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

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

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

The full article is available here.

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

Posted in Feminism and Families, Feminist Legal Scholarship, LGBT Rights | Leave a comment

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

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

The major conclusions of the report include:

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

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

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

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

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

Introducing the Equality Law Scholars’ Forum & Call for Proposals

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From the FLP mailbox, this announcement:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More info is available here.

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

Cassandra Steer on “Why Wonder Woman matters”

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Over on IntLawGrrlsDr. Cassandra Steer of McGill University’s Faculty of Law and a Visiting Fellow with McGill’s Centre for Human Rights and Legal Pluralism has posted this analysis inspired by international law and UN Security Council resolution 1325 of the film Wonder Woman and WW’s role “as a champion for peace, truth and equality at a time of conflict”:

Why Wonder Woman matters

Posted in Feminism and Law, The Underrepresentation of Women | Comments Off on Cassandra Steer on “Why Wonder Woman matters”

CFP – Legal Transitions and the Vulnerable Subject: Fostering Resilience through Law’s Dynamism

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From colleagues at Emory:

There is a widespread perception that we live in a moment of change that is unprecedented in its scope and pace. Climate change, mass movements of dislocated persons, technological innovation, shifts in recognition of sexual and gender diversity, and new information networks challenge identities, institutions, and political coalitions. The law plays a critical role in creating and responding to change. A significant dimension of individuals’ and groups’ experience of change involves transformation in legal regulation. Relationships previously outside the law may gain recognition; the social insurance of risk may shift dramatically; entire legal status categories may disappear. As the law transforms, individuals and groups also transition across legal boundaries.

Vulnerability theory provides a framework for understanding how individuals and groups experience change, as they transition across legal categories. Vulnerability theory seeks to shift our understanding of law’s paradigmatic subject, from a static and autonomous one to a dynamic and socially embedded subject. The legal subject is not a universal adult but rather an evolving being who traverses across the life course from childhood to agedness, experiencing periods of heightened biological and derivative dependency along the way. Furthermore, both individuals and multiple social groupings are constantly susceptible to change in their ecological, economic, social, and political environments. Social institutions, including law, may form to promote human resilience—the capacity to adapt to change.

The purpose of this workshop will be to investigate how individuals’ and groups’ transitions between legal status categories expose vulnerability and also offer opportunities for fostering resilience. While legal scholarship often examines static legal categories, explaining how and why these categories privilege and advantage various individuals and groups, the movement of individuals and groups across legal categories itself deserves analysis. These transitions across legal categories—for example, from contracting strangers to corporate partners, non-married to married couples, employee to manager, insured to uninsured, incarcerated to released, or undocumented to documented—involve transformations in individual identity, relational dynamics, social networks, and institutional forms. The way in which law facilitates transitions itself will affect individuals’ and groups’ experience of legal change, as injurious or empowering, fair or unjust.

We invite papers that consider three main themes centered in the relationship between legal transition, vulnerability, and resilience.

First, papers might consider how the movement between legal status categories transforms both individual and group identities and relationships. How does the process of change, itself, variously expose vulnerability and generate resilience?

Second, papers may consider how legal categories and institutions change when law requires them to open their boundaries to individuals who do not conform to traditional norms. In this manner, the movement across legal status categories not only changes those in the process of transition but also fosters dynamism in institutions.

Third, papers might examine how transitions in individuals’ and groups’ legal statuses reveal challenges and opportunities for achieving the just distribution of social, economic, and other benefits and advantages. How should law allocate the costs and benefits generated by the movement across legal status categories?

We intend the workshop to cover a variety of topics ranging from corporate to family to healthcare to criminal law, among other arenas, and encourage the participation of scholars working in related historical, sociological, economic and other fields. Issues for discussion may include:

  • How does the transition between legal status categories affect people, families, communities, and entities across a range of socio-legal axes?
    • What differences in transitions between legal status categories inhere depending on who is transitioning—individuals, entire communities, or corporate entities?
    • How are these differences informed by what is being sought or avoided?
    • What happens to existing legal categories in processes of legal transition?
    • How do those who undergo legal transitions change the institutions and categories they inhabit?
    • What dynamism exists within legal frameworks as these legal transitions occur?
    • How does this dynamism, in turn, affect legal transition processes?
    • To what needs does the process of legal transition give rise, and how are these needs affected by socioeconomic factors?
    • How might we allocate responsibility for costs and burdens of legal transition?
    • How are status positions constructed and inhabited outside law and what opportunities and risks do these statuses entail?
    • How does the process of becoming a subject of law discipline social forms, and how do individuals and groups reorganize their social relationships as their legal statuses shift?
    • What impacts do the processes of legal transition on the relationships that people, communities, and entities have with one another, other social groups, and the state?
    • How do legal transition experiences differ depending on how transitions arise—whether they are seen as voluntary or coerced? Isolated, or numerous and repeated?
    • How we might understand the process of legal transition itself as a dynamic response to human and institutional vulnerability?How does the law respond to individuals and groups engaged in the process of transitioning between legal forms?
    • How does legal regulation of the legal transition process variously reproduce, entrench, or construct vulnerability and resilience?
    • What shared questions of theory and methodology can ground interdisciplinary approaches to legal transitions?
    • Are there alternative metaphors to legal transition that may better capture the questions of risk, protection, autonomy, dependency, and equality that arise from the movement across boundaries of legal forms?

Workshop Contacts:
Deborah Dinner,  deborah.dinner@emory.edu

Suzanne Kim,
skim@kinoy.rutgers.edu

Martha Albertson Fineman, mlfinem@emory.edu

Submission Procedure:
Email a proposal of several paragraphs as a Word or PDF document by July 21, 2017 to Rachel Ezrol, rezrol@emory.edu.

Decisions will be made by August 4, 2017 and working paper drafts will be due November 15, 2017 so they can be duplicated and distributed prior to the Workshop.

Workshop Details:
The Workshop begins Friday at 4PM in Gambrell 575 at Emory Law School. A dinner will follow the panel presentation session on Friday. Panel presentations continue on Saturday from 9:00 AM to 5PM; breakfast and lunch will be provided.

Posted in Call for Papers or Participation | Comments Off on CFP – Legal Transitions and the Vulnerable Subject: Fostering Resilience through Law’s Dynamism

Kalantry on the French Veil Ban: A Transnational Legal Feminist Approach

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Sital Kalantry, Cornell University Law School, is publishing The French Veil Ban: A Transnational Legal Feminist Approach in volume 46 of the University of Baltimore Law Review (2017). Here is the abstract.

After the gruesome terrorist attack that killed eighty-four people in Nice, many beach towns in France began to ban Muslim women from wearing the “burkini” on beaches. The burkini, which was created by an Australian designer, is modest swimwear that covers the body and hair. The Nice attack occurred on the heels of a series of attacks in France. The timing of the French burkini ban suggests it was targeting Muslims due to the anger over the attacks. The argument that burkinis are not hygienic is a fig leaf for other more pernicious justifications. Others argue that religious garb generally contravenes the French vision of secularism. Another line of attack against the burkini relates to gender equality. For example, the French Prime Minister argues that the burkini reinforces the “enslavement of women.” In this article, I will focus on arguments that justify bans on Muslim women’s religious clothing on the basis that they are oppressive to women.

The full text is not available from download from SSRN.

Posted in Feminism and Religion, Sisters In Other Nations | Comments Off on Kalantry on the French Veil Ban: A Transnational Legal Feminist Approach

Gender Inequality Continues: Japanese Princess Will Lose Her Status When She Marries Commoner

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Japan’s Princess Mako will lose her status as royalty when she marries her fiance, Kei Komuro. Her aunt also lost her royal status when she married a non-royal twelve years ago. More here from the BBC.  More recently, another princess gave up her status when she married another non-royal. Note that the Crown Prince married a non-royal, but kept both his royal status and his position in line for the throne.

The Japanese nation has been discussing whether women should have the right to succeed to the Chysanthemum Throne for some years. In 2005 a government panel issued a report that recommended that females be allowed to succeed but those recommendations have not yet been adopted. Some experts say royal women should keep their rights, even if that might lead to claimants to the throne through female descent. 

Posted in Sisters In Other Nations | Comments Off on Gender Inequality Continues: Japanese Princess Will Lose Her Status When She Marries Commoner

Monash Feminists Now Online

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From Australian colleagues at Monash:

We’re very excited to announce that the Feminist Legal Studies Group at Monash University in Australia now has a webpage. Our blog on that page is coming soon. You can follow us on Twitter at @feminist_law.

We have started producing feminist podcasts, called the Scarlet Letter, led by Dr Azadeh Dastyari and Dr Ronli Sifris. The first 3 episodes are now available on Soundcloud and will be available on ITunes and our website shortly. The RSS feed is here. You can follow the Scarlet Letter on Twitter at @Feminist_pod. First 3 episodes are up already, with three Monash feminist legal scholars discussing their personal and professional approaches to feminism.

We have plans to host a feminist legislation/treaty project (like the feminist judgments projects, only all parliamentary) in 2018-19. We’ll post the call for papers here soon.

Posted in Feminists in Academia, Sisters In Other Nations | Comments Off on Monash Feminists Now Online

Where are the Women? Not in this Issue of “The Tax Lawyer”

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According to its website, “The Tax Lawyer and The State and Local Tax Lawyer are published by the Section of Taxation of the American Bar Association with the assistance of the Georgetown University Law Center and its students.”

Check out the contents of  Vol. 70, No. 2 (Winter 2017) of The Tax Lawyer:

H/T Paul Caron.

Notice anything missing? Yoo-hooo, ABA! How are you doing on those gender equality initiatives?

Posted in Legal Profession, Where are the Women? | Comments Off on Where are the Women? Not in this Issue of “The Tax Lawyer”

CFP: ClassCrits at Ten: Mobilizing for Resistance, Solidarity, and Justice, Nov. 10 & 11, 2017, at Tulane University School of Law

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From the FLP mailbox, this CFP:

Call for Participation:  ClassCrits at Ten: Mobilizing for Resistance, Solidarity, and Justice, Nov. 10 & 11, 2017, at Tulane University School of Law, New Orleans, Louisiana, hosted by Prof. Saru Matambanadzo.

The event will feature a keynote address by renowned social justice lawyer and scholar, Prof. William P. Quigley, Director of the Gillis Long Poverty Law Center at Loyola University New Orleans College of Law.

Proposals (brief abstracts) are due by email to classcrits@gmail.com by June 1, 2017.  For more details, see www.classcrits.org.

ClassCrits formed ten years ago to engage scholars, students and advocates in critical analysis of economic inequality and the law. During this time of possibility and struggle, we invite participants to submit applications to present at the 10th Annual ClassCrits conference, held at Tulane University Law School.  We invite panel proposals, roundtable discussion proposals, paper presentations, poetry and fiction reading, and art that speak to this year’s theme, as well as to general ClassCrits themes.  We are also interested in receiving proposals from law clinicians who engage in activist lawyering as a core part of their curriculum design. Finally, we extend a special invitation to junior scholars (i.e., graduate students and non-tenured faculty members) to submit proposals for works in progress. At least one senior scholar, as well as other ClassCrits scholars, will provide feedback and detailed commentary upon each work in progress in a small, supportive working session at this year’s workshop.

Posted in Call for Papers or Participation | Comments Off on CFP: ClassCrits at Ten: Mobilizing for Resistance, Solidarity, and Justice, Nov. 10 & 11, 2017, at Tulane University School of Law

Law Student Scholarship Opportunity: The M. Katherine Baird Darmer Equality Scholarship

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

ELIGIBILITY CRITERIA

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

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

More information and applications are available here.  Deadline is 5:00 p.m. on May 15, 2017.

H/T Francine Lipman

Posted in Fellowships and Funding Opportunities, Law Schools, LGBT Rights | Comments Off on Law Student Scholarship Opportunity: The M. Katherine Baird Darmer Equality Scholarship

Sabbatical Visitorships at Columbia Law School’s Center for Gender & Sexuality Law

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The Center for Gender & Sexuality Law at Columbia Law School invites applications for sabbatical visitors for the 2017-2018 academic year to undertake research, writing and collaboration with Center faculty and students in ways that span traditional academic disciplines. The CGSL welcomes applications from faculty from any field who are interested in spending a semester or the academic year in residence at Columbia Law School working on scholarly projects relating to Gender and/or Sexuality Law.

Sabbatical Visitors will receive an office with phone and computer, secretarial support and full access to university libraries, computer systems and recreational facilities. In addition, Sabbatical Visitors will be expected to participate in CGSL activities and present a paper at the Center’s Colloquium Series.  Application deadline is May 15, 2017.

For more information: https://web.law.columbia.edu/gender-sexuality/visiting-scholars-research-fellows/sabbatical-visitor-program

Katherine Franke, Columbia Law School

Posted in Academia | Comments Off on Sabbatical Visitorships at Columbia Law School’s Center for Gender & Sexuality Law

Leary on Affirmatively Replacing Rape Culture With Consent Culture

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Mary Leary, CUA Columbus School of Law, has published Affirmatively Replacing Rape Culture with Consent Culture at 49 Texas Tech 1 (2016). Here is the abstract.

The debate concerning affirmative consent consists of two camps: those who assert people must affirmatively establish a desire to engage in sexual contact and those who believe this is an unattainable standard. However, this is not where the debate should start and end. This paper argues that the movement towards affirmative consent in sexual contact will reduce the occurrence of sexual assault. Criminal law sets the backdrop for this paper, but the author recognizes the limits of criminal law. In order to combat sexual assault, there must be a multidisciplinary response. By providing a comprehensive definition of affirmative consent and examining the social harm of sexual assault that the criminal law seeks to rectify, the author will establish that the creation of an affirmative consent culture, rather than simply an affirmative consent law, will enhance protections for women. Affirmative consent means more than “yes means yes.” This paper responds to the many critiques of the affirmative consent model including that it will not eliminate sexual assault, that this standard criminalizes sex, and that it shifts the burden to a defendant. Rather, the author proposes a three pronged approach to affirmative consent which mirrors that of the anti-drunk driving methodology of the 20th Century: education, social stigma, and criminal law adjustments.

Download the article from SSRN at the link.

Posted in Coerced Sex, Sex and Sexuality | Comments Off on Leary on Affirmatively Replacing Rape Culture With Consent Culture

RBG on Women’s Role in Exodus Narrative

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In 2015, for the American Jewish World Service’s Chag v’Chesed (“Celebration and Compassion”) series, Justice Ginsburg published a Passover story that highlights the role of women in the Exodus.  Here’s an excerpt:

These women had a vision leading out of the darkness shrouding their world. They were women of action, prepared to defy authority to make their vision a reality bathed in the light of the day.

Retelling the heroic stories of Yocheved, Shifra, Puah, Miriam and Batya reminds our daughters that with vision and the courage to act, they can carry forward the tradition those intrepid women launched.

While there is much light in today’s world, there remains in our universe disheartening darkness, inhumanity spawned by ignorance and hate. We see horrific examples in the Middle East, parts of Africa, and Ukraine. The Passover story recalls to all of us—women and men—that with vision and action we can join hands with others of like mind, kindling lights along paths leading out of the terrifying darkness.

The full text is here.

Chag Pesach kasher vesame’ach to all celebrating!

Posted in Feminism and Religion | Comments Off on RBG on Women’s Role in Exodus Narrative

#Blackwomenatwork: Personal is Political

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As I shared with one of my classes the other night, over my years in academia, on a fairly regular basis, white students have said to me, “I am afraid of black people,” or even,”I don’t like black people.”

When this happens, I usually start by gently but firmly reminding such students that I am actually a black person, and that their comments offend me. I think that my familiarity with many of the cultural touchstones that are parts of their lives causes them to forget a little bit. Or rather, I’m not sure if they forget that I am black, it’s just that they think that I am a “safe” black person to whom to say these things.  Or they think that as a professor, I must be there for them, a neutral, unfeeling service provider whose job is to be stern, caring, instructive, sin-absolving, and healing all at once. The casting directions for my job call for a combination of a butt-spanking black mammy, an avuncular, scholarly parish priest, and a disease-eating magic Negro à la Michael Clarke Duncan in The Green Mile.

These “I am afraid of black people” students are not wrong in some respects about who I am to them. While I certainly do have feelings and am subject to the hurts of racial insults like anyone else, to be successful (aka to remain in and survive the job) in my line of work has often meant tempering those hurt feelings. Indeed, I frequently take on a “post-racial” pose with such students just to draw out their anti-black feelings. It’s not a trap. I do it because I sincerely want to help.

While I am neither therapist nor racial healer by any means, I think that the world is improved if people confront what are often irrational prejudices. If I don’t know that students bear such feelings, I can’t begin to talk it through with them. I am actually encouraged that white students even engage in these conversations with me. What  I find sad about such conversations is that I sometimes learn in the course of them that I am one of the few (or only) black people with whom they have ever had an ongoing relationship–academic, professional, social or otherwise.

My gender becomes a salient factor here because while some of these students have known or interacted with black male athletes during high school or college (“Yay, team!”), they have had almost no corresponding need or desire to interact with black girls or women. It is this raced and gendered interaction gap that causes situations like the recent  public verbal assaults on journalist April Ryan, Congresswoman Maxine Waters, and former national security adviser Susan Rice. The very public sallies against these women are no doubt politically inspired. But just as the personal is political, the personal and the political are at all times both raced and gendered.  The hashtag #Blackwomenatwork is an important mechanism for focusing attention on the race-gender lacuna that often leaves black women in a space apart.

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

Posted in Law Teaching, Race and Racism | Comments Off on #Blackwomenatwork: Personal is Political

Neil Gorsuch, Hobby Lobby, and the Question of Complicity

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Neil Gorsuch may be a soft-spoken and gentlemanly Harvard-educated lawyer’s lawyer.  But his decision in the Hobby Lobby case, 723 F.3d 1114 (10th Cir. 2013), apparently overlooked by most commentators, demonstrates just how much American women have to fear if he is confirmed as a justice on the Supreme Court.

As we know, in Hobby Lobby v. Burwell, 134 S. Ct. 2751 (2014), the Supreme Court determined by a 5-4 majority that for-profit family owned corporations were “persons” who could assert the religious beliefs of their human shareholders to thwart the mandate of the Affordable Care Act (ACA) that all employer-based and individual insurance plans covered under the ACA offer essential preventative services.

Hobby Lobby began when two family-owned for-profit corporations, Hobby Lobby and Mardel, sought a preliminary injunction in an Oklahoma federal district court, contending that they should not be compelled to comply with the ACA’s contraceptive services mandate because the Green family, the owners of these corporations, personally believed that certain of these FDA-approved forms of contraception constituted abortion, in violation of their religious belief that life begins at conception. The district court denied the injunction, and the case was appealed to the United States Court of Appeal for the Tenth Circuit. A plurality of the court held that Hobby Lobby and Mardel, as corporations, were entitled to a preliminary injunction precluding the enforcement of the ACA, ruling that these corporations’ “religious beliefs” trumped the government’s interest in providing preventative health care to millions of Americans under the ACA.

Judge Gorsuch concurred.  After expressing his agreement with the plurality opinion, he then framed the issue of the obligation to comply with the ACA mandate in moral and religious terms: “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.” 723 F.3d at 1152 (Gorsuch, J., concurring). Here, the “wrongdoing” Judge Gorsuch was referring to was women’s use of certain forms of contraception that the Greens found to be the equivalent of an abortion.

In essence, Judge Gorsuch found that as long as the Greens’ religious beliefs were sincerely held, their religiously based objections to particular forms of contraception trumped any competing interest the government had in mandating essential health services for people who received their health coverage under the Affordable Care Act.  Indeed, he declared that the Religious Freedom Restoration was “something of a ‘super-statute,’” which must prevail over other legislatively enacted government policies. 723 F.3d at 1157. Judge Gorsuch reasoned that because individual Green family members hold the sincere belief that certain forms of contraception destroy a fertilized egg and that they view this practice as “gravely wrong,” they are faced with a “’Hobson’s choice,’” either to violate their personal religious beliefs by deciding as corporate officers of Hobby Lobby to buy insurance coverage that includes all ACA-mandated contraceptive services or to refuse to afford their employees the mandated insurance coverage.  The Greens contended that they would face a penalty as high as a half a billion dollars annually for failing to comply with the ACA’s employer mandate.

Nowhere in Judge Gorsuch’s opinion is there any discussion of the 13,000 employees of Hobby Lobby, who may not share the religious beliefs of their employer.  If these employees are not offered the insurance coverage mandated by the ACA, they may be unable to exercise their fundamental right to self-determination and informed consent because they cannot afford the contraceptive method that they believe will best protect their interest in economic security, including the ability to engage in family planning that the wealthier Green family surely was able to choose if it wished.

The logical extension of Judge Gorsuch’s reasoning in Hobby Lobby could enshrine in the law any number of conservative religious positions, including the view that life begins at conception or that homosexual activity is prohibited, or that God commands racial separation. If he is confirmed, the Supreme Court is likely to issue many more decisions that undermine the liberty and privacy of ordinary Americans.

-Linda Fentiman

Posted in Courts and the Judiciary, Feminism and Religion, Reproductive Rights | 1 Comment

Joshi on “Measuring Diversity”

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Yuvraj Joshi, a Fellow at Lambda Legal, has published an essay “Measuring Diversity” in the Columbia Law Review Online. Here is the abstract:

In Fisher v. University of Texas in June 2016, the Supreme Court upheld the use of race-conscious affirmative action in college admissions. While recognizing a university’s interest in the educational benefits that derive from a diverse student body, Justice Kennedy cautioned in the majority opinion: “A university’s goals cannot be elusory or amorphous — they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”

Justice Kennedy’s measurability requirement is the single most important feature of his opinion. The constitutionality of race-conscious admissions going forward will depend on how universities measure diversity. No wonder critics of affirmative action are clamoring for disclosure of ever more data. The dilemma facing the nation’s universities is how to measure diversity while knowing that opponents of race-conscious admissions will utilize those metrics in litigation to challenge affirmative action programs.

In seeking to address this dilemma, university administrators reading Fisher may believe that they are required to measure diversity in more precise and even numerical terms. However, this Piece cautions against following that misguided impulse in the context of race-conscious admissions based on three primary observations. First, diversity-based affirmative action programs have survived past constitutional challenges in part because they are imprecise as to which individuals benefit from them and how much benefit those individuals receive. Second, this lack of precision may minimize some of the social divisiveness associated with race-conscious admissions policies, which may help diffuse political opposition to affirmative action and diminish the constitutional harms perceived by some Justices and potential litigants. Finally, Fisher does not actually require universities to measure diversity in more precise or numerical terms than previous affirmative action decisions. Given the current political climate, universities’ ability to maintain affirmative action programs under Fisher will depend on their ability to grasp and apply these principles.

To demonstrate the merits of imprecision in measuring diversity, this Piece proceeds in three parts. Part I surveys some key cases on affirmative action to show how and why the Court has been concerned with numerical considerations of race in college admissions. Part II examines two uses of numbers that have received scrutiny in cases leading up to Fisher: (1) the gathering of data on minority enrollment and student body diversity and (2) the use of metrics to describe diversity goals, especially the concept of “critical mass.” Part III studies scrutiny of the University of Texas’s admissions program in Fisher and teases out lessons for how universities should structure their admissions programs in light of Fisher. The Piece concludes that a degree of imprecision remains a requirement of constitutionally permissible affirmative action after Fisher, and universities interested in enrolling a diverse student body should therefore measure diversity using educational values rather than numerical metrics.

The full essay is available here.

Posted in Academia, Race and Racism | Comments Off on Joshi on “Measuring Diversity”

Welcome to the Blogroll, Monash Colleagues!

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Today we welcome to the blogroll ten fabulous feminist colleagues from Monash University, Faculty of Law (located in Melbourne, Australia):

So glad to have you join us!

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Announcing Publication of “Northern/Irish Feminist Judgments”

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Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity has been published by Hart Publishing.  The volume is edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue.  Here is the publisher’s description of the book:

The Northern/Irish Feminist Judgments Project inaugurates a fresh dialogue on gender, legal judgment, judicial power and national identity in Ireland and Northern Ireland. Through a process of judicial re-imagining, the project takes account of the peculiarly Northern/Irish concerns in shaping gender through judicial practice. This collection, following on from feminist judgments projects in Canada, England and Australia takes the feminist judging methodology in challenging new directions. This book collects 26 rewritten judgments, covering a range of substantive areas. As well as opinions from appellate courts, the book includes fi rst instance decisions and a fi ctional review of a Tribunal of Inquiry. Each feminist judgment is accompanied by a commentary putting the case in its social context and explaining the original decision. The book also includes introductory chapters examining the project methodology, constructions of national identity, theoretical and conceptual issues pertaining to feminist judging, and the legal context of both jurisdictions. The book, shines a light on past and future possibilities – and limitations – for judgment on the island of Ireland.

To learn more about the Northern/Irish Feminist Judgments, see the project’s website here.

This is the fourth feminist judgments project to appear in print. Others include the U.K.-based Feminist Judgments: From Theory to Practice (Hart 2010), Australian Feminist Judgments: Righting and Rewriting the Law (Hart 2015), and Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge 2016). Feminist Judgments of Aotearoa New Zealand: Te Rino: a Two-stranded Rope will be published in December, 2017, with others to follow.

Posted in Recommended Books, Sisters In Other Nations | Comments Off on Announcing Publication of “Northern/Irish Feminist Judgments”

On International Women’s Day, Advocacy Groups Launch “Full Citizenship Project for Law Faculty”

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From national colleagues at the Legal Writing Institute and Association of Legal Writing Directors, this press release:

Professional associations unite to support full institutional citizenshipan effort to correct gender and related disparities among law faculty

The Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announce the launch of a new initiative aimed at correcting gender and related disparities among U.S. law faculty.  Organizers chose International Women’s Day (March 8) to launch the “Full Citizenship Project for All Law Faculty” because of the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women.

As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.

The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the many women and men who teach in skills-based positions. “The goal of this project is to gain support among all law school administrators and faculty for our view that no justification exists for subordinating one group of law faculty to another based on the nature of the course, the subject matter, or the teaching method,” said Kim D. Chanbonpin, President of the Legal Writing Institute. “We believe these rights are now necessary more than ever before to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.”

The first step of this project involves gathering signatures from across the country endorsing the Full Citizenship Statement, which has already been adopted by these organizations and by the Society of American Law Teachers Board of Governors. A copy of the Full Citizenship Statement is available here.

We invite all interested parties—both within and beyond the legal academy—to endorse the Statement by signing here. The signature campaign begins on International Women’s Day (March 8) and will end on Equal Pay Day (April 4). Organizers plan to report and present the results of the project to interested organizations, including the American Association of Law Schools, the American Bar Association, and the American Law Deans Association. More information about the Citizenship Project is available on the LWI website.

About LWI and ALWD: The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. LWI has nearly 3,000 members representing 38 countries. The Association of Legal Writing Directors (ALWD) is a non-profit professional association of directors of legal reasoning, research, writing, analysis, and advocacy programs from law schools throughout the United States, Canada and Australia. ALWD has more than 300 members representing more than 150 law schools. The mission of ALWD is to pursue activities to help law schools provide excellent legal writing instruction.

Posted in Academia, Feminism and the Workplace, Feminists in Academia, Law Schools, Law Teaching, The Overrepresentation of Women | Comments Off on On International Women’s Day, Advocacy Groups Launch “Full Citizenship Project for Law Faculty”

Inniss from Cleveland-Marshall to SMU Dedman School of Law

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In Fall 2017 Lolita Buckner Inniss will move from Cleveland-Marshall College of Law, Cleveland State University to SMU Dedman School of Law. She will teach Property Law and Critical Race Theory.

Good news for SMU!

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Vermont Law Seeks Earthjustice Clinical Professor

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From colleagues at Vermont, this notice of a clinical opening:

Job Description:

The Environmental and Natural Resources Law Clinic (ENRLC) at Vermont Law School and Earthjustice are partnering to expand our environmental justice capacity through the creation of a new environmental justice initiative. We are hiring an attorney professor who will be located at the ENRLC and will work with Earthjustice’s Healthy Communities program and as part of the ENRLC’s growing environmental justice program area. Cases and projects will include Vermont and New England-based initiatives as well as efforts at the national level and in other areas of the United States.

Duties and Responsibilities:

The Earthjustice Clinical Professor will be a full-time attorney housed within the ENRLC. This position will be dedicated to working on environmental justice issues, with cases and projects chosen in collaboration between Earthjustice and the ENRLC. Specific responsibilities include:

  • In collaboration with and under the direction of Earthjustice and ENRLC attorneys, developing and implementing a suite of environmental justice cases and projects. Cases and projects may include state and federal litigation, influencing administrative agencies, legislative work, client counseling, and other advocacy.
  • Managing and fostering relationships with co-counsel, clients, and partners.
  • Coordinating with and contributing to other aspects of environmental justice campaign work, including education, outreach, and messaging.
  • Supervising and providing extensive feedback to students on project and casework.
  • Supervising one or more junior attorneys in the LLM Fellowship program.
  • Teaching in the ENRLC seminar program.
  • With other ENRLC faculty and staff, assisting in the administration of the ENRLC through regular participation in staff meetings, helping with the student recruitment process, assisting with public relations materials and reports, etc.
  • Participating in the life of the law school through attendance at faculty meetings and campus events, service on committees, and the like.

Requirements:

  • Minimum 7 years of significant legal experience, including litigation.
  • Licensed in Vermont or willing to become immediately licensed in Vermont.
  • Environmental justice experience preferred.
  • Demonstrates an awareness and sensitivity to the needs and concerns of individuals from diverse cultures, backgrounds and orientations.
  • Contributes to the creation of a diverse, equitable and inclusive work culture that encourages and celebrates differences.
  • Must possess: cultural competency and significant exposure to vulnerable, disadvantaged and/or ethnic minority populations; solid grounding in some aspect of environmental law that is relevant to the projected work of the environmental justice initiative; good narrative skills; history of supervising others in a legal context; excellent communication, analysis, and writing skills; demonstrated good judgment and sensitivity in a variety of situations; very strong academics, initiative, and work ethic; the ability to work exceedingly well with others; project management capability, including strong creative and strategic thinking skills; and a commitment to engaging in clinical teaching.

Additional Information:

This is a two-year position with the possibility of becoming permanent.

Application Instructions:

Please submit a cover letter, resume, law school transcript, writing sample, and references to Chantelle Brackett, Human Resources & Payroll Manager, Vermont Law School, PO Box 96, South Royalton, VT 05068. Electronic applications are strongly preferred and can be submitted online here. Applications will be considered as they are submitted. The position will remain open until filled.

More info available here.

Posted in Law Teaching | Comments Off on Vermont Law Seeks Earthjustice Clinical Professor

Washington State Considering Repeal of Tampon Tax OR Having Women Pay for DV Services

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From the Vancouver (WA) Columbian:

Sen. Lynda Wilson, R-Vancouver, is hoping Senate Bill 5093 will exempt feminine hygiene products from retail and use tax. As she pointed out to the Senate Ways & Means Committee last week, they are medically necessary products. But if that measure fails to gain momentum, she’s also introduced Senate Bill 5092, which would use the tax that currently exists and reallocate the funds to help domestic violence victims.

The money would create a grant program called Women Helping Women under the Department of Commerce. Funds would be given annually to each county, based on population size, and help local law enforcement and prosecutors to offer support services for domestic violence and sexual assault victims.

The full article is here.

Isn’t the alternative bill — SB 5092 — basically making women pay for services that the government should be providing for all citizens? A similar move happened earlier in the UK (see here), and this Washington State bill seems to have the same impact: shift the cost onto women for services the violence done to them, mostly by men.

Posted in Women and Economics, Women's Health | Comments Off on Washington State Considering Repeal of Tampon Tax OR Having Women Pay for DV Services

Feldman and Gill on Gender and Oral Argument at the U.S. Supreme Court @AdamSFeldman

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Adam Feldman, Columbia University Law School and University of Southern California Political Science, and Rebecca D. Gill, University of Nevada, Law Vegas, have published Echoes from a Gendered Court: Examining the Justices’ Interactions During Supreme Court Oral Arguments. Here is the abstract.

Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.

This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.

Download the article from SSRN at the link.

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Nasty Women and the Rule of Law @woolleylaw

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Alice Wooley, University of Calgary School of Law, and Elysa Darling are publishing Nasty Women and the Rule of Law in the University of San Francisco Law Review. Here is the abstract.

Lawyer bashing is a robust and accepted social tradition. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-lawyer criticisms. Criticisms and attacks on women lawyers are personal and gendered, as well as being intense and hostile, in a way that differs from the generic, often humorous, and impersonal nature of traditional antipathy to the legal profession. And even when women lawyers are viewed positively, commentary focuses on their looks, clothes and families, in a way that is not the case for men. This paper identifies the reasons for and consequences of how we talk about women lawyers.

Download the article from SSRN at the link.

Posted in Academia, Feminism and Law | Comments Off on Nasty Women and the Rule of Law @woolleylaw

Prenups, Gender and IP

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Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations — generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not — to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD I warn that these developments can have negative effects on innovation as well as problematic distributional effects.

A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP — films, songs, software, brands and apps – to the partner who plans to develop them. The New York Times asked me to comment about these developments so I wrote a short op ed about this rising trend and in particular raise the question about potential gender inequities.

Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.

Would love to hear your thoughts – comment here or in the comments section of the NYT.
c/p Prawfs

Posted in Academia | Comments Off on Prenups, Gender and IP

Vocally Fried: Stereotypes, Nonverbal Behavior, and Societal Bias Against Women Attorneys

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Michael J. Higdon, University of Tennessee College of Law, is publishing Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion in volume 13 of Legal Communication & Rhetoric: JALWD (2016). Here is the abstract.

In 2015, Naomi Wolf warned that “the most empowered generation of women ever — today’s twenty-somethings in North America and Britain — is being hobbled in some important ways by something as basic as a new fashion in how they use their voices.” She was referring to the phenomenon referred to as “vocal fry” — a speech quality in which the speaker lowers her natural pitch and produces a “creaking” sound as she talks. Naomi Wolf is not alone in her warnings; vocal fry has received quite a bit of negative attention recently. Specifically, these critics warn that those who speak in vocal fry are doing themselves great harm by undermining the speakers’ overall perceived effectiveness. In fact, recent studies even lend some support to these arguments, showing that listeners tend to rate those who speak in vocal fry more negatively.

The problem, however, is that much of this criticism is directed at young women, and for that reason, some defenders of vocal fry have countered that these criticisms are merely attempts to regulate how women talk. In other words, a preference for speech that does not contain vocal fry is actually motivated by pernicious stereotypes about how women “should” talk.

Thus, on the one hand, there are those studies supporting the argument that women who engage in vocal fry are less likely to be perceived positively, yet on the other hand, there exists the very real likelihood that these perceptions are based on gender stereotypes. Accordingly, the question emerges: what should a young woman do? Should she eliminate all instances of vocal fry from her speech so as to maximize her perceived effectiveness as a public speaker if, in so doing, she is reinforcing the very gender stereotypes upon which such preferences are based? Or should she openly confront such stereotypes and employ vocal fry as much as she likes, knowing that, by taking that approach, she is taking the risk that she might be hurting not only herself but also those upon whose behalf she speaks?

This essay, by first discussing this background on vocal fry, delves into that very dilemma. It does so specifically in the context of female attorneys given that 1) public speaking is a key component upon which their effectiveness is gauged and 2) to the extent their public speaking is judged to be less than ideal, they are not only harming themselves, but also potentially a client. Finally, in wrestling with this question, these essay hopes to shed light on a bigger concern — specifically, how useful are studies on effective nonverbal behavior when the results of those studies are largely driven by underlying societal prejudice.

Download the essay from SSRN at the link.

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White Paper on Title IX & the Preponderance of the Evidence, 3d Edition

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Please see the “third edition” of the White Paper on Title IX & the Preponderance of the Evidence at the link below, including the first 100 signatures from law professors across the country.  We will continue to accept signatures from law faculty members as long as law faculty members wish to sign on to the White Paper, and we will post updated editions of the White Paper as we receive additional signatures.  To add yourself as a signatory, please email your full name and the URL for your faculty webpage to Nancy Chi Cantalupo at ncantalupo@barry.edu.

title-ix-preponderance-white-paper-signed-11-29-16

Posted in Academia, Activism, Acts of Violence, Sex and Sexuality, Sexual Harassment | Comments Off on White Paper on Title IX & the Preponderance of the Evidence, 3d Edition

Interview with Dana Brooks Cooper, Florida Attorney Challenging the “Tampon Tax”

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Earlier this year, Bridget J. Crawford spoke with Dana Brooks Cooper, Esq. of Barret, Fasig & Brooks in Tallahassee, Florida.  Ms. Brooks is representing the plaintiff in a class action that challenges the Florida “tampon tax,” the state sales tax imposed on feminine hygiene products. In this interview, Ms. Brooks provides an update on the case of Wendell v. Florida Department of Revenue et al. currently pending in the Circuit Court, Second Judicial Circuit, in and for Leon County, Florida.

Bridget Crawford:  When we last spoke in July, you recently had filed the complaint on behalf of a plaintiff in the class action.  What is the status of the case at this point?

Dana Brooks Cooper: Things have been moving along. We have amended our Complaint in response to a Motion to Dismiss from the Government Defendants and we took that opportunity to include two great new additional plaintiffs. Currently, we’re in the process of responding to a new Motion to Dismiss from the Department of Revenue and have filed our own Motion for Partial Summary Judgment for Declaratory Relief. So, while there haven’t been any substantive rulings yet, we feel like we’re making progress.

Crawford:  Does it seem that the legislature is paying close attention to this case?

Dana Brooks Cooper

Dana Brooks Cooper

Cooper: We have not heard anything on this lately, although right after the lawsuit was filed, Senator Simmons had expressed a desire to introduce legislation to abolish the tax but cited pending litigation as a potential problem in doing that.  The legislature is due to start committee meetings later this year and we will be closely monitoring those.

Crawford:  If the Florida legislature were to pass a bill exempting menstrual hygiene products from sales tax in the future, do you think that the class would still want to press for a refund of past taxes paid?

Cooper: Absolutely. Getting the law changed would be a big victory, but it is only part of the battle. Millions of dollars in illegal taxes have already been paid by the women of Florida and we intend to do everything we can to get their money back.

Crawford:  From your perspective, what’s the relationship of the tampon tax to larger issues of equality for women?

Cooper: it seems like a small thing, but to me it’s indicative of so much more. Prior to 1986, these products were exempt from sales tax in Florida and there seems to be absolutely no basis for the Legislature’s decision to start taxing these items. Now more than ever, I believe we cannot just stand aside and let these unfair and arbitrarily discriminatory practices continue, either through inattention or because it seems like there are always bigger fish to fry. It’s important for women, and those who support them, to step up and make their voices heard in every possible arena.  We know we cannot rely on the media to conduct their own independent investigations of these things because until someone calls attention to it, they are as much in the dark as the rest of us are.

Crawford:  What has been the reaction of your colleagues in the Florida bar to this case?

Cooper: Overwhelmingly supportive. No one I have spoken with has any idea how the legislature can claim this tax is justified. I frequently get asked for updates on the case. People want to know what’s going on and why their elected officials have not embraced our cause and run with it.

Crawford:  Thank you for this update!  We will be following this case with great interest.

Cooper: Thank you. We appreciate your continued interest and support. We plan to keep fighting the good fight.

Posted in Courts and the Judiciary, Women and Economics, Women's Health | Comments Off on Interview with Dana Brooks Cooper, Florida Attorney Challenging the “Tampon Tax”

Interview with Jennifer Weiss-Wolf, New York Attorney and Menstrual Equity Advocate

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Bridget J. Crawford recently spoke with Jennifer Weiss-Wolf of Period Equity, a non-profit organization located in New York City focused on all aspects of menstrual fairness. Ms. Weiss-Wolf is a self-described “writer, activist, feminist.” She is an advocate and frequent commentator on all things related to menstruation and public policy.

In this interview, Ms. Weiss-Wolf explains some of her work on behalf of menstrual equity and the relationship between law and social change.

Bridget Crawford: Your Period Equity colleague Laura Stausfeld described you “the most prolific and organized ‘menstrual equity’ advocate.” Can you explain what menstrual equity is?

Jennifer Weiss-Wolf: It is a term I concocted – and I am glad to see it taking hold! What I mean by menstrual equity is this: People who menstruate need affordable and accessible hygiene products to be fully equal players in society, to be productive students and citizens, and to be healthy. Addressing issues of menstruation – access, affordability, safety – is a matter of equitable treatment, even equitable representation in our government.

Crawford: Can you explain what you mean when you say menstruation is related to equitable representation in government?

Jennifer Weiss-Wolf

Jennifer Weiss-Wolf

Weiss-Wolf: President Obama actually said it best when he was asked during a YouTube interview last January why he thought that menstrual products were not exempt from sales tax. His answer: “I suspect it’s because men were making the laws when those taxes were passed.” I basically agree. I don’t imagine there has ever been a secret or nefarious plot to purposefully exclude menstruation from policymaking. Rather, it is simply the outcome of too few women at the decision-making table – which, in turn, pretty much guarantees that our experiences are not fully reflected, nor our interests fully represented.

That said, though, stigma and marginalization are squarely part of the equation too. President-elect Donald Trump made incendiary comments about menstruation early in the campaign. When California Assembly Member Cristina Garcia introduced the tampon tax bill there in January 2016, she was nicknamed “Miss Menstruation.” When women are mocked for our biology – in an overt attempt to bully or quiet us down – the ability to promote policies that improve women’s lives is compromised.

Crawford: How did you first get involved in issues related to menstruation and public policy?

Weiss-Wolf:  I can pinpoint the exact moment. It was New Year’s Day 2015 … at the Coney Island Polar Bear Club’s plunge. Each year my friends and I join hundreds of other New Yorkers crazy enough to charge into the icy Atlantic. That year we had even upped the ante and dressed up as Wonder Woman!  After I got home and shook off all the sand and glitter – I did the natural next thing: posted my pictures on Facebook. And that was when I saw a post by a local parent that she and her daughters were leading a collection drive for tampons and pads to donate to our local food pantry. Their project was called “Girls Helping Girls. Period.

I was floored that I’d never even considered this before. If periods are a hassle for me – an adult with the means to have a fully stocked supply of tampons and no inhibitions at all talking about it – it seemed nakedly, painfully obvious that for those who are poor, young, vulnerable, it could so easily be a real obstacle and problem. After some preliminary research I wrote an essay describing my reaction to this revelation that The New York Times published later that month. And there began the journey – literally, from Wonder Woman on the beach.

Crawford: Can you describe some of your early work on behalf of menstrual equity?

Weiss-Wolf: Right away I knew I wanted to address the issue from a policy perspective. Donation drives are crucial – they meet a need and engage the public – but, truly, I see this as a matter of societal and public obligation.

In terms of what would make a winning policy campaign, I zeroed in on the tampon tax. I knew that activists around the world were taking it on, and the time seemed ripe to do the same here in the U.S. It is a fairly straightforward public argument about equity and fairness that I thought would be popular and attract a wide audience.

In October 2015, I conceptualized and initiated the inaugural national tampon tax petition on change.org, and was thrilled when Cosmopolitan Magazine agreed to co-sponsor. My goal in creating a national petition was to ratchet up public attention to the issue in order to spur states to take action. It worked. By January 2016, President Obama weighed in, resulting in an avalanche of national media (that still hasn’t subsided). By March, I was called upon by Laura Strausfeld to assess and guide the public and media strategy vis-à-vis the filing of the class action lawsuit she conceptualized for New York State. In June, the American Medical Association issued a statement in support of legislation to eliminate the tampon tax. To date, the petition has more than 60,000 signatures and the advocacy campaign resulted in the introduction of legislation and/or public debate in 15 states during the 2016 session. The tax was eliminated in Connecticut, Illinois and New York, as well as the City of Chicago. The District of Columbia passed a bill last week to eliminate it (now awaiting the Mayor’s signature). California’s bill, passed unanimously in the legislature, was recently vetoed by Governor Brown. More states are poised to introduce and pass similar laws in 2017. Over the past year I provided research and support to lawmakers in states and cities across the country, including California, Illinois, Maryland, New York, Ohio, South Carolina, Virginia, Wisconsin, as well as Chicago, D.C. and New York City. I also testified and presented before several legislative bodies.

Crawford: Why do you think the issue of the tampon tax in particular captured the attention of popular press outlets like Cosmopolitan and Newsweek?

Weiss-Wolf: The issue has the benefit of being interesting, under-reported (well, until the past year) and essential to the lives and well-being of half the population! Add in a dose of stigma-busting (and therefore headline-grabbing) and you have a winning combination.

A central component of my advocacy strategy has been to elevate the national discourse around menstrual equity policy – not only as a way to eradicate stigma and educate the public about the plight of those who lack access, but also to motivate legislators to act and ensure they know the public will is on the side of these laws. For example, I write a weekly update for a curated list of media contacts and work closely with many editors and reporters to ensure coverage that is accurate, compelling, timely and effective. I also lend my own voice to the public arena with public writing and have published around 20 op-eds in outlets including Newsweek and Cosmo – as well as The New York Times, TIME, The Nation, Bloomberg, Bustle and Ms. Magazine, among others. [See Ms. Weiss-Wolf’s website here for links to her op-eds and other writings. -ed.]

At the close of 2015, NPR coined the oft-quoted term “The Year of the Period,” noting that the number of times the word menstruation was mentioned by national news outlets more than tripled from 2010 to 2015. Cosmo named 2015 “The Year the Period Went Public.” As you mention, in April 2016, for the first time ever, Newsweek featured period activism as a cover story. These are among the many hundreds of high-profile headlines and hits over the past year on the policy aspect of this work.

Crawford: You played a role in the New York City Council’s decision to make menstrual hygiene products available in jails, homeless shelters and public schools.  How did that come about? Continue reading

Posted in Feminism and Culture, Women and Economics, Women's Health | Comments Off on Interview with Jennifer Weiss-Wolf, New York Attorney and Menstrual Equity Advocate

District of Columbia Repeals Its Tampon Tax; Is Texas Next?

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The District of Columbia is slated to end its tampons on feminine hygiene products, as well as diapers, in October, 2017:

The nation’s capital is joining the movement to lift the sales taxes on diapers, tampons and other feminine hygiene products.

A spokeswoman for Mayor Muriel E. Bowser (D) said Wednesday she’ll sign legislation that supporters say ends a 5.75 percent tax that hurts women and hits working families the hardest.

But before it takes effect, the District needs to find more than $3 million a year to make up for the lost tax revenue in its $13 billion annual budget.

The next budget takes effect October 2017, meaning consumers must spend at least another year of paying taxes on diapers — both for babies and incontinent adults — and menstrual products.

Read the full WaPo story here. Legislation Clinic students from the University of the District of Columbia Law School represented a client in advocating for repeal. See our prior coverage here.

It looks like the Texas legislature may take up the question, too, according to the Dallas Morning News:

The average woman spends 2,280 days — more than six years — of her life on her period. If she spends $7 a month on hygiene products (excluding medication and birth control) for 40 years, she’ll have shelled out more than $3,000 … plus tax.

Not anymore, five Democratic lawmakers hope. They’ve proposed doing away with taxes on “tampons, panty liners, sanitary napkins and other similar tangible personal property” for at least a limited time. * * *

The tampon tax bills in other states are often proposed by female lawmakers. In Texas, Rep. Ryan Guillen of Rio Grande City and Sen. Jose Rodriguez of El Paso join Reps. Carol Alvarado of Houston, Donna Howard of Austin and Sen. Sylvia Garcia of Houston in proposing a halt to the taxes.

Note the reference to repeal “at least for a limited time.” This Texas legislation (SB 129, SB 162, HB 55, HB 219, HB 232) will be worth watching.

Posted in Women and Economics, Women's Health | Comments Off on District of Columbia Repeals Its Tampon Tax; Is Texas Next?

Period Stigmas, the Tampon Tax and Social Justice

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Cosmopolitan magazine continues its coverage of the menstrual equity movement:

In the last year alone, the American Medical Association weighed in against tampon taxes. Jessica Williams railed against them on The Daily Show. And Chinese swimmer Fu Yuanhui made a fan of every menstruating Olympic viewer when she talked honestly about the challenge of swimming a relay the day after her period started. Amy Schumer told red-carpet reporters at the Emmys she was wearing “Vivienne Westwood, Tom Ford shoes, and an O.B. tampon.” In an interview with YouTube vlogger Ingrid Nilsen, no less than President Barack Obama was asked about tampon taxes. “I have no idea why states would tax these as luxury items,” he said. “I suspect it’s because men were making the laws when those taxes were passed.” Take a minute on that. The president talked about periods!

All the taboo breaking and tampon-tax slashing has helped launch a movement for what [Jennifer] Weiss-Wolf calls menstrual equity. Why do so many of our policies fail to account for this core reality of women’s lives, she asks? And if periods are the great equalizer that all women have in common, why do we have such vastly different access to products? On campuses and in offices, women’s shelters, and jails, activists are calling attention to how critical it is to have access to period products. It’s not just about women’s finances — it affects the freedom to work, study, and move about the world with basic dignity.

Read the full article here.

Posted in Women and Economics, Women's Health | Comments Off on Period Stigmas, the Tampon Tax and Social Justice

Interview with Laura Strausfeld, New York Attorney Challenging the “Tampon Tax”

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Bridget J. Crawford recently spoke with Laura Strausfeld of Period Equity, a non-profit organization located in New York City focused on all aspects of menstrual fairness. Ms. Strausfeld developed a key legal strategy used in the New York case that challenged the New York “tampon tax,” the state sales tax imposed on feminine hygiene products. The Complaint in Seibert, et al. v. N.Y. State Dep’t of Taxation and Finance, et al. was filed on March 3, 2016.  On May 25, 2016, the New York State legislature voted to exempt feminine hygiene products from state sales taxes.

In this interview, Ms. Strausfeld explains some of the background to the case and her work on behalf of menstrual equity.

Bridget Crawford: Can you explain how you got involved in the litigation that sought to end the tampon tax in New York?

Laura Strausfeld: I researched a case against New York State when I was a Columbia Law student 25 years ago—the tampon tax has always been illegal!—and tried at variLaura Strausfeldous moments over the years to interest law firms in filing a class action. (When I lived and worked in California, I also researched a case there.) In early 2016, I began to see articles in the media about the unfairness of the tax, many of which were forwarded to me by friends who had heard me talk about this issue. I reached out to Jennifer Weiss-Wolf, the most prolific and organized “menstrual equity” advocate (and coiner of that term), and asked if she thought a class action could help the cause. She was very supportive and I sought out Ilann Maazel, at the law firm Emery Celli Brinckerhoff & Abady LLP, who agreed to represent the plaintiffs who wanted to file the complaint.

Crawford: When you say you researched a case 25 years ago, do you mean you were doing the research to build a case, or there was an actual case filed in New York?

Strausfeld:  There was no actual case filed until March of this year. Several times over the last 25 years, I researched the relevant legal issues across several states, including New York. Tampons and pads have been variously categorized as taxable ‘cosmetics’ and more recently in New York State as ‘feminine hygiene products,’ as distinguished from tax-exempt medicinal items. The Seibert case drew on a memo I drafted in 2002.

Crawford: What had gotten you started thinking about these issues in the first place?

Strausfeld:  I’ve been asked this question a lot. I’ve always been interested in the history behind what I’ve referred to, to my children, as “dumb rules.” There are many instances in our lives where we find ourselves doing things that make no sense and, worse, are patently unjust and unfair. The practice may have made sense at the time it originated, but it makes no sense now. This interest is what motivated me to go to law school. And when I first moved to New York City to attend Columbia, I recall buying tampons and chapstick and noticing that I was taxed on the tampons and not on the chapstick. It was empowering as a law student to be able to look up the law and confirm my suspicion that there was no good reason for chapstick to be exempted from sales tax (on the ostensible ground it has a medical use) and not tampons.

Crawford: What had changed – either culturally or legally – between the time you first started thinking about these issues as a law student to the time when the lawsuit was filed in New York in 2016?

Strausfeld: Nothing at all changed legally. Over two decades, several bills were introduced in New York State to eliminate the tampon tax, but they never went anywhere. About six years ago, I was working with another law firm that was poised to file a class action, but we saw that a new bill had been introduced in the State Legislature so we decided to hold off. Too many times in a row, I naively believed a bill to end the tampon tax would finally get through. What changed culturally, though, was of huge importance to the success of the lawsuit: a growing awareness of how unfair the tampon tax is, paired with examples of other countries, such as Kenya and Canada, in equitably changing the law.

Another thing that changed over twenty years is me. The tampon tax case is one of dozens of projects I’ve undertaken, including researching other lawsuits. In the context of fighting for equal pay and reproductive rights, among other vital causes, I initially viewed the tampon tax case as trivial in comparison. In retrospect though, the tampon tax case goes to the heart of the problem for women’s rights—and that’s the historical underrepresentation of women in government. Sales tax laws were passed across the country from the 1930s to the 1960s. Most of these laws exempted necessities of life. Women weren’t present, though, to make fellow legislators aware that menstrual supplies are, in fact, necessities. And this problem is lodged in many other laws adversely affecting us today. Eliminating the tampon tax is an important milestone, in other words, to eradicating other laws adversely affecting women.

Crawford: Could you update us on the current status of the case?

Strausfeld: The case against New York State has been voluntarily dismissed by the plaintiffs. Continue reading

Posted in Feminism and Law, Women and Economics, Women's Health | Comments Off on Interview with Laura Strausfeld, New York Attorney Challenging the “Tampon Tax”

Now Also In the Name of the Mother

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Italy’s constitutional court has ruled that parents may opt to give their children either the mother or the father’s surname, or both. The practice of automatically giving a child the father’s surname is a violation of the mother’s rights.  The European Court of Human Rights had found in Cusan and Fazzo v. Italy (2014) that the Italian law violated Article 14 (taken together with Article 8) of the European Convention on Human Rights which requires equal treatment of persons without regard to sex.

Text of Article 14:

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

 

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Conn College Joins the Free Tampon Movement

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From Connecticut College’s The College Voice:

On Nov. 2, students and administrators gathered in the lobby of Cro to celebrate the launch of free menstrual health products in select bathrooms on campus. The pilot program, spearheaded by Emma Horst-Martz ’18, was implemented in collaboration with SGA, the administration and student health services. Although nearly 86 percent of women report experiencing their period in public without easy access to needed menstrual supplies, few colleges currently provide students with free pads and tampons. If her pilot program is institutionalized, Horst-Martz noted in her speech to supporters, Conn may emerge as one of the first colleges in the U.S. to distribute menstrual products with administrative financial backing. * * *

Conn’s tampon and pad pilot program recognizes the financial burden of menstruation. To purchase menstrual supplies costs an average $18,171 over the length of one’s life. The sales tax imposed on sanitary products, the so-called “tampon tax” or “pink tax,” has been dismantled in only a handful of states. Most states tax tampons and pads as luxury items even though they are, in fact, necessities. Students struggling to pay for school, Horst-Martz says, may face difficulties allocating money toward necessary toiletries.

Read the full article here.

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Free Tampons and Pads Coming to NYU

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Via the Washington Square News (here), the student newspaper at New York University:

Senior Vice President for Student Affairs Marc Wais said that the university decided to convene a working group of students and staff to propose a pilot program by the end of the semester.
“The working group will be chaired by Dr. Marcy Ferdschneider, Medical Director of the Student Health Center,” Wais said. “The working group will submit its recommendations to me. The university will assess the utilization and success of the pilot over the summer to determine how we move forward in the future.”
He said that this pilot program to provide free menstrual hygiene products to all students will begin in the spring semester at both the Manhattan and Brooklyn campuses. According to the press release, the pilot program recommendations should be submitted to Wais by Friday, Dec. 23.
Gallatin junior Josy Jablons, who has led this fight on campus, said that this decision was finalized at around noon on Thursday, Oct. 20, and this came after several levels of approval.
“It was more ‘overnight’ than you might think,” Jablons said. “Given the three-prong approach of our op-ed, petition and SSC [Student Senators Council] resolution, the administration was forced to take note.”

Will other universities beside Brown and Minnesota soon follow suit?

Posted in Women and Economics, Women's Health | Comments Off on Free Tampons and Pads Coming to NYU

Hiring Announcement: Concordia

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From colleagues at Concordia:

Background: Concordia University School of Law, located in Boise, Idaho, invites applications for a tenure-track position beginning in the 2017-18 academic year.  Candidates for the position must clearly demonstrate the potential for excellence in research and teaching and have a record of (or clear potential for) distinguished scholarship.  Our goal is to recruit dynamic, bright, and highly motivated individuals who are interested in making significant contributions to our law school and its students.  Practice experience is preferred, and teaching experience is desirable.  As a Lutheran institution of higher education, we seek candidates who will support our mission and promote Lutheran values.

Special Instructions to Applicants: Questions about the position can be directed to the Chair of the Committee.  Applicants should submit a current Curriculum Vitae, a statement of faith, and a letter of interest to https://cu-portland.csod.com/ats/careersite/JobDetails.aspx?id=118.  Please also provide the names and email addresses of three individuals prepared to speak to your professional qualifications for this position. Please note: these references will not be contacted immediately, but may be contacted at an appropriate later point in the review process. Additional materials related to teaching excellence and samples of scholarly publications may be emailed to the Victoria Haneman, Chair of the Committee, at vhaneman@cu-portland.edu.  Review of applications will begin immediately and continued until the position is filled. Concordia University reserves the right to give preference in employment based upon religion in order to further the Lutheran objectives of the University and the Lutheran Church-Missouri Synod.

Posted in Law Schools, Law Teaching | Comments Off on Hiring Announcement: Concordia

What Happened When One NYC Pharmacy Charged Men More

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image credit: breibart.com

Thompson Chemists in the Soho neighborhood of New York City got some attention this week when it posted signs saying “All female customers shop tax free” and “All male customers subject to a 7% man tax.” Here’s some press coverage of the event from Gothamist:

Jolie Alony, who has owned the pharmacy for 22 years and lives in SoHo, said she wants men who shop at her store to understand the extra costs that women bear when they shop.

“We want to bring awareness on how it feels to be a woman, so the men actually get to feel it,” she said. * * * Despite what her signs say, Alony explained, men aren’t actually coughing up more than they normally would at the register; rather, she’s offering a 7 percent discount for women—effectively cutting out sales tax. She’s still required to report all sales and pay out the sales tax in full, so, she said, she’s just making up the difference herself.

The policy is being run as a promotion—Alony said she’ll see how the day goes and decide if she wants to keep it in place.

Thompson Chemists later posted this note on its Facebook page (see more press coverage here):

Calm down SoHo friends!

As stated in the article: “men aren’t actually coughing up more than they normally would at the register; rather, she’s offering a 7 percent discount for women—“
this makes up for how women are often overcharged for over-the-counter and beauty products (on average 7% according to the NYC Department of Consumer Affairs).

This is a friendly reminder to treat your friends and neighbors as equals and to read articles in their entirety before passing judgment.

With love from your neighborhood pharmacy,
Thompson Chemists

The Gothamist article says that the New York City Department of Consumer Affairs “wrote back to Gothamist to explain that there’s no legal issue with the Thompson Chemist promotion, as there isn’t a prohibition on price discrimination for goods. It is illegal, however, to discriminate in the pricing of services.”  I would be surprised if it is correct that vendors can legally discriminate in price, based on the sex of the customer.  The finer point is that Thompson Chemists is essentially giving a discount to women and not men by paying the women’s sales tax themselves.  In other words, Thompson Chemists is still on the hook for paying to New York State the sales tax on all of the (taxable) property it sells; the store is simply choosing to cover some of the tax itself.

I love the awareness that Thompon Chemists is raising, but I do wonder if it is legal to offer discounts to one group and not the other, on the basis of sex.  Or, are discounts so inherently discretionary that the law defers to the judgment of the store offering the discount?  Con Law experts, please chime in.

Posted in Women and Economics | Comments Off on What Happened When One NYC Pharmacy Charged Men More

Zurich Tampon Tax Protesters Turn Fountains Red

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Earlier this week, members of Aktivistin.ch, a feminist collective in Zurich, Switzerland, ooured food dye into various public fountains in order to protest the tampon tax.

Here’s an excerpt from English-language press in Switzerland:

Spokeswoman Carmen Schoder said the #happytobleed action was meant to prompt discussion on attitudes towards the female body.

“Many people still see menstruation as something shameful,” she said, adding that people were afraid to talk about it.

The organization is angry at the fact that tampons and sanitary towels are taxed at a rate of eight percent, and not at the rate of 2.5 percent which applies to most items of daily use.

“Tampons are seen as a luxury product and women are financially disadvantaged,” Schoder said. The tax gave the impression that sanitary products were not a requirement.

The Zurich authorities, which had to clean the fountains, complained that the water was meant for public consumption and should not be misused for publicity purposes.

Read the full coverage here.

Image source here
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White Paper on Title IX & the Preponderance of the Evidence, 2d Edition

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Please see the “second edition” of the White Paper on Title IX & the Preponderance of the Evidence at the link below, including the first 100 signatures from law professors across the country.  We will continue to accept signatures from law faculty members as long as law faculty members wish to sign on to the White Paper, and we will post updated editions of the White Paper as we receive additional signatures.  To add yourself as a signatory, please email your full name and the URL for your faculty webpage to Nancy Chi Cantalupo at ncantalupo@barry.edu.

title-ix-preponderance-white-paper-signed-10-3-16

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Spotlight on UDC Legislation Clinic Students’ Advocacy for #TamponTax Repeal

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I mentioned here that students in the Legislation Clinic at the University of the District of Columbia David A. Clarke School of Law were among those testifying on behalf of the proposed legislation repealing D.C. tax on diapers and menstrual hygiene products.

The students’ testimony is available here. Some local news outlets feature the students’ work, here and here.

This is a concrete example of how student advocacy can lead to real-life impact.  Congratulations to Professor Marcy Karin, who leads the Legislation Clinic at UDC, and to her students!

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D.C. Considering Repeal of the Tampon Tax

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The Council of the District of Columbia’s Finance and Revenue Committee held hearings earlier this week on B21-696, the “Feminine Hygiene and Diapers Sales Tax Exemption Amendment Act of 2016.” Students in the Legislation Clinic at the University of the District of Columbia David A. Clarke School of Law were among those testifying on behalf of the proposed legislation.

Here’s an excerpt from the Washington Post’s coverage:

Advocates for women urged the D.C. Council to lift the sales tax on diapers, tampons and pads at the first public hearing Wednesday for legislation that is being promoted across the country.

“What, how and who we tax speaks volumes about what we value as a community and a city,” said Corinne Cannon of the D.C. Diaper Bank, adding that the savings in sales tax could allow families to buy an additional dozen diapers a month.

District residents currently don’t pay sales taxes on groceries and medically necessary drugs — including Viagra.

Some advocates said taxes on feminine hygiene products were like a tax for being a woman, and argued that jurisdictions should not classify them as “luxury goods.”
At the hearing before the council’s finance and revenue committee, about a half-dozen women testified in favor of suspending the taxes. The committee’s chair, Council member Jack Evans (D-Ward 2), said he supported the legislation.

Maryland doesn’t tax tampons and diapers; Virginia does. A bill that would eliminate the taxes on feminine hygiene products failed in Virginia this year.

The full WaPo article is here.

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New Book Announcement: Lifetime Disadvantage, Discrimination and the Gendered Workforce

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Cambridge University Press has published a new book by Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex University, UK), Lifetime Disadvantage, Discrimination and the Gendered Workforce.  Here is the publisher’s description:

Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women’s labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women’s discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.

Thomas Jefferson has a nice press release here.

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Lawsuit Challenging Improper Sales Tax on Toilet Paper

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A New Jersey couple has filed a class action lawsuit against retailer Costco for improperly charging sales tax on toilet paper, when the state law specifically exempts toilet paper from the tax.  See the CNBC story here.

This case is not quite analogous to the class action suits challenging the tampon tax in New York (see here) and Florida (see here) because toilet paper is specifically exempt from taxation under New Jersey law, whereas in New York and Florida, menstrual hygiene products are subject to tax.  But the Costco case is helpful as an example of large class action sales tax refund case. If the tampon tax were found to be unconstitutional when imposed in New York (which repealed its tampon tax prospectively) or Florida, massive refunds would be in order.  I’ll be following the Costco/toilet paper case with interest.

Posted in Feminism and Economics | Comments Off on Lawsuit Challenging Improper Sales Tax on Toilet Paper

Chemerinsky on the Tampon Tax

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Erwin Chemerinsky (UC Irvine) published a column in last week’s Los Angeles Daily News.  Here is an excerpt:

If the government were to say that only men or only women had to pay an additional tax of several hundred dollars a year solely because of their sex, that would clearly be an unconstitutional denial of equal protection. Yet that is exactly the effect of California imposing a tax on tampons and sanitary pads. * * * [T]axing tampons and sanitary pads is sex discrimination. Only women use these products, and thus only women pay the tax.

Read the full column here.

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Lipman on Anti-Poverty Relief Delivered Through the Tax Code

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Francine Lipman (UNLV) blogs here at the Surly Subgroup about newly-released national and state poverty statistics. The post is a short and clear explanation of how significant anti-poverty relief is delivered through the tax code to millions of people, including over 4 million children.  The post is worth a read.

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CFP: Wisc. J. L, Gender & Society on “Women in the Boardroom”

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The Wisconsin Journal of Law, Gender & Society has announced its 2017 symposium and this Call for Papers:

Women in the Boardroom:

The Social and Business Arguments that Challenge Executive Board Homogeneity

The positive correlation between the increase of women within corporate boardrooms and financial performance has initiated global business and social debates regarding the need for more diversity within executive boardrooms. We are seeking original scholarship, from both scholars and practitioners, addressing either or both the business and social arguments that surround an effort to increase women presence within the executive, corporate industry.

Ideally, proposals would highlight:

  • An analysis of either the business (higher return on equity, return on sales, etc.) or the social argument (gender equality) regarding the importance of increasing the number of women in corporate boardrooms.
  • Recommendations as to how boardroom diversity implementation could be improved upon to address issues particular to the needs of women and businesses individually.

Interested parties should send an abstract, plus a 3-5 page outline to wisc.law.gender.society@gmail.com by November 1, 2016. Those selected for the Symposium will be asked to present their scholarship in our Symposium and will be offered the opportunity to be published in our April 2017 Symposium issue. The selected authors will be notified by mid-November 2016.

Posted in Call for Papers or Participation | Comments Off on CFP: Wisc. J. L, Gender & Society on “Women in the Boardroom”

Canadian Journal of Women and the Law/ Revue Femmes et Droit: Issue on Missing and Murdered Women Indigenous Women Conference/Symposium sur Meurtres et disparitions de femmes et de filles autochotones

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Canadian Journal of Women and the Law/Revue Femmes et Droit

Volume 28, Issue 2, August 2016

Missing and Murdered Indigenous Women Conference / Symposium sur Meurtres et disparitions de femmes et de filles autochotones

 

CJWL online – http://bit.ly/cjwl282

Project MUSE – http://bit.ly/cjwl282pm

 

EDITORIAL / ÉDITORIAL

Sexualized Violence and Colonialism: Reflections on the Inquiry into Missing and Murdered Indigenous Women

Sherene H. Razack

 

Canadians live in a society where missing and murdered Indigenous women are so commonplace an occurrence that, for two years now, volunteers have organized to dredge the river that runs through the city of Winnipeg looking for the bodies of Indigenous girls and women who have disappeared. “Drag the Red,” as this organization is called, has yet to find any bodies, but its dredging operations often catch women’s underwear.1 The sheer horror of the prospect of Indigenous girls and women lying at the bottom of the river, a river that volunteers dredge, has yet to hit most Canadians, but, in 2015, Canadians elected a government that announced its intention to hold a national inquiry into missing and murdered Indigenous women, women who are unaccounted for across the country.

 

This issue came together after a symposium, jointly organized by the Canadian Journal of Women and the Law and the Canadian Feminist Alliance for International Action, in partnership with the Native Women’s Association of Canada on 30–31 January 2016, explored the prospect of a national inquiry. Indigenous women leaders, family members of missing and murdered women, academics, and activists, joined by six human rights experts from the United Nations and the Inter-American Commission on Human Rights, came together to explore what an inquiry into missing and murdered Indigenous women could accomplish….  http://bit.ly/cjwl282a

 

Violence sexualisée et colonialisme : réflexions relatives à l’enquête sur les femmes autochtones disparues et assassinées

Sherene H. Razack

 

Les Canadiennes et Canadiens vivent dans une société où la disparition et le meurtre de femmes autochtones sont tellement monnaie courante que, depuis maintenant deux ans, des bénévoles draguent la rivière qui traverse Winnipeg dans l’espoir d’y retrouver des corps de filles et de femmes autochtones disparues. « Drag the Red » (draguer la Rouge), le nom de l’organisation, n’a pas encore trouvé de corps, mais ses travaux de dragage ont souvent permis de ramasser des sous-vêtements féminins1. En général, les Canadiennes et Canadiens n’ont pas encore saisi à quel point c’est une horreur sans nom de penser que des filles et des femmes autochtones gisent au fond de cette rivière que draguent des bénévoles, mais en 2015, ils ont élu un gouvernement qui a annoncé son intention de mener une enquête nationale sur les femmes et les filles autochtones disparues et assassinées qui manquent à l’appel dans tout le pays.

 

Ce numéro spécial de la revue est issu d’un symposium tenu les 30 et 31 janvier 2016 et organisé conjointement par la Revue Femmes et droit et l’Alliance canadienne féministe pour l’action internationale, en partenariat avec l’Association des femmes autochtones du Canada, qui évoquait la possibilité d’une enquête nationale. Des leaders autochtones, les familles des femmes disparues ou assassinées, des universitaires et des militantes, avec six experts en droits de la personne des Nations Unies et de la Commission interaméricaine des droits de l’homme, examinaient ce que pourrait accomplir une enquête sur les filles et les femmes autochtones disparues ou assassinées.

http://bit.ly/cjwl282b

 

ARTICLES / ARTICLES

Shining Light on the Dark Places: Addressing Police Racism and Sexualized Violence against Indigenous Women and Girls in the National Inquiry

Pamela Palmater

 

Canada has had a long-standing problem with both societal and institutional racism against Indigenous peoples, especially within the justice system. Numerous national inquiries, commissions, and investigations have all concluded that every level of the justice system has failed Indigenous peoples. More recent inquiries indicate that racism against Indigenous peoples is particularly problematic in police forces in Canada. Yet, despite the evidence, little has been done in Canada to act on the recommendations. This has resulted in the over-incarceration of Indigenous peoples, numerous deaths of Indigenous peoples in police custody, and the national crisis of thousands of murdered and missing Indigenous women and girls. This article seeks to highlight the lesser-known problem of police-involved racialized and sexualized abuse and violence against Indigenous women and girls as a root cause of the large numbers of murdered and missing Indigenous women and girls in Canada. It is argued that an in-depth look at police-involved disappearances, sexual assaults, and murders of Indigenous women should be included in a national inquiry into the high rates of murdered and missing Indigenous women and girls. It is hoped that such an investigation under the national inquiry will result in evidence-based analysis and recommendations for legislative and policy-based changes that are consistent with the human rights protections afforded Indigenous women and girls and with the calls for action by Canada’s Truth and Reconciliation Commission, various United Nations human rights bodies, and the families, communities, and nations of the Indigenous victims. http://bit.ly/cjwl282c

 

Gendering Disposability

Sherene H. Razack

 

In 2011, thirty-six-year-old Cindy Gladue, a Cree woman, bled to death in a hotel bathtub in Edmonton, Alberta, Canada. On the night she died, Gladue had contracted for sexual exchange with Bradley Barton, a white man who worked as a trucker. In 2015, Barton was tried for the murder of Cindy Gladue. With more than 1,200 missing and murdered Indigenous women, there is compelling reason to focus on the violence Barton inflicted on Gladue, understanding it as a part of a history of the sexual brutalization and attempted annihilation of Indigenous women. To show that Gladue’s death and the trial of Barton for her murder are part of a history of colonial terror, it is necessary to unpack the framework utilized by the court, a framework that revolved around the ideas of consent and contract. I propose that we utilize a framework of disposability instead, focusing on the Indigenous woman’s expendibility in settler colonialism. Sexualized violence is key to disposability, and flesh is the site at which racial and sexual power are both inscribed. I emphasize the excessive violence that is meted out to Indigenous women as evidence of colonial power imprinted on their bodies. http://bit.ly/cjwl282d

 

A Long Road Behind Us, a Long Road Ahead: Towards an Indigenous Feminist National Inquiry

Cherry Smiley

 

Since the invasion of North America by white male colonizers, Indigenous women and girls have been constructed as homogenized and dehumanized “Indian princesses” and “savage squaws.” These constructions, albeit false, have real consequences, resulting in disproportionate rates of male violence against Indigenous women and girls in the context of a contemporary for-profit rape culture. In 2015, the Canadian federal government announced a long-awaited inquiry into violence against Indigenous women and girls. This article recommends an expressly Indigenous feminist framework in order to comprehensively address the issue of male violence against Indigenous women and girls in a national inquiry. http://bit.ly/cjwl282e

 

Indian Act Sex Discrimination: Enough Inquiry Already, Just Fix It

Gwen Brodsky

 

This article links ongoing historical sex discrimination in the Indian Act to the high levels of violence against Indigenous women. The status provisions have been recognized as an underlying cause contributing to the existing vulnerabilities that make Indigenous women more susceptible to violence. Addressing violence against Indigenous women will be impossible unless and until the underlying discrimination is also comprehensively addressed. The author further contends that fixing the Indian Act does not require waiting for an inquiry. Successive federal governments have been well aware of the ongoing sex discrimination under the Act and its implications for Canada’s human rights record. The article concludes by calling for the immediate amendment of the status provisions in the Indian Act once and for all. http://bit.ly/cjwl282f

 

Missing and Murdered Indigenous Women Crisis: Technological Dimensions

Jane Bailey and Sara Shayan

 

This article considers how digital technologies are informed by, and implicated in, the systematic and interlocking oppressions of colonialism, misogyny, and racism, all of which have been identified as root causes of the missing and murdered Indigenous women crisis in Canada. The authors consider how technology can facilitate multiple forms of violence against women—including stalking and intimate partner violence, human trafficking, pornography and child abuse images, and online hate and harassment—and note instances where Indigenous women and girls may be particularly vulnerable. The authors also explore some of the complexities related to police use of technology for investigatory purposes, touching on police use of social media and DNA technology. Without simplistically blaming technology, the authors argue that technology interacts with multiple factors in the complex historical, socio-cultural environment that incubates the national crisis of missing and murdered Indigenous women and girls. The article concludes with related questions that may be considered at the impending national inquiry. http://bit.ly/cjwl282g

 

Balancing Transparency and Accountability with Privacy in Improving the Police Handling of Sexual Assaults

Amy Conroy and Teresa Scassa

 

This article considers the potential for the adoption in Ontario of a model, developed in Philadelphia and implemented in other US cities, that has proven successful in significantly improving police handling of sexual assault cases and public confidence in the system. This model directly involves front-line sexual assault victim advocates working with police in systematic reviews of police sexual assault records, with a particular focus on “unfounded” cases. Resistance to the adoption of this model in Canada has focused on arguments around public sector privacy legislation. We therefore explore the Philadelphia model through a transparency and accountability lens in the Canadian context. We suggest that the concepts of “transparency” and “accountability” are too often conflated with the disclosure of data or information through access to information channels, and we argue for a more robust understanding of these concepts. We also argue that the conventional access to information model should not be allowed to obstruct meaningful transparency and accountability by using privacy arguments to create barriers to change. http://bit.ly/cjwl282h

 

Public Inquiries and Law Reform Institutions: “Truth Finding” and “Truth Producing”

Nathalie Des Rosiers

 

This article examines how the Murdered and Missing Indigenous Women and Girls Inquiry (MMIWGI) will be evaluated and what it means for its design and ambitions. It argues that a public inquiry, like a law reform body, must aim to be a “truth-finding” body as well as a “truth-producing” enterprise. It must understand itself as wanting to create the right leverage so that meaningful changes can occur, irrespective of whether its recommendations are immediately adopted or not. It can accomplish such a goal by having a process that becomes the message, by ensuring that it does not get derailed, and by proposing recommendations that set the stage for change, such as addressing the accountability vacuum and aiming to design a process that models the values and behaviour that it wants other institutions to adopt. http://bit.ly/cjwl282i

 

The Berger Inquiry in Retrospect: Its Legacy

Stephen Goudge

 

The following article was originally presented as the inaugural lecture of the Willms and Shier Speaker Series in Environmental Law, in collaboration with the Centre for Environmental Law and Global Sustainability in the Faculty of Law at the University of Ottawa on 29 September 2015 by the Honourable Justice Stephen T. Goudge. Reflecting on the lessons and impacts of the McKenzie Valley Pipeline Inquiry, chaired by then Justice Thomas Berger, the article considers the lasting impact of the Berger Inquiry forty years later, including the successful recommendation to abandon plans to develop the north slope of the Yukon, in favour of conservation. The Berger Inquiry has had lasting social impacts by contributing to the rise of a collective northern voice and highlighting the fundamental importance of Indigenous interests in charting the future. In his postscript, Justice Goudge adds his hope that the Missing and Murdered Indigenous Women Inquiry will emulate the Berger Inquiry in three fundamental ways: by developing inquiry processes that build trust among those most affected; by proposing expeditious and timely recommendations; and, most importantly, by doing what is right. http://bit.ly/cjwl282j

 

The National Inquiry on Murders and Disappearances of Indigenous Women and Girls Recommendations from the Symposium on Planning for Change: Towards a National Inquiry and an Effective National Action Plan

Feminist Alliance for International ActionNative Women’s Association of Canada

 

On 30–31 January 2016, the Native Women’s Association of Canada, the Canadian Feminist Alliance for International Action, and the Canadian Journal of Women and the Law convened a symposium in Ottawa to engage in dialogue about the upcoming national inquiry on the murders and disappearances of Indigenous women and girls. Forty Indigenous women leaders, family members of murdered and disappeared women, academics, and allies were joined by six human rights experts from the United Nations and the Inter-American Commission on Human Rights. This document is distilled from presentations and dialogue at the symposium…. http://bit.ly/cjwl282k

 

L’enquête nationale sur les meurtres et disparitions de femmes et de filles autochtones

Document final du Symposium sur les Meurtres et disparitions de femmes et de filles autochtones planifier le changement : Vers une enquête nationale et un Plan d’action national efficace

Feminist Alliance for International ActionNative Women’s Association of Canada

 

L’Association des femmes autochtones du Canada, l’Alliance canadienne féministe pour l’action internationale et la Revue Femmes et droit ont organisé à Ottawa, les 30 et 31 janvier 2016, un symposium en vue d’entamer un dialogue au sujet de l’enquête nationale à venir sur les meurtres et disparitions de femmes et de filles autochtones. Quarante leaders féminines autochtones, des membres des familles des femmes et des filles disparues et assassinées, des universitaires et des alliés ont été rejoints par cinq expertes en droits de la personne des Nations Unies et un expert de la Commission interaméricaine des droits de l’homme. Le présent document est issu des présentations et des dialogues qui ont eu lieu pendant le Symposium. … http://bit.ly/cjwl282l

 

BOOK REVIEWS / CHRONIQUES BIBLIOGRAPHIQUES

Re-Imagining an Agentic Ashley: Looking for Ashley: Re-Reading What the Smith Case Reveals about the Governance of Girls, Mothers and Families in Canada by Rebecca Jaremko Bromwich

Josephine L. Savarese

http://bit.ly/cjwl282r

 

Dying from Improvement: Inquests and Inquiries into Indigenous Deaths in Custody by Sherene H. Razack

Sarah Buhler

http://bit.ly/cjwl282r2

Information posted originally for Canadian Journal of Women and the Law by T. Hawkins.

 

Posted in Acts of Violence, Criminal Law, Deaths, Sisters In Other Nations | Comments Off on Canadian Journal of Women and the Law/ Revue Femmes et Droit: Issue on Missing and Murdered Women Indigenous Women Conference/Symposium sur Meurtres et disparitions de femmes et de filles autochotones