Privilege and Passivity

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This is the third in a series of four blog posts that discuss discrimination and harassment in cyberspace, its perpetrators, and its consequences.  The first post, “Identity and Ideas,” is available here.  The second post, “Anonymity and Abuse,” is available here, with a short addendum here.

Suppose you run a website, and the anonymous commenters on your site start hurling racial and sexual slurs at someone they’ve targeted.  Or suppose you start a thread in an online forum, and you notice that the commenters are engaging in identity-based harassment of someone–either a participant in the thread or otherwise.  Or suppose you didn’t start the thread, but you went to the site and you read it.

For anyone new to this series, when I talk about identity-based harassment, I’m talking about comments like the ones below, which are all comments about me:

Twatsicle

Or this:

Charlatan

Or this:

Goofy

Or this:

Comeliness

I confess that I am not particularly concerned with what “shithead” and “froyolo” think of me.  Their comments, however, helpfully provide a concrete context for my opening questions.  Suppose you encountered these comments.  What should you do?  Framed more broadly, what are the social and legal responsibilities triggered by identity-based online harassment?

I’ll start with the social responsibilities.  These are things you should do, not (necessarily) because they’re legally required, but as part of being a good person.  My definition of being a good person includes actively opposing racism, misogyny, and other forms of identity-based abuse.  If you disagree with this definition, I’m afraid the rest of this post may be difficult for you.

Here are some social responsibilities:  If you start a website and it turns into a rancid cesspool of racist and misogynistic vitriol,  it’s your responsibility to clean it up.  If you start a thread and the comments turn ugly, it’s your responsibility to intervene.  And if you read a thread and see the commenters abusing someone, it absolutely is your responsibility to call out the abuse.

Opposing racism and sexism is inconsistent with passivity in the face of online abuse.  Nobody gets to sit on the sidelines.  If you administer a website, you don’t get to sit back and play clockmaker god while your creation devolves into a racist monstrosity.  If you start a thread that turns into a misogynistic cybermob, you don’t get to shrug your shoulders and look away.  Or, to put it differently, of course you can do these things, but you can’t do them and still hold tight to your moral authority.  Your privilege–the privilege that you enjoy because the comments aren’t about you–doesn’t entitle you to blameless passivity.  I’m reminded of this message from a law firm partner to an administrator of the infamous AutoAdmit website:  “We expect any lawyer affiliated with our firm, when presented with the kind of language exhibited on the message board, to reject it and to disavow any affiliation with it. You, instead, facilitated the expression and publication of such language.”  In other words, we have a responsibility to act when we see identity-based online harassment.  This is particularly true for attorneys, and even more so for attorneys who represent vulnerable populations.  (I’ll have more to say about this in my next and final post.)

I am well aware that what I am proposing is a significant departure from current online norms.  Most people don’t call out racist and sexist comments–even people who would never make such comments themselves–because they prefer not to have to deal with the consequences. To justify their passivity, they hide behind platitudes, like “there will always be assholes on the Internet,” or “don’t feed the trolls,” or simply “it’s not my problem.”  But this is exactly my point.  You can decide it’s not your problem, or you can oppose racism and sexism.  You can’t do both.

I am also well aware that some of the things I posit as social responsibilities are arguably difficult to do.  For example, website administrators may find it burdensome to monitor comments.  But plenty of websites–from the New York Times to Jezebeldo manage to maintain a commenting environment largely free of targeted racism and misogyny, which suggests that the problem is not ability but effort. And even websites noted for awful comments are making progress in the right direction.  Moreover, technological tools are in the works that can make the task of moderation easier for everyone.  And if it’s really that difficult for a particular website to eliminate identity-based online harassment, perhaps that site should simply close down its comments.

Likewise, individuals may find it psychologically burdensome to call out identity-based online harassment, either in threads they started or in threads they read.  Obviously there are practical limits–everyone has only so much bandwidth to call out harassment–but I think it should be a shared burden, distributed evenly among everyone.  If you have the psychological wherewithal to start a thread–or read one–then surely you can also write a one-sentence comment calling out identity-based harassment.  It’s true that lengthy, detailed responses, might, in some circumstances, perpetuate a tornado of race- or gender-based abuse.  But even a short anonymous statement such as “This is sexist and I disagree” has many positive benefits.**  Such a statement lets the target know he or she is not alone.  It forces other readers to acknowledge the comments for what they are.  And sometimes it may shame the authors of such comments into silence.

Depending on the circumstances, calling out harassment might sometimes require a more involved response–including, for example, contacting the target to see whether he or she has a preference about the way the harassment should be handled.  The larger point is that good people don’t sit and scroll and sip their coffee and watch an online mob savage someone else’s life without doing anything about it.

Some people become enraged at the mere notion of moderating or closing down comments.  Some people become defensive at the idea that they have an affirmative duty to intervene in instances of identity-based online harassment.  But the alternative is to require women and people of color (among other marginalized groups) to bear a vastly disproportionate burden.  My previous posts have explained why, if we really care about having a robust marketplace of ideas, this disparate burden should be unacceptable to us.

On that note, I’ll turn to the legal implications.  Everything I have mentioned to this point involves private actors and therefore doesn’t implicate the First Amendment.  But I also think that–following the model of Title VII–Congress could legislate narrowly to proscribe online behavior whose purpose is to harass a specific person on the basis of traditionally protected categories including but not limited to race, gender, national origin, and religion.  As I have already mentioned, Title VII proscribes such targeted harassment in the workplace.  Cyberspace, of course, is not the workplace.  But it is a space where many of us do a lot of our work, and for many of us it’s a space that’s inextricable from our professional identities.

Other scholars have already devoted a great deal of time and careful thought to identity and online harassment.  In a previous post, I mentioned Saul Levmore and Martha Nussbaum’s anthology The Offensive Internet, which includes several essays that address these themes.  Daniel Solove’s outstanding monograph The Future of Reputation examines privacy, reputation, rumor, and freedom in cyberspace.  Jerry Kang’s work “Cyber-Race” examines the way that racial identity functions in online ecosystems.   And Danielle Citron emphasizes the notion of “Cyber Civil Rights“–the idea that identity-based online harassment “ought to be understood and addressed as a civil rights violation.”  I won’t retread ground that other commenters have already covered.  As a scholar of identity and discrimination, however, I would like to add an illustration of why we should think of identity-based harassment as a civil rights violation.  Consider the following three statements:

Statement One:  “Leong didn’t get that law professor position on her own merit.”

Statement Two: “Leong slept with someone to get herself a law professor position.”

Statement Three:

LeongTime

All three statements are false and defamatory.  Whether they are actionable is, of course, a different question, as there are various doctrinal and practical obstacles to defamation suits.  But my focus here is on whether the doctrinal mechanism, at least in theory, captures the injury.  The idea behind defamation nicely captures the problem with the first statement.  It’s a false statement that, if believed, would damage my reputation.  Defamation falters, however, with respect to the second statement.  It is defamation, but there’s more to it than that.  The statement no longer treats me as an individual, but instead applies offensive stereotypes about women’s presumed incompetence.  I simply could not have gotten that position on my own merit, I must have slept with someone, because however else could a mere woman get a law professor position?  And the third statement adds a racial dimension to the prior injuries of defamation and misogyny by very cleverly coupling my last name with a phrase that Asian women supposedly say, according to some white guys who make movies.  Asian women are stereotyped as sexually available: that’s why there are books like this, and songs like this atrocity, and documentaries like this, and AMA performances like this one.

It’s a simple point, but worth repeating: defamation doesn’t address the identity-based harms suffered by historically marginalized groups.  And this is why we need a civil rights regime for the Internet, not unlike the one we have in the workplace: to capture the unique identity-based harms that take place here.  Ignoring the fact that some identity groups enjoy greater privilege ignores reality.  As Louis CK explains, “I’m a white man!  You can’t even hurt my feelings.”

My final post will discuss the various avenues that people targeted by identity-based online harassment can pursue.

* I have chosen not to link to, or to identify, the sources of the material I reference in this post because I do not want to drive traffic to websites that tolerate racial and sexual harassment.  If you would like more information, please feel free to contact me.

**UPDATE: A thoughtful reader suggested the wording “This is sexist and unacceptable.”  I like that suggestion very much, and probably more than my original wording.

- Nancy Leong

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Did Jed Rubenfeld Jump the Academic Shark with that Rape-by-Deception Article?

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Jed Rubenfeld’s Rape-by-Deception article (previously blogged here) is the subject of four formal responses in the Yale Journal Online:

Tom Dougherty, No Way Around Consent: A Reply to Rubenfeld on “Rape-by-Deception”

Deborah Tuerkheimer, Sex Without Consent

Patricia Falk, Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud

Gowri Ramachandran, Delineating the Heinous: Rape, Sex, and Self-Possession

The Yale Law Journal Online also includes a response by Professor Rubenfeld to his critics.

-Bridget Crawford

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Anonymity and Abuse: An Addendum

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In recent weeks I have begun a series of four blog posts that discuss discrimination and harassment in cyberspace, its perpetrators, and its consequences.  The first post, “Identity and Ideas,” is available here.  The second post, “Anonymity and Abuse,” is available here.  Given the upcoming holiday, today’s short post simply provides a few additional thoughts about anonymity.  The third and fourth posts will appear after the holiday.

I appreciate the thoughtful comments that my previous posts generated.  My purpose today is to respond to two reactions relating to anonymity.

First, many people claim that they need absolute anonymity in order to speak freely.  As I mentioned in my previous post, I have no inherent problem with anonymity; indeed, I think it can often serve a valuable function.  My issue lies with those who use anonymity as a means to engage in identity-based online harassment of the kind that silences historically marginalized groups.

Having said that, I tend to think that many people overstate their need for anonymity.  As I have throughout this blog series, I’ll use myself as an example.  I write under my own name.  I’m an untenured professor.  That means I have no long-term job security.  I don’t have an extensive financial safety net.  I graduated from law school with over $200,000 in student loans, which I will be paying back for decades.  Every time I post something on the Internet, there’s backlash in the form of crude comments, emails, and phone calls.

By writing under my own name, I expose myself to criticism from other people, including other legal academics, who disagree with me.  Many of them have the power to shape my career.  By writing under my own name, I experience tangible personal consequences.  These range from hateful phone calls to the persistent and disquieting idea that the author of an aggressively sexual comment could be someone who attends my school or lives in my apartment complex.  I am well aware that my personal circumstances make me more fortunate than many people, and for that I am grateful.  The fact remains that writing under my own name has risks and downsides, and yet I still do it.

It’s certainly true that if you hide behind your anonymity to engage in identity-based online harassment, then there may indeed be costs to posting under your real name.  If your contribution to online discourse consists of statements like “haha man i’d love to facefuck that AZN bitch,” then, yes, your employer, family, and any real-world friends you might have probably would not be particularly impressed with either the style or substance of what you have to say.

Of course there are people who have good reasons for anonymity.  Those expressing political dissent within totalitarian regimes provide one example.  Avoiding the real-world repercussions of saying sexist and racist things is not, in my view, a good reason.  And as I’ll discuss in my next full post, it’s possible to protect the former without sheltering the latter.

Secondly, I have encountered an argument that goes something like this: we should tolerate anonymous racist and sexist speech online because, to quote an acquaintance, “it’s good to know how much sexism and racism is out there.”

I understand the abstract appeal of this line of reasoning.  But in practice it’s a remarkably privileged argument to pursue.  Most women and people of color already know there’s plenty of sexism and racism in the world.  So saying “it’s good to know how much sexism and racism is out there” is really a demand for those of us who are targeted by sexism and racism to put up with its damaging consequences in order to educate the blissfully ignorant folks who will never have to put up with identity-based attacks themselves.  Such an argument minimizes the harm to targets of identity-based harassment while privileging an alleged benefit to people who are oblivious to discrimination — and who are apparently too lazy to educate themselves in any other manner than by passively observing anonymous online slurs.

I might find this argument marginally more persuasive if there were any evidence that the only way to raise awareness of racism and sexism was by passive observation of online harassment, or that those who gained awareness subsequently devoted themselves to activism against such harassment.  I know of no such evidence, and so, as an empirical matter, I remain unconvinced.

After the holiday, my next full post will continue with a discussion of appropriate social and legal responses to identity-based online harassment.

- Nancy Leong

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Sex-Positive Law

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Sexual pleasure is a good thing. It’s not just moral philosophy that supports the value of pleasure (although much of it does); it’s common sense. We value pleasure simply because it is pleasurable. People devote significant time and money to baffling pastimes ranging from to Twilight fan fiction to Farmville, and there is a sizeable portion of the population that is inexplicably obsessed with kale. Sexual pleasure is certainly no odder or less valuable than these pursuits.

In a Washington Post op-ed out this weekend, I argue  that, despite the inherent value of sexual pleasure, legislatures and courts continue to view it as having negligible or negative value. The piece is a reflection of a larger work I’ll be publishing this Spring in NYU Law Review called “Sex-Positive Law.” In particular, I look to obscenity law, the criminalization of BDSM, and constitutional law pertaining to sexual freedom to demonstrate that courts and legislatures routinely rely on the unwarranted assumption that sexual pleasure is valueless or even harmful. This blind spot leads to bad law and bad policies.

Truly progressive legal reform needs to acknowledge that sexual pleasure is a good thing even when engaged in for its own sake. This would require us to rethink and improve our approach to several areas of law, from obscenity to sex toys to rape law. Valuing sexual pleasure doesn’t mean we must value it above all else—we regularly regulate things that bring us pleasure. We value the pleasure derived from art, but we don’t allow people to steal Picassos or force artists to paint for their pleasure. But recognizing the value of sexual pleasure requires us to have a more honest discussion about what we choose to regulate, what we fail to regulate, and our justifications for these choices.

The Washington Post op-ed is available here:

“Sex-Positive Law” will appear in the 87th volume of the New York University Law Review in April 2014.

-Margo Kaplan

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Anonymity and Abuse

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This is the second in a series of four blog posts that discuss discrimination and harassment in cyberspace, its perpetrators, and its consequences.  The first post is available here.

Last week I wrote about the way that people attack women and people of color online by demeaning their identity rather than engaging with their ideas.

Thanks to the Internet, harassment happens in real time.  Shortly after I put up my post, an unknown person started a blog* consisting solely of derogatory racial and sexual statements about me, accompanied by pictures of me copied without permission from various online sources.   Again, this helpfully demonstrates my claim that harassers use identity to avoid engaging with ideas:

tumblr1

The creation of this blog also aptly illustrates Slate columnist Katy Waldman’s thoughtful discussion of my previous post, in which she hypothesized that when men are harassed, they are treated as “less than men,” while when women are harassed, they are treated as “only women.”  There are, of course, other dynamics at play as well.  But the blog’s attempt to reduce a law professor acting in her professional capacity to a sexualized object for visual consumption readily demonstrates Waldman’s conception of harassment as reduction to identity as “only a woman.”

Although online harassment is nothing new to me, I was still surprised by how many people that I know personally revealed to me after my previous post that they had experienced such harassment.  A half dozen other professors disclosed that they used to blog and had either stopped or curtailed their blogging in response to harassment and — in some cases — threats of rape or other violence.  Another friend told me that the reason she gave up a prestigious job with a news organization was the relentless online harassment she experienced.  One of my students told me that she used to write for a feminist blog, but stopped after online harassers posted comments about her and even started a thread on Reddit that disclosed details such as her address.  Another student explained that she had been invited to post on a well-known blog, but had declined the opportunity because she was unwilling to expose herself to the blog’s aggressive and frequently sexist commenting environment.

All of the people who shared these stories with me were women, and several were women of color.  Although — as I said in my previous post — I don’t think that identity-based online harassment is limited to women and people of color, these groups are often the targets of online harassment.

What is it about the Internet that brings out this ugliness?  Some have hypothesized that the lack of face-to-face contact loosens normal social inhibitions.  A recent Wall Street Journal article, “Why We Are So Rude Online,” credits MIT Professor Sherry Turkle with the insight that “[b]ecause it’s harder [online] to see and focus on what we have in common, we tend to dehumanize each other.”  Or, as Louis CK puts it, the Internet keeps us from building empathy.

Online anonymity worsens the empathy deficit.  Unsurprisingly, evidence suggests that people behave in antisocial ways when granted anonymity.  Research such as this classic study has long implicated anonymity in group antisocial behavior, thus explaining the way that anonymous posters often seem to encourage one another.  And Saul Levmore and Martha Nussbaum’s excellent anthology The Offensive Internet explores the role of anonymity from a range of perspectives.  (Of course, anonymity is far less ironclad than some posters seem to think — indeed, I was easily able to discover the identities of a few of my harassers using google, one in less than ten minutes. I’ll discuss this further in a future post.)

Intuitively and from this research, most people conclude that anonymity has something to do with online abuse.  Yet some refuse categorically to question whether anonymous speech is inherently valuable.  For example, anonymous commenters sometimes point to the Federalist Papers as a paradigmatic justification for anonymous speech.  I happen to like the Federalist Papers a lot, so let’s take a look at an excerpt from one of my favorites, Federalist #51, written by James Madison under the pseudonym Publius:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Now let’s compare Federalist #51 to a few anonymous and pseudonymous comments that were made about me in threads relating to my scholarship about race.  As I mentioned in my previous post, I’m using myself as an example because I don’t want to draw attention to the harassment of other people.  But such comments are typical of identity-based online harassment.

So for example, there’s this comment:

Ass-reamed

And this:

Cockroach

And this:

hapa

And this:

Doable

Most of us can see the difference between Federalist #51 and these crude comments.  Federalist #51 explains the need for a government involving both separation of powers and checks and balances — a framework that fundamentally informed the system of government that our founders developed.  These contentions implicate the core structures of a democratic society.

In contrast, the various anonymous comments about me have no purpose other than to harass and no content other than racially and sexually demeaning language.  And the reason they’re anonymous is obvious.  The commenters want to make racist, sexist, and sexually harassing comments without having to suffer the consequences of engaging in such speech in real life.  Such speech contributes literally nothing to discourse.  And to briefly retread ground I covered in my first post, it’s worth noting that each thread I’ve referenced above started out as a thread at least nominally about my scholarship and my ideas, but quickly shifted to comments about my identity.

The claim that anonymity inherently promotes First Amendment values thus makes little sense in a world of race- and gender-based online harassment.  To be clear, I have no problem with anonymity per se — indeed, I agree with the Supreme Court’s statement in McIntyre v. Ohio Elections Commission that “[a]nonymity is a shield from the tyranny of the majority.”  When people write anonymously, but do so in a way that contributes to discourse, it seems to me that the choice to withhold one’s name is up to the individual.  Indeed, anonymity might empower some marginalized speakers to engage in discourse who would otherwise remain silent.

But when anonymity facilitates harassing and abusive speech directed at marginalized identity groups, society has a strong First Amendment interest in regulating anonymity.  Harassing and abusive speech results in a net loss to the marketplace of ideas.  Online racial and gender harassment silences the speech of many women and people of color, diminishing the diversity of perspectives represented in online discourse and impoverishing the “free trade in ideas” within “the competition of the market” that Justice Holmes first discussed in his famous dissent in Abrams v. United States.  If we really care about the marketplace of ideas, we should care about eliminating online racial and gender harassment.

Some argue that racial and gender harassment are part and parcel of participation in online discourse.  As one white man commented on my prior post:  “Welcome to the jungle . . . . If you want to have a voice . . . just do what we have been doing for over a decade and laugh it off.”  (In context, “we” meant “white men.”)  Of course, it’s easy to talk about “laughing it off” when, because of your status as a white man, you’re virtually never the target of identity-based harassment that deploys historically subordinate or marginalized status as a silencing tool.

But in 2013 our social norms don’t actually condition having a voice on putting up with identity-based harassment.  Suppose that I gave a presentation at an academic conference, and that during my presentation a member of the audience began shouting racial and sexual epithets, or announced loudly, “I’m undressing you with my eyes!”  Would we laugh it off?  Of course we wouldn’t.  We’d remove him.  So why do some people insist that the norms applicable to anonymous online speech should be different?

In my view, they shouldn’t be different.  I think that the reason we would restrain a workplace harasser from certain racial and sexual comments (as, indeed, we do, under Title VII) is the same reason we should strive to prevent anonymous online abuse including the same content.

In my next post, I’ll outline some of the ways that we should engage in eliminating this type of harassment.  Socially, I think there is a much greater role for website administrators to play.  And legally, I think that we can draw a doctrinally sound distinction between anonymous speech that should receive First Amendment protection and abusive anonymous speech involving identity-based harassment.

* I have chosen not to link to, or to identify, the sources of the material I reference in this post because I do not want to drive traffic to websites that tolerate racial and sexual harassment.  If you would like more information, please feel free to contact me.
- Nancy Leong
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Identity and Ideas

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This is the first in a series of four blog posts that discuss discrimination and harassment in cyberspace, its perpetrators, and its consequences.

Women and people of color are under-represented in online discourse.  As of August 2013, 87% of Wikipedia contributors were men.  Women are under-represented on the opinion pages of major news sources, and the number of people of color who write for newspapers is both low and declining.  Across disciplines, the most well-known bloggers are predominantly men.  The Freakonomics website notes that women economists rarely blog.  Closer to home, the regular contributors to many well-regarded group law blogs, such as the Volokh Conspiracy and PrawfsBlawg, are predominantly white men.    Why does this racial and gender disparity in online discourse exist?

One reason for the disparity is race- and gender-based online harassment.  Many outstanding scholars have already addressed this phenomenon.  One example is Danielle Citron’s influential article “Cyber Civil Rights.”  My intention with this series of posts is not to break new theoretical ground.  Rather, I’m writing because it’s worth reiterating that such harassment is a serious social problem that deserves attention.  In particular, I want to look closely at the technology of race- and gender-based harassment — that is, the way that internet harassers focus on identity rather than on ideas as a specific strategy for excluding women and people of color from online discourse.

Rather than draw additional and perhaps unwanted attention to the harassment of other people, I am going to use as examples things that people have said about me.  I write about race and gender discrimination (among other things).  A while ago I wrote an article called “Racial Capitalism” that was published in the Harvard Law Review.  It’s a controversial article.  A lot of people disagree with some of it or all of it.  And that’s fine.  I’m glad that the article prompted discussion of important issues.  I’ve enjoyed participating in some of the discussions.  For example, Richard Ford wrote a response to “Racial Capitalism” that appeared in the Harvard Law Review’s online forum (short version: he’s skeptical).  Then I wrote a reply to his response, which is available here and will soon appear in the Harvard online forum as well.  Other discussions were more informal.  For example, just a few days ago, the author of the very interesting Opus Publicum blog, who writes about religion, law, politics, and various other topics under the name Modestinus, wrote a brief review (short version: he’s skeptical).  I offered a few thoughts in the comments and he responded.

These are examples of different situations in which I was glad to engage with a thoughtful person who had read my work and taken the time to respond my ideas, regardless of whether that person agreed with me.  This is how discourse should take place, both online and offline.

Unfortunately, that kind of discourse is often not the norm for women and people of color in cyberspace.  Other responses differ in kind from mere disagreement.  The pattern is this:  When people don’t like what women and people of color are saying, they express that dislike in gendered and racial terms.  Here are some examples* of people responding in this way to “Racial Capitalism” and some of my other articles about race:

LuauTrain

This comment reveals an important point about the strategies that some people (usually self-identified men) use to attack women and people of color.  Rather than explaining why (for example) he thinks that the racial capitalism framework is analytically flawed, the first commenter disparages my Native Hawaiian background with a reference to the “luau train.” He then attempts to undermine my intellectual contribution to an academic conference by claiming that the reason for my presence is to serve as an object of sexualized attention for a presumed heterosexual male audience.  That kind of comment would not be tolerated in any workplace.  It’s worth asking — at least as a normative matter, if not a legal one — why the internet should be any different, especially when a lot of us do a substantial portion of our work online and when the racial and gender harassment directly targets our work and our professional identities.

Here are some more comments about me:

LeongTime

Again, notice that rather than engaging in a substantive critique of my ideas, both commenters reflexively attack my identity.  The former comment attributes my professional achievements to gendered physical attributes.  The implication is that a woman simply could not have earned success through intelligence or hard work.  The latter comment—in addition to being defamatory and utterly false—also invokes tired stereotypes about Asian female sexual availability that pervade the media.  The latter comment also provides a useful example of the unique harms that women experience in cyberspace.  People rarely allege that a man achieved status within his profession by having sex with someone.  Successful women hear those accusations all the time.

Here’s yet another:

Charlatan

The phrasing of the post is different than the previous ones, but the strategy is identical.  Rather than offering a substantive critique of a person’s ideas, it attempts to diminish that person by reference to identity.   Put another way, it disparages my accomplishments by sexualizing them.  Moreover, the vulgarity and aggression of this post and others like it is a tactic to exclude women and people of color from discourse.  Again, it’s worth asking why, when so many of us do much of our work online, people often shrug their shoulders at a comment that would be grounds for termination in any workplace.

Here’s another, lengthier comment:

Beneficiary

This comment provides a particularly useful example of the way that online critics grasp at identity rather than engaging with ideas.  First, the commenter replaces substantive critique of my article with a critique rooted in my presumed race and gender.  With respect to race, he begins with an entirely unsubstantiated claim that—as a woman of color—I must be a beneficiary of affirmative action.  Moreover, he suggests that Chinese people are poor spokespersons for racial justice because they don’t suffer discrimination, seemingly oblivious to both historical and contemporary evidence to the contrary, as well as to the irony that the very existence of his post contradicts his claim.  And he concludes with a factually erroneous statement that fails to contemplate the possibility that my background is, in fact, Native Hawaiian.  Likewise, the commenter focuses on my personal life—who I marry, the race of my partner—rather than my ideas.  In so doing, he invokes well-worn stereotypes about Asians women desiring white men and other indicia of the status associated with whiteness.  His response attempts to situate me as women have historically been situated—that is, in relation to men, rather than as autonomous agents.

I could provide literally hundreds of other examples of racial and sexual comments just about myself, although this seems like enough for now.  The examples reveal an important phenomenon.  Many posters (mostly self-identified men) use identity as a basis for disparaging women and people of color rather than engaging substantively with their arguments.  This practice is a thinly-veiled attempt to “put women in their place” or to “put those minorities in their place” by focusing on identity rather than ideas.

I chose to use these examples because they are about me, rather than granting additional exposure to the harassment of someone else.  But troubling as these comments are, they are far less so than those directed at many other women and people of color.  I am hesitant to draw more attention to incidents that have not already received publicity.  But for those who remain unconvinced that this is a widespread phenomenon, Soraya Chemaly has documented many such instances of harassment here, and another recent article provides additional examples.

Why do men, and especially white men, engage in this specific version of hostility and harassment when confronted with the ideas of a woman of color?  In many instances I suspect the strategy arises from insecurity triggered by the success of the target of harassment.  It’s much easier on the ego to believe that a woman of color is more successful than you because of her identity, rather than her intelligence or her work ethic.  And so posters choose to direct attention to identity rather than ideas.

With that said, the anxieties and insecurities of anonymous internet bloggers are considerably less interesting to me than the consequences of the way that these anxieties manifest themselves.

The result of gender and racial harassment is that many women and people of color withdraw from cyberspace.  Friends and colleagues have told me that they stopped blogging, or never started, or avoided certain topics, because they felt that they simply could not deal with the online harassment that they would draw.  And beyond my own anecdotal evidence, there are many documented instances of women withdrawing from online discourse after identity-based harassment is directed their way.

To be clear, I’m not saying that men never experience identity-based online harassment.  Many of them do—particularly men who are (or are presumed to be) members of other disfavored groups, such as poor people or queer people, as well as men who promote unpopular ideas.

My point is simply that online harassment disproportionately affects women and people of color, as well as members of some other groups, and that this phenomenon helps to explain the absence of those groups from online discourse.  The loss of such perspectives is a loss to discourse.  My point isn’t the essentialist one that women or people of color have any particular perspective.  Rather, it’s that women and people of color tend to have different life experiences in a society that’s neither race nor gender blind, and that, in the aggregate, different experiences lead to different perspectives.  If we think it is a problem that some perspectives are under-represented in online discourse, a good first step is to do away with the serious obstacles that race- and gender-based harassment create to online participation.

*I have chosen not to link to, or to identify, the sources of these comments because I do not want to drive traffic to websites that tolerate racial and sexual harassment.  If you would like more information, please feel free to contact me.

- Nancy Leong

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Posted in Academia, Employment Discrimination, Feminists in Academia, Race and Racism, Sexual Harassment | 2 Comments

Dance As If Your Life Depends On It

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San Francisco-based OB-GYN Dr. Deborah Cohan had breast cancer surgery on Tuesday. Before going under anesthesia, she and her surgical team did something unexpected: they danced to Beyoncé’s “Get Me Bodied.”  Dancing is good for the soul no matter where you do it. Dr. Cohan was discharged Wednesday.  As Lee Ann Womack says, “And when you get the choice to sit it out or dance/ I hope you dance.” Check on Dr. Cohan’s recovery  here.

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Posted in Feminism and Medicine, If you're a woman | Comments Off

Another Thoughtful Take on “Leaning In,” This One By bell hooks, and Called “Dig Deep: Beyond Lean In”

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Read it here at The Feminist Wire. Below is an excerpt:

Sandberg’s definition of feminism begins and ends with the notion that it’s all about gender equality within the existing social system. From this perspective, the structures of imperialist white supremacist capitalist patriarchy need not be challenged. And she makes it seem that privileged white men will eagerly choose to extend the benefits of corporate capitalism to white women who have the courage to ‘lean in.’ It almost seems as if Sandberg sees women’s lack of perseverance as more the problem than systemic inequality. Sandberg effectively uses her race and class power and privilege to promote a narrow definition of feminism that obscures and undermines visionary feminist concerns.

Contrast her definition of feminism with the one I offered more than twenty years ago in Feminist Theory From Margin To Center and then again in Feminism Is For Everybody. Offering a broader definition of feminism, one that does not conjure up a battle between the sexes (i.e. women against men), I state: “Simply put, feminism is a movement to end sexism, sexist exploitation, and oppression.” No matter their standpoint, anyone who advocates feminist politics needs to understand the work does not end with the fight for equality of opportunity within the existing patriarchal structure. We must understand that challenging and dismantling patriarchy is at the core of contemporary feminist struggle – this is essential and necessary if women and men are to be truly liberated from outmoded sexist thinking and actions.

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Rubenfeld’s Big Step Backward in Rape Law

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Earlier this year Jed Rubenfeld authored, in the Yale Law Journal, one of the strangest articles about rape law that has ever been written. While it is often a mistake to draw unneeded attention to dangerous ideas, a response to the piece is warranted because of Rubenfeld’s privileged position as a professor at Yale Law School and the high-profile forum in which he published. I hope the article I have written addressing Rubenfeld’s scholarship offers at least part of the reply that is necessary.

Under even a charitable reading of Rubenfeld’s article, he advocates the legalization of approximately 90% of rape in America. Rubenfeld supports removing the nonconsent element and implementing a new force requirement which would be even more difficult for prosecutors to meet than existing statutory provisions. He writes: “sex is rape whenever exacted through the kind of force that turns labor into slavery: roughly speaking, physical incapacitation, whether through restraint or imprisonment, or serious physical assault (or the threat of either).” If Rubenfeld’s proposal were implemented, it would legalize almost all acquaintance rape (where such a high level of force is rarely used) and rape by virtue of a victim’s excessive intoxication. Indeed, Rubenfeld is even willing to entertain the idea that rape of an unconscious victim is not necessarily criminal when he writes:

“But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn’t this undermine the idea of an ipso facto rule against sexual contact with the unconscious?”

Rubenfeld wants almost all of the gains of the rape law reform movement undone and would make the law worse in certain aspects than it was in the middle of the Twentieth Century. Rubenfeld’s position in supporting retrograde rape policy is not unusual. Indeed, since the run up to the 2012 elections, the following phrases were uttered by politicians:

“So the way [my father] said it was, ‘Just remember, Roger, some girls, they rape so easy. It may be rape the next morning.’” – Wisconsin State Representative Roger Rivard

“And even when life begins in that horrible situation of rape, that it is something that God intended to happen.” – United States Senate candidate from Indiana Richard Mourdock

“In the emergency room they have what’s called rape kits where a woman can get cleaned out [and not get pregnant]” – Texas State Senator Jodie Laubenberg

and, of course:

“It seems to be, first of all, from what I understand from doctors, [pregnancy from rape is] really rare. If it’s a legitimate rape, the female body has ways to try to shut the whole thing down.” – United States Senate candidate from Missouri Todd Akin

I mention these comments because they add context to Rubenfeld’s article. Indeed, among all of those positions, Rubenfeld’s may be the least defensible. Rubenfeld does not support acquaintance rape decriminalization because he is concerned about innocent men being convicted. He is not driven by beliefs about abortion that intersect with discussions about rape. He is not writing out of a mistaken understanding of rape kits and pregnancy. Rubenfeld supports his regressive turn in rape law only in the name of doctrinal coherence. His hope is merely to resolve what he sees as a doctrinal inconsistency in not punishing rape-by-deception. And it is just the so-called “riddle” that is at issue (and not concern about actual cases of rape-by-deception) because Rubenfeld’s solution leaves the present law in such cases intact.

There are many more problems with Rubenfeld’s piece (such as ignoring or misreading almost all feminist legal scholarship regarding rape in the last twenty-five years). I ultimately decided to write a full-article length response to document and correct Rubenfeld’s extensive errors while addressing his one potentially valuable contribution (refocusing on the foundational values of rape law). It is rare that this can be said about law review scholarship, but Rubenfeld’s article is genuinely dangerous and Yale Law Journal should be ashamed to have published it.

I want to add just one more bit of context for Rubenfeld’s article. Yale University was the recent target of a Title IX claim, which it ultimately settled, because of sexual assault and rape culture problems. From fraternity members chanting “No means yes, yes means anal” while marching around campus to a “preseason scouting report” of prospective women on campus, Yale has been at the center of recent attention regarding campus rape culture. Earlier this year, Yale failed to expel any of the students who were found guilty of sexual assault against other students. Just months after Rubenfeld’s article was published, the campus issued its new policies regarding sexual assault on campus. Already, these policies are the subject of reactionary backlash. Rubenfeld’s article unfortunately contributes to the Yale’s rape culture problem by providing intellectual cover to those who want to maintain a hostile sex environment at the school.

-Corey Rayburn Yung

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Posted in Academia, Law Schools | 1 Comment

Read Susan Faludi on “Facebook Feminism”

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Unlike so many trite reviews of the “Lean In” phenomenon, Faludi brilliantly contextualizes her critique. Available at The Baffler, excerpt below:

… In 1834, America’s first industrial wage earners, the “mill girls” of Lowell, Massachusetts, embarked on their own campaign for women’s advancement in the workplace. They didn’t “lean in,” though. When their male overseers in the nation’s first large-scale planned industrial city cut their already paltry wages by 15 to 20 percent, the textile workers declared a “turn-out,” one of the nation’s earliest industrial strikes. That first effort failed, but its participants did not concede defeat. The Lowell women would stage another turn-out two years later, create the first union of working women in American history, lead a fight for the ten-hour work day, and conceive of an increasingly radical vision that took aim both at corporate power and the patriarchal oppression of women. Their bruising early encounter with American industry fueled a nascent feminist outlook that would ultimately find full expression in the first wave of the American women’s movement.

Capitalism, you could say, had midwifed feminism.

And capitalism, Sandberg would say, still sustains it. But what happened between 1834 and 2013—between “turn-out” and “lean in”—to make Lean In such an odd heir to the laurels of Lowell? An answer lies in the history of those early textile mills.

The Lowell factory owners had recruited “respectable” Yankee farmers’ daughters from the New England countryside, figuring that respectable would translate into docile. They figured wrong. The forces of industrialization had propelled young women out of the home, breaking the fetters binding them to the patriarchal family, unleashing the women into urban areas with few social controls, and permitting them to begin thinking of themselves as public citizens. The combination of newly gained independence and increasingly penurious, exploitative conditions proved combustible—and the factory owners’ reduction in pay turned out to be the match that lit the tinder. Soon after they heard the news, the “mill girls”—proclaiming that they “remain in possession of our unquestionable rights”—shut down their looms and walked out.

Capitalism, you could say, had midwifed feminism.

From the start, the female textile workers made the connection between labor and women’s rights. …

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Posted in Employment Discrimination, Feminism and Culture, Feminism and Economics, Feminism and Law, Feminism and Technology | Comments Off

Family Status, Federalism, and the Windsor Decision

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Courtney G. Joslin, University of California, Davis, School of Law, has published Windsor, Federalism, and Family Equality at 113 of Columbia Law Review Sidebar 156 2013). Here is the abstract.

In a 5-4 decision authored by Justice Kennedy, the Court held in Windsor v. United States that section 3 of the Federal Defense of Marriage Act (DOMA) is unconstitutional. Advocates had attacked section 3 on two primary grounds. The principal argument leveled at section 3 was that it violated principles of equal protection by denying one class of married spouses — lesbian and gay spouses — all federal marital benefits.

Section 3 was also attacked on a number of federalism-based grounds. Some advocates pushed a particularly strong federalism variant, arguing that DOMA was unconstitutional because Congress lacked the authority to define or determine family status. I call this the categorical family status federalism argument. Others endorsed a more moderated claim. Under this theory, the fact that a law — here section 3 of DOMA — deviated from the historic allocation of power as between the federal government and the states was simply a basis for applying a more careful level of equal protection scrutiny. Under this theory, the federalism-based concerns were not an independent basis for striking down the law.

This Essay argues that civil rights advocates dodged a bullet when the Windsor Court declined to embrace the categorical family status federalism theory. While its acceptance would have brought along the short-term gain of providing a basis for invalidating DOMA, it also would have curtailed the ability of federal officials to protect same-sex couples and other families.

 Download the essay from SSRN at the link.

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Posted in Feminism and Families, Feminism and Law, Feminist Legal Scholarship, LGBT Rights | Comments Off

Job Announcement: Project Director, Public Rights/Private Conscience Project

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Columbia Law School’s Center for Gender & Sexuality Law seeks a Project Director for its new Public Rights/Private Conscience Project.  The Director would lead the Project’s research and advocacy on the multiple contexts in which assertions of conscience and/or religious convictions are used to carve out exceptions to otherwise universally binding rights of equality and sexual liberty.

Responsibilities:

  1. Develop strategy on a local, state and federal level to respond to the uses of religion to limit the scope of reproductive and sexual rights;
  2. Develop model policy language and ideal workplace practices for dissemination in settings such as employees who seek to refuse services on the basis of a religious or conscience-based objection, or professional/medical ethics policy on conscience-based refusals of service;
  3. Create a Best Practices toolkit for LGBT and women’s rights advocates aimed at offering model language for religious exemptions policies and legislative language;
  4. Undertake legal analysis of proposed religious exemption laws to provide to affected stakeholders such as hospital general counsels, professional associations, and others explaining not only the complex interactions between rights and religion, but also the complications of hospital accreditation and licensing as well as other unintended consequences that may flow from the assertion of religion as an exemption from otherwise secured rights;
  5. In conjunction with the Center’s Co-Directors, the incumbent will undertake and coordinate scholars in the field of law, religion, medical ethics, and civil/constitutional rights to generate analysis, arguments and research that contextualizes and re-frames the current polarized arguments for and against religious liberty;
  6. Promote new understanding and support for frameworks developed through engagement in public sphere through op-eds, media appearances, symposia, articles in general and scholarly publications and reports;
  7. Lead coalition work among key stake-holders (such as policy staff for educational, medical and other professional organizations, hospital and university general counsel, and attorneys general) to develop and disseminate new scholarly framing of the legal issues at stake with religious exemptions.

Position Qualifications:

Bachelor’s degree required; J.D. and bar admission strongly preferred; a minimum of 5-7 years related experience strongly preferred. Excellent writing, research, analytic, leadership and communication skills; Two to five years of litigation and/or advocacy experience; A demonstrated ability to bridge academic and advocacy communities; Familiarity with civil rights issues highly desirable; knowledge of LGBT, reproductive rights, religious liberty, and/or of health care issues a plus; Leadership, self-motivation and an ability to work collaboratively.

To apply: https://jobs.columbia.edu/applicants/Central?quickFind=138637

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Sabbatical Visitorship: Columbia Law School Center for Gender & Sexuality Law

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The Center for Gender and Sexuality Law at Columbia Law School invites applications for a sabbatical visitor for the 2014-2015 academic year to undertake research, writing and collaboration with Center faculty and students in ways that span traditional academic disciplines. The CGSL welcomes applications from faculty from any field who are interested in spending a semester or the academic year in residence at Columbia Law School working on scholarly projects relating to Gender and/or Sexuality Law.

Sabbatical Visitors will receive an office with phone and computer, secretarial support and full access to university libraries, computer systems and recreational facilities. In addition, Sabbatical Visitors will be expected to participate in CGSL activities and present a paper at the Center’s Colloquium Series.  Application deadline is April 15, 2013.

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

Katherine Franke, Columbia Law School

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Where The Girls Aren’t

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Ryan A. Malphurs, Courtroom Sciences Inc., Jaime Bochantin, DePaul University, L. Hailey Drescher, University of Kansas, and Melissa Wallace Framer, Arizona State University, Hugh Downs School of Human Communication, have published Too Much Frivolity, Not Enough Femininity: A Study of Gender and Humor at the U.S. Supreme Court. Here is the abstract.

The four authors in this study took on the exhilarating task of listening to 79 oral arguments in the Supreme Court’s 2011-2012 term. After two years spent recovering from oral argument overload, the authors have prepared a study that ingeniously tricks readers into reading a study on humor that is really about gender inequality at the Supreme Court and in the field of Law. Initially tallying instances of un-transcribed laughter, the authors — prompted by Hillary Clinton’s urging — began noticing gender and humor discrepancies between the justices and the advocates; what started as a simple humor tabulation devolved into important research. In the following study, the authors lull readers into complacency by offering data related to humor, but then shock their audience with serious data about gender inequality — ruining any fun that readers might have had. It’s true the authors show that the Supreme Court is far funnier than previously thought, and that Justice Scalia enjoys bullying Justice Breyer; however, potential readers should turn back now, because what follows is mind numbing boredom and “PC” discussions about gender veiled within a “humor” study.

 

The authors would like readers to know that the following study, if you haven’t been able to tell already, does not follow traditional scholarly conventions. “Why?” you may ask, because it would be boring and no one would read it, duh. The authors have endeavored to make this study both interesting in the data and entertaining to read — a truly ground-breaking feat in scholarly studies. Great risk comes with great rewards, and we’re just hoping someone other than ourselves will read this study.

Download the paper from SSRN at the link.

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Posted in Feminism and Law, Legal Profession, The Underrepresentation of Women, Where are the Women? | Comments Off

Ada Lovelace Day

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Even though we missed it by a day…a tribute to Ada Lovelace on her day, October 15. She’s unfortunately generally less well known as the mother of computer programming than as the daughter of George Gordon, Lord Byron and Anna Isabella Milbanke. More about remembering Ada and her work here at the Wellcome Trust’s blog. A mini bio here by Agnes Scott College’s Dr. Betty Toole.

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Converge! Re-Imagining the Movement to End Gender Violence

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CALL FOR PAPERS AND PRESENTATIONS -
SUBMIT YOUR PROPOSAL TO converge@law.miami.edu
DUE DATE: Friday, October 18, 2013 (may be extended)

For more conference information see http://www.law.miami.edu/academics/converge/

CONVERGE! Re-imagining the Movement to End Gender Violence, will bring together survivors, activists, and academics from law and social sciences to consider opportunities to focus U.S. priorities in funding, activism, legal responses, and social services in ways that better address the economic, racial and other structural inequalities that create and maintain gender violence. This conference offers a unique combination of strategy exchanges, activist/academic cross-fertilization, and hands-on training, with the overall objective of fostering a transformative agenda for addressing gender violence.

Proposals for Papers & Presentations

We are currently accepting proposals for papers and presentations. Proposals should relate to one or more of the following conference themes:

(1) Structural Inequality and Gender Violence
(2) Re-Imagining Mobilization Against Gender Violence
(3) Alternatives to Criminal Justice Strategies
(4) Reframing Gender Injustice as a Violation of Human Rights
(5) Responding to Retrenchment and Stalemate in Reform Efforts

We will review proposals for their relevance to the conference themes and with an eye towards maintaining a balance between academics and activists presenters and subject matter coverage. We are committed to having a diverse group of presenters, including diversity of race/ethnicity, age, sexuality, gender identity, and ability. We are seeking funding to provide simultaneous translation in Spanish and Creole (two of the most prominently heard languages in south Florida.)

Please note that limited scholarship funding is available for those who are without the means to attend. Please indicate in your submission if your attendance is contingent on receiving scholarship funding. Our working assumption is that academic participants have access to travel funds, but we recognize that this is not always the case. (We are continuing to raise funds and hope to offer more funding. Information is available on the website for those who are interested in contributing to the scholarship fund.)

Submission Requirements

If you are interested in making a presentation, or in organizing a panel, please submit a proposal and email it to converge@law.miami.edu. Space is limited.

Your submission should be no more than 500 words and should include the following:

1) Your Name & Contact Information

2) Your Organization Affiliation (if any)

3) Indicate information about you (include all that apply):
a. Academic and, if so, in what discipline?
b. Attorney, and if so, what are your areas of practice (if applicable)?
c. Activists, non-lawyer, and if so, what are your areas of focus?
d. Survivor, what areas of work are you involved with?

4) Indicate the kind of presentation in which you are most interested:
a. Individual Presentation (talk) on a Panel (about 15 minutes)
b. Organizing a Panel (60 minutes). Include the names, affiliations and information outlined above for each panel member. Please also indicate that each has agreed to participate if chosen and indicate if the participation for any panel member is contingent on receiving a scholarship. Panel members applying for scholarships must make their own application.
c. Providing a training session or engaging in a strategy sharing session.
d. Leading (or co-leading) a break out discussion

5) Indicate if your participation is contingent on receiving a scholarship. (You must complete a separate scholarship application, available at the website.) Scholarships are limited.

6) Write an abstract that includes the following information:
• title;
• description of your proposal;
• the conference theme(s) your proposal best fits;
• how your talk contributes to the diversity of the conference in terms of social identity, experience, knowledge base, or area of expertise.

Publication

Speakers have the opportunity to publish a short essay in the University of Miami Race & Social Justice Law Review. The Review will also publish edited transcripts of selected panels and presentations. More information regarding publication will be forthcoming. The publication will be available electronically as well as edited podcasts of selected presentations (with the permission of speakers).

Submissions are due Friday, October 18, 2013.

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Posted in Academia, Activism, Acts of Violence, Call for Papers or Participation, Coerced Sex, Courts and the Judiciary, Employment Discrimination, Feminism and Economics, Feminism and Families, Feminism and Law, Feminism and Politics, Feminist Legal Scholarship, Feminists in Academia, Human Trafficking, Immigration, Legal Profession, LGBT Rights, Masculinity, Reproductive Rights, Sex Trafficking, Sexual Harassment, Socioeconomic Class, Upcoming Conferences | Comments Off

Call for Nominations: AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award

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The AALS Section on Women in Legal Education is pleased to open nominations for its second Lifetime Achievement Award. Last year, the inaugural award honored Justice Ruth Bader Ginsburg for her remarkable impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profesison.

The purpose of the Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years.  The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is seeking nominations for this most prestigious award.  Please submit your nomination by filling out this electronic form by November 8, 2013Please note that only nominations submitted via the electronic form by the deadline will be accepted.

Please email Dean Cynthia Fountaine, chair of the Lifetime Achievement Award Subcommittee, if you have any questions or difficulty with your online submission.

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Professor Mary Anne Franks discusses “Revenge Porn”

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What is a “threatened sexist”? What is “revenge porn” itself, anyway?

Check out this discussion with Professor Mary Anne Franks to learn all about this topic, to discuss ways that law is responding to online harassment, and to find out what you can do to support this work.

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Posted in Activism, Feminism and Technology, Feminist Blogs Of Interest, Pornography's Harms, Sexual Harassment | Comments Off

2014-2015 Visiting Scholar Positions at McGill U Institute for Gender, Sexuality, and Feminist Studies

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From the FLP mailbox:

2014-2015 VISITING SCHOLAR POSITIONS, McGill University (Montreal)

The Institute for Gender, Sexuality, and Feminist Studies (IGSF) invites applications for the competitive position of Visiting Scholar. These positions are open to professors who wish to spend one or two academic terms in a university environment in order to carry out research on gender, sexuality or feminist studies. The Institute offers work space and support, an ongoing seminar program, contact with other scholars within McGill and in neighbouring universities – all this located at the centre of a stimulating, bilingual, urban environment.

The Visiting Scholar positions are ideal for faculty with research leave funding, a portable research fellowship, or sabbatical. Preference will be given to scholars who already hold faculty positions. Research funding in the amounts of $1,000 and $5,000 (for the Muriel Gold Senior Visiting Scholar position) is available from IGSF.

If interested, please send a proposal that describes in 1-2 pages the research that would be undertaken while in residence as a Visiting Scholar, a copy of a recent publication, an up-to-date curriculum vitae and an indication of what period you would be interested in being in residence as an IGSF Visiting Scholar to (email applications preferred):

Carrie Rentschler, Director

Institute for Gender, Sexuality, and Feminist Studies (IGSF)

3487 Peel Street, 2nd floor

Montreal, QC H3A 1W7

Phone: 514.398.3911

Fax: 514.398.3986

e-mail: info.igsf@mcgill.ca<mailto:info.igsf%40mcgill.ca>

While we may be able to provide administrative advice on the following matters, IGSF visiting scholars assume full responsibility on matters relating to visa applications, health insurance, housing and living expenses. Please note in particular that Canada does not pay for hospital or medical services for visitors. All visiting scholars must ensure they have health insurance to cover any medical costs for the duration of a visit to Canada.

APPLICATION CLOSING DATE: Monday, 9 December, 2013

Candidates requiring assurance of a position in order to obtain funding elsewhere are invited to apply one year in advance.

-Bridget Crawford

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Hasday on “Women’s Exclusion from the Constitutional Canon”

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Jill Elaine Hasday (Minnesota) has posted to SSRN her article “Women’s Exclusion from the Constitutional Canon,” forthcoming in the University of Illinois Law Review.  Here is the abstract:

This Essay asks why sex equality is outside the constitutional canon. While race discrimination is a canonical concern of constitutional law, the story of America’s struggles over and against sex discrimination is not widely taken to be a central, organizing part of our constitutional tradition — a defining narrative that exemplifies and expresses the nation’s foundational values and commitments. I offer three potential explanations for the exclusion of sex equality from the constitutional canon. First, the Supreme Court’s jurisprudence developed in ways that suggested that sex discrimination was not a core constitutional problem and concern, especially when compared to race discrimination. Second, the Court’s sex discrimination case law has focused narrowly on state action that draws explicit distinctions between women and men. The Court has little interest in reviewing facially neutral laws, no matter their contribution to women’s unequal status, so the Court hears few sex discrimination suits anymore. This paucity of case law contributes to the sense that conflicts over sex equality are no longer central to constitutional law, if they ever were. Third, the story of women’s resistance to sex discrimination may be less prominent in American constitutional law because this story is less prominent in American popular culture, and vice versa. The Essay concludes by exploring why sex equality may ultimately become part of the constitutional canon. The Court’s reading of the Equal Protection Clause to prohibit sex discrimination has become much less controversial since the 1970s. Moreover, new analogies have emerged in constitutional law, which over time have pushed sex discrimination closer to the core of the Equal Protection Clause. Courts, lawmakers, advocates, and scholars seeking constitutional protection from sexual orientation discrimination now routinely analogize sexual orientation to sex. The frequency and prominence of these analogies, which presuppose that struggles against sex discrimination are already central to our nation’s understanding of equality and equal protection, may help move sex into the constitutional canon at last.

The full article is available here.

-Bridget Crawford

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Call for Signatories to Report to UN Human Rights Committee on Domestic Violence and Gun Violence in U.S.

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From colleagues at the University of Miami’s Human Rights Clinic:

Attached and available here is the final shadow report submitted recently to the United Nations Human Rights Committee by the Advocates for Human Rights, the Human Rights Clinic at the University of Miami, Legal Momentum, and Women Empowered, in response to the Committee’s inquiry regarding domestic violence and gun violence in the United States.

We will publish the version with the sign-ons on the web, send the revised version to the Committee, and use that revised document in our Geneva-based advocacy on domestic and gun violence issues in October.

If you would like to sign on to the report, please email Dan Kinney at dkinney-clinic@law.miami.edu by October 8, 2013. Please indicate if you are signing on in your individual capacity or on behalf of your organization/institution.

-Bridget Crawford

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Swedish Exposure Redux, Redacted

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[This is the longer version of a post originally titled “Swedish Exposure.” It was originally edited down and posted at another site but ran into sociotechnical difficulties: too many words were deemed “pornographic.”  I think it was the u-word and the m-word, each of which was used once in the edited down version; of course, it might also have been the s-word, or even my first name, which has real L-word frissonne. To protect both spam filters and sensibilities, I have redacted certain portions of the text below. I trust that readers will use context and/or their imaginations to fill in blanks.]

Some of my colleagues and I have been discussing the recently decided Swedish case in which a 65-year-old man was acquitted of charges of s______  assault after taking off his shorts at a beach near Stockholm and m______into the ocean. You can read about it here. There has been so far a pretty even split between my colleagues who think public m_______  should be punished (though not as a s______ assault, as was the charge in the referenced case) and those who think that public m_______ is acceptable, or at least, should be treated no differently than public u______.  Public u_______, even though deplored and subject to penalty, often goes widely unpunished. Here are some of my thoughts on all of this from a gender, spatial and visual regulatory perspective.

The gendered aspects of this situation intrigue me, starting with the comparison between public u________ and public m________. This is a real Scylla and Charybdis dilemma for me: I don’t want to see either public m_______ or public u______. I will concede that both public m_______ and u_______ often involve exposure of s____ organs, either of which I could conceivably turn away from.   Were I forced to choose which one to view, I am tempted to prefer u_______. I see u_______ as a more compelling sociobiological function whose public performance I am more willing to forgive, though only slightly more willing. I must note that with public u_______, however, I am struck by the gender differences typically involved: men u_____ in public because they can. It is rare for Western women to u_______ openly in public. This is mainly because of a combination of physiological impracticability (it’s easier to stand as men typically do for u_______, than to squat as women do) and social norms that frown deeply on women publicly exposing themselves. At least there is no physiological barrier to women’s public m________ (though there would still be immense social barriers with which to contend), so there is theoretically greater gender parity in regard to the practice of public m__________.

But, since I assume, (and the assumption is not always true, I’ll grant) that the public m________ often uses other members of the public as the impetus for his (and it is usually a he) actions (such as staring at persons he finds s________ desirable), public m______ to me reeks of gross s_______ objectification of others and of breaching the boundaries between public and private. Although the public/private dichotomy has long inhered to the disadvantage of women, keeping n________ g________ and s_________ acts in the private sphere is an example of where the public/private divide serves women. Because of the way in which male public m_______ and g______ exposure have historically been and continue to be used to s_______ harass women, it is not possible to accord male public m_______ and/or other male g______ exposure a neutral valence (“it’s just another bodily function/bodily part”) that ignores this history. Keeping m_______ private is a legitimate, well-founded constraint that protects the public (mostly women) from a potential form of harassment and accords a measure of dignity to m_______ as an intimate sexual act. Allowing public m________, in contrast, promotes what is chiefly a masculinist prerogative all while cheapening it as a s_________expression.

A larger concern that I have has no bearing on whether the public m_________ uses another member of the public to fuel his m______ or merely uses his own imagination. I am concerned with the way in which the public m______, the public u________ and the public g______ exposer, all of whom typically display their s______organs, wield what some social theorists have called synoptic power: the power of an actor to compel others to look at the actor or at a place the actor directs.  Via display of his s_______organs in a context where such displays are not only non-normative but socially and morally offensive to many, the public m_______ and his ilk shape public behavior patterns, commanding attention or repulsion, and thereby exercise social control. This is true even where, as in the Swedish case, the actor did not “target” a specific person with his m________ (or so the court says). This even stands true where the public m________ does not particularly seek an audience but performs where an audience is in fact present. Public m________ features what is often an intensely coercive, oppressive, and obscene power of “made you look” and of “made you look away.”

So, while I understand the impulse to treat public m_______ as an aspect of broader social and personal freedom, it is a freedom whose exercise threatens to constrain the liberty of many others to enjoy public space.

-Lolita Buckner Inniss

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

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Announcing the Penny Pether Award for Law and Language Scholarship

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From the FLP mailbox, this announcement of a new award in honor and memory of Penny Pether:

A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation.

Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship will be given annually to an article or essay published during the preceding year (September 1 to September 1) that exemplifies Penny’s commitment to law and language scholarship and pedagogy.

1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.”

2. Scholarship that “attempts to think through the relations among subject formation, language, and law.”

3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.”

4. Scholarship and pedagogy that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.”

More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010).

Nominations should be sent by October 25, 2013 to Jeremy Mullem at mullem@law.duke.eduYou are free to nominate more than one work and to nominate work you’ve written.  Please provide a citation for each work you nominate.

The Selection Committee includes Linda Berger, David Caudill, Amy Dillard, Ian Gallacher, Melissa Marlow, Jeremy Mullem, Nancy Modesitt, and Terry Pollman.  Members of the Selection Committee and other faculty at their schools are not eligible for the award.

-Bridget Crawford

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Two Carleton University Hiring Announcements

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From colleagues at Carleton University (Canada), two hiring announcements:

Law and Legal Studies (lndigeneity and the Law) – Assistant Professor

The Department of Law and Legal Studies invites applications from qualified candidates for a preliminary (tenure-track) appointment in “lndigeneity and the Law” at the rank of Assistant Professor beginning July 1, 2014.

The successful candidate will be expected to teach core courses in our undergraduate program and contribute to the development of our graduate offerings including our new PhD in Legal Studies in the area of domestic and/or international issues of lndigeneity and the Law. The successful candidate may also wish to participate in the new Masters concentration and Graduate Diploma in Indigenous Policy and Administration offered by the School of Public Policy and Administration. The Department of Law and Legal Studies is the home of the oldest and largest undergraduate and graduate programs in Legal Studies in Canada. The Department emerged in 1967 as the first unit in Canada to study law with multidisciplinary academic concerns in mind. The Department offers a B.A. & B.A. (Honours) in Law to over 1000 students within the Faculty of Public Affairs and includes concentrations in Human Rights & Transnational Law, Business Law, and Law, Policy and Government among its undergraduate programs.

The Department of Law and Legal Studies is committed to interdisciplinary legal inquiry and is composed of scholars engaged in interdisciplinary teaching and research from a range of disciplines including criminology, history, law, legal anthropology, political economy, political theory, mass communications and sociology. The Department currently offers a B.A. in Law and a M.A. and Ph.D in Legal Studies.

Candidates should hold a doctoral degree, or the equivalent, in legal studies, law or a related discipline and demonstrate a capacity for theoretically-informed, interdisciplinary scholarship and teaching. The successful candidate will have the ability to develop an externally-funded, high quality research program; will be committed to effective teaching at the undergraduate and graduate level; and will contribute effectively to the academic life of the Department, the Faculty and the University.

Applicants should send a cover letter of application; a curriculum vitae; a statement of research interests; a teaching portfolio, including evidence of teaching performance and a statement of teaching philosophy; and have three referees forward supporting letters by the closing date of December 1, 2013 to: Chair, Department of Law and Legal Studies c/o Gina Freitag, Carleton University, 1125 Colonel By Drive, Ottawa, Ontario K1 S 5B6. gina.freitag@carleton.ca


The Department of Law and Legal Studies invites applications from qualified candidates for a preliminary (tenure-track) appointment in “Criminology and Socio-legal Studies” at the rank of Assistant Professor beginning July 1, 2014.

The successful applicant will teach and conduct research in the field of Criminology and Socio-legal Studies. Substantive research interests are open. At the undergraduate level, the successful applicant will be expected to teach core courses in criminal law and/or criminology and contribute to the Department’s support of the Institute of Criminology and Criminal Justice. At the graduate level, the successful applicant will contribute to the Department’s offerings in the specialization areas of “Crime, Governance and Security” for the MA and “Crime, Law and Security” for the PhD in Legal Studies.

The Department of Law and Legal Studies is the home of the oldest and largest undergraduate and graduate programs in Legal Studies in Canada. The Department emerged in 1967 as the first unit in Canada to study law with multidisciplinary academic concerns in mind. The Department offers a B.A. & B.A. (Honours) in Law to over 1000 students within the Faculty of Public Affairs and includes concentrations in Human Rights & Transnational Law, Business Law, and Law, Policy and Government among its undergraduate programs. The Department of Law and Legal Studies is committed to interdisciplinary legal inquiry and is composed of scholars engaged in interdisciplinary teaching and research from a range of disciplines including criminology, history, law, legal anthropology, political economy, political theory, mass communications and sociology. The Department currently offers a B.A. in Law and a M.A. and Ph.D in Legal Studies.

Candidates should hold a doctoral degree, or the equivalent, in legal studies, law or a related discipline and demonstrate a capacity for theoretically-informed, interdisciplinary scholarship and teaching. The successful candidate will have the ability to develop an externally-funded, high quality research program; will be committed to effective teaching at the undergraduate and graduate level; and will contribute effectively to the academic life of the Department, the Faculty and the University.

Applicants should send a cover letter of application; a curriculum vitae; a statement of research interests; a teaching portfolio, including evidence of teaching performance and a statement of teaching philosophy; and have three referees forward supporting letters by the closing date of December 1, 2013 to: Chair, Department of Law and Legal Studies c/o Gina Freitag, Carleton University, 112S Colonel By Drive, Ottawa, Ontario K1S 5B6. gina.freitag@carleton.ca

Located in Ottawa, Ontario, Carleton University is a dynamic research and teaching institution with a tradition of leading change. Its internationally recognized faculty, staff, and researchers provide more than 27,000 full- and part-time students from every province and more than 100 countries around the world with academic opportunities in more than 65 programs of study. Carleton’s creative, interdisciplinary, and international approach to research has led to many significant discoveries and creative work in science and technology, business, governance, public policy, and the arts. As an innovative institution, Carleton is uniquely committed to developing solutions to real world problems by pushing the boundaries of knowledge and understanding daily.

Minutes from downtown, Carleton University is located on a beautiful campus in the central portion of Ottawa, bordered by the Rideau River on one side, and the Rideau Canal on the other. With over 12 national museums and the spectacular Gatineau Park close by, there are many excellent recreational opportunities for individuals and families to enjoy. The City of Ottawa itself, with a population of almost one million, is Canada’s capital city and reflects the country’s bilingual and multicultural character. Carleton’s location in the nation’s capital provides many opportunities for research with groups and institutions that reflect the diversity of the country.

Carleton University is strongly committed to fostering diversity within its community as a source of excellence, cultural enrichment, and social strength. We welcome those who would contribute to the further diversification of our faculty and its scholarship including, but not limited to, women, visible minorities, Aboriginal peoples, persons with disabilities, and persons of any sexual orientation or gender identity.

All qualified candidates are encouraged to apply. Canadians and permanent residents will be given priority. All positions are subject to budgetary approval.

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Feminist Law Prof Renee Newman Knake as “Legal Rebel”

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Renee Newman Knake (Michigan State) is one of the “legal rebels featured in this month’s ABA Journal magazine.  Here is an excerpt from the profile:

Two years ago, professional responsibility law professor Renee Newman Knake knew she could no longer tout a rewarding and meaningful career in the law. As she saw it, the profession was plagued by wasteful inefficiency, a precipitous market drop, and the inability to serve a growing swath of the U.S. population.

“If I was going to stand up in front of my students and really believe that having a legal degree and a career as a lawyer can be among the most fulfilling career choices a person can make,” says Knake, “I needed to be doing something to make sure that would be true going forward for future generations of lawyers.”

Knake, 39, co-founded and co-directs Michigan State University’s ReInvent Law Laboratory with fellow prof Daniel Martin Katz. “We needed to create a space where we could build an on-the-ground tool for rethinking the ways we deliver legal services, and then train our students and practicing lawyers to do it,” Knake says.

Read the full story here.

Professor Knake’s full bio is here.

And she’s on the cover of the ABA Journal. Cool!

-Bridget Crawford

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New Gender and the Law Blog

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Tracy Thomas (Akron) and John Kang (St. Thomas) are the editors of the new Gender and the Law Prof Blog, “A Member of the Law Professor Blogs Network Sponsored by Wolters Kluwer.”  Check it out here.

Welcome to the blogosphere, Gender and the Law Prof blog.

-Bridget Crawford

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In Memoriam: Penelope Pether 1958-2013

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Villanova Law Professor Penelope (Penny) Pether died on September 10, 2013.

Penelope Pether, 55, of Haverford, a law professor at Villanova University, died Tuesday, Sept. 10, of cancer at Pennsylvania Hospital.

Dr. Pether was a widely published legal scholar, specializing in the theory and practice of judging in the federal courts; feminist legal theory; the history of racial discrimination; and rape-law reform.

“Penny Pether was a well-respected educator, dedicated mentor, and beloved friend and colleague,” said John Gotanda, dean of the Villanova School of Law. “Her passion for teaching was immeasurable, and her death is a tremendous loss for the Villanova Law community.”

Over the last eight years, she taught courses there about criminal law, comparative constitutional law, and law and literature.

She also brought Villanova law students and inmates together in an unusual seminar at Graterford Prison to study issues of crime and justice from behind prison walls, Gotanda said.

Her husband, David Caudill, said that even in failing health, Dr. Pether went to the prison to teach. She insisted that the inmates could master the difficult legal concepts, and that they should try.

“She really cared about those guys,” her husband said.

From the Villanova Law School website (here):

The Villanova University School of Law community mourns the passing of Penelope Jane Pether, Professor of Law. Professor Pether was a respected educator, dedicated mentor and beloved friend and colleague. Her passion for teaching was immeasurable, and her death is a tremendous loss for the our community.

In 2005, Professor Pether joined the VLS faculty from American University Washington College of Law where she was Professor of Law and Director of Legal Rhetoric. During her tenure at Villanova, she taught a wide variety of constitutional law, law and literature, criminal law and criminal procedure courses. Professor Pether distinguished herself by the positive impact she has had on so many students over the years at VLS and the contributions she has made to the field through her scholarship. She will also be remembered for her work with the Inside-Out Prison Exchange Program, which brings law students and incarcerated men and women together to explore and learn about issues of crime and justice from behind prison walls. Though she will be sorely missed, her legacy lives on through the students whom she instructed and inspired.

Professor Pether was an active member of the AALS Section on Women in Legal Education and a member of the Feminist Law Professors blogroll.  Our condolences to Professor Caudill and to her family.  Penny will be missed.

May her memory be a blessing.

-Bridget Crawford

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Formal Equality on Yom Kippur

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Writing the Jewish Women’s Archive (here), student Dina Lamdany has these reflections on the “gender-neutral” quality of Yom Kippur:

The morning Torah reading is about the Kohen Gadol’s (high priest) Yom Kippur service in the temple, and the afternoon reading is about forbidden sexual relationships (a topic for a different time)–neither features anything particularly special for women. Similarly, there is nothing to be found in the Haftorah portions: the morning Haftorah is from Isaiah, and talks about sincere repentance (like fasting), while the afternoon Haftorah is from Jonah, and talks about how through repentance, the people of Ninveh were able to prevent themselves from being destroyed (and, you know, a whale.) * * *

On Yom Kippur, it’s not just the stories that don’t differentiate between men and women. Women have the same prohibitions as men throughout the holiday: no food, no drink, no sex, no leather shoes, and no creams/oils. While there are exceptions for women in labor or who just gave birth, even pregnant women are supposed to fast (but encouraged to stay in bed if going to synagogue would cause them to feel ill.)

* * * Yom Kippur, often regarded as the holiest day of the year, is not about women or men or gender–it’s about people. People repenting, people trying to step back from earthly habits and objects–we’re supposed to be like angels–and people trying to look at themselves from outside of their normal selves. And maybe a part of that is stepping away from gender lines and the way we normally associate ourselves with female or male roles, and instead just thinking about who we are as people.

Read the full post here.

-Bridget Crawford

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Shaken and Stirred, Women Leaving (Wall Street) Finance

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Margo Epprecht on “The Real Reason Women Are Leaving Wall Street: Gentlemen Prefer Bonds.” Title cute, reasons not. But they’re also pretty predictable: a lot of sexism, along with the long hours, the financial crisis that caused many people to rethink their priorities, and the preferences many women tend to make for home and family. In 2013, would bringing more women back to Wall Street change the ethical and management dynamics of the place? It’s certainly up for discussion. Very interesting read.

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Posted in Feminism and Economics, Feminism and the Workplace, If you're a woman, The Underrepresentation of Women, Where are the Women? | Tagged | Comments Off

CFP: Canadian Journal of Women and the Law

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Canadian Journal of Women and the Law

Call for Submissions: Volume 26(2)

The Canadian Journal of Women and the Law invites the submission of articles for publication in Volume 26(2) in the Autumn of 2014.  The CJWL is Canada’s oldest feminist legal periodical. Since it began in 1985, the Journal has provided a forum in which writers from diverse backgrounds, speaking from a wide range of experience, can exchange ideas and information about legal issues that affect women.

We invite submissions from people who are engaged in feminist analysis of socio-legal issues that reflect a range of approaches, including multidisciplinary, action-focused, theoretical, and historical, and that reflect linguistic and regional differences in Canada. We particularly encourage submissions authored by women from different backgrounds and disciplines who are doing new feminist work.

While submissions are accepted on a rolling basis, the submissions deadline for Volume 26(2) is December 31, 2013.  Submissions should conform to the Style Guide available on our website: http://www.utpjournals.com/cjwl/cjwl.html. The text should not exceed 35 pages (10,000 words), double-spaced, including notes and appendices, and should include an abstract.

Please send submissions in a Word document (not PDF) to cjwl-rfd@uottawa.ca

For further information please contact:

Rosemary Cairns Way, English Language Co-Editor, Canadian Journal of Women and the Law

Email:cjwl-rfd@uottawa.ca 

Louise Langevin, Corédactrice francophone, Revue Femmes et droit

Louise.Langevin@fd.ulaval.ca

 

Appel de textes

Revue Femmes et Droit : Volume 26(2)

La Revue Femmes et Droit désire recevoir des textes pour publication dans son numéro 26(2) à paraître aux automne 2014. La Revue Femmes et Droit est la plus ancienne seule revue juridique féministe au Canada. Depuis le début de ses activités en 1985, la Revue a créé un forum permettant aux auteures féministes venant d’horizons différents et ayant une vaste gamme d’expériences d’échanger des idées et des renseignements sur les questions juridiques intéressant les femmes.

La Revue désire recevoir des tapuscrits d’analyse féministe concernant des questions socio-juridiques qui reflètent tant une diversité d’approches multidisciplinaires, stratégiques, théoriques et historiques que les différences linguistiques et régionales du Canada. Nous accueillons volontiers des textes d’auteures qui émanent de diverses professions, disciplines et provinces et qui se consacrent à de nouveaux domaines de l’action féministe.

Bien que la Revue accepte des textes en tout temps, la date limite de soumission pour le numéro 26 (2) est le 31decembre 2013. Les textes devraient respecter le Manuel canadien de la référence juridique et ne pas dépasser 35 pages (10 000 mots), à double interligne, y inclus les notes et les annexes et comprendre un résumé.

Veuillez envoyer vos textes en format Word à l’adresse :Louise.Langevin@fd.ulaval.ca

Pour toute information, veuillez contacter

Rosemary Cairns Way, English Language Co-Editor, Canadian Journal of Women and the Law

Email:cjwl-rfd@uottawa.ca 

Louise Langevin, Corédactrice francophone, Revue Femmes et droit

Louise.Langevin@fd.ulaval.ca

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University of Baltimore School of Law Seventh Annual Feminist Legal Theory Conference

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CALL FOR PAPERS: “APPLIED FEMINISM AND HEALTH”

The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Seventh Annual Feminist Legal Theory Conference. This year’s theme is “Applied Feminism and Health.” The conference will be held on March 6 and 7, 2014. For more information about the conference, please visit law.ubalt.edu/caf.

With the implementation of the Affordable Care Act (or Obamacare) and renewed attacks on reproductive health in the United States, the time is right to consider the relationship between feminism and health across multiple dimensions. This conference seeks to explore the intersections between feminist legal theory and physical, mental, public, and community health in the United States and abroad. Papers might explore the following questions: What impact has feminist legal theory had on women’s health policy and practice? How might feminist legal theory respond to the health challenges facing communities and individuals, as well as increase access to health care? What sort of support should society and law provide to ensure good health? How do law and feminist legal theory conceptualize the role of the state in relation to health rights and reproductive justice? What are the links between health, feminist legal theory, and sports? Are there rights to good health and what are their foundations? How do health needs and conceptions of rights vary across cultural, economic, religious, and other identities? What are the areas where health justice is needed and how might feminist legal theory help?
This conference will attempt to address these and other questions from the perspectives of activists, practitioners, and academics. The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories. We hope to deepen our understandings of how feminist legal theory relates to health and to move new insights into practice. In addition, the conference is designed to provide presenters with the opportunity to gain feedback on their papers.
The conference will begin the afternoon of Thursday, March 6, 2014, with a workshop for conference participants. This workshop will continue the annual tradition of involving all attendees as participants in an interactive discussion and reflection. On Friday, March 7, 2014, the conference will continue with a day of presentations by legal academics, practitioners and activists regarding current scholarship and/or legal work that explores the application of feminist legal theory to issues involving health. 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, Pulitzer Prize winning journalist Sheryl WuDunn, and Senators Barbara Mikulski and Amy Klobuchar.
To submit a paper proposal, please submit an abstract by Friday, 5 p.m. on November 1, 2013, to ubfeministconference@gmail.com. It is essential that your abstract contain your full contact information, including an email, phone number, and mailing address where you can be reached. In the “Re” line, please state: CAF Conference 2014. Abstracts should be no longer than one page. We will notify presenters of selected papers in mid-November. We anticipate being able to have twelve paper presenters during the conference on Friday, March 7, 2014. About half the presenter slots will be reserved for authors who commit to publishing in the 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. Regardless of whether or not you are publishing in the symposium volume, all working drafts of papers will be due no later than February, 14, 2014. Abstracts will be posted on the Center on Applied Feminism’s conference website to be shared with other participants and attendees.
We look forward to your submissions. If you have further questions, please contact Prof. Michele Gilman at mgilman@ubalt.edu.

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Two New Female Lego Minifigures Have Been Released: Let’s Call Them “Progress” and “Backlash.”

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The first is a female scientist:
legosci
According to this site, “This latest minifig is significant because she’s the first female Lego scientist. For reasons unknown most Lego STEM (science, technology, engineering, and mathematics) minifigs are male.”

The second Series 11 Lego Minifigure of interest is a female robot. Below is a picture of it that pretty much speaks for itself I think.

legobot

–Ann Bartow

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“For most Americans, life expectancy continues to rise—but not for uneducated white women. They have lost five years, and no one knows why. “

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TAP story by Monica Potts entitled “What’s Killing Poor White Women?” here.

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What’s Feminism Got to Do with It? “The Super Woman Myth”

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Once again there is an article blaming feminism for “raising the bar too high” and making it impossible for real women to “have it all. “The Super Woman Myth: Where Feminism Went Wrong  (Unfortunately this article is behind a pay wall in The Chronicle of Higher Education) Barnard President Debora Spar writes: “My generation made a mistake. We took the struggles and the victories of feminism and interpreted them somehow as a pathway to personal perfection. We privatized feminism and focused only on our dreams and our own inevitable frustrations.” And she argues that we need a feminism based on difference and resurrects this frustrating refrain about women’s differences, again putting the obstacles women face squarely back in the court of their supposed “differences.” I am very wary of these kinds of prescriptions even as I agree with some of what she says. But the indictment of “feminism” is my first gripe.

Let me humbly suggest that it was not feminism that “privatized” the interpretation of what equality for women meant, or even that it was Spar’s generation (which is mine too by the way) that made “a mistake.” Rather it was a combination of several factors: the increasing commercialization and privatization in the culture as a whole; hostility from both men and women to women’s equality which took many forms, the fact that house work and child-rearing tasks remained largely women’s responsibility, that marriage is still viewed as a “career option” for many women, that recessions and economic stalls that have always represented obstacles for those who in habit the underclass and women are no exception.  There are probably other causes as well, but I don’t think it is feminism.

Of course, some of the problems chronicled  in Spar’s article are mainly those of upper-middle class, well-educated women, those students of hers who were earning Harvard MBAs. Less affluent women have never had the option to just work for a couple of years before dropping out of the work force to have children. That “option” is predicated on a spousal breadwinner (or a trust fund) and the only way in which equality for women figures into this option is that these women got access to a career that in times past they would have been completely excluded from, a career they are now apparently so eager to throwaway, or at least resigned to throwing away.

Perhaps, however, this was just pretend complacency. Perhaps these young women were voicing the attitudes they thought their peers, families and society would approve of. It is hard to be too critical of their attitudes when it is undoubtedly true that they will shoulder more of the burden of childcare, etc. and are under pressures to not only do well in the careers those degrees prepared them for, but to bake perfect cupcakes for their kids school events.  Spar is right. That is indeed ridiculous. No man is ever put to that choice. Still, I am unsure how you blame feminism for this.

My second gripe with her article is that she offers up several tired stereotypes about women, sex and biology rehashed.  We are urged to acknowledge that biology matters, that having “wombs, breasts and ovaries” is a critical difference that makes a difference for purposes of equality.  While I am prepared to say breast feeding and pregnancy surely mean that reproduction and its burdens fall disproportionately on women as a result of biology, I am not convinced that this means that these facts should represent any special obstacle to women in the workplace. That they do is because of the absence of policies which take these facts into account and perhaps that is what Spar has in mind. On that score we agree.

But when she writes: “Most women—not all, but most—approach sexual relations differently than men do. They are more interested in romantic entanglements than casual affairs, and more inclined to seek solace in relationships” I want to just spit. She makes a concession that there may be exceptions (and one wonders how she would characterize those exceptions; we know how society at large would – slut-shaming).

All I can say is that this conventional picture does not conform to my own experience or that of many women I know, although I also would concede that women often feel inhibited from talking about their experiences in a truthful way and they are encouraged to embrace this model of women’s sexuality in order to avoid said slut-shaming.  Not all women want to have children just because they have ovaries any more than every man wants children  just because he has sperm. But women who don’t are often treated as bizarre or tragic while men who remain single and childless are often celebrated.

When you get praise for acting a particular way and shamed for reflecting attitudes that are at odds from your society it is hard to know what attitudes and behaviors would be like in the absence of these social constructs. Suffice it to note that there really isn’t a male corollary to the word “slut.”  Women still get punished for their sexual behavior and they get blamed and shamed for sex even when they are victims. (See the cover story in this past Sunday New York Times Magazine for the story of a woman kidnapped in Somalia whose bid for escape appears to have been foiled in part when she disclosed she had been raped. She apparently thought she would be treated as the wronged party rather than as responsible for her own attack as unclean as a result. This is true almost the world over and continues to be more true that it ought to be even in countries which criminalize rape).

I applaud and second Spar’s exhortation to return to feminism’s roots in collective action and to recognize that we are in this together so to speak. But it is frustrating to see so rehashed so many distressing stereotypes about women’s supposed differences that mean, according to Spar, that women should just accommodate or accept diminished expectations by taking the world as it is as a given. I wish that in addition to urging that we support women candidates for office and better maternity leave child care policies, that she had advocated that we try to advocate that those of us who have male partners not accept anything less than full partnership in  child rearing and housework, that we protest against all the various ceremonial “wife” roles in public life, starting from the First Lady, that perpetuate the idea that “wife” is a career option.

And how can it be otherwise when in thousands of ways we are reminded that “wife” is a job – still. We still have the “Real Housewives” franchise (although this is an oxymoron if there ever was one). There is no “Real House Husbands” male equivalent. And a recent article in the Sunday New York Times chronicles the wives and girlfriends of tennis stars and almost completely ignoring the pairings of the women players except to subtly or not so subtly suggest that they are sad figures with a string of failed relationships). Here is a frame shift. What if they, like the male stars before them are just playing the field and aren’t actually that into settling down? And men or women with same sex partners are virtually ignored.  I suspect the reason is not necessarily homophobia. It is that the women’s romantic partners aren’t viewed as performing a function merely by being in a relationship with the athlete. The women who are married or attached to male stars are, even when, as is true in some cases, they have their own careers.

This is culture not feminism. It is culture not feminism that when a search goes out for a university president some have trouble imagining a woman for the job. I wonder if Spar encountered these problems or whether at a college like Barnard this is not the same problem it is at a college that has never had a woman as university president. And lest we think this is a problem of the Midwest or just certain parts of the country let us remember that we still have not had a woman president for the country. Perhaps no small part of that is because we cannot imagine what her partner would do. Everyone (or many) seem thrown into a state of confusion trying to imagine what we will do with no First Lady or what in the world  a First Husband to do.  It exposes the essential silliness and way in which the concept of First Lady is deeply gendered. And it is gendered in a way that exposes that the First Lady job is just a more elevated, more ceremonial expression of the same role that Spar’s students expressed interest in.

We should indeed work collectively to support equality for women but it is hard to see how that will happen while those who identify as feminism contribute to the notion that feminism is somehow a dirty word or is to blame for the continuing lack of progress we see.  We should aim to make it possible for  women to exploit their talents without having to sacrifice everything else even if no one, men or women, can “have it all.” And let’s stop blaming feminism.

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Posted in Academia, Activism, Feminism and Culture, Feminism and Economics, Feminism and Families, Feminism and Politics, Feminism and the Workplace | Tagged | Comments Off

“Hip Hop and Feminism” Syllabus and CFP

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Over at the blog of the Anna Julia Cooper Project on Gender, Race and Politics in the South, this post that includes a link to the syllabus for Dr. Melissa Harris-Perry’s “Hip Hop and Feminism” course at Tulane University:

Throughout the semester, students in Dr. Harris-Perry’s class will write pieces for our blog about the questions they are exploring in class and the research that they are undertaking. The class will culminate with students presenting their research as part of our Gender, Sexuality & Hip-Hop Mini-Conference in December.

Here’s the conference Call for Papers:

2013 Mini-Conference
Gender, Sexuality and Hip Hop

December 5 and 6, 2013
Tulane University, New Orleans, LA

In conjunction with Professor Melissa Harris-Perry’s Fall 2013 course, Hip-Hop and Feminism, Tulane University, in partnership with the Anna Julia Cooper Project, LLC, will host a mini-conference on the topic of gender, sexuality and hip-hop. The conference will bring together a small group of scholars, students, artists, and activists for an intensive series of discussions focused on the contemporary challenges and opportunities at the intersection of gender, sexuality and hip-hop.

Prospective participants are invited to submit proposals of 500-1000 words. Prospective participants may submit individual papers or full panels. Scholars and graduate students from all fields in the social sciences, arts and humanities are invited to submit proposals. Quantitative, qualitative, theoretical and performativity proposals are welcome. Both established and emerging scholars are encouraged to submit.

We are also accepting proposals from undergraduate students for undergraduate panels. Undergraduates should provide the name and contact information of a faculty advisor who can serve as a reference for the student’s work.

All submissions must include the author/speaker(s) name, title of paper, 500-1000 word description of the paper, university or organizational affiliation, and contact information.

Proposals should be sent via email to cooperproject@melissaharrisperry.com. All proposals must be received by 5:00 pm CST on Friday, September 13. If accepted to participate, speakers must provide their own travel and lodging.

Important Dates

Proposal due: September 13, 2013
Acceptance notification: October 14, 2013
Conference date: December 5th & 6th

 

-Bridget Crawford

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Stetson Hiring Announcement

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From colleagues at Stetson, these three hiring announcements:

Professor of Legal Skills and Trial Advocacy

Stetson University College of Law seeks an entry level or lateral hire to lead Stetson’s award winning trial advocacy program.  The successful candidate is expected to hold a full-time programmatic tenured/tenure-track faculty position.

The primary duty of this individual is to serve as the coordinator to the trial team competition program, which includes training trial team members, serving as the primary coach for at least one team per semester, recruiting and training a network of advocacy skills trainers to coach additional teams throughout the year, and providing oversight of all trial team competitions.  This oversight includes creating and following a budget for the program, assuring compliance with all applicable rules and regulations in all trial competitions, organizing and supervising trial team tryouts, and selecting students to participate on competition teams. The individual will coordinate trial team activities with the Director of the Center for Excellence in Advocacy and the advisors of the Alternative Dispute Resolution and Moot Court Boards.

Additionally, the individual will teach assigned classes, which may include classes in Stetson’s skills curriculum including L.L.M. online classes, trial advocacy, and upper-level skills courses.

The individual will also assist the Director for the Center in Excellence in Advocacy in other projects consistent with the primary duties of coordinating the trial team activities. Such projects may include coordinating or assisting in competitions sponsored by Stetson University College of Law or presentations on Stetson’s programs. The individual may also be asked to assist in recruitment of J.D. students to the law school.

This position requires the individual to hold a J.D. from an ABA-accredited law school, and to be licensed and in good standing to practice law in at least one state or the District of Columbia. Actual trial experience is necessary for this position. There is an additional preference for applicants having experience in coaching competition teams or teaching in an established trial advocacy program.

Faculty on the Programmatic Tenure track, or with Programmatic Tenure, attend faculty meetings, serve on and/or chair various faculty governance committees, vote on matters of policy with all other tenure-track or tenured faculty, and are expected to produce legal scholarship consistent with programmatic tenure status that recognizes skills course teaching requirements.

Stetson University College of Law, a leader in skills training, strives to help students develop their full potential as lawyers and leaders, both inside and outside the classroom. It has a nationally recognized advocacy program, ranked 1st in the nation 15 times by U.S. News and World Report. The assistant, associate, or professor of legal skills and trial advocacy works to maintain and enhance Stetson’s reputation as the premiere skills teaching institution and leader in advocacy competitions worldwide.

Located in Florida’s Tampa Bay region, the nation’s nineteenth largest metro area, Stetson was established in 1900 and is Florida’s oldest law school.  Our main campus is in Gulfport, just outside St. Petersburg, with a satellite campus in downtown Tampa.  Stetson has earned a national reputation for its advocacy, elder law, legal writing, and higher education programs, and has Centers for Excellence in Advocacy, Elder Law, Higher Education Law and Policy, and International Law.  Stetson nurtures a vibrant intellectual community, situated on a beautiful campus.  We encourage applicants to visit our website at http://www.law.stetson.edu to learn more.

Stetson encourages applications from women, minorities, LGBTQO candidates, and all others who will contribute to our stimulating and diverse cultural and intellectual environment.  All applicants must have a strong academic record and be committed to outstanding teaching, scholarship, and service.

The Appointments Committee expects to conduct interviews in Washington, D.C., as part of the AALS 2013 Faculty Recruitment Conference, but is also willing to make other arrangements for interviews at other times and/or other locations as necessary.  Interested applicants who are not registered with the AALS Faculty Appointments Register should send a letter of interest and current c.v. to:

 Professors Mark Bauer & Ann Piccard

Co-chairs, Faculty Appointments Committee

 Care of:  Jessica Fehr, Faculty Support Services

 Stetson University College of Law

 1401 61st Street South

 Gulfport, FL 33707

The college of Law may also consider alternative arrangements for the structure of the position based on a candidate’s interest and experience.  The Appointments Committee began reviewing applications on August 22, and will continue doing so until the position is filled.

Professor of Legal Skills and Director, Veterans Advocacy Clinic

Stetson University College of Law seeks an entry level or lateral hire to serve as the Director of Stetson’s Veterans Advocacy Clinic.  The candidate must be an attorney licensed in Florida as well as accredited by the Department of Veterans Affairs and admitted to the bars of the United States Court of Appeals for Veterans Claims and the United States Court of Appeals for the Federal Circuit.  Such accreditation and admissions may be obtained after a person is hired.  Experience with veterans benefit issues, military service, and clinical or other teaching experience will be highly valued.  As currently contemplated, the position will be on the programmatic tenure track with academic rank commensurate with experience.

The Veterans Advocacy Clinic provides representation to veterans appealing decisions of the Department of Veterans Affairs concerning benefits, including but not limited to disability compensation.  As part of Stetson’s Veterans Law Institute, the clinic provides outreach to the bar and the veteran community in addition to direct legal representation.  Stetson’s Veterans Law Institute also conducts a pro bono initiative, promotes policy and scholarship advances on military and veterans issues, and provides services to student veterans.

The Director of the Veterans Advocacy Clinic will be responsible for directing all aspects of the legal work of the clinic, including the assumption of professional responsibility for all cases.  He or she will also be responsible for the field supervision of students, teaching the classroom seminar, and promoting the clinic so as to maintain a flow of cases appropriate for student representation.  As a key member of the Institute’s leadership, the Professor of Legal Skills will work with the Director of the Institute and the Director of Clinical Education to develop new initiatives, establish policies and procedures for the clinic, and participate in other work of the Institute.

After the first year, the professor will be expected to teach one course per year, open to any student enrolled in Stetson University College of Law.  Faculty on the Programmatic Tenure track, or with Programmatic Tenure, attend faculty meetings, serve on and/or chair various faculty governance committees, vote on matters of policy with all other tenure-track or tenured faculty, and are expected to produce legal scholarship consistent with programmatic faculty status that recognizes skills-course teaching requirements.  The College of Law may also consider alternative arrangements for the structure of the position based on a candidate’s interest and experience.

Located in Florida’s Tampa Bay region, the nation’s nineteenth largest metro area, Stetson was established in 1900 and is Florida’s oldest law school.  Our main campus is in Gulfport, just outside St. Petersburg, with a satellite campus in downtown Tampa.  Stetson has earned a national reputation for its advocacy, elder law, legal writing, and higher education programs, and has Centers for Excellence in Advocacy, Elder Law, Higher Education Law and Policy, and International Law.  Stetson nurtures a vibrant intellectual community, situated on a beautiful campus.  We encourage applicants to visit our website at http://www.law.stetson.edu to learn more.

Stetson encourages applications from women, minorities, LGBTQO candidates, and all others who will contribute to our stimulating and diverse cultural and intellectual environment.  All applicants must have a strong academic record and be committed to outstanding teaching, scholarship, and service.  The Appointments Committee expects to conduct interviews in Washington, D.C., as part of the AALS 2013 Faculty Recruitment Conference but it also willing to make other arrangements in time and location of interviews as necessary.  Interested applicants who are not registered with the AALS Faculty Appointments Register should send a letter of interest and current c.v. to:

 Professors Mark Bauer & Ann Piccard

 Co-chairs, Faculty Appointments Committee

 Care of:  Jessica Fehr, Faculty Support Services

 Stetson University College of Law

 1401 61st Street South

 Gulfport, FL 33707

The Faculty Appointments Committee began reviewing applications on August 22, 2013, and will continue to do so until the position is filled.

Visiting Assistant Professor of Law

Stetson University College of Law in Tampa Bay, Florida seeks a Bruce R. Jacob Visiting Assistant Professor (VAP) for Fall 2014 through Spring 2016.  The VAP program is designed for individuals who seek the opportunity to enter academia by gaining full-time teaching experience and developing their scholarly agendas.  Jacob VAPs normally serve two years, but may, in exceptional circumstances, be extended for a third.  In the first year the VAP will teach one course per semester and in the second year the VAP will have a regular teaching load.  She or he will be eligible to apply for a research grant and will be expected to produce at least one significant piece of scholarship.  We provide our VAPs with considerable assistance in developing their academic careers, including mentoring, research assistants, and a professional travel budget.  Compensation is competitive with similar VAP positions and may include health, housing, and other benefits, as well.

We welcome applications from candidates interested in any curricular area; institutional needs will be considered, but we are able to be quite flexible.  Stetson encourages applications from women, minorities, LGBTQ candidates, and all others who will contribute to our stimulating and diverse cultural and intellectual environment.  All applicants must have a strong academic record and be committed to outstanding teaching and scholarship.

The Faculty Appointments Committee will begin reviewing applications on or around August 15, 2013.  Most candidates will be interviewed during the AALS 2013 Faculty Recruitment Conference in Washington, D.C., although some interviews may take place at other times and locations.

Contact:  Applicants should send a cover letter indicating teaching and scholarly interests, a current CV, and at least three professional references to Professor Candace M. Zierdt at czierdt@law.stetson.edu or by standard mail to Professor Zierdt at Stetson University College of Law, 1401 61st Street South, Gulfport, FL  33707.

 -Bridget Crawford


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Marcia Yablon-Zug’s Mail Order Feminism

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What’s the first thing that pops into your head when you read the phrase Mail Order Bride? A misogynistic man purchasing a docile foreign woman whom he can dominate? A marriage that likely will end in domestic violence? The Nicole Kidman movie, Birthday Girl? The word ANTI-FEMINIST painted in red letters covered in hissing, poisonous snakes?

My colleague, Marcia Yablon-Zug, has been conducting in depth research on these issues for a forthcoming book entitled, Buying a Bride: From Mail Order Brides To Cyber Matches (forthcoming 2014, NYU Press). In the meantime, she has posted the article, Mai Order Feminism, on SSRN. In the article, she challenges the conventional wisdom and discusses what I will label the “paradoxical feminism” of mail order marriages:

Male mail order marriage participants typically say they are seeking women who are not feminists, and the women commonly deny feminist intentions. However, both parties use mail order marriage for the very feminist goal of increasing choice and combating disempowerment. In countries where women have little power to affect change at either a personal or national level, interviews with potential mail order brides reveal that the women view such marriages as a means of reasserting power over their lives. Similarly, interviews with the potential husbands demonstrate that they also turn to mail order marriage as a way of combating their own sense of disempowerment, most frequently in relation to American women.100 Thus, as researcher Lisa Simons, who conducted numerous interviews with mail order marriage participants noted, both groups use mail order marriages to combat the “sense of disempowerment and rejection from the state of gender relations in their own country and community” and she suggests that “their coming together across unequally stratified national boundaries [is] one possible way of bridging those differences” and reasserting control.

I would definitely recommend the article to anyone interested in the subject. The abstract is below the fold.

Continue reading

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Examining the Crisis In Legal Education

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Paula A. Monopoli, University of Maryland School of Law, has published Gender and the Crisis in Legal Education: Remaking the Academy in Our Image at 2012 Michigan State Law Review 1742. Here is the abstract.

American legal education is in the grip of what some have called an “existential crisis.” The New York Times proclaims the death of the current system of legal education. This is attributed, in part, to the incentivizing of faculty to produce increasingly abstract scholarship and the costs this imposes on pedagogy and the mentoring of students.  At the same time, despite women graduating from law schools in significant numbers since the 1980s, they continue to lag behind in the most prestigious positions in academia — tenured, full professorships: From academic year 1998-99 to academic year 2007-08, the percentage of women full professors grew from 20% to 29.3%. In this paper, I argue that these two phenomena — the incentivizing of scholarship at the expense of pedagogy and the slow progress of women to tenured, full professorships — are linked. The trend toward exclusively incentivizing scholarship  imposes a disproportionate cost on women faculty who carry a much greater share of the caregiving and household responsibilities in their families. These women are also burdened by a disproportionate share of the student caregiving and institutional “housework” on committees inside law schools. In this paper, I argue that the external pressure on law schools created by the crisis actually presents an opportunity for women faculty. Part I describes the origins of the modern university and the unified model of teaching and scholarship. Part II evaluates the costs of this model to legal education as highlighted by the critics in the current crisis. Part III explores the heightened cost to women law faculty of this model adopted from the broader university. And Part IV offers suggestions for fundamentally restructuring the legal academy to provide a level playing field for women faculty and to facilitate their movement in equal numbers into tenured, full professorships.

Download the article from SSRN at the link.

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Posted in Academia, Feminist Legal Scholarship, Feminists in Academia, Law Schools, Law Teaching, Legal Profession, The Underrepresentation of Women | Comments Off

“Does Manly Courage Exist?”

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Such is the title of my new essay. It might be of interest to some; questions and remarks, along with criticisms of every stripe, are welcome.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2309494

–John Kang

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Robson on “Dressing Constitutionally”

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Ruthann Robson (CUNY) has posted to SSRN the Introduction and Table of Contents of her new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our ShoesHere is the abstract:

The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear –- or don’t –- is ubiquitous.

The book will be published by Cambridge University Press next month.

-Bridget Crawford

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Posted in Feminism and Law, Recommended Books | 1 Comment

OK! Magazine Apologizes For Story, Cover, About Duchess of Cambridge’s Post-Partum “Weight Loss Regime”

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OK! magazine has apologized for a story and cover (which OK! calls “the Royal Baby special, and sells for one pound), discussing Princess Catherine’s “weight loss regime” which it published just before she gave birth to an eight pound six ounce baby boy on Monday. The cover headline read “Kate’s post-baby weight loss regime” ; the story relied on an interview with someone purporting to be her “personal trainer.”  Both readers and commentators have criticized OK! for its perceived insensitivity to the Duchess personally and to women generally, one radio host, Katy Hill, calling for a boycott of the publication. More here from the Guardian, here from the Mirror.  Elaine, Ally McBeal‘s receptionist, had one word for the kind of behavior OK! displayed here: “Rudeness!”

 

[Cross-posted from Media Law Prof].

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Helie and Ashe on “Multiculturalist Liberalism and Harms to Women”

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Anissa Helie (CUNY, John Jay College of Criminal Justice) and Marie Ashe (Suffolk) have posted to SSRN their article Multiculturalist Liberalism and Harms to Women: Looking Through the Issue of ‘The Veil’, 19 UC Davis J. of Int’l L. & Pol’y 1 (2012).  Here is the abstract:

In response to recent mandates, prohibitions, or “choices” relating to veil-wearing by Muslim girls and women, this essay raises and responds to the question: “How should civil government treat culture- or religion-based claims of rights that clash with the norm of women’s equality?” – that question being a broadened reformulation of Susan Okin’s 1999 inquiry, “Is Multiculturalism Bad for Women?” The essay identifies social and political developments, as well as legal and theoretical developments – relating to women, religions, and governments – that have occurred in the 21st century and that demand that reformulation. Reviewing theories on the veiling controversies, and characterizing some as reflecting only partial visions, the essay embraces and argues for a re-shaped liberalism that is committedly and simultaneously feminist and anti-racist and secular.

The full article is available here.

-Bridget Crawford

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Motherlode

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Came across this the other day in the New York Times, “Generic Pain Relievers Work, So Why Do I Give My Kids Brand Names?”

Why indeed? Could it possibly be the influence of non-stop advertising intended to convey the vague impression that the brand is safer or better or different in some way?

Nah!

Many of the comments are brutally dismissive of the author’s question, haughtily asserting their superiority in always buying generic, thereby reinforcing the well-known consumer tendency to believe that one is immune to advertising. (Don’t worry folks. You may not be “fooled” on brand name versus generic but you can rest assured that you’ve been “had” somewhere.) And it is not as silly a question as it might appear on its face because, as some of the comments reflect, there may well be counterfeiting and hence safety issues with generics that the FDA does not have the staff to monitor. And sometimes there is an issue over whether you can sue the maker of a generic as this article on Pharmalot discusses. So the question isn’t as silly as it sounded to some readers.

That said, this piece is interesting for another reason. This column is a regular blog entitled “The Motherlode: Adventures in Parenting.” The author of this particular piece, Hope Reeves, isn’t the lead blogger on the blog.  That is someone named K.J. Dell’Antonia who lists as her background having been a corporate lawyer. I can’t believe that someone who was a corporate lawyer has given that up for the sort of inane material in this column.  Well, okay. Maybe you’d give up the practice of corporate law to do a lot of things. That practice is not for everyone and it sure ain’t curing cancer.

But how does being a corporate lawyer qualify you to be an expert in parenting advice? The short answer is that it doesn’t particularly. That is not to say that this might not ordinarily be a good column. But it does seem to reflect the attitudes of a particular class of parent and universalize their concerns and how they perform parenting or what constitutes good parenting.

It might be useful to cross reference this with the article about how so many women don’t want “the corner office.” See my earlier post More push back on Sheryl Sandberg.

Apparently women are giving up the corner office to write columns like this. That is a little depressing.

Note: This is cross-posted on Oversold

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Posted in Feminism and Culture, Feminism and Families, Feminism and Medicine, Feminism and the Workplace | Tagged , , | Comments Off

Women’s work

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I heard from some  who thought I was a bit too harsh in my criticism of the New York Times article Coveting Not a Corner Office, but Time at Home.  I admit, I was irked. I was more than irked. First, it seemed to me that the article misrepresented much of the message of Sheryl Sandberg’s book and the drubbing she has taken in some quarters for that book seems to serve mainly to confirm her observations that women are discouraged from being ambitious. Second, the article appeared to try to make the facts fit a predetermined narrative that we all seen some version of hundreds of times. The article rehashed old stereotypes and presents this as “news” or as if it offers some new insight; and it takes an issue that the article admits is one of keen interest to both men and women and frames it as a “women’s issue.”

Hmmm. What’s not to like?

In the meantime, as I was musing on the reactions and the feedback I got, I discovered  there was a part of this article I had missed – a slide show!

The slide show offers a series of photos that see almost like parodies of some Madison Avenue idea of what family life “in the heartland” looks like, or should look like, and is captioned with quotes from the article, as well as additional bits that are in equal parts funny and infuriating. The discoveries the reporter makes are that Ms. Uttech “took time to go out to lunch,’ she has “photos and family artwork” on her desk (are we to infer that Sheryl Sandberg doesn’t?),  and that she has a book reading group that allows her “to be just a woman for a few hours.” (Nothing like reading for making a woman out of you. I suspect it sounded better in context.)

But the clincher for me was this photo. It shows Ms. Uttech loading laundry and offers this helpful insight: “Putting clothes in the dryer. She has learned to be intensely productive in her hours both inside and outside the office. On Fridays she can mix the two, working from home while doing a load of laundry on a quick break.”

Right. Because we know that laundry and household chores are her responsibility too, even though we learned earlier that “Ms. Uttech has also become an increasingly important breadwinner to her family, particularly in the years since the housing bust battered her husband’s construction business.”

But don’t get mad.

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More push back on Sheryl Sandberg

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In today’s New York Times we are treated to yet another installment of the cultural push back to Sheryl Sandberg’s “Lean In” in an article entitled “Coveting Not a Corner Office, but Time at Home.” The article is really gag-making and offers another example of distorting Sheryl Sandberg’s book, Lean In, to be saying something that it does not – that all women do or should aspire to leadership positions.

The premise of the Times article seems to be that many (half? most? all “normal”?) women want to lean back, not into work so that they can have more family time.  And Sandberg’s Lean In provides the strawman against which to contrast the stories of the women interviewed. But it turns out that they don’t so much offer a counterexample of Sandberg’s advice as an illustration of it in action.

Sara Uttech has not spent much of her career so far worrying about “leaning in.” Instead, she has mostly been hanging on, trying to find ways to get her career to accommodate her family life, rather than the other way around. Ms. Uttech, like … dozens of other middle-class working mothers interviewed about their work and family lives, [] finds climbing a career ladder less of a concern than finding a position that offers paid sick leave, flexible scheduling or even the opportunity to work fewer hours.

Uh… So far it just sounds like the reporter is making an observation that might apply to any number of people in this economy, not a unique problem for women. But wait. Here it comes….

“The ultimate luxury for some of them, in fact (though not for Ms. Uttech), would be the option to be a stay-at-home mother.”

Huh? But “not for Ms. Uttech”? So why is her story being offered up as a counter-example to the advice Sandberg gives in Lean In?

Ms. Uttech wants a rewarding career, but more than that she wants a flexible one. That ranking of priorities is not necessarily the one underlying best-selling books like Sheryl Sandberg’s “Lean In,” which advises women to seek out leadership positions, throw themselves at their careers, find a partner who helps with child care and supports their ambition, and negotiate for raises and promotions.

The red flag here might be in the “not necessarily” above. So is Sandberg’s advice different from or at odds with what Ms. Uttech wants? Let’s see. Ms. Uttech does want a “rewarding” career. She is not saying she doesn’t want to work. She is definitely not suggesting she wants to be a stay-at-home mom. (Presumably, although this is not discussed in the article, she  is also  not interested in being paid less for her work.)  Because she is interested in a “rewarding” career she has

done some of those things, [that Sandberg advises] and plans to do more as her children (two sons, ages 8 and 10, and a 15-year-old stepdaughter) grow older. Already she has been raising her hand to travel more for trade shows and conferences; last year she made four trips.

Oh, so some of this is contingent on the age of her children. Let’s keep going. What has she done that is “not necessarily” like what Ms. Sandberg would advise? Turns out it is this:

But probably the career move she is proudest of — and the one she advocates the most — is asking her boss to let her work from home on Fridays.

So this is what constitutes bucking the advice Sandberg gives?  Ms. Uttech raised her hand and spoke up, asking for what she thought she needed. Gee! That is way different from what those “elite” women like Sandberg advise.

Of course it is not. Rather than resisting Sandberg’s advice, it appears Ms. Uttech is following it. Taking the initiative to ask for what you need is precisely what Sandberg advises. Lean In opens with an anecdote about Sandberg asking for special, reserved parking spaces at Google for pregnant women when she herself was pregnant. She takes herself to task for not thinking of this need earlier and speculates that “other pregnant women must have suffered in silence, not wanting to ask for special treatment.” (Lean In, p. 4). The rest of the Times article does little to further this notion that those interviewed represent a trend or a feeling that is “not necessarily” what Sandberg would advise.

It turns out that both Ms. Uttech’s direct supervisor and the chief executive of the business she works for are women, the latter, Ms. Bergfeld, doesn’t  have children but  has responsibilities related to a side venture raising sheep and breeding “greater Swiss Mountain dogs” which she accommodates with flextime as well.

[T]he agricultural association’s chief executive, Ellen Bergfeld, had also set the tone that work-life balance was important. Ms. Bergfeld doesn’t have children, but she has demanding responsibilities outside the office raising sheep and breeding Greater Swiss Mountain dogs. Around the time Ms. Uttech first asked permission to work from home, in fact, Ms. Bergfeld boldly left in the middle of a board meeting in Washington because of a family emergency of sorts: her very first puppy litter was about to be born earlier than expected, and her “city boy” husband at home “couldn’t deal,” she said.

It is hard to know where to begin with this. Ms. Bergfeld qualifies as setting the tone for work-life balance because she breeds dogs and her “city boy” husband can’t “deal” with doggie birth?! This is a “family emergency”? Now before everyone gets up in arms, I want to say, I have a dog. Dogs are important. Indeed, our pets are often like family and maybe we would all be the better for more time with our animals.  But then we might be the better for more time spent with hobbies or cultivating interests other than work as well, not just family. One wonders whether this analogy would have worked if Ms. Bergfeld had been Mr. Bergfeld. And would the reporter have drawn the same analogies if Ms. Bergfeld was leaving in the middle of the meeting for a ballroom dancing class, to shear those sheep, or to take a Judo lesson?  All those things are activities that may enrich work-life balance, but the example looks suspiciously like one intended to draw parallels between dog breeding and birth generally in order to fit Ms. Bergfeld into the narrative of a working “mom” wanting “family time.” (I don’t even know what to do with the “city boy” reference except to say that it seems to reproduce the trope of supposed male incompetence to handle tasks coded “female” – as in, “my husband is hopeless at _______” fill in the blank, “fixing dinner,” “doing the laundry,” “cleaning,”” ironing,” etc.  See Sandberg’s discussion of this phenomenon in Chapter 8 of her book.)

Okay. So Ms. Uttech’s ability to get flexibility in her schedule seems to have perhaps been in part because women were in leadership positions at her job.  But that is totally different from what Sandberg is saying right?

No.

To cap the pregnancy parking story Sandberg writes, “Having one pregnant woman at the top … made the difference. That is Sandberg’s point: Women will not achieve full equality until there are more women in positions of power. One element, just one, of getting more women into those positions, she argues, is for more women to see themselves in those positions and to own their own ambition, to take steps to claim a place at the table and she wants to raise women’s consciousness about the internal barriers to advancement of which they may be unaware, barriers she discovered in herself in the course of her career. She doesn’t assume that means all women should work in a job for pay or that all women should aim to be CEO or President of the United States, that legal reform has no role or that more assertiveness will solve all women’s problems. Not even close. It would be hard for her to be clearer about this, but one suspects that the usefulness of her book for the reactionary response is greater if you don’t actually read what she wrote but instead tell a story about what she supposedly said.

That is its function in the Times story. The lede about “not coveting the corner office” and the suggestion that this is a distinctively female issue is profoundly dishonest. Indeed, throughout the article the reporter is careful to note that work-life balance is actually not just a problem for women but that many men want flex-time as well and that an appropriate work-life balance may be a problem for most Americans, not just women. (Sandberg says this as well, but who cares? That doesn’t make as good a story.)

But those are just obligatory genuflections toward gender balance so the article does not to seem to be as reactionary and retrograde as it is. The subtext (and not very “sub”) of the article is the reassurance that most women aren’t ambitious and to reinforce the notion that most women –  “real” women, “good” women — are mothers or want to be mothers and value their family lives over their careers — just like they are supposed to.

Not everyone aspires to be an executive at Facebook, like Ms. Sandberg, or to set foreign policy, like Anne-Marie Slaughter (a former State Department official and another prominent commentator on what’s holding women back in the workplace), especially when the children are young. Unaccounted for in the latest books offering leadership strategies by and for elite women is the fact that only 37 percent of working women (and 44 percent of working men) say they actually want a job with more responsibilities, according to a survey from the Families and Work Institute. And among all mothers with children under 18, just a quarter say they would choose full-time work if money were no object and they were free to do whatever they wanted, according to a recent New York Times/CBS News poll.

There are so many problems with this. Note the word “elite.” Message: These women are not like “normal” or “ordinary” women. Never mind that Sandberg writes, “I am fully aware that most women are not focused on changing social norms for the next generation but simply trying to get through each day.” (Lean In at 169). And never mind that Sandberg and Slaughter actually have somewhat different “takes” on the situation for working women and what is possible. (Slaughter seems to have been rather more jolted by the demands of work outside academia into concluding that women cannot “have it all” – see her Atlantic piece here — while Sandberg, perhaps because she has always worked in the business world, appears more optimistic about having “it all,” although perhaps this is just a matter of defining what “all” constitutes.)

Second, in the survey quoted above the question is phrased as “wanting a job with more responsibilities” as opposed to, say, “more prestige” or “more money.”  It may be that more prestige and money necessarily entail more responsibilities, but  all too often women  have experienced the “more responsibilities” without any additional prestige or money – for example, when women faculty serve on more faculty committees or taking on some advising or administrative project with no additional pay. So the form of the question may have artificially depressed the number of women who would respond in favor of their careers. Moreover, some of the response seems a function of having young children at home, something which is not a permanent condition and should not necessarily be seen as an indication of a lack of ambition, as indeed Ms. Uttech herself is an example of.

Finally, the survey also revealed that almost half of the men surveyed would also refuse “more responsibilities.”  In other words, the truth is that the majority of men as well as women do not aspire to the corner office if it means a lower quality of family life (or indeed just less leisure time.) But that truth doesn’t fit the narrative thrust as well – that women aren’t (shouldn’t be?) as ambitious as these “elite” women would have them be.

The cultural resistance to ambitious women is something Sandberg hoped to address in Lean In.  She most assuredly does not suggest in the book that all women should aspire to “the corner office” or that her own path is one that everyone ought to pursue. Nor, and this is very important, does she in any way suggest that the “solution” to the inequality of representation of women in the workplace, especially in executive or other leadership positions, is simply a function of women “leaning in” more such that women have no one but themselves to blame for their lack of representation in the higher echelons of work, politics, and institutions.

At the beginning of the book Sandberg asserts that women definitely need legal and structural changes to help them achieve their goals. She writes, “We need to eliminate the external barriers to get women into those [leadership] roles in the first place.” All she wants to do in her book is to provide advice and counsel about overcoming the internal barriers “because they are under our control. We can dismantle the hurdles in ourselves today. We can start at this very moment.” (Lean In at 9).  Her relatively modest goal is to offer some advice about how not to get in your own way at work, whatever your ambitions may be, so that the only obstacles you have to deal with are the external ones. And she is very clear that those external obstacles are material, unmistakeable and serious.

“The blunt truth is that men still run the world.” (Lean In at 5).  “The promise of equality is not the same as true equality.” (Id. at 7).  Sandberg says she is not trying to “blame the victim” but rather trying to help women with the advice that would have been helpful to her younger self about that small and circumscribed area which over which women may have some control – their own internal obstacles. But she is not blind to the ways in which we (a) might not even recognize these obstacles at first for what they are because they are so much a part of the culture in which we have been steeped and (b) even if we do recognize them and try “leaning in,” that we might be punished for doing so. She writes, “How individuals view what they can and should accomplish is in large part formed by our societal expectations.” (Lean In at 19).

Professional ambition is expected of men but is optional – or worse, sometimes even a negative – for women. ‘She is very ambitious’ is not a compliment in our culture. Aggressive and hard-charging women violate unwritten rules about acceptable social conduct. men are continually applauded for being ambitious and powerful and successful. But women who display these same traits often pay a social penalty. Female accomplishments come at a cost.

 (Lean In at 17). Indeed. You might say many who have written about Sandberg’s book, like the reporter in this Times story, seem determined to prove the truth of that observation. Beware! If you write a book encouraging women to own their ambition and to ask for what they want, to “lean in” and ask for a seat at the table, you should be prepared to be labeled “elitist” and to find your message distorted and dismissed. How dare she? Who does she think she is?

NOTE: This article is cross-posted on my blog Oversold. See http://oversoldblog.wordpress.com/2013/07/08/more-push-back-on-sheryl-sandberg/

NOTE: This is an updated version to correct some typos and make some edits for clarity.

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Posted in Academia, Activism, Employment Discrimination, Feminism and Culture, Feminism and Families, Feminism and the Workplace, The Overrepresentation of Men, The Underrepresentation of Women | Tagged , , , | Comments Off

Lesbian Husbands and Gay Wives: The Gendering of Gay Divorce

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LGBT people celebrate Supreme Court ruling on DOMA
Protestors rally for marriage equality at the Supreme Court on the day DOMA was ruled unconstitutional. (AP Photo/Charles Dharapak)

Lesbian and gay people and their families have much to celebrate in the Supreme Court’s rulings in the DOMA and Proposition 8 cases. While not going so far as to declare a constitutional right for same-sex couples to marry, Justice Kennedy’s decision in Windsor called out DOMA as an unambiguous expression of animus toward gay people, decrying it for writing “inequality into the entire United States Code.”

But winning at the Supreme Court doesn’t settle the problem of injustice in one fell swoop. The NAACP’s 1954 victory in the Brown v. Board of Education case didn’t put an end to racism in public education. Instead, African American families were confronted with the difficult, often violent task of integrating their children into school districts that had been structured around racial separation in communities that presupposed their children’s inferiority.Rolling out the promise of equality secured for same-sex couples in the Windsor decision will no doubt be met with push-back and hostility, but the process is likely to engender far less violence and resistance than the implementation of the Brown decision did.  In fact, we already have quite a bit of experience integrating same-sex couples into the institution of civil marriage – 12 states and the District of Columbia have lifted the ban on gay marriage and tens of thousands of same-sex couples have gotten marriage licenses as a result.  So what can we expect in the aftermath of the Supreme Court’s ruling?

For many lesbian and gay couples this transition from exclusion to inclusion has been long-sought: a marriage license delivers the state’s imprimatur to relationships that have suffered second class status before the law for no reason other than bias.

For others though, the transformation from partners to husbands of husbands and wives of wives isn’t going so smoothly.  Most straight couples have always seen marriage as the natural end point of a serious committed relationship.  Not so with same-sex couples.  Long accustomed to organizing our intimate lives well outside law’s reach, our relationships have been less influenced by the magnetic pull of the marital form.   Gay and lesbian couples have innovated a range of commitments to one another: sometimes monogamous, sometimes not; sometimes sharing assets, sometimes not; sometimes committing forever, sometimes not, sometimes sharing parenting responsibilities, sometimes not. Many of us treasure the freedom that living outside marriage provides while also recognizing the stigma and discrimination that laws barring same-sex marriage created.

Now that marriage is increasingly possible for same-sex couples, new spouses will find themselves governed by a set of legal rules that allocate rights and responsibilities and distribute and redistribute property in ways that were developed with heterosexual relationships in mind.  After all, marriage has been one of society’s most gendered institutions.  In the bad old days, husbands were expected to be breadwinners while wives stayed home, took care of the kids, and kept the household running.  Feminist reforms in the last 50 years pushed marriage law to come to terms with the gender inequality that flows from these rigid roles of husbands and wives.   Modern rules of support within marriage and rules of distribution upon divorce are designed to correct the underlying structural gender inequality that left wives penniless and husbands well-off after divorce.  In a relationship where the wife stays home to take care of the kids and the house while the husband builds a career, the old rules would treat his investment in his career and his wage labor market power as “his” to take with him at the end of the marriage, while the wife’s failure to invest in her own labor market power would be a “cost” she would have to absorb herself.  Modern rules of equitable distribution treat the wife’s work at home as integral to the husband’s ability to better his career, and as such divorce law now considers his wage labor market power as a marital asset to be divided fairly between the two spouses.

The fairness of modern rules that take note of gender-based role specialization in marriage seem hard to deny, but it is worth noting that such a rule takes the gendered specialization as a given and then corrects for it afterwards, at divorce – thus incentivizing a division of labor where one spouse works at home and the other works at the office. But how will the rules that are sensitive to the disadvantage women often suffer in marriage impact same-sex couples when they chose to marry – or more aptly – divorce?

Most of the political discussion within the gay community has centered on gaining the right to enter the institution of marriage, putting off the uncomfortable conversation about what should happen if the marriages end.  To be sure, marriage brings with it a bundle of rights and responsibilities, not to mention social respect and dignity, which many in the gay community yearn for deeply.   But getting married also means living by the rules of marriage and divorce: ending a relationship will no longer be a privately negotiated matter.  Divorce law sets the rules of separation and judges decide how those rules are applied.

At the point of divorce, family court judges will be inclined to apply the rules of equitable distribution of the marital assets in ways that are familiar to them – such as ensuring that the weaker party, usually the “wife,” is not unduly disadvantaged.  Some gay men have resisted this kind of gendering when their marriages end, choosing to forego entitlement to an even share of the couple’s wealth upon divorce.  They’d rather leave the relationship with their masculinity intact than accept a payment that might turn them into a “wife.”  On the other hand, some lesbians welcome the legal advantage of being treated like the wife. Consider two women who have lived together for many years, each contributing to joint household expenses but otherwise keeping their finances separate.  When they marry they make clear in a pre-nuptial agreement the desire to continue this arrangement. Yet when they break up, the law of divorce tends to favor the lesbian wife who argues that the pre-nuptial agreement should be ignored—the law would, instead, push the couple to divide both members’ assets more evenly.  In heterosexual divorces, there is a presumption against the enforceability of pre-nuptial agreements where the weaker party, usually the wife, waives her right to equitable distribution or community property. Should there be the same presumption in a same-sex divorce? In a same-sex couple, would a court be justified in overriding a wife’s “choice” to forgo a claim on her spouse’s assets? As a matter of policy, judges in divorces see their job as looking out for the weaker party, but the spectre of same-sex couples marrying raises the hard question of what it means to be “weaker” in a context where gender-based power is not creating an unequal playing field for the two parties negotiating rights and responsibilities in a marriage   Those in our community who regard marriage as entailing an inflexible set of rules that equalize resources available to the divorcing couple might support having divorce law override a pre-nup that is less generous to the lesbian wife.

Yet others, myself included, worry that the diverse, non-traditional relationships and families we formed before marriage was a possibility will be shoe-horned into a one-size-fits-all kind of justice, slotting gay men and lesbians into the pre-determined gender roles of marriage: husbands and wives.  Gay and lesbian couples prize how we’ve disorganized gender roles in our relationships in ways both mundane and significant: there usually isn’t one partner who just happens to do the driving, manage the family’s finances, and teach the kids how to the throw a ball, while the other just happens to do the grocery shopping, get the food on the table, and clean up runny noses.  We mix it up.  It’s not obvious that family law is equipped to adjudicate fair separations of same-sex couples when it encounters the ways we’ve busted out of gendered notions of relationship, responsibility, and family.  Even worse, modern divorce law may end up gendering us into “wives” and “husbands” because that’s all it is equipped to recognize.

Even if gender-based inequality does not characterize same-sex relationships to the same degree as heterosexual relationships, there are other forms of inequality between same-sex couples about which the law should take note, such as differences in race, class, and citizenship status.  Marriage law can be a force for good in checking any inclination the more advantaged party may have to exploit their spouse’s vulnerability.  But family court judges are less comfortable addressing these inequities, preferring to focus on eradicating gender-based disadvantage.

The Supreme Court’s marriage decisions signal a momentous and pivotal moment in American history: one that repudiates public policy motived by open dislike of gay people.  Yet these cases ought to motivate a range of thorny conversations within the gay community about what we expect from marriage and what marriage expects from us.

Katherine Franke is the Sulzbacher Professor of Law and Director of the Center for Gender and Sexuality Law at Columbia Law School

Reprinted from The Nation

 

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Windsor Same-Sex Marriage Aftermath: Everyone Just Sue the Bastards

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Cross-posted at The Faculty Lounge.

In 2004, after Massachusetts became the first state in the country to allow same-sex marriage, the ACLU distributed a memo warning people against bringing new same-sex marriage litigation.  It was titled “Don’t Just Sue the Bastards.”

As you can see if you follow the link, the memo argues that mid-2004 was not the right time for everyone to go into court making claims of marriage equality. The memo raises three reasons: 1) the risk of losing cases; 2) the risk of setbacks longterm; and 3) the less-than-certain odds at the Supreme Court.  The memo is a great snapshot in time in the movement for marriage equality, and  I love teaching it for the interesting issues of social movement strategy and legal ethics that it raises.

But, that’s a discussion for another time.  In the wake of last week’s decision in Windsor, I’m thinking of this memo again but in a different way — that the best move forward for marriage equality at this point would be the complete opposite strategy.  Thus, the title of this post – Everyone Just Sue the Bastards.

Let me make this clear – I am in no way currently connected to any of the groups strategizing or litigating this issue.  I am, however, a long-standing and huge proponent of marriage equality, and after Windsor, I think every gay or lesbian couple who wants to get married should file federal lawsuit in every state that doesn’t allow gay marriage.  Let a thousand (or tens of thousand) lawsuits bloom!

The upsides are obvious.  I’ll break them out here:

Windsor: Windsor has excellent language about equality and the importance of marriage.  The language is preceded by Justice Kennedy’s usual homage to federalism, but the part of the opinion about equality and marriage does most of the work.  Any lawyer worth his or her salt will be able to use that language to make the previously-very-strong constitutional argument for same-sex marriage even stronger.

Easy work: And that work isn’t going to be that hard.  Beyond adding Windsor into the mix, the legal arguments are already very well developed and briefed.  Every lawyer taking a same-sex marriage case need only look to the excellent briefing in the Supreme Court (by the parties and some of the amici) to make the strongest arguments possible for same-sex marriage.  No one has to reinvent the wheel here.  They just have to add the language from Windsor and the pleadings are taken care of.  Certainly there will be more state-specific work, but so much is already done.

Back to the Supremes in a better posture: Bringing thousands of cases in states that prohibit same-sex marriage AND have government officials who will defend the cases will avoid the Perry problem.  Perry, as we all know, was a missed opportunity to get the Supreme Court to announce equality for all.  Other cases without the procedural issues from that case are needed, so litigants need to sue for a license in the 37 states that still prohibit same-sex marriage to get a case working its way to the Supreme Court.  And given Windsor, it’s very likely a proper case before the Court would win.

Lower court wins: Along the way, litigants may just win.  As we saw in Perry, district courts and circuit courts might decide that the Constitution protects a right to same-sex marriage.  More winning decisions in federal court will certainly help the cause.

Expensive for discriminating states:  More litigation will also force states that continue their discriminatory practices to spend money to defend them.  They want to continue to have a policy of inequality?  Make it expensive.  Make them defend hundreds of lawsuits in different district courts across the state.  Even if the cases are consolidated, they’ll be expensive for the state to defend against all the parties throughout every stage of litigation.

Keeping the issue alive:  Same-sex marriage is a on a roll.  Windsor and the reinstatement of marriage in California come on the heels of the electoral victories in November 2012 (Washington, Maryland, Maine, Minnesota) and the legislative victories in early 2013 (ColoradoDelaware).  More cases bubbling up to the Supreme Court will keep the issue alive and in the news.  A massive wave of cases would do that even more so.

More stupid defenses of the law:  I have yet to see a well-reasoned defense of marriage inequality, but forcing states to defend these laws will undoubtedly bring out all different qualities of defense.  There will certainly be non-offensive statements that are within the realm of reasonable debate, but there will also just as certainly, as we saw with many of the amicus briefing in the Supreme Court, be the absurd, offensive, and downright ludicrous.  (Think, in a different realm, about “legitimate rape,” women “shut[ting] that whole thing down,” masturbating fetuses, and rape kits that allow women to “get cleaned out.”)  These comments will help move the needle even further toward equality.

Are there downsides?  Sure.  Nothing’s without downsides.  But, compared to 2004, we’re in a different place.  In 2004, the ACLU was concerned about having losing cases on the books.  They were concerned what that would do longterm.  Well, we know the answer now.  The highest courts in Washington, Maryland, and New York all rejected marriage equality claims.  Yet, all three of those states have since changed to a system of marriage equality.  There are losing cases on the books from other states too, such as in Arizona state court and Nevada federal court, but that didn’t stop the Supreme Court from coming out the right way in Windsor.  These cases also haven’t stopped popular opinion from shifting dramatically in favor of equality on this issue.  In other words, we’ve had the losses, but the movement is continuing full-steam ahead.

What about the risk in the Supreme Court?  As I wrote above, after Windsor, it’s hard to argue that the Court will issue a ruling against same-sex marriage.  Maybe they aren’t ready to rule for same-sex marriage, as we saw in Perry, but a ruling against same-sex marriage seems out of the question.  And any case started now will take at least a couple of years to get to the Court, by which time Windsor will have sunk in and the world will not have imploded, popular opinion will continue to change in favor of equality, and maybe the Court personnel might change for the better too.  The last is certainly a wildcard, but the other two are not.

Finally, maybe it’s time to turn attention away from marriage and to other goals of the movement for LGBT equality.  There has certainly been a lot of criticism of all the money and effort that has been expended toward the claimed assimilationist goal of marriage and not to, what some feel are more pressing, the concerns of employment discrimination, hate crimes, poverty, transgender rights, and more.  While I agree these are all important goals, I think you can fight multiple things at once.  And if it really is about fighting one issue at a time, it wouldn’t make sense to stop climbing K-2 three-quarters to the top to then start climbing Everest.

Bottom line here is that the downsides from 2004 are much less now than they might have been then.  The remaining 37 states need to feel the pressure, and thousands of litigants can keep that pressure on.  The time is now.

Everyone just sue the bastards.

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Media Literacy: About Face

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I have my doubts about how effective media literacy efforts alone can be at combating gender stereotypes. It seems like an uphill battle in the current environment. But About-Face is one organization that is trying to do something. I blogged about it here over on my blog Oversold.

About-Face is an organization dedicated to helping give women and girls information with which to fight negative images in advertising and to raise consciousness about gender stereotypes in advertising.  They engage in campaigns like this one to raise awareness of the manipulated images in ads like those for Victoria’s Secret which they argue lead to many women and girls having unrealistic expectations about how they should look.

http://www.about-face.org/wp-content/uploads/2013/06/image-1.jpg

This looks like a good project over all. What is more ambiguous is whether when an advertiser is plugged as a “winner” in the site whether it just converts the cite into a promotional arm for the business in question even though other ads might not be as good. Still, this seems to be a worthwhile endeavor. Check out their website here.

I am not sure if trying to link and enlist commercial efforts doesn’t end up being problematic for a lot of reasons (some of  which I will discuss in a subsequent post on the new Dove campaign), but I generally applaud this effort.

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Posted in Academia, Feminism and Culture, Feminism and the Environment, Feminist Blogs Of Interest | Tagged , , , , | Comments Off

Women in the Texas Legislature: Lessons in Individual Actions that Serve to Empower Movements

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Thank you to Senator Wendy R. Davis and to Senator Leticia Van de Putte for, among other things, standing up for equality.  It may have only been a battle and not a war, but Senator Davis’ filibuster of the Texas anti-abortion bill sent home a message that women will not be silenced.  Senator Van de Putte joined Senator Davis on the floor of the Texas Legislature and with one question incited a crowd of protesters, who roared past the midnight deadline for passage of the bill thereby killing it.  Whatever people think of the bill, the events were lessons in advocacy and self-empowerment.  It was the American revolutionary way on display for all to see; the “People’s Filibuster” was live-streamed.  And that day in the Texas Legislature (June 25, 2013), one woman, joined by another, led a movement.

In response to Senator Davis’ win, Governor Rick Perry leveled a personal attack against her.  Speaking at the National Right to Life Convention, Governor Perry, in a backhanded compliment, referred to Senator Davis’ personal life.  He stated:  “She is the daughter of a single woman.  She was a teenage mother herself.  She managed to eventually graduate from Harvard Law School and serve in the Texas senate.  It’s just unfortunate that she hasn’t learned from her own example . . . .”  Senator Davis immediately responded and let everybody know that she will not be intimidated by a man who attacks her personally (even if he attempts to disguise his attack as a compliment) and thinks that he should decide what is best for women.  She tweeted more than 100,000 followers saying, ‘Today Governor Perry shamefully attacked me and my family, further exposing his belief that he knows what’s best for Texas women.’”

Governor Perry and his apologists can try to squirm out of the intent of his message by camouflaging his intentions and making excuses, now that he has been called on it.  However, the video shows the delivery of his words and reveals the agenda behind his rhetoric.  He was speaking before a group where many look down on people of different life experiences.  Condescendingly, he emphasized the word “eventually” to qualify how Senator Davis earned her law degree.  He put the finishing touch on his personal attack when, in an obviously patriarchal manner, he chastised her for not learning “from her own example.” 

Governor Perry is wrong.  Senator Davis learned from her experiences, which is why she has become the formidable woman she is today—the woman who stood up to those in control for eleven hours to filibuster the anti-abortion bill.  Lt. Gov. Dewhurst tried to stop the running of the clock by deciding that Senator Davis’ discussion of mandatory ultrasound testing, in reference to an abortion bill, was “off-topic.”  This was a clear illustration of how the privilege to make arbitrary and subjective decisions encourages abuse of power at the hands of the decision-makers.  Lt. Gov. Dewhurst’s decision was an attempt to silence Senator Davis and, ultimately, a means to try to achieve the desired final outcome: passage of the anti-abortion bill. There was even an effort to alter the timestamp of the voting record, but news organizations were watching and they blew the whistle on the discrepancy. Senator Van de Putte has called for an investigation.

Fortunately, Senator Davis was not alone.  When Lt. Gov. Dewhurst halted Senator Davis’ filibuster, Senator Van de Putte stood up and in a powerful voice asked:  “At what point must a female senator raise her hand or her voice to be recognized over the male colleagues in the room?”  She had become frustrated after being ignored by her colleagues when she was trying to speak on the matter.  After all, she had driven directly from her father’s burial to oppose the abortion bill.  During an interview, Senator Van de Putte explained that she had to scream in order to be recognized.  Her assertiveness is what the protesters needed to rally them to battle and victory.  They immediately let their voices be heard in unison and ran out the clock.  During an interview, Senator Davis called Senator Van de Putte “a true heroine.”  Senator Van de Putte later acknowledged that she was emotionally drained and had to be encouraged by another woman to speak up.

For more about Senator Davis, read Who is Wendy Davis? by Lydia DePillis. For more about Senator Van de Putte, read Latina Legislator: Leticia Van de Putte and the Road to Leadership, written by Sharon Navarro.  I hope that these women’s advocacy inspires more Americans to join in a comprehensive movement of equality for all and to stand up with others whenever we witness injustice and inequality.

–Maritza Reyes

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Posted in Academia, Activism, Employment Discrimination, Feminism and Culture, Feminism and Families, Feminism and Law, Feminism and Politics, Feminism and the Workplace, If you're a woman, Justice?, Reproductive Rights | Comments Off

Thank You, Edie Windsor!

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Let freedom ring.

-Bridget Crawford

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