Is Betsy DeVos Our Current Generation’s Phyllis Schlafly?

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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).

Betsy DeVos official portrait.jpg

Betsy DeVos

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.

Phyllis Schlafly | Biography, Books, & Facts | Britannica

Phyllis Schlafly image source: https://www.britannica.com/biography/Phyllis-Schlafly

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 environmentsall 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. 

 

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@BCLawReview Online Symposium on “The Common Law Inside the Female Body” by @BernsteinAnita

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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). The Common Law Inside the Female Body

Here are the essays in the symposium line-up:

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.

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CFP Columbia Journal of Gender & Law Symposium, “Are You There, Law? It’s Me, Menstruation.”

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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.

Papers

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 columbia.jgl.submissions@gmail.com. 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.

Publication Opportunity

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 columbia.jgl.submissions@gmail.com. Selected contributors will be notified by September 15, 2020.

Final versions of short on-line essays will be due November 1, 2020.

Questions?

Questions about logistics of the program can be directed to CJGL Symposium Editor Jenna Rae Lauter: jrl2156@columbia.edu

Other questions can be directed to the Symposium’s faculty conveners: Professor Bridget Crawford (Elisabeth Haub School of Law at Pace University) bcrawford@law.pace.edu; Professor Emily Gold Waldman (Elisabeth Haub School of Law at Pace University) ewaldman@pace.edu; and Professor Margaret Johnson (University of Baltimore School of Law) majohnson@ubalt.edu.

 

 

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CFP – AALS Section on Islamic Law: Islamic Law and the Modern International Legal Order

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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 (hamoudi@pitt.edu) 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 (hamoudi@pitt.edu).

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How Much Do “Free” Tampons Cost Schools? $2.48 Per Student Per Year in Cambridge, MA

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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

Pads

$4,185

$1,395

Tampons

$7,317

$2,439

Waste wrappers

$1,164

$388

Waste receptacles

$2,886

 

Dispensers

$30,246

 

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.

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Areheart on “Organizational Justice and Antidiscrimination”

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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.

 

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Stanford Law Library Tribute to Barbara Babcock

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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.

 

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Call for Papers and Participants: Summer Feminist Legal Theory Series Sponsored by @USFemJudgments

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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 bcrawford@law.pace.edu, kathryn.stanchi@unlv.edu, and linda.berger@unlv.edu:

  1. Your name, title, and affiliation.
  2. The paper title and an abstract of no more than 1,000 words.
  3. 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.)
  4. Whether or not the paper has been accepted for publication.
  5. 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.

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There’s Nothing Dainty About the “Pink Tax”

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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.

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Call For Nominations: WILIG Scholarship Prize

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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 lschnitzer@ubalt.edu, with the subject line “WILIG Scholarship Prize Submission” by June 15, 2020. Questions about the prize can be emailed to wilig@asil.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.

 

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Call for Authors: Feminist Judgments – Rewritten Criminal Law Opinions

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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 (sarah.deer@ku.edu, coreyyung@ku.edu, and capers@fordham.edu) 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:

  1. Oliphant v. Suquamish, 435 U.S. 191 (1978) (tribal criminal jurisdiction)
  2. Winnebago v. BigFire, 25 Indian L. Rptr 6229 (1998) (strict scrutiny for gender cases)
  3. Elonis v. United States, 575 U.S. 723 (2015) (threatening communications case)
  4. S. v. Nwoye, 824 F.3d 1129 (2016) (domestic violence/duress)
  5. Keeler v. Superior Ct of Amador Cnty, 470 P.2d 617 (Cal. 1970) (killing of fetus)
  6. Whitner v. State, 492 S.E.2d 777 (1977) (criminalizing prenatal activity)
  7. Coker v. Georgia, 433 US. 584 (1977) (death penalty and rape)
  8. McCleskey v. Kemp, 481 U.S. 279 (1987) (death penalty and race)
  9. People v. Berry, 556 P.2d 777 (1976) (provocation)
  10. Girouard v. State, 583 A.2d 718 (Md. 1991) (provocation)
  11. People v. Helen Wu, 286 Cal. Rptr. 868 (1991) (cultural defense)
  12. State v. Norman, 324 N.C. 253 (1989) (self-defense)
  13. State v. Rusk, 424 A.2d 720 (1981) (acquaintance rape)
  14. Massachusetts v. Blache, 880 N.E.2d 736 (Mass. 2008) (rape/intoxication)
  15. McQuirter v. State, 36 Ala. 707 (1953) (rape/race)
  16. State re M.T.S., 609 A.2d 1266 (N.J. 1992) (juveniles/rape)
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Does Marketing Contribute to Taboos Around Menstruation?

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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.

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Nevada #Tampon Tax FAQs

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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

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Marc Spindelman on “Masterpiece Cakeshop’s Homiletics”

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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.

 

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How Difficult is it to Teach Boys and Men not to Harass?

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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.

 

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Retirement of Mildred Wigfall Robinson (UVa)

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With the permission of Professor Robinson, I am reposting her message sent to the AALS Section on Women in Legal Education listserv:

Hello Everyone,

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.

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Student Emily Donohue’s Feminist Judgment in White v. Samsung

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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:

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Dembroff, Kohler-Hausmann, and Sugarman on What Taylor Swift and Beyoncé Teach Us About Sex and Causes

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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.

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Hasday’s “Intimate Lies and the Law” Wins Scribes Book Award

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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!

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Tampon Shortages in a Pandemic

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From the New York Times, this column about hte hoarding of menstrual products in these unsual times.  Here’s an excerpt:

Just as the pandemic has disrupted work, school and social routines, so it has disrupted the menstrual supply chain. Those who can afford to hoard have done so, leaving women who have lower incomes without supplies. For women who usually rely on free menstrual products — from a school nurse, say — that avenue is now closed. And those who might normally get menstrual products from shelters or social service centers are coming up empty as demand has surged.

This has left organizations scrambling to order in bulk

Read the full column here. It details the great work of organizations like I Support the Girls in getting products to girls and women in need.

H/T Emily Gold Waldman

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Forbes post on Gender and COVID-19

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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

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SLU Law Journal CFP: Teaching Law Online

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From colleagues at SLU:

The Saint Louis University Law Journal is proud to announce the twenty-second installment of the Journal’s Teaching series, Teaching Law Online.

The Journal created the Teaching series in 2000 as a forum for scholars, judges, and practitioners to discuss key topics and methods of teaching legal subjects.  Since then, the Journal has published a teaching issue annually, such as Teaching Civil Procedure (47:1), Teaching Constitutional Law (49:3), Teaching Federal Courts (53:3), and our forthcoming issue, Teaching Property (64:3). 

Our Teaching Law Online issue, in line with our past issues, will include articles by prominent scholars and practitioners, sharing their thoughts on teaching legal subjects remotely, a topic that is especially relevant in the rapid transition to remote learning that has occurred this semester in the wake of the COVID-19 pandemic.  We hope to represent teachers with all levels of experience teaching legal subjects online, and we welcome submissions on any subject matter within the context of remote and online learning. 

Articles for our Teaching Series are usually between 3000–4000 words (approximately 12–15 double-spaced pages) long, although we regularly publish articles as long as 30 pages and as short as 10 pages.  Because the articles focus on the author’s own thoughts on teaching, only limited reference to outside sources is needed. We anticipate publishing this issue in the spring of 2021, and therefore ask that you submit your article for review via e-mail by August 1, 2020.  If you have any questions, please feel free to contact Michael McMahon, the Managing Editor of the Teaching Issue at Michael.mcmahon@slu.edu
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Women, Gender & the Law Emerging Scholar Award: Call for Submissions

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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.

ELIGIBILITY:

  • 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.

PUBLICATION COMMITMENTS/LIMITATIONS:

  • 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.

SUBMISSION:

  • 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 jjaeger@law.pace.edu 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.

 

 

 

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Coronavirus Aid Package Would Change Rules on Purchases of #Tampons, Pads

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The corona virus aid package before the house contains a provision that would allow flexible spending accounts to be used to pay for menstrual products.  Business Insider has the story (here):

The change in law would allow people to pay for pads, tampons, cups, sponges, and liners with flexible spending accounts and health savings accounts, which use pre-tax dollars taken from workers’ paychecks. Under current law, these accounts can be used for purchases from contact solution to sunscreen and aspirin, but not to pay for menstrual products. 

That would change under the coronavirus rescue package going before the House Friday and expected to get President Donald Trump’s signature this weekend. The bill would re-classify period products as “medical expenses,” allowing shoppers to buy them with their FSAs or HSA debit cards at the store.

This is a change that Representative Grace Meng (D-NY) has been advocating for years. It’s the right result, even if it requires classification of tampons and pads as “medical expenses,” which, of course, they aren’t — they are products women need to meet their involuntary biological needs. 

This might be a prime example of when “the perfect should not be the enemy of the good.” This change helps women at a time when the major public health crisis has thrown more families than ever into economic precarity. 

I wish it didn’t take something like the corona virus to make it politically possible to change the FSA rules to sensibly allow the purchase of these products with pre-tax dollars.

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Symposium on New Book by @MicheleBGoodwin: “Policing the Womb” Sponsored by the @GenderSexLaw Program @ColumbiaLaw

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Today I attended an online symposium celebrating Professor Michele Goodwin’s fantastic new book, Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press 2020). The Center for Gender & Sexuality Law at Columbia Law School sponsored the program.

Professor Goodwin presented a brief overview of her book. Commentary followed from Professor Khiara Bridges (UC Berkeley), Professor Carol Sanger (Columbia) and Dahlia Lithwick (Slate). Professor Katherine Franke (Columbia) chaired the program. Here’s a screenshot from the very interactive program.

Here is a description of Professor Goodwin’s book.

About Policing the Womb

Policing the Womb brings to life the chilling ways in which women have become the targets of secretive state surveillance of their pregnancies. Michele Goodwin expands the reproductive health and rights debate beyond abortion to include how legislators increasingly turn to criminalizing women for miscarriages, stillbirths, and threatening the health of their pregnancies. The horrific results include women giving birth while shackled in leg irons, in solitary confinement, and even delivering in prison toilets.

In some states, pregnancy has become a bargaining chip with prosecutors offering reduced sentences in exchange for women agreeing to be sterilized. The author shows how prosecutors may abuse laws and infringe women’s rights in the process, sometimes with the complicity of medical providers who disclose private patient information to law enforcement.

Often the women most affected are poor and of color. This timely book brings to light how the unrestrained efforts to punish and police women’s bodies have led to the United States being the deadliest country in the developed world to be pregnant.

There is nothing great about the current public health crisis. But I would have had trouble attending this program in person–even though I live in New York City–because of my teaching schedule. Thank you to the Columbia Center for Gender & Sexuality Law for sponsoring this program and for reaching such a large audience.

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@NevLawJournal CFP: Race AND Gender AND Policing – May 5 Deadline for Abstracts

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From colleagues at the University of Nevada, Las Vegas William S. Boyd School of Law Program on Race, Gender & Policing:

We are pleased to announce a call for papers for a special issue of the Nevada Law Journal on “Race AND Gender AND Policing.”  Guest-edited by the faculty board of UNLV Boyd School of Law’s Program on Race, Gender & Policing, this issue will bring together scholars of Law, Criminology, and related fields for an interdisciplinary conversation centered on the simultaneous analysis of race and gender and policing.  We construe this topic broadly as encompassing all forms of surveillance and control, including but not limited to aspects of local law enforcement, national immigration policies, and school discipline rules that reflect or construct assumptions about both race and gender.  

Interested parties should submit abstracts of at least 375 words (we encourage longer abstracts and draft papers are permitted) to frankrudy.cooper@unlv.edu with the heading “Call For Papers.”  Submissions may be Essays of approximately 6,250 words or Articles of significantly greater length.  Abstracts are due on or before May 5, 2020.  We will notify people of their acceptance by May 20, 2020.  Complete first drafts of Essays will be due August 20, 2020.  Submissions will be published in Volume 21, Issue 3 of the Nevada Law Journal, which will print in April 2021. 

The Program on Race, Gender & Policing explores the relationship between race, gender, and the ways people are policed.  Policing refers to not only the activities of law enforcement officers, but also the ways that other actors, such as immigration officials, prison officials, schools, and private civilians, participate in surveillance and control.  The Program seeks to foster interdisciplinary research and concrete reforms in Nevada, the nation, and beyond.  Our goal for this symposium is nothing less than to produce an issue that becomes the best statement of how race and gender and policing come together.  

Potential paper topics include, but are in no way limited to, the following:

  • Analyses of how police officers view both race and gender;
  • Constitutional issues surrounding policing of both race and gender;
  • Criminalization of Latinx identities;
  • Police assaults against women of color;
  • Policing of LGBTQ+ in Asia;
  • Differential race and gender effects of private patrolling of space;
  • Policing of Native women;
  • Racial profiling and masculinities;
  • Disappearances of women in Mexico, the U.S., Canada, or elsewhere;
  • Disparities in policing in schools;
  • Differential racial effects of low rape clearance rates;
  • [Anything else addressing a form of policing and both race and gender].

We also encourage activists and practitioners to write accounts of their activities and cases that bring together issues of race and gender and policing.  Regardless of an author’s topic, the editors will carefully review all proposals and make selections based on quality and relevance.  We encourage both veterans of this topic and emerging scholars to submit proposals. 

If you have any questions, please contact Frank at frankrudy.cooper@unlv.edu

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Online April 3 – University of Colorado Conference on “Women’s Enfranchisement: Beyond the 19th Amendment”

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The 2020 Ira C. Rothgerber Jr. Conference on Constitutional Law hosted by the University of Colorado has been converted to a webinar to be held April 3, 2020. The topic is “Women’s Enfranchisement: Beyond the 19th Amendment.” It is still free.  Here’s the info:

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women. This conference will use the centennial to take stock of how far we’ve come and how far we have to go in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly.

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference.  For more information on the panels and speakers please visit the CU Law Rothgerber event page.

More details below the fold.

 

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Omnes in Viam Latinam

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Today I witnessed a fairly common exchange on a particular listserv of which I am a member.  Member A made a contribution that Member B deemed inappropriate for the subject-matter of the list.  Member B passed judgment on Member A’s contribution and asked Member A to take the discussion off-list to another, more suitable forum.  Member A wrote back. Various accusations were exchanged. This went on (“reply all” style) for a few more rounds. I took no joy in witnessing this and deleted subsequent emails.

I admit, though, that I was fascinated by an especially colorful post by Member A that managed to use no fewer than five Latin phrases:

  • ad hominem
  • argumentum ad misericordiam
  • petitio principii
  • non causa pro causa
  • ignoratio elenchi

And the poster wasn’t even a law professor!

I’m no rhetoric scholar or philosopher. I’m not strong in my Aristotle or high school Latin, so investigate I did.  Ad hominem (directing the argument at the person, not the idea) was a familiar phrase. The others were not. 

See if you can match the following descriptions to the corresponding Latin phrase above. Answers below the fold.

  • confusing not the cause for what is the cause
  • irrelevant conclusion
  • begging the question
  • confusing appeals for sympathy with actual evidence

P.S. I love the Stanford Encyclopedia of Philosophy (here).

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University of Baltimore Feminist Legal Theory Conference Rescheduled

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The University of Baltimore’s Center on Applied Feminism 12th Feminist Legal Theory Conference, Applied Feminism and Privacy, originally scheduled for April 2-3, 2020, is now scheduled for October 15-16, 2020. Professors Margaret Johnson and Michele Gilman, Co-Directors, Center on Applied Feminism, wish everyone and their communities safety and good health during this chaotic and uncertain time.

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Establishing Norms for #Law Student Participation in Remote Learning: Turn Cameras on and Mute That Mic (“virtual background” is your friend)

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Like many law schools, my institution has decided to move all classes on-line, to the extent possible, at least until March 29. The Elisabeth Haub School of Law is located in Westchester County, New York. Governor Andrew Cuomo has deployed the National Guard and established a 1-mile “containment area” a few towns over in New Rochelle, New York.

These are unusual times.

Today is the first day that my colleagues and I started teaching on-line. My message, to myself and my colleagues, is to do what you can, with whatever technology you feel comfortable with, and strive for excellence but not perfection.  In other words, we are all going to make mistakes in the on-line classroom, in the same way we make mistakes in the traditional classroom. (I made quite a few in my class this morning.) Many of us are feeling overwhelmed as we figure out the technologies that enable us to teach on line. It seems that at every turn, there is another webinar or click-through to consult.

We will get through this, with patience and good cheer.  Our students want us to succeed; we want them to succeed.  We will not leave our students behind. This will be difficult, for sure. But we will support each other and continue to grow as individuals and as communities.

But how to foster community if I can’t see my students and my students can’t see each other?  There are technologies that enable us to easily have the equivalent of a massive on-line conference call.  But what if students won’t turn on their cameras?  I had more than one colleague say that fewer than half of students turned their cameras on.  What if students have on their cameras, but I can see their messy beds, partially eaten meals and … less than professional aspects of their lives?

Every instructor must decide what message to convey to students about virtual “presence.” Mine is this:

I recognize students may not have reliable internet access, or may have internet problems at any particular moment. Not all students will have cameras or microphones on their laptops, especially if they have older machines.  I get it (I’ve been there!).  For these reasons, I’ll make sure that students can participate in the on-line session by phone.  All students also will have access to a recording of the session. It’s not ideal; it’s not the experience any of us signed up for. But we will make sure that the students’ learning is not set back.

That being said, I believe it is reasonable to ask students will use the phone option as a back-up measure, not all the time, unless they can let me know.  Students who are physically and technologically able to attend the synchronous class in its regularly scheduled time-slot should do so. 
 
In my class, I consider it part of my student’s professional obligation to turn on their cameras, mute their microphones, and remain present for the entire time. Instructors certainly need to be understanding if someone needs to step away from their computer, just as we would be in a traditional class. But the expectation is that the instructors should be able to see the students and vice versa, as a matter of creating and building community. Very few people like to see themselves on camera (I know I don’t). By turning on the camera, we are showing up for each other and saying, “I’m a part of this. We’ll get through this together.”
 
We will!
 
P.S. To my students, I don’t care if you have made your bed.  I care about your education. Show up in whatever way you can.  We’ll work it out (but you might want to check out the “virtual background” function in Zoom….)
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Tips for Teaching #Law Online, in the Event of a COVID-19 Shut Down of Law Schools

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I’ve been teaching Federal Income Tax and Wills,Trusts & Estates in mixed live/online formats since 2009. I put together a short video for colleagues with thoughts about how to teach law classes in distance formats, whether synchronous or asynchronous, if the public health situation requires us to do so. The video does not address technology issues (i.e., what format is best for any one particular class), but rather offers thoughts on big picture issues/concerns when moving a traditional law class on line. A few of the tips are idiosyncratic to my school (i.e., who to ask for help supporting a particular program), but most of the tips are applicable across the legal academy.

To summarize, my tips are these:

  1. If you are teaching synchronously, try to do so in your regularly scheduled class time, so as not to create scheduling conflicts for students. If you are teaching asynchronously, try to get your recordings/assignments up before the class otherwise would meet live, or, as a default, no later than 24 hours after a regularly scheduled class would have met.
  2. Keep our eyes on the goal of delivering the best educational experience we can, within the constraints we are have, including time and training.  Don’t feel like you have to radically re-organize your course. 
  3. Instructor availability to students matters especially in the distance format — make sure to schedule virtual office hours.  Consistency is important.  Don’t suddenly add new assignments and requirements just because the class unexpectedly must be taught in a distance format. Make sure to stay in regular contact with students.
  4. Random additional nuggets of wisdom I’ve acquired in teaching online for 11 years:
    • Employ visuals, especially if teaching a class asynchronously.  I don’t like to see myself on screen, but it’s not about me.  The student feedback is that they feel more connected when they can see their instructor.
    • Provide students a roadmap when teaching online, whether in the format of an outline that can be downloaded, or a list on the screen that students can reference during the online session.
    • Record in small chunks.  Don’t do what I did for years, and make the mistake of recording sessions that lasted 1 hour 50 minutes. Break the session into 20-minute segments. If you have to rerecord, you’ll be glad to have to re-do one segment only. Also, if you don’t refer to super-current events, you may end up building a library of recordings that you can use in future semesters.
    • Develop appropriate mechanisms for attendance and accountability. Obviously, if large numbers of students are sick, very strict attendance policies will need to be relaxed, but you’ll want to be able to monitor student progress.
    • Build in lots of opportunities for feedback to students. I do this through quizzes (that do not count toward a student’s grade) that provide students with the opportunity to apply the material from the distance class session.
    • Much of what we do in live classes can be done via distance sessions — group work, working with a partner, self-assessment, etc. With a little creative thinking, we can do those things slightly differently (and equally successfully) online.
    • The students want their professors to be successful instructors just as much as we want them to to be successful learners. We’re all in this together and will work together to deliver the best education we can under the circumstances.  Perfection isn’t required.

The video (about 24 minutes) is available below for anyone who is interested.

(cross-posted from Faculty Lounge)

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McCrudden on Gender-Based Positive Action in Employment in Europe

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Christopher McCrudden, Queen’s University Belfast School of Law, has published Gender-Based Positive Action in Employment in Europe: A Comparative Analysis of Legal and Policy Approaches in the EU and EEA. Here is the abstract.

This report considers the use of ‘positive action’ as a key mechanism to advance women’s equality in employment, and to ensure gender-balanced company boards. ‘Positive action’ involves the use of measures that are taken by Governments or other actors to: enable or encourage members of ‘protected groups’ (such as women) to overcome or at least reduce current or past disadvantages (including discrimination); to meet the needs of the protected group that differ from other groups; or to enable or encourage those in the protected groups to participate in a particular activity where they might otherwise be under-represented. The report identifies the current legal and regulatory frameworks and scope of positive action in European Union law and policy, and in the 28 European Union Member States (including the United Kingdom), and the three members of the European Economic Area (comprising Iceland, Liechtenstein and Norway). The report aims to lay bare tensions and gaps that may arise in the applicable legal framework between different levels of legal authority, but in particular between EU law and national approaches to positive action. Addressing this issue involves a reflection on whether there are possible inconsistencies or shortcomings in the current EU legal treatment of positive action (including the jurisprudence of the Court of Justice of the European Union). In light of this analysis, the report makes recommendations for possible European Union action, including suggestions for actions that may be included in any forthcoming EU gender strategy.

Download the article from SSRN at the link.

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Talking with High School Students about the #Tampon Tax

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South Carolina high school sophomore Logan Kenny

Logan Kenny is a high school sophomore attending USC Upstate through the Scholar’s Academy program located in South Carolina.  She is currently working on a research paper about the tax on feminine-hygiene products in the US. She recently contacted Professor Crawford with some questions about the tampon tax. The results of their written interview appear below.

 

Logan Kenny: Who benefits from the tax and what is done with the money collected from the tax?

Bridget Crawford: The most immediate benefit is to the states that impose a sales tax on menstrual products. Sales tax is a much more important source of revenue than, say, the income tax in most states.  So in general, the sales tax is a big part of any state’s budget.  That being said, the sales tax on revenue from menstrual products is truly a small percentage of the budget. In California, for example, revenue from the tampon tax was just 0.011% of the state’s budget for 2018-2019. 

Logan Kenny: Is the tax a violation against human rights? Why?

Bridget Crawford: My colleague Carla Spivack (Oklahoma City University School of Law) and I have argued (here) that the tax on menstrual products deeply implicates the right to be free from discrimination, the right to health, and the right to education, to give just three examples. The Colombian Constitutional Court ruled in 2018 that the tampon tax violates women’s sexual and reproductive rights, as well as rights to dignity and autonomy.  The same court affirmed that the City of Bogotá must provide pads for homeless women.  Failing to do so, the court reasoned, violates human rights.  In Europe, there have not yet been any cases that have come before the European Court of Human Rights or the European Court of Justice, but both courts have recognized that taxation is a human rights issue, so I wouldn’t be surprised if we saw some cases in the future.

Logan Kenny: Why is it important for the tax to be eliminated?

Bridget Crawford: Stephanie Arnold and Sharron Champion, founders of The Homeless Period Project in Greenville, South Carolina, are doing such good work on this issue. They saw in their own community, through their volunteer work with schools and churches, that too many women and girls didn’t have access to the basic products they need. They saw that too many people were choosing between feeding themselves and their families, or buying menstrual products. That’s a choice that no one should have to make. Removing the tax from menstrual products is just one small step in the direction of making menstrual products more affordable. If we want all people to have the opportunity to participate as equals in all aspects of public life, they must be able to meet their involuntary biological needs.

Logan Kenny: Feminine products have a tax while, in some states, male specific products such as erectile dysfunction medication do not. Why do you think this is?

Bridget Crawford: Generally speaking, all items are subject to sales tax unless they are specifically made exempt. Most states have exemptions for items that are considered to be necessities.  Medications, such as Viagra, are commonly considered necessities. I don’t think there has been some grand conspiracy to tax women specifically. Rather, it is the failure to exempt menstrual products — an inaction — that is the problem. My colleague and co-author Emily Gold Waldman and I (here) have attributed the failure to exempt these products from a general squeamishness about talking openly about menstrual products and women’s bodily functions. And if lawmakers do not talk about the biological need for these products, then menstrual products will never make it onto the list of exempt items.

Logan Kenny: Some people argue that eliminating the tax would raise the tax on other items. Is this an acceptable argument and why/why not?

Bridget Crawford: Simply put, states should repeal the tampon tax because the tax is unconstitutional. Legally speaking, it’s no defense to an unconstitutional law to say, “We have to keep discriminating because non-discrimination is expensive.” Practically speaking, if a state does the right thing and eliminates the sales tax on menstrual products, there is zero evidence that other taxes will increase. States like New York and Florida, to name just two, eliminated their tampon taxes without increasing other taxes.

Logan Kenny: What are other misconceptions that people may have about eliminating the tax? Why are they not credible?

Bridget Crawford: I was surprised to read (here) that one Virginia lawmaker objected to including menstrual products in the state’s annual three-day sales tax holiday, for fear that women would “abuse” the privilege. And there is the high school principal (here) who initially turned down students’ request for free menstrual products in school bathrooms, on the grounds that the girls would “abuse the privilege.” These men seem to fundamentally misunderstand both menstruation and women.  Menstruation is an involuntary biological process. Girls and women aren’t out to profit from their periods, gobbling up resources for the sake of it. Would that lawmaker say the same thing about toilet paper? Does the high school principal worry that students widely and systematically abuse the availability of hand towels in the bathroom? I doubt it.  Their comments are outright sexist.

Logan Kenny: What is needed by state legislation in order to eliminate the tax?

Bridget Crawford: The legislative solution is very simple, and I am willing to work on a pro bono basis with any state legislature that wants to repeal its tax.  Simply add menstrual products to the list of tax-exempt items! Professor Elizabeth Cooper and her students in the Legislative and Policy Advocacy Clinic at Fordham Law School, together with the nonprofit Period Equity, have put together a fantastic set of advocacy materials (here) that citizens can use to advocate for repeal in their state.

Logan Kenny: Why is that the majority of women use tampons/pads, yet they are not deemed a necessity to be taxed exempt? What qualifies an item to be tax exempt?

Bridget Crawford: Tax exemptions is a matter of legislative grace. In other words, lawmakers have to declare that a particular category of goods is tax-exempt. Medical supplies, for example, are typically tax-exempt. But conceptually, we know that menstrual products are not “medical supplies,” like bandages or gauze, in the sense that we don’t use them because we are hurt or ill. We use them because we have female biology. But there is no reason to have to shoehorn menstrual products into existing categories of tax-exempt items. The state legislature can declare them to be tax-exempt. This is easy, from a practical perspective. More importantly, it is required by our nation’s Constitution.

Logan Kenny: Were feminine hygiene products always taxed? If not, when were they imposed?

Bridget Crawford: State sales tax has not been a long-time feature of the U.S. system. Scholars debate about which state first adopted a modern sales tax as we know it, but the state sales appears to originate in the 1920s. Vermont didn’t adopt a sales tax until 1969! So the state sales tax is relatively “young” as taxes go. Other taxes have been around since colonial times. The federal estate tax, by way of comparison, was instituted in 1916.

Logan Kenny: What do you think the economy would look like if the tax was eliminated vs keeping the tax?

Bridget Crawford: Making menstrual products more affordable can have a huge positive impact on the economy. If schools, work, and public life were designed with women in mind, we’d have the full potential participation of our entire population.

Logan Kenny: How many girls/women can’t afford these products as of right now? What do they have to resort to?

Bridget Crawford: Nationwide, over half of all public school students qualify for free or low-cost lunch. In cities like New York, for example, and in Miami-Dade County in Florida, that percentage is over 70%. To talk about just the student population, if a student cannot afford menstrual products and the school does not provide them, many students will feel like they need to miss school. Professor Christopher Cotropia at the University of Richmond has documented (here) that missing school, coming late to school, or leaving school early is correlated to the inability to afford menstrual products. This is an absolute educational and economic tragedy that must be addressed. It is a stark deprivation of the rights of all students to equal access to education. My co-authors Emily Waldman and Margaret Johnson and I explain in our article Title IX and Menstruation, forthcoming in the Harvard Journal of Law & Gender, that schools’ failure to provide menstruating students with easily accessible tampons and pads negatively affects students’ access to equal educational opportunities. We believe that Title IX should require schools to provide these products.

Conversations around the tampon tax make clear how much we need leaders of all ages in every community.  Young people grasp quite easily how important it is that girls and women have access to the products they need in order to be full and equal participants in all aspects of public life. And eliminating the tampon tax is a huge part of increasing access.  When we see that half of the population bears a financial burden because of their biology, the inequality is obvious. The tax law is an effective prism that allows us to quantify unfairness in dollars and cents.

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On Teaching Torts with a Focus on Race and Racism @wrigginsmelaw

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Jennifer Wriggins (Maine) has a post over here at the Race and the Law Prof Blog on Teaching Torts with a Focus on Race and Racism.

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Kids Are Always Welcome in My Law School Classes

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Any student of mine is welcome to bring children to my class any time, no advance notice required.  Child care issues should not get in the way of attendance. We’ll work it out! 

Kids have great perspectives on tax fairness, fiduciary duty, choice of business entity.

I’ve been there myself.  I’m on your side.

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High School Students in Idaho Taking on the Tampon Tax – @MHS_Bobcats

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Students at Madison High School in Idaho are taking on the tampon tax. The local newspaper, the Standard Journal, reported here that a group of seniors are proposing solutions as part of their “Project Citizen” work:

Adeline Winn, Madison Jensen, Tanner Averill, Carlie Meredith and Zach Le made up the group.

The group reported that Idaho is one of 32 states that taxes women for menstrual hygiene products. They also reported there is no tax on male enhancement products, and such is unconstitutional.

“We’d like feminine menstrual products to be exempted from Idaho sales tax,” Averill said. ***

When women and girls can’t afford to buy new sanitary products, they’ll reuse products thus putting them at risk for toxic shock syndrome, a fatal bacterial infection. Other times, women rely on cloths, rags, tissues, toilet paper and paper towels from public restrooms, she said.

The group reported the American College of Obstetricians and Gynecologists stating that one in five women struggle to buy menstrual products at least once a month. The average woman spends up to $300 a year on feminine hygiene products, and that cost doubles should there be daughters in the home.

The group suggested that each of the Madison High School’s seven girl’s restrooms be stocked with free sanitary napkins and tampons. Currently, the school charges 25 cents for each. It would cost the school an estimated $760 a month to refill dispensers. Buying such products would help girls focus on class and relieve them of embarrassing situations, they said.

Le said that eliminating the tax on menstrual products would benefit women and their families.

Kudos to these students for raising awareness of the issue and coming up with practical solutions. People of all ages are leading the way on menstrual equity and justice. We see you, Madison High School students!

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New Book Announcement: David S. Cohen & Carole Joffee, “Obstacle Course: The Everyday Struggle to Get an Abortion in America:

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The University of California Press has published a new book, Obstacle Course: The Everyday Struggle to Get an Abortion in America, by David S. Cohen (Drexel) and Carole Joffe (Sociology, UCSF).  Here is the publisher’s description:

It seems unthinkable that citizens of one of the most powerful nations in the world must risk their lives and livelihoods in the search for access to necessary health care. And yet it is no surprise that in many places throughout the United States, getting an abortion can be a monumental challenge. Anti-choice politicians and activists have worked tirelessly to impose needless restrictions on this straightforward medical procedure that, at best, delay it and, at worst, create medical risks and deny women their constitutionally protected right to choose. 

Obstacle Course tells the story of abortion in America, capturing a disturbing reality of insurmountable barriers people face when trying to exercise their legal rights to medical services. Authors David S. Cohen and Carole Joffe lay bare the often arduous and unnecessarily burdensome process of terminating a pregnancy: the sabotaged decision-making, clinics in remote locations, insurance bans, harassing protesters, forced ultrasounds and dishonest medical information, arbitrary waiting periods, and unjustified procedure limitations.

Based on patients’ stories as well as interviews with abortion providers and allies from every state in the country, Obstacle Course reveals the unstoppable determination required of women in the pursuit of reproductive autonomy as well as the incredible commitment of abortion providers. Without the efforts of an unheralded army of medical professionals, clinic administrators, counselors, activists, and volunteers, what is a legal right would be meaningless for the almost one million people per year who get abortions. There is a better way—treating abortion like any other form of health care—but the United States is a long way from that ideal. 

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Suffolk Law Seeks Spring 2021 Trusts & Estates Visitor

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Suffolk University Law School in Boston is looking for a Spring 20201 visitor to teach Trusts & Estates.  Here is the info:

Suffolk University Law School in Boston invites applications for a position as a Visiting Professor for the Spring semester of the upcoming academic school year (Spring 2021), with the primary responsibility of teaching two sections of the course in Trusts and Estates (one day and one evening section).  Applications should be received by February 17 (although applications will be considered on a rolling basis until the position is filled) and must include a letter detailing desire and qualifications to teach Trusts and Estates, as well as a curriculum vitae.  Applications should be addressed to Professor Rosanna Cavallaro (rcavalla@suffolk.edu) and uploaded to the Suffolk University website via Jobvite.

Suffolk University is an equal opportunity employer. The University is dedicated to the goal of building a diverse and inclusive faculty and staff who contribute to the robust exchange of ideas on campus, and who are committed to teaching and working in a diverse environment.  We strongly encourage applications from groups historically marginalized or underrepresented because of race/color, gender, religious creed, disability, national origin, veteran status or LGBTQ status.

Suffolk University does not discriminate against any person on the basis of race, color, national origin, ancestry, religious creed, sex, gender identity, sexual orientation, marital status, disability, age, genetic information, or status as a veteran in admission to, access to, treatment in, or employment in its programs, activities, or employment.

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LSU Law Center: Visiting Position Open 2020-2021 for Academic Year, or Fall 2020 or Spring 2021 Semester

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LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a visiting professor for the 2020-21 academic year or for Fall 2020 and/or Spring 2021 in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials, and a commitment to outstanding teaching.
The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.
The Faculty Appointments Committee will begin reviewing applications on February 7, 2020 and will consider applications thereafter on a rolling basis until the position is filled. Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:


Melissa T. Lonegrass and Christina M. Sautter
Co-Chairs, Faculty Appointments Committee
c/o Pam Hancock (or by email to phancock@lsu.edu)
Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, Louisiana 70803-0106

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CFP: Taxation and Gender Equality, Sept. 14-15, 2020

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Taxation and Gender Equality Conference:

Research Roundtable and Policy Program

September 14-15, 2020

Deadline for Expressions of Interest: March 15, 2020

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants. 

The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).

Continue reading

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@PaceLawReview CFP: Reforms in the NY State Criminal Justice System

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The Pace Law Review at the Elisabeth Haub School of Law at Pace University invites submissions for an interdisciplinary conference on the theme of “Game-changing Reforms in the NYS Criminal Justice System and How to Implement Them” to be held on March 20, 2020, at the NYS Judicial Institute on the campus of the law school. 

In the last few years, culminating in the last legislative session, the New York State Legislature, the New York State courts, as well as the government of New York City, have enacted several far-reaching reforms in criminal procedure and related criminal justice issues. These changes include (but are not limited to) the following: raising the age of criminal responsibility to 18 years; comprehensive bail reform; discovery reform; significant changes in the speedy trial statute; the anticipated closing of the Rikers Island detention and correctional facilities; significant changes in the imposition of solitary confinement of state prisoners; the expansion of the use of desk appearance tickets (and the consequent reduction of the number of custodial overnight detentions); expansion of the use of video-recorded police interrogations; expanded use of police body cameras in NYC; proliferation of conviction integrity programs in New York State district attorney’s offices; creation of a Prosecutorial Conduct Commission; and the substantial increase in funding of public defender offices statewide as part of the Hurrell-Harring case settlement. Each of these reforms deserves considered analysis and debate.

This symposium will provide a forum for policymakers, jurists, academics, criminal law practitioners (on both the prosecution and defense side), students, and concerned citizens to engage in a thorough discussion of criminal justice reform. These changes share some common themes—an overall trend towards decarceration, increased use of modern technology in street policing, and increased emphasis on the prosecutorial obligation to share information, accelerate the process, avoid misconduct and prevent or correct wrongful convictions.

These changes in New York State reflect national trends in favor of bail and discovery reform, decarceration, and increased concern about wrongful convictions. They also reflect changes in the modern prosecutor’s role and a 21st century model of organized policing. Fixing a close gaze on New York’s and upstate and downstate counties will provide insight for our national discussion about how we should create and maintain a just criminal process.

New York is one of the largest states in the nation and has an extensive criminal justice system. Significant changes in the law, like those listed above, will have significant effects in other states as well. The far-reaching impact of these reforms might include changes in policy, distribution of resources, rethinking what we mean by fairness and due process in criminal matters, and the proper balance between social control and individual liberty—all are implicated in these reforms. Our federal system contemplates the various states as “laboratories” of justice. With these reforms, New York once again is coming to the forefront in that role. A Pace Law Review symposium issue containing excellent and insightful scholarship on matters of criminal justice policy, procedure, practice, and jurisprudence would be a valuable resource both locally and nationally.

The Pace Law Review and the Pace Criminal Justice Institute invite you to be a part of that discussion.

We welcome full-length traditional law review articles with a maximum of 65 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays, or commentaries. We are looking for different perspectives on the goals and challenges of implementing the historic criminal justice reforms throughout New York State.

To submit, please send:

  1. Name, title, and professional affiliation
  2. Curriculum vitae/resume
  3. Contact details, including phone number and email address
  4. A two to three-page abstract summarizing your article or essay and indicating the expected page length of your paper. 

Please submit your abstract for consideration to: Managing Editor Mellis Bakir at: mbakir@law.pace.edu.

Submission Deadlines

Abstract Deadline: February 3, 2020

Selection Notification Date: February 14, 2020

Article/Essay Deadline: TBD

If you have any questions about this call for papers, please contact Mellis Bakir at: mbakir@law.pace.edu or Carol Barry (Director of the Pace Criminal Justice Institute) at: cbarry@law.pace.edu.

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@NWULRev Online Symposium on “The Common Law Inside the Female Body” by @BernsteinAnita

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The Northwestern University Law Review Online has published a symposium issue devoted to Anita Bernstein’s book, The Common Law Inside the Female Body (Cambridge University Preimage from www.google.comss 2019), including a response by Professor Bernstein.  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.

Here are the essays in the symposium line-up:

Bridget J. Crawford, The Common Law as Silver Slippers
David S. Cohen, The Promise and Peril of a Common Law Right to Abortion
Joanna L. Grossman, Women are (Allegedly) People, Too
Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle
Margaret Chon, Intellectual Property Infringement and the Right to Say No
Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law
Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body
Anita Bernstein, Negative Liberty Meets Positive Social Change

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Muriel Gold Senior Visiting Professorship at McGill University @mcgillu

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MURIEL GOLD SENIOR VISITING PROFESSORSHIP
Institute for Gender, Sexuality and Feminist Studies
McGill University
2020-2021
 
The Institute for Gender, Sexuality, and Feminist Studies (IGSF) at McGill University, Montreal, Canada invites applications for the position of Muriel Gold Visiting Professor. This position is open to professors who wish to spend one or two academic terms in a university environment in order to carry out research on gender, sexuality or feminist studies. The Institute offers work space and support, an ongoing seminar program, contact with other professors within McGill and in neighbouring universities – all this located at the centre of a stimulating, bilingual, urban environment.
 
The Visiting Professor position is ideal for faculty with research leave funding, a portable research fellowship, or sabbatical. Preference will be given to professors who already hold faculty positions. Research funding in the amount of $5,000 for the Muriel Gold Senior Visiting Professor is available from the IGSF. Visiting professors also participate in our Esquisses works in progress talk series, and have an opportunity to present and discuss their research with an engaged and enthusiastic research community.
 
If interested, please send a one page proposal via email with the header “Muriel Gold Visiting Professorship,” describing the research that would be undertaken while in residence as a Visiting Professor, a copy or link to a recent publication, an up-to-date curriculum vitae and an indication of what period you would like for your tenure as IGSF Visiting Professor to:
 
Miranda Hickman, Acting Director
Institute for Gender, Sexuality, and Feminist Studies (IGSF)
3487 Peel Street, 2nd floor
Montreal, QC H3A 1W7
 
While we may be able to provide administrative advice on the following matters, we ask that IGSF visiting professors assume full responsibility on matters relating to visa applications, health insurance, housing and living expenses. Please note in particular that Canada does not pay for hospital or medical services for visitors. We ask all visiting professors to ensure to have health insurance to cover any medical costs for the duration of your visit to Canada.
 
APPLICATION CLOSING DATE: January 15, 2020 Please submit your application and all documents electronically.
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Feminist Scholarship in “Made At NYPL” Exhibit @nypl

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I recently visited the New York Public Library to see the exhibit Made at NYPL, a celebration of “a small by representative sample of original works that were produced using the Library’s unique and extensive resources.”  Among the featured works are two that likely are familiar to law profs:

  • Annette Gordon-Reed & Peter S. Onuf, “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of Imagination  (2016)
  • Barbara Goldsmith, Other Powers: The Age of Suffrage, Spiritualism, and the Scandalous Victoria Woodhull (1999)
  • Betty Friedan, The Feminine Mystique (1963)

Two excerpts from Friedan’s book capture how important the library was (is) to writers:

Without that superb institution, the Frederick Lewis Allen Room of the New York Public Library and its provision to a writer of quiet work space and continuous access to research sources, this particular mother of three might never have started a book, much less finished it.

I sat for many days in the New York Public Library, going back through bound volumes of American women’s magazines for the last twenty years. I found a change in the image of the American woman, and in the boundaries of the woman’s world, as sharp and puzzling as the changes revealed in cores of ocean sediment.

It’s an informative exhibit, for anyone who lives in the city or happens to be passing through.  More info is available here.

 

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Utah Poised to Repeal #Tampon Tax

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Yesterday the Utah legislature passed a bill that will exempt from menstrual products (tampons, pads, etc.) from state sales tax.  Read more here.

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Johnson, Crawford & Waldman on “Title IX and Menstruation”

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Margaret Johnson (Baltimore), Emily Waldman (Pace) and I have posted to SSRN our article Title IX and Menstruation, forthcoming next year in the Harvard J.L. & Gender.  Here is the abstract:

“Oh no. Could I borrow a tampon or pad?” These (or similar) words are familiar to almost everyone who has ever had a period. Even for adults, menstruation can at times be a challenge. For some schoolchildren, it can feel like an insurmountable obstacle to receiving an education. Students are subject to constant observation by classmates and teachers; they may not have autonomous access to a bathroom during the school day; or they may not be able to afford menstrual products. As a result, a menstruating student may find it difficult to concentrate in school or even attend school at all, depending on the circumstances. This Article explores the intersection of menstruation and education to uncover the impediments faced by girls and other students who menstruate.  Students may experience menstruation-related peer harassment, restrictive school policies, a lack of access to menstrual products, and inadequate menstruation-related education.  Because menstruation is uniquely associated with female biology, a school’s failure to address the needs of menstruating students amounts to a denial of educational opportunities on the basis of sex under Title IX.

In recent years, students themselves have played notable roles in successful efforts to cause schools to provide free pads or tampons to students. Currently most states do not require schools to do so. Even in states where schools have a legal obligation to provide menstrual products to students, availability is only one part of a larger problem. Unless students can access bathroom facilities in response to their biological needs, and do so without shame, stigma or restriction, students may risk bleeding during class, failing to change tampons or pads as medically recommended, or even leaving (or skipping) school. This Article argues that pursuant to Title IX, schools should provide students with an education free of unnecessary anxiety about the natural biological process of menstruation.  This freedom from anxiety is a necessary precondition for girls, boys, women, men and people of all genders to have meaningful opportunities to fully participate in all aspects of public life.

The full article is available here. Our article focuses mostly on education in grades 3 through 12, but the arguments are equally applicable to higher education contexts, too. 

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Research Travel Grants for Susan Bulkeley Butler Women’s Archives @Purdue Archives

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From the Purdue University Archives:
 
The Susan Bulkeley Butler Women’s Archives at the Purdue University Archives announces Research Travel Grants for those planning to travel in order to use materials at the Purdue Archives in 2020. Grants of up to $2,000 will be awarded to individual scholars.
 
The Women’s Archives collects, preserves, and makes available for research original and rare materials that capture the often overlooked and under-represented stories of women and their communities in Purdue and Indiana’s past. Our collections include papers, photographs, audio-visual materials, digital media, rare books, and select artifacts documenting women faculty, staff, and students at Purdue University; organizations and programs at Purdue that support women; and significant women and women’s organizations in Indiana.
 
Notable collections include those documenting the history of the Deans of Women at Purdue; collections on women’s issues such as the Sisters for Health Education (S.H.E.) records and the Helen B. Schleman papers; the Paulina T. Merritt papers on the Indiana Women’s Suffrage Movement; and the personal papers of industrial engineers Frank and Lillian Gilbreth, among many others.
 
For descriptions of our collections, see Women’s Archives here
 
For information about eligibility, criteria, and the application process, see Research and Travel Grants here
 
The deadline for applications is January 17, 2020.
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Carbado & Harris on “Anti-Essentialism, Intersectionality, and Dominance Theory”

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In June, 2019, Devon Carbado (UCLA) and Cheryl Harris (UCLA)  published an important essay, Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory, 132 Harv. L. Rev. 2193 (2019). It provides an excellent and nuanced understanding of three important intellectual developments in feminist legal theory in the last 30 years. It should be required reading for anyone who teaches or studies in the field. Here are Carbado and Harris’ three main arguments:

This Essay advances three core claims. First, intersectionality is often erroneously conflated with anti-essentialism and thus many readers erroneously perceive a strong opposition between intersectionality and dominance theory on the view that dominance theory is essentialist and that intersectionality is not. In the context of disaggregating intersectionality from anti-essentialism, we contest the view that feminism and critical theory must always avoid essentialism to achieve normative commitments to social transformation. Second, we argue that scholars have largely overlooked the fact that dominance theory and intersectionality share a critique of conceptions of equality structured around sameness and difference. Third, we contend that while there is an affiliation between dominance theory and intersectionality, there is also at least some tension between their respective framings of race and gender.

The full essay is available here.

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Sex Inequality in the U.S. and French #Tax Laws

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Mary Roche Waller (Michigan JD 2017) has published Sex Inequality in the United States and French Income Tax Filing Systems, 73 Tax Lawyer 207 (2019). Here is the abstract:

This Article explains and compares the joint and family income taxation structures in the U.S. and France, respectively, and discusses how these structures contribute to sex inequality. The Article also addresses the rationales for a joint or family structure and offers three possible approaches for reducing the sex inequality in the tax systems in the U.S. and France, including a secondary earner deduction, increased child-care subsidies or deductions, or a switch to an individual taxation structure. The Article concludes that the U.S. and France could better reach sex equality goals by moving to an individual filing system.

The full article is available on the ABA website here (paywall for now; sorry).

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Constitutional Court of Colombia Invalidates Tax on Menstrual Hygiene Products, Requires Bogotá to Provide Supplies for Homeless Women

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Mónica Arango Olaya (DPhil Student, Oxford) has a fantastic write-up of two recent decisions by the Colombian Constitutional Court:

In late 2018, the Court adopted Decision C-117 of 2018, holding that a provision imposing 5% VAT tax on tampons and sanitary pads violated women´s rights to equality, autonomy, and access to a minimum core standard of life. The petitioners had argued that the tax did not consider women’s economic ability to access essential goods that only they were obliged to use (given that there were no comparable alternative products in the market).

The Court recognized that there was a high margin of discretion for the legislature in tax law. Nonetheless, it could not infringe the principles of reasonableness and non-discrimination. The Court also affirmed that the tax violated the principle of “no taxation without representation”, as Congress never discussed why tampons and sanitary pads should be taxed, despite being irreplaceable goods used only by women. More importantly, it underscored two points. First, women´s ability to appear in and navigate public spaces, and participate in all the dimensions of public life, is necessarily contingent on access to sanitary pads and tampons. While the Court acknowledged the existence of alternatives like the cup and menstrual underwear, it also found that these options were effectively inaccessible for rural women, and indeed for the majority of women, who lived on the minimum wage. Effective access was thus held to be interrelated with the protection of other rights, such as the rights to health, education, autonomy and dignity. * **

More recently, building upon the previous case, the Court affirmed in Decision T-398 of 2019 that the city of Bogota had violated the rights to dignity, autonomy as well as the sexual and reproductive rights of a woman living on the streets, by not including in their policies the provision of sanitary pads. The Court found that women in vulnerable positions, with no knowledge of menstrual hygiene, had to look through trash cans to find products to manage their flow. This was a breach of the State´s positive duties to provide minimum goods for the most vulnerable.

The full post is here at the Oxford Human Rights Hub.

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