In Fall 2017 Lolita Buckner Inniss will move from Cleveland-Marshall College of Law, Cleveland State University to SMU Dedman School of Law. She will teach Property Law and Critical Race Theory.
Good news for SMU!
In Fall 2017 Lolita Buckner Inniss will move from Cleveland-Marshall College of Law, Cleveland State University to SMU Dedman School of Law. She will teach Property Law and Critical Race Theory.
Good news for SMU!
From colleagues at Vermont, this notice of a clinical opening:
The Environmental and Natural Resources Law Clinic (ENRLC) at Vermont Law School and Earthjustice are partnering to expand our environmental justice capacity through the creation of a new environmental justice initiative. We are hiring an attorney professor who will be located at the ENRLC and will work with Earthjustice’s Healthy Communities program and as part of the ENRLC’s growing environmental justice program area. Cases and projects will include Vermont and New England-based initiatives as well as efforts at the national level and in other areas of the United States.
Duties and Responsibilities:
The Earthjustice Clinical Professor will be a full-time attorney housed within the ENRLC. This position will be dedicated to working on environmental justice issues, with cases and projects chosen in collaboration between Earthjustice and the ENRLC. Specific responsibilities include:
This is a two-year position with the possibility of becoming permanent.
Please submit a cover letter, resume, law school transcript, writing sample, and references to Chantelle Brackett, Human Resources & Payroll Manager, Vermont Law School, PO Box 96, South Royalton, VT 05068. Electronic applications are strongly preferred and can be submitted online here. Applications will be considered as they are submitted. The position will remain open until filled.
More info available here.
From the Vancouver (WA) Columbian:
Sen. Lynda Wilson, R-Vancouver, is hoping Senate Bill 5093 will exempt feminine hygiene products from retail and use tax. As she pointed out to the Senate Ways & Means Committee last week, they are medically necessary products. But if that measure fails to gain momentum, she’s also introduced Senate Bill 5092, which would use the tax that currently exists and reallocate the funds to help domestic violence victims.
The money would create a grant program called Women Helping Women under the Department of Commerce. Funds would be given annually to each county, based on population size, and help local law enforcement and prosecutors to offer support services for domestic violence and sexual assault victims.
The full article is here.
Isn’t the alternative bill — SB 5092 — basically making women pay for services that the government should be providing for all citizens? A similar move happened earlier in the UK (see here), and this Washington State bill seems to have the same impact: shift the cost onto women for services the violence done to them, mostly by men.
Adam Feldman, Columbia University Law School and University of Southern California Political Science, and Rebecca D. Gill, University of Nevada, Law Vegas, have published Echoes from a Gendered Court: Examining the Justices’ Interactions During Supreme Court Oral Arguments. Here is the abstract.
Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.
This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.
Download the article from SSRN at the link.
Alice Wooley, University of Calgary School of Law, and Elysa Darling are publishing Nasty Women and the Rule of Law in the University of San Francisco Law Review. Here is the abstract.
Lawyer bashing is a robust and accepted social tradition. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-lawyer criticisms. Criticisms and attacks on women lawyers are personal and gendered, as well as being intense and hostile, in a way that differs from the generic, often humorous, and impersonal nature of traditional antipathy to the legal profession. And even when women lawyers are viewed positively, commentary focuses on their looks, clothes and families, in a way that is not the case for men. This paper identifies the reasons for and consequences of how we talk about women lawyers.
Download the article from SSRN at the link.
Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations — generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not — to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD I warn that these developments can have negative effects on innovation as well as problematic distributional effects.
A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP — films, songs, software, brands and apps – to the partner who plans to develop them. The New York Times asked me to comment about these developments so I wrote a short op ed about this rising trend and in particular raise the question about potential gender inequities.
Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.
Would love to hear your thoughts – comment here or in the comments section of the NYT.
Michael J. Higdon, University of Tennessee College of Law, is publishing Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion in volume 13 of Legal Communication & Rhetoric: JALWD (2016). Here is the abstract.
In 2015, Naomi Wolf warned that “the most empowered generation of women ever — today’s twenty-somethings in North America and Britain — is being hobbled in some important ways by something as basic as a new fashion in how they use their voices.” She was referring to the phenomenon referred to as “vocal fry” — a speech quality in which the speaker lowers her natural pitch and produces a “creaking” sound as she talks. Naomi Wolf is not alone in her warnings; vocal fry has received quite a bit of negative attention recently. Specifically, these critics warn that those who speak in vocal fry are doing themselves great harm by undermining the speakers’ overall perceived effectiveness. In fact, recent studies even lend some support to these arguments, showing that listeners tend to rate those who speak in vocal fry more negatively.
The problem, however, is that much of this criticism is directed at young women, and for that reason, some defenders of vocal fry have countered that these criticisms are merely attempts to regulate how women talk. In other words, a preference for speech that does not contain vocal fry is actually motivated by pernicious stereotypes about how women “should” talk.
Thus, on the one hand, there are those studies supporting the argument that women who engage in vocal fry are less likely to be perceived positively, yet on the other hand, there exists the very real likelihood that these perceptions are based on gender stereotypes. Accordingly, the question emerges: what should a young woman do? Should she eliminate all instances of vocal fry from her speech so as to maximize her perceived effectiveness as a public speaker if, in so doing, she is reinforcing the very gender stereotypes upon which such preferences are based? Or should she openly confront such stereotypes and employ vocal fry as much as she likes, knowing that, by taking that approach, she is taking the risk that she might be hurting not only herself but also those upon whose behalf she speaks?
This essay, by first discussing this background on vocal fry, delves into that very dilemma. It does so specifically in the context of female attorneys given that 1) public speaking is a key component upon which their effectiveness is gauged and 2) to the extent their public speaking is judged to be less than ideal, they are not only harming themselves, but also potentially a client. Finally, in wrestling with this question, these essay hopes to shed light on a bigger concern — specifically, how useful are studies on effective nonverbal behavior when the results of those studies are largely driven by underlying societal prejudice.
Download the essay from SSRN at the link.
Please see the “third edition” of the White Paper on Title IX & the Preponderance of the Evidence at the link below, including the first 100 signatures from law professors across the country. We will continue to accept signatures from law faculty members as long as law faculty members wish to sign on to the White Paper, and we will post updated editions of the White Paper as we receive additional signatures. To add yourself as a signatory, please email your full name and the URL for your faculty webpage to Nancy Chi Cantalupo at email@example.com.
Earlier this year, Bridget J. Crawford spoke with Dana Brooks Cooper, Esq. of Barret, Fasig & Brooks in Tallahassee, Florida. Ms. Brooks is representing the plaintiff in a class action that challenges the Florida “tampon tax,” the state sales tax imposed on feminine hygiene products. In this interview, Ms. Brooks provides an update on the case of Wendell v. Florida Department of Revenue et al. currently pending in the Circuit Court, Second Judicial Circuit, in and for Leon County, Florida.
Bridget Crawford: When we last spoke in July, you recently had filed the complaint on behalf of a plaintiff in the class action. What is the status of the case at this point?
Dana Brooks Cooper: Things have been moving along. We have amended our Complaint in response to a Motion to Dismiss from the Government Defendants and we took that opportunity to include two great new additional plaintiffs. Currently, we’re in the process of responding to a new Motion to Dismiss from the Department of Revenue and have filed our own Motion for Partial Summary Judgment for Declaratory Relief. So, while there haven’t been any substantive rulings yet, we feel like we’re making progress.
Crawford: Does it seem that the legislature is paying close attention to this case?
Cooper: We have not heard anything on this lately, although right after the lawsuit was filed, Senator Simmons had expressed a desire to introduce legislation to abolish the tax but cited pending litigation as a potential problem in doing that. The legislature is due to start committee meetings later this year and we will be closely monitoring those.
Crawford: If the Florida legislature were to pass a bill exempting menstrual hygiene products from sales tax in the future, do you think that the class would still want to press for a refund of past taxes paid?
Cooper: Absolutely. Getting the law changed would be a big victory, but it is only part of the battle. Millions of dollars in illegal taxes have already been paid by the women of Florida and we intend to do everything we can to get their money back.
Crawford: From your perspective, what’s the relationship of the tampon tax to larger issues of equality for women?
Cooper: it seems like a small thing, but to me it’s indicative of so much more. Prior to 1986, these products were exempt from sales tax in Florida and there seems to be absolutely no basis for the Legislature’s decision to start taxing these items. Now more than ever, I believe we cannot just stand aside and let these unfair and arbitrarily discriminatory practices continue, either through inattention or because it seems like there are always bigger fish to fry. It’s important for women, and those who support them, to step up and make their voices heard in every possible arena. We know we cannot rely on the media to conduct their own independent investigations of these things because until someone calls attention to it, they are as much in the dark as the rest of us are.
Crawford: What has been the reaction of your colleagues in the Florida bar to this case?
Cooper: Overwhelmingly supportive. No one I have spoken with has any idea how the legislature can claim this tax is justified. I frequently get asked for updates on the case. People want to know what’s going on and why their elected officials have not embraced our cause and run with it.
Crawford: Thank you for this update! We will be following this case with great interest.
Cooper: Thank you. We appreciate your continued interest and support. We plan to keep fighting the good fight.
Bridget J. Crawford recently spoke with Jennifer Weiss-Wolf of Period Equity, a non-profit organization located in New York City focused on all aspects of menstrual fairness. Ms. Weiss-Wolf is a self-described “writer, activist, feminist.” She is an advocate and frequent commentator on all things related to menstruation and public policy.
In this interview, Ms. Weiss-Wolf explains some of her work on behalf of menstrual equity and the relationship between law and social change.
Bridget Crawford: Your Period Equity colleague Laura Stausfeld described you “the most prolific and organized ‘menstrual equity’ advocate.” Can you explain what menstrual equity is?
Jennifer Weiss-Wolf: It is a term I concocted – and I am glad to see it taking hold! What I mean by menstrual equity is this: People who menstruate need affordable and accessible hygiene products to be fully equal players in society, to be productive students and citizens, and to be healthy. Addressing issues of menstruation – access, affordability, safety – is a matter of equitable treatment, even equitable representation in our government.
Crawford: Can you explain what you mean when you say menstruation is related to equitable representation in government?
Weiss-Wolf: President Obama actually said it best when he was asked during a YouTube interview last January why he thought that menstrual products were not exempt from sales tax. His answer: “I suspect it’s because men were making the laws when those taxes were passed.” I basically agree. I don’t imagine there has ever been a secret or nefarious plot to purposefully exclude menstruation from policymaking. Rather, it is simply the outcome of too few women at the decision-making table – which, in turn, pretty much guarantees that our experiences are not fully reflected, nor our interests fully represented.
That said, though, stigma and marginalization are squarely part of the equation too. President-elect Donald Trump made incendiary comments about menstruation early in the campaign. When California Assembly Member Cristina Garcia introduced the tampon tax bill there in January 2016, she was nicknamed “Miss Menstruation.” When women are mocked for our biology – in an overt attempt to bully or quiet us down – the ability to promote policies that improve women’s lives is compromised.
Crawford: How did you first get involved in issues related to menstruation and public policy?
Weiss-Wolf: I can pinpoint the exact moment. It was New Year’s Day 2015 … at the Coney Island Polar Bear Club’s plunge. Each year my friends and I join hundreds of other New Yorkers crazy enough to charge into the icy Atlantic. That year we had even upped the ante and dressed up as Wonder Woman! After I got home and shook off all the sand and glitter – I did the natural next thing: posted my pictures on Facebook. And that was when I saw a post by a local parent that she and her daughters were leading a collection drive for tampons and pads to donate to our local food pantry. Their project was called “Girls Helping Girls. Period.”
I was floored that I’d never even considered this before. If periods are a hassle for me – an adult with the means to have a fully stocked supply of tampons and no inhibitions at all talking about it – it seemed nakedly, painfully obvious that for those who are poor, young, vulnerable, it could so easily be a real obstacle and problem. After some preliminary research I wrote an essay describing my reaction to this revelation that The New York Times published later that month. And there began the journey – literally, from Wonder Woman on the beach.
Crawford: Can you describe some of your early work on behalf of menstrual equity?
Weiss-Wolf: Right away I knew I wanted to address the issue from a policy perspective. Donation drives are crucial – they meet a need and engage the public – but, truly, I see this as a matter of societal and public obligation.
In terms of what would make a winning policy campaign, I zeroed in on the tampon tax. I knew that activists around the world were taking it on, and the time seemed ripe to do the same here in the U.S. It is a fairly straightforward public argument about equity and fairness that I thought would be popular and attract a wide audience.
In October 2015, I conceptualized and initiated the inaugural national tampon tax petition on change.org, and was thrilled when Cosmopolitan Magazine agreed to co-sponsor. My goal in creating a national petition was to ratchet up public attention to the issue in order to spur states to take action. It worked. By January 2016, President Obama weighed in, resulting in an avalanche of national media (that still hasn’t subsided). By March, I was called upon by Laura Strausfeld to assess and guide the public and media strategy vis-à-vis the filing of the class action lawsuit she conceptualized for New York State. In June, the American Medical Association issued a statement in support of legislation to eliminate the tampon tax. To date, the petition has more than 60,000 signatures and the advocacy campaign resulted in the introduction of legislation and/or public debate in 15 states during the 2016 session. The tax was eliminated in Connecticut, Illinois and New York, as well as the City of Chicago. The District of Columbia passed a bill last week to eliminate it (now awaiting the Mayor’s signature). California’s bill, passed unanimously in the legislature, was recently vetoed by Governor Brown. More states are poised to introduce and pass similar laws in 2017. Over the past year I provided research and support to lawmakers in states and cities across the country, including California, Illinois, Maryland, New York, Ohio, South Carolina, Virginia, Wisconsin, as well as Chicago, D.C. and New York City. I also testified and presented before several legislative bodies.
Crawford: Why do you think the issue of the tampon tax in particular captured the attention of popular press outlets like Cosmopolitan and Newsweek?
Weiss-Wolf: The issue has the benefit of being interesting, under-reported (well, until the past year) and essential to the lives and well-being of half the population! Add in a dose of stigma-busting (and therefore headline-grabbing) and you have a winning combination.
A central component of my advocacy strategy has been to elevate the national discourse around menstrual equity policy – not only as a way to eradicate stigma and educate the public about the plight of those who lack access, but also to motivate legislators to act and ensure they know the public will is on the side of these laws. For example, I write a weekly update for a curated list of media contacts and work closely with many editors and reporters to ensure coverage that is accurate, compelling, timely and effective. I also lend my own voice to the public arena with public writing and have published around 20 op-eds in outlets including Newsweek and Cosmo – as well as The New York Times, TIME, The Nation, Bloomberg, Bustle and Ms. Magazine, among others. [See Ms. Weiss-Wolf’s website here for links to her op-eds and other writings. -ed.]
At the close of 2015, NPR coined the oft-quoted term “The Year of the Period,” noting that the number of times the word menstruation was mentioned by national news outlets more than tripled from 2010 to 2015. Cosmo named 2015 “The Year the Period Went Public.” As you mention, in April 2016, for the first time ever, Newsweek featured period activism as a cover story. These are among the many hundreds of high-profile headlines and hits over the past year on the policy aspect of this work.
Crawford: You played a role in the New York City Council’s decision to make menstrual hygiene products available in jails, homeless shelters and public schools. How did that come about? Continue reading
The District of Columbia is slated to end its tampons on feminine hygiene products, as well as diapers, in October, 2017:
The nation’s capital is joining the movement to lift the sales taxes on diapers, tampons and other feminine hygiene products.
A spokeswoman for Mayor Muriel E. Bowser (D) said Wednesday she’ll sign legislation that supporters say ends a 5.75 percent tax that hurts women and hits working families the hardest.
But before it takes effect, the District needs to find more than $3 million a year to make up for the lost tax revenue in its $13 billion annual budget.
The next budget takes effect October 2017, meaning consumers must spend at least another year of paying taxes on diapers — both for babies and incontinent adults — and menstrual products.
It looks like the Texas legislature may take up the question, too, according to the Dallas Morning News:
The average woman spends 2,280 days — more than six years — of her life on her period. If she spends $7 a month on hygiene products (excluding medication and birth control) for 40 years, she’ll have shelled out more than $3,000 … plus tax.
Not anymore, five Democratic lawmakers hope. They’ve proposed doing away with taxes on “tampons, panty liners, sanitary napkins and other similar tangible personal property” for at least a limited time. * * *
The tampon tax bills in other states are often proposed by female lawmakers. In Texas, Rep. Ryan Guillen of Rio Grande City and Sen. Jose Rodriguez of El Paso join Reps. Carol Alvarado of Houston, Donna Howard of Austin and Sen. Sylvia Garcia of Houston in proposing a halt to the taxes.
Cosmopolitan magazine continues its coverage of the menstrual equity movement:
In the last year alone, the American Medical Association weighed in against tampon taxes. Jessica Williams railed against them on The Daily Show. And Chinese swimmer Fu Yuanhui made a fan of every menstruating Olympic viewer when she talked honestly about the challenge of swimming a relay the day after her period started. Amy Schumer told red-carpet reporters at the Emmys she was wearing “Vivienne Westwood, Tom Ford shoes, and an O.B. tampon.” In an interview with YouTube vlogger Ingrid Nilsen, no less than President Barack Obama was asked about tampon taxes. “I have no idea why states would tax these as luxury items,” he said. “I suspect it’s because men were making the laws when those taxes were passed.” Take a minute on that. The president talked about periods!
All the taboo breaking and tampon-tax slashing has helped launch a movement for what [Jennifer] Weiss-Wolf calls menstrual equity. Why do so many of our policies fail to account for this core reality of women’s lives, she asks? And if periods are the great equalizer that all women have in common, why do we have such vastly different access to products? On campuses and in offices, women’s shelters, and jails, activists are calling attention to how critical it is to have access to period products. It’s not just about women’s finances — it affects the freedom to work, study, and move about the world with basic dignity.
Read the full article here.
Bridget J. Crawford recently spoke with Laura Strausfeld of Period Equity, a non-profit organization located in New York City focused on all aspects of menstrual fairness. Ms. Strausfeld developed a key legal strategy used in the New York case that challenged the New York “tampon tax,” the state sales tax imposed on feminine hygiene products. The Complaint in Seibert, et al. v. N.Y. State Dep’t of Taxation and Finance, et al. was filed on March 3, 2016. On May 25, 2016, the New York State legislature voted to exempt feminine hygiene products from state sales taxes.
In this interview, Ms. Strausfeld explains some of the background to the case and her work on behalf of menstrual equity.
Bridget Crawford: Can you explain how you got involved in the litigation that sought to end the tampon tax in New York?
Laura Strausfeld: I researched a case against New York State when I was a Columbia Law student 25 years ago—the tampon tax has always been illegal!—and tried at various moments over the years to interest law firms in filing a class action. (When I lived and worked in California, I also researched a case there.) In early 2016, I began to see articles in the media about the unfairness of the tax, many of which were forwarded to me by friends who had heard me talk about this issue. I reached out to Jennifer Weiss-Wolf, the most prolific and organized “menstrual equity” advocate (and coiner of that term), and asked if she thought a class action could help the cause. She was very supportive and I sought out Ilann Maazel, at the law firm Emery Celli Brinckerhoff & Abady LLP, who agreed to represent the plaintiffs who wanted to file the complaint.
Crawford: When you say you researched a case 25 years ago, do you mean you were doing the research to build a case, or there was an actual case filed in New York?
Strausfeld: There was no actual case filed until March of this year. Several times over the last 25 years, I researched the relevant legal issues across several states, including New York. Tampons and pads have been variously categorized as taxable ‘cosmetics’ and more recently in New York State as ‘feminine hygiene products,’ as distinguished from tax-exempt medicinal items. The Seibert case drew on a memo I drafted in 2002.
Crawford: What had gotten you started thinking about these issues in the first place?
Strausfeld: I’ve been asked this question a lot. I’ve always been interested in the history behind what I’ve referred to, to my children, as “dumb rules.” There are many instances in our lives where we find ourselves doing things that make no sense and, worse, are patently unjust and unfair. The practice may have made sense at the time it originated, but it makes no sense now. This interest is what motivated me to go to law school. And when I first moved to New York City to attend Columbia, I recall buying tampons and chapstick and noticing that I was taxed on the tampons and not on the chapstick. It was empowering as a law student to be able to look up the law and confirm my suspicion that there was no good reason for chapstick to be exempted from sales tax (on the ostensible ground it has a medical use) and not tampons.
Crawford: What had changed – either culturally or legally – between the time you first started thinking about these issues as a law student to the time when the lawsuit was filed in New York in 2016?
Strausfeld: Nothing at all changed legally. Over two decades, several bills were introduced in New York State to eliminate the tampon tax, but they never went anywhere. About six years ago, I was working with another law firm that was poised to file a class action, but we saw that a new bill had been introduced in the State Legislature so we decided to hold off. Too many times in a row, I naively believed a bill to end the tampon tax would finally get through. What changed culturally, though, was of huge importance to the success of the lawsuit: a growing awareness of how unfair the tampon tax is, paired with examples of other countries, such as Kenya and Canada, in equitably changing the law.
Another thing that changed over twenty years is me. The tampon tax case is one of dozens of projects I’ve undertaken, including researching other lawsuits. In the context of fighting for equal pay and reproductive rights, among other vital causes, I initially viewed the tampon tax case as trivial in comparison. In retrospect though, the tampon tax case goes to the heart of the problem for women’s rights—and that’s the historical underrepresentation of women in government. Sales tax laws were passed across the country from the 1930s to the 1960s. Most of these laws exempted necessities of life. Women weren’t present, though, to make fellow legislators aware that menstrual supplies are, in fact, necessities. And this problem is lodged in many other laws adversely affecting us today. Eliminating the tampon tax is an important milestone, in other words, to eradicating other laws adversely affecting women.
Crawford: Could you update us on the current status of the case?
Strausfeld: The case against New York State has been voluntarily dismissed by the plaintiffs. Continue reading
Italy’s constitutional court has ruled that parents may opt to give their children either the mother or the father’s surname, or both. The practice of automatically giving a child the father’s surname is a violation of the mother’s rights. The European Court of Human Rights had found in Cusan and Fazzo v. Italy (2014) that the Italian law violated Article 14 (taken together with Article 8) of the European Convention on Human Rights which requires equal treatment of persons without regard to sex.
Text of Article 14:
The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
From Connecticut College’s The College Voice:
On Nov. 2, students and administrators gathered in the lobby of Cro to celebrate the launch of free menstrual health products in select bathrooms on campus. The pilot program, spearheaded by Emma Horst-Martz ’18, was implemented in collaboration with SGA, the administration and student health services. Although nearly 86 percent of women report experiencing their period in public without easy access to needed menstrual supplies, few colleges currently provide students with free pads and tampons. If her pilot program is institutionalized, Horst-Martz noted in her speech to supporters, Conn may emerge as one of the first colleges in the U.S. to distribute menstrual products with administrative financial backing. * * *
Conn’s tampon and pad pilot program recognizes the financial burden of menstruation. To purchase menstrual supplies costs an average $18,171 over the length of one’s life. The sales tax imposed on sanitary products, the so-called “tampon tax” or “pink tax,” has been dismantled in only a handful of states. Most states tax tampons and pads as luxury items even though they are, in fact, necessities. Students struggling to pay for school, Horst-Martz says, may face difficulties allocating money toward necessary toiletries.
Read the full article here.
Via the Washington Square News (here), the student newspaper at New York University:
Will other universities beside Brown and Minnesota soon follow suit?
From colleagues at Concordia:
Background: Concordia University School of Law, located in Boise, Idaho, invites applications for a tenure-track position beginning in the 2017-18 academic year. Candidates for the position must clearly demonstrate the potential for excellence in research and teaching and have a record of (or clear potential for) distinguished scholarship. Our goal is to recruit dynamic, bright, and highly motivated individuals who are interested in making significant contributions to our law school and its students. Practice experience is preferred, and teaching experience is desirable. As a Lutheran institution of higher education, we seek candidates who will support our mission and promote Lutheran values.
Special Instructions to Applicants: Questions about the position can be directed to the Chair of the Committee. Applicants should submit a current Curriculum Vitae, a statement of faith, and a letter of interest to https://cu-portland.csod.com/ats/careersite/JobDetails.aspx?id=118. Please also provide the names and email addresses of three individuals prepared to speak to your professional qualifications for this position. Please note: these references will not be contacted immediately, but may be contacted at an appropriate later point in the review process. Additional materials related to teaching excellence and samples of scholarly publications may be emailed to the Victoria Haneman, Chair of the Committee, at firstname.lastname@example.org. Review of applications will begin immediately and continued until the position is filled. Concordia University reserves the right to give preference in employment based upon religion in order to further the Lutheran objectives of the University and the Lutheran Church-Missouri Synod.
Thompson Chemists in the Soho neighborhood of New York City got some attention this week when it posted signs saying “All female customers shop tax free” and “All male customers subject to a 7% man tax.” Here’s some press coverage of the event from Gothamist:
Jolie Alony, who has owned the pharmacy for 22 years and lives in SoHo, said she wants men who shop at her store to understand the extra costs that women bear when they shop.
“We want to bring awareness on how it feels to be a woman, so the men actually get to feel it,” she said. * * * Despite what her signs say, Alony explained, men aren’t actually coughing up more than they normally would at the register; rather, she’s offering a 7 percent discount for women—effectively cutting out sales tax. She’s still required to report all sales and pay out the sales tax in full, so, she said, she’s just making up the difference herself.
The policy is being run as a promotion—Alony said she’ll see how the day goes and decide if she wants to keep it in place.
Calm down SoHo friends!
As stated in the article: “men aren’t actually coughing up more than they normally would at the register; rather, she’s offering a 7 percent discount for women—“
this makes up for how women are often overcharged for over-the-counter and beauty products (on average 7% according to the NYC Department of Consumer Affairs).
This is a friendly reminder to treat your friends and neighbors as equals and to read articles in their entirety before passing judgment.
With love from your neighborhood pharmacy,
The Gothamist article says that the New York City Department of Consumer Affairs “wrote back to Gothamist to explain that there’s no legal issue with the Thompson Chemist promotion, as there isn’t a prohibition on price discrimination for goods. It is illegal, however, to discriminate in the pricing of services.” I would be surprised if it is correct that vendors can legally discriminate in price, based on the sex of the customer. The finer point is that Thompson Chemists is essentially giving a discount to women and not men by paying the women’s sales tax themselves. In other words, Thompson Chemists is still on the hook for paying to New York State the sales tax on all of the (taxable) property it sells; the store is simply choosing to cover some of the tax itself.
I love the awareness that Thompon Chemists is raising, but I do wonder if it is legal to offer discounts to one group and not the other, on the basis of sex. Or, are discounts so inherently discretionary that the law defers to the judgment of the store offering the discount? Con Law experts, please chime in.
Earlier this week, members of Aktivistin.ch, a feminist collective in Zurich, Switzerland, ooured food dye into various public fountains in order to protest the tampon tax.
Here’s an excerpt from English-language press in Switzerland:
Spokeswoman Carmen Schoder said the #happytobleed action was meant to prompt discussion on attitudes towards the female body.
“Many people still see menstruation as something shameful,” she said, adding that people were afraid to talk about it.
The organization is angry at the fact that tampons and sanitary towels are taxed at a rate of eight percent, and not at the rate of 2.5 percent which applies to most items of daily use.
“Tampons are seen as a luxury product and women are financially disadvantaged,” Schoder said. The tax gave the impression that sanitary products were not a requirement.
The Zurich authorities, which had to clean the fountains, complained that the water was meant for public consumption and should not be misused for publicity purposes.
Read the full coverage here.
Please see the “second edition” of the White Paper on Title IX & the Preponderance of the Evidence at the link below, including the first 100 signatures from law professors across the country. We will continue to accept signatures from law faculty members as long as law faculty members wish to sign on to the White Paper, and we will post updated editions of the White Paper as we receive additional signatures. To add yourself as a signatory, please email your full name and the URL for your faculty webpage to Nancy Chi Cantalupo at email@example.com.
I mentioned here that students in the Legislation Clinic at the University of the District of Columbia David A. Clarke School of Law were among those testifying on behalf of the proposed legislation repealing D.C. tax on diapers and menstrual hygiene products.
This is a concrete example of how student advocacy can lead to real-life impact. Congratulations to Professor Marcy Karin, who leads the Legislation Clinic at UDC, and to her students!
The Council of the District of Columbia’s Finance and Revenue Committee held hearings earlier this week on B21-696, the “Feminine Hygiene and Diapers Sales Tax Exemption Amendment Act of 2016.” Students in the Legislation Clinic at the University of the District of Columbia David A. Clarke School of Law were among those testifying on behalf of the proposed legislation.
Here’s an excerpt from the Washington Post’s coverage:
Advocates for women urged the D.C. Council to lift the sales tax on diapers, tampons and pads at the first public hearing Wednesday for legislation that is being promoted across the country.
“What, how and who we tax speaks volumes about what we value as a community and a city,” said Corinne Cannon of the D.C. Diaper Bank, adding that the savings in sales tax could allow families to buy an additional dozen diapers a month.
District residents currently don’t pay sales taxes on groceries and medically necessary drugs — including Viagra.
Some advocates said taxes on feminine hygiene products were like a tax for being a woman, and argued that jurisdictions should not classify them as “luxury goods.”
At the hearing before the council’s finance and revenue committee, about a half-dozen women testified in favor of suspending the taxes. The committee’s chair, Council member Jack Evans (D-Ward 2), said he supported the legislation.
Maryland doesn’t tax tampons and diapers; Virginia does. A bill that would eliminate the taxes on feminine hygiene products failed in Virginia this year.
The full WaPo article is here.
Cambridge University Press has published a new book by Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex University, UK), Lifetime Disadvantage, Discrimination and the Gendered Workforce. Here is the publisher’s description:
Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women’s labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women’s discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.
Thomas Jefferson has a nice press release here.
A New Jersey couple has filed a class action lawsuit against retailer Costco for improperly charging sales tax on toilet paper, when the state law specifically exempts toilet paper from the tax. See the CNBC story here.
This case is not quite analogous to the class action suits challenging the tampon tax in New York (see here) and Florida (see here) because toilet paper is specifically exempt from taxation under New Jersey law, whereas in New York and Florida, menstrual hygiene products are subject to tax. But the Costco case is helpful as an example of large class action sales tax refund case. If the tampon tax were found to be unconstitutional when imposed in New York (which repealed its tampon tax prospectively) or Florida, massive refunds would be in order. I’ll be following the Costco/toilet paper case with interest.
Erwin Chemerinsky (UC Irvine) published a column in last week’s Los Angeles Daily News. Here is an excerpt:
If the government were to say that only men or only women had to pay an additional tax of several hundred dollars a year solely because of their sex, that would clearly be an unconstitutional denial of equal protection. Yet that is exactly the effect of California imposing a tax on tampons and sanitary pads. * * * [T]axing tampons and sanitary pads is sex discrimination. Only women use these products, and thus only women pay the tax.
Read the full column here.
Francine Lipman (UNLV) blogs here at the Surly Subgroup about newly-released national and state poverty statistics. The post is a short and clear explanation of how significant anti-poverty relief is delivered through the tax code to millions of people, including over 4 million children. The post is worth a read.
The Wisconsin Journal of Law, Gender & Society has announced its 2017 symposium and this Call for Papers:
Women in the Boardroom:
The Social and Business Arguments that Challenge Executive Board Homogeneity
The positive correlation between the increase of women within corporate boardrooms and financial performance has initiated global business and social debates regarding the need for more diversity within executive boardrooms. We are seeking original scholarship, from both scholars and practitioners, addressing either or both the business and social arguments that surround an effort to increase women presence within the executive, corporate industry.
Ideally, proposals would highlight:
Interested parties should send an abstract, plus a 3-5 page outline to firstname.lastname@example.org by November 1, 2016. Those selected for the Symposium will be asked to present their scholarship in our Symposium and will be offered the opportunity to be published in our April 2017 Symposium issue. The selected authors will be notified by mid-November 2016.
Canadian Journal of Women and the Law/Revue Femmes et Droit
Volume 28, Issue 2, August 2016
CJWL online – http://bit.ly/cjwl282
Project MUSE – http://bit.ly/cjwl282pm
EDITORIAL / ÉDITORIAL
Sexualized Violence and Colonialism: Reflections on the Inquiry into Missing and Murdered Indigenous Women
Sherene H. Razack
Canadians live in a society where missing and murdered Indigenous women are so commonplace an occurrence that, for two years now, volunteers have organized to dredge the river that runs through the city of Winnipeg looking for the bodies of Indigenous girls and women who have disappeared. “Drag the Red,” as this organization is called, has yet to find any bodies, but its dredging operations often catch women’s underwear.1 The sheer horror of the prospect of Indigenous girls and women lying at the bottom of the river, a river that volunteers dredge, has yet to hit most Canadians, but, in 2015, Canadians elected a government that announced its intention to hold a national inquiry into missing and murdered Indigenous women, women who are unaccounted for across the country.
This issue came together after a symposium, jointly organized by the Canadian Journal of Women and the Law and the Canadian Feminist Alliance for International Action, in partnership with the Native Women’s Association of Canada on 30–31 January 2016, explored the prospect of a national inquiry. Indigenous women leaders, family members of missing and murdered women, academics, and activists, joined by six human rights experts from the United Nations and the Inter-American Commission on Human Rights, came together to explore what an inquiry into missing and murdered Indigenous women could accomplish…. http://bit.ly/cjwl282a
Violence sexualisée et colonialisme : réflexions relatives à l’enquête sur les femmes autochtones disparues et assassinées
Sherene H. Razack
Les Canadiennes et Canadiens vivent dans une société où la disparition et le meurtre de femmes autochtones sont tellement monnaie courante que, depuis maintenant deux ans, des bénévoles draguent la rivière qui traverse Winnipeg dans l’espoir d’y retrouver des corps de filles et de femmes autochtones disparues. « Drag the Red » (draguer la Rouge), le nom de l’organisation, n’a pas encore trouvé de corps, mais ses travaux de dragage ont souvent permis de ramasser des sous-vêtements féminins1. En général, les Canadiennes et Canadiens n’ont pas encore saisi à quel point c’est une horreur sans nom de penser que des filles et des femmes autochtones gisent au fond de cette rivière que draguent des bénévoles, mais en 2015, ils ont élu un gouvernement qui a annoncé son intention de mener une enquête nationale sur les femmes et les filles autochtones disparues et assassinées qui manquent à l’appel dans tout le pays.
Ce numéro spécial de la revue est issu d’un symposium tenu les 30 et 31 janvier 2016 et organisé conjointement par la Revue Femmes et droit et l’Alliance canadienne féministe pour l’action internationale, en partenariat avec l’Association des femmes autochtones du Canada, qui évoquait la possibilité d’une enquête nationale. Des leaders autochtones, les familles des femmes disparues ou assassinées, des universitaires et des militantes, avec six experts en droits de la personne des Nations Unies et de la Commission interaméricaine des droits de l’homme, examinaient ce que pourrait accomplir une enquête sur les filles et les femmes autochtones disparues ou assassinées.
ARTICLES / ARTICLES
Shining Light on the Dark Places: Addressing Police Racism and Sexualized Violence against Indigenous Women and Girls in the National Inquiry
Canada has had a long-standing problem with both societal and institutional racism against Indigenous peoples, especially within the justice system. Numerous national inquiries, commissions, and investigations have all concluded that every level of the justice system has failed Indigenous peoples. More recent inquiries indicate that racism against Indigenous peoples is particularly problematic in police forces in Canada. Yet, despite the evidence, little has been done in Canada to act on the recommendations. This has resulted in the over-incarceration of Indigenous peoples, numerous deaths of Indigenous peoples in police custody, and the national crisis of thousands of murdered and missing Indigenous women and girls. This article seeks to highlight the lesser-known problem of police-involved racialized and sexualized abuse and violence against Indigenous women and girls as a root cause of the large numbers of murdered and missing Indigenous women and girls in Canada. It is argued that an in-depth look at police-involved disappearances, sexual assaults, and murders of Indigenous women should be included in a national inquiry into the high rates of murdered and missing Indigenous women and girls. It is hoped that such an investigation under the national inquiry will result in evidence-based analysis and recommendations for legislative and policy-based changes that are consistent with the human rights protections afforded Indigenous women and girls and with the calls for action by Canada’s Truth and Reconciliation Commission, various United Nations human rights bodies, and the families, communities, and nations of the Indigenous victims. http://bit.ly/cjwl282c
Sherene H. Razack
In 2011, thirty-six-year-old Cindy Gladue, a Cree woman, bled to death in a hotel bathtub in Edmonton, Alberta, Canada. On the night she died, Gladue had contracted for sexual exchange with Bradley Barton, a white man who worked as a trucker. In 2015, Barton was tried for the murder of Cindy Gladue. With more than 1,200 missing and murdered Indigenous women, there is compelling reason to focus on the violence Barton inflicted on Gladue, understanding it as a part of a history of the sexual brutalization and attempted annihilation of Indigenous women. To show that Gladue’s death and the trial of Barton for her murder are part of a history of colonial terror, it is necessary to unpack the framework utilized by the court, a framework that revolved around the ideas of consent and contract. I propose that we utilize a framework of disposability instead, focusing on the Indigenous woman’s expendibility in settler colonialism. Sexualized violence is key to disposability, and flesh is the site at which racial and sexual power are both inscribed. I emphasize the excessive violence that is meted out to Indigenous women as evidence of colonial power imprinted on their bodies. http://bit.ly/cjwl282d
A Long Road Behind Us, a Long Road Ahead: Towards an Indigenous Feminist National Inquiry
Since the invasion of North America by white male colonizers, Indigenous women and girls have been constructed as homogenized and dehumanized “Indian princesses” and “savage squaws.” These constructions, albeit false, have real consequences, resulting in disproportionate rates of male violence against Indigenous women and girls in the context of a contemporary for-profit rape culture. In 2015, the Canadian federal government announced a long-awaited inquiry into violence against Indigenous women and girls. This article recommends an expressly Indigenous feminist framework in order to comprehensively address the issue of male violence against Indigenous women and girls in a national inquiry. http://bit.ly/cjwl282e
Indian Act Sex Discrimination: Enough Inquiry Already, Just Fix It
This article links ongoing historical sex discrimination in the Indian Act to the high levels of violence against Indigenous women. The status provisions have been recognized as an underlying cause contributing to the existing vulnerabilities that make Indigenous women more susceptible to violence. Addressing violence against Indigenous women will be impossible unless and until the underlying discrimination is also comprehensively addressed. The author further contends that fixing the Indian Act does not require waiting for an inquiry. Successive federal governments have been well aware of the ongoing sex discrimination under the Act and its implications for Canada’s human rights record. The article concludes by calling for the immediate amendment of the status provisions in the Indian Act once and for all. http://bit.ly/cjwl282f
Missing and Murdered Indigenous Women Crisis: Technological Dimensions
Jane Bailey and Sara Shayan
This article considers how digital technologies are informed by, and implicated in, the systematic and interlocking oppressions of colonialism, misogyny, and racism, all of which have been identified as root causes of the missing and murdered Indigenous women crisis in Canada. The authors consider how technology can facilitate multiple forms of violence against women—including stalking and intimate partner violence, human trafficking, pornography and child abuse images, and online hate and harassment—and note instances where Indigenous women and girls may be particularly vulnerable. The authors also explore some of the complexities related to police use of technology for investigatory purposes, touching on police use of social media and DNA technology. Without simplistically blaming technology, the authors argue that technology interacts with multiple factors in the complex historical, socio-cultural environment that incubates the national crisis of missing and murdered Indigenous women and girls. The article concludes with related questions that may be considered at the impending national inquiry. http://bit.ly/cjwl282g
Balancing Transparency and Accountability with Privacy in Improving the Police Handling of Sexual Assaults
Amy Conroy and Teresa Scassa
This article considers the potential for the adoption in Ontario of a model, developed in Philadelphia and implemented in other US cities, that has proven successful in significantly improving police handling of sexual assault cases and public confidence in the system. This model directly involves front-line sexual assault victim advocates working with police in systematic reviews of police sexual assault records, with a particular focus on “unfounded” cases. Resistance to the adoption of this model in Canada has focused on arguments around public sector privacy legislation. We therefore explore the Philadelphia model through a transparency and accountability lens in the Canadian context. We suggest that the concepts of “transparency” and “accountability” are too often conflated with the disclosure of data or information through access to information channels, and we argue for a more robust understanding of these concepts. We also argue that the conventional access to information model should not be allowed to obstruct meaningful transparency and accountability by using privacy arguments to create barriers to change. http://bit.ly/cjwl282h
Public Inquiries and Law Reform Institutions: “Truth Finding” and “Truth Producing”
Nathalie Des Rosiers
This article examines how the Murdered and Missing Indigenous Women and Girls Inquiry (MMIWGI) will be evaluated and what it means for its design and ambitions. It argues that a public inquiry, like a law reform body, must aim to be a “truth-finding” body as well as a “truth-producing” enterprise. It must understand itself as wanting to create the right leverage so that meaningful changes can occur, irrespective of whether its recommendations are immediately adopted or not. It can accomplish such a goal by having a process that becomes the message, by ensuring that it does not get derailed, and by proposing recommendations that set the stage for change, such as addressing the accountability vacuum and aiming to design a process that models the values and behaviour that it wants other institutions to adopt. http://bit.ly/cjwl282i
The Berger Inquiry in Retrospect: Its Legacy
The following article was originally presented as the inaugural lecture of the Willms and Shier Speaker Series in Environmental Law, in collaboration with the Centre for Environmental Law and Global Sustainability in the Faculty of Law at the University of Ottawa on 29 September 2015 by the Honourable Justice Stephen T. Goudge. Reflecting on the lessons and impacts of the McKenzie Valley Pipeline Inquiry, chaired by then Justice Thomas Berger, the article considers the lasting impact of the Berger Inquiry forty years later, including the successful recommendation to abandon plans to develop the north slope of the Yukon, in favour of conservation. The Berger Inquiry has had lasting social impacts by contributing to the rise of a collective northern voice and highlighting the fundamental importance of Indigenous interests in charting the future. In his postscript, Justice Goudge adds his hope that the Missing and Murdered Indigenous Women Inquiry will emulate the Berger Inquiry in three fundamental ways: by developing inquiry processes that build trust among those most affected; by proposing expeditious and timely recommendations; and, most importantly, by doing what is right. http://bit.ly/cjwl282j
The National Inquiry on Murders and Disappearances of Indigenous Women and Girls Recommendations from the Symposium on Planning for Change: Towards a National Inquiry and an Effective National Action Plan
Feminist Alliance for International ActionNative Women’s Association of Canada
On 30–31 January 2016, the Native Women’s Association of Canada, the Canadian Feminist Alliance for International Action, and the Canadian Journal of Women and the Law convened a symposium in Ottawa to engage in dialogue about the upcoming national inquiry on the murders and disappearances of Indigenous women and girls. Forty Indigenous women leaders, family members of murdered and disappeared women, academics, and allies were joined by six human rights experts from the United Nations and the Inter-American Commission on Human Rights. This document is distilled from presentations and dialogue at the symposium…. http://bit.ly/cjwl282k
L’enquête nationale sur les meurtres et disparitions de femmes et de filles autochtones
Document final du Symposium sur les Meurtres et disparitions de femmes et de filles autochtones planifier le changement : Vers une enquête nationale et un Plan d’action national efficace
Feminist Alliance for International ActionNative Women’s Association of Canada
L’Association des femmes autochtones du Canada, l’Alliance canadienne féministe pour l’action internationale et la Revue Femmes et droit ont organisé à Ottawa, les 30 et 31 janvier 2016, un symposium en vue d’entamer un dialogue au sujet de l’enquête nationale à venir sur les meurtres et disparitions de femmes et de filles autochtones. Quarante leaders féminines autochtones, des membres des familles des femmes et des filles disparues et assassinées, des universitaires et des alliés ont été rejoints par cinq expertes en droits de la personne des Nations Unies et un expert de la Commission interaméricaine des droits de l’homme. Le présent document est issu des présentations et des dialogues qui ont eu lieu pendant le Symposium. … http://bit.ly/cjwl282l
BOOK REVIEWS / CHRONIQUES BIBLIOGRAPHIQUES
Re-Imagining an Agentic Ashley: Looking for Ashley: Re-Reading What the Smith Case Reveals about the Governance of Girls, Mothers and Families in Canada by Rebecca Jaremko Bromwich
Josephine L. Savarese
Dying from Improvement: Inquests and Inquiries into Indigenous Deaths in Custody by Sherene H. Razack
Information posted originally for Canadian Journal of Women and the Law by T. Hawkins.
I am excited to announce that Feminist Judgments: Rewritten Opinions of the United States Supreme Court has been published by Cambridge University Press. This volume, edited by Kathy Stanchi (Temple), Linda Berger (UNLV) and me includes contributions from over 50 law professors. After a very long wait, the book is now in hand. I couldn’t be more pleased and honored to see in print the work of so many outstanding national colleagues who worked together on this project.
What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? Feminist Judgments brings together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions reveal that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice. Feminist Judgments opens a path for a long overdue discussion of the real impact of judicial diversity on the law as well as the influence of perspective on judging.
A copy of the book’s (substantive) Introductory chapter and full Table of Contents is available on SSRN (here). A series of Feminist Judgments books is also in the works. We have plans for follow-on volumes that focus on Tax, Reproductive Justice, Employment Law, Family Law and Torts, to name just a few projects that currently in development. You can follow the Feminist Judgments project on Twitter @usfemjudgments
Here is a list of the cases and contributors to Feminist Judgments: Rewritten Opinions of the United States Supreme Court:
Introduction to the U.S. Feminist Judgments Project
Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford
Talking Back: From Feminist History and Theory to Feminist Legal Methods and Judgments
Berta Esperanza Hernández-Truyol
Chapter 3. Bradwell v. Illinois, 83 U.S. 130 (1873)
Commentary: Kimberly Holst
Judgment: Phyllis Goldfarb
Chapter 4. Muller v. Oregon, 208 U.S. 412 (1908)
Commentary: Andrea Doneff
Judgment: Pamela Laufer-Ukeles
Chapter 5. Griswold v. Connecticut, 381 U.S. 479 (1965)
Commentary: Cynthia Hawkins DeBose
Judgment: Laura Rosenbury
Chapter 6. Loving v. Virginia, 388 U.S. 1 (1967)
Commentary: Inga N. Laurent
Judgment: Teri McMurtry-Chubb
Chapter 7. Stanley v. Illinois, 405 U.S. 645 (1972)
Commentary: Nancy D. Polikoff
Judgment: Karen Syma Czapanskiy
Chapter 8. Roe v. Wade, 410 U.S. 113 (1973)
Commentary: Rachel Rebouché
Judgment: Kimberly M. Mutcherson
Chapter 9. Frontiero v. Richardson, 411 U.S. 677 (1973)
Commentary: Iselin M. Gambert
Judgment: Dara E. Purvis
Chapter 10. Geduldig v. Aiello, 417 U.S. 484 (1974)
Commentary: Maya Manian
Judgment: Lucinda M. Finley
Chapter 11. Dothard v. Rawlinson, 433 U.S. 321 (1977)
Commentary: Brenda V. Smith
Judgment: Maria L. Ontiveros
Chapter 12. City of Los Angeles Department Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)
Commentary: Cassandra Jones Havard
Judgment: Tracy A. Thomas
Chapter 13. Harris v. McRae, 448 U.S. 297 (1980)
Commentary: Mary Ziegler
Judgment: Leslie C. Griffin
Chapter 14. Michael M. v. Superior Court, 450 U.S. 464 (1981)
Commentary: Margo Kaplan
Judgment: Cynthia Godsoe
Chapter 15. Rostker v. Goldberg, 453 U.S. 57 (1981)
Commentary: Jamie R. Abrams
Judgment: David S. Cohen
Chapter 16. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
Commentary: Kristen Konrad Tiscione
Judgment: Angela Onwuachi-Willig
Chapter 17. Johnson v. Transportation Agency, 480 U.S. 616 (1987)
Commentary: Deborah Gordon
Judgment: Deborah L. Rhode
Chapter 18. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Commentary: Dale Margolin Cecka
Judgment: Martha Chamallas
Chapter 19. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Commentary: Macarena Sáez
Judgment: Lisa R. Pruitt
Chapter 20. United States v. Virginia, 518 U.S. 515 (1996)
Commentary: Christine M. Venter
Judgment: Valorie K. Vojdik
Chapter 21. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
Commentary: Margaret E. Johnson
Judgment: Ann C. McGinley
Chapter 22. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998)
Commentary: Michelle S. Simon
Judgment: Ann Bartow
Chapter 23. United States v. Morrison, 529 U.S. 598 (2000)
Commentary: Shaakirrah R. Sanders
Judgment: Aníbal Rosario Lebrón
Chapter 24. Nguyen v. INS, 533 U.S. 53 (2001)
Commentary: Sandra S. Park
Judgment: Ilene Durst
Chapter 25. Lawrence v. Texas, 539 U.S. 558 (2003)
Commentary: Kris McDaniel-Miccio
Judgment: Ruthann Robson
Chapter 26. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)
Commentary: Patricia A. Broussard
Judgment: Maria Isabel Medina
Chapter 27. Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
Commentary: Erez Aloni
Judgment: Carlos A. Ball
Brad Areheart (Tennessee) has posted to SSRN his working paper “The Symmetry Principle.” Here an abstract.
Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.
The full paper is available here.
From colleagues at FIU, who are looking for a speaker to round out an upcoming symposium, due to a last-minute cancellation by a previously-scheduled speaker:
Florida International University College of Law will be holding a symposium on reproductive rights, “New Approaches and Challenges to Reproductive Justice” on November 3-4, 2016. We are looking for one speaker to fill a panel. The talk can be on any aspect of reproductive rights but we are particularly interested in hearing from scholars working on race and reproductive rights or Latina perspectives on law and reproductive rights. There is an opportunity to also publish a short piece based on the talk. FIU is an R1 public research institution in Miami. The law review will cover costs of travel and accommodation to Miami. Please contact, Professor Cyra Akila Choudhury at email@example.com by September 16 with a 200-word abstract if you are interested.
Instagram is at it again. Remember when Instragram twice deleted the photo by Rupi Kaur of a fully clothed woman lying on a bed, because the woman’s trousers showed a period stain? (See here.) Looks like women’s periods are just … too gross for Instagram. Last week the company shut down photographer Harley Weir’s account because of art photographs of a model with menstrual blood on her legs. The images are viewable here. The images have now been restored to Instagram and the company has apologized.
Michael Higdon (Tennessee) has posted to SSRN his paper, Divorce and the Serial Monogamist: The Ex Ante Consequences of Legalized Polygamy. Here is the abstract:
The question of whether the fundamental right to marry might also include the right to polygamy is one that has long intrigued legal scholars. In the wake of Obergefell v. Hodges, that question has taken on even greater significance. Although other scholars have attempted to answer this question, this Article does so in a novel way. Specifically, this Article looks at the practice of polygamy through a law and economics lens, exploring the ex ante consequences of legalization, not on practicing polygamists, but on serial monogamists — i.e., those who never intend to have more than one spouse at any given time but are, nonetheless, prone to marry more than one person in their lifetime. When looked at in that manner, the degree to which legalized polygamy would harm the state becomes much more evident. After all, if polygamy were legal, the current laws prohibiting bigamy would no longer be in operation. In turn, separating couples would lose one of the strongest incentives they currently face to pursue formal divorce in lieu of simply deserting one another. In essence, then, a serial monogamist could marry multiple times in his lifetime without ever getting a divorce, safe in the knowledge that his actions are no longer subject to a criminal charge of bigamy. Such actions — dubbed “sequential polygamy” — are quite harmful to the state’s substantial interest in protecting its citizens from financial harms. Indeed, the current law of divorce is designed to encourage separating couples to elect that formal course of action so as to provide the state some assurance that those leaving a marriage are not doing so to their financial detriment. With the legalization of polygamy then, goes the prohibition against bigamy, thus eroding the state’s ability to encourage divorce as a means of protecting all its citizens; but in particular its poorest citizens, who would likely be hardest hit by any societal shift away from formal divorce.
The full article is available here.
From colleagues at the University of Baltimore:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform — or should inform — feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to firstname.lastname@example.org. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017.
Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com. For additional information about the conference, please visit law.ubalt.edu/caf.
Sarah Lynnda Swan, Columbia University Law School, is publishing Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate in volume 64 of the the Kansas Law Review (2016). Here is the abstract.
In the last few years, campus sexual assault has risen to prominence as a national public concern. As policy-makers scramble to figure out how best to address this problem, the contours of the conversation in scholarship, media articles, and policy-making have devolved into two competing adjudicative frameworks: criminal law or Title IX. In this criminal law versus Title IX debate, two questions dominate. First, who can better adjudicate claims of campus sexual assault: criminal courts using criminal laws, or schools using Title IX? Second, if schools do adjudicate sexual assault claims under Title IX, are students entitled to the same procedural protections as criminal defendants? In this Symposium piece, I argue that this criminal law versus Title IX framing is unduly narrow. It ignores a third, important mode of adjudication for sexual assault claims: tort law. In this essay, I show why tort law has been left out of the campus sexual assault debate, and the potential impact of its inclusion. Incorporating tort law into the campus sexual assault debate has three specific benefits. First, conceptualizing campus sexual assault as a tort reminds us that the same wrong can be legitimately framed and addressed in multiple ways. Second, tort law sets a useful standard for determining the scope of procedural protections in campus sexual assault proceedings. Third, tort law suggests that affirmative consent may be appropriate for campus sexual interactions. Ultimately, bringing tort law into the campus sexual assault debate opens up the vast and fertile ground between the two poles of criminal law and Title IX, and creates a space where better institutional design and a more effective solution to this social problem might be found.
Download the article from SSRN at the link.
Jon Herskovitz writes for Yahoo, “Texas Students Use Sex Toys to Protest New Gun Laws On Campus“:
To protest a new state law that makes the carrying of concealed handguns legal in college classrooms, students at the University of Texas on Wednesday openly displayed sex toys, an act considered illegal under local indecency laws.
“We are fighting absurdity with absurdity,” said Jessica Jin, leader of the protest called “Cocks Not Glocks: Campus (Dildo) Carry,” where hundreds of sex toys were given away at the rally on Wednesday that coincided with a return to classes at university’s flagship campus.
“Texas has decided it is not all obnoxious or illegal to allow deadly concealed weapons on campus. But walking around with a dildo could land you in trouble,” Jin said.
On Aug. 1, a so-called “campus carry” law backed by the state’s Republican political leaders went into effect that allows concealed handgun license holders aged 21 and older to bring handguns into classrooms and other university facilities.
Read the full story here.
From the Huffington Post (here):
The same bill unanimously passed in the Assembly in early June. It now heads back to the Assembly for final approval, and then to Gov. Jerry Brown (D), whose office declined to say if he will sign the bill into law or not. The measure would save California women an estimated $20 million annually, and has the support of the state’s tax board .
California is one of 39 states where tampons, pads and other similar items are not classified as necessities and are thus subject to sales tax, unlike many other medical products .
The legislation, introduced by state Assemblywomen Cristina Garcia (D) and Ling Ling Chang (R) earlier this year, would exempt menstrual products from the state sales tax. The bill’s proponents argue that items like tampons are not simply “feminine hygiene products,” but a medical necessity for women, and that subjecting the products to sales tax is a glaring example of gender inequality.
“The state of California should not be in the business of putting a tax on half the population because they were born as women,” Garcia told The Huffington Post in April.
Read the full article here.
Call for Papers – Friday September 16th Deadline
The Feminist Legal Theory Collaborative Research Network
Seeks submissions for the
Law and Society Association Annual Meeting
Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017
Dear friends and colleagues,
We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.
This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.
Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.
The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.
As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.
The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.
The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.
If you would like to present a paper as part of a CRN panel, please email:
to the CRN Planning Committee at firstname.lastname@example.org. (Please do not send submissions to individual committee members.)
Note that LSA is imposing a requirement that your summary be at least 1,000 words long. Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.
In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.
Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.
We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.
2017 LSA Feminist Legal Theory CRN Planning Committee
Aziza Ahmed (co-chair)
Elizabeth MacDowell (co-chair)
Cyra Akila Choudhury
Please see the “second edition” of the White Paper on Title IX & the Preponderance of the Evidence at the link below, including the first 100 signatures from law professors across the country. We will continue to accept signatures from law faculty members as long as law faculty members wish to sign on to the White Paper, and we will post updated editions of the White Paper as we receive additional signatures. To add yourself as a signatory, please email your full name and the URL for your faculty webpage to Nancy Chi Cantalupo at email@example.com.
From the FLP mailbox:
Intersectional Inquiries and Collaborative Action: Gender and Race
University of Notre Dame
Notre Dame, Indiana USA
March 2-4, 2017
Deadline for submissions: Saturday, October 1, 2016
Questions of race and gender continue to undergird broad sections of inquiry in the academy and beyond. The ongoing legacies and current manifestations of racism and sexism continue to demand intellectual analysis, institutional recognition, and collective intervention. Reaching a critical crescendo during the political upheavals of the 1960s’ civil rights/anti-colonial era and the responding cultural turn in the humanities, Black feminists have discussed the ways in which both race and gender are co-constitutive and rely on intersecting paradigms of power and constructions of difference. Indeed, the concept of “intersectionality,” coined by Kimberlé Williams Crenshaw, has become a key mode of framing how identities and sites of contestation around identity are multiple and complex. Furthermore, critics and activists from a myriad of socio-political milieus have underscored the importance of intersectional approaches in struggles for social justice and in the making of inclusive public spaces. From feminist scholarship to human rights policy to commentary via Twitter memes, intersectionality as a theoretical concept, method of analysis, and mode of collaborative action circulates in both grassroots and intellectual discourse.
The Intersectional Inquiries conference will offer a platform for scholars from various fields to interrogate the intersections of race and gender–as manifested materially and discursively–from a broad range of historical, global, and contemporary contexts. We call on scholars, activists, and students to attend rigorously to the ways that race structures gender, sexualities, class, and dis/ability and the dominating matrices of biopolitical violence and imperialism, as well as to trace how racialized subjectivities and non-normative embodiments challenge and radically fracture hierarchy. With this conference, our hope is to inspire impactful intellectual dialogue and assist in building ties that might lead to scholarly- and social justice-focused collaborations.
Our confirmed keynote speaker is Professor Patricia Hill Collins, Distinguished University Professor of Sociology at the University of Maryland, College Park. Professor Collins recently co-authored Intersectionality (Polity 2016) with Sirma Bilge. Her first book, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (Routledge 1990), won the Jessie Bernard Award of the American Sociological Association for significant scholarship in gender, and the C. Wright Mills Award of the Society for the Study of Social Problems. Professor Collins is also the author and editor of several books dealing with race, gender, education, and politics, including On Intellectual Activism (Temple 2012); Another Kind of Public Education: Race, the Media, Schools, and Democratic Possibilities (Beacon 2009); and From Black Power to Hip Hop: Racism, Nationalism, and Feminism (Temple 2006).
The Organizing Committee invites proposals for individual papers, pre-constituted panels, pre-constituted roundtables, and creative works that address one or more of the following topics, or other topics aligned with the conference theme:
coloniality and imperialism
violence, terror, and war
social movements and activism
religion and spirituality
environment, climate change, and sustainability
space, place, and geography
labor and economics
family and marriage
literature, visual culture, and performance
popular culture (social media, film, television, music, sports, gaming, etc.)
digitization and technicity
theory and/or methodology
The deadline for submissions is 11:59 PM (US Eastern Daylight Time) on Saturday, October 1, 2016.
Please submit your proposal here: NDIntersectional.submittable.com/submissions You will first need to become a member of Submittable (which is easy and free).
To allow for as many voices as possible at the conference, proposers may apply for only two of the following roles: paper presenter, creative works presenter, panel chair, roundtable coordinator, or roundtable participant.
We welcome submissions from scholars, activists, artists, and students, including those at the undergraduate level.
Open Call Papers
Individuals submitting paper proposals should provide an abstract of 250 words, a short bio, and contact information. Co-authored papers are acceptable.
Panel chairs should submit a 250-word rationale for the pre-constituted panel as a whole. For each participant, chairs should submit a 250-word presentation abstract, a short bio, and contact information. Panels should include 3-4 papers. Co-authored papers are acceptable. Panels that include a diversity of panelist affiliations and experience levels are strongly encouraged.
Roundtable coordinators should submit a 250-word rationale for the pre-constituted roundtable as a whole. For each participant, coordinators should submit a 250-word abstract of planned comments, a short bio, and contact information. Roundtables should include no more than 6 participants (inclusive of coordinator). Roundtables that include a diversity of panelist affiliations and experience levels are strongly encouraged. Roundtable participants’ remarks at the conference should be brief in order to create substantive discussion with attendees.
Open Call Creative Works
Proposals for audiovisual and other creative works should consist of a 250-word abstract (including the length and format of the work), a short bio of the producer/director, contact information, and requirements for exhibition. Co-authored work is acceptable. If the work is viewable online, please submit a URL.
Please direct any questions about the conference and the submission process to: NDIntersectional@gmail.com.
Updates about the conference schedule, events, travel and lodging, and more will be posted here.
Conference Organizers: Tara Hudson, Z’étoile Imma, Mary Celeste Kearney, and Christine Venter, University of Notre Dame.
Alison Piepmeier, currently receiving hospice care for brain cancer, has written a beautiful column for the Charleston City Paper. Here is an excerpt:
What does it mean when the rest of your life may be measured in weeks? My brain tumor is growing. I am in hospice care. I am surrounded, constantly, by family and friends.
There are too many acts of kindness to report. People send me meals, cookies, and delicious treats from Charleston and all over the country. I receive prayers and poems. There are volunteers teaching Maybelle to ride a bike, because I can’t. Maybelle, Brian, and I have more loving offers of support than we can possibly accept.
Of course, I know what’s up. All this amazing generosity is, sadly, another sign of my imminent death. How can I exist in this place, where I’m so grateful and so sad? * * *
I am a tenured full professor who can’t pee without help. A scholar of feminist disability studies who now lives in disability’s embrace.
In a future that may only be days away, I will lose the ability to communicate before losing the ability to live. For now, my constant failures to understand and to make meaning are signs of things to come. The simplest conversation drags on as I struggle to find the right words. Dictating the first draft of this column took two hours, as my mother patiently typed.
Little by little, I’m learning that who I thought I was is sliding away. I’m sitting at the table holding coffee someone else made for me. Someone else is feeding Maybelle, putting her lunch together, getting her dressed and ready for summer camp. I’m just sitting there, no longer the mother helping Maybelle prepare for her day. * * *
I hope this won’t be my last column. Perhaps, though, knowing that it might be is a gift I should accept.
Because I should not go without saying thank you to all those whose caring has sustained me and whose kind words have created many moments of joy and beauty. Even as I feel myself slipping away, I know that Maybelle will be held up, supported for the rest of her life by a community’s love more deep, more powerful, more transcendent than any I could supply. * * *
To my brothers, parents, friends, teachers, students, co-workers, lovers, and readers, I ask forgiveness for anything I’ve done to hurt you. Thank you for my beautiful life.
If there’s a heaven, or whatever, I’ll see you there.
Read the full column here.
In the annals of weird product placement, consider this story out of the UK about the Universities and Colleges Admissions Service sending female college applicants samples of tampons and sanitary napkins “so you can stay your fresh and confident self as you prepare for whatever next year brings.” From one Twitter user:
According to the (UK) Independent (here):
Both Ucas and Procter & Gamble have yet to respond to the Independent’s request for comment. However, a Ucas spokesperson told The University Paper it regularly works with companies that provide useful products and services aimed at students, and that females who opted in to receiving commercial emails were recently alerted to let them know they would be sent samples.
Let’s hope the Law School Admission Council doesn’t follow this example.
Bridget J. Crawford recently spoke with Zoe Salzman, Esq. of Emery Celli Brinckerhoff & Abady LLP in New York. Ms. Salzman is representing the plaintiffs in a class action that challenges the New York “tampon tax,” the state sales tax imposed on feminine hygiene products. The Complaint in Seibert, et al. v. N.Y. State Dep’t of Taxation and Finance, et al. was filed on March 3, 2016. On May 25, 2016, the New York State legislature voted to exempt feminine hygiene products from state sales taxes.
In this interview, Ms. Salzman explains why the plaintiffs sought to challenge the law, how a claim for sales tax refunds would work and why the case is important
Bridget Crawford: Can you tell me a little bit about how this case came about?
Zoe Salzman: We’ve seen increasing attention to the discriminatory tampon tax at both the national and international levels. There had been attempts in New York to repeal the tax with legislation – but nothing was happening. We decided it was time to force change through litigation.
Crawford: How did you become involved in the case?
Salzman: Some women who were already working to end the tampon tax approached our firm and suggested that we get involved. Once we learned about the issue, we were determined to do something about it.
Crawford: The tampon tax has gotten coverage in many media outlets, including Time and Cosmopolitan magazine. What is it about the cultural zeitgeist that makes people so interested in this issue?
Salzman: Maybe the fact that a lot of people still think “tampon” is a dirty word and it’s scandalous to see it in print? But all joking aside, I think people are drawn to this issue because the tampon tax is so obviously wrong, discriminatory, and unjustifiable. It’s not often that an issue is this clear-cut. Women and men alike are shocked and I think that leads them to be inspired by this campaign.
Crawford: Why did your clients want to pursue legal action, even though there was already some indication that the New York State legislature was moving in the direction of a repeal of the sales tax on feminine hygiene products?
Salzman: Attempts to repeal the tampon tax through legislation had been languishing in Albany for years. Earlier this year, Utah rejected a similar measure. New York women were tired of waiting and so we turned to litigation—and, lo and behold, after we filed our case, the legislature and the governor got motivated enough to finally end the tampon tax. There’s no question that the lawsuit brought a lot of attention to this issue and was a powerful catalyst for change.
Crawford: I notice that this case has five named plaintiffs. What went into the decision to have more than one named plaintiff? How were they selected?
Salzman: A lot of women wanted to be plaintiffs in this lawsuit. Every woman I spoke to was outraged and shocked by this unfair, regressive tax. The five plaintiffs who put their names on the lawsuit saw themselves right from the beginning as standard-bearers for all New York women. They are a diverse group, from all walks of life, but all of them were burdened by this discriminatory tax and all of them were determined to do something to end it.
Crawford: Your Complaint asks for both declaratory relief – essentially a ruling that the sales tax should not apply to feminine hygiene products – and refunds of past sales tax paid. How does the subsequent repeal of the New York sales tax on these products impact your case?
Salzman: The change in the law moots the injunctive claims but the refund claims remain.
Crawford: How does a sales tax refund work in New York? Would it come from the state government, or does it come from the retail vendor of the product? Is there a time period beyond which refunds could not be granted, like only with respect to sales in three years prior to any decision?
Salzman: The State collected the tax, so the refund would come from the State. We have claims under federal law for the violation of the federal Equal Protection Clause and the Due Process Clause and the statute of limitations for those claims is three years.
Crawford: Practically speaking, if women were to win this case, how would they get refunds? Would they have to show receipts? Not that many people hang onto receipts for everyday purchases from the corner store last week, let alone last month or last year. What would happen to any unclaimed award?
Salzman: That will have to be worked out after additional discovery in the case and the assistance of experts, but there are several options for how the refunds could be distributed. Class actions distribute refunds to millions of people all the time.
Crawford: Your Complaint estimates that New York State collects approximately $14 million in sales tax on tampons and other feminine hygiene products. Is there any precedent in New York for that level of refund claim being paid in the context of a sales tax imposed on a consumer product?
Salzman: I haven’t researched that issue specifically. Certainly people apply for and receive refunds from the State all the time – here, the size of the refund reflects the amount the State unlawfully collected from New York women for years under the guise of this discriminatory tax. The State gets the benefit of the three year statute of limitations, but the reality is that the damage to women who have been paying this tax their entire lives is far greater. It’s also a small fraction of the entire annual New York State budget – less than one hundredth of one percent.
Crawford: One interesting thing about this case is that the New York Department of Taxation and Finance seems to have made a very deliberate decision to tax tampons and pads, whereas adult diapers, incontinence pads, condoms and hair regrowth treatments like Rogaine are not subject to tax. Why do you think the Department decided to tax tampons and pads? Do you think there was a discriminatory intent? Continue reading
Bridget J. Crawford recently spoke with Dana Brooks Cooper, Esq. of Barret, Fasig & Brooks in Tallahassee, Florida. Ms. Brooks is representing the plaintiff in a class action that challenges the Florida “tampon tax,” the state sales tax imposed on feminine hygiene products. The Complaint in Wendell v. Florida Department of Revenue et al. was filed in the Circuit Court, Second Judicial Circuit, in and for Leon County, Florida, on July 6, 2016.
In this interview, Ms. Cooper explains the background to the case, the grounds for the legal challenge and why the case is important.
Bridget Crawford: Can you tell me a little bit about the background to this case?
Dana Brooks Cooper: Our plaintiff is an impressive 23-year old woman who had already started a non-profit, “FLOW” (For the Love of Women), for purposes of removing the stigma associated with women’s periods and putting sanitary products in women’s shelters in the Tampa/St. Pete area.
Crawford: How did you become involved in the case?
Cooper: I was contacted by one of the other attorneys who was already on the case who I have worked with in the past on constitutional challenges.
Crawford: I notice that the two other named partners in your firm are men, and seven of the ten attorneys at your firm are men. How did your colleagues – at your firm and otherwise – react to your taking on this case?
Cooper: Well, we recently hired another attorney, who is a woman, so now we’re 36% female! That is actually quite high for a firm that is 100% plaintiff trial lawyers. Women are still woefully underrepresented among trial lawyers, especially on the plaintiff’s side.
To answer your question, there was 100% unanimous support from the very beginning. Although every one of my male partners has important women in their lives—mothers, sisters, daughters, wives, like me, they don’t see this as a women’s issue; it’s a fairness issue.
I’m the managing partner in this firm so I’m the one dealing with maternity leave and other issues. My partners have always supported by efforts at gender parity. I make sure that our female attorneys are not penalized when they go on maternity leave – we make sure they receive the same pay and benefits but we also have the other attorneys (male and female) help maintain her caseload so she doesn’t miss out on the additional income she could and would have made, but for the pregnancy. Same thing with sick leave – we pay our employees for unused sick time but I realized that women take more leave than men. Investigating further, I found out it was mainly because they suffered from reproduction-related health problems, like menstrual cramps, excessive bleeding, anemia, headaches, etc., which reduced their leave substantially compared to their male counterparts. Those are real dollars women are losing compared to men. Luckily, it was simply a matter of opening my male partners’ eyes to this – they had never even thought about things like that until they had a female managing partner.
Bottom line – I work in an exceptional law firm and my partners are like my father and brothers.
Crawford: Your Complaint in the case argues that the Florida law improperly classifies tampons and pads and thus subjects them to sales tax, while similar products like adhesive tape, Epson salts, athlete’s foot treatment, Rogaine and petroleum jelly are not subject to tax. As a technical matter, this happens in Florida law through a tax exempt classification for certain medical products as well as “common household remedies recommended and generally sold … for the cure, mitigation, treatment or prevention of illness or disease in human beings.” In your Complaint, you say that tampons and pads “are far more necessary to the cure, mitigation, treatment, or prevention of illness or disease than other products the State of Florida considers medically exempt.” I don’t think you are saying that menstruation is an illness or disease. What did you mean?
Cooper: No, of course menstruation, in and of itself, isn’t a disease. It is a natural process, but one for whom no woman has the opportunity to “opt out.” However, sanitary products play an essential role in reducing and preventing the spread of blood borne illnesses. If you think about it, if an athlete gets injured and starts bleeding in a basketball game, s/he must leave the game specifically to avoid the potential spread of disease. In Florida, the absorbent products used for that active bleeding – gauze, tape, band-aids, etc. – would be tax exempt for both male and female athletes. Women use sanitary products for the same reason – to keep from bleeding all over the place – yet they are taxed for similar absorbent products. Women don’t use these products for fear of their own blood – it’s for the protection of everybody else. Simply put, it’s a public health safety issue, the costs of which are solely borne by women. These products are not luxuries – women can’t just stay home until they stop bleeding. Imagine the world if every menstruating woman opted out of paying for this “luxury,” and just stayed home from school, work, church, shopping, and volunteering while they were bleeding. The average start of menarche is age 12 and the onset of menopause is usually around age 51-52. Women have their periods every 28 – 30 days for 5-7 days. If you do the math, the average woman spends between 6.6 and 9.2 years of her life on her period! With a life expectancy of 78 years, the average woman spends 8.5-11.8% of her life bleeding for no other reason than the fact of being born female.
Crawford: Why do you think that the Florida Department of Health, which is responsible for creating the list of “common household remedies” that are exempt from Florida sales tax, did not include feminine hygiene products on that list and exempt them from tax? Continue reading
Is there nothing that escapes commercialization? A U.K. company called Pink Parcel is hawking “Period Subscription Boxes” to deliver to your home each month tampons, pads, tea, chocolate, beauty products (like tweezers! hand cream!). Goodies come in recyclable and biodegradable boxes. The website includes gushing endorsements such as these:
But that’s not all. Pink Parcel has its own PR firm (see here) that aims to raise the company’s profile and “engage Pink Parcel in relevant conversations surrounding the abolition of the [U.K.] ‘tampon tax’ (where VAT is imposed on sanitary items).” And the company’s blog includes (laudable) posts against body-shaming (see here). So maybe we can point to Pink Parcel as an example of a company trying to capitalize on a certain female-positive activism-chic?
In May, the New York State legislature passed a bill eliminating the sales tax on feminine hygiene products. As expected, that bill was signed into law yesterday by Governor Andrew Cuomo.
In the press release (here) issued by the Governor’s office, Cuomo said, “This is a regressive tax on essential products that women have had to pay for far too long and lifting it is a matter of social and economic justice.” Some local press coverage can be found here.
The estimated budget impact, according to some reports (e.g., here) is $10 million per year. A class action lawsuit filed in March of this year (before the legislative repeal) estimates that the “tampon tax” generated over $14 million for New York State.
Although New York has prospectively changed its law, the lawsuit is going forward, as the plaintiffs have requested restitution for past tax paid.
Last month the New York City Council passed laws requiring the City to provide free menstrual hygiene products in schools, homeless shelters and jails. Here’s an excerpt from the press release:
Feminine hygiene products are essential for the health and well-being of women and girls. Inadequate menstrual hygiene management is associated with both health and psycho-social issues, particularly among low-income women. Access to feminine hygiene products has proven to be limited for certain populations, including public school students, the homeless, and incarcerated women. * * *
“Feminine hygiene products are not a luxury for women, but rather an essential part of women’s health,” said Council Speaker Melissa Mark-Viverito. “Whether it’s in public schools, shelters, or even our city jails, giving women access to these products is a no-brainer, and long overdue. I’d like to thank Council Member Julissa Ferreras-Copeland and all my colleagues for their work and leadership on this crucial legislative package.”
“I am so proud that the Council will pass three pieces of sensible yet groundbreaking legislation which will guarantee access to menstrual hygiene products to tens of thousands of New Yorkers. For students who will no longer miss class because they do not have a pad or tampon to mothers at shelters and women in prison who will have access to these critical yet often overlooked products, this package makes our City a more fair place. I thank Speaker Melissa Mark-Viverito, Women’s Issues Chair Laurie Cumbo, and all my colleagues who again are setting a standard for equality and access for the rest of the country to follow,” said Council Finance Chair Julissa Ferreras-Copeland.
“The provision of free feminine hygiene products in public schools is an important service to students who would otherwise not be able to afford them,” said NYC Education Committee Chairperson Daniel Dromm, co-prime sponsor of Intro 1128-A. “These free tampon and sanitary napkin dispensers will ensure that girls and young women avoid the discomfort and embarrassing situations that can get in the way of learning. I am proud to work alongside Council Member Julissa Ferreras-Copeland to make our schools safer and healthier places for our students.”
The full press release is here.
UPDATE 7/15/16: NYC Mayor Bill DiBlasio signed the legislation into law on July 13, 2016. The mayor’s press release, including statements from a variety of City Council members and community supporters, is here.
From the FLP mailbox:
Call for Papers:
Analysis and Comment on Whole Woman’s Health v. Hellerstedt and the Constitutionality of Laws Surrounding Reproductive Health
The Syracuse Law Review seeks manuscripts that address the constitutionality of laws surrounding reproductive health and how the Supreme Court’s decision of Whole Woman’s Health v. Hellerstedt has and will continue to affect the landscape. A book of Volume 67 of the Law Review will be dedicated to addressing constitutional themes that emerged from last year’s Supreme Court term, and we would like to include an article on reproductive health in the conversation. The article’s subject was left intentionally broad so as to leave room for authors to choose individual, specific topics within the field. Article submissions should be approximately 10,000 words (flexible) and must be submitted to the Law Review no later than October 1, 2016 (deadline open to negotiation). If you are interested in submitting or if you have any questions, please contact Lead Articles Editors Hillary Anderson at firstname.lastname@example.org and Matthew Petrone at email@example.com.
This week the Appellate Court of Illinois, Fifth District, has served up some very quotable dicta. The court affirmed the dismissal of a putative class action against Papa Murphy’s International, a pizza franchisor, and a local franchisee, located in Edwardsville, Illinois. The plaintiff in Karpowicz v. Papa Murphy’s International had alleged that the imposition of an 8.8% tax on his “take and bake” pizza violated the Illinois Consumer Fraud Act because applicable taxing law and regulations impose a sales tax of only 1% on “food for human consumption that is to be consumed off the premises where it is sold (other than alcoholic beverages, soft drinks, candy and food that has been prepared for immediate consumption).” Applicable state regulations further provide that if the retailer provides premises for food consumption, then “a rebuttable presumption is created that all sales of food by that retailer are considered to be prepared for immediate consumption and subject to tax at the high rate.”
The defendant moved to dismiss the complaint on several grounds, including failure to state a valid claim under the Illinois Consumer Fraud Act, a procedural inability to recover under Illinois law, and the “voluntary payment doctrine.” That is the notion that a taxpayer cannot recover taxes paid voluntarily, even if those taxes were illegal, unless specifically authorized by the statute.
In Karpowicz, the plaintiff argued that he had paid the tax on his pizza under duress, and therefore the “voluntary payment doctrine” did not preclude him from challenging the law. The plaintiff in Karpowicz relied heavily on the Illinois Supreme Court’s decision in Geary v. Dominick’s Finer Foods, Inc., 129 Ill. 2d 389 (1989), which held that female consumers had paid a sales tax on feminine hygiene products under “duress” and therefore the voluntary payment doctrine did not prevent those plaintiffs from challenging the law.
Here’s the dicta from Karpowicz: “A Papa Murphy’s take-and-bake pizza is not essential in the same way as feminine hygiene products are to menstruating women. The plaintiff did not pay the tax involuntarily; reasonable alternatives exist that fulfill a consumer’s basic need for sustenance.”
In other words, a pizza is not like a tampon, and we can cite the Appellate Court of Illinois, Fifth District for that!!
H/T Arthur R. Rosen
From the mailbox:
Appel à communications – édition spéciale dans la Revue femmes et droit Commémoration des travaux de la professeure Nicole LaViolette
La Revue femmes et droit sollicite des observations rédigées en français sur l’intersection des LGBTQ et des réfugiés. Cette édition spéciale commémore les travaux de la professeure Nicole LaViolette dont le travail a contribué à mieux comprendre les croisements entre l’orientation et l’identité sexuelles et la migration forcée au Canada et à l’échelle internationale. Dans ce numéro spécial, on cherche à faire avancer les travaux de la professeure LaViolette. Les auteurs sont invités à puiser dans une bibliographie annotée que la professeure LaViolette et Mary Kapron ont compilée en vue de générer des idées ou de l’utiliser comme source (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2457503).
Les articles, d’une longueur maximale de 10 000 mots, doivent être finalisés d’ici le 1er octobre 2016.
Nous sommes ouverts à la collaboration de nouveaux chercheurs et étudiants des cycles supérieurs. Veuillez faire parvenir des résumés de 500 mots maximum à Jamie Liew (firstname.lastname@example.org) et Mary Kapron (email@example.com) au plus tard le 1er août 2016.
Call for papers – Special Issue in Canadian Journal of Women and the Law
Commemorating the work of Professor Nicole LaViolette
The Canadian Journal of Women and the Law is welcoming submissions written in French on the intersection of LGBTQ and refugees. The special edition is commemorating the work of Professor Nicole LaViolette whose work contributed to understanding the intersection of sexual orientation and gender with forced migration both in Canada and internationally. The edition hopes to further the work of Professor LaViolette. Writers are welcome to mine an annotated bibliography that Professor LaViolette and Mary Kapron compiled to generate ideas or use as source material (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2457503). Papers no more than 10,000 words must be completed by October 1, 2016.
We welcome emerging scholars and graduate students. Abstracts of 500 words should be submitted to Jamie Liew (firstname.lastname@example.org) and Mary Kapron (email@example.com) by no later than August 1, 2016.
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