Are There Differences Between the Female Brain and the Male Brain? After More Than a Hundred Years of Testing, Scientists Still Can’t Tell @TheConversationUS
Thomas on The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently @ProfTracyThomas
Tracy A. Thomas, University of Akron School of Law, is publishing The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, in volume 27 of the William & Mary Journal of Race, Gender & Social Justice. Here is the abstract.
A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.
This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen’s judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.
Stephanie Wildman (Santa Clara) has posted to the NYU Press blog a post “On Learning and Relearning About White Privilege.” Here is an excerpt:
Later in the 70s, a Black student in my Sex Discrimination and the Law seminar came to speak to me about the racism in the class, my racism and the other students’ racism, as well as the systemic racism in the law school. The discussion was pretty intense. At the heart of her criticism, the student expressed disappointment that I didn’t address racial justice issues more in the classroom, in response to either the curriculum or other students’ comments. I was lucky at the time to have some Black friends who were willing to talk to me about what had happened, about the student’s grievance, and about what to do next, especially since we had only one class left in the semester.
I cried for several days. It took me a long time to realize that the student had done me a favor. She felt safe enough and cared enough about me and about the class to talk to me. I tried to face my racism bravely. And I was lucky to have help—from friends and from a diversity consultant who was on retainer that semester by the school.
I had been skeptical about her, the diversity consultant. She was a white woman, and I thought “typical, the school wants to talk about race and they hire someone white.” I couldn’t have been more wrong. Frances Kendall understood that it was imperative for the students of color in the class to have a safe space to talk. She urged we meet in two separate groups: a group for the students of color (led by my friend and colleague Professor Trina Grillo) and the white students with me (led by Francie). In the white group, Francie led a conversation about the ABCs of white privilege. Yes, you may have been disadvantaged in other ways, even suffered greatly. Yet having white privilege conveys a particular, distinct societal benefit. Then these groups met together. We obviously did not solve all the world’s racial justice issues, but it was a step forward, at least for me. That experience set me on a lifelong learning curve, writing about race and white privilege, back when if you googled “privilege” the answers you got were: “privilege against self-incrimination,” “priest-penitent privilege,” or “doctor-patient privilege.”
White privilege is evasive. I mentioned those glimmers in my past because I wouldn’t remember, if my friends had not written about them. And they wrote about them because it was less usual for someone white to notice and speak out about racial injustice. Even though I have studied white privilege and thought a lot about it, I still forget. Which is part of the privilege. I have half-joked how I had to go through the process of writing the book Privilege Revealed (with contributions by Margalynne Armstrong, Adrienne Davis, and Trina Grillo) to remember what I knew.
That’s how the privilege works. It remakes itself into “just the normal way things are,” instead of the advantages, “the invisible knapsack” as named by Peggy McIntosh, that accrue to white skin. Particularly at this moment of double pandemics, COVID-19, the new one, and America’s history of racism and racial injustice, the pandemic we’ve had since the nation’s founding, I realize how much I still have to learn and remember–and act.
The full post is available here.
Here is the publisher’s description of the newly-published Palgrave Handbook of Critical Menstruation Studies (Bobel, C., Winkler, I.T., Fahs, B., Hasson, K.A., Kissling, E.A., Roberts, T.-A. eds.) :
This open access handbook, the first of its kind, provides a comprehensive and carefully curated multidisciplinary and genre-spanning view of the state of the field of Critical Menstruation Studies, opening up new directions in research and advocacy. It is animated by the central question: ‘“what new lines of inquiry are possible when we center our attention on menstrual health and politics across the life course?” The chapters—diverse in content, form and perspective—establish Critical Menstruation Studies as a potent lens that reveals, complicates and unpacks inequalities across biological, social, cultural and historical dimensions. This handbook is an unmatched resource for researchers, policy makers, practitioners, and activists new to and already familiar with the field as it rapidly develops and expands.
The book is available for free download here.
Bridget J. Crawford & Emily Gold Waldman, Tampons and Pads Should Be Allowed at the Bar Exam, Law.com (July 22, 2020)
Jennifer Weiss-Wolf, Raising the Bar for Menstrual Equity. Period., Ms. Magazine (July 23, 2020)
Julie D. Cantor, Periods Can Be Irregular, Heavy–Even Painful; They Should Never Be a Barrier to Your Career, NBCNews Think/NBC News (July 28, 2020)
Margaret E. Johnson, Marcy L. Karin & Elizabeth B. Cooper, Stop the Stigma Against Menstruation, Starting With the Bar Exam, National Jurist (July 28, 2020)
Other Press/Blog Coverage
Steven Fried, The Integrity of the Legal Profession is Under Attack by Menstruating Women! Medium.com (July 20, 2020)
Stephanie Francis Ward, Do Some States Really Prohibit Bringing Tampons and Pads to the Bar Exam? ABA Journal (July 23, 2020)
Anna Jessurun, Permission Required to Change Your Tampon, ACLU blog (July 24, 2020)
Harron Walker, Bar Exam Takers Prohibited From Smuggling in Tampons and Other Obvious Cheating Aids, Jezebel (July 26, 2020)
Margaret E. Johnson (Baltimore), Marcy L. Karin (UDC), and Elizabeth B. Cooper (Fordham) have published an op-ed in National Jurist, Stop the Stigma Against Menstruation, Starting with the Bar Exam. Here is an excerpt:
The distrust of menstruators is front and center with the July bar exams that take place next week, and those that follow. The multi-day bar exam is the legal licensing requirement needed to practice law and is understandably extremely stressful. Imagine adding to this pressure a ban on bringing in one’s own menstrual products or uncertainty about the ability to do so because a state does not expressly or publicly disclose if they are permitted. Outraged over state bars’ menstrual products restrictions, people started exchanging the information on Twitter. * * *
These illogical, shaming policies have the potential to significantly harm those test takers who may be menstruating when taking the bar exam. Unencumbered access to personal menstrual products during in-person licensing exams is critical for persons who menstruate. State bar policies must be revised to expressly and publicly permit examinees to bring in their own menstrual products. No one should have to risk admission to the bar because they have their period. Menstruators must be trusted, and the taboo must end.
The full piece is available here.
Professor Greer Donley of the University of Pittsburgh School of Law has been selected as the winner of 2019-2020 Haub Law Emerging Scholar Award in Women, Gender & Law for her paper Contraceptive Equity: Curing the Sex Discrimination in the ACA’s Mandate, 71 Ala. L. Rev. 499 (2019). Professor Donley is an Assistant Professor and the Director of the joint degree program in law and bioethics at the University of Pittsburgh School of Law. She teaches Legislation and Regulation, Bioethics and FDA Law.
Professor Donley’s research interests include reproductive rights, bioethics, FDA law and healthcare innovation. Her scholarship has explored a broad range of healthcare issues including parental autonomy rights over prenatal end-of-life decision-making, the legal and medical necessity of abortion care during pandemics, contraceptive equity in the Affordable Care Act, and regulations surrounding the consumption of pharmaceuticals in pregnant and lactating women. Her scholarship has appeared or is forthcoming in the Minnesota Law Review, Alabama Law Review, Journal of Law & the Biosciences, Journal of Law, Medicine, & Ethics, and Hastings Center Report.
Professor Donley received her J.D. from the University of Michigan Law School and her B.A. from Claremont McKenna College. Prior to her academic work, Professor Donley worked at Latham & Watkins LLP. She also clerked for Judge Robert Sack of the United States Court of Appeals for the Second Circuit.
“Professor Donley’s thought-provoking article skillfully applies constitutional principles and precedents to argue that the exclusion of men from the ACA’s contraceptive mandate violates the Equal Protection Clause.” – Professor and Associate Dean Emily Gold Waldman
ABOUT THE AWARD
The Haub Law Emerging Scholar Award in Women, Gender & Law is presented annually in recognition of excellent legal scholarship related to women, gender and the law published by a full-time law professor with five or fewer years of full-time teaching experience. After an open call for submissions, papers are reviewed on a blind basis by four members of the Haub Law faculty with expertise in this area. This year’s judges were Noa Ben-Asher, Bridget Crawford, Darren Rosenblum and Emily Gold Waldman. The Haub Law School invites the award recipient to present their winning scholarship to the Haub Law community.
Maritza Reyes on Lessons in Public Advocacy and Self-Defense: Representative Alexandria Ocasio-Cortez Responded to Representative Ted Yoho’s Reported “Fucking Bitch” and Other Sexist Epithets
I urge all of you to watch and listen to what U.S. Representative Alexandria Ocasio-Cortez said in the public record (on July 23, 2020) in the U.S. Congress about reportedly being called a “fucking bitch” and other epithets often hurled at women, including “disgusting,” “crazy,” “out of [her] mind” and “dangerous” by Florida Representative Ted Yoho. Here is a link to an article about what happened, including her remarks. She said that Rep. Yoho “accosted” her and pointed his finger at her as she was entering the Capitol building to do her job. She shared that this is how some men use dehumanizing conduct and language to abuse women. When Rep. Yoho was caught in the act by a reporter, he made a disingenuous apology full of excuses for poor behavior, without directly apologizing to the woman he accosted; he did not even say her name. After she heard him make his self-aggrandizing, disingenuous apology in the House floor, Rep. Ocasio-Cortez made her own remarks. She spoke about the evil of silence in the face of such abuse. She spoke about the abuse women face as we engage in our daily activities, including our jobs. She did not accept the non-apology and called it for what it really was– an attempt to cover up for misconduct while adding further insult to the original injury. Here is a link to an article about the “apology.”
Representative Ocasio-Cortez said she spoke “because [every Congresswoman and every woman in this country] have had to deal with this, in some form, some way, some shape, at some point in our lives.” She concluded that Rep. Yoho’s remarks were just “excuses for his behavior” and she “could not allow that to stand.” She did what a professional woman must often do – defend herself and put it on the record. In response to Rep. Yoho’s self-professed decency and references to his wife and daughters, she explained: “Having a daughter does not make a man decent. Having a wife does not make a decent man. When a decent man messes up, as we all are bound to do, he tries his best and does apologize, not to save face, not to win a vote. He apologizes genuinely to repair and acknowledge the harm done, so that we can all move on.” A point that rang close to my own experience is when she said, “I am here because I have to show my parents that I am their daughter and that they did not raise me to accept abuse from men.” Her final point was to thank Rep. Yoho for showing the world that you can be a powerful man, with a wife and daughters, and “accost women without remorse” “and with a sense of impunity” and “using this language against all of us.”
I agree that many women have been subjected to similar conduct, including as we do our jobs and participate in professional activities. I am about to publish a law review article titled “Professional Women Subjugated by Name-Calling and Character Attacks” in the Journal of Gender, Race & Justice. In it, I highlight the experiences of First Lady/Senator Hillary Clinton, First Lady Michelle Obama and Supreme Court Justice Sonia Sotomayor to illustrate the problem and propose solutions. I also reference President Donald Trump’s 2019 attacks against U.S. Representatives Ilhan Omar, Alexandria Ocasio-Cortez, Ayanna Pressley, and Rashida Tlaib, all of whom are women of color. The publication was delayed due to COVID-19. It will be my second article in my “Professional Women” series. In the first one, “Professional Women Silenced by Men-Made Norms,” published in the Akron Law Review, I analyzed why so many women remain silent when we face abuse, including harassment, at work and advocated for individual actions toward a collective movement against this abuse. That article was published two years before one such movement, the #MeToo Movement, which began with the individual actions of women, made headlines. I am encouraged by Rep. Ocasio-Cortez’s individual action and hope that, as with the #MeToo Movement, more women will join in sharing our own stories of workplace abuse.
Most of us do not have the forum that Rep. Ocasio-Cortez has in the U.S. Congress, but there are other forums where we are able to speak truth to power, including in this blog, in our academic workplaces, in courtrooms, and in other public and private spaces. We must not remain silent. Even the individual action of calling out the abuse is better than doing nothing. Another action could be to call out the abuser by name, including in a public space as Alexandria did. Perhaps these types of actions would serve as deterrents to future abuse. Finally, it is time for people to stop telling women facing similar situations to “let it go,” “don’t say anything,” “accept his non-apology,” and “be the better person.” I invite you to listen to the voices of other Representatives who joined with Rep. Ocasio-Cortez. They were Pramila Jayapal, Nydia Velázquez, Brenda Lawrence, Al Green, Jackie Speier, Mark Pocan, Ayanna Pressley, Judy Chu, Debbie Wasserman Schultz, Lori Trahan, Steny Hoyer, Mikie Sherrill, Barbara Lee, Ilhan Omar, Katherine Clark, and Rashida Tlaib. The link is here.
(Posted by Christine Corcos for Professor Reyes)
Does @WV Courts Have a Secret Policy Permitting Tampons and Pads at the Bar Exam? #bloodybarpocalypse
Over at the ABA Journal (here), Stephanie Francis Ward confirms that, yes, there are really are states the prohibit test-takers from bringing menstrual products with them to the bar exam. Here’s an excerpt of the article:
Susan Henricks, executive director of the Texas Board of Law Examiners, in an email to the ABA Journal confirmed that the state does prohibit feminine hygiene products in the testing room. Texas, which has an in-person exam scheduled for September, as well as an online October test, will stock testing center bathrooms with free menstrual supplies, Henricks wrote.
Arizona for many years included feminine hygiene products in a “paper of any kind” ban from the bar exam room, but the restriction has been revised, and people can now bring their own tampons and sanitary napkins to the test, Aaron Nash, communications director for the state supreme court, told the ABA Journal in a July 17 email. The state is planning for a July in-person bar exam.
In West Virginia, which also has plans for an in-person July exam, there is no prohibition on bringing menstrual products to the test, says Edythe Nash Gaiser, clerk of the court. She thinks there may be some confusion based on how the court’s exam FAQs page is written.
“No one is afraid of anyone using a tampon as a cheat sheet; this is just insanity,” Gaiser says.
Also, West Virginia bar exam takers can keep their tampons and sanitary napkins in an opaque container, rather than a clear plastic bag, Gaiser says.
“We might say, ‘Is that a feminine hygiene product?’” she adds. And if someone took out and opened a tampon or sanitary napkin while taking the bar exam, that would raise suspicion, according to Gaiser.
The full article is available here.
Um, so the West Virginia Courts permit test-takers to bring menstrual products, but simply don’t say that anywhere in their instructions to test takers? Let’s hope that Ms. Gaiser can clarify that for bar-exam takers on the court’s website or in an email to them.
Professor Marcy Karin (@professormlk) breaks it down on Twitter here:
Over at Law.com, Emily Gold Waldman (Pace) and I have published an op-ed, Tampons and Pads Should be Allowed at the Bar Exam. Here is an excerpt:
The judgment of bar examiners that plan to hold in-person tests this summer is seriously in question. Mississippi, a coronavirus “red zone” according to the White House, is requiring test-takers to sign a liability waiver if they want to sit for the exam. North Carolina, another “red zone,” has informed test takers that sitting for the exam will be treated as a voluntary assumption of risk of exposure to COVID-19. Further strange news comes out of West Virginia and Texas. Test takers there may not bring tampons, pads or other menstrual products into the exam. Instead the bar examiners say that they will provide “feminine products” to candidates. Arizona had a similar policy, but wisely walked that back just a few days after a minor social media eruption. West Virginia and Texas should do the same.
Bar exam bans on menstrual products are discriminatory and should be lifted immediately. State boards of bar examiners, the gatekeepers for the legal profession, should be in the business of upholding the law and adopting policies that reflect its highest principles. Bans on bringing menstrual products are a form of gender bias. They are inconsistent with the legal profession’s highest and best values of providing equal opportunity.
We applaud efforts to make menstrual products available in schools, places of employment and other places. These products are necessities just like toilet paper. Kudos to the West Virginia and Texas bar examiners for making sure that test takers have access to products. But depriving exam-takers of the option to bring their own tampons and pads goes too far. Putting out a supply of tampons in a communal basket, whether in restrooms or otherwise, invites the very high-touch scenario that increases public health risk right now. More broadly, the products supplied may not meet the needs of all test takers. (Super-absorbent tampons with cardboard applicators are not appropriate in all situations, after all.) As the test goes on, the supply may run out—forcing test takers to alert proctors and lose precious time. There is also the question of where precisely the products will be available. Arizona previously said it was making them available in “women’s restrooms,” but that does not account for trans and gender nonbinary test takers who do not use women’s restrooms and may need products, too. The bar exam is stressful enough without having to worry about bleeding through one’s clothes.
Bar examiners’ bans on menstrual products likely violate equal protection, as well. Arguably, policies like West Virginia’s and Texas’ are gender neutral, prohibiting anyone from bringing “feminine products” to the bar exam. These rules are, nevertheless, sex-based. Just as Justice Scalia wrote in Bray v. Alexandria Women’s Health Clinic that, “A tax on wearing yarmulkes is a tax on Jews,” menstruation and the associated need for menstrual products are a proxy for female sex. Menstruation is a regular and unavoidable occurrence in the lives of approximately half the population (and slightly more than half of all recent law graduates) from, on average, the ages of 13 to 51. By not allowing test-takers to bring their own products, bar examiners put at a disadvantage those who are menstruating during the exam. There is no exceedingly persuasive justification for this type of sex-based classification. The failure to include menstrual products on lists of items permitted at the bar exam may not be the result of a secret discriminatory plot to keep the legal profession male. But the policy is the product of a culture that alternately ignores menstruation or treats it as something suspicious, dirty and secretive.
Menstrual product bans also reveal bar examiners’ ignorance about how menstrual products work. It would be very difficult for a test taker to write a “cheat sheet” for the rule against perpetuities or state personal jurisdiction rules on a small piece of absorbent material or its wrapping. Test-takers do not show up for the bar exam thinking they have an extra opportunity to refresh their recollection by running to the bathroom to check what is written on a tampon or pad. The simple solution is to have a supply of menstrual products available in all restrooms and to allow test takers to bring their own tampons and pads. Most states already allow candidates to bring a clear bag with necessary items like keys, cash, credit cards and medicine in the original packaging. All other states need to do is add menstrual products to the list of permitted items.
* * *
If the legal profession is committed to holding up equality for all, regardless of a biological fact like menstruation, test takers must be allowed to bring tampons and pads with them to the bar exam.
The full piece is available here.
From Professor Victoria Haneman (@TaxLawProf) at Creighton University, this disturbing news that if a Nebraska bar exam taker needs to change a tampon or pad more frequently than once every two hours, they must “provide [the Board of Law Examiners] the accommodation information justifying a deviation from the Supreme Court Rules for the exam.”
Furthermore, some candidates must arrive 90-120 minutes before the exam and others arrive 30 minutes before the exam. The ones who check in first are supposed to sit in their assigned spots, not talk to others, not consult materials, and not use the restroom for the full 90-120 minutes that they are waiting.
The news keeps getting worse and worse.
Spindelman’s Completed 6-Part Series: “The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases”
I previously blogged (here) The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, a set of six papers by Marc Spindelman. Here is the abstract:
“The Shower’s Return”–a series of six separately published papers, all combined here–supplies a detailed account of, and engagement with, important aspects of what transpired during the Supreme Court phase of the litigation in the LGBT Title VII sex discrimination cases. It traces the role that anti-trans, anti-gay, and sexist fantasies involving queer intruders in ladies’ showers and locker rooms played in the cases as the cases played out. Through an argument that follows and critically engages these fantasies and the cultural logics that subtend and power them, “The Shower’s Return” provides a deep context for understanding active dangers behind the Supreme Court’s decision in Bostock v. Clayton County, holding that anti-gay and anti-trans discrimination are forms of prohibited sex discrimination under Title VII of the 1964 Civil Rights Act—dangers that may yet, in different ways, return, notwithstanding Bostock’s results.
All six parts are now available here.
Earlier this months, the New York Times published an article Black Lives Matter May be the Largest Movement in History. Here is an excerpt:
Four recent polls — including one released this week by Civis Analytics, a data science firm that works with businesses and Democratic campaigns — suggest that about 15 million to 26 million people in the United States have participated in demonstrations over the death of George Floyd and others in recent weeks.
These figures would make the recent protests the largest movement in the country’s history, according to interviews with scholars and crowd-counting experts.
The full article is here. It also has some informative accompanying graphics.
Anyone who is interested in the history of social justice movements in the U.S. will find lots of helpful information in the article.
Signatories Sought for Letter Urging NCBEX to Require All States to Permit Test-Takers to Bring Menstrual Products to Bar Exam
We recently have been made aware that certain state bar examiners – including some administering the exam next week – prohibit people from bringing their own menstrual products to the bar exam. For the reasons explained below and in the attached letter, we ask you to sign on to this letter, which requests that the National Conference of Bar Examiners (NCBE) require all states to permit examinees to bring their own menstrual products to their bar exam.
The option offered by some bar examiners – that they provide such products in women’s restrooms – is not acceptable. First, the size of the product a person needs is highly personal and can vary throughout one’s period. Use of the wrong size can lead to everything from toxic shock syndrome (too large) to disruptive leaks (too small). Second, transmen and non-binary individuals who get their periods may not be able to use the women’s restroom to obtain the needed products. Third, the notion that menstrual products could be used to facilitate cheating on the bar exam is beyond absurd. Absent any indication that menstrual products have been used to compromise the exam’s integrity, targeting only people who menstruate sends a strong – and problematic – message that people who menstruate are untrustworthy.
We ask you – by Monday, July 20, 2020 at 6 pm (eastern time) – to sign onto this letter to the NCBE. In addition to this request of the NCBE, the sign-on letter will be used to support advocacy to the specific states that prohibit examinees from bringing in their own menstrual products.
Because time is of the essence, we ask that you add your name ASAP by filling out this google form. Please also send this request to your colleagues, current and former students, and friends in the legal community. Menstruators and non-menstruators are encouraged to sign on.
If you have any questions, email MPandTheBar@gmail.com.
Thank you for your consideration.
Prof. Margaret E. Johnson, Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore Law School (visiting at American University, Washington College of Law ’20-‘21)
Prof. Marcy L. Karin, Jack & Lovell Olender Professor of Law, University of the District of Columbia David A. Clarke School of Law
Prof. Elizabeth B. Cooper, Professor of Law and Faculty Director, Feerick Center for Social Justice, Fordham Law School
*Affiliation provided for informational purposes only.
The U.S. Feminist Judgments Project is pleased to announce the publication of two new volumes in the Cambridge University Press series.
Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouché ed. 2020)
This book provides new, feminist perspectives on famous family law cases that span generations. The chapters take court decisions and rewrite them with feminist ideas in mind. Each rewritten opinion is penned by a leading scholar who relied only on materials available at the time of the original decision. The decisions address topics such as the criminalization of polygamy, intimate partner violence as a ground for asylum, the legality of gestational surrogacy, the rights of cohabitants, discrimination against transgender parents, immigration rules governing non-citizen parents, and child welfare and child support systems, among others. Each opinion is accompanied by a commentary that explains the original opinion as well as its contemporary relevance, and each commentary also is authored by a respected scholar. The combination of a rewritten opinion and its commentary provides an in-depth examination of the most important topics in family law.
Reproductive justice (RJ) is a pivotal movement that supplants the language and limitations of reproductive rights. RJ’s tenets are that women have the human rights to decide if or when they’ll become pregnant, whether to carry a pregnancy to term, and to parent the children they have in safe and healthy environments. Recognizing the importance of the rights at stake when the law addresses parenting and procreation, the authors in this book re-imagine judicial opinions that address the law’s treatment of pregnancy and parenting. The cases cover topics such as forced sterilization, pregnancy discrimination, criminal penalties for women who take illegal drugs while pregnant, and state funding for abortion. Though some of the re-imagined cases come to the same conclusions as the originals, each rewritten opinion analyzes how these cases impact the most vulnerable populations, including people with disabilities, poor women, and women of color.
Tables of contents for both books are available at the Cambridge website (here).
Other books in the series are Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford eds., 2016) and Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., 2017). Volumes slated for publication later this year are Feminist Judgments: Rewritten Employment Discrimination Opinions (Ann C. McGinley & Nicole Buonocore Porter eds.); Feminist Judgments: Rewritten Trusts & Estates Opinions (Deborah S. Gordon, Browne C. Gordon & Carla Spivack eds.) and Feminist Judgments: Rewritten Tort Opinions (Martha Chamallas & Lucina M. Finley eds.).
We address this letter to law review editors so that you can be aware of the possible lower rates of submission and work to balance your issues for the upcoming cycles.
We also address this to law administrators and promotion and tenure committees who are in a position to evaluate scholarly output and attach consequences to it so you can make necessary policy changes to avoid intensifying gender inequities.
1. Gendered Effects of the COVID-19 Pandemic
It has been five months since the novel Coronavirus pandemic disrupted much of academic life in the United States. During these months, we have seen a steady stream of evidence about how the ensuing shutdown has affected women. Our colleagues with children and elder care responsibilities report that it has been very difficult to juggle between those obligations and work. Many of us have experienced this for ourselves. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” And, increasingly, some employers have begun to reshape what used to be the private domain of family and home through “work at home” requirements that disregard the ways in which care work happens. These requirements add to the burdens on workers already struggling to accommodate new working arrangements.
A preliminary study, “The Impact of COVID-19 on Gender Equality,” by researchers at the National Bureau of Economic Research states:
“An even more important channel for differential impacts on women and men is that in the course of the pandemic, most US states along with other countries have decided to close schools and daycare facilities. Worldwide more than 1.5 billion children are out of school right now. This has dramatically increased the need for childcare. In addition, grandparent-provided childcare is now discouraged due to the higher mortality rate for the elderly, and given social distancing measures, sharing childcare with neighbors and friends is very limited also. Thus, most families have no choice but to watch their kids themselves. Based on the existing distribution of child-care duties in most families, mothers are likely to be more affected than fathers. Single mothers, of which there are many in the United States, and who are often in a disadvantaged economic position to begin with, will take the biggest hit.”
In the same study, the authors report that among women who work full-time and are in heterosexual marriages with children, 86% of their spouses also work full-time. (Among men who work full-time and are in heterosexual marriages with children, only 52% of their spouses also work full-time. A married working father is three times more likely to have a stay-at-home spouse than a married working mother.) In these families, typically one caregiver provides more care. In heterosexual couples, that person is generally the mother. According to the study:
“It appears likely that much of this uneven distribution of the burden of childcare will persist during the current crisis; the factors that initially led to this arrange- ment (which could include relative income, relative bargaining power, and the influence of traditional social norms and role models….) will continue to apply, and “retraining” one spouse on short notice may not be practical. If we assume that the relative distribution of the burden stays at 60-40 and childcare needs rise by 20 hours/week during the crisis, full-time working women would need to increase their childcare hours by 12 hours vs. 8 for men.”
The 60-40 allocation is for childcare alone. We note that women do twice as much domestic labor of all kinds even in dual-earner families. With the requirements of isolation, and with access to family, institutional, and social support systems cut off, this work load is likely to rise.
For single parents who are mostly women the impact is even more dramatic: “21 percent of all children live only with their mother, compared to 4 percent living with their father only. Thus, the current crisis will affect mothers very disproportionately.” In addition, rates of family violence have risen sharply, creating greater instability and stress on the women who are the vast majority of victims of intimate partner violence (IPV).
2. Professional Effects on Women Academics
Professors are not exempt from unequal distributions of domestic labor. Nor are they immune to IPV. Empirical research from before the pandemic has revealed a pattern of gender bias in legal academia, including greater expectations that women provide “academic caretaking” and other forms of service work to students, colleagues, and the institution as a whole. These workplace responsibilities have only intensified in recent months with classes online, more frequent private remote student appointments, and additional meetings on needed policy changes to address the pandemic.
Consequently, the result of the gendered effects of COVID-19 are now becoming apparent in academia. An article in Inside HigherEd states that evidence is emerging that single author journal article submissions by women have fallen during the pandemic. This article has led to further examination of the rate of women’s submission to journals. “The Lily” reports that in some fields, since the shutdowns began, the rate of submission by men has risen by 50% while women’s submission rates have fallen. As most summer camps have remained closed and plans for fall reopening of daycares/schools remain uncertain, women who have shouldered the childcare burden have had little time to produce academic scholarship.
In addition to the stress of the pandemic, the killing of Breona Taylor, Ahmad Aubery, George Floyd, and others and the ongoing nation-wide protests against police violence have profoundly affected and increased the demands onAfrican American faculty and other faculty of color. We urge law reviews and administrations to consider the multiplier effect that these events have had on women faculty of color.
Women law professors in heterosexual family arrangements and single parents are likely to have similar decreases in productivity to that seen in other academic fields. The pandemic lockdown struck in the middle of Spring 2020. It is likely now that we will see decreasing journal article submissions by women in August 2020 and stretching into the next several cycles.
3.The Need for Awareness and Action
We ask that law journal editors be aware of the gendered impacts of COVID-19 on legal scholarship and academia and take proactive measures to include women scholars in all their issues. Furthermore, women may submit essays and shorter work which journals should weigh carefully. Journals should publicize their interest in shorter works, as well as work that is at an earlier stage of development than is typical for submission. Deadlines and schedules should be flexible to accommodate the needs of women shouldering multiple burdens.
We urge promotion and tenure committees to also be aware of these effects. A delay of the tenure clock may be insufficient to address the ongoing effects of the pandemic on women faculty, though we urge schools to offer this delay as a threshold. Schools should proactively provide ways for isolated faculty members to engage in scholarly collaborations and avail themselves of support systems.
Law school administrations should also provide as much flexibility as possible, working with affected faculty to identify how the institution can support them. The pandemic, which has required social distancing and isolation, makes it difficult to seal off the “work-day” from family care when daycare and schools are unavailable. While it has been unavoidable that our homes have become, in some measure, our workplace and our childrens’ classrooms, this does not give employers leave to unilaterally reconfigure these spaces.
COVID-19 has been a stressful ordeal. And it is ongoing. We continue to struggle with the uncertainties of our private and work lives. At this moment, we ask that law review editors, deans and other administrators, and promotion and tenure colleagues understand and accept that women are facing an unequal burden and respond accordingly to support gender equity.
Cyra Akila Choudhury
Professor of Law
FIU College of Law
Meera E. Deo
Director of LSSSE
Professor of Law
Thomas Jefferson School of Law
(Sisseton-Wahpeton Dakota Oyate)
Co-Director Indian Law Program
Professor of Law
Mitchell Hamline School of Law
Jennifer S. Hendricks
Professor of Law
Co-Director, Juvenile & Family Law Program
University of Colorado Law School
Moise S. Steege Jr. Associate Professor of Law and Ratner Family Professor of Social Entrepreneurship
Tulane Law School
Director, International Law and Institutions Program
Professor of International Law Practice and 2020 Wells Scholars Class of 1963 Professor
Hamilton Lugar School of Global & International Studies, Indiana University Bloomington
Associate Professor of Law
Northern Illinois University College of Law
Via @BarExamTracker, this news that the Arizona board of bar examiners is telling candidates to refrain from bringing any tampons or pads with them on the day of the exam.
The complete Arizona information for candidates is here.
This policy is problematic for so many reasons. Will products be available for all who need them? What if they run out? If the products are only in “women’s restrooms,” what about the needs of trans and gender non-binary folks who don’t use women’s restrooms? What precisely are the bar examiners worried about? Do the bar examiners understand how menstrual products work, who needs them and why? I know that state bar examiners have monopolies of sorts, but dictating (in effect, via availability) the tampons that a person must use if they need to change a tampon during the exam takes it way too far.
Cat Moon (Vanderbilt) is gathering information here about different state bar examiners’ policies prohibiting candidates from bringing menstrual products into the exam. Looks like Arizona is not the only state with an absolute ban on menstrual products.
Some states (sensibly) require candidates to place their belongings–tampons included–in a clear ziplock bag. That’s reasonable and no problem in my view. But an absolute ban on menstrual products is absurd.
H/T Ruthann Robson (CUNY), Marcy Karin (UDC) and Alexandra Roberts (New Hampshire)
You can follow folks here:
- Cat Moon @inspiredcat
- Ruthann Robson @RobsonConLaw
- Marcy Karin @ProfessorMLK
- Alexandra Roberts @lexlanham
Margaret E Johnson, University of Baltimore School of Law, has published Lessons Learned From the Suffrage Movement at 2 Maryland Bar Journal 115 (2020). Here is the abstract.
On August 18, 1920, Tennessee became the thirty-sixth state to ratify the Nineteenth Amendment of the U.S. Constitution, paving the way for its adoption. The Nineteenth Amendment protects the female citizens’ constitutional right to vote. Prior to its passage, only a few states permitted women to vote in state and/or local elections.
In 2020, we celebrate the Centennial of the Nineteenth Amendment’s passage. This anniversary provides a time to reflect upon lessons learned from the suffrage movement including that (1) voting rights matter; (2) inclusive movements matter; and (3) voting rights matter for, but cannot solely achieve, gender equality.
Download the article from SSRN at the link.
Kathleen Kim, and Yxta Maya Murray, both of the Loyola (Los Angeles) Law School, have published Advice & Consent: A Play in One Act as Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-19. Here is the abstract.
On September 27, 2018, the Senate Judiciary Committee held hearings concerning Dr. Christine Blasey Ford’s allegations that then-Supreme Court Justice nominee Judge Brett Kavanaugh had sexually assaulted her in the mid-1980s. Advice and Consent is a play by award-winning writer and law professor Yxta Maya Murray, formed of interviews, found text, and transcripts, re-arranged, selected, and edited for poetic and provocative effect. Law professor Kathleen Kim authored the Introduction and composed the play’s Musical Score. The drama is designed as a thought experiment about power, pathos, tragedy, politics, gender, race, and truth. Professors Murray and Kim have presented and performed Advice and Consent in various academic and art forums.
Download the play from SSRN at the link.
The Taxation and Gender Equality Conference and Research Roundtable that were to be held on September 14 and 15, 2020, in Washington, DC, have been postponed due to the travel and other risks brought on by the COVID-19 pandemic. The Conference and Research Roundtable were to have explored the interaction between tax law and gender equality with the objective of shining a spotlight on gender issues in taxation and bringing consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. With the continued support of our sponsors, the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, the Tax Section of the American Bar Association and the American College of Tax Counsel, we expect to hold the Conference in Fall, 2021. We will announce a date and venue once the public health crisis brought on by the pandemic has abated sufficiently to allow for safe travel and large in-person gatherings, and we will issue another Call for Papers at that time.
Thanks to all who submitted papers in response to our original Call for Papers and are endeavoring to provide virtual outlets for at least some of them. Please be on the lookout for further developments and thank you for your continuing support of this important project.
Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)
Academic Advisory Committee: Alice Abreu (Temple), Bridget Crawford (Pace), Anthony Infanti (Pittsburgh), Ariel Jurow Kleiman (San Diego), and Stephen Shay (Harvard)
Elizabeth D. Katz, Washington University, St. Louis, School of Law, is publishing ‘A Woman Stumps Her State’: Nellie G. Robinson and Women’s Right to Hold Public Office in Ohio, in volume 53 of the Akron Law Review (2020). Here is the abstract.
In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in the Midwest and West generally more willing than those in the Northeast and South to construe or create law permitting women to hold office. This account centers on the experiences of Nellie G. Robinson, a pioneering woman lawyer whose efforts to secure public office in Ohio received nationwide attention in the years surrounding the turn of the twentieth century. To contextualize Robinson’s successes and failures, the essay expands to consider the parallel efforts of other women lawyers from the period, as well as the broader history of women’s officeholding in Ohio—a state with laws and politics reflecting the major trends and tensions in the national women’s officeholding movement.
This essay was written for a symposium issue of the Akron Law Review, organized with the Center for Constitutional Law. The topic for the conference and symposium was “The 19th Amendment at 100: From the Vote to Gender Equality.”
Over at the Lily, I read with some interested this article: Breastfeeding Isn’t Free. What if That Work Was Included in the GDP? Here is an excerpt:
Of the nearly four million babies born in the United States every year, 4 out of 5 are breastfed at some point.
Almost half consume nothing but breast milk for three months. One-quarter consume nothing but breast milk for six months. Breast milk is a vital part of the nation’s infant food supply — and it isn’t free.
Yet unlike formula, breast milk production is not included in gross domestic product, our primary measure of “the economy.” According to economists Nancy Folbre and Julie P. Smith, it’s not a trivial omission. The exclusion of breastfeeding from GDP is part of a broader problem with international systems for measuring economic activity. These largely ignore the contributions of unpaid work historically undertaken by women.
This erasure has real consequences, they say.
“What we measure reflects what we value and shapes what we do,” write Smith and Folbre in a newly published compilation of academic work on how gender can transform the social sciences. “International systems for measuring the economy have institutionalized the devaluing of women’s unpaid productive and reproductive work, distorting the allocation of resources, and entrenching gender inequality.”
Read the full piece here.
The tax question not identical, but related. I’ve argued (here) that some pregnancies should be treated as taxable labor, but needless to say, that position isn’t making great headway with policymakers.
Luke Boso (San Francisco) has posted to SSRN a new article, Anti-LGBT Free Speech and Group Subordination. Here is the abstract:
In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.
This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights—like Free Speech—with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.
The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.
The full article is available here.
In an opinion piece for Newsweek, Jennifer Weiss-Wolf (NYU Brennan Center) highlights here the ways that jail officials are withholding menstrual products from detainees, including those arrested in recent protests. Here is an except:
Just last week, a New York City student shared with me a harrowing experience of being arrested and held in police custody while protesting on her period. She told me officers denied her a pad and even toilet paper, though she begged for them. Eventually, she said, she was left to struggle to remove her saturated pad while handcuffed—with the help of a cellmate and in plain sight of all in the overcrowded quarters—and free bleed for the duration of her detainment.
In early June, a tweet went viral, racking up nearly a million likes and comments, from an Atlanta woman who posted that she was taken into custody for going out to buy tampons after curfew, jailed for 14 hours and berated by police for “being unprepared” for her period.
The full piece is available here.
Marc Spindelman (Ohio State) has made available The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases. Here is the abstract:
The Shower’s Return offers a detailed account of, and engagement with, important aspects of what transpired during the Supreme Court phase of the litigation in the LGBT Title VII sex discrimination cases. The work provides a deep context for understanding the Supreme Court’s decision in Bostock v. Clayton County, recognizing that anti-gay and anti-trans discrimination are forms of prohibited sex discrimination under Title VII of the 1964 Civil Rights Act.
Part I-IV are now out and available here as text:
Parts V and VI are forthcoming.
Bumping to the front in anticipation of the July 1, 2020 deadline.
The Elisabeth Haub School of Law is pleased to announce the competition for its inaugural Women, Gender & the Law Emerging Scholar Award. This paper competition is open to all full-time law professors with five (5) or fewer years of full-time law teaching experience as of July 1, 2020. The deadline for submissions is July 1, 2020.
The purpose of the award is to encourage and recognize excellent legal scholarship related to women, gender and the law. The work chosen for the Women, Gender & the Law Emerging Scholar Award should make a substantial contribution to legal literature and reflect original research and/or major developments in previously reported research.
Papers will be reviewed on a blind basis by a committee comprised of four members of the Haub Law faculty with expertise in this area: Bridget Crawford, Darren Rosenblum, Noa Ben-Asher and Emily Gold Waldman. The winner of the competition will be invited to present the paper to selected students and faculty at Haub Law (located in White Plains, NY) during the 2020-2021 academic year, with reasonable travel expenses paid.
- All persons who have held full-time teaching positions for five (5) or fewer full academic years as of July 1, 2020 are eligible for consideration.
- There is no subject-matter limitation for submissions, as long as the paper relates in some way to women, gender, and the law.
- Jointly authored papers are accepted as long as each author independently meets the eligibility requirements.
- There is no publication commitment associated with the competition.
- Papers are eligible regardless of whether they were published prior to submission date, are scheduled to be published after the submission date, or are not yet under submission.
- Each applicant is limited to one (1) entry.
- There are no page-length or word-count limitations.
- All publications (including scholarly articles, book chapters, legal briefs and other writings) are eligible for consideration.
- We will accept submissions for the Emerging Scholar Award from April 1, 2020, through July 1, 2020. The winner will be announced by August 30, 2020.
- To participate, please email your article, redacted as necessary to preserve anonymity (for the blind grading process), as a portable data file (PDF) to Judy Jaeger, Senior Staff Associate, at email@example.com with the subject line “Emerging Scholar Award.”
- Please include in the body of the email your name, institutional affiliation and confirmation that you meet the eligibility requirements.
- Unredacted papers will not be considered.
Information on Emerging Scholar Award and the Elisabeth Haub School of Law
This is the inaugural year of the Elisabeth Haub School of Law’s Women, Gender & the Law Emerging Scholar Award. The law school at Pace University is one of a small number of schools in the United States named after a woman, and we are proud of our school’s long-standing commitment to gender justice.
Since the establishment of the Women’s Justice Center in 1991, Haub Law has made gender justice a priority. Students have the ability to pursue a concentration in Women, Gender & the Law, through which they develop skills and strategies for effective representation and advocacy for gender justice, regardless of what career they pursue. The Haub Law faculty includes nationally-recognized academic experts and advocates for gender justice. Our faculty teach, research and write about gender equality and justice as it relates to constitutional law, corporate law, criminal law, education, environmental law, estate planning, juvenile justice, legal theory, poverty, public health, social media, and taxation, to name just a few areas. An important hallmark of Haub Law is that in addition to our specialty classes that focus on gender, issues involving gender are also integrated into a wide range of other courses.
I had always heard that the adding of the “because of sex” language in Title VII was intended as a joke. Turns out the story is more complicated than that. Representative Howard Smith (D-Virginia) was a segregationist with longstanding ties to the National Woman’s Party.
In short article over at Slate.com, The Real Story Behind “Because of Sex,” Rebecca Onion provides some historical context to complicate the claim that the addition to the statute was a fortuitous accident or joke. Onion interviews Christina Wolbrecht (Political Science, Notre Dame) for details. Here is an excerpt from that interview.
Why do you think the story of the amendment gets told the way it does—why does the addition of those words get characterized as something almost random, a chance of history, instead of the product of advocates’ work?
Honestly, that interpretation comes from evidence from the time period. An example would be that the actual first director of the Equal Employment Opportunity Commission—which was convened to enforce that part of the law—called the provision “a fluke conceived out of wedlock.” Something that wasn’t supposed to be there.
And also, it’s a great story. Right? It’s one of those stories that persist. The idea that these segregationists were trying to kill something, and instead the one addition has been enormous for women. Sexual harassment law is almost entirely based on it. And now it’s opened up protections for LGBTQ people, as well.
But I think the more interesting story is the real story, which is more consistent with what we know about how politics works. Activists who cared about these issues worked on them, proposed them, lobbied for them, developed relationships, made public opinion shift, got people comfortable … they made it happen.
The full article is available here.
From the FLP mailbox:
Below is a call for submissions for the new journal, The Disparity Law Journal, which is being published as an imprint of the Journal of Law. The theme of the first issue is Disparity in Legal Citation. Dates for submission:
- Submit a proposal by 7/15/2020
- Notification of Acceptance by 8/1/2020
- Final draft due on 10/1/2020
This journal, an imprint of the Journal of Law, is a periodic attempt to highlight, challenge, and address inequality and inequity in law through the publication of readable and practical articles. We welcome both scholarly and unconventional submissions on this topic. Our vision is that we will produce a place for discussions about systemic unfairness in law and law schools. Our approach to dismantling traditions of disparity provides space for all at the table.
Disparity means the condition of being unequal. This journal is an attempt to challenge and shape the conversation about this condition in law and justice through innovative approaches to legal research, scholarship, and theory.
Lawyers,judges,lawprofessors,lawschoolstaff,lawlibrarians,lawstudents. Specifically, those who have been or continue to be disenfranchised in the law or by the American legal academy and have innovative ideas to reform, grow, change and shape the future of legal education and the legal profession.
- Ana Isabel DelgadoValentin, Suffolk University Law School
- Nicole P. Dyszlewski, Roger Williams University School of Law
- Alisha Hennen, Mitchell Hamline School of Law
- Rebecca Sherman, United States Courts for the 9thCircuit
- Genevieve B. Tung, University of Pennsylvania Carey Law School
Length of articles:
No more than 18k. Preference for shorter, readable works
Type of author:
We accept articles from anyone interested in furthering scholarship on disenfranchisement and disparity in legal academia and the US legal system.
Original works or reprints:
We welcome original works and reprints.
Anne Bryson Bauer (unaffiliated) has published We Can Do It? How the Tax Cuts and Jobs Act Perpetuates Implicit Gender Bias in the Code, 43 Harv. J. Gender & Law 1 (2019). Here is the abstract:
In December of 2017 Congress passed sweeping tax “reform” legislation known as the Tax Cuts and Jobs Act. This article highlights three aspects of the legislation that reflect implicit bias in the Code and facilitate the marginalization of women as a result of tax policy that fails to consider underlying demographic data with respect to the equitable distribution of tax expenditures. Specifically, this article analyzes the elimination of the alimony inclusion/deduction regime under §§ 71 and 215 of the Code, the disallowance of a deduction for legal fees associated with the settlement of sexual harassment and abuse claims that include nondisclosure agreements under § 162(q), and specific provisions designed to promote small businesses that exclude the vast majority of businesses owned by women.
This article suggests that tax reform should endeavor to eliminate implicit bias in the Code by addressing the circumstances giving rise to the need for alimony in the first place; the barriers to success faced by women in the market, including discrimination, sexual harassment, and sexual assault; and the circumstances that propel female entrepreneurs toward the types of business models that are excluded from substantial benefits under the Code.In order to effectuate the equitable distribution of tax expenditures and facilitate economic efficiency through tax policy, tax reform should reevaluate the normative view of marriage, families, and traditional business models reflected in the Code by taking into consideration underlying demographic data with respect to the effects of tax legislation on discrete groups of people. Further, tax reform should adopt a more holistic approach that takes into consideration the interconnected nature of the private and public lives of women struggling to participate equitably in the market and become economically self-sufficient.
The full article is here.
The following is a guest post by Rachel Cohen. Ms. Cohen is a 2020 graduate of NYU School of Law.
Earlier this month, the Department of Education under Betsy DeVos issued final regulations on Title IX, which, among other things, impose heightened legal requirements for survivors of sexual harassment and assault in colleges, universities, and K-12 schools that receive federal funding. In particular, the new regulations shrink the scope of “sexual harassment,” defining it to include only a subset of conduct that is so “severe, pervasive, and objectively offensive” that it denies a person equal educational access. Many survivors who could previously seek Title IX recourse will no longer be protected under the new definition. In addition, the new regulations give schools the choice to employ the extremely demanding “clear and convincing evidence” burden of proof when investigating Title IX sexual harassment cases and hold schools accountable only if their actions are “deliberately indifferent.” Taken together, the regulations roll back protections for survivors and make it less likely that survivors will report incidents of sexual harassment (the Department itself anticipates a 32% reduction in the number of investigations).
We have many reasons to feel anxious about the regressivity of the new regulations, which are set to go into effect this August. They come at a time when we know 1 in 5 women and 1 in 20 men report experiencing some form of sexual assault during their time in college and even higher rates of sexual harassment and assault are experienced by women of color and LGBTQ+ students. Students with disabilities are victimized at twice the rate of those without a disability. And despite the prevalence of sexual assault, 80% of student survivors choose not to report their assault out of fear that the incident wouldn’t be perceived as “serious enough” or because they feel embarrassed or ashamed, among other reasons. Women of color in particular often face increased pressure not to report incidents of sexual assault, an indication that intersectionality may influence our perceptions of victims and contribute to underreporting. And while many students previously relied on Title IX to enforce the availability of bathrooms consistent with their gender identity, Betsy DeVos’ new regulations (and earlier rescinding of Obama-era guidance) suggest further entrenchment of Phyllis Schlafly-esq bathroom panic.
To make matters worse, the regulations have been published during a global, life-altering pandemic. Now more than ever, students will be looking to schools to provide relief from stressful home environments and to preserve social connections. As the world slowly begins to reopen, we will witness dramatic changes to school atmosphere and campus life. Many schools will be reducing, if not avoiding altogether, on-campus events, extracurricular programs, and other aspects of student life (at least initially) in order to ensure proper social distancing. Without these on-campus social outlets, it is likely that much of this activity will be transferred off-campus to non-school sanctioned, “underground” gatherings, which are outside the scope of the new Title IX regulations. Schools won’t be required to investigate sexual assault or harassment that occurs at many of these off-campus locations, even if between students. This is an especially troubling development considering the majority of sexual assault and harassment (other than rape) occurs off-campus.
Studies have shown that students are at the greatest risk of experiencing sexual assault in the first few months of returning to school. Months of being cooped up in quarantine may exacerbate this problem. Young (and perhaps inexperienced) students may double-down on their alcohol or drug intake once given the opportunity to reunite with friends and return to campus. The link between sexual assault and alcohol is even more disconcerting given the newly-weakened Title IX protections. Under Betsy DeVos’ scheme, students face greater risk as they return to campus this fall ‒ precisely when they will be relying on the sanctity of the education system the most.
These harrowing measures stand in direct rebuke of the impressive strides of the #MeToo movement and broad support of the LGBTQ+ community. Substantial progress has been made in terms of awareness of the structural nature of sexism, sites of resistance, empowerment, and support, campaigns (and blogs such as this one!) committed to fighting the patriarchy, and efforts to ensure safe, inclusive environments ‒ all of which signal a cultural avowal. And despite this, or perhaps in spite of this, the new Title IX regulations take us two steps backwards by weakening protections for victims and lending legitimacy to a brooding and regressive sentiment. If this sounds sinisterly reminiscent of the realpolitik following the women’s liberation movement ‒ just when we thought acceptance of feminist aims was nearly universal (how could it not be?), we arose to find STOP ERA subverting state legislatures ‒ then I agree. Like Phyllis Schlafly’s message, Betsy DeVos’ Title IX regulations harken us back to the days where we adhered to gender stereotypes and listened to women less and assailants more.
The Boston College Law Review E. Supp. has published a symposium issue devoted to Anita Bernstein’s book, The Common Law Inside the Female Body (Cambridge University Press 2019), including a response by Professor Bernstein. This symposium is a companion to one held by the Northwestern Law Review Online earlier this academic year (here).
Here are the essays in the symposium line-up:
- Bridget J. Crawford, The Common Law as a Force for Women
- Nadia B. Ahmad, Re-Reading Anita Bernstein’s The Common Law Inside the Female Body from the Bottom of the Well: Analysis of the Central Park Five, Border Drownings, the Kavanaugh Confirmation, and the Coronavirus
- Ann Bartow, The Female Legal Realist Inside the Common Law
- Deborah Dinner, Seeking Liberty, Finding Patriarchy: The Common Law’s Historical Seeking Liberty, Finding Patriarchy: The Common Law’s Historical Legacy Legacy
- Lolita Buckner Inniss, (Un)Common Law and the Female Body
- Katharine Silbaugh, The Common Law Inside a Social Hierarchy: Power or Reason? The Common Law Inside a Social Hierarchy: Power or Reason?
- Anita Bernstein, There’s Feminism in Those Judgments
Here is the publisher’s description of the book:
In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.
Columbia Journal of Gender & Law
Symposium Announcement and Call for Papers
Are You There, Law? It’s Me, Menstruation
April 9, 2021
The Columbia Journal of Gender & Law is pleased to announce a call for papers for its Spring 2021 symposium: Are You There, Law? It’s Me, Menstruation.
This symposium explores the intersection of law and menstruation. Over half the population menstruates for a large portion of their lives, but the law has mostly been silent on the issue. Virtually all people with female biology menstruate, although not all who menstruate are girls or women. A truly inclusive law reform movement will take all who menstruate into account, without regard to race, economic class, age, or gender identity. A legal system that takes into account the biology of over half the population is the foundation for a more just society.
Judy Blume’s young adult classic, Are You There God? It’s Me, Margaret, first captured readers’ attention fifty years ago, but only recently have periods entered the public discourse. The “tampon tax”—the state sales tax on menstrual products—is currently the subject of multi-state litigation and legislative advocacy. Public awareness of the unfairness of the tax has inspired many people to start speaking and mobilizing about other obstacles, including the lack of employment-related accommodations for menstrual needs, the lack of access to safe and affordable products (particularly in schools and prisons), and the anxiety and harassment that menstruating students can face at school. Increasingly, litigation is being brought about some of these issues, and some states and localities are also taking action on their own, notably by requiring free menstrual products in settings like prisons, schools, and shelters. “Period poverty”—being unable to afford menstrual products—remains an obstacle to school, work and full participation in public life.
The Symposium will be held at Columbia Law School on April 9, 2021. The conference will include a full day of panel discussions and will be open to the public. The program concludes with a reception celebrating the journal’s thirtieth anniversary.
To be considered for a paper presentation at the symposium, please submit an abstract of your proposed paper by 5:00 p.m. on August 15, 2020 to firstname.lastname@example.org. Abstracts should be no longer than 500 words and should relate to the conference theme. Possible topics might include:
- Affordability, availability, or safety of menstrual products.
- Challenging the state sales tax on menstrual products.
- Menstruation-related discrimination and harassment in employment, education, and/or other contexts.
- Menstrual education in schools.
- Menstruation-related challenges unique to prisoners, incarcerated people, and visitors and employees in carceral facilities.
- Menstruation-related needs of homeless and low-income individuals and families.
- Cultural stigmas and taboos related to menstruation.
- Lawyering and social movements that are inclusive of all who menstruate, including trans boys and men, people with gender fluid identities, and people with non-binary gender identities.
- Research related to health issues connected with menstruation and menstrual products.
- Environmental issues related to menstruation, including access to water, disposal of menstrual products, and toxic chemicals used in menstrual products.
- Alternatives to commercial menstrual products, including micro-lending for financing of menstruation-related small businesses.
- Human rights concerns, including the right to dignity, the right to education, and/or the right to employment, and their connection to menstruation.
- The relationship of popular culture, including Judy Blume’s Are You There God? It’s Me, Margaret, to the understanding of menstruation.
- The use of female empowerment and feminist messaging in selling menstrual products and menstrual education.
- Menstrual-related activism, including litigation and legislative reform.
- Coalition-building between and among groups around issues related to menstruation.
Successful proposals will include a discussion of how the selected topic relates to the law. Interdisciplinary approaches and perspectives from outside the legal academy are very welcome.
Selected speakers will be notified by September 15, 2020.
The selected speakers from this Call for Papers will have the opportunity to publish their papers in a special symposium issue of CJGL. All such papers will be due by February 1, 2021. They must be no more than 3,000 words and should be lightly-footnoted. The abstracts will be posted to CJGL’s public website, and the complete versions may be made available prior to the symposium on a password-protected site to all symposium participants.
Registration and Transportation
There is no registration fee associated with the conference. There are funds available to cover the reasonable transportation costs and accommodations for speakers coming from outside the New York metropolitan area.
Short On-Line Essays
In connection with the symposium, CJGL invites expressions of interest in contributing short essays (100-500 words, including footnotes) on any aspect of law and menstruation, or reflections on the influence of Judy Blume’s book and its legacy for generations of readers. Essays will be hosted on the CJGL website beginning in early 2021 and are intended to be written for a general audience. We warmly welcome contributions from students, faculty, attorneys, activists, artists and others. Contributions may take the form of personal reflections, cultural critiques or other menstruation-related topics of the author’s choice. Short essays do not have to be in a traditional academic format.
To be considered for contribution of a short essay, please submit a short (2-4) sentence proposal by 5:00 p.m. on August 15, 2020 to email@example.com. Selected contributors will be notified by September 15, 2020.
Final versions of short on-line essays will be due November 1, 2020.
Questions about logistics of the program can be directed to CJGL Symposium Editor Jenna Rae Lauter: firstname.lastname@example.org
Other questions can be directed to the Symposium’s faculty conveners: Professor Bridget Crawford (Elisabeth Haub School of Law at Pace University) email@example.com; Professor Emily Gold Waldman (Elisabeth Haub School of Law at Pace University) firstname.lastname@example.org; and Professor Margaret Johnson (University of Baltimore School of Law) email@example.com.
Call for Papers: Islamic Law and the Modern International Legal Order
AALS Section on Islamic Law
For the 2021 AALS Annual Meeting
The Section on Islamic Law is pleased to announce a Call for Papers from which one or more presenters will be selected for the section’s program to be held during the AALS 2021 Annual Meeting in San Francisco on the subject of Islamic Law and the Modern International Legal Order. The program description is as follows:
The United States and Europe are awash in ethnic nationalist and quite often protoauthoritarian movements that show some level of contempt for transnational and international law. From Brexit to America First to Hungary’s identity based Orbanomics, many in the West have turned their back on the idea of international cooperation in favor of localism. The underlying conviction seems to be that local values and local institutions serve the populations of these respective nations better, and therefore they should not subject themselves to foreign arrangements created by others. These phenomena raise deeper questions respecting the future of the modern international order. Is there truly an unmanageable tension between a preference, perhaps even a universalist one, for a particular political arrangement and a willingness to subject the state to a higher order set of rules that recognizes that arrangement as only one among many? This sort of question is hardly new to Islam, which is both traditionally universalist in its conviction that an Islamic political order fulfills the Will of God, and an awareness of the necessity of finding a way to manage relationships with others. Our panelists will discuss these questions others relating to the relationship of international law and Islamic law, and the manner in which these might prove relevant to an international legal order that finds itself in near existential crisis.
Papers should be between 7500 and 15,000 words in length, not previously published, and relate to the above topic. The selected presenter will have the opportunity, but not the obligation, to publish the article in the Arab Law Quarterly if they so desire. Applicants may be academics or nonacademics at any level and in any relevant discipline.
Papers should be submitted electronically to Professor Haider Ala Hamoudi (firstname.lastname@example.org) no later than August 14, 2020. The author of the selected paper will be notified by September 1, 2020. The Call for Paper presenter will be responsible for paying their registration fee and hotel and travel expenses. Presenters who do not hold a faculty position at an AALS law school will not be require to pay registration fees.
Any inquiries for the Call for Papers should be submitted to Professor Hamoudi (email@example.com).
I have previously speculated (here) about what it would cost for public schools in Yonkers, New York to put menstrual products in the bathrooms of public schools serving students in grades 6 through 12. According to press reports (here), the Yonkers Board of Education had estimated that supplies would cost $29 per student per year.
I now have some data from the Cambridge (Massachusetts) Public Schools (CPS) that indicates that the actual costs can be much, much lower. The CPS graciously shared with me their three-year purchasing figures. Based on a three year average (calculated during traditional, non-pandemic times), the cost of keeping dispensers stocked with menstrual products is more like $2.48 per student per year.
I have reviewed data provided by the Cambridge Public Schools (CPS) for three calendar years: 2017, 2018, and 2019. I did not independently review the figures, but with the permission of CPS, I share them. The CPS’ average expenses were:
3-Year Cumulative Total
Average Per Year
CPS estimates that approximately 1,700 female students are served by the restrooms stocked with these products. Therefore, on a per student basis, the cost of the menstrual products themselves (including waste wrappers but excluding receptacles and dispensers) is approximately $2.48 per student per year.
The big cost appears to be the dispensers themselves. Presumably those do not need to be replaced very often.
In terms of menstrual products purchased over the three-year period, pads represented 54-57% of CPS’ menstrual product purchases. Tampons represented 43%-46% of products purchased.
This information will be of great interest to researchers and others.
Thanks to CPS representatives Manikka Bowman (Vice-Chair Cambridge School Committee), Vedad Konjic, James Mahoney (CPS Chief Operating Officer), Rosalie Rippey for their assistance in making this data publicly available. Thanks also to Tom Devlin.
Brad Areheart (Tennessee) has posted to SSRN his article Organizational Justice and Antidiscrimination, 104 Minnesota Law Review 1921 (2020). Here is the abstract:
Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most promising way to curb workplace discrimination is not through amending statutes or trying to change the behavior of individual bad actors; instead, we must modify the workplace itself. Specifically, this Article argues that Organizational Justice—a theory empirically grounded in behavioral science—provides novel guidance for how to proactively restructure workplace policies around the principles of fairness and equity. This Article further claims, based upon empirical evidence, that Organizational Justice can do the work of antidiscrimination by: (1) decreasing discrimination in the first place, (2) moderating the effects of discrimination, and (3) increasing internal reporting of harassment and discrimination. Finally, this Article provides insights for how to design policies that promote both actual justice and perceptions of justice in the workplace.
The full article is available here.
The librarians at Stanford have put together a wonderful tribute to Professor Barbara Babcock, here. Here is the short introduction:
Professor Barbara Babcock was the first woman appointed to the regular faculty, as well as the first to hold an endowed chair and the first emerita at Stanford Law School. Barbara Babcock taught and wrote in both the fields of civil and criminal procedure for many years. She was a pioneer in the study of women in the legal profession. Most notably, Professor Babcock is the author of Woman Lawyer: The Trials of Clara Foltz (Stanford Press, 2011), a biography of the first woman lawyer in the west, and the founder of the public defender movement.
Before joining the Stanford faculty in 1972, Professor Babcock served as the first director of the Public Defender Service of the District of Columbia. On leave from Stanford, she was assistant attorney general for the Civil Division in the U.S. Department of Justice in the Carter administration. Upon her graduation from law school, she clerked for Judge Henry Edgerton of the U.S. Court of Appeals for the District of Columbia Circuit, and worked for the noted criminal defense attorney, Edward Bennett Williams. Professor Babcock was a distinguished teacher, being a four-time winner of the John Bingham Hurlbut Award for Excellence in Teaching at Stanford Law School. She was also a recipient of the Margaret Brent Women Lawyers of Achievement Award.
Professor Babcock died earlier this year at age 81. Rest in peace and power, Professor.
This summer, the U.S. Feminist Judgments Project, together with the Elisabeth Haub School of Law at Pace University and the William S. Boyd School of Law at the University of Nevada, Las Vegas, will host a new biweekly Summer Feminist Legal Theory Series. The series is coordinated by Bridget J. Crawford (Pace), Kathy Stanchi (UNLV) and Linda Berger (UNLV). It will meet biweekly online via Zoom on Wednesdays from 2:00pm-3:00 Eastern/11am-12:00pm Pacific, starting May 27, 2020 and running for six sessions.
The Call for Papers opens today and will close on May 20, 2020 at 5pm Eastern/2pm Pacific. If you are interested in presenting in the Summer Feminist Legal Theory Series, please send the following to firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org:
- Your name, title, and affiliation.
- The paper title and an abstract of no more than 1,000 words.
- Whether or not you already have a draft of the paper. (We expect to circulate a draft of each paper—at least 10 pages—a week in advance of each talk.)
- Whether or not the paper has been accepted for publication.
- A list of any of the Wednesday dates that you would not be available to present, or a statement that any Wednesday in that date range would work for you.
Sessions will take place on these dates:
- May 27, 2020
- June 10, 2020
- June 24, 2020
- July 8, 2020
- July 22, 2020
- August 5, 2020
In selecting papers, preference will be given to papers that are in draft form, unpublished and on topics of general interest to a wide range of scholars. Papers can involve any domestic or international issues of interest to feminist scholars. The topics can be theoretical in nature or represent applications of feminist legal theory. Preference will be given to topics of the widest range of interest and applicability. Papers are welcome, but not required, to relate in some way to feminist influences on judicial reasoning and opinion-writing. Speakers will be strongly encouraged to limit their prepared remarks to 20 minutes, to allow ample time for questions and discussion.
Attendees from all parts of the academy with a verified academic email address are welcome to attend any and all sessions, regardless of whether you are selected to present a paper. Preregistration for all participants is required here. All attendees including speakers must register. Attendees need to register only once and then can attend any of the sessions in the summer series.
Received in an email today from Sarah Shirkey (Pace Law 2021) who is working on a research paper, and posted with permission:
The phrase “pink tax” is so condescending – how about we call it what it is: gender-based price discrimination. Ugh!!! “Pink tax” makes it seem so fruity, dainty, and adorable, when in fact, it is none of the above.
The WILIG Scholarship Prize aims to highlight and promote excellence in international law scholarship involving women and girls, gender, and feminist approaches. Although scholars have utilized gender and feminist analyses in international law for at least a quarter of a century, such approaches frequently fail to permeate the mainstream of international legal scholarship and practice. This prize, awarded every two years, recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly.
The 2020-2021 Inaugural Scholarship Prize Committee is composed of Lori Damrosch (Columbia Law School), Adrien Wing (University of Iowa College of Law), Viviana Krsticevic (Center for Justice and International Law), and WILIG Co-Chairs Nienke Grossman (University of Baltimore School of Law) and Milena Sterio (Cleveland-Marshall College of Law).
WILIG’s Scholarship Prize Committee invites ASIL members to submit a single article, chapter, or book published in the last three years, for consideration. Self-nomination is welcome, as is nomination of others. The Committee will consider the following criteria in granting the award, and encourages nominators to include a brief cover letter describing how the submitted work meets these criteria:
(1) Appropriate Substance. The work utilizes a feminist lens or lenses, addresses a topic that disproportionately affects women and girls, or considers the impact of international law or policy on gender more broadly.
(2) Innovative. The work addresses topics not covered by previous scholars, highlights diverse perspectives on law and policy, uses new theoretical or methodological approaches, or applies theoretical or methodological approaches to topics in new ways.
(3) Learned. The work demonstrates in-depth knowledge and expertise concerning a topic.
(4) Impactful. The work has affected or has the potential to affect the way scholars and policy-makers view or address a particular topic or issue going forward.
Please email your cover letter and scholarly work to Laurie Schnitzer, at email@example.com, with the subject line “WILIG Scholarship Prize Submission” by June 15, 2020. Questions about the prize can be emailed to firstname.lastname@example.org. Also, the call for nominations has also been posted on the WILIG website. Please feel free to forward this announcement to others in your networks who may be interested.
The first WILIG Scholarship Prize will be awarded at the WILIG Luncheon at the 2021 ASIL Annual Meeting.
Call for Authors
Feminist Judgments: Rewritten Criminal Law Opinions
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Criminal 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. 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 have focused on different courts and different subjects. This call is for contributions to a volume of criminal law decisions rewritten from a feminist perspective.
Feminist Judgments: Rewritten Criminal Law Opinion editors Sarah Deer, Corey Rayburn Yung, and Bennett Capers seek prospective authors to rewrite criminal law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten (as noted below). Potential authors are welcome to suggest other cases, though certain constraints (including a preference for avoiding cases that have already been or soon will be rewritten for other volumes in this series) may preclude their addition to the volume. We also seek authors to provide brief commentary on the original and rewritten cases.
Rewritten opinions may be reimagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000-word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made going forward (4,000-word maximum for the commentary). The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy. We are “big tent” and welcome all types of feminism, from liberal feminism to abolitionist feminism. We certainly welcome an intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten criminal law cases should email the volume editors (email@example.com, firstname.lastname@example.org, and email@example.com) and put “Feminist Judgments: Rewritten Criminal Law Opinions” in the subject line. In the body of the email, please indicate whether you are interested in writing an opinion or providing a commentary, and specify one or more of the cases from the list below that you would like to rewrite or comment on. You are also free to suggest a case not listed.
Please note that the editors are committed to diversity in all of its forms, and committed to including a diverse group of authors in this volume. If you feel an aspect of your personal identity is important to your participation in this volume, please feel free to include that in your expression of interest.
Applications are due by June 1, 2020. The editors expect to notify accepted authors and commentators no later than July 1, 2020. First drafts of rewritten opinions will be due on October 1, 2020. First drafts of commentaries will be due on November 1, 2020.
List of cases:
- Oliphant v. Suquamish, 435 U.S. 191 (1978) (tribal criminal jurisdiction)
- Winnebago v. BigFire, 25 Indian L. Rptr 6229 (1998) (strict scrutiny for gender cases)
- Elonis v. United States, 575 U.S. 723 (2015) (threatening communications case)
- S. v. Nwoye, 824 F.3d 1129 (2016) (domestic violence/duress)
- Keeler v. Superior Ct of Amador Cnty, 470 P.2d 617 (Cal. 1970) (killing of fetus)
- Whitner v. State, 492 S.E.2d 777 (1977) (criminalizing prenatal activity)
- Coker v. Georgia, 433 US. 584 (1977) (death penalty and rape)
- McCleskey v. Kemp, 481 U.S. 279 (1987) (death penalty and race)
- People v. Berry, 556 P.2d 777 (1976) (provocation)
- Girouard v. State, 583 A.2d 718 (Md. 1991) (provocation)
- People v. Helen Wu, 286 Cal. Rptr. 868 (1991) (cultural defense)
- State v. Norman, 324 N.C. 253 (1989) (self-defense)
- State v. Rusk, 424 A.2d 720 (1981) (acquaintance rape)
- Massachusetts v. Blache, 880 N.E.2d 736 (Mass. 2008) (rape/intoxication)
- McQuirter v. State, 36 Ala. 707 (1953) (rape/race)
- State re M.T.S., 609 A.2d 1266 (N.J. 1992) (juveniles/rape)
The following is a guest post by Rachel Rosenblum, a student at the Elisabeth Haub School of Law at Pace University.
I’ve been in school for the past twenty-years, and depending on how you view the situation, seven of those years have been voluntary (undergraduate and law school combined). Therefore, one could make the true conclusion that I like learning, and I enjoy being encouraged to think differently about the world. My Feminist Legal Theory course with Professor Bridget Crawford has really pushed me to think about feminist-related issues as they relate to my every-day life.
This past Saturday, I went to Walgreens to buy tampons. While perusing the many oh-so-exciting options of tampons and menstrual pads, I realized something. Many of the boxes of tampons advertised “Quiet, Easy Reseal Wrapper”, “Discrete”, and “Quiet Touch Wrapper”. I immediately connected this advertisement with a conversation that my class had in Feminist Legal Theory, where the class discussed how society should encourage menstruation and periods to be spoken about more openly, instead of the quintessential thought that this is a “woman’s issue”, and it should be shielded from discussion by all people. I realized that big corporations are relying on stereotypes that menstruation should not be discussed in public to market and advertise their products. Finding a product that is “discrete” and includes a “quiet touch wrapper” enforces the notion that whatever the product is, it should be hidden from society’s view. This realization was immensely confusing to me, since I always (no pun intended) assumed that companies that create tampons and menstrual products would want to support a movement that encourages menstruation to be a societal issue rather than a woman’s issue.
Upon presenting this realization to Professor Crawford, she raised the question of whether companies such as Tampax and Always, are simply marketing to reflect society’s views, resulting in their products being purchased more often and revenue increasing. This presented quite the “chicken or the egg” phenomenon, and I’m interested to hear others’ perspectives.
The State of Nevada has posted (here) some FAQs about the tampon tax in that jurisdiction:
When is the exemption effective?
The exemption became effective January 1, 2019.
If my business sells feminine hygiene products, what do we need to do?
Your business should no longer collect sales tax from consumers on purchases of feminine hygiene products.
What is considered a feminine hygiene product?
For the purposes of the tax exemption, and as established in statute, the definition of “feminine hygiene products” includes sanitary napkins and tampons. (NRS 372.7297 and 374.734)
Why are these products now exempt from sales and use tax?
The Sales and Use Tax Act of 1955 imposes taxes on the gross receipts from the sale and storage, use or other consumption of all tangible personal property in Nevada unless the property is exempt from such taxation. Because the Sales and Use Tax Act of 1955 was approved by the voters at a referendum election held under the Nevada Constitution, the Act cannot be amended, annulled, repealed, set aside, suspended or in any way made inoperative unless such action is also approved by the voters at an election. Question No. 2 was approved in the November 6, 2018, State General Election. The ballot measure amended the Sales and Use Tax Act of 1955 by creating an exemption from sales and use taxes for feminine hygiene products.
Does the exemption expire?
Yes. It expires on December 31, 2028. Under existing provisions of the Nevada Constitution, when any measure enacts exemptions from sales and use taxes, the measure must provide for a specific date on which the exemptions will cease to be effective.
Well done, Nevada. The no-nonsense advice for businesses is priceless. What should a business do if the business sells menstrual products? Don’t tax them! Simple.
Hearts out to Nevada, where tourism-oriented businesses are suffering financially.
And speaking of Nevada, eyes on State Senator Yvanna Cancela, a grad-to-be of UNLV’s Boyd Law School for great leadership to come!
H/T Francine Lipman (UNLV) @narfnampil
Marc Spindelman (Ohio State) has published Masterpiece Cakeshop’s Homiletics, 68 Cleveland State L. Rev. 347 (2020). Here is the abstract:
Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, on the other. The Court’s central anti-religious-discrimination holding doesn’t only potentially benefit opponents of such discrimination in other cases. This holding also has boomerang-like tendencies that should make it useful for those who would level anti-discrimination claims on a variety of other grounds. Liberal and progressive audiences might thus reconsider their aversions to the decision for this reason alone. What’s more, Masterpiece Cakeshop’s “shadow rulings,” described in detail here, dole out notable victories to cultural conservatives, traditional moralists, and lesbians and gay men alike. Officially declining to adjudicate the merits of the baker’s artistic freedom claim under the First Amendment, the Court’s opinion expresses openness and sympathy, but ultimately substantive doubt about it. In these respects, and notwithstanding suggestions to the contrary, Masterpiece Cakeshop is full of substantive lawmaking. Having tracked that lawmaking to its textual limits, analysis turns to the opinion’s final passage, which, on one level, importantly recapitulates the opinion’s constitutional rulemaking, instructing courts and governmental actors one last time on how to handle cases like this one in the future. On another level, the passage is a compass pointing to lessons in moral politics that the opinion offers to the partisans of the Kulturkampf. One version of the Court’s moral-political teaching involves instruction in a moral politics of respect and friendship. This may be practically politically viable, leaving aside whether it will in fact be accepted. A more ambitious version of the opinion’s moral-political teaching involves a moral politics of sibling love that’s certain to be widely and emphatically rejected. Reconfigured in aesthetic terms, however, the moral politics of sibling love may receive a more nuanced hearing: widely dismissed as an undertaking appropriate for politics, but received with perhaps different sensibilities on an aesthetic plane. If it’s presently uncertain and undecidable whether Masterpiece Cakeshop will prove to have been a major legal event, whatever is ultimately made of it, it covers plenty of ground,doing plenty of legal and extra-legal work, in the here and now
The full piece is available here.
I recently discussing sexual harassment with a young friend. I was bemoaning the frequency with which women experience some form of sexual harassment by men. How hard is to teach boys and men not to harass, I wondered.
My young friend replied, “It’s just as hard for boys and men to learn not to harass as it is for girls and women to learn to love their bodies.” Cultural messages are pervasive indeed.
With the permission of Professor Robinson, I am reposting her message sent to the AALS Section on Women in Legal Education listserv:
Having been thoroughly conditioned to avoid self-aggrandizement, I have refrained from personal advocacy. However, in light of retirements, advancing age, and the inevitability of life ending (an outcome the timing of which has become even uncertain as the Corona Virus stalks the land), I am making an exception to that reticence.
I entered the legal academy in September, 1972 as an assistant professor at the College of Law at Florida State University in Tallahassee, FL. That made me a member of the second “class” of African-American women to secure a tenure-track appointment at an historically-white law school. The single appointment ahead of me was Joyce Hughes who joined the faculty at the University of Minnesota Law School in the fall of 1970. There were, I believe, two African-American women in the 1972 class: Anita Glasgow at Southwestern (now deceased). I cannot recall the second woman. Joyce Hughes remains actively engaged in the academy as a member of the faculty at Northwestern School of Law.
There was one woman on the FSU faculty in 1972: Patricia Ann Dore (a graduate of Pittsburgh Law) who had joined the faculty a year or two earlier. Pat and I were the only two women on the faculty during my tenure there. Pat died in 1989 or 1990.
In September, 1984, I accepted an invitation to visit at the University of Virginia School of Law. That spring (1985), I accepted a tenured offer to remain there. In so doing, I became the first African-American woman to hold a tenured appointment at UVA and only the second tenured woman on the faculty. Lillian BeVier (who retired around 2005 or 2006) had earned tenure there in the late 1970s. In May, 2020, I will retire having spent thirty-five (35) years on the Virginia law school faculty. Overall, I will have completed forty-seven years of service as an academician. I also spent one year (1971-72) as an administrator at the Boston University School of Law.
May you all continue to be safe and well as you continue to serve in our nation’s law schools.
Mildred Wigfall (Ravenell) Robinson
Thank you, Professor Robinson.
Emily Donohue, a second-year student at University of Washington School of Law, has written a feminist judgment for White v. Samsung Elec. Am., Inc., 971 F.2d 1395 (9th Cir.1992) in connection with Dr. Dana Riagdrodki‘s Feminist Jurisprudence Seminar.
Ms. Donohue created a video explaining the original opinion and her feminist judgment. The video is fantastic. Watch it here:
Dembroff, Kohler-Hausmann, and Sugarman on What Taylor Swift and Beyoncé Teach Us About Sex and Causes
Robin Dembroff, Issa Kohler-Hausmann, and Elise Sugarman, all of Yale University, are publishing What Taylor Swift and Beyonce Teach Us About Sex and Causes in the University of Pennsylvania Law Review. Here is the abstract.
In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated.
Download the article from SSRN at the link.
Intimate Lies and the Law (Cambridge, 2019), the fantastic book by Jill Hasday (Minnesota), has won the Scribes Book Award from the American Society of Legal Writers. This award is “for the best work of legal scholarship published during the previous year.” The Scribes announcement is here.
Congratulations, Professor Hasday!
From the New York Times, this column about hte hoarding of menstrual products in these unsual times. Here’s an excerpt:
Quoting Joan Meier (GW) and Naomi Schoenbaum (GW):
With schools and day care centers closed, there’s increasing concern about the impact on women. Lauren Hall, who is involved in running various Facebook groups with other mothers, told me “it’s clear that most of the women working from home now due to COVID are taking on more childcare responsibilities and have a much harder time getting away from the kids and housekeeping type responsibilities than do their spouses.”
Even if both parents work full-time, women have now become “the chief operating officers of their households.” And, as a national poll shows, women are more likely than men to say their lives have been disrupted because of the coronavirus.
Plus, women are on the frontlines of the Covid-19 pandemic because they constitute almost 80% of health care workers in the U.S.
But, according to a new paper, the long-term effects of COVID-19 on women may be more complicated. https://www.forbes.com/sites/naomicahn/2020/04/05/women-and-the-frontlines-of–covid-19/#1dbd833f7030