Spindelman on “The Constitutionality of Reason-Based Abortion Bans”

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Marc Spindelman (Ohio State) has published with the Georgetown Law Review Online his essay Embracing Casey: June Medical Services LLC v. Russo and the Constitutionality of Reason-Based Abortion Bans. Here is the abstract:

June Medical Services L.L.C. v. Russo has already begun gaining a certain reputation as a Trojan Horse: in form, a pro-choice ruling that overturns a Louisiana anti-abortion measure, but in substance, an anti-choice, pro-life decision that sets the stage for future reversals of the Supreme Court’s reproductive rights jurisprudence. Without denying that prospect, this work identifies different possibilities afoot in June Medical, specifically, in Chief Justice John Roberts’s key fifth-vote concurrence in the case. A close reading of this opinion shows that its reliance on stare decisis principles exceeds a jurisprudential commitment to a narrow understanding of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, the concurrence’s immediate point of reference within the Court’s abortion rights jurisprudence. In a wider sense, the concurrence demonstrates a commitment to Planned Parenthood of Southeastern Pennsylvania v. Casey, and, by extension, what Casey preserved of Roe v. Wade.

Seen this way, Chief Justice Roberts’s June Medical opinion does not set a course for incrementalist reversals of abortion rights that will snowball into Casey’s and Roe’s shared demise. Subtly, if not perhaps finally, the Chief Justice’s June Medical concurrence signals an embrace of Casey that, functioning as a beachhead, should prospectively secure the constitutional foundations of women’s abortion rights.

Interwoven with the case for this understanding of the Chief Justice’s June Medical concurrence are multiple tallies of the constitutionality of an important set of pro-life legal measures—so-called “reason-based” abortion bans—that take direct aim at Casey’s post-Roe doctrinal framework, including one such measure from Ohio, presently pending before the U.S. Court of Appeals for the Sixth Circuit sitting en banc. Analysis of these measures demonstrates why “reason-based” abortion bans—which make the availability of abortions depend on the reasons that women have for choosing them—are unconstitutional both under Casey’s basic doctrinal framework and under the Chief Justice’s approach in June Medical. No matter how the Sixth Circuit decides the case on Ohio’s reason-based abortion ban now that June Medical has been handed down, the issue of the lawfulness of reason-based abortion bans may soon find its way to the Supreme Court. One way or another, the question of the meaning of the Chief Justice’s June Medical concurrence certainly will.

The full essay is available here.

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Updated Guide to Submitting Essays, Commentaries, Reviews to Online Law Review Companions

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I’ve updated and expanded my guide to submitting to online law review companions at 60 law schools. It is here on SSRN. 

As before, the document contains information about word count limitations, subject matter preferences, submission details and other guidelines authors may find relevant when considering sending their work to law review presences online. There’s a column indicating whether the online companion articles are included in the HeinOnline Law Journal Library.

Corrections, additions, refinements to this chart are always welcome.

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This Week in #MenstrualEquity News

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This week in menstrual equity news from around the world….

  • The Scottish Parliament passed a bill making menstrual products available at no charge to all who need them. Products will be in all schools (including university) and the government can direct that they be made available in other public buildings. More here.
  • The Italian Corriere della Sera published an op-ed (here) critiquing the Italian Parliament for rejecting a proposal to lower the VAT on menstrual products from 22% to 5%, noting that the government doesn’t want to give up revenue on the Italian market for menstrual products, estimated to be approximately 515 million Euros in size.
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Interview with Prof Deborah Gordon on Feminist Judgments: Rewritten Trusts & Estates Opinions

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In this interview, Professor Deborah Gordon (Drexel), one of the editors of Feminist Judgments: Rewritten Trusts & Estates Opinions (2020), talks about critical opinion writing and the challenges of rewriting opinions using precedents and facts in existence at the time of the original opinion.

Professor Gordon touches on rewritten opinions as a form of “scholarship,” Justice Cardozo, judicial perspectives, the contours of a collaborative scholarly project looks like, and working together to envision what might have been and what could be!

The Trusts & Estates volume is available from Cambridge University Press (here). Below the fold is a list of the cases and contributors. Continue reading

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Pace Law School Hiring Announcement

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Elisabeth Haub School of Law Faculty Hiring Announcement

The Elisabeth Haub School of Law at Pace University invites applications to fill up to two full-time, academic tenure-track/tenured faculty positions at the rank of assistant professor, associate professor, or professor. The positions will begin in August 2021. Applicants must be committed to providing excellent legal training both in person and online, engaging in meaningful service within the law school and in the broader community, and producing excellent scholarship.

Applicants should have teaching and research interests in any of the following areas: environmental law, natural resources law, sustainable business law, energy and climate law, public health law, contracts law, business law, and tax law. Applicants whose interests cover multiple of these areas are particularly encouraged to apply. We welcome applications from candidates interested in doctrinal, experiential, and/or clinical teaching.

Applicants seeking the rank of assistant professor should hold a J.D. from an accredited law school or an equivalent degree from a non-U.S. law school. A successful candidate will have an excellent academic record and demonstrated potential for accomplishment in teaching, scholarship and research, and service. Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school. Pace is committed to achieving completely equal opportunity in all aspects of University life.

Pace University’s Elisabeth Haub School of Law (Pace Law) offers J.D. and Masters of Law degrees in both Environmental and International Law, as well as a series of joint degree programs including a Doctor of Juridical Science (SJD) in Environmental Law. The school, housed on the University’s campus in White Plains, NY, opened its doors in 1976 and has over 8,000 alumni around the world. The school maintains a unique philosophy and approach to legal education that strikes an important balance between practice and theory. For more information visit http://law.pace.edu.

Please apply via https://careers.pace.edu/postings/16869. Applications will be considered on a rolling basis. Direct any questions via email to Appointments Committee Chair, Professor Margot Pollans, mpollans@law.pace.edu.

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CFP: Trusts & Estates at LSA 2021

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Trusts & Estates Collaborative Research Network

Law and Society Association Annual Meeting

Chicago, Illinois (& Virtual), May 27-30, 2021

Call for Participation – Deadline December 31, 2020 11:59 PM ET(USA)

Submission Link: here

The Trusts & Estates Collaborative Research invites proposals for (i) individual papers to be organized into panels; (ii) fully-formed panel proposals; and (iii) proposals for other sessions such as Author Meets Reader, Salon, or Roundtable discussions that explore any aspect of the law, practice or effects of trusts, equity, and estates, broadly defined. We also seek volunteers to serve as Chairs and/or Discussants for paper panels. Successful proposals likely will bear in some way on succession (also referred to as inheritance), equity, and/or wealth transfers (whether at death or during lifetime, outright or in trust). Subjects of inquiry may involve any aspect of government or social policy with respect to trusts, estates, inheritance, wealth transfer, equity or courts with jurisdiction over these issues.

If you would like to present an individual paper as part of a Trusts and Estates CRN panel, submit an idea for a fully-formed panel, or propose an Author Meets Reader, Salon or Roundtable session, please  submit your proposal by December 30, 2020 at 11:59 p.m. Eastern (USA) via the LSA submission page here: https://lawandsociety.site-ym.com/page/CallforSubmissionsLSA2021

When you submit your proposal, please indicate that it is for CRN #56 Trusts and Estates. 

If you would like to volunteer as a chair or discussant, please email Bridget Crawford (bcrawford [at] law.pace.edu).

The CRN will organize submitted papers into panels with cohesive themes. You are welcome to link your paper in some way to the 2021 conference theme, “Crisis, Healing, Re-Imagining,” but there is no requirement to do so.

Our goal is to stimulate focused discussion of papers on which scholars are currently working and to discuss topics of current and common interest to those working in the fields of Trusts & Estates and Equity, broadly defined, both in the United States and internationally.  We welcome participation from scholars of any level of seniority working in any discipline, language, or country.  Although you may submit an individual proposal to present a paper that is closer to publication, we are especially interested in receiving proposals for works-in-progress that will benefit from discussion that the panels will provide.

We welcome participation of junior scholars, those who are untenured or in non-tenured positions, clinical and legal writing specialists, doctrinal teachers, advanced graduate students, as well as more experienced scholars. Scholars from around the world are warmly encouraged to apply; we welcome participation of colleagues from all nations.

Participants are encouraged to apply multi-disciplinary and interdisciplinary approaches in their scholarship. Possible areas of inquiry might include issues related to transfer of wealth between spouses or family members; preferences created for certain types of transfers or transfers to particular classes of individuals; the transfer of wealth to charities or non-profit organizations; generational equity; issues of social and economic inequality; comparative aspects of the law of succession and the law of trusts more broadly; the relationship between/among gender, race, sexual orientation, socioeconomic class, immigration, language status, disability and the law of succession and the law of trusts; the socio-linguistics of testation and wealth transfer; access to estate planning justice for low- and middle-income individuals; questions of cultural or group inheritance rights; and similar issues.

Please note that LSA rules limit you to one conference participation as a Paper Presenter, Roundtable Participant, Author or Salon Presenter.  There are no caps on appearances as Chair and/or Discussant on a panel.

We will attempt to accommodate all who are interested in participating in the CRN’s programming.

If you have any questions, you are welcome to contact CRN chair Bridget Crawford (bcrawford [at] law.pace.edu).

 

 

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CFP: Transnational Legal Feminism – Beyond Western Hegemonies of International Law and Feminist Theory – Abstract Deadline Dec. 15

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Transnational Legal Feminism – Beyond Western Hegemonies of International Law and Feminist Theory 

A Transnational Legal Theory Journal Virtual Symposium in collaboration with London South Bank University and Cornell Law School’s India Law Center

25-26 March 2021

Overview

The Transnational Legal Theory Journal is publishing a special issue of articles on transnational legal feminism. We invite you to submit an abstract (due 15 December 2020) for consideration for the journal. Selected authors will be invited to submit papers (subject to peer review) that will be published in the Transnational Legal Theory Journal and presented in a virtual conference to be held on March 25th and 26th, 2021 in collaboration with the London South Bank University and the Cornell Law School.   Chandra Mohanty and Lama Abu-Odeh will be keynote speakers. 

Background

The Symposium aims at bringing together scholars and activists working on the intersection of international law, particularly those working on Third World Approaches to International Law (TWAIL), transnational law, and feminist legal theories to exchange notes from both research and practice. The relationship between international law and feminist theory has predominantly been shaped by Western feminisms, especially liberal and dominance feminisms. This is most clearly visible in the current international women’s rights agenda. While the effectiveness of the international human rights system has been questioned by a vast array of different scholars, the central theme of this Symposium will focus on the legacies and repercussions of the hegemony of Western thought within both feminist research and practice in the sphere of international law and attempts and proposals for overcoming these.

Building on transnational and post-colonial feminist scholarship, as evidenced in the works of Chandra Talpade Mohanty, Inderpal Grewal, and others, the Symposium centres on the idea of ‘transnational legal feminism.’ Problematising particularly the hegemony of Western feminist thought with its colonial roots and power asymmetries within international law and international feminist practice, the Symposium invites those critical voices that engage with alterity and difference across cultural divides – a task that both feminist theory and international law have grappled with in the past. It particularly aims to bring together researchers who have been working at the intersection of the emerging scholarship on transnational law and feminist theories. Transnational law has been arguing for an inquiry into the role of law in context through the consideration of the diverse actors, norms and processes that both legal scholarship and practice are faced with as a result of globalisation. With transnational legal scholarship offering a variety of tools and frameworks that could have potential for cross-border feminist research and practice in international law (and vice versa), the Symposium encourages applications by those who have been attempting to connect the two disciplines.

By allowing Western epistemologies and narratives of feminist theory, gender equality and human rights to create the very basis of the international gender equality framework, non-hegemonic approaches to women’s rights promotion have gone ignored leading to certain blind spots in both feminist research and practice. The Symposiums aims to draw attention to some of these blind spots by inviting submissions from scholars whose research engages in a more contextualised approach to feminist theory and practice by allowing for the inclusion of non-liberal knowledge and discourse that might find their roots outside of the Eurocentric understanding of law and gender equality. 

In this context, the Symposium will particularly focus on the following themes:

  • Power struggles between the Global South and Global North regarding gender equality issue and international law, including critiques of dominant perspectives
  • Non-hegemonic feminist theories and activism
  • Contextualised approaches to cross-border feminist praxis that challenge notions of universality
  • The effects of increased transnational neoliberal policies on gender-related and feminist issues
  • The potential (risks) of transnational feminist solidarity movement
  • How does transnational legal feminism intersect with the body of literature called “transnational law”?
  • What could a new transnational legal feminist approach entail?

Contributions are invited from scholars and activists in the field of law, gender studies, feminist theory, international relations and other disciplines that consider the kinds of questions listed above.

The ‘Transnational Legal Feminism Symposium 2021’ is organised in collaboration with the Transnational Legal Theory journal and will result in a special issue of the journal. As a result, accepted papers will be given to be published in this special issue after a peer review process.

The virtual Symposium, organised by London South Bank University and Cornell Law School’s India Law Center, will be held on March 25th and 26th, 2021. We are delighted to welcome Professor Chandra Talpade Mohanty (Syracuse University) is opening keynote speaker and Lama Abu-Odeh (Georgetown Law School) is our closing keynote speaker.

Please submit an abstract of no more than 500 words, a short bio (max. 200 words), and your institutional affiliation to transnational_feminism@cornell.edu by 15 December 2020. Draft papers will be due to at the end of February 2021 with the final papers having to be submitted by the end of April 2021, after the Symposium.

Organisers:

Farnush Ghadery

London South Bank University
Transnational Law Institute

(King’s College London)

ghaderyf@lsbu.ac.uk

Sital Kalantry

Clinical Professor of Law

Faculty Director, Cornell India Law Center

Cornell Law School

skalantry@cornell.edu

 

 

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CFP: 2021 Detroit Mercy Law Review Symposium Pandemic: From Disparity to Equity

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The Detroit Mercy Law Review at the University of Detroit Mercy School of Law has extended the deadline for proposals for its 105th annual symposium, which will be held March 5, 2021.  This year’s topic is Pandemic: From Disparity to Equity, focusing on disparities arising from the current COVID-19 pandemic and working from those toward an equitable new normal.

Possible topics include, but are not limited to, the role of law and regulation in light of the pandemic’s disparate impacts across race and class; the impact of pre-pandemic healthcare inequities in underserved communities; effects of the pandemic on education; managing prison release programs during pandemic; housing policy and eviction protections during and after pandemic; legal flexibility and fundamental rights within pandemic “hotspots”; and any other topic related to the law’s response to COVID-19’s effects across race and class.  Quality articles based on presentations made at the Symposium will be published in our annual Symposium edition.

Current plans call for the Symposium to take place entirely online.  In lieu of our usual reimbursement for travel expenses, presenters will be provided a $500 honorarium.

Submission Procedure
Proposals should be approximately 250–500 words, double-spaced, and must be submitted by e-mail no later than 5 p.m. EDT October 312020. Please submit proposals by e-mail to Marta Mazur, Symposium Director, at lawreview@udmercy.edu. In your e-mail, please indicate whether your proposal is for a presentation only or if you plan to submit an article based on your presentation.

Acceptances will be e-mailed on or before November 2, 2020. Preference for presentation times will be given to those also planning to submit an article for publication. Articles will be due to the Law Review on Friday, March 12, 2021.

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CFP: Symposium on the COVID Care Crisis and its Implications for Legal Academia

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The COVID care crisis and other multiplying effects of related shutdowns, embedded inequalities, and health and safety risks are likely disproportionately impacting people with caregiving responsibilities in academia. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” Increasingly, employers have begun to reshape what used to be the private domain of family and home through “work at home” or in-person presence requirements that disregard the ways in which care work happens. At the same time, schools and other institutions providing support to families and marginalized groups are temporarily closed, permanently shutting down, or buckling in response to state or local mandates as well as financial and personnel pressures.

In the months since the start of the COVID-19 pandemic, women’s scholarly output and publications have dropped in various disciplines, while service and care responsibilities that fall disproportionately on junior or marginalized faculty and staff have likely increased. Compounding these pressures, Black faculty and faculty of color more generally have also been coping with the emotional effects of the police killings of George Floyd and others, at the same time that COVID-19’s health effects are concentrating along lines of race and inequality in these communities specifically. All of these factors threaten the output, visibility, status and participation of women and other primary caregiving faculty and staff in legal academia.

Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize women and the perspectives they bring to legal scholarship, education, and public dialogue. This symposium seeks to raise awareness of the current COVID care crisis and its impacts on academia, and to begin a dialogue on concrete and innovative responses to this crisis.

Symposium details

There will be no registration fee for presenters or other participants in order to maximize engagement and inclusivity. Panels will be grouped by theme and topic. The organizers are exploring publication opportunities with various law journals, with expected publication in late 2021. 

Abstract deadline

Abstracts must be submitted to Sarika Laljie by October 30, 2020. The authors of the selected papers will be notified by November 10, 2020.

Essay deadline

Essays for participating speakers are due by December 20, 2020.

Conference date

The conference will take place online on Friday, January 15, 2021.

Organizers

The symposium is organized by Prof. Shruti Rana (IU Bloomington), Prof. Meera Deo (TJSL) and Prof. Cyra Akila Choudhury (FIU) and is co-sponsored by the Hamilton Lugar School of Global and International Studies, the Law School Survey of Student Experience, and the Critical Legal Academics and Scholars Collective. 

More info is available here.

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Battling Trolls, Goblins and Structural Sexism: How the Period Emoji Ended up on your Phone

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Guest post by Carmen Barlow and Lucy Russell

If you have a smartphone, it’s pretty likely you’ve used an emoji. These tiny images have become a language of their own and whether it’s a goblin mask, a sad cat or a robot, there’s an image for all manner of surreal and unexpected things. Yet up until October 2019 there wasn’t an image for menstruation, one of the most natural and frequently occurring aspects of girls and women’s bodies.

For decades in Britain, periods were embarrassing, fact. Talking about periods was taboo, period products were called ‘sanitary wear’ and adverts for them showed blue liquid, or better still, never referred to bodily fluids at all. Then in 2017 the BBC broke a story on period poverty. Tina Leslie, a health worker in Leeds and her colleague, had noticed girls were not attending classes during their periods. On questioning, it emerged that the girls were not going to school because they could not afford period products and were afraid of leaking.

The ‘toxic trio’ of period poverty

The story hit a nerve with the British public and overnight it became the top topic of conversation. At the time, we were working for girls’ rights charity Plan International UK. The growing debate seemed to miss one key element, the voices of the girls themselves. We decided to conduct research, working with a network of the UKs leading menstruation experts advising and guiding the work, to hear directly from girls about their experiences of menstruation. Through this work we identified a ‘toxic trio’ of  issues which come together to create the phenomenon ‘period poverty’ in the UK today.

  1. Firstly, we found that young people’s knowledge and education about menstruation was very poor. They told us that school education didn’t cover the reality of menstruation, including experiences of pain and related concerns such as endometriosis, range of product options and most importantly the emotional experience. 
  2. Secondly, affordability and access to products was a problem. There was a high tax on the products that treated them as luxuries. For girls, knowing what product offered the best value for money was hard when no one talked about periods, let alone educated you about them. 
  3. Thirdly, stigma and taboo dominated young people’s understanding of menstruation. From an early age, girls were told, ‘your bodies are dirty, embarrassing and leaky’, ‘you need to conceal your menstruation and manage it so that no one around you ever has to address the fact that your body menstruates’. We heard of schools instructing nurses to avoid mentioning vaginas when delivering education. At the same times boys were removed from discussion, one boy described being sent to ‘go on a run’ instead of attending menstruation education.

Throughout 2018 the momentum around periods grew, a hugely popular campaign ran to end sales tax on period products, given the name ‘the tampon tax’. In the UK, Scotland led the way in providing free products for pupils in schools, however, those wanting to tackle stigma and taboo found only limited spaces like arts and women’s social media, to change the conversation.

How do we get the public talking about periods?

As girls’ rights campaigners, the challenge for us was: how do we make this an engaging and accessible issue for the mainstream? We decided to try something new. We came at it from a light hearted approach, using fun to get people talking about periods. Out of a late afternoon team brainstorm, the idea of an emoji for menstruation was born. A ‘period emoji’. Something light hearted we could launch on Menstrual Health Day and that supporters, especially young people, could be encouraged to use in conversations online to tackle some of the silence and stigma around periods. This would then pave the way for us to share some of the more serious issues attached to menstruation with this audience who now were talking about periods. 

The period emoji idea immediately struck a chord with the people who supported the charity. We ran a poll of women and asked if an emoji was something they would use and if stigma around periods ever held them back.The answers blew us away: two thirds of women did not feel comfortable discussing their period with their Dad or male friends and more than 1 in 10 women did not feel comfortable talking about periods with their female friends. A positive result for us however was they would use the emoji and they felt it would help to make it less ‘awkward’! So off we went, working with activists in the Global North and South as we wanted the design to be as globally appealing as possible. We wanted to make sure our designs were inclusive, wouldn’t further stigma and would work globally, for example, in some communities tampons are not considered an acceptable option. 

Who decides on an emoji?

We ran our five designs past a number of experts before putting these out to the public to vote. Our plan was that we would take the winning emoji to the Unicode Consortium to be developed into a global emoji for the emoji keyboard, available on practically all devices these days. The Unicode Consortium, if you didn’t know, is the global body that decides which symbols shall exist in the global language of emoji. At a personal level, negotiating with them about the need for symbols, the tools to speak about women’s bodies, certainly felt like echoes of past feminist battles over language.

If this is something you’d like to hear more about, the documentary Picture Character features our and several others journeys to get an emoji through the Unicode Consortium. 

We launched this campaign and asked the public to vote for their favorite period emoji. We expected a few thousand votes at the most. Within days it went viral, we had dozens of celebrities sharing this. We were being featured in the media including radio, TV and press across the UK and then globally. The media weren’t just interested in the emoji, although this was an effective introduction, they also wanted to address the issues that had led to this campaign, as seen by medical journals like the Lancet covering this. 

By the end of less than 2 weeks we had over 37,000 votes! And most importantly, the issue was a national conversation. We were thrilled! 

At the end of voting, the period pants were the winning design so, as promised we submitted a proposal to the Unicode Consortium to have these made into an emoji. Then the waiting started. 

It wasn’t until many months later that we received a brief message from someone at the Unicode Consortium saying simply that the period pants emoji was not being taken forward as it didn’t have a “wide enough useability”. This was a bit of a shock, what with 800 million people menstruating right now and over half the planet having experienced this directly in their lives. It felt much more widely usable than the goblin mask, 12 different types of trains and dumplings, in our opinion. We tried to push back but no luck. 

We still had 37,000 people waiting for news of a successful campaign and frankly it felt like a fight worth pursuing, not least because the Consortium’s response showed exactly what we were fighting against: the stigma and silence surrounding periods.

So our next move was to submit another proposal, this time for the runner-up design. Whilst the pants had the most votes, the blood drop came in close second place and was equally inclusive. We were told by the Consortium that NHS Blood was also looking to have a blood drop emoji and that our chances would improve if we teamed up, which we did. 

After 2 years of campaigning and liaising with the Unicode Consortium we finally got the blood drop emoji in October 2019. 

What impact did the emoji have?

For us, it’s not just the fact that there is now a blood drop emoji on all emoji keyboards globally that was a big win. Perhaps an even bigger win, in our view, was the two years of conversations that happened around the period emoji campaign. The global conversation about periods was shifting dramatically, the USA was changing its tax laws, handmade pads and menstrual cups were growing in popularity in Malawi and Uganda, Pad Man had opened up the conversation to Bollywood and a film about an Indian menstruation activist won an Oscar. 

The vast, global media coverage this received was unprecedented for periods, as was the online buzz. The campaign went viral twice in these two years and there was more conversation about periods than ever before. Whilst this online conversation did include the good, bad and the ugly (or rather the extensive and often nasty trolling), in itself this broke down the silence and helped further the cause and awareness of periods, period stigma and period poverty globally. And for this, we are very proud.

The UK movement for period equity went from strength to strength, sex and relationships education became statutory in schools, English schools were given free period products for pupils and the government committed to abolishing the Tampon Tax. We worked closely with the government as they created a new Period Poverty Task Force, committing funding to eradicate the problem. Without a doubt there is still more to do and we have yet to understand the impact of COVID-19 on all of these issues. What we do know is that poor quality education and stigma in the UK and globally are still holding girls and other menstruators back. 

Do we hope there will be bloody tampons, pads, pants and uteruses added to the emoji keyboard in the future – yes absolutely! 

Do we hope that stigma, shame and secrecy around periods will one day end? Yes we do.

And if the emoji has helped people talk about periods, then we are proud to be part of a global movement to view periods as part of a normal, healthy body.

Break the Barriers: Girls’ experiences of menstruation in the UK, https://plan-uk.org/file/plan-uk-break-the-barriers-report-032018pdf/download?token=Fs-HYP3v

About the authors:

Carmen Barlow is now the Head of Communications and Engagement at Amnesty International UK, continuing campaigning for human rights, awareness of rights’ being infringed and for policy change in the UK and internationally. Carmen was interviewed by Emma Barnett for her book Period about menstrual health and stigma, as well as featuring in the documentary Picture Character on how to get a global period emoji. Leading the period emoji campaign remains one of her proudest achievements. 

Lucy Marie Russell campaigns for girls’ rights in the UK and globally. She has secured changes to the law and policy regarding teenage pregnancy, sex and relationships education, street harassment and more. She founded Plan International’s UK work including The State of Girls’ Rights in the UK report. She has run campaigns to end period poverty and taboos and working with Carmen on the blood-drop emoji campaign. More recently she was Deputy Co-Chair of the UK Government’s Period Poverty Task Force and editor of Break the Barriers, a UK wide study of menstruation experiences for adolescent girls.

 

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Yuvraj Joshi on “Racial Transition,” forthcoming in Washington University Law Review

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Yuvraj Joshi (Fellow, Yale Law School) has posted to SSRN his article, Racial Transition, 98 Wash. U. L. Rev. (forthcoming 2021). Here is the abstract:

The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely discussed and sometimes even denied. This Article demonstrates how the pursuit of “racial transition” has shaped the Supreme Court’s racial equality opinions.

By analyzing opinions concerning school desegregation, voting rights, affirmative action, and disparate impact, this Article uncovers two main ways that the Supreme Court has pursued racial transition. While earlier decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized “distancing” the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. Understanding these different frameworks provides key insights into racial equality law’s history, as well as a glimpse into its likely future under the Roberts Court.

Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis reveals how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited the United States’ racial transition. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase.

As protestors demand a reckoning with America’s legacies of racism, the Roberts Court seems poised to leave the past behind. This Article considers how racial justice advocates can seek to reorient the Court’s jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.

The full article is available here.

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New Article: “Period Poverty in a Pandemic: Harnessing Law to Achieve Menstrual Equity”

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Emily Gold Waldman (Pace) and I have posted to SSRN a draft of our article Period Poverty in a Pandemic: Harnessing Law to Achieve Menstrual Equity, 98 Wash. U. L. Rev. (forthcoming 2021). Here is the abstract:

Period poverty is not new, but it has become more visible during the COVID-19 crisis. Worldwide, menstruation has long caused marginalization and vulnerability for some. The pandemic has amplified these conditions. This Article makes three claims. The first is descriptive, identifying four interrelated aspects of global period poverty that have gained new salience during the coronavirus pandemic: lack of access to affordable menstrual products; lack of access to other needed supplies and services for health and sanitation; lack of menstruation-related information and support from schools and health professionals; and menstrual stigma and shame. By using examples from multiple countries, the Article highlights the importance of having the ability to manage one’s menstruation in a safe and affordable way.

The Article’s second claim is that law has a role to play in eliminating period poverty—both during a pandemic, and beyond. By making sure that menstruation-related concerns are taken into account in defining “essential businesses,” for example, governments can both address the material needs of approximately half the population and signal that those needs are important.

Finally, the Article explores the heightened visibility of menstruation-related concerns during the COVID-19 crisis as suggestive of an emerging popular awareness of period poverty. This Article’s account has important implications for a larger world-wide menstrual equity movement that takes aim at all menstruation-related obstacles standing in the way full participation for all people in private and public life.

The full article is available here.

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RBG: The Power of Dissent and Telling Her Story

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I was in the audience some years ago when Justice Ruth Bader Ginsburg gave an interview during the Association of American Law Schools Annual Meeting. I also saw her when I attended oral arguments at the Supreme Court. She was a formidable jurist, lawyer, and academic. When I learned of her death, I could not help but think of how moments like this one cause us to remember where we were and what we were doing. I was frantically trying to meet my September 18 deadline to re-apply for promotion. When I learned of the news, I could not help but cry, for a moment. All the tension during the preparation of my application materials culminated with the news of her death. I started to think about her legacy and what she meant for many people in this nation. She paved the way for many of us to do what we do as professional women. During her many talks, Justice Ginsburg openly shared her experiences with job discrimination. I cannot help but think that, perhaps, those lived experiences fueled her sense of justice and injustice and the drive to right the wrongs she knew many women and other oppressed people face. She found ways to turn negative experiences into positive contributions and her life’s work. She helped so many, including when all she could do was write powerful dissenting opinions, such as in Ledbetter v. Goodyear Tire & Rubber Company (2007), a case for sex discrimination under Title VII and the Equal Pay Act of 1963. The Equal Pay Act claims were dismissed on summary judgment at the district court level. Justice Ginsburg was the only woman on the Court at the time of that decision. In her dissenting opinion, Justice Ginsburg made the case for the particular circumstances involved in pay disparity cases and why it was difficult for employees to meet the 180 days from the first paycheck disparity limitations period. She urged Congress to correct the majority decision. Her dissenting opinion led to the passage of the Lilly Ledbetter Fair Pay Act of 2009, the first legislation enacted during the Obama Administration. She showed us that there is power in voicing dissent. I also appreciated Justice Ginsburg sharing about her friendship with Justice Antonin Scalia. They both acknowledged that they had no problem forging a personal relationship because they respected their disagreements on matters of law. During one of today’s news reports, Justice Scalia’s son said that the two diametrically opposed jurists helped each other through the writing of their majority versus dissenting opinions. Her story is full of lessons. As an academic, I foresee that a body of work will continue to develop from all the law review articles and books that will be written about her and her actions in furtherance of a more perfect union. She did her work. It is now up to all of us to continue with what remains undone, including telling the stories that must be told and litigating the cases that must be litigated, all the way to the Supreme Court if necessary, even if we must wait for a dissenting opinion to lead to legislative action as in the Ledbetter case. Some of us will now show our dissent through our vote with the hope that it will turn into a majority vote. Aside from that, let’s make our work notorious in honor of the Notorious RBG!

 

 

 

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A Podcast Of Interest! Lady Justice Law @LadyJusticePodc

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Lady Justice Law is a unique podcast that features four women state supreme court justices: Justices Eva Guzman (TX), Bridget McCormack (MI), Beth Walker (WV), & Rhonda Wood (AR). Check it out!

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Remarks of Zelle W. Andrews at Westchester Women’s Agenda Conference at Sarah Lawrence College (circa 2012)

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Dr. Zelle Andrews, a graduate of Wheaton College and the University of Hawai’i, had a long career as an organizer and activist.  She served as president of the New York State and Westchester chapters of the National Organization for Women, among other things.  Dr. Andrews was profiled in the book Feminists Who Changed America 1963-1975. She died in 2016 at the age of 78 (her obituary is here).

Dr. Andrews made the following remarks at the Westchester Women’s Agenda Conference held at Sarah Lawrence College. Although the precise date is unknown, Dr. Andrews’ partner of 17 years, Deborah West Zipf, believes that the speech was made in approximately 2012. It is a first-person account of her experiences in the 1960s and 1970s.

This gathering, sponsored by the Women’s Agenda, of which I was one of the founders, is plainly not a feminist gathering.  If it were, we would not be discussing community gardening, desirable as it is, nor the use of computers, which I should imagine most of you know already.  Instead, we would be discussing … but maybe you don’t want to hear about the Hobby Lobby case now before the Supreme Court, or the cost of day care, or the statistics on rape and domestic violence, or the failure of the state legislature to pass the Ten Points for Women sponsored by our Westchester legislator, Andrea Stewart-Cousins, or even how women should lean in.

That O., the middle initial of my name in the program, is somebody’s typo; it doesn’t stand for the name my parents gave me.  But it might stand for Outrage, which is where we were, in 1963, when the second wave of feminism began.

How many of you have had an abortion or know someone who has?  Well, I knew one in my student days; she was filthy rich and she had to go all the way to Mexico to accomplish it.

How many of you use contraceptives?  Well, when I married, contraceptives had just become legal for married women (only).  My doctor – actually the third doctor I went to for contraception since the previous two refused – gave me a diaphragm to practice inserting but punched a hole in it so it would not be effective.  I could get an intact diaphragm after I got the marriage license.

How many of you buy tampons and napkins at CVS or Stop & Shop?  Well, when I was in college, such products were sold from behind the counter of the pharmacy.  You had to ask for them (and believe me, you died of embarrassment).

How many of you wear jeans, leggings, whatever?  Well, I adhered to a dress code, in college and beyond.  Women wore skirts (yes, even for sports) and never above the knee.

How many of you have looked for a job?  Well, in the 60’s, want ads were divided, male and female.  And “nurse, teacher or secretary,” believe me, was no joke.

How many of you have a credit card?  When I graduated, got a job (secretarial) and applied for a store credit card, I could get it … if my father signed for it.

How many of you have thought of becoming doctors, lawyers or merchant chiefs?  Law schools didn’t even have women’s rooms in those days.  And doctors?  Not acceptable because women would faint at the sight of blood (think about it).

How many of you have asked for a raise lately?  My roommate did, and very daring it was of her too.  Her boss refused.  Why?  Because she worked at Harvard Business School where she would meet plenty of eligible men and she ought to be grateful for such a perk.

Feminists believe that women are real people.  That they can and should make their own decisions and that they can and should be free to develop themselves and their talents, free to build a good community and a good world, without the censure and restrictions of those who would make their decisions for them.  If I could give you anything, I would give you the passion that drove the feminist movement so that you understand the purpose, respect the dignity and intelligence of women and work to free women all over the world for the sake of your daughters, granddaughters and great-granddaughters.

Thank you, Dr. Anderson. Rest in power.

(text of remarks courtesy of Deborah West Zipf)

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Corbin on “Religious Liberty in a Pandemic”

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Caroline Corbin (Miami) has posted to SSRN her essay, Religious Liberty in a Pandemic,70 Duke LJ. Online 1 (2020): Here is the abstract:

The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

Read the full essay here.

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Professor Kristin Johnson to Join Emory Law School

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From Emory’s website, this news of a lateral move by Professor Kristin Johnson:

Emory University School of Law welcomes Kristin Johnson to the faculty beginning in January 2021. Johnson comes to Emory Law from Tulane University Law School where she is the McGlinchey Stafford Professor of Law, associate dean for faculty research, an affiliate of the Murphy Institute for Political Economy, and the Gordon Gamm Faculty Scholar. Johnson is nationally recognized as a leading scholar of financial markets regulation with research and teaching expertise in the areas of securities regulation, corporate governance, risk management, compliance, and innovative financial technology, including digital financial products and markets.

Johnson’s research has been published and cited by numerous leading journals, including the William & Mary Law Review, George Washington University Law Review, University of Chicago Law Review Online, Washington Law Review, Journal of Corporate Law, Journal of International and Comparative Law and the Georgia Law Review. Her forthcoming books Artificial Intelligence & The Law: Cases, Materials, Problems & Ethical Considerations (with Carla Reyes and Jeff Ward) and the Cambridge University Press Research Handbook on Artificial Intelligence and the Law (with Carla Reyes) will be published in 2021. She has presented her research on systemic risk, risk management, cyber risk regulation, emerging technologies–such as artificial intelligence and distributed digital ledger technologies–and macroprudential financial markets regulation throughout the United States and abroad. She teaches Business Associations, Securities Regulation, and Artificial Intelligence and the Law, among other courses. 

Johnson is an elected member of the American Law Institute and an American Bar Association Fellow. She has served as a visiting professor at the University of California-Irvine, University of Florida, University of Illinois, and Washington & Lee University Law Schools.

Read the full notice here. Congratulations, Professor Johnson!

 

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Emory Law Journal CFP: Systemic Racism in the Law & Anti-Racist Solutions

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From students at the Emory Law Journal:

We write to you in troubling times, yet we are hopeful for a brighter future ahead. First, we hope that you are taking care of yourselves and your loved ones. Second, we want to announce that the Emory Law Journal is calling for essay submissions for our forthcoming Special Issue: Systemic Racism in the Law & Anti-Racist Solutions. The Issue will be published in May 2021, with an accompanying remote symposium in March 2021.

In the wake of numerous police shootings of unarmed Black men and women, the murder of protesters, and the lack of justice for many of the perpetrators, a statement from ELJ will no longer suffice; to be an anti-racist Journal, we must act. Therefore, this spring, we will use our platform to elevate scholarship that seeks to facilitate racial justice and dismantle white supremacy by publishing a Special Issue and holding a remote symposium.

ELJ is looking for essays from 7,500 to 15,000 words that expose systemic racism in the law or propose anti-racist solutions to make the law more just. Emory’s Asa Griggs Candler Professor of Law Dorothy A. Brown will be writing the introduction to the Special Issue. We will accept abstracts as submissions, and if your essay is selected, you are not required to participate in the Symposium, but you will have a standing invitation to do so. We will accept essay submissions on a rolling basis. The deadlines for submission and publication are below:

    • Submissions Open: September 1st, 2020
    • Submissions Close: October 15th, 2020
    • Final Manuscript Due: December 15th, 2020
    • Tentative Publication Date: May 31st, 2021

To submit your essay, please email Sam Reilly at samuel.burns.reilly@emory.edu and Michelle Tomkovicz at michelle.e.tomkovicz@emory.edu.

ELJ is committed to being an anti-racist organization, both in our ranks and in our scholarship. This is just one part of that mission. We look forward to reading your essays and moving the conversation forward.

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Scottish Feminist Judgments Podcast!

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The indomitable conveners of the Scottish Feminist Judgments Project have a new podcast series. Here‘s a précis of the first episode: 

Episode 1: Drury – history and cultural legacies

In 1998, Marylin McKenna was murdered by Stuart Drury. Drury was tried for her murder and was found guilty, but he appealed the decision claiming he had been provoked into killing Marylin because she had been unfaithful to him. This appeal has had a profound impact on our law around provocation through sexual infidelity. In this episode, we are using Drury’s appeal to take a closer look at the impact of history and cultural legacies on our legal system.

Check out the project’s website here.

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ANU Student Work Comparing Justice Kagan and Justice Bell

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Professor Heather Roberts (Australian National University) teaches a course called Selected Topics in Australian-United States Comparative Law. Her students produce some engaging work that may be of interest to readers.  Consider this podcast (with video) featuring work by student Jessica Apolinar comparing SCOTUS Justices Elana Kagan and Australia High Court Justice Virginia Bell:

This podcast explores what it means to be a woman judge on the High Court of Australia and the United States Supreme Court, and the woman judge’s decision to separate her professional identity as a judge from her personal identity and experiences as a woman.

The podcast adopts a ‘kaleidoscope’ approach to examine and compare two case studies of women judges on the High Court of Australia and the US Supreme Court: Justices Virginia Bell and Elena Kagan. It compares the backgrounds, education, experience and judicial philosophies of each judge and the context in which she was appointed. Swearing-in speeches and comments made during Senate committee hearings help to illustrate each judge’s initial representation of her professional identity as distinct from her personal one.

Conceptualising their experiences like a ‘kaleidoscope’ – observing different aspects of their experiences, which are composed of the same elements but in a different configuration – accounts for the complex interrelationships between different historical, social and political contexts and these women’s responses to their different circumstances.

The podcast is available here.

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New Class Action to Tampon Tax in Michigan

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In case you missed it, there is a new lawsuit challenging the Michigan state sales tax on menstrual products. The Detroit News has a story (here).

Emily Beggs, Clare Pfeiffer and Wei Ho are seeking class action status on behalf of all Michigan women paying the “tampon tax” and demanding a refund with interest of the sales and use taxes paid by women for menstrual products over the last four years. They estimate the class of women paying the tax has about 2.4 million people.

“The Constitution is clear: It’s a discriminatory tax,” said Joanne Faycurry, a lawyer representing the women for free in the suit. 

“For the government to impose a burden on a product that women must use, it’s a tax on women for being women,” she said. 

Read more here.

There are already bills pending in the Michigan legislature that could eliminate the tax. Lawyers at Period Equity are leading the charge.

 

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Period Leave as the New Progressive Workplace Benefit?

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From the New York Times, this news of a new policy at Zomato in India:

How many days a month have you missed work or requested a day off for stomach pains and cramps because of menstruation?

This is the question one of India’s largest food-delivery firms, Zomato, put to its 4,000 employees, 35 percent of whom are women, in announcing a new paid period leave policy for employees on Saturday. The policy, not common among large global companies, allows up to 10 days of period leave a year and applies to transgender employees.

The policy is considered a bold move in tackling an age-old taboo in India, where 71 percent of young women remain unaware of menstruation until their first cycle, according to UNICEF.

The company’s founder and chief executive officer, Deepinder Goyal, said in a statement to his employees: “There shouldn’t be any shame or stigma attached to applying for a period leave. You should feel free to tell people on internal groups, or emails that you are on your period leave for the day.”

Read the full article here.

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CFP: Pakistani Feminist Judgments

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Marva Khan and Orubah Sattar are the conveners.

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Are There Differences Between the Female Brain and the Male Brain? After More Than a Hundred Years of Testing, Scientists Still Can’t Tell @TheConversationUS

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Read more in this article by Ari Berkowitz, for the Conversation.

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Thomas on The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently @ProfTracyThomas

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Tracy A. Thomas, University of Akron School of Law, is publishing The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, in volume 27 of the William & Mary Journal of Race, Gender & Social Justice. Here is the abstract.  

 

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.

This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen’s judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.

Download the article from SSRN at the link.

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Wildman, “On Learning and Relearning about White Privilege”

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Stephanie Wildman (Santa Clara) has posted to the NYU Press blog a post “On Learning and Relearning About White Privilege.” Here is an excerpt:

Later in the 70s, a Black student in my Sex Discrimination and the Law seminar came to speak to me about the racism in the class, my racism and the other students’ racism, as well as the systemic racism in the law school. The discussion was pretty intense. At the heart of her criticism, the student expressed disappointment that I didn’t address racial justice issues more in the classroom, in response to either the curriculum or other students’ comments. I was lucky at the time to have some Black friends who were willing to talk to me about what had happened, about the student’s grievance, and about what to do next, especially since we had only one class left in the semester.

I cried for several days. It took me a long time to realize that the student had done me a favor. She felt safe enough and cared enough about me and about the class to talk to me. I tried to face my racism bravely. And I was lucky to have help—from friends and from a diversity consultant who was on retainer that semester by the school.

I had been skeptical about her, the diversity consultant. She was a white woman, and I thought “typical, the school wants to talk about race and they hire someone white.” I couldn’t have been more wrong. Frances Kendall understood that it was imperative for the students of color in the class to have a safe space to talk. She urged we meet in two separate groups: a group for the students of color (led by my friend and colleague Professor Trina Grillo) and the white students with me (led by Francie). In the white group, Francie led a conversation about the ABCs of white privilege. Yes, you may have been disadvantaged in other ways, even suffered greatly. Yet having white privilege conveys a particular, distinct societal benefit. Then these groups met together. We obviously did not solve all the world’s racial justice issues, but it was a step forward, at least for me. That experience set me on a lifelong learning curve, writing about race and white privilege, back when if you googled “privilege” the answers you got were: “privilege against self-incrimination,” “priest-penitent privilege,” or “doctor-patient privilege.”

White privilege is evasive. I mentioned those glimmers in my past because I wouldn’t remember, if my friends had not written about them. And they wrote about them because it was less usual for someone white to notice and speak out about racial injustice. Even though I have studied white privilege and thought a lot about it, I still forget. Which is part of the privilege. I have half-joked how I had to go through the process of writing the book Privilege Revealed (with contributions by Margalynne Armstrong, Adrienne Davis, and Trina Grillo) to remember what I knew.

That’s how the privilege works. It remakes itself into “just the normal way things are,” instead of the advantages, “the invisible knapsack” as named by Peggy McIntosh[3], that accrue to white skin. Particularly at this moment of double pandemics, COVID-19, the new one, and America’s history of racism and racial injustice, the pandemic we’ve had since the nation’s founding, I realize how much I still have to learn and remember–and act.

The full post is available here.

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New Book Announcement: Palgrave Handbook of Critical Menstruation Studies

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Here is the publisher’s description of the newly-published Palgrave Handbook of Critical Menstruation Studies (Bobel, C., Winkler, I.T., Fahs, B., Hasson, K.A., Kissling, E.A., Roberts, T.-A. eds.) :

This open access handbook, the first of its kind, provides a comprehensive and carefully curated multidisciplinary and genre-spanning view of the state of the field of Critical Menstruation Studies, opening up new directions in research and advocacy. It is animated by the central question: ‘“what new lines of inquiry are possible when we center our attention on menstrual health and politics across the life course?” The chapters—diverse in content, form and perspective—establish Critical Menstruation Studies as a potent lens that reveals, complicates and unpacks inequalities across biological, social, cultural and historical dimensions. This handbook is an unmatched resource for researchers, policy makers, practitioners, and activists new to and already familiar with the field as it rapidly develops and expands.

The book is available for free download here.

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Menstrual Equity and the Bar Exam: Round Up of Op-Eds and Other Media Coverage

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Op Eds

Bridget J. Crawford & Emily Gold Waldman, Tampons and Pads Should Be Allowed at the Bar Exam, Law.com (July 22, 2020)

Jennifer Weiss-Wolf, Raising the Bar for Menstrual Equity. Period., Ms. Magazine (July 23, 2020)

Julie D. Cantor, Periods Can Be Irregular, Heavy–Even Painful; They Should Never Be a Barrier to Your Career, NBCNews Think/NBC News (July 28, 2020)

Margaret E. Johnson, Marcy L. Karin & Elizabeth B. Cooper, Stop the Stigma Against Menstruation, Starting With the Bar Exam, National Jurist (July 28, 2020)

Other Press/Blog Coverage

Steven Fried, The Integrity of the Legal Profession is Under Attack by Menstruating Women! Medium.com (July 20, 2020)

Stephanie Francis Ward, Do Some States Really Prohibit Bringing Tampons and Pads to the Bar Exam? ABA Journal (July 23, 2020)

Anna Jessurun, Permission Required to Change Your Tampon, ACLU blog (July 24, 2020)

Harron Walker, Bar Exam Takers Prohibited From Smuggling in Tampons and Other Obvious Cheating Aids, Jezebel (July 26, 2020)

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Op-Ed “Stop the Stigma Against Menstruation, Starting with the Bar Exam”

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Margaret E. Johnson (Baltimore), Marcy L. Karin (UDC), and Elizabeth B. Cooper (Fordham) have published an op-ed in National Jurist, Stop the Stigma Against Menstruation, Starting with the Bar Exam. Here is an excerpt:

The distrust of menstruators is front and center with the July bar exams that take place next week, and those that follow. The multi-day bar exam is the legal licensing requirement needed to practice law and is understandably extremely stressful. Imagine adding to this pressure a ban on bringing in one’s own menstrual products or uncertainty about the ability to do so because a state does not expressly or publicly disclose if they are permitted. Outraged over state bars’ menstrual products restrictions, people started exchanging the information on Twitter. * * *

These illogical, shaming policies have the potential to significantly harm those test takers who may be menstruating when taking the bar exam. Unencumbered access to personal menstrual products during in-person licensing exams is critical for persons who menstruate. State bar policies must be revised to expressly and publicly permit examinees to bring in their own menstrual products. No one should have to risk admission to the bar because they have their period. Menstruators must be trusted, and the taboo must end.

The full piece is available here.

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Greer Donley @PittLaw Receives 2020 @HaubLawatPace Emerging Scholar Award in Women, Gender & Law

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Professor Greer Donley of the University of Pittsburgh School of Law has been selected as the winner of 2019-2020 Haub Law Emerging Scholar Award in Women, Gender & Law for her paper Contraceptive Equity: Curing the Sex Discrimination in the ACA’s Mandate, 71 Ala. L. Rev. 499 (2019). Professor Donley is an Assistant Professor and the Director of the joint degree program in law and bioethics at the University of Pittsburgh School of Law. She teaches Legislation and Regulation, Bioethics and FDA Law.

Professor Donley’s research interests include reproductive rights, bioethics, FDA law and healthcare innovation. Her scholarship has explored a broad range of healthcare issues including parental autonomy rights over prenatal end-of-life decision-making, the legal and medical necessity of abortion care during pandemics, contraceptive equity in the Affordable Care Act, and regulations surrounding the consumption of pharmaceuticals in pregnant and lactating women. Her scholarship has appeared or is forthcoming in the Minnesota Law Review, Alabama Law Review, Journal of Law & the Biosciences, Journal of Law, Medicine, & Ethics, and Hastings Center Report.

Professor Donley received her J.D. from the University of Michigan Law School and her B.A. from Claremont McKenna College. Prior to her academic work, Professor Donley worked at Latham & Watkins LLP. She also clerked for Judge Robert Sack of the United States Court of Appeals for the Second Circuit. 

“Professor Donley’s thought-provoking article skillfully applies constitutional principles and precedents to argue that the exclusion of men from the ACA’s contraceptive mandate violates the Equal Protection Clause.” – Professor and Associate Dean Emily Gold Waldman 

ABOUT THE AWARD

The Haub Law Emerging Scholar Award in Women, Gender & Law is presented annually in recognition of excellent legal scholarship related to women, gender and the law published by a full-time law professor with five or fewer years of full-time teaching experience. After an open call for submissions, papers are reviewed on a blind basis by four members of the Haub Law faculty with expertise in this area. This year’s judges were Noa Ben-Asher, Bridget Crawford, Darren Rosenblum and Emily Gold Waldman. The Haub Law School invites the award recipient to present their winning scholarship to the Haub Law community.

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Maritza Reyes on Lessons in Public Advocacy and Self-Defense: Representative Alexandria Ocasio-Cortez Responded to Representative Ted Yoho’s Reported “Fucking Bitch” and Other Sexist Epithets

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I urge all of you to watch and listen to what U.S. Representative Alexandria Ocasio-Cortez said in the public record (on July 23, 2020) in the U.S. Congress about reportedly being called a “fucking bitch” and other epithets often hurled at women, including “disgusting,” “crazy,” “out of [her] mind” and “dangerous” by Florida Representative Ted Yoho. Here is a link to an article about what happened, including her remarks. She said that Rep. Yoho “accosted” her and pointed his finger at her as she was entering the Capitol building to do her job. She shared that this is how some men use dehumanizing conduct and language to abuse women. When Rep. Yoho was caught in the act by a reporter, he made a disingenuous apology full of excuses for poor behavior, without directly apologizing to the woman he accosted; he did not even say her name. After she heard him make his self-aggrandizing, disingenuous apology in the House floor, Rep. Ocasio-Cortez made her own remarks. She spoke about the evil of silence in the face of such abuse. She spoke about the abuse women face as we engage in our daily activities, including our jobs. She did not accept the non-apology and called it for what it really was– an attempt to cover up for misconduct while adding further insult to the original injury. Here is a link to an article about the “apology.”

Representative Ocasio-Cortez said she spoke “because [every Congresswoman and every woman in this country] have had to deal with this, in some form, some way, some shape, at some point in our lives.” She concluded that Rep. Yoho’s remarks were just “excuses for his behavior” and she “could not allow that to stand.” She did what a professional woman must often do – defend herself and put it on the record. In response to Rep. Yoho’s self-professed decency and references to his wife and daughters, she explained: “Having a daughter does not make a man decent. Having a wife does not make a decent man. When a decent man messes up, as we all are bound to do, he tries his best and does apologize, not to save face, not to win a vote. He apologizes genuinely to repair and acknowledge the harm done, so that we can all move on.” A point that rang close to my own experience is when she said, “I am here because I have to show my parents that I am their daughter and that they did not raise me to accept abuse from men.” Her final point was to thank Rep. Yoho for showing the world that you can be a powerful man, with a wife and daughters, and “accost women without remorse” “and with a sense of impunity” and “using this language against all of us.”

I agree that many women have been subjected to similar conduct, including as we do our jobs and participate in professional activities. I am about to publish a law review article titled “Professional Women Subjugated by Name-Calling and Character Attacks” in the Journal of Gender, Race & Justice. In it, I highlight the experiences of First Lady/Senator Hillary Clinton, First Lady Michelle Obama and Supreme Court Justice Sonia Sotomayor to illustrate the problem and propose solutions. I also reference President Donald Trump’s 2019 attacks against U.S. Representatives Ilhan Omar, Alexandria Ocasio-Cortez, Ayanna Pressley, and Rashida Tlaib, all of whom are women of color. The publication was delayed due to COVID-19. It will be my second article in my “Professional Women” series. In the first one, “Professional Women Silenced by Men-Made Norms,” published in the Akron Law Review, I analyzed why so many women remain silent when we face abuse, including harassment, at work and advocated for individual actions toward a collective movement against this abuse. That article was published two years before one such movement, the #MeToo Movement, which began with the individual actions of women, made headlines. I am encouraged by Rep. Ocasio-Cortez’s individual action and hope that, as with the #MeToo Movement, more women will join in sharing our own stories of workplace abuse.

Most of us do not have the forum that Rep. Ocasio-Cortez has in the U.S. Congress, but there are other forums where we are able to speak truth to power, including in this blog, in our academic workplaces, in courtrooms, and in other public and private spaces. We must not remain silent. Even the individual action of calling out the abuse is better than doing nothing. Another action could be to call out the abuser by name, including in a public space as Alexandria did. Perhaps these types of actions would serve as deterrents to future abuse. Finally, it is time for people to stop telling women facing similar situations to “let it go,” “don’t say anything,” “accept his non-apology,” and “be the better person.” I invite you to listen to the voices of other Representatives who joined with Rep. Ocasio-Cortez. They were Pramila Jayapal, Nydia Velázquez, Brenda Lawrence, Al Green, Jackie Speier, Mark Pocan, Ayanna Pressley, Judy Chu, Debbie Wasserman Schultz, Lori Trahan, Steny Hoyer, Mikie Sherrill, Barbara Lee, Ilhan Omar, Katherine Clark, and Rashida Tlaib. The link is here.

(Posted by Christine Corcos for Professor Reyes)

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Does @WV Courts Have a Secret Policy Permitting Tampons and Pads at the Bar Exam? #bloodybarpocalypse

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Over at the ABA Journal (here), Stephanie Francis Ward confirms that, yes, there are really are states the prohibit test-takers from bringing menstrual products with them to the bar exam. Here’s an excerpt of the article:

Susan Henricks, executive director of the Texas Board of Law Examiners, in an email to the ABA Journal confirmed that the state does prohibit feminine hygiene products in the testing room. Texas, which has an in-person exam scheduled for September, as well as an online October test, will stock testing center bathrooms with free menstrual supplies, Henricks wrote.

Arizona for many years included feminine hygiene products in a “paper of any kind” ban from the bar exam room, but the restriction has been revised, and people can now bring their own tampons and sanitary napkins to the test, Aaron Nash, communications director for the state supreme court, told the ABA Journal in a July 17 email. The state is planning for a July in-person bar exam.

In West Virginia, which also has plans for an in-person July exam, there is no prohibition on bringing menstrual products to the test, says Edythe Nash Gaiser, clerk of the court. She thinks there may be some confusion based on how the court’s exam FAQs page is written.

“No one is afraid of anyone using a tampon as a cheat sheet; this is just insanity,” Gaiser says.

Also, West Virginia bar exam takers can keep their tampons and sanitary napkins in an opaque container, rather than a clear plastic bag, Gaiser says.

“We might say, ‘Is that a feminine hygiene product?’” she adds. And if someone took out and opened a tampon or sanitary napkin while taking the bar exam, that would raise suspicion, according to Gaiser.

The full article is available here.

Um, so the West Virginia Courts permit test-takers to bring menstrual products, but simply don’t say that anywhere in their instructions to test takers? Let’s hope that Ms. Gaiser can clarify that for bar-exam takers on the court’s website or in an email to them.

Professor Marcy Karin (@professormlk) breaks it down on Twitter here:

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Op-Ed: “Tampons and Pads Should Be Allowed at the Bar Exam”

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Over at Law.com, Emily Gold Waldman (Pace) and I have published an op-ed, Tampons and Pads Should be Allowed at the Bar Exam. Here is an excerpt:

The judgment of bar examiners that plan to hold in-person tests this summer is seriously in question. Mississippi, a coronavirus “red zone” according to the White House, is requiring test-takers to sign a liability waiver if they want to sit for the exam. North Carolina, another “red zone,” has informed test takers that sitting for the exam will be treated as a voluntary assumption of risk of exposure to COVID-19. Further strange news comes out of West Virginia and Texas. Test takers there may not bring tampons, pads or other menstrual products into the exam. Instead the bar examiners say that they will provide “feminine products” to candidates. Arizona had a similar policy, but wisely walked that back just a few days after a minor social media eruption. West Virginia and Texas should do the same.

Bar exam bans on menstrual products are discriminatory and should be lifted immediately. State boards of bar examiners, the gatekeepers for the legal profession, should be in the business of upholding the law and adopting policies that reflect its highest principles. Bans on bringing menstrual products are a form of gender bias. They are inconsistent with the legal profession’s highest and best values of providing equal opportunity.

We applaud efforts to make menstrual products available in schools, places of employment and other places. These products are necessities just like toilet paper. Kudos to the West Virginia and Texas bar examiners for making sure that test takers have access to products. But depriving exam-takers of the option to bring their own tampons and pads goes too far. Putting out a supply of tampons in a communal basket, whether in restrooms or otherwise, invites the very high-touch scenario that increases public health risk right now. More broadly, the products supplied may not meet the needs of all test takers. (Super-absorbent tampons with cardboard applicators are not appropriate in all situations, after all.) As the test goes on, the supply may run out—forcing test takers to alert proctors and lose precious time. There is also the question of where precisely the products will be available. Arizona previously said it was making them available in “women’s restrooms,” but that does not account for trans and gender nonbinary test takers who do not use women’s restrooms and may need products, too. The bar exam is stressful enough without having to worry about bleeding through one’s clothes.

Bar examiners’ bans on menstrual products likely violate equal protection, as well. Arguably, policies like West Virginia’s and Texas’ are gender neutral, prohibiting anyone from bringing “feminine products” to the bar exam. These rules are, nevertheless, sex-based. Just as Justice Scalia wrote in Bray v. Alexandria Women’s Health Clinic that, “A tax on wearing yarmulkes is a tax on Jews,” menstruation and the associated need for menstrual products are a proxy for female sex. Menstruation is a regular and unavoidable occurrence in the lives of approximately half the population (and slightly more than half of all recent law graduates) from, on average, the ages of 13 to 51. By not allowing test-takers to bring their own products, bar examiners put at a disadvantage those who are menstruating during the exam. There is no exceedingly persuasive justification for this type of sex-based classification. The failure to include menstrual products on lists of items permitted at the bar exam may not be the result of a secret discriminatory plot to keep the legal profession male. But the policy is the product of a culture that alternately ignores menstruation or treats it as something suspicious, dirty and secretive.

Menstrual product bans also reveal bar examiners’ ignorance about how menstrual products work. It would be very difficult for a test taker to write a “cheat sheet” for the rule against perpetuities or state personal jurisdiction rules on a small piece of absorbent material or its wrapping. Test-takers do not show up for the bar exam thinking they have an extra opportunity to refresh their recollection by running to the bathroom to check what is written on a tampon or pad. The simple solution is to have a supply of menstrual products available in all restrooms and to allow test takers to bring their own tampons and pads. Most states already allow candidates to bring a clear bag with necessary items like keys, cash, credit cards and medicine in the original packaging. All other states need to do is add menstrual products to the list of permitted items.

* * *

If the legal profession is committed to holding up equality for all, regardless of a biological fact like menstruation, test takers must be allowed to bring tampons and pads with them to the bar exam.

The full piece is available here.

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NE Bar Examiners Want to Know Why You Need to Change Your Tampon So Often

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From Professor Victoria Haneman (@TaxLawProf) at Creighton University, this disturbing news that if a Nebraska bar exam taker needs to change a tampon or pad more frequently than once every two hours, they must “provide [the Board of Law Examiners] the accommodation information justifying a deviation from the Supreme Court Rules for the exam.”

Furthermore, some candidates must arrive 90-120 minutes before the exam and others arrive 30 minutes before the exam. The ones who check in first are supposed to sit in their assigned spots, not talk to others, not consult materials, and not use the restroom for the full 90-120 minutes that they are waiting.

The news keeps getting worse and worse.

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Spindelman’s Completed 6-Part Series: “The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases”

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I previously blogged (here) The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, a set of six papers by Marc Spindelman. Here is the abstract:

“The Shower’s Return”–a series of six separately published papers, all combined here–supplies a detailed account of, and engagement with, important aspects of what transpired during the Supreme Court phase of the litigation in the LGBT Title VII sex discrimination cases. It traces the role that anti-trans, anti-gay, and sexist fantasies involving queer intruders in ladies’ showers and locker rooms played in the cases as the cases played out. Through an argument that follows and critically engages these fantasies and the cultural logics that subtend and power them, “The Shower’s Return” provides a deep context for understanding active dangers behind the Supreme Court’s decision in Bostock v. Clayton County, holding that anti-gay and anti-trans discrimination are forms of prohibited sex discrimination under Title VII of the 1964 Civil Rights Act—dangers that may yet, in different ways, return, notwithstanding Bostock’s results.

All six parts are now available here.

 

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#BLM Black Lives Matter’s Broad Reach

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Earlier this months, the New York Times published an article Black Lives Matter May be the Largest Movement in History. Here is an excerpt:

Four recent polls — including one released this week by Civis Analytics, a data science firm that works with businesses and Democratic campaigns — suggest that about 15 million to 26 million people in the United States have participated in demonstrations over the death of George Floyd and others in recent weeks.

These figures would make the recent protests the largest movement in the country’s history, according to interviews with scholars and crowd-counting experts.

The full article is here. It also has some informative accompanying graphics.

Anyone who is interested in the history of social justice movements in the U.S. will find lots of helpful information in the article.

 

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Signatories Sought for Letter Urging NCBEX to Require All States to Permit Test-Takers to Bring Menstrual Products to Bar Exam

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We recently have been made aware that certain state bar examiners – including some administering the exam next week – prohibit people from bringing their own menstrual products to the bar exam.  For the reasons explained below and in the attached letter, we ask you to sign on to this letter, which requests that the National Conference of Bar Examiners (NCBE) require all states to permit examinees to bring their own menstrual products to their bar exam.

The option offered by some bar examiners – that they provide such products in women’s restrooms – is not acceptable.  First, the size of the product a person needs is highly personal and can vary throughout one’s period.  Use of the wrong size can lead to everything from toxic shock syndrome (too large) to disruptive leaks (too small).  Second, transmen and non-binary individuals who get their periods may not be able to use the women’s restroom to obtain the needed products.  Third, the notion that menstrual products could be used to facilitate cheating on the bar exam is beyond absurd.  Absent any indication that menstrual products have been used to compromise the exam’s integrity, targeting only people who menstruate sends a strong – and problematic – message that people who menstruate are untrustworthy. 

We ask you – by Monday, July 20, 2020 at 6 pm (eastern time) – to sign onto this letter to the NCBE.  In addition to this request of the NCBE, the sign-on letter will be used to support advocacy to the specific states that prohibit examinees from bringing in their own menstrual products.  

Because time is of the essence, we ask that you add your name ASAP by filling out this google form.  Please also send this request to your colleagues, current and former students, and friends in the legal community.  Menstruators and non-menstruators are encouraged to sign on.

If you have any questions, email MPandTheBar@gmail.com.

Thank you for your consideration.

Sincerely,*

Prof. Margaret E. Johnson, Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore Law School (visiting at American University, Washington College of Law ’20-‘21)

Prof. Marcy L. Karin, Jack & Lovell Olender Professor of Law, University of the District of Columbia David A. Clarke School of Law

Prof. Elizabeth B. Cooper, Professor of Law and Faculty Director, Feerick Center for Social Justice, Fordham Law School

*Affiliation provided for informational purposes only.

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Two New Feminist Judgments Books – Reproductive Justice Rewritten & Family Law Opinions Rewritten

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The U.S. Feminist Judgments Project is pleased to announce the publication of two new volumes in the Cambridge University Press series.

Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouché ed. 2020)

This book provides new, feminist perspectives on famous family law cases that span generations. The chapters take court decisions and rewrite them with feminist ideas in mind. Each rewritten opinion is penned by a leading scholar who relied only on materials available at the time of the original decision. The decisions address topics such as the criminalization of polygamy, intimate partner violence as a ground for asylum, the legality of gestational surrogacy, the rights of cohabitants, discrimination against transgender parents, immigration rules governing non-citizen parents, and child welfare and child support systems, among others. Each opinion is accompanied by a commentary that explains the original opinion as well as its contemporary relevance, and each commentary also is authored by a respected scholar. The combination of a rewritten opinion and its commentary provides an in-depth examination of the most important topics in family law.

image from assets.cambridge.orgFeminist Judgments: Reproductive Justice Rewritten (Kimberly Mutcherson ed. 2020)

Reproductive justice (RJ) is a pivotal movement that supplants the language and limitations of reproductive rights. RJ’s tenets are that women have the human rights to decide if or when they’ll become pregnant, whether to carry a pregnancy to term, and to parent the children they have in safe and healthy environments. Recognizing the importance of the rights at stake when the law addresses parenting and procreation, the authors in this book re-imagine judicial opinions that address the law’s treatment of pregnancy and parenting. The cases cover topics such as forced sterilization, pregnancy discrimination, criminal penalties for women who take illegal drugs while pregnant, and state funding for abortion. Though some of the re-imagined cases come to the same conclusions as the originals, each rewritten opinion analyzes how these cases impact the most vulnerable populations, including people with disabilities, poor women, and women of color.

Tables of contents for both books are available at the Cambridge website (here). 

Other books in the series are Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford eds., 2016) and Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., 2017). Volumes slated for publication later this year are Feminist Judgments: Rewritten Employment Discrimination Opinions (Ann C. McGinley & Nicole Buonocore Porter eds.); Feminist Judgments: Rewritten Trusts & Estates Opinions (Deborah S. Gordon, Browne C. Gordon & Carla Spivack eds.) and Feminist Judgments: Rewritten Tort Opinions (Martha Chamallas & Lucina M. Finley eds.).

 

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A Letter to Law Review Editors and Promotion and Tenure Committees at Law Schools

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The open letter to law reviews, administration, and promotion and tenure committees seeks to raise awareness of the gendered effects of COVID on women faculty. The letter is open for colleagues to join by signing via the link https://forms.gle/LPuZ3e9safLwMPfg9
 
We write to apprise you of the likely negative professional effects of the COVID-19 pandemic on women law professors and urge you to consider them strongly while reviewing promotion and tenure matters and law review submissions this fall. Because of the need to socially distance and isolate, and the reality of working from home with added care responsibilities, women are likely to have lower scholarly submission rates than men, and possibly lower publication rates. Consequently, these outcomes may have serious negative effects if ignored. Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize both women scholars and the perspectives they bring to legal scholarship, education, and public dialogue.

We address this letter to law review editors so that you can be aware of the possible lower rates of submission and work to balance your issues for the upcoming cycles.

We also address this to law administrators and promotion and tenure committees who are in a position to evaluate scholarly output and attach consequences to it so you can make necessary policy changes to avoid intensifying gender inequities.

1. Gendered Effects of the COVID-19 Pandemic

It has been five months since the novel Coronavirus pandemic disrupted much of academic life in the United States. During these months, we have seen a steady stream of evidence about how the ensuing shutdown has affected women. Our colleagues with children and elder care responsibilities report that it has been very difficult to juggle between those obligations and work. Many of us have experienced this for ourselves. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” And, increasingly, some employers have begun to reshape what used to be the private domain of family and home through “work at home” requirements that disregard the ways in which care work happens. These requirements add to the burdens on workers already struggling to accommodate new working arrangements.

A preliminary study, “The Impact of COVID-19 on Gender Equality,” by researchers at the National Bureau of Economic Research states:

“An even more important channel for differential impacts on women and men is that in the course of the pandemic, most US states along with other countries have decided to close schools and daycare facilities. Worldwide more than 1.5 billion children are out of school right now. This has dramatically increased the need for childcare. In addition, grandparent-provided childcare is now discouraged due to the higher mortality rate for the elderly, and given social distancing measures, sharing childcare with neighbors and friends is very limited also. Thus, most families have no choice but to watch their kids themselves. Based on the existing distribution of child-care duties in most families, mothers are likely to be more affected than fathers. Single mothers, of which there are many in the United States, and who are often in a disadvantaged economic position to begin with, will take the biggest hit.”


In the same study, the authors report that among women who work full-time and are in heterosexual marriages with children, 86% of their spouses also work full-time. (Among men who work full-time and are in heterosexual marriages with children, only 52% of their spouses also work full-time. A married working father is three times more likely to have a stay-at-home spouse than a married working mother.) In these families, typically one caregiver provides more care. In heterosexual couples, that person is generally the mother. According to the study:

“It appears likely that much of this uneven distribution of the burden of childcare will persist during the current crisis; the factors that initially led to this arrange- ment (which could include relative income, relative bargaining power, and the influence of traditional social norms and role models….) will continue to apply, and “retraining” one spouse on short notice may not be practical. If we assume that the relative distribution of the burden stays at 60-40 and childcare needs rise by 20 hours/week during the crisis, full-time working women would need to increase their childcare hours by 12 hours vs. 8 for men.”

The 60-40 allocation is for childcare alone. We note that women do twice as much domestic labor of all kinds even in dual-earner families. With the requirements of isolation, and with access to family, institutional, and social support systems cut off, this work load is likely to rise.

For single parents who are mostly women the impact is even more dramatic: “21 percent of all children live only with their mother, compared to 4 percent living with their father only. Thus, the current crisis will affect mothers very disproportionately.” In addition, rates of family violence have risen sharply, creating greater instability and stress on the women who are the vast majority of victims of intimate partner violence (IPV).

2. Professional Effects on Women Academics

Professors are not exempt from unequal distributions of domestic labor. Nor are they immune to IPV. Empirical research from before the pandemic has revealed a pattern of gender bias in legal academia, including greater expectations that women provide “academic caretaking” and other forms of service work to students, colleagues, and the institution as a whole. These workplace responsibilities have only intensified in recent months with classes online, more frequent private remote student appointments, and additional meetings on needed policy changes to address the pandemic.

Consequently, the result of the gendered effects of COVID-19 are now becoming apparent in academia. An article in Inside HigherEd states that evidence is emerging that single author journal article submissions by women have fallen during the pandemic. This article has led to further examination of the rate of women’s submission to journals. “The Lily” reports that in some fields, since the shutdowns began, the rate of submission by men has risen by 50% while women’s submission rates have fallen. As most summer camps have remained closed and plans for fall reopening of daycares/schools remain uncertain, women who have shouldered the childcare burden have had little time to produce academic scholarship.

In addition to the stress of the pandemic, the killing of Breona Taylor, Ahmad Aubery, George Floyd, and others and the ongoing nation-wide protests against police violence have profoundly affected and increased the demands onAfrican American faculty and other faculty of color. We urge law reviews and administrations to consider the multiplier effect that these events have had on women faculty of color.

Women law professors in heterosexual family arrangements and single parents are likely to have similar decreases in productivity to that seen in other academic fields. The pandemic lockdown struck in the middle of Spring 2020. It is likely now that we will see decreasing journal article submissions by women in August 2020 and stretching into the next several cycles.

3.The Need for Awareness and Action

We ask that law journal editors be aware of the gendered impacts of COVID-19 on legal scholarship and academia and take proactive measures to include women scholars in all their issues. Furthermore, women may submit essays and shorter work which journals should weigh carefully. Journals should publicize their interest in shorter works, as well as work that is at an earlier stage of development than is typical for submission. Deadlines and schedules should be flexible to accommodate the needs of women shouldering multiple burdens.

We urge promotion and tenure committees to also be aware of these effects. A delay of the tenure clock may be insufficient to address the ongoing effects of the pandemic on women faculty, though we urge schools to offer this delay as a threshold. Schools should proactively provide ways for isolated faculty members to engage in scholarly collaborations and avail themselves of support systems.

Law school administrations should also provide as much flexibility as possible, working with affected faculty to identify how the institution can support them. The pandemic, which has required social distancing and isolation, makes it difficult to seal off the “work-day” from family care when daycare and schools are unavailable. While it has been unavoidable that our homes have become, in some measure, our workplace and our childrens’ classrooms, this does not give employers leave to unilaterally reconfigure these spaces.

COVID-19 has been a stressful ordeal. And it is ongoing. We continue to struggle with the uncertainties of our private and work lives. At this moment, we ask that law review editors, deans and other administrators, and promotion and tenure colleagues understand and accept that women are facing an unequal burden and respond accordingly to support gender equity.


Sincerely,

Cyra Akila Choudhury
Professor of Law
FIU College of Law

Meera E. Deo
Director of LSSSE
Professor of Law
Thomas Jefferson School of Law

Angelique Eaglewoman
(Sisseton-Wahpeton Dakota Oyate)
Co-Director Indian Law Program
Professor of Law
Mitchell Hamline School of Law

Jennifer S. Hendricks
Professor of Law
Co-Director, Juvenile & Family Law Program
University of Colorado Law School

Saru Matambanadzo
Moise S. Steege Jr. Associate Professor of Law and Ratner Family Professor of Social Entrepreneurship
Tulane Law School

Shruti Rana
Assistant Dean
Director, International Law and Institutions Program
Professor of International Law Practice and 2020 Wells Scholars Class of 1963 Professor
Hamilton Lugar School of Global & International Studies, Indiana University Bloomington

Maybell Romero
Associate Professor of Law
Northern Illinois University College of Law
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Do Not Bring Tampons or Pads to the Bar Exam in Arizona

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Via @BarExamTracker, this news that the Arizona board of bar examiners is telling candidates to refrain from bringing any tampons or pads with them on the day of the exam.

Image

The complete Arizona information for candidates is here.

This policy is problematic for so many reasons. Will products be available for all who need them? What if they run out? If the products are only in “women’s restrooms,” what about the needs of trans and gender non-binary folks who don’t use women’s restrooms? What precisely are the bar examiners worried about? Do the bar examiners understand how menstrual products work, who needs them and why? I know that state bar examiners have monopolies of sorts, but dictating (in effect, via availability) the tampons that a person must use if they need to change a tampon during the exam takes it way too far.

Cat Moon (Vanderbilt) is gathering information here about different state bar examiners’ policies prohibiting candidates from bringing menstrual products into the exam. Looks like Arizona is not the only state with an absolute ban on menstrual products.

Some states (sensibly) require candidates to place their belongings–tampons included–in a clear ziplock bag. That’s reasonable and no problem in my view. But an absolute ban on menstrual products is absurd.

H/T Ruthann Robson (CUNY), Marcy Karin (UDC) and Alexandra Roberts (New Hampshire)

You can follow folks here:

  • Cat Moon @inspiredcat
  • Ruthann Robson @RobsonConLaw
  • Marcy Karin @ProfessorMLK
  • Alexandra Roberts @lexlanham
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Johnson on Lessons Learned From the Suffrage Movement

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Margaret E Johnson, University of Baltimore School of Law, has published Lessons Learned From the Suffrage Movement at 2 Maryland Bar Journal 115 (2020). Here is the abstract.

On August 18, 1920, Tennessee became the thirty-sixth state to ratify the Nineteenth Amendment of the U.S. Constitution, paving the way for its adoption. The Nineteenth Amendment protects the female citizens’ constitutional right to vote. Prior to its passage, only a few states permitted women to vote in state and/or local elections.


In 2020, we celebrate the Centennial of the Nineteenth Amendment’s passage. This anniversary provides a time to reflect upon lessons learned from the suffrage movement including that (1) voting rights matter; (2) inclusive movements matter; and (3) voting rights matter for, but cannot solely achieve, gender equality.

Download the article from SSRN at the link.

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Kathleen Kim and Yxta Maya Murray, Advice & Consent: A Play in One Act (2019) @murrayyxta

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Kathleen Kim, and Yxta Maya Murray, both of the Loyola (Los Angeles) Law School, have published Advice & Consent: A Play in One Act as Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-19. Here is the abstract.

On September 27, 2018, the Senate Judiciary Committee held hearings concerning Dr. Christine Blasey Ford’s allegations that then-Supreme Court Justice nominee Judge Brett Kavanaugh had sexually assaulted her in the mid-1980s. Advice and Consent is a play by award-winning writer and law professor Yxta Maya Murray, formed of interviews, found text, and transcripts, re-arranged, selected, and edited for poetic and provocative effect. Law professor Kathleen Kim authored the Introduction and composed the play’s Musical Score. The drama is designed as a thought experiment about power, pathos, tragedy, politics, gender, race, and truth. Professors Murray and Kim have presented and performed Advice and Consent in various academic and art forums.

Download the play from SSRN at the link.

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Taxation and Gender Equality Conference Postponed

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The Taxation and Gender Equality Conference and Research Roundtable that were to be held on September 14 and 15, 2020, in Washington, DC, have been postponed due to the travel and other risks brought on by the COVID-19 pandemic.  The Conference and Research Roundtable were to have explored the interaction between tax law and gender equality with the objective of shining a spotlight on gender issues in taxation and bringing consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws.  With the continued support of our sponsors, the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, the Tax Section of the American Bar Association and the American College of Tax Counsel, we expect to hold the Conference in Fall, 2021.  We will announce a date and venue once the public health crisis brought on by the pandemic has abated sufficiently to allow for safe travel and large in-person gatherings, and we will issue another Call for Papers at that time.

Thanks to all who submitted papers in response to our original Call for Papers and are endeavoring to provide virtual outlets for at least some of them. Please be on the lookout for further developments and thank you for your continuing support of this important project.

Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)

Academic Advisory Committee:  Alice Abreu (Temple), Bridget Crawford (Pace), Anthony Infanti (Pittsburgh), Ariel Jurow Kleiman (San Diego), and Stephen Shay (Harvard)

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Katz on Nellie G. Robinson and Women’s Right to Hold Public Office in Ohio @elizabethdkatz

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Elizabeth D. Katz, Washington University, St. Louis, School of Law, is publishing ‘A Woman Stumps Her State’: Nellie G. Robinson and Women’s Right to Hold Public Office in Ohio, in volume 53 of the Akron Law Review (2020). Here is the abstract.

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in the Midwest and West generally more willing than those in the Northeast and South to construe or create law permitting women to hold office. This account centers on the experiences of Nellie G. Robinson, a pioneering woman lawyer whose efforts to secure public office in Ohio received nationwide attention in the years surrounding the turn of the twentieth century. To contextualize Robinson’s successes and failures, the essay expands to consider the parallel efforts of other women lawyers from the period, as well as the broader history of women’s officeholding in Ohio—a state with laws and politics reflecting the major trends and tensions in the national women’s officeholding movement.

This essay was written for a symposium issue of the Akron Law Review, organized with the Center for Constitutional Law. The topic for the conference and symposium was “The 19th Amendment at 100: From the Vote to Gender Equality.”

Download the article from SSRN at the link.
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Should Breastfeeding Be Treated as Taxable Labor?

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Over at the Lily, I read with some interested this article: Breastfeeding Isn’t Free. What if That Work Was Included in the GDP? Here is an excerpt:

Of the nearly four million babies born in the United States every year, 4 out of 5 are breastfed at some point.

Almost half consume nothing but breast milk for three months. One-quarter consume nothing but breast milk for six months. Breast milk is a vital part of the nation’s infant food supply — and it isn’t free.

Six months of exclusive breastfeeding, as recommended by the American Academy of Pediatrics, will cost a mother an average of 17 to 20 hours a week, plenty of discomfort, and a lot of sleep.

Yet unlike formula, breast milk production is not included in gross domestic product, our primary measure of “the economy.” According to economists Nancy Folbre and Julie P. Smith, it’s not a trivial omission. The exclusion of breastfeeding from GDP is part of a broader problem with international systems for measuring economic activity. These largely ignore the contributions of unpaid work historically undertaken by women.

This erasure has real consequences, they say.

“What we measure reflects what we value and shapes what we do,” write Smith and Folbre in a newly published compilation of academic work on how gender can transform the social sciences. “International systems for measuring the economy have institutionalized the devaluing of women’s unpaid productive and reproductive work, distorting the allocation of resources, and entrenching gender inequality.”

Read the full piece here.

The tax question not identical, but related. I’ve argued (here) that some pregnancies should be treated as taxable labor, but needless to say, that position isn’t making great headway with policymakers.

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Boso on “Anti-LGBT Free Speech and Group Subordination”

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Luke Boso (San Francisco) has posted to SSRN a new article, Anti-LGBT Free Speech and Group Subordination. Here is the abstract:

In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights—like Free Speech—with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.

The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.

The full article is available here.

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Protestors Are Getting Period-Shamed and Mistreated

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In an opinion piece for Newsweek, Jennifer Weiss-Wolf (NYU Brennan Center) highlights here the ways that jail officials are withholding menstrual products from detainees, including those arrested in recent protests. Here is an except:

Just last week, a New York City student shared with me a harrowing experience of being arrested and held in police custody while protesting on her period. She told me officers denied her a pad and even toilet paper, though she begged for them. Eventually, she said, she was left to struggle to remove her saturated pad while handcuffed—with the help of a cellmate and in plain sight of all in the overcrowded quarters—and free bleed for the duration of her detainment.

In early June, a tweet went viral, racking up nearly a million likes and comments, from an Atlanta woman who posted that she was taken into custody for going out to buy tampons after curfew, jailed for 14 hours and berated by police for “being unprepared” for her period.

The full piece is available here.

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Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases

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Marc Spindelman (Ohio State) has made available The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases. Here is the abstract:

The Shower’s Return offers a detailed account of, and engagement with, important aspects of what transpired during the Supreme Court phase of the litigation in the LGBT Title VII sex discrimination cases. The work provides a deep context for understanding the Supreme Court’s decision in Bostock v. Clayton County, recognizing that anti-gay and anti-trans discrimination are forms of prohibited sex discrimination under Title VII of the 1964 Civil Rights Act.

Part I-IV are now out and available here as text:

go.osu.edu/showersreturn1t

go.osu.edu/showersreturn2t

go.osu.edu/showersreturn3t

go.osu.edu/showersreturn4t

Parts V and VI are forthcoming.

 

 

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Women, Gender & the Law Emerging Scholar Award: Call for Submissions

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Bumping to the front in anticipation of the July 1, 2020 deadline.

The Elisabeth Haub School of Law is pleased to announce the competition for its inaugural Women, Gender & the Law Emerging Scholar Award.  This paper competition is open to all full-time law professors with five (5) or fewer years of full-time law teaching experience as of July 1, 2020. The deadline for submissions is July 1, 2020.

The purpose of the award is to encourage and recognize excellent legal scholarship related to women, gender and the law.  The work chosen for the Women, Gender & the Law Emerging Scholar Award should make a substantial contribution to legal literature and reflect original research and/or major developments in previously reported research.

Papers will be reviewed on a blind basis by a committee comprised of four members of the Haub Law faculty with expertise in this area: Bridget Crawford, Darren Rosenblum, Noa Ben-Asher and Emily Gold Waldman.  The winner of the competition will be invited to present the paper to selected students and faculty at Haub Law (located in White Plains, NY) during the 2020-2021 academic year, with reasonable travel expenses paid.

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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The Real History of the “Because of Sex” Language in Title VII

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 I had always heard that the adding of the “because of sex” language in Title VII was intended as a joke. Turns out the story is more complicated than that. Representative Howard Smith (D-Virginia) was a segregationist with longstanding ties to the National Woman’s Party.

In short article over at Slate.com, The Real Story Behind “Because of Sex,” Rebecca Onion provides some historical context to complicate the claim that the addition to the statute was a fortuitous accident or joke. Onion interviews Christina Wolbrecht (Political Science, Notre Dame) for details. Here is an excerpt from that interview.

Why do you think the story of the amendment gets told the way it does—why does the addition of those words get characterized as something almost random, a chance of history, instead of the product of advocates’ work?  

Honestly, that interpretation comes from evidence from the time period. An example would be that the actual first director of the Equal Employment Opportunity Commission—which was convened to enforce that part of the law—called the provision “a fluke conceived out of wedlock.” Something that wasn’t supposed to be there.

And also, it’s a great story. Right? It’s one of those stories that persist. The idea that these segregationists were trying to kill something, and instead the one addition has been enormous for women. Sexual harassment law is almost entirely based on it. And now it’s opened up protections for LGBTQ people, as well.

But I think the more interesting story is the real story, which is more consistent with what we know about how politics works. Activists who cared about these issues worked on them, proposed them, lobbied for them, developed relationships, made public opinion shift, got people comfortable … they made it happen.

The full article is available here.

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