at all levels. An interest in teaching and research in international aspects of tax law and/or in business/commercial law is desirable, as is an interest in and/or experience with incorporating experiential learning and innovative pedagogy (e.g., writing intensive, inter-professional, flipped classroom, etc.) into the classroom. The University of Pittsburgh is an Affirmative Action, equal opportunity employer and does not discriminate on the basis of race, color, sex, veteran status, disability, national origin, creed, marital status, age, gender identity or sexual orientation in its hiring. In furtherance of our strong institutional commitment to a diverse faculty, we particularly welcome applications from minorities, women, and others who would add diversity to our faculty. Contact: Harry Flechtner, Chair, Faculty Appointments Committee, University of Pittsburgh School of Law, 3900 Forbes Ave., Pittsburgh, PA 15260. Email: law-appointments@pitt.edu. Email submissions are preferred. The deadline for applications is November 1, 2017.

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Corbin on “Government Employee Religion”

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Caroline Mala Corbin (Miami) has posted to SSRN her article, Government Employee Religion, Arizona St. L.J. (forthcoming).  Here is the abstract:

Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine.

Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.

The full article is available here.

Posted in Feminism and Religion, Feminist Legal Scholarship | Comments Off on Corbin on “Government Employee Religion”

Israeli Supreme Court Cites Feminist Law Profs in Opinion on Surrogacy

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The Israel Supreme Court has cited three feminist law profs in an important decision (here — in Hebrew) regarding the constitutional right to enter into surrogacy agreements under Israeli law.  The scholars cited (in English) are:

Gaia Bernstein (Seton Hall), The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002);

Noa Ben-Asher (Pace), The Curing Law: On the Evolution of Baby – Making Markets, 30 Cardozo L. Rev.  1885 (2009);

Erez Aloni (UBC Allard), Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U. Rev. L. & Soc. Change 1 (2011).

Great to see these three scholars’ work recognized on the international level!

Posted in Feminism and Families, Feminist Legal Scholarship, Reproductive Rights, Sisters In Other Nations | Comments Off on Israeli Supreme Court Cites Feminist Law Profs in Opinion on Surrogacy

Call for Authors – Feminist Judgments: Rewritten Torts Opinions

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DEADLINE: Friday August 25, 2017

The U.S. Feminist Judgments Project seeks contributors of judicial opinions rewritten to reflect a feminist perspective, and commentaries on the cases and rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Rewritten Torts Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, 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.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Torts volume editors Lucinda Finley and Martha Chamallas seek prospective authors for fourteen to sixteen torts opinions covering many major topics in tort law. The editors have selected the cases with an eye towards issues and injuries of particular salience to women’s lives, and with insights from feminist torts scholarship and input from leading torts scholars.  Potential authors are welcome to suggest other opinions that they would like to address, but the overall number of cases finally included in the volume must remain limited.

Interested prospective contributors should submit a proposal to either: 1) rewrite an opinion (subject to a 10,000 word limit), or 2) comment on a rewritten opinion (4,000 word limit).  Rewritten opinions may be majority opinions, concurrences, or dissents. Authors of rewritten opinions should abide by the law and precedent and supplemental materials in effect and 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.  The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique various feminist theories and advocacy.

Those who are interested in rewriting an opinion or providing commentary should apply no later than Friday August 25, 2017, by e-mailing the following information to Lucinda Finley, finleylu@buffalo.edu,  and Martha Chamallas, chamallas.1@osu.edu :

  1. Your CV, your areas of torts interest or expertise, and why you are interested in and well suited to participate in this project.
  2. Your top three preferences of cases to write about, and whether you have a preference to do a rewritten opinion or a commentary.
  3. Any time constraints and other obligations that may impact your ability to meet the submission deadlines.
  4. If you have another case that you feel strongly should be included instead of one of the selected cases and that you would like to write about, provide information about the case and the reasons you think it should be included.

Continue reading

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England and Wales Family Court Decision: Example of a Feminist Judgment

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Earlier this week, Mr. Justice Peter Jackson of the English and Wales Family Division of the High Court handed down a relatively run-of-the-mill custody decision in what I think is an extraordinary format. The decision is written as a signed letter by the judge to the teenage boy whose custody was at issue.  Here is an excerpt:

13 July 2017

Dear Sam,

It was a pleasure to meet you on Monday and I hope your camp this week went well.

This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents.

When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration – more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.

When I was appointed as a judge, I took the oath that every judge takes to apply the law in a way that is fair to everybody. Some people will say that this or that decision isn’t fair, but that’s usually their way of saying that they don’t like the decision. People who like decisions don’t usually say they are unfair. * * *

Sam, the evidence shows that you are doing well in life at the moment. You have your school, your friends, your music, and two homes. You’ve lived in England all your life. All your friends and most of your family are here. I have to consider the effect of any change in the arrangements and any harm that might come from it. In any case where parents don’t agree about a move overseas, the parent wanting to move has at least to show that they have a realistic plan. That plan can then be compared with other plans to see which is best. That has not been possible here. You will remember that at the earlier hearing in May, I made very clear to your father that if he was going to seriously put forward a move to Scandinavia, he had to give the court proper information about where you would be living and going to school, where the money would be coming from, and what the arrangements would be for you to keep in touch with family and friends in England. At this hearing, no information at all has been given. Your father described the move to Scandinavia as an adventure and said that once the court had given the green light, he would arrange everything. That is not good enough. In over 30 years of doing family law cases, I have never come across a parent who thought it might be, and no court could possibly accept it. What it means is that I have no confidence at all that a move to Scandinavia would work. Your dad thinks he would find a good life and good work there, but I have seen nothing to back that up – he hasn’t made a single enquiry about houses, schools or jobs. You don’t speak the language and you haven’t been there since before you were 5. Even your dad hasn’t been there for over 10 years. I also doubt his ability to provide you with a secure home and a reasonable standard of living if you lived with him full-time. I would worry about how it would be for you if things started to go wrong. I think you would find it exciting at first, but when reality set in, you might become sad and isolated. I also don’t think it is good for you to be with your father 24/7. In some ways, he would expand your vision of the world, but in many more ways he would narrow it, because he holds such very strong views himself, and because I believe that (maybe sincerely and without realising it) he needs you to fall in with his way of thinking. I also think it would be very harmful to be living so far away from your mum, from young Edward (who needs you too), and from Paul.  * * *

So, coming to the orders I am going to make:

A. I dismiss your dad’s applications to take you to live in Scandinavia and for you to apply for citizenship there.

B. You will have a holiday of a week in the second half of August this year with your dad, to be spent at his home unless he and your mother agree that it is going to be spent somewhere else. * * *

Sam, I realise that this order is not the one that you said you wanted me to make, but I am confident that it is the right order for you in the long run. Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself. I know that as you get older, you will do this increasingly and I hope that you will come to see why I have made these decisions. I wish you every success with your future and if you want to reply to this letter, I know that your solicitor will make sure that your reply reaches me.

The full opinion, which is worth reading is here. The citation is A (Letter to a Young Person), Re (Rev 1) [2017] EWFC 48 (26 July 2017).

To my eye, this opinion has many of the hallmarks that Kathy Stanchi, Linda Berger and I identified (here) as characteristics of some feminist judgments including breaking rhetorical conventions, practical reasoning, and concern for power dynamics.

Mr. Justice Jackson’s decisions have attracted some attention before, as he was the first judge to use an emoji in an official ruling, so that his decision could be better understood by the children who would read it.

Mr. Justice Jackson has been recently elevated to the Court of Appeal.

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Guest Blogger Vasujith Ram on Taxes on Sanitary Napkins in India

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The Constitution of India was recently amended to introduce the ‘Goods and Services Tax’ (GST). The GST subsumes almost all the existing indirect taxes in India (such as Excise Duty and Service Tax, levied and collected by the Federal Government, and Sales and Entry Tax, levied and collected by the State Government) and instead institutes a unified, single value added tax system for the entire nation. This was a landmark Constitution Amendment, since it eliminates the complete separation of powers and autonomy of the Union and the States in matters of taxation law. Now, indirect taxes are jointly administered by the Union and States, under the direction of the GST Council, a body comprising of Finance Ministers of the both the Centre and the States.

The new GST regime came into force on 1st July 2017. The GST Council decided to set seven different tax rates – Nil, 0.25, 3, 5, 12, 18, and 28 (in percent) – that will apply to the supply goods and services as per a schedule prepared by the Council. The Council decided to include sanitary napkins, sanitary pads and tampons in the 12% bracket. This led to protests, campaigns and petitions to reduce the rate of tax or exempt them entirely. The Council, despite representations, chose to stick to its original decision.

Repeated questioning led to the Union Finance Ministry issuing a note of justification. In its press release, the Finance Ministry justifies the 12% tax rate on two grounds. The first ground is that the pre-GST tax incidence was higher (about 13.68%). The second ground is based on the purported fact that raw materials used to produce sanitary napkins attract a tax rate of 18% or 12%. As a result, the Finance Ministry argues, domestic producers will have to face the financial and administrative costs associated with seeking refunds of tax credits earned in this “inverted” GST structure: whereas importers will face no such burdens (while paying the same 12% tax). This would worsen if the rate were to be reduced to 5%. If the rate were to be reduced to nil, then no input tax credits would be available at all (products taxed at ‘nil’ are treated as tax exempt, barring the possibility of claiming tax credits). The bottom line, as per the Finance Ministry, is that domestic producers would be put at a disadvantage compared to importers, if tax rates were to be reduced.

The economics of the justification can certainly be debated. The pre-GST tax incidence was lesser in states like Gujarat and Haryana, since they exempted sanitary napkins from taxes. Further, as one journalist argues, 80% of the raw materials used in the production of sanitary napkins is only taxed at 5%. Possible alternatives such as differential tax rates were not discussed (for instance, footwear costing under Rs. 500 is taxed at 5% and the rest at 18%). But beyond the argument that domestic producers must be prioritized, the press release fails to respond to constitutional concerns. Gautam Bhatia, for example, has argued that taxes on sanitary napkins constitutes sex discrimination under Article 15(1) of the Indian Constitution. Bridget Crawford, in addition, has highlighted other rights, such as the right to health, work, dignity and education, that may be affected. However, the GST Council and the respective governments may soon have to answer, since the Delhi and Bombay High Courts have issued notices in cases filed challenging the 12% tax on sanitary napkins.

Vasujith Ram is a graduate of the National University of Juridical Sciences, Calcutta, and is presently enrolled in the LLM program at Harvard Law School

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White Paper on Title IX & the Preponderance of the Evidence, 4th Edition

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Please see the fourth edition of the White Paper on Title IX & the Preponderance of the Evidence at the link below, including the first 111 signatures from law professors across the country.  We will continue to accept signatures from law faculty members as long as law faculty members wish to sign on to the White Paper, and we will post updated editions of the White Paper as we receive additional signatures.  To add yourself as a signatory, please email your full name and the URL for your faculty webpage to Nancy Chi Cantalupo at ncantalupo@barry.edu.

Title IX & Preponderance White Paper signed 7.18.17

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New Book Announcements: Constitutions and Gender

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Constitutions and Gender, a new book edited by Helen Irving (University of Sydney) has been published by Edward Elgar Publishing. Here is the publisher’s description:

The idea that constitutions are gendered is not new, but its recognition is the product of a revolution in thinking that began in the last decades of the twentieth century. As a field, it is attracting scholarly attention and influencing practice around the world. This timely Handbook features contributions from leading pioneers and younger scholars, applying a gendered lens to constitution-making and design, constitutional practice and citizenship, and constitutional challenges to gender equality rights and values.

Offering a cutting-edge perspective on the constitutional text and record of multiple jurisdictions, from long-established to newly emerging democracies, Constitutions and Gender portrays a profound shift in our understanding of what constitutions stand for and what they do. Its central insight is that democratic constitutions must serve the needs and aspirations of all the people, and constitutional legitimacy requires opportunities for participation in both the fashioning and functioning of a country’s constitution.

This challenging assessment is of relevance to scholars and practitioners of law and politics, and gender and feminism, as well as practitioners and advisors involved in constitution-making.

More info about the book, including the table of contents and contributor listing, is available here.

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Goodmark on “Should Domestic Violence Be Decriminalized?”

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Leigh Goodmark (Maryland) has posted to SSRN her article, Should Domestic Violence Be Decriminalized? 40 Harv. J. of L. & Gender 53 (2017).  Here is the abstract:

In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence. In her 2007 article, The Feminist War on Crime, law professor Aya Gruber wrote, “Although I am skeptical about the ability of criminal law to solve social inequality problems, there may be good reasons to keep domestic violence crimes solidly on the books.” Professors Cecelia Klingele, Michael Scott and Walter Dickey have called for the development of scholarship addressing “crime problems for which arrest, prosecution, and conviction are the most appropriate responses to crime, along with instances in which invocation of traditional response is particularly fruitless or counterproductive.” Both generally and specifically in the context of intimate partner violence, these articles ask about the continued utility of criminal interventions. This article takes up those questions and asks: should domestic violence be decriminalized?

The full paper is available here.

Posted in Acts of Violence, Feminism and Families, Feminist Legal Scholarship | Comments Off on Goodmark on “Should Domestic Violence Be Decriminalized?”

Meier on “Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation”

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Joan Meier (GW) has posted to SSRN her article, Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation, 35 Law & Ineq. 311 (2017). Here is the abstract:

This article provides an empirical view of family courts’ treatment of custody cases involving abuse and/or alienation claims. After a brief literature survey, the article describes the co-authors’ pilot study, which begins empirically mapping family courts’ uses of parental alienation theory in abuse cases. The pilot results provide powerful preliminary empirical validation of the growing number of strong critiques of family court practice in abuse cases.

The full article is available here.

Posted in Courts and the Judiciary, Feminism and Families, Feminist Legal Scholarship | Comments Off on Meier on “Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation”

Scotland’s Experiment with Free Tampons

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Good news out of Scotland, via the Huffington Post:

Scotland has made another great announcement for women’s health: the government will run a pilot program to provide low-income women with free menstrual products.

The initiative, announced Tuesday , will run for six months in seven low-income parts of Aberdeen, a coastal city in Scotland with a population of 212,000. The initiative will provide free sanitary products in schools in low-income areas, as well as in women’s and homeless shelters.

The full article is here.

Posted in Sisters In Other Nations, Women and Economics, Women's Health | Comments Off on Scotland’s Experiment with Free Tampons

Ohio State Hiring Announcement

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From colleagues at Ohio State:

Clinical Faculty Position
The Ohio State University, Michael E. Moritz College of Law

Description: The Moritz College of Law invites applications for the position of Assistant Clinical Professor of Law in its Entrepreneurial Business Law Clinic (EBLC), to start in late 2017. The EBLC professor has primary responsibility for directing and teaching the Entrepreneurial Business Law Clinic, which provides third-year law students with the opportunity to learn lawyering skills by representing entrepreneurs and their start-up businesses. EBLC students typically work with clients on all phases of starting a business, including client intake, entity formation, legal business planning, and contract drafting (including employment and independent contractor contracts). When relevant for the client, students also learn how to protect the intellectual property of a business. The EBLC’s clinical professor will have several areas of responsibility, including 1) supervising law students who represent clients under the Ohio Supreme Court’s student practice rule 2) classroom teaching of lawyering skills, 3) engaging with the local and regional entrepreneurial community, and 4) participating in the life and governance of the College of Law.

We will consider all applicants; however, we prefer candidates with significant experience in representing entrepreneurs and early-stage companies. Candidates also should have an excellent academic record that demonstrates potential for clinical teaching and preparation of clinical educational materials. Candidates should be admitted to the Ohio Bar or eligible for admission in Ohio. The starting salary range will be $78,000 – $81,000 for a 12-month contract; full University fringe benefits are provided as well. The ideal starting date will be November 15, or as soon thereafter as possible. The successful candidate will begin teaching in January 2018.

Application Instructions: A resume, references, and cover letter should be submitted to Professor Paul Rose, Associate Dean for Academic Affairs, The Ohio State University Moritz College of Law, 55 West 12th Avenue, Columbus, Ohio 43210. Send e-mail applications to rose.933@osu.edu. Applications will be reviewed immediately and will be accepted until the position is filled; preference will be given to applications received before September 1st.

The Ohio State University is committed to establishing a culturally and intellectually diverse environment, encouraging all members of our learning community to reach their full potential. The Ohio State University is an equal opportunity employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability status, or protected veteran status.

About Columbus: The Ohio State University campus is located in Columbus, the capital city of Ohio. Columbus is the center of a rapidly growing and diverse metropolitan area with a population of over 1.5 million. The area offers a wide range of very affordable housing, many cultural and recreational opportunities, excellent schools, and a strong economy based on government as well as service, transportation, and technology industries (see http://columbusregion.com/). Columbus and its many suburbs have consistently been rated as one of the Top U.S. places for quality of life. Additional information about the Columbus area is available here.

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UNLV Hiring Announcement

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From colleagues at UNLV:

UNIVERSITY OF NEVADA, LAS VEGAS—WILLIAM S. BOYD SCHOOL OF LAW invites applications for tenure-track Associate Professors or tenured full Professors of Law. UNLV Law, one of the nation’s leading public law schools, is a community of engaged scholars, teachers, and recognized community leaders. As the only law school in Nevada, UNLV Law enjoys strong state support and sustained engagement with communities across the state, including the judiciary, federal, state, and local government, and the non-profit and business sectors. Working in one of the most diverse cities in the country, members of the faculty have unique opportunities to impact their communities.

Applicants for law school faculty positions should submit a letter of interest along with a detailed resume, at least three professional references, and cites or links to published works. With respect to our clinics and legal writing program, please note that UNLV Law has a unified tenure track; accordingly, professors who teach clinics or legal writing have all of the privileges and scholarly expectations that are associated with tenure. We anticipate hiring as many as two new faculty colleagues, although of course the number of available positions is contingent on funding. We invite applications from rising and accomplished scholars in all areas. Applications are considered on a rolling basis, and appointments would likely begin with the 2018-2019 academic year.

Contact: Please send application materials to the Appointments Committee Coordinator, Teri Greenman, Faculty Appointments Committee, UNLV—Boyd School of Law, 4505 South Maryland Parkway – Campus Box 451003, Las Vegas, NV 89154-1003 or by email to 2018Appointments@law.unlv.edu. The Appointments Committee members are Francine Lipman (chair), Rachel Anderson, Ian Bartrum, Mary Beth Beazley, Lydia Nussbaum, and Jeff Stempel.

UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

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An interesting essay, not quite sure the question posed is answered

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In case it’s missed on this holiday weekend (for those who feel like celebrating America), a piece in today’s Chronicle of Higher Ed, Can Feminist Scholarship Stop Sexism?, by Becca Rothfeld, a new Ph.D. candidate in philosophy at Harvard, is worthy of note.  It includes extensive analysis and critique of Living a Feminist Life (Duke University Press 2017) by Sara Ahmed, a lesbian scholar of color who resigned her professorship of race and cultural studies at Goldsmiths, University of London, in 2016, in protest of lax policies on sexual harassment.  It also focuses acerbically and rather delightfully on how to handle “men who publicly express admiration for Susan Sontag but make a private career of intimidating [academic] women” (a phenomenon also known to present in women, of course).  Does not actually answer the title question when it comes down to it — is the answer so self-evident, perhaps? — but no, it is an excellent question.  Deserves a read in any event.

http://www.chronicle.com/article/Can-Feminist-Scholarship-Stop/240428?cid=at&utm_source=at&utm_medium=en&elqTrackId=a2db62102eef4f81a115c49ed8828d38&elq=7a3f6d282b344b7396679d2d42bc73e5&elqaid=14575&elqat=1&elqCampaignId=6148

ps:  And this is my nominee for a tribute to the Glorious Fourth:  http://www.rollingstone.com/music/news/lin-manuel-miranda-releases-powerful-immigrants-video-w490151

Posted in Academia, Feminism and Culture, Feminism and the Workplace, Feminist Legal Scholarship, Feminists in Academia | Tagged | Comments Off on An interesting essay, not quite sure the question posed is answered

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

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DEADLINE:  FRIDAY, JULY 21, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, 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.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes.  Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same.  The list of selected cases, a description of the process of selecting decisions, and the opinions considered but not included, are on the application website here.

Proposals must be to either (1) rewrite an opinion (subject to a 10,000-word limit) or (2) comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here.

Applications are due no later than Friday, July 21, 2017.  The editor will notify accepted authors and commentators by Monday, July 31, 2017. First drafts of rewritten opinions will be due on Friday, February 2, 2018.  First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at rebouche@temple.edu.

 

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Ben-Asher on “In the Shadow of a Myth: Bargaining for Same-Sex Divorce

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Noa-Ben Asher (Pace) has posted to SSRN her article “In the Shadow of a Myth: Bargaining for Same-Sex Divorce,” forthcoming in 78 Ohio St. L.J. (2017).  Here is the abstract:

This Article identifies and offers solutions to an emerging problem in family law: same-sex divorce. The Article’s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser’s terminology, they are not “bargaining in the shadow of the law.” Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce. The Article shows how the myth of egalitarianism undermines current bargaining for same-sex divorce. First, the myth leads to what the Article calls divorce exceptionalism, that is when a party claims that existing marriage dissolution rules do not apply in same-sex divorce because they were designed to remedy the non-egalitarian conditions of different-sex marriages. Divorce exceptionalism disables effective bargaining because without default legal rules there is nothing to guide the bargaining process. Second, the myth of egalitarianism eliminates key bargaining chips: under a presumption of formal equality neither party really has anything to “give” or “get” in the bargain for divorce. Finally, the myth, combined with the general fog of uncertainty regarding how courts will treat same-sex divorces, may lead to increased strategic behavior. The Article proposes a realistic solution, arguing that the legal actors who participate in same-sex divorce, including lawyers, mediators, courts, and the parties themselves, should reject divorce exceptionalism and apply ordinary divorce rules. It also proposes to protect vulnerable parties by extending to same-sex divorce the current trend towards joint-custody presumptions. The myth of egalitarianism in same-sex couples, which was quite helpful in achieving marriage-equality, is now haunting the first wave of same-sex divorces and harming vulnerable parties. It is time to let the myth go and address the reality of same-sex marriage and divorce.

The full article is available here.

This is a paradigm-challenging article. I recommend it.

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What We Know (and Don’t Know) About the Tax Code’s Impact on Small Businesses Owned by Women

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Caroline Bruckner, an Executive in Residence, Department of Accounting and Taxation at the Kogood School of Business (American University), has published a report entitled Billion Dollar Blind Spot: How the U.S. Tax Code’s Small Business Expenditures Impact Women Business Owners. It is available for download here.  This report contains a wealth of information that could inspire a career’s-worth of further research.

The major conclusions of the report include:

  • Most women business owners are small businesses operating in service industries and are legally organized as something other than a C Corporation.
  • Three of the four small business tax expenditures studied are so limited in design that they either explicitly exclude services firms, and by extension, most women-owned firms; or effectively bypass women-owned firms that are not incorporated or are service firms with few capital-intensive equipment investments.
  • When women-owned firms can take advantage of tax breaks, they do.
  • There is little or no tax research on how women business owners use the tax code.

The report further notes that the tax laws do not openly discriminate against women-owned businesses, but there is still a need for more research and data in this area.  Specifically, the report suggests:

  • The Congressional tax-writing committees should hold hearings to consider the impact of Code’s small business tax expenditures on women-owned small businesses.
  • The Congressional tax-writing committees should charge the JCT with preparing a formal estimate of the taxpayer cost and distribution by industry of the Code’s small business tax expenditures claimed by women business owners.
  • The federal Commission on Evidenced-Based Policy Making should develop assessments and strategies to inform Congress with evidence-based analysis on tax expenditures’ impact on women business owners and other groups.
  • The Administration should move quickly to nominate a nonpartisan Director of the Census Bureau, and Congress should prioritize considering this nomination in order to move forward with executing the 2017 Census survey of business ownership as well as the annual survey of entrepreneurs.

We need to know more about the impact of tax laws on women, racial minorities, immigrants, disabled individuals, LGBT taxpayers and other historically disadvantaged groups. This report is a welcome addition to the critical tax literature!

Posted in Feminism and Economics, Feminist Legal Scholarship, Women and Economics | Comments Off on What We Know (and Don’t Know) About the Tax Code’s Impact on Small Businesses Owned by Women

Introducing the Equality Law Scholars’ Forum & Call for Proposals

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From the FLP mailbox, this announcement:

In the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) introduce the Equality Law Scholars’ Forum to be held this Fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.

We will select three to four relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.

This year’s Forum will be held on November 17, 2017 at Berkeley Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.

Full drafts must be available for circulation to participants by October 27, 2017.

Proposals should be submitted to: Tristin Green, USF School of Law, tgreen4@usfca.edu.  Electronic submissions via email are preferred.

Posted in Call for Papers or Participation | Comments Off on Introducing the Equality Law Scholars’ Forum & Call for Proposals

Is Ginsburg’s Decision in Sessions v. Morales-Santana Good for Women?

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In Sessions v. Morales-Santana, a decision written by Justice Ginsburg, the Supreme Court ruled unconstitutional today a federal law that makes it more difficult for U.S. citizen fathers than mothers to transmit citizenship to non-marital child born abroad.  Previously, unmarried U.S. citizen mothers could transmit citizenship to a child born outside the U.S. as long as she lived in the United States for one year before the birth of the child.  Unmarried U.S. citizen fathers were subject to a 5-year residence requirement.

In the opinion, Justice Ginsburg takes the reader through the history of equal protection cases (some of which she argued before the court) and finds no “exceedingly persuasive justification” for treating unmarried fathers differently from unmarried mothers.  But her solution? Eliminate the 1-year requirement for unmarried U.S. citizen mothers, and make them subject to the same 5-year requirement that unmarried U.S. citizen fathers are.  Ginsburg writes:

Going for­ward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.

The ACLU praises the decision in a press release here, as disruptive of the gender stereotype that women, and not men, are responsible for their children.

I’m less sanguine. I think the decision hurts unmarried women (and their children) in the name of making the unmarried women “equal” to unmarried men.

The practical impact of this case?  The petitioner, who has lived in this country since he was 13, and took his case all the way to the Supreme Court, gets deported. I’m sure it’s no consolation that his name (and case) will appear in Con Law casebooks.

Posted in Courts and the Judiciary, Feminism and Families, Immigration | Comments Off on Is Ginsburg’s Decision in Sessions v. Morales-Santana Good for Women?

New Book Announcement: “Gender Equality in Law” by Barbara Havelková

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Hart Publishing has just released Gender Equality in Law: Uncovering the Legacies of Czech State Socialism by Barbara Havelková, the Shaw Foundation Fellow in Law at the University of Oxford. Here is the publisher’s description of the book:

Gender equality law in Czechia, as in other parts of post-socialist Central and Eastern Europe, is facing serious challenges. When obliged to adopt, interpret and apply anti-discrimination law as a condition of membership of the EU, Czech legislators and judges have repeatedly expressed hostility and demonstrated a fundamental lack of understanding of key ideas underpinning it. This important new study explores this scepticism to gender equality law, examining it with reference to legal and socio-legal developments that started in the state-socialist past and that remain relevant today.

The book examines legal developments in gender-relevant areas, most importantly in equality and anti-discrimination law. But it goes further, shedding light on the underlying understandings of key concepts such as women, gender, equality, discrimination and rights. In so doing, it shows the fundamental intellectual and conceptual difficulties faced by gender equality law in Czechia. These include an essentialist understanding of differences between men and women, a notion that equality and anti-discrimination law is incompatible with freedom, and a perception that existing laws are objective and neutral, while any new gender-progressive regulation of social relations is an unacceptable interference with the ‘natural social order’. Timely and provocative, this book will be required reading for all scholars of equality and gender and the law.

More info is available here.

Posted in Feminist Legal Scholarship, Recommended Books | Comments Off on New Book Announcement: “Gender Equality in Law” by Barbara Havelková