An Ode to the Marketplace, in a “Go Girl” Friendly Wrapper

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I am a tax lawyer.  I spend much of my academic time thinking about wealth and its opposites.  I read Forbes.  I read the Forbes 100 list. In short: I’m inclined to be curious about articles that cover the marketplace, broadly construed.

My cynical self couldn’t help a little chuckle in response to the Financial Advisor magazine’s gush over “The Nation’s Richest Self-Made Women” (here).  I love that the article focused on women; I love that the article focused on self-created (as opposed to inherited) wealth.  But something about the chirpy, upbeat tone of the article struck me as slightly…off.  I can’t quite identify what made me uneasy or unsatisfied. Maybe it’s just that much of the business press is too surface-level, and that was more obvious in this article.

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CFP: Special Edition of “Laws” Edited by Margaret

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Professor Margaret Thornton (Australia National University) will be guest-editing a special edition of the journal Laws, the international, peer-reviewed open-access journal published by MDPI (based on Basel, Switzerland). Here is the CFP:

The aim of this Special Issue is to highlight the continuing relevance of feminist legal theory (FLT). Contributors are invited to engage with the vexed issues of the time that disproportionately impact women. These include not only the turning away from equality and social justice as a result of the neoliberal embrace, but also the roll-back of pro-feminist initiatives by right-wing governments, such as those of the Trump Administration.  Contributors are at liberty to narrow their focus to a single issue or jurisdiction, as they wish. The only caveat is that the author makes a worthy contribution to the reappraisal of the place of FLT in contemporary scholarship.

In response to the Second Wave Feminism of the late 20th century, feminist legal scholars challenged conventional ways of thinking about law. They have exposed the claims to universality, objectivity, and neutrality of legal positivism as partial and masculinist. Their scholarly endeavors have led to feminist legal theory (FLT) being included in the curricula of many law schools and receiving the endorsement of the academic gatekeepers.

Nevertheless, the honeymoon period was short-lived, because of the ascendancy of neoliberalism. This led to the commodification of higher education, ever-increasing tuition fees, and pressure on universities to produce job-ready graduates to serve the new-knowledge economy. Students then began to say that they no longer wanted FLT on their testamurs, lest it harm their chances in the job market.

The demise of FLT was accompanied by a backlash against feminism and the popular asseveration that we now inhabit a post-feminism age. However, the “post” in post-feminism is ambiguous, as it can mean either that feminism is passé or that it signals a new beginning. The point is that issues such as violence against women, femicide, and sexual harassment have never gone away. Indeed, the world-wide “#MeToo” movement is a powerful reminder of the continuing relevance of feminism.

This Special Issue is intended to show that, far from being a spent force, FLT is a vital means of making sense of the rapidly changing world of the 21st century, which includes a distinctly anti-feminist as well as a pro-feminist dimension. This gives contributors considerable scope to write on a topic and perspective of their choice. Neoliberalism itself is a fertile field in light of its marked reaction against the central feminist values of collective action, equality, and social justice, in favor of individualism and promotion of the self. The impact of the rise of right-wing movements in many parts of the world, including the United States, also has profound ramifications for feminism. To take into account global diversity, specific country perspectives on prevailing sexual politics are encouraged.

The possibilities for innovative scholarly work are endless. The conjunction of neoliberalism and moral conservatism may therefore have given FLT an adrenalin shot in the arm. I very much look forward to receiving a submission from you.

Manuscript submission details are here.  The deadline for manuscript submissions is September 1, 2019.

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Female Law Professors’ Letter to Senators re Kavanaugh Nomination

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A group of female law professors have drafted a letter to the Senate expressing concern over the Kavanaugh appointment.  The letter has been covered by the (UK) Guardian here.  The full text of the letter is as follows:

Dear Senators:

We are a non-partisan group of women law faculty from across the nation charged with training our students to become ethical lawyers and leaders of the bar. We believe in and embrace the Supreme Court and all that it represents – judicial independence, fair-mindedness, and justice and equality under the law. On a daily basis, we teach our students about the importance of the rule of law, impartiality on the part of judges in the United States’ legal system, and professionalism as a mandate for attorneys and judges.

Judicial professionalism is not an abstract ideal. At a minimum, judicial professionalism includes respecting and listening to parties who come before the bench, exercising honesty and integrity, and the ability to control one’s temper. The ABA Model Code of Judicial Conduct and the Code of Conduct for United States Judges give guidance to judges on how to perform their duties with impartiality and integrity. These characteristics are the building blocks of a fair and just legal system. They were, however, absent from Judge Brett Kavanaugh’s opening statement and testimony before the Senate Judiciary Committee on September 28, 2018. We are deeply concerned that if Judge Kavanaugh is confirmed, he will fail to perform his duties in a manner befitting our highest Court. For these reasons, we urge you to vote against Judge Kavanaugh’s nomination to the Supreme Court of the United States of America.

Canon 2 of the Code of Conduct for United States Judges requires that “[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Manifestations of bias or prejudice with respect to gender and political affiliation are inconsistent with Canon 2.

Judge Kavanaugh demonstrated disrespect towards Democratic senators vested with the constitutional authority to assess his ability to serve on the Supreme Court of the United States. He continually interrupted, speaking in a tone that was inappropriate given the seriousness of the proceedings. His condescension was especially evident in his responses to the questions of women senators. One of the worst instances of such behavior was exhibited when Senator Amy Klobuchar asked the Judge whether his drinking meant that he could not remember events. He responded, “You’re asking about blackout. I don’t know, have you?”

Judge Kavanaugh’s lack of respect for our democratic institutions, and for women in positions of power in particular, revealed that he does not have the requisite judicial temperament. We would never allow our students to engage in such conduct even in mock proceedings or the classroom. If the venue for Judge Kavanaugh’s conduct had been a courtroom, a judge might have found him in contempt.

Many of us have participated on search committees for faculty members, deans, provosts, university presidents, and other positions. If job candidates refused to answer probative questions and side-stepped with stock answers about their pedigrees and accomplishments, their behavior would leave us with serious questions about their honesty and credibility.

We are not alone in our assessment of Judge Kavanaugh. Although the Judge has cited the ABA’s endorsement of his nomination in 2006, the ABA actually downgraded the Judge from well-qualified to simply qualified, in part, because of his temperament and concerns about his “ability to be balanced and fair.”

We doubt that Judge Kavanaugh can be impartial. In his lengthy opening remarks during the Senate hearing, he stated:

This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

For over two centuries, Supreme Court justices have set aside their political views to evaluate claims and render rulings that advance the rule of law and reflect changes in our society.  Judge Kavanaugh’s pointed remarks suggest he does not have the capacity to give fair consideration to all cases.

We urge you to reject Judge Kavanaugh’s nomination to the Supreme Court of the United States of America. Judge Kavanaugh has shown that he is unable to respect women in positions of power, manifests bias with respect to gender and political affiliation, does not meet basic standards of professionalism, and lacks independence, impartiality, and judicial temperament.

Principal drafters of the letter, signing in an individual capacity, are Felice Batlan (Chicago-Kent College of Law), Kathleen Engel (Suffolk University Law School), Karla McKanders (Vanderbilt University Law School), Teri McMurtry-Chubb (Mercer University School of Law), Jennifer D. Oliva (West Virginia University) and Mae C. Quinn (University of Florida Levin College of Law).

Additional signatories are welcome until Friday. Please contact any of the drafters for more details on how to add your name.

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Ethics Complaint Filed Against Judge Kavanaugh

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Professor Vernellia Randall

Feminist Law Prof Vernellia Randall (Dayton) has filed in the United States Court of Appeals for the District of Columbia Circuit an ethics complaint against Judge Kavanaugh on the grounds that his partisan statements and his behavior before Congress call into question Kavanaugh’s ability to be an impartial member of the Federal circuit court and Supreme Court . The complaint specifically refers to, among other things, this portion of the Code of Judicial Conduct, District of Columbia Courts (2018):

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

A full copy of the Professor Randall’s complaint is here.

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Law Professors’ Letter on Kavanaugh’s “Judicial Temperament”

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The Huffington Post features a short write-up of the letter signed by over 500 law professors expressing concern about Judge Kavanaugh’s lack of judicial temperament.  Here is an except of the HuffPo piece.

More than 500 law professors from nearly 100 law schools around the nation have signed a letter to the U.S. Senate to say that the volatile temperament Supreme Court nominee Judge Brett Kavanaugh displayed on Thursday as he testified before the Senate Judiciary Committee disqualifies him from sitting on the nation’s highest court.

“We regret that we feel compelled to write to you to provide our views that at the Senate hearings on Thursday, September 27, 2018, the Honorable Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land,” the letter says.

The full piece is here. A copy of the letter is here.

The full law professors’ letter, with the list of signatories, is here.  Additional sign-ons are welcome until Thursday at noon Eastern.  If you’d like to sign the letter, directions for adding your name are here.

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The Senate Responds to Kavanaugh’s Accusers

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Dr. Christine Blasey Ford’s accusation that Judge Brett Kavanaugh sexually assaulted her when they were both in high school has turned Kavanaugh’s judicial confirmation into an extremely polarizing political issue.

In the midst of the #metoo movement, Dr. Ford’s accusation (and the two others that have followed) has brought the issue of prevalence of sexual assaults back into the limelight and political officials’ responses to the accusations have varied widely, leading to a new trending Twitter hashtag: #WhyIDidntReport.  A hearing is set for this Thursday – both Ford and Kavanaugh are scheduled to testify – and it remains uncertain what the vote will be.

Because the midterms are approaching, several Senators’ future political careers are at stake and the media has been pressuring them to make a statement on Kavanaugh’s nomination and his now-multiple accusations of sexual assault.  It is the Senate that will determine whether Kavanaugh is confirmed.  What follows is a summary of every Senator’s response to the sexual assault accusations against Kavanaugh, gathered through media interviews or social media postings.  They have been grouped into six categories: (1) believes Ford and calls to investigate, (2) unsure but calls to investigate, (3) Ford is mistaken, (4) Ford is lying, (5) doesn’t care if it’s true, and (6) no response.  In addition, the Senators who are up for re-election are noted with an asterisk.

Murkowski, Lisa – (R – AK): Doesn’t know and investigate.

Sullivan, Dan – (R – AK): Doesn’t know and investigate. 

Jones, Doug – (D – AL): Doesn’t know and investigate.  

Shelby, Richard C. – (R – AL): Doesn’t know and investigate. 

Boozman, John – (R – AR): No response. 

Cotton, Tom – (R – AR): Doesn’t care.

*Flake, Jeff – (R – AZ): Doesn’t know and investigate.

Kyl, Jon – (R – AZ): Doesn’t know and investigate.

*Feinstein, Dianne – (D – CA): Believe and investigate. 

Harris, Kamala D. – (D – CA): Believe and investigate. 

Bennet, Michael F. – (D – CO): Believe and investigate. 

Gardner, Cory – (R – CO): Doesn’t know and investigate 

Blumenthal, Richard – (D – CT): Believe and investigate. 

*Murphy, Christopher – (D – CT): Doesn’t know and investigate.  

*Carper, Thomas R. – (D – DE): Doesn’t know and investigate. 

Coons, Christopher A. – (D – DE): Believe and investigate.  

*Nelson, Bill – (D – FL): Doesn’t know and investigate. 

Rubio, Marco – (R – FL): Doesn’t care.

Isakson, Johnny – (R – GA): No response.

Perdue, David – (R – GA): Doesn’t know and investigate.

*Hirono, Mazie K. – (D – HI): Believe and investigate. 

Schatz, Brian – (D – HI): No response.

Ernst, Joni – (R – IA): She’s lying.

Grassley, Chuck – (R – IA): Doesn’t know and investigate.

Crapo, Mike – (R – ID): No response.

Risch, James E. – (R – ID): No response.

Duckworth, Tammy – (D – IL): Believe and investigate.

Durbin, Richard J. – (D – IL): Believe and investigate.

*Donnelly, Joe – (D – IN): Doesn’t know and investigate. 

Young, Todd – (R – IN): No response.

Moran, Jerry – (R – KS): Doesn’t know and investigate.  

Roberts, Pat – (R – KS): Doesn’t know and investigate. 

McConnell, Mitch – (R – KY): Doesn’t care. 

Paul, Rand – (R – KY): Doesn’t care. 

Cassidy, Bill – (R – LA): She’s lying.

Kennedy, John – (R – LA): Doesn’t know and investigate.

Markey, Edward J. – (D – MA): Believe and investigate.

*Warren, Elizabeth – (D – MA): Believe and investigate.

*Cardin, Benjamin L. – (D – MD): Believe and investigate.

Van Hollen, Chris – (D – MD): Believe and investigate.

Collins, Susan M. – (R – ME): Doesn’t know and investigate. 

*King, Angus S., Jr. – (I – ME): No response. 

Peters, Gary C. – (D – MI): Believe and investigate.

*Stabenow, Debbie – (D – MI): Believe and investigate.

*Klobuchar, Amy – (D – MN): Believe and investigate. 

Smith, Tina – (D – MN): Believe and investigate.

Blunt, Roy – (R – MO): Doesn’t know and investigate. 

*McCaskill, Claire – (D – MO): Doesn’t know and investigate.

Hyde-Smith, Cindy – (R – MS): She’s lying. 

*Wicker, Roger F. – (R – MS): She’s lying. 

Daines, Steve – (R – MT): She’s lying.

*Tester, Jon – (D – MT): No response.

Burr, Richard – (R – NC): No response. 

Tillis, Thom – (R – NC): Doesn’t know and investigate.

*Heitkamp, Heidi – (D – ND): Doesn’t know and investigate.

Hoeven, John – (R – ND): No response.

*Fischer, Deb – (R – NE):  No response.

Sasse, Ben – (R – NE):  No response.

Hassan, Margaret Wood – (D – NH): Believe and investigate.

Shaheen, Jeanne – (D – NH): Believe and investigate.

Booker, Cory A. – (D – NJ): Believe and investigate.

*Menendez, Robert – (D – NJ): Believe and investigate.

*Heinrich, Martin – (D – NM): Believe and investigate.

Udall, Tom – (D – NM): Believe and investigate. 

Cortez Masto, Catherine – (D – NV): Believe and investigate. 

*Heller, Dean – (R – NV): Doesn’t care.

*Gillibrand, Kirsten E. – (D – NY): Believe and investigate. 

Schumer, Charles E. – (D – NY): Believe and investigate. 

*Brown, Sherrod – (D – OH): No response.

Portman, Rob – (R – OH): She’s lying.

Inhofe, James M. – (R – OK): No response. 

Lankford, James – (R – OK): (Probably) doesn’t care.

Merkley, Jeff – (D – OR): Believe and investigate. 

Wyden, Ron – (D – OR): Believe and investigate. 

*Casey, Robert P., Jr. – (D – PA): Believe and investigate.

Toomey, Patrick J. – (R – PA): Don’t know and investigate. 

Reed, Jack – (D – RI): Believe and investigate. 

*Whitehouse, Sheldon – (D – RI): Believe and investigate. 

Graham, Lindsey – (R – SC): Doesn’t care.

Scott, Tim – (R – SC): No response. 

Rounds, Mike – (R – SD): No response. 

Thune, John – (R – SD): She’s lying/confused.

Alexander, Lamar – (R – TN): She’s lying/confused.

*Corker, Bob – (R – TN): She’s lying.

Cornyn, John – (R – TX): She’s lying.

*Cruz, Ted – (R – TX): Doesn’t know and investigate.

*Hatch, Orrin G. – (R – UT): She’s lying.

Lee, Mike – (R – UT): No response. 

*Kaine, Tim – (D – VA): Believe and investigate. 

Warner, Mark R. – (D – VA): Believe and investigate.

Leahy, Patrick J. – (D – VT): Believe and investigate.  

*Sanders, Bernard – (I – VT): Believe and investigate.

*Cantwell, Maria – (D – WA): Believe and investigate.

Murray, Patty – (D – WA): Believe and investigate.

*Baldwin, Tammy – (D – WI): Believe and investigate.

Johnson, Ron – (R – WI): Doesn’t know and investigate.

Capito, Shelley Moore – (R – WV): She’s lying.

*Manchin, Joe, III – (D – WV) Class I: Doesn’t know and investigate.

*Barrasso, John – (R – WY): Doesn’t know and investigate.

Enzi, Michael B. – (R – WY): Doesn’t know and investigate.

-JoAnn Sweeny and John Slack

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Law Professors’ Letter Regarding Methods Used to Evaluate Kavanaugh Allegations

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More than 250 law professors with expertise in gender violence sent a letter to the Senate Judiciary Committee, expressing our “profound concern” regarding the methods of evaluation of the allegations of Judge Kavanaugh’s sexual misconduct. The full text of the letter is copied below the fold. (Thank you to Julie Goldscheid who is the letter’s primary author.) It may be helpful to remind readers of the 2015 national survey of more than 900 advocates and service providers regarding police response to sexual assault & IPV available here.  The survey results demonstrate the many reasons women do not report sexual assault to police.

[A full copy of the letter is also available here. – Ed.]
Continue reading

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Women’s Court of Canada Act and Rules @IISJOnati

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Melinda Buckley is publishing Women’s Court of Canada Act and Rules in the Oñati Socio-Legal Series. Here is the abstract in English and Spanish.

English Abstract: This paper explores the issue of how a feminist court could operate through the device of a model statute and rules for the Women’s Court of Canada. The Women’s Court of Canada is a feminist legal project bringing together academics, activists, and litigators to ‘rewrite’ Canadian Charter of Rights and Freedoms equality jurisprudence. Over the course of more than a decade, the members of this virtual ‘court’ have reconsidered leading equality rights decisions, rendering alternative judgments with the aim of articulating fresh conceptions of substantive equality in judgment form. Here, the author takes a step away from the substance of equality rights law to focus on legal institutions and procedure.

Spanish Abstract: El presente artículo profundiza en la cuestión de cómo podría funcionar un tribunal feminista mediante unos estatutos tipo y unas normas para el Tribunal de Mujeres de Canadá. El Tribunal de Mujeres de Canadá es un proyecto jurídico feminista que reúne a académicas, activistas y abogadas, quienes ‘reescriben’ la jurisprudencia sobre igualdad de la Carta Canadiense de los Derechos y las Libertades. Durante más de una década, los miembros de este ‘tribunal’ virtual han cuestionado sentencias con el objetivo de articular concepciones nuevas de igualdad sustantiva en forma de sentencia. La autora de este artículo se distancia de lo sustantivo de las leyes sobre derecho a la igualdad y se centra en las instituciones jurídicas y el procedimiento.

Download the article from SSRN at the link.

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Murray on “Epistemic Injustice in Puerto Rico”

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Yxta Maya Murray (Loyola LA) has posted to SSRN her article “FEMA Has Been a Nightmare”: Epistemic Injustice in Puerto Rico, forthcoming in the Willamette Law Review.  Here is the abstract:

The continuing disaster in Puerto Rico, caused by the ravages of Hurricane Maria and federal inattention, cannot be understood without looking at the interrelated problems of power, bias, and epistemology.

Federal power and bias determined which dangers in Puerto Rico would be recognized by government officials, and which would be deemed too indeterminate to plan for and respond to: In the days following Maria’s assault on the island on September 20, 2017, officials such as FEMA’s Administrative head Brock Long, President Donald Trump, and several U.S. senators defended against accusations of an inept and paltry federal aid response by citing “logistics” and Puerto Rico’s location within a body of “big water,” indicating that the island’s topography and physical situation proved so epistemically inaccessible to them – so uncertain — that they could not organize an effective relief response. I call this the federal government’s “uncertainty defense.”

Furthermore, the government’s putative uncertainty about Puerto Rico’s physical features bled into its on-the-ground engagement with its residents: Interviews with residents and responders reveal that FEMA sent to Puerto Rico personnel that 1) did not speak Spanish, 2) used technology to communicate with victims even though poor Puerto Ricans did not have access to intelligent devices and the power grid had been down since September 20, 3) gave out food boxes containing items laden with sugar and salt to victims with heart disease and diabetes, 4) did not reach people in mountainous regions, and 5) could not foresee that the elderly would constitute an especially vulnerable population. This means that Puerto Ricans’ culture, health, and patterns of living were regarded as indeterminacies that the federal government found impossible to calculate and so cope with after the storm.

However, insofar as President Trump and Administrator Long seek to marshal an uncertainty defense to explain their failure to provide meaningful aid to Puerto Ricans, their effort fails. An eloquent legal literature that deals with problems of epistemology and disaster exists, and has been written by Dan Farber, Cass Sunstein, and Robert Verchick. These scholars all define when hazards are discernible, and when they veer so beyond human ken as to become “uncertainties” that become impossible to strategize around in the event of a catastrophe. Their work helps us understand that the factors that Trump and Long characterized as unplannable logistics were not uncertainties at all, but rather “known knowns” that could have been calculated and planned for long in advance of the hurricane.

The real reason that Puerto Rico’s topography and people proved unfathomable to federal officials had nothing to do with their enigmatic qualities, but grew out of a phenomenon called “epistemic injustice,” which has been limned by the philosopher Miranda Fricker.

Deadly epistemic uncertainty did exist in Puerto Rico, however. While uncertainty and risk theorists usually gauge uncertainty from the perspective of governmental decision makers, uncertainty can be detected among the victims themselves: I call this victim uncertainty, and argue that it was caused by the government’s acts of epistemic injustice. Puerto Rican victims of Hurricane Maria experienced uncertainty because they could not predict that the government would prove so psychologically blind to their island’s basic features, and to their status as human beings with a particular culture and set of demographics, that its agents would not be able to help them when the time came. This uncertainty bolstered what is known in psychological writings as “uncertainty paralysis:” Victims’ uncertainty paralysis hampered their abilities to make the crucial decisions of whether to wait for government relief or engage in self-help during the exigencies of the storm.

Like the disaster of Hurricane Katrina and the lack of care that led to so many deaths in New Orleans in 2005, the repercussions of Puerto Rico 2017 will be felt for a long time. In this article, I argue that the government must attend to the problems of power and epistemology revealed by Hurricane Maria: It should do so by listening to the stories of subordinated populations, such as those in Puerto Rico, in order to understand whom they will be helping in foreseeable future disasters, and how to do so.

In this article, I set forth interviews with residents and responders in order to highlight the failures of the U.S. response in the fall of 2017. These interviews illustrate the deadly ways in which the government perpetuated epistemic injustice in the days before and after the storm, and how the victims themselves consequently experienced dangerous epistemic uncertainty. I also set forth recommendations for the critical narrative gathering necessary for transforming government “uncertainties” about subordinated populations into recognized facts: These may take place under the auspices of the Stafford Act, which authorizes the President to send federal agencies (including FEMA) to disaster zones, as well as FEMA policy.

The full article is available here.

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Irina Manta on “Tinder Lies”

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Irina Manta (Hofstra) has posted to SSRN her article Tinder Lies, forthcoming in the Wake Forest Law Review (2019).  Here is the abstract:

The rise of Internet dating — in recent years especially through the use of mobile-based apps such as Tinder, Bumble, or Hinge — forces us to re-examine an old problem in the law: that of how to handle sexual fraud. Many people with romantic aspirations today meet individuals with whom they do not share friends or acquaintances, which allows predators to spin tales as to their true identities and engage in sexual relations through the use of deceit. Indeed, according to some studies, about 80% of individuals lie on at least some part of their online dating profiles, and a subset of those individuals tell lies that undermine the foundation of their sexual mates’ subsequent ability to give consent. Whether or how to criminalize this type of fraudulent behavior has been debated for some time, and the difficulties involved in prosecutions in this context have made the criminal law a fairly ineffective tool. Previous proposals for tort recovery have failed to gain many adherents for similar reasons. This Article seeks to strike a new path by proposing, first, that we harness the tools of trademark law to reduce search costs and deception in the dating marketplace just like we do in the economic marketplace. Second, it argues that we should use a streamlined process through small claims courts to discourage behaviors that may bring significant dignitary, emotional, and other harms to people’s lives. Last, it proposes the use of statutory damages to alleviate the difficulties in accurately gauging the remedy level for the harm from a given instance of sexual fraud. By providing recovery in cases of material lies like trademark law does in cases involving deceptive marks, this Article takes an important step toward aligning the legal framework of sexual fraud with those of other types of misrepresentation, incentivizing transparency in the increasingly murky dating world, and protecting individuals’ ability meaningfully to consent to sexual relations.

The full article is available here.

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Welcome to the Blogroll, 3 Additional Feminist Law Profs!

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Welcome to these colleagues, newly added today!

Our blog roll ranks are increasing.  If you’re a full-time law prof and wish to be listed as a self-identified feminist law professor, whatever that means to you, please reach out to me at bcrawford at law dot pace dot edu.

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CFP: New Trusts & Estates Collaborative Research Network of Law and Society Association

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Trusts & Estates Collaborative Research Network

Law and Society Association

Call for Participation – Deadline October 8, 2018

[feminist scholarship warmly invited! –  Ed.]

Organizers of the newly-formed Trusts & Estates Collaborative Research seek proposals that explore any aspect of the law, practice or effects of trusts and estates, broadly defined. Successful proposals likely will bear in some waimage from www.google.comy on succession (also referred to as inheritance) and/or wealth transfers (whether at death or during lifetime, outright or in trust). Subjects of inquiry may involve any aspect of government or social policy with respect to trusts, estates, inheritance, wealth transfer, equity or courts with jurisdiction over these issues.

If you would like to present a paper as part of a Trusts and Estates CRN panel, please  submit a 500-word abstract by Monday, October 8, 2018 at 5:00 p.m. GMT to the CRN chairs, Professor Bridget Crawford (bcrawford at law dot pace dot edu) and Professor Kate Galloway (kgallowa at bond dot edu dot au). The CRN chairs will then attempt to organize the papers into panels with cohesive themes.

Our goal is to stimulate focused discussion of papers on which scholars are currently working.  We welcome participation from scholars working in any discipline, language, or country.  Although you may submit a proposal to present a paper that is closer to publication, we are especially interested in receiving proposals for works-in-progress that will benefit from discussion that the panels will provide. We welcome participation of junior scholars, those who are untenured or in non-tenure positions, and advanced graduate students, as well as more experienced scholars.

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

If you would like to submit a pre-formed panel, with a chair already named, and affiliate your panel with the Trusts and Estates CRN, please also email the CRN chairs.

In addition to individual paper presentations (to be organized into panels) and pre-formed panels, we also welcome programs that fit other formats permitted by Law and Society such as author-meets-reader sessions, salon sessions, and roundtable session.  If you have an idea that you think would work, we welcome hearing from you with a 500-word proposal.

Please note that LSA rules limit you to participating only once, either as a paper panelist or as a roundtable participant.

We will give preference to proposed Trusts and Estates CRN panelists/participants who agree also to serve as a discussant or discussant/chair for another Trusts and Estates CRN panel (those appearances do not “count” for purposes of the 1 appearance rule). Please indicate your willingness to do so in your proposal.  Your volunteering will help us to create and sustain a supportive global community of trusts and estates scholars. We will take into account expertise and topic preferences. Chairs organize the logistics of the panel, as well as moderate at the conference. Chairs will develop a 100-250 word description of the panel for inclusion in the Law and Society program. Discussants will read at least one assigned paper and prepare a short commentary to offer feedback and serve as a basis for discussion among the panelist and audience members. There may be multiple discussants for the same panel, especially if we are able to create panels that include multi-national perspectives.

Those selected by the Trusts and Estates CRN for participation in a panel or program will be informed no later than October 22, 2018.  Each participant will then need to register through the Law and Society system no later than November 7, 2018 using the panel number we assign.

500-word proposals to participate in a program sponsored by the Trusts and Estates CRN are due Monday, October 8, 2018 at 5:00 p.m. GMT to the CRN chairs, Professor Bridget Crawford (bcrawford at law dot pace dot edu) and Professor Kate Galloway (kgallowa at bond dot edu dot au).

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CFP: Law, Culture & Humanities 2019, Ottawa, Canada

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From the FLP mailbox:

We are pleased to announce that the Twenty-Second Annual Meeting of the Association for the Study of Law, Culture and the Humanities will be held at Carleton University, Ottawa, Canada on March 22-23, 2019. The event is co-sponsored by The Pauline Jewett Institute of Women’s and Gender Studies, Carleton University and the University of Ottawa. Information regarding the pre-conference Graduate Student Workshop will follow shortly.

We welcome quality proposals on any topic related to law and legal studies. We warmly welcome proposals on all topics, and are particularly interested in proposals addressing the intersections between gender, sexuality, race and law.

All proposals are due Wednesday, October 15, 2018.

Individual proposals should include title and an abstract of no more than 250 words.

We also welcome proposals for panels, roundtables, and streams (two panels on one theme). Panels should include three papers (or, exceptionally, four papers). Specify a title and a chair of your panel. The panel chair may also be a panel presenter. It is not necessary to write an abstract or proposal for the panel itself. To indicate your pre-constituted panel, roundtable, or stream, please ensure that individual registrants provide the name of the panel and the chair in their individual submissions on the registration site. All panel, roundtable, or stream participants must make an individual submission on the registration site.

All proposals must be submitted on this website.

Notifications will be sent by mid-December, 2018.

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How Much Do “Free” Tampons Cost? #MenstrualCapitalism and Examples from New York State

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Spurred by legislation introduced by New York State Assemblymember Linda Rosenthal, that state adopted a law that requires public schools to provide free menstrual hygiene products for students in grades 6-12.

In April, 2018, Governor Andrew Cuomo tweeted the news: “Schools in New York State will now be required to provide free menstrual products in restrooms for girls in grades 6 through 12. Menstrual products are as necessary as toilet paper and soap, but can be one expense too many for struggling families.”

Governor Cuomo conveniently left out of his tweet that the mandate is unfunded. In other words, school districts must figure out how to pay for these menstrual hygiene products.

Earlier this week, the Rochester (New York) Democrat & Chronicle reported (here) on what that has meant, in dollars and cents, for some upstate school districts:

The startup costs for having dispensers in bathrooms are thousands of dollars for local school districts.

The upkeep cost implications won’t be known until the machines are being used by the students, said Gates Chili Superintendent Kimberle Ward.

Districts will need to find the money in their budgets this year to comply, Laural Heiden, a spokesperson for Greece Central School District, explained. Greece has spent $8,700 on the purchase of dispensers alone, Heiden said.

Webster Central School District spent about the same. Webster purchased 24 feminine hygiene product dispensers totaling about $8,800. * * *

The East Rochester Union Free School District has its 12 dispensers ready to go. The project cost about $3,700 in materials and $280 in labor, said David Green, assistant superintendent for finance and operations.

The Honeoye Falls-Lima Central School District is similar to other local schools that worked to get the machines and products installed before the first day of school, according to spokesperson Leah Shepard. Their process started in June and will cost the district about $3,000. * * *

About 42 percent of children in New York live in low-income families, and a monthly supply of feminine hygiene products can be expensive for struggling families.

The need is real. No doubt, this change will help thousands of low-income individuals and families. But to completely analyze the impact of the legal change, it is worthwhile to consider who bears what cost.

Consider the example of Yonkers, a city just outside New York City that I pass through every day on my way to work (and a place with a long history of segregation in housing and education).  The Yonkers school district serves 27,000 students and has 39 schools, according to its website (here). According to local news reports (see here, e.g.), the Yonkers Board of Education approved spending $37,474 for the installation of dispensers installed in 175 restrooms. That’s a cost of just over $214 per restroom.

The larger expenditure will be for the products that fill the dispensers. LoHud.com reports (here) that the Yonkers Board of Education estimates that the supplies will cost $125,000 to $200,000 annually, depending on the rate of consumption.  Let’s assume that only half (or 13,500) of the 27,000 students in the City of Yonkers are in 6th through 12th grades, and only half of those students (or 6,750) menstruate. That means the school district’s estimated spending, at the high end, is just over $29 per year for each menstruating student.

Is that a good “deal” for the school district, or not?

Consider the cost of a box of pads. To take one example, on Amazon, a box of 88 Always Ultra Thin Long/Super Unscented pads costs $21.93 (or, about 25 cents per pad).  Assuming tax and transaction costs out of the equation (be still my tax teacher’s heart!) and the use of 4 pads a day for 7 days every month for 12 months, the annual cost to the retail consumer would be $84.  Certainly, there are brands and products that cost less than 25 cents per pad or tampon.  Some women may need more or fewer or different products.  But just as a ballpark, it looks like the estimate by the Yonkers Board of Education is not unreasonable.

So how much will those “free” tampons cost?  About $29 per year per student. Who bears the cost? The taxpayers, as is true with most expenses by the school district.

My guess is that we will begin to see schools seeking to reduce costs by partnering with manufacturers that will agree to a reduced payment from the schools in return for “product placement.” There’s nothing wrong with that.  But it’s good to be aware of what I call menstrual capitalism (see here, here, here and here, e.g.).  Menstrual capitalism is the complex interaction of the market economy and profit-seeking behavior, on the one hand, and apparent philanthropic, benevolent or even feminist support of menstrual equity efforts, on the other.  The two sides of the issue can and do co-exist; I have no critique of that. But often, the philanthropic/benevolent/feminist position may be used to obscure or even deny traditional profit-seeking activity. That is a complex interaction worthy of further examination.

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CFP: Literature and International Law at the Edge

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From the FLP mailbox:

Call for Papers: Literature and International Law at the Edge

New York City, December 14/15, 2018

Abstracts/proposals due by October 31, 2018

The past decade has seen a steady increase in interdisciplinary scholarship interested in the relationships between literature and international law. Much of this scholarship has remained deeply rooted in the home disciplines of the scholars, who not only operate with the prevailing assumptions and methodologies of those disciplines, but also tend to treat the other disciplines as stable and unproblematic. Moreover, while claiming to tell a global history, that scholarship largely repeats the Eurocentric bias that has historically characterized the fields of comparative literature and international law. In fact, much of the new scholarship on comparative literature and international law not only fails to take account of imperialism and its histories in the formation of disciplinary knowledge, it also tends to marginalize events and thinkers at the colonial and global edges, ignoring their roles as actors and agents of literary and legal world-making. In doing so, this new scholarship seems to be replicating the traditional prejudices of its contributing disciplines.

Through a series of events to be held in 2018 and 2019 (in, amongst other places, New York, London and Nairobi) this project aims to explore the imbrications of literature and international law at the edges. The project seeks to challenge many of the basic disciplinary blindnesses and Eurocentric assumptions that have characterized the emerging conversation by putting the Global South at the center of our interdisciplinary inquiry.

For a day-long workshop/conference, to be held in New York City on December 14/15, 2018, we are seeking contributions that:

– Explore interdisciplinary interfaces among literary, historical, and legal studies, and from positions of geo-historical marginalization across the Global South.

– Address the intersections between particular texts of “world literature” and Third World Approaches to International Law.

– Map the theoretical and historical relationships between comparative literature and international law as world-making, world-imagining, and world-governing regimes.

– Trace the historical global flows of knowledge at the “margins” of world literary and legal space that have been overlooked in the canonical and narrow focus of the separate disciplines, as well as new flows of global knowledge among the disciplines and across (and about) the Global South.

– Consider how the basic assumptions and doctrines of international law and comparative literature (e.g., sovereignty, self-determination, territoriality, equality of states, ethno-cultural nationalism, national languages, and rights to natural and cultural resources) were worked out historically in the Global South.

Please email short proposals/abstracts/inquires by 31 October 2018 to: iL.Lit.events@gmail.com

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Pruitt on “The Women Feminism Forgot: Rural and Working-Class White Women in the Era of Trump”

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Feminist law prof Lisa Pruitt (UC Davis) has posted to SSRN her article The Women Feminism Forgot: Rural and Working-Class White Women in the Era of Trump, forthcoming in the University of Toledo Law Review.  Here is the abstract:

This article, based on a keynote address delivered at the University of Toledo Law Review Symposium “Gender Equality: Progress and Possibilities,” takes up the task of theorizing gendered aspects of the current chasm between progressive elites on one hand and rural and working-class whites on the other. Pruitt offers observations that aim to cultivate empathy and ultimately temper elite derision toward

Professor Lisa Pruitt

these populations. The article also lays the groundwork for robust consideration of how feminist legal theory has failed rural and working class white women. Perhaps most importantly, Pruitt begins to think practically about what progressive feminists can and should do to bridge the current divide and, in so doing, cultivate a broad, inclusive sisterhood that better transcends spatial, racial, and socioeconomic differences.

The article proceeds by outlining evidence of our nation’s burgeoning metro-centricity, as well as our ongoing denial of and inattention to issues of socioeconomic disadvantage when they intersect with white skin privilege. Pruitt offers these observations with special attention to the context of the legal academy and legal scholarship. Part II discusses how this neglect of white working-class and rural populations evolved into disdain during the 2016 election season and has hardened into contempt in the era of Trump’s presidency. Part III is a brief overview of socioeconomic and public health trends among these increasingly vulnerable populations, with a particular focus on what has been happening to rural and working class white women since Pruitt began writing about them more than a decade ago. Part IV summarizes what we know about the female vote in election 2016, with some attention also to gendered voting patterns in the special election for the Alabama U.S. Senate seat in 2017. Part V digs into media profiles of female Trump voters, which reveal some themes Pruitt has addressed in prior work, including the understudied and widely ignored tension among various strata within what is broadly perceived as a monolithic white working class. This part also scratches the surface of a major issue in the wake of the 2016 election: the liberal elite tendency to label as “racist” anyone who voted for Trump, as well as the disconnect between this usage and many communities’ far less capacious understanding of the term. Before concluding with thoughts on how to bridge the divide between elites and the white working class, Pruitt uses a personal story (à la Hillbilly Elegy) in an effort to humanize female Trump voters. The postscript holds up the successful West Virginia teachers’ strike of 2018 as a model for cross-class coalition building.

The full article is available here.

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Welcome to the Blogroll, 8 Additional Law Profs!

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Feminist Law Profs is pleased to add to the blogroll 8 more colleagues.  Some are new to the academy. Some are long-time teachers, scholars and friends.  All self-identify as feminists, whatever that means to them.

Our blog roll ranks are increasing.  If you’re a full-time law prof and wish to be listed as a self-identified feminist law professor, whatever that means to you, please reach out to me at bcrawford at law dot pace dot edu.

Welcome to these colleagues, newly added today!

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Research Fellowships at Harry Random Center at UT Austin

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From the FLP mailbox:

The Harry Ransom Center at The University of Texas at Austin invites applications for its 2019­-2020 research fellowships.

Ten dissertation fellowships and up to 50 postdoctoral fellowships will be awarded for projects that require substantial on-site use of its collections. The fellowships support research in all areas of the humanities, including literature, photography, film, art, the performing arts, music, and cultural history.

The deadline for applications, which must be submitted through the Center’s website, is November 15, 2018, 5 p.m. CST. Applicants, with the exception of those applying for dissertation fellowships, must have a Ph.D. or be independent scholars with a substantial record of professional achievement.

The fellowships range from one to three months, with stipends of $3,500 per month. Travel stipends and dissertation fellowships provide stipends of $2,000. International fellows receive an additional $500 stipend to offset visa and travel costs. Applicants will be notified of decisions on March 31, 2019.

Fellowship residencies may be scheduled between June 1, 2019, and August 31, 2020. During the fellowship, scholars will work on-site at the Ransom Center in Austin, Texas.

Fellows will become part of a distinguished group of alumni. Since the fellowship program’s inauguration in 1990, the Ransom Center has supported more than 1,200 research projects.

For details and application instructions, visit here.

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New Children’s Book: “My Mom Has Two Jobs”

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I recently took a break from writing law review articles to publish my first children’s picture book, which celebrates working moms — including lawyer moms. The book is titled, My Mom Has Two Jobs.

I had the idea for this book after returning from maternity leaves and struggling to find children’s books that could help my kids process my return to work in a positive and inspiring way. My Mom Has Two Jobs gives women a platform to talk with their kids about their work, and to help kids see how moms bring the the same love, passion, and dedication to both their parenting jobs and their professional jobs.

On each page of the book, children proudly describe how their moms care for them in a special way, while also making the world better through their careers. The book highlights moms in a wide range of professions, including a lawyer, teacher, engineer, police officer, doctor, secretary, dentist, firefighter, nurse, waitress, military sergeant, veterinarian, and pilot. The book is illustrated to embrace diverse moms and kids of different races and ethnicities and to show the wide range of important roles that women play.

For more information about the book, please see here.  To purchase the book, please visit DartFrog Books here.

-Michelle Travis

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CFP: Psychology of Women and Equalities Review Special Issue – Feminisms and Leadership

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From the FLP mailbox:

Call for Papers: Psychology of Women and Equalities Review Special Issue –  Feminisms and Leadership

‘Leadership’ is a highly regulative practice, and is pervasive in our personal and political realms. Under late capitalism, academic and popular discourse continues to represent leadership in gender essentialist terms, through the figure of the ‘great man’. Notions of the ‘great leader’ are rarely tied to colonial domination, which consolidated leadership as the natural and legitimate enterprise of white, ‘civilizing’ masculinity (Mohanty, 2004). This is reflected in the ongoing proliferation of leadership as a marker of individual stature, and the reproduction of white patriarchal power in global corporate and political spaces.

Feminist attention has been dedicated to understanding differential leadership experiences within this highly gendered terrain. However, a wealth of feminist literature continues to promote women’s leadership in these spaces without dismantling the spaces themselves. Moreover, unchecked histories of racism, sexism, classism, and ableism function to keep notions of ‘successful’ leadership firmly within the confines of dominant globalizing forces.

The call: “Do not become the master’s tool!” (Ahmed, 2017, p. 160), inspires the commitment that we will never use the master’s tools (Lorde, 1984) to resist these forces. Following this commitment, current feminist work in psychology calls for collective feminist leadership and resistance through ‘feminist counter-publics’ (Rúdólfsdóttir & Jóhannsdóttir, 2018). More broadly, Lewis and Pullen (2018) call for the strengthening of feminist work in organizational studies, arguing: “…we have never needed it more than we do now” (p. 108).

In the spirit of these calls to action, this special issue invites feminist work that rewrites notions of ‘successful’ leadership in psychology and related academic and non-academic disciplines. Contributions may include, but are not limited to work that considers:

* Intersections of race and class, gender, sexuality, and/or disability, with leadership.
* Leadership in contexts of feminist activism, movements, and political resistance.
* Reimagining leadership in/outside of elite or corporate contexts.
* Bad or ‘toxic’ leadership.

Contributions may include original articles (up to 3000-7000 words), observations and commentaries (up to 2500 words) or creative pieces (up to 2000 words). Submissions will be subject to the usual peer review process. The deadline for submissions is January 7th 2019. Queries can be sent to editor.powsr@gmail.com Lucy Thompson (aymorluc@msu.edu<mailto:aymorluc@msu.edu>).

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Tax Law: Where the Right to Bodily Privacy Means Something?

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The Ninth Circuit ruled today that the IRS may not invoke qualified immunity for allegedly breaching the taxpayer’s Fourth Amendment right to privacy, when a (female) agent required the (female) taxpayer to use the bathroom in the taxpayer’s own home in the presence of the (female) IRS agent.

The reasoning in Ioane v. Hodges? “The agent’s general interests in preventing destruction of evidence and promoting officer safety did not justify the scope or manner of the intrusion into plaintiff ’s most basic subject of privacy, her naked body.”

The taxpayer’s husband, also under IRS investigation in the case, had been permitted by a different (male) IRS agent to use the bathroom alone.

Add this to the pile of the cases worthy of  rewriting for Feminist Judgments: Rewritten Tax Opinions – The Second Volume.

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Gonzaga Law Hiring Announcements (4) – Legal Writing; Low Income Taxpayer Clinic; Environmental Law, Health Law, Natural Resources Law, Business Law, and/or Privacy Law

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Gonzaga University (Spokane, Washington) seeks to fill up to four positions. The full job descriptions/hiring announcements (available here) are summarized below:

Up to 2 Doctrinal Hires (tenure-track faculty positions) (details here)

GONZAGA UNIVERSITY SCHOOL OF LAW seeks applicants for up to two entry-level full-time tenure-track positions beginning in the fall of 2019. Our curricular interests include at least one first-year required course as well as upper-level courses, such as Environmental Law, Health Law, Natural Resources Law, Business Law, and/or Privacy Law. Candidates must demonstrate an excellent scholarly promise and the ability to be an outstanding teacher.

This position is a full-time Assistant Professor who will teach up to two courses per semester and may teach first-year required course(s).  Law faculty provide instruction to law students, service to the law school and University, and engage with other professionals and the public to contribute to the intellectual exchange of ideas, to improve the law, and to educate the profession about the law.

Legal Writing Position (tenure-track faculty position) (details here)

This position is for a full-time Assistant Professor who will teach up to three sections of Legal Research and Writing each semester. The position is a 9-month annual position beginning August 2019. Faculty provide instruction to law students, service to the law school and University, and engage with other professionals and the public. The candidate is to contribute to the intellectual exchange of ideas to improve the law, and to educate the profession about the law.

Director of Low-Income Taxpayer Clinic (adjunct faculty position) (details here)

Law faculty provide instruction to law students, service to the law school and University and engage with other professionals and the public to contribute to the intellectual exchange of ideas, to improve the law, and to educate the profession about the law. Clinical faculty members supervise and teach students and direct the function of particular clinics within Gonzaga Law School’s Clinical Law Program. This position is dependent on a Law Income Taxpayer Clinic (LITC) grant awarded from the IRS. Gonzaga Law School has been receiving the LITC grant for over 15 years.

APPLICATION PROCEDURE (for all positions):

Gonzaga Law embraces its humanist mission of educating the whole person and preparing lawyers to serve marginalized populations in an increasingly international legal market.

To apply, please visit our website at www.gonzaga.edu/jobs . Applicants must complete an online application and electronically submit a (1) cover letter, (2) a curriculum vitae, and (3) the names and contact information for three professional references. Inquiries may be directed to the Chair of the Faculty Recruitment Committee, Professor, Ann M. Murphy at murphya@gonzaga.edu.  The position closes on November 15, 2018, midnight, PST. For assistance with your online application, call Human Resources at 509.313.5996.

Gonzaga University is a Jesuit, Catholic, humanistic institution, and is therefore interested in candidates who will contribute to its distinctive mission. Gonzaga University is a committed EEO/AA employer and diverse candidates are encouraged to apply.  All qualified applicants will receive consideration for employment without regard to their disability status and/or protected veteran status.

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Welcome to Blogroll, 25+ Additional Law Profs!

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Feminist Law Profs is pleased to add to the blogroll 25 30+ colleagues (updated 9/10/18).  Some are new to the academy. Some are long-time teachers, scholars and friends.  All self-identify as feminists, whatever that means to them.  Welcome!

We look forward to following their work and news.

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In Memoriam: Margo Shire Melli, 1926-2018

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From colleagues at Wisconsin, I just learned of the death of Feminist Law Prof Margo Melli (Wisconsin) earlier this year.  Here is an excerpt from her obituary:

Professor Margo Melli

Marygold “Margo” Shire Melli, age 91, a Voss-Bascom Professor of Law Emerita at the University of Wisconsin, died Saturday, January 6 in Madison. She was born in Rhinelander, WI in 1926 to Osborne and May R. (Bonnie) Shire. The family eventually settled in Madison where Margo attended the University of Wisconsin and was named to Phi Beta Kappa. While in Law School, she met fellow law student Joe Melli, and they were married in 1950. Despite graduating at the top of her class, as a woman, she had difficulty getting hired as a lawyer, so she took research jobs which eventually helped reform the Wisconsin child support system and reorganize the state’s court system. She began teaching at the UW Law School in 1959, becoming the first female tenure-track professor in the Law School’s history, teaching in the areas of family, juvenile and criminal law.

She served as Chair of the National Conference of Bar Examiners, Associate Dean of the Law School, Chair of the University Committee, Chair of a Chancellor’s Task Force on Gender Equity, and many, many other positions. Seriously…just too many to list!

Margo received numerous awards, including the 2013 Margaret Brent Women Lawyers of Achievement Award from the ABA Commission on Women in the Profession, honoring outstanding female lawyers who paved the way for women in the legal profession. Additionally, the Legal Association of Women established the Marygold Melli Achievement Award to recognize individuals who make outstanding contributions to the interest of women in law.

Outside of the University, she worked with A Fund for Women, Wisconsin Law Foundation, the Dane County Bar and Frank Lloyd Wright in Wisconsin. Both Margo and Joe enjoyed the arts, working with and supporting MMOCA, Tandem Press, the Madison Print Club, Madison Ballet and others. They travelled around the globe, returning with stories ranging from the driving hazards of ancient towns in Sicily to the breathtaking views at Victoria Falls in Zimbabwe.

Margo was passionate in her roles as educator, lawyer, feminist, wife and mother. And with her unique style, she wore those hats well. She was a mentor for many, and truly a role model for us all.

Professor Melli’s faculty biography page here includes a list of representative publications and other information about Professor Melli’s career.

May her memory be a blessing.

Thank you, Professor Melli, for paving the way for so many more of us.

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Gambert and Linné on “The Disruptive Possibilities of Plant Milk”

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Feminist Law Prof Iselin Gambert (GW) and Tobias Linné (Lund University) have posted to SSRN their article Got Mylk? The Disruptive Possibilities of Plant Milk, forthcoming in the Brooklyn Law Review (2019). Here is the abstract:

Gallium luteum = Caillelait jaune. [Yellow flowers used for curdling milk]. 1772-1793. NYPL Digital Images Public Domain Collection.

Milk is one of the most ubiquitous and heavily regulated substances on the planet – and perhaps one of the most contested. It is tied closely to notions of purity, health, and femininity, and is seen as so central to human civilization that our own galaxy – the Milky Way – is named after it. But despite its wholesome reputation, milk has long had a sinister side, being bound up with the exploitation of the (human and nonhuman) bodies it comes from and being a symbol of and tool for white dominance and superiority. The word itself, in verb form, means “to exploit.” It is also a word at the center of a decades-old, multinational battle taking place in courthouses, the halls of congress, on social media, and in the streets. This article explores the contradictions inherent in the substance as well as the word “milk” and examines the legal, political, cultural, and linguistic forces behind the “milk wars” between dairy milk and plant milk advocates in both Europe and the United States. It examines the US-based battle over the word “milk” through the lens of letters and citizen petitions to the FDA, class action lawsuits, and a 2017 bill called the DAIRY PRIDE Act, as well as the EU-based battle through the lens of EU regulations, a 2017 decision by the European Court of Justice, and a 2014 lawsuit filed by Sweden’s dairy lobby against small-scale oat milk producer Oatly. This article argues that while plant milk should not be legally prohibited from being called “milk,” it may not be a word worth fighting for given the entanglements of milk with the oppression and exploitation of women, people of color, and nonhuman animals. It explores plant milk’s potential as a “disruptive milk,” one that can break free from the exploitation and oppression long bound up in dairy milk, and argues that an act of verbal activism – replacing the “i” with a “y” to create “mylk” – may present plant milk advocates with an opportunity to reclaim and reinvent the word for the “post milk generation.”

The full article is available here.

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Adler on “A Queer Critical Legal Studies Approach to Law Reform”

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Libby Adler (Northeastern) has published Gay Priori: A Queer Critical Legal Studies Approach to Law Reform (Duke University Press, 2018). Here is the publisher’s description:

In Gay Priori Libby Adler offers a comprehensive critique of mainstream LGBT legal agendas in the United States and a new direction for LGBT law reform. Adler shows how LGBT equal rights discourse drives legal advocates toward a narrow array of reform objectives—namely, same-sex marriage, antidiscrimination protections, and hate crimes statutes. This approach means that many legal issues that greatly impact the lives of the LGBT community’s most marginalized members—especially those who are transgender, homeless, underage, or nonwhite—often go unnoticed. Such a narrow focus on equal rights also fixes and flattens LGBT identities, perpetuates the uneven distribution of resources such as safety, housing, health, and wealth, and limits the capacity for advocates to imagine change. To combat these effects, Adler calls for prioritizing the redistribution of resources in ways that focus on addressing low-profile legal conditions such as foster care and other issues that better meet the needs of LGBT people. Such a shift in perspective, Adler contends, will serve to open up a new world of reform possibilities that the law provides for.

One can read the book’s introduction here.

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Grants for Undocumented Immigrant Entrepreneurs

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From the FLP mailbox:

Undocumented entrepreneurs working to create social change can apply for grants and support through Immigrants Rising’s Entrepreneurship Fund.

The Fund showcases the talents of undocumented young people and amplifies the positive impact of their work. In 2018, we will award $250,000 in funding through $5,000 to $50,000 one-year grants. Grantees will also be offered support and guidance from professional advisors as well as opportunities to network with other undocumented entrepreneurs.

Six undocumented entrepreneurs have already received grants and support from the Entrepreneurship Fund, previously called the Fund for Undocumented Social Entrepreneurs (FUSE). Read profiles of our Previous Entrepreneurship Fund Grantees.

We welcome proposals for entrepreneurial projects that address a variety of needs, target diverse populations, and employ different strategies. We are open to supporting projects that serve and advocate for undocumented people as well as ones with broader potential impact. Projects can be non-profit or for-profit initiatives—or hybrid projects that include both nonprofit and for-profit components. Most importantly, projects must create positive social change and must be designed and led by undocumented young people.

Applicants must be born outside of the United States and cannot be U.S. Citizens or Lawful Permanent Residents (LPR). Applicants do not need to be eligible for Deferred Action for Childhood Arrivals (DACA) to qualify.

Preliminary applications are due October 4, 2018.

Entrepreneurship Fund Frequently Asked Questions

Entrepreneurship Fund Application Preview (PDF)

Entrepreneurship Fund Online Application

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Shaming and Blaming Mothers Under the Law: It’s Time We Stop Expecting Mothers to Be Perfect

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The perfect mother is a ubiquitous, if impossible, part of American life. We see her in spandex at the gym, working out—self-care!—a week after delivering twins. She’s at center-stage when internet experts opine about how mothers can prevent teenagers’ opioid addictions. In the shadow of this unattainable, idealized vision of a mother as a virtual guarantor of their children’s health and happiness, actual mothers berate themselves for falling short of perfection, feeling ashamed and inadequate.

The idealized image of motherhood is incorporated into law through the standard of “the reasonable person”; juries are asked to decide, in a particular case, whether the defendant’s behavior falls below this standard and is therefore negligent or worse. In a society that expects women to be more careful than men and holds mothers to an even higher standard of care and solicitude, many people will unconsciously impose the attributes of “the perfect mother” on the “reasonable person” or “reasonable mother.”

For example, in 2004, Utah prosecutors charged Melissa Rowland with murder after one of her twins was delivered stillborn. The prosecutors asserted that Rowland had demonstrated “maternal selfishness” by declining to have a caesarian section and her “depraved indifference to human life” meant she should be convicted of murder.  In 2010, Christine Taylor fell down the stairs in Iowa; since she was pregnant, she went to the hospital to make sure that both she and her pregnancy were okay. When Taylor, whose husband had just abandoned her and their two young daughters, disclosed that she was ambivalent about the pregnancy, she was arrested—her fall was taken for attempted feticide. Another mother, Ginger McLaughlin of Oregon, was convicted of criminal child neglect after her husband, who had been violent to her other children eight months prior, killed their young infant while Ginger was grocery shopping.

Blaming Mothers by Linda Fentiman (NYU Press 2017)

My book, Blaming Mothers: American Law and the Risks to Children’s Health, demonstrates how powerful images of maternal perfection unconsciously influence key players in the legal and health care systems, making it more likely that mothers, and not others, will be held responsible for adverse effects on their children’s health.  Because the legal system largely assesses criminal responsibility and civil liability with the benefit of hindsight, it is easy for unconscious psychological mechanisms to influence our judgments about risk (how likely is it that a bad event will occur) and whether a mother/parent could have acted to prevent that risk.

Blaming Mothers builds on the research of leading social science and legal scholars – Martha Chamallas, Dan Kahan, Cynthia Lee, and Paul Slovic, to name a few – to explain how judges and jurors can have skewed perspectives when it comes to the culpability of mothers, particularly when these mothers are poor, black, or brown.

Every year, American mothers are prosecuted for homicide or child abuse when their children are killed or injured by their male partners. The converse—a father being prosecuted for abuse perpetrated by his female partner—is far less likely.  Most of these “child abuse by omission” cases are resolved by plea bargains; a small number of cases go to trial, and even fewer are the subject of an appeal.  In Blaming Mothers, I examined 108 appellate court decisions involving a parent’s failure to act to protect a child from a spouse or partner, published from 1960 to 2014. Eighty-seven of these defendants were mothers and eleven were fathers; ten defendants were either stepparents or the boyfriend or girlfriend of the abuser.  In about 40% of these cases, the mother was abused by her partner; in a cruel irony, that abuse is often used as evidence against mothers. Reflecting a persistent failure to understand how difficult it is for battered women to flee their abusers, one Oklahoma prosecutor reframed the mother’s status as a victim of abuse as a personal preference.  He argued against the mother of a murdered child, “She made the choice to stay…. It’s about putting your child at risk because of the choices you make, and the choices you make to stay in an abusive relationship.”

Substantial numbers of jurors, judges, and prosecutors appear predisposed to believe that single mothers, in particular, are highly sexualized beings, whose behavior must be closely scrutinized for evidence that lust overcame their maternal instincts. Nearly a quarter of American children live with a single mother, compared with 4% who live with single fathers. More than three quarters of children under eight living with single mothers are poor; two-thirds of these families receive no child support from the father.  Poor children are seven times as likely to be abused as those who live in middle-class and wealthier homes, and it is often the single mother who is blamed, both for the abuse and even for the poverty itself.

In contrast, consider how easily corporations have escaped responsibility for the harm they have caused children. Many corporations have successfully dodged public accountability for causing environmental harms, including lead poisoning, by exploiting society’s relentless focus on the perceived failings of mothers. Corporate defense attorneys have traded on our unrealistic expectations of mothers, deflecting blame away from their clients. In a leading commentary on childhood lead poisoning litigation, Daniel J. Penofsky, notes, “the chief defense strategy in such cases is to ‘trash’ the family.” Usually the “family” means the mother.

The federal government banned lead in paint in 1978, yet four decades later, children are poisoned by lead poisoning, condemned to struggle in school and in the job market.  The Centers for Disease Control put new annual cases of childhood lead poisoning at half a million, and one-third of our nation’s housing stock is still contaminated with lead paint. A landmark Wisconsin case, Thomas v. Mallett, involved Steven Thomas, a toddler who was severely injured by exposure to toxic levels of lead in the paint of his dilapidated home. Steven’s blood tests revealed very high lead levels, and psychological testing showed learning disabilities and low IQ, yet the jury declined to hold lead paint manufacturers accountable. Their attorneys argued that Steven’s limited intellectual abilities and behavioral problems were not due to lead exposure, but rather to “the home, the environment, [and] the genetics that he came from.”  The manufacturers’ expert witness explicitly attributed Steven’s disabilities to his mother, who had a “history of alcohol abuse” and a “poor diet,” as well as a “borderline” IQ.

Amid serious, documented injury caused by lead-containing products, not one American lead paint manufacturer has been held liable for harms like these. California is the only state in which manufacturers have been held responsible for cleaning up the public nuisance created by decades of marketing paints they knew to be toxic to children, and that appellate court ruling has been submitted for Supreme Court review.

The American Academy of Pediatrics has recognized that poverty is the single biggest risk to children’s health and well-being. Poor children are much more likely than their wealthier peers to live in substandard, toxic housing, and to lack nutritious food, safe places to play, and quality health care. The result is more physical and mental illness, lower academic achievement, and shorter lifespans.

We must educate the public, health care professionals, and legal players about the power and dangers of unconscious stereotyping, and we must seek legal change. The law must actively constrain the exercise of discretion by police and prosecutors, to narrow broadly worded statutes to limit the opportunities for overzealous charging, and provide robust judicial review of charging decisions and convictions.  Further, rather than responding to realized harms with criminal charges after the harms have occurred, government should act prophylactically, identifying and intervening when children and families are at risk for environmental harm, domestic violence, and other health problems. Girls and women need high quality health care if we are to promote healthy pregnancies and minimize the risks of preterm birth, and there are plenty of proven programs, like the Nurse-Family Partnership, that could be effectively expanded to provide health education and support to mothers. Because the perfect mother is a myth, strong social safety nets and precautionary legal interventions can and should help safeguard children.

-Linda Fentiman

(cross-post from the University of Minnesota’s Gender Policy Report, here)

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Inspiration from Audre Lorde: “I am deliberate and afraid of nothing”

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Photograph of Audre Lorde, Staten Island, NY, by Robert Giard. 1978. From NYPL Digital Images Collection (public domain)

The day feels put together hastily
like a gift for grateful beggars
being better than no time at all
but the bells are ringing
in cities I have never visited
and my name is printed over doorways
I have never seen
While extracting a bone
or whatever is tender or fruitful
from the core of indifferent day.

* * *

I am deliberate
and afraid
of nothing.

From Audre Lorde, A Land Where Other People Live (1973)

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The Unconstitutional #Tampon Tax

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My Pace colleague Emily Gold Waldman and I have a new draft article, The Unconstitutional Tampon Tax, forthcoming in the Richmond Law Review.  Here is the abstract:

Thirty-six states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax—commonly called the “tampon tax”—represents an expense that girls and women must bear on top of the cost of biologically-necessary items that they need in order to go to school, work, and otherwise participate in public life. This Article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous tax classification of these products amounts to a facial classification on the basis of sex. There is no “exceedingly persuasive justification” for taxing menstrual hygiene products, and so the tax must fail intermediate scrutiny. Even assuming arguendo that the tampon tax is not viewed as a tax on female sex, it is still unconstitutional because it cannot pass rational basis review.

Since 2016, four states and the District of Columbia have repealed their sales tax on menstrual hygiene products. Many state legislatures will consider similar repeal bills in upcoming legislative sessions. At the same time, women also have brought class action litigation in four jurisdictions, seeking a declaration that the state tampon tax is unconstitutional and requesting a refund of prior taxes paid. The Article develops the constitutional arguments that can be used by litigators in any ongoing or future case, recognizing that menstrual equity activism, including impact litigation, is likely to continue in the future.

Ultimately what and who a society seeks to tax signals its larger values. The continued imposition of state sales tax on menstrual hygiene products, seemingly without a principled distinction from other products that are exempted as necessities, exacerbates the aggregate economic inequality that already exists between the sexes. The tampon tax should be repealed in all states.

The full paper is available here.

There’s also a new student note on the tampon tax, published in the Northwestern University Law Review: Jorene Ooi, Bleeding Women Dry: Tampon Taxes and Menstrual Inequity, 113 Nw. U. L. Rev. 109 (2018).

I’m looking forward to reading more tax and constitutional scholarship that addresses the state sales tax on menstrual hygiene products!

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Call for Authors – Feminist Judgments: Rewritten Health Law Opinions

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Professor Seema Mohapatra

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Health Law Opinions. This edited volume, proposed to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series focus on different courts or different subjects.

Professor Lindsey Wiley

This call is for contributions to a volume of health law decisions rewritten from a feminist perspective. Health Law volume editors Seema Mohapatra and Lindsay Wiley seek prospective authors for fifteen rewritten health law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten. The definition of feminism on which the series is premised is quite broad and certainly includes intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns. Applications are due by September 22, 2018.

To facilitate collaboration between commentators and opinion writers across the entire volume, the editors will host a workshop on December 7, 2018 at the Indiana University Robert H. McKinney School of Law. All commentators and opinion writers are invited, but not required, to participate in the workshop. The Hall Center for Law and Health at the Indiana University Robert H. McKinney School of Law will host a welcome dinner the night prior to the workshop and provide the meals at the workshop. Authors must cover their own travel expenses. Selection of authors does not depend on their ability or willingness to attend the December workshop. The editors are also tentatively planning to host a conference celebrating publication of the volume at American University Washington College of Law in Washington, DC in fall 2020.

More details about the project and how to apply are available here.

A tentative list of cases to be rewritten appears below the fold. Continue reading

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St. Thomas (Miami) Hiring Announcement

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From colleagues at St. Thomas:

ST. THOMAS UNIVERSITY SCHOOL OF LAW seeks to fill entry-level tenure-track or, lateral tenure-track,-position(s) beginning in Fall 2019 in the areas of: Contracts, Business Associations, Tax Law, Criminal Law & Procedure, Evidence, Health Law, Tax Clinic, Academic Support and Bar Prep. Other doctrinal areas may be considered depending on the institutional needs. All applicants must have a strong academic record and be committed to outstanding teaching, scholarship and service. Prior teaching experience preferred.

St. Thomas University School of Law trains lawyers capable of applying legal principles to address and solve problems in an increasingly complex and changing society. The rigorous academic program of the Law School emphasizes lifelong learning and scholarship in a personalized, caring environment under Catholic auspices with a diverse student body and faculty. To this end, the Law School remains committed in teaching, scholarship, and service, to fostering a public order of human dignity, to training lawyers sensitive to the needs of the region’s underrepresented communities, and to expanding access to professional opportunities which includes active partnerships with business, government and the South Florida community.

St. Thomas encourages applications from all candidates, including women and minorities, who will contribute to our stimulating and diverse cultural and intellectual environment. The Faculty Recruitment Committee will review applications on a rolling basis, and anticipate attending the AALS Faculty Recruitment Conference in October 2018. Applicants should send a cover letter indicating teaching and scholarly interests, a curriculum vitae to Professor Mark Wolff, Chair Faculty Recruitment Committee at St. Thomas University School of Law, 16401 NW 37th Avenue, Miami Gardens, FL 33054 or email mwolff@stu.edu.

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Unintended Corporate (and Tax) Consequences of India’s Repeal of the #TamponTax

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In July, 2018, India repealed its 12% goods and services tax (GST) on menstrual hygiene products. (News coverage here and here, e.g.) One (unintended, I suspect) consequence is the likely disadvantaging of domestic Indian manufacturers of these products. When the GST was in place, the manufacturers received what is known as an “input tax credit,” or a credit for certain component parts of the final product. For example, cotton is taxed at a rate of 5%, plastic packaging sheets are taxed at 18%.

When the Indian GST on menstrual hygiene products was eliminated, the credit available to the manufacturers evaporated.  That means domestic Indian producers now must pay the 5% tax on cotton, 18% tax on plastic packaging sheets, etc. Foreign corporations, not subject to those input taxes, therefore will be able to offer the product more cheaply, in all likelihood.

Some commentators believe that the Indian government caved to popular demand and/or pressure from multinational corporations (see, e.g., here), without understanding how the repeal of the GST on menstrual hygiene products would impact domestic Indian manufacturers. That may be true, and it points to the need to have tax lawyers involved at all levels of discussion about potential changes to a jurisdiction’s laws.

Mayuri Bhattacharjee, a menstrual equity activist and founder of the Sikun Relief Foundation has written (here) that the GST repeal was “an emotional victory and the silver lining was that it got people talking about a taboo topic,” despite the negative knock-on effect for Indian manufacturers.  She urges (here) mandatory menstrual hygiene education in schools; government incentives for making menstrual hygiene products more environmentally friendly; and holding state governments accountable for their obligations to make available water, toilets and safe methods for disposal of menstrual hygiene products.

I fully support Ms. Bhattacharjee’s call for a future that is “free from menstrual taboos and no one is held behind by their periods.” I believe it is possible to do that while also creating tax incentives that will keep domestic manufacturers of menstrual hygiene products competitive with foreign companies.

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Boso on “Rural Resentment and LGBT Equality”

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Luke Boso (Visiting Professor, University of San Francisco School of Law) has posted to SSRN his  article, Rural Resentment and LGBT Equality, forthcoming in 70 Fla. L. Rev. (2019).  Here is the abstract:

In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide. Many rural Americans feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms. This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people. In several respects, the conflict is merely perceived and not real. It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces.

This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism. Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel. Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige. They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them. Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity. It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.

The full article is available here.

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Feldthusen on Justice Beverley Mclachlin: Canadian Tort Law’s Most Influential Judge

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Bruce Feldthusen, University of Ottawa, Common Law Section, is publishing Justice Beverley Mclachlin: Canadian Tort Law’s Most Influential Judge – Who Knew? in Common Law Controversies at the McLachlin Court, Vanessa Gruben, Graham Mayeda and Owen Rees, eds., UToronto Press, 2018) (forthcoming). Here is the abstract.

No judge has had a greater influence on modern Canadian tort law than Justice Beverley McLachlin. During her 28 years on the Supreme Court she sat on all but 13 of the 145 torts cases that came before the Court. Nine of the 13 she missed came during her first year. She was present for every torts hearing from outside Québec between 1992 and 2002, and for every torts hearing from 2002 until she retired in 2017. She was in the majority in 81.8% of the torts cases on which she sat, and gave the majority judgement in 25.7% of them. Her most important contributions were in the development of novel duties of care in negligence based on proximity, and in liability for sexual battery. This article searches for themes and patterns in these judgments, including both the triumphs and the inevitable failures. Either way, it is a remarkable story.

Download the essay from SSRN at the link.

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Judging Politeness At the SCT

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Scholars Tonja Jacobi and Dylan Schweers have already examined the phenomenon of who interrupts whom among the Supreme Court Justices, noting that to a fairly large extent we can correlate interruptions during SCT oral arguments to sex  and seniority, for example. Now, they’ve turned their attention to courtesy, asking (to the extent one can do so) who interrupts politely? They conclude that female Justices begin their SCT careers by being more polite than their male colleagues. As time goes on, they skew closer to the male norm but it seems that they still maintain more of that female “excuse me” we know so well in their approaches when speaking. More here.

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Lens on “Tort Law’s Devaluation of Stillbirth”

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Professor Jill Wieber Lens (Arkansas) has posted to SSRN her article Tort Law’s Devaluation of Stillbirth, forthcoming in the Nevada Law Journal.  HProfessor Jill Wieber Lensere is the abstract:

In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth.

This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim.

The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.

The full paper is available here.

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Murray on “Editing the Wiktionary for ‘Female'”

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Professor Yxta Maya Murray

Yxta Maya Murray (Loyola-LA) has posted to SSRN her essay Editing the Wiktionary Entry for “Female,” Berkeley J. Gender, Law & Justice.  It is one essay in a series of pieces about “legal fictions” and the intersections of law, language, art and female identity. (For some of Professor Murray’s other work, see here and here, e.g.)

Here is an excerpt from Editing the Wiktionary Entry for “Female”:

In academic year 2007-2008, 22-year-old Yale art student and radical etymologist Aliza Shvarts deconstructed the alarming Proto-Indo-European base word of “female” by self-inducing many possible pregnancies and then aborting them. Shvarts offered her project to her professors as a senior thesis, announcing that it consisted of two elements: The first component involved a series of videos showing her cramping in various Connecticut motel bathtubs as a result of ingesting unnamed abortifacients. The second feature consisted of an objet Shvarts compiled out of Saran wrap, Vaseline, and blood that she collected from her procedures.

Shvarts’s rebellion constituted an offense against international linguistics but it did not qualify as a crime under the Connecticut Penal Code: In 1971’s Abele v. Markele, federal judge Edward J. Lumbard liberated females from their jurisprudential if not etymological dilemma by striking down an 1860’s state statute that penalized self-induction with a five year prison sentence. “The Connecticut anti-abortion laws take from women the power to determine whether or not to have a child,” Lumbard proclaimed. “In 1860, when these statutes were enacted in their present form, women had few rights. Since then, however, their status in our society has changed dramatically.”

Had it? While Shvarts could not be arrested, manacled, tried, and incarcerated for putting daylight between her body and its putative *dʰeh₁-m̥n-eh₂||who sucks derivation, she was punished . . . .

The full essay is available here.

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Brooklyn Law School Hiring Announcement

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From colleagues at Brooklyn:

BROOKLYN LAW SCHOOL seeks to hire two full-time, tenure-track or tenured faculty members. We are interested in outstanding candidates in all fields, including civil procedure, constitutional law, labor law, tax law, business law and regulation, antitrust, and torts. Applicants should have a strong academic record and demonstrated commitment to scholarly activity and publication. We are interested in both entry-level and lateral candidates, and we are especially interested in candidates who will enhance the diversity of our faculty. Entry-level and lateral candidates should apply via the Faculty Appointments Register or by email to Professor Minor Myers, Chair, Faculty Appointments Subcommittee (minor.myers@brooklaw.edu). The members of our committee are William Araiza, Julian Arato, Miriam Baer, Robin Effron, Beryl Jones-Woodin, and Minor Myers (chair).

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Reporting Results of Law Professor Twitter Census 2018-2019

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The results of the 2018-2019 Law Professor Twitter Census are here at the Faculty Lounge.  The list is grossly inaccurate and incomplete, but because I compiled it, I made sure to include all the feminist law prof tweeters I could find! If you’re not on the list and want to be, or are on the list and need your info corrected, please email me at bcrawford at law dot pace dot edu.

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@Dr_KMcLoughlin Reviews Aotearoa New Zealand and Northern/Irish Feminist Judgments Books

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Dr. Kcasey McLoughlin

Dr. Kcasey McLoughlin (Newcastle Law School, Australia) has published a review of  Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two Stranded Rope (Rhonda Powell, Elisabeth MacDonald, Māmari Stephens & Rosemary Hunter eds., 2017) and Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Máiréad Enright, Julie McCandless & Aoife O’Donoghue eds., 2017) at 43 Alternative L. J. 146 (2018). The review is a Sage journal (and thus behind a paywall), but here is an excerpt:

In different ways, both the Northern/Irish and Judgments of Aotearoa New Zealand Projects reveal how law shapes and reflects national identity. That each project brings to life its own national character by reflecting on the peculiarities of time, geography and history therefore makes a powerful (and ongoing) case for feminist judgment writing.

If your institution has access to Sage publications, the full review is available here.

 

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Words of Wisdom from @Ava DuVernay on Writing

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Filmmaker and writer Ava DuVernay posted to Twitter some great advice for a follower who asked for “tips on how to stop thinking your writing is terrible.” Here is Ms. DuVernay’s advice, which really helped me on a (ok, today’s) bad writing day:

Just know that everyone’s writing is terrible. Until it’s not. No one’s stuff is right immediately. You gotta work it. Refine it. Shape it. Spend time with it. It’s a relationship. Between you and what comes from you. Not easy. Gonna be terrible before it’s not. And that’s okay.

Sigh.  It’s going to be terrible before it’s not. I think I’m in the “terrible” stage now.  Let’s hope the “not” stage comes soon!

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New Book on “Making Milk: The Past, Present and Future of Our Primary Food,” Cohen & Otomo, eds.

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Mathilde Cohen (U Conn) and Yoriko Otomo (SOAS, University of London) have published an edited volume, Making Milk: The Past, Present and Future of Our Primary Food (Bloomsbury, 2017). Here is the publisher’s description:

What is milk? Who is it for, and what work does it do? This collection of articles bring together an exciting group of the world’s leading scholars from different disciplines to provide commentaries on multiple facets of the production, consumption, understanding and impact of milk on society. The book frames the emerging global discussion around philosophical and critical theoretical engagements with milk. In so doing, various chapters bring into consideration an awareness of animals, an aspect which has not yet been incorporated in these debates within these disciplines so far.

This brand new research from scholars includes writing from an array of perspectives, including jurisprudence, food law, history, geography, art theory, and gender studies. It will be of use to professionals and researchers in such disciplines as anthropology, visual culture, cultural studies, development studies, food studies, environment studies, critical animal studies, and gender studies.

The book’s interdisciplinary contributors include a wide range of international scholars:

Part One: Drinking Milk: Histories and Representations

1. More than Food: Animals, Men, and Supernatural Lactation
in Occidental Late Middle Ages, Chloé Maillet (Musée du quai de Branly, France)

2. Feminized Protein: Meaning, Representations, and
Implications, Carol J. Adams (independent scholar, USA)

3. Growing a Nation: Milk Consumption in India since
the Raj, Andrea S. Wiley (Indiana University, USA)

Part Two: Making Milk: Technologies and Economies

4. Unreliable Matriarchs, Melanie Jackson (UCL, University of London, UK) and Esther Leslie (Birkbeck, University of London, UK)

5. The Mechanical Calf: On the Making of a Multispecies Machine, Richie Nimmo (University of Manchester, UK)

6. Milk, Adulteration, Disgust: Making Legal Meaning, Yofi Tirosh (Tel Aviv University, Israel) and Yair Eldan (Ono Academic College, Israel)

7. Markets in Mothers’ Milk: Virtue, Vice, Promise, or
Problem?Julie P. Smith (Australian National University, Australia)

Part Three: Queering Milk: Male Feeding and Plant Milk

8. The Lactating Man, Mathilde Cohen (University of Connecticut, USA)

9. “Cow’s Milk is for Calves, Breastmilk is for Babies.” Alfred
Bosworth’s Reconstituted Milk and the Women who Innovated
Infant Feeding Amid an American Health Crisis, Hannah Ryan (Cornell University, USA)

10. Plant Milk: From Obscurity to Visions of a Post-Dairy
Society, Tobias Linné (Lund University, Sweden) and Ally McCrow-Young (University of Copenhagen, Denmark)

11. Critical Ecofeminism: Milk Fauna and Flora, Greta Gaard (University of Wisconsin-River Falls, USA)

Part Four: Thinking about Plant Milk

12. Milk and Meaning: Puzzles in Posthumanist Method, Jessica Eisen (Harvard Law School, USA)

13. DIY Plant Milk: A Recipe-Manifesto and Method of
Ethical Relations, Care, and Resistance, Matilda Arvidsson (Lund University, Sweden)

I look forward to reading this!

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You Might be Able to Buy Tampons (and Gym Memberships) with Pre-Tax Dollars

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Representative Grace Meng (D-NY)

Representative Grace Meng (D-NY) led the way in getting menstrual hygiene products included on an expanded list of products for which flexible spending account funds can be used under H.R. 6199, Restoring Access to Medication and Modernizing Health Savings Accounts Act of 2018. The House of Representatives passed that bill on July 24, 2018.  The bi-partisan bill now goes to the Senate for a vote.

Representative Meng issued a statement about the bill, saying (here):

It brings us another step closer towards making menstrual hygiene products more accessible and affordable to women. Menstrual hygiene products are essential and necessary for women, and deserve to be items that are permitted to be purchased with health flexible spending account funds. There is no reason why menstrual products should not be included, and I am thrilled that we are on the path to finally changing that wrongheaded policy.

Representative Meng had introduced similar legislation, the Menstrual Equity for All Act of 2017 (H.R. 972), last year. That bill would have made “tampons, pads, liners, cups, sponges, douches, wipes, sprays, and similar products used by women with respect to menstruation or other genital-tract secretions” eligible for flexible spending.  The actual bill passed by the House applies to any “tampon, pad, liner, cup, sponge, or similar product used by women with respect to menstruation or other genital-tract secretions.” (I guess some legislative aide figured out that most doctors don’t recommend vaginal douches.)

Overall, this is a welcome change. After all, if Band-aids and condoms are eligible to be purchased with flexible spending money, then it makes sense that menstrual hygiene products should eligible, too.

From a tax perspective, flexible spending accounts are beneficial to both employers and employees.  Employers do not pay Social Security tax on employee contributions to FSAs, and employees’ contributions are pre-tax. (More details here.)  According to one study, flexible spending accounts are offered by a large percentage of employers, but it is worthwhile to note that this salutary change to the tax law does not benefit those whose employers do not offer FSAs, those who make so little that they cannot afford to divert part of their salary to an FSA, or those who are unemployed.  So, I think of expanding flexible spending to include menstrual hygiene products as just one part of a much larger menstrual equity effort.

Representative Meng has previously sponsored legislation that would provide a refundable tax credit to low-income women for use of menstrual hygiene products. My prediction as a tax lawyer is that will go absolutely nowhere. There is greater promise for Representative Meng’s proposed legislation that would require manufacturers to disclose the ingredients contained in any menstrual hygiene products. Without a change to the law, it is impossible to know for sure what products are contained in those tampons, pads or cups with which we may be, ahem, intimately familiar. Without knowing what is in the products we use, it is difficult to make informed consumer choices.

As an addendum, note another feature of the H.R. 6199, Restoring Access to Medication and Modernizing Health Savings Accounts Act of 2018 — not attributable to Representative Meng, as far as I know. The bill proposes expanding the definition of “amounts paid for medical care” (and thus eligible for payment with FSA funds) to include up to $500 (for individual filers) or $1,000 (for those married filing jointly) of amounts paid for ‘‘(i) membership at a fitness facility, (ii) participation or instruction in a program of qualified physical activity, or (iii) safety equipment for use in a program (including a self-directed program) of qualified physical activity.” Again, that’s great for people who can afford these things, but low income people who cannot afford gym memberships, yoga classes, or cycling classes receive no benefit from this proposed change.

A comprehensive plan to make menstrual hygiene products and physical fitness activities more affordable to all people might look quite different than this tinkering at the margins.  Yet from a pragmatic perspective, I’ll take it for now. The changes do represent progress.

Thank you, Representative Meng, for your work on menstrual equity.

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Law Professor Twitter Census 2018-2019 Edition: Call for Entries

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Bumping to the front in anticipation of the deadline on August 15, 2018 at 5:00 p.m. Eastern.

The latest Law Professor Twitter Census is under way here at the Faculty Lounge.  If you are a full-time faculty member at a law school and are on Twitter, please feel free to add yourself to the list and indicate areas of scholarly/teaching/other interests.

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Tehranian on Copyright’s Male Gaze: Authorship and Inequality in a Panoptic World @SouthwesternLaw

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John Tehranian, Southwestern Law School, is publishing Copyright’s Male Gaze: Authorship and Inequality in a Panoptic World in volume 41 of the Harvard Journal of Law and Gender (2018). Here is the abstract.

When Erin Andrews found out that an intimate recording of her had leaked online, the authorship-as-fixation doctrine told her that the felon who illicitly captured the footage owned the copyright, not her. When Lynn Thomson’s creative partner, Jonathan Larson, died tragically just hours after the final rehearsal for the musical Rent, joint authorship’s mutual-intent requirement told her that she had no copyright interest in the Broadway hit. When The Fearless Girl took on Charging Bull and challenged its unabashedly masculine celebration of American capitalism by calling attention to the underrepresentation of women on Wall Street, copyright law told her that she might constitute an unauthorized derivative work, both without copyright protection (i.e., no cognizable authorship) and subject to destruction. In all three of these scenarios, the legal meaning of authorship had far-reaching consequences — not just for copyright law itself, but for society at large.

This Article examines how the heuristics of authorship — the relationship of fixation to authorship, the role of intention in joint authorship, and the allocation of authorship in derivative works — have imbued rightsholders with the power to control representations of female (and nonwhite) bodies and to suppress narratives of resistance, with resulting adverse consequences for egalitarian and dignity interests. In the process, the Article not only adds to a burgeoning literature on the impact of copyright’s ostensibly neutral principles on inequality, particularly in relation to gender, but also breaks new ground by applying film theorist Laura Mulvey’s concept of the male gaze to the operation of copyright law. In examining a wide range of cases, from revenge porn and celebrity sex tapes to the voyeuristic art of Arne Svenson, the analysis demonstrates just how our reigning authorship regime has reified the male gaze and translated it into a property right rationalized along traditional binaries of activity and passivity, object and subject, male and female. All told, the Article calls for a broader conversation about the ways in which courts determine issues of authorship — not just as a matter of doctrinal consistency with copyright’s four corners, but also as a vital matter of public policy in a society where the tools of creation and surveillance are at everyone’s fingertips.

Download the article from SSRN at the link.

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@NadiaBAhmad on “Why I Wear Hijab”

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Feminist Law Prof Nadia Ahmad (Barry University) recently published a short piece, Resurrecting Why I Wear Hijab and Need to Use the Redress Control Number in the Muslim Observer. Here is an excerpt:

Up until my grandmother leaving this world, I could think of no real problems that I had. Someone had stolen a brownie from my lunch bag in 10th grade. And then the Orlando Magic couldn’t figure out how to win. 

Yet losing my maternal grandmother was such a shock, it hurts even 20 years later. The only way I could fathom to honor my grandmother was to wear hijab. I had also promised my mother in 2nd grade if she let me go to college wherever I wanted, I would wear hijab. I figured now would be a good time to own up to my promise. So I didn’t wear hijab out of any sense of religious duty or modesty. I wore it to shroud the grief of losing my grandmother. I spent the past five years toying with the idea of wearing it, but I never got around to actually donning it. I never wore it particularly well as I never had the fashion savvy or the time in the morning to fasten it properly. It was always falling off. 

Neither of my grandmothers received beyond an elementary school education. And they both would remind me that going to school was such an honor. To learn and be able to study because that is something they could never do. They taught me to respect my writing utensils and books and never throw them carelessly on the ground. 

My mother told me that I didn’t have to wear it if I didn’t want to. She told me I could still go off to California if I didn’t wear hijab. I still wasn’t wearing it all the time when I flew out for the start of the semester. But by Labor Day of my freshman year, I figured I should be less lackadaisical about wearing the hijab and keep up with my 2nd-grade bargain to my mother. My father didn’t like the idea of either – the hijab or the Berkeley. He felt the hijab would create needless problems for me. So, the hijab also became another way to tick him off for no reason. My father thought the six-year medical program at the University of Miami would have been the key to happiness instead of going to Berkeley to study literature and wear hijab. 

That was how I left my parents, I went off to college.

Professor Ahmad goes on to connect her personal story to the current separation of immigrant children from their parents at the border.  Read the full piece here. It is very powerful.

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@IUMaurerLaw, Is This Dean Photo with “Sexy” and “Shag” Really a Good Idea?

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Over here at the Tax Prof Blog, Paul Caron reposts a funny-at-first picture of IU Maurer Dean Austen Parrish’s head imposed on an Austin Powers-like figure complete with era-appropriate background lettering.  Paul Caron captioned the post: “Best Law School Dean Photo, Ever: Indiana’s Austen Parrish.”

At first I thought, “Oh, looks like Dean Parrish is a guy who knows that marketing can be fun. Well done.”  But then I looked at the words in the background, including “Sexy” and “Cheeky Shag.”  In the #MeToo and #TimesUp era, does IU Maurer really want to promote its dean (and school) with words like “Sexy” and “Cheeky Shag”?

Maybe I’m just a humorless feminist, but I’m going to call this one a marketing mistake. The best move for  IU Maurer would be to take the post down, or change the background words.

Words matter. Please, marketing team, get as much feedback as you can before posting. Someone at IU Maurer certainly should have caught this.  No shade on the school … I admire IU Maurer and its faculty very much. But the school (and all of us) can do better.

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Against Menstrual Capitalism

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Menstrual equity, a phrase coined by attorney and activist Jennifer Weiss-Wolf, means “[f]airness for how women are treated in society because they menstruate.” Current menstrual equity efforts run along three identifiable, parallel tracks:

(1) campaigns to repeal the state sales tax on tampons, pads, menstrual cups and similar products (as New York, Illinois, Connecticut and Florida have done in the last 2 years);

(2) efforts to make products more widely available in places such as public schools, jails and homeless shelters (like New York City did in 2016, making them available for free in all of these locations); and

(3) ensuring that menstrual hygiene products are safe for consumers, through mandatory labeling that identifies the products’ composition, such as would be required by the Menstrual Products Right to Know Act, legislation proposed in 2017 by Congressional Representative Grace Meng (D-NY).

Photo by Laura Epstein-Norris via The Nation (here: https://www.thenation.com/article/why-are-we-paying-sales-tax-on-tampons/)

I support all of these efforts. Together with Professor Carla Spivack (OKCU Law), I have written about Tampon Taxes, Discrimination and Human Rights, suggesting that the sales tax (or its equivalent) may be ripe for legal challenge.

My feelings are more mixed when it comes to what I will call menstrual capitalism, the marketing and selling of menstrual hygiene products by means of feminist messages that attempt to create a public-relations “halo effect” for companies that are, at their core, commercial enterprises that seek to profit from women’s bodies.

I love the pro-woman, body-positive messages of the “period proof underwear” by Thinx. I was outraged when the NYC subway system initially disallowed Thinx advertisements on the subway, alleging that they were “too controversial” (see news coverage here).  Major kudos to Thinx for its educational initiatives in schools and providing funding for organizations that make menstrual hygiene products available to vulnerable women.  It’s a company founded by three women (Yay! Except for the fact that one of the founders settled a major sexual harassment suit brought on account of her behavior in the workplace and ended up stepping down as CEO because of it…).

Let’s also not forget the female-founded subscription-based delivery service Cora, that will send organic tampons to your doorstep each month. And lest one hypothesize that menstrual capitalism is a U.S.-based phenomenon, the U.K.-based Pink Parcel “period subscription box” contains a monthly delivery of beauty products, sweets and tampons, so that you can “feel your absolute best even when your period rolls around” (as if menstruation were an illness….Is it heavy-handed to point out that Pink Parcel is male-owned?).

But what do all of these companies have in common?  They want to make money from women’s bodies. Is that inherently a bad thing?  No. All sorts of companies make money from women’s (and men’s) bodies. That’s the nature of capitalism. But let’s not confuse menstrual capitalism with non-profit organizations like Massachusetts-based Dignity Matters, NYC-based Racket, or Florida-based For the Love of Women (FLOW), organizations that get menstrual hygiene products in the hands of women who need them most, such as women in homeless shelters and low-income women, without making any kind of money from the venture. Also, Period Equity, the brainchild of Jennifer Weiss-Wolf and Laura Strausfeld, is “the nation’s first law and policy organization fighting for menstrual equity – committed to ensuring that menstrual products are affordable, safe and available to those in need.” Those non-profits do not have the funds to buy provocative ads to adorn the subway system, but they are highly deserving of support.

I accept the marketplace as a part of the society I live in. I benefit from the market economy and the laws that support it. Yet menstrual capitalism occasionally goes too far.  Does anyone really need a “period blanket” to make “period sex SO much easier“?  Last I checked, a willing partner and a dark towel work just fine, and won’t set you back £ 285 (about $379).

If it makes someone happy to purchase a period blanket, more power to her. Just don’t call it a feminist act. It’s menstrual capitalism.

 

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Call for Exclusive Submissions: UC Davis Journal of Juvenile Law & Policy

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From the student editors at UC Davis:

The UC Davis Journal of Juvenile Law & Policy (“JJLP”) is now accepting exclusive submissions for its Winter Issue of Volume 23. JJLP is a biannual publication of the UC Davis School of Law that addresses the unique concerns of youth in the American legal system. All articles submitted to JJLP between now and July 7 , 2018, at 11:59 PM Pacific Time, will be evaluated and considered for publication by July 28 , 2018. To be considered, an article must relate to some aspect of juvenile law or policy, such as juvenile health and mental health, education, or the juvenile justice system. If you have previously submitted an article to JJLP, you must resubmit the article for consideration in this review.

By submitting an article via this exclusive submission track, the author agrees to accept an offer of publication, should one be extended. Articles that receive offers of publication will be published in the Winter Issue of Volume 23. The publication process involves an interactive editing process between the author and the staff of JJLP.

To submit, please email your article manuscript in Microsoft Word format, along with your CV, to jjlp.ucdavis@gmail.com. Please title the subject line “Winter 2019 Exclusive Submission Track.”

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