Photo by Stephen Melkiesthian.
David S. Cohen (Drexel) and Krysten Connon (J.D. 2012, Drexel University School of Law) have published Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford University Press 2015). Here is the publisher’s description:
Abortion is a legal, common, and safe medical procedure that one in three American women will undergo. Yet ever since Roe v. Wade was decided in 1973, anti-abortion forces have tried nearly every tactic to eliminate it. Legislative and judicial developments dominate the news, but a troubling and all-too-common phenomenon-targeted vigilante action against individual abortion providers-is missing from the national discussion, only cropping up when a dramatic story like the murder of an abortion provider pushes it to the forefront. Every day, men and women who are associated with abortion care are harassed, threatened, stalked, picketed, sent hate mail, and otherwise terrorized. Those who seek help from the law are sometimes successful, but not always, either because there are insufficient protections built into the law, or because law enforcement officials fail to respond.
In Living in the Crosshairs, the voices of these providers are heard for the first time, through extensive interviews that David S. Cohen and Krysten Connon conducted across the country. Abortion providers are targeted at home, at work, or in community spaces; they can be harassed in person or online. Abortion opponents target not only the providers themselves but also may go after their families, neighbors, and others close to them. This kind of targeting happens anywhere in the country, not just in more conservative areas, and can victimize all providers, not just high-profile doctors. For some, being the victim of targeted harassment inspires significant fear and leads to changes in behavior; for others, it has become a normal part of life; and for yet others, it actively strengthens their resolve. The response of law enforcement at the federal, state, and local levels is spotty-though there are some strong laws on the books, especially at the federal level, abortion providers have had mixed experiences when it comes to legal recourse, and effectiveness varies. Drawing on ideas from the interviews, the authors propose several legal and societal reforms that could improve the lives of providers, foremost among them redefining targeted harassment as terrorism rather than protest.
Living in the Crosshairs is a rich and humane portrait of women’s health professionals who persist in their work despite harassment because they believe in what they are doing. These providers’ voices have not been heard in recent debates, leaving the public with a deficient understanding of exactly how abortion is limited in this country, yet their experiences illuminate the truth of the issue and offer us a path to a better policy.
Here’s an interesting piece on Canadian witchcraft law. Natasha Bakht, University of Ottawa, Common Law Section, and Jordan Palmer, University of Ottawa, Faculty of Law, have published Modern Law, Modern Hammers: Canada’s Witchcraft Provision as an Image of Persecution at 35 Windsor Review of Legal and Social Issues 123 (2015). Here is the abstract.
This article examines Canada’s retention and application of the archaic offence of pretending to practise witchcraft in the Criminal Code. The disproportionate effect that the offence has on women and certain religious and racialized groups is highlighted. The historic persecution of women accused of practising witchcraft is discussed in order to provide some background to the history and ideology of the witchcraft offence in Canada. The gendered nature of the offence is considered along with the imperial role of the dominant Judeo-Christian belief structures in curtailing religious deviance and suppressing women’s powerful positions in the community. An analysis of the confused judicial interpretation of the offence and consideration of the social goals achieved in criminalizing such activity when several fraud offences already exist in Canada follows. Finally, the constitutionality of section 365 is examined using a feminist and religious freedom lens. The recent case of R v Persaud provides the modern day backdrop to examine Canada’s witchcraft offence and propose the repeal of section 365.
Download the article from SSRN at the link.
See also my post on the subject here at the Law and Magic Blog.
From the Hollywood Reporter’s Jonathan Handel, a discussion of the ACLU’s call for an investigation of Hollywood’s “failure to hire” women directors and an analysis of how difficult such cases are to win.
Jane Bailey, University of Ottawa, Common Law Section, is publishing A Perfect Storm: How the Online Environment, Social Norms and Law Shape Girls’ Lives in eGirls eCitizens (Jane Bailey and Valerie Steeves, eds; Ottawa, University of Ottawa Press, 2015). Here is the abstract.
Considerable scholarly and policy discourse has centred on dichotomous risk/opportunity; utopic/dystopic descriptions and prescriptions around girl’s and young women’s online interactions. Too often uninformed by the voices of girls and young women themselves, these discourses have frequently led to overly simplistic understandings of girls’ and young women’s seamlessly integrated online/offline existences. These top-down perspectives have produced reactive punitive policy approaches that blame girls for their misfortunes and incent parents and other adults to deny them their privacy by monitoring and surveilling them. Grounded in the literature and international legal standards that mandate participation of children in the formulation of policy and programs affecting them, with special attention to the needs of the girl child, this paper gives voice to the situated knowledges of the Canadian girls (ages 15-17) and young women (ages 18-22) interviewed about their experiences with online social networking by The eGirls Project researchers. eGirls participants described a world in which architectures structured to maximize disclosure (and minimize privacy) code high counts of “friends” and “likes” as “popularity”. These architectural constraints combine with social norms and marketing practices that encourage emulation of mediatized representations of female beauty and sexuality as ways of competing for recognition (often, for heterosexual girls, from males). Together these produce a perfect storm incenting self-disclosure that simultaneously promises both celebrity and recognition, but also a gendered risk of shame and harassment that is complicated by the enduring consequences of unnecessarily permanent digital records. These interactions invite policy responses that take into account the difficulty of navigating this complex environment and recognize the ways in which over-reliance on privacy-invasive surveillance based mechanisms undermines girls’ capacities to thrive in our increasingly digitally networked society.
Download the essay from SSRN at the link.
That’s the title of this article from Law 360.
Meanwhile, foreign men are free to come here and impregnate as many women as they like, obtaining exactly the same benefit supposedly attributable to US citizen offspring: i.e., in 21 years, should a child wish, s/he could sponsor an alien parent for lawful status (if the parent met all other qualifications). (No one born in the USA now can trigger the potential Deferred Prosecution non-status for parents of US citizens that Obama has been trying to implement; that window closed the day his policy was announced, in November 2014.)
Mae Kuykendall, Michigan State University College of Law, has published Marriage Goals and Government Interests: Handling Complexity, Apportioning Expertise, Using Federalism. Here is the abstract.
This Article argues that the Supreme Court should require that all states recognize legal same-sex marriages rather than mandate under the Fourteenth Amendment that states must issue marriage licenses to couples of the same sex. The briefing that advocates, including most amici, provided to the Supreme Court was generally abstract. The Court did not benefit from a combined answer to the two questions. It therefore did not hear a useful comparison of why a Yes to recognition, with a No to mandating authorization, might be a superior approach. If the Court were to require only recognition, it could avoid constitutionalizing marriage law; it need not decide recognition under the Fourteenth Amendment, despite its having certified the question under the Fourteenth Amendment. Rather, principles of comity draw upon the Court’s expertise in federalism and do not call for a direct intervention in state law-making about marriage. Such an approach could incentivize some states to offer their marriage licensing, and even their substantive law, to couples who do not travel to the state. Gay rights activists could help improve and modernize marriage licensing procedure by encouraging states to provide for the issuance of licenses to couples unable to travel or to be present together. They could also bring energy in the state legislatures and before state courts to the substantive evolution of marriage law that is less defined by beliefs about gender complementarity but not entirely severed from the element of gender in the moral architecture of many marriages.
Download the article from SSRN at the link.
Bloomberg BNA is highlighting a new Harvard Law School study of its grads over the past 40 years. Findings? That:
On the one hand, the number of women entering the profession has increased dramatically in recent decades, and women lawyers can now be found in leadership positions in virtually every major legal institution in the country, including three female justices on the United States Supreme Court…
and also that
the percentage of women in these top positions remains far below their representation in the profession, even when adjusted for the fact that women did not begin to enter legal practice in significant numbers until the 1970s. To make matters worse, even women who have achieved important career success appear to be leaving their prestigious positions — and the profession as a whole — in alarming numbers.
Read the entire report, written by David Wilkins, Bryon Fong, and Ronit Dinovitzer, here.
Lavender Law® 2015
August 5-7, 2015
Invitation and Call for Papers Entry-Level Market Forum for Junior Scholars
Dear Friends and Colleagues,
This year the Lavender Law® Conference & Career Fair will be held August 5-7, 2015 at the Chicago Marriott Downtown Magnificent Mile in Chicago. Lavender Law brings together the best and brightest legal minds in the lesbian, gay, bisexual, and transgender (LGBT) community.
To celebrate our community of scholars, Lavender Law® is hosting a Junior Scholars Forum again this year. This year, the forum will be devoted to individuals who intend to participate in the AALS annual entry-level hiring conference in Washington, D.C. If you are planning to participate in the entry-level hiring process this year, and your work focuses on the nexus between the law, gender, and sexuality, we encourage you to apply.
To submit a proposal for consideration, please email:
(1) a 5-7 page overview of your job talk; and (2) a copy of your CV to
Alexander Boni-Saenz (firstname.lastname@example.org) and Courtney Joslin (email@example.com).
The deadline for submissions is Friday, June 5, 2015.
If you are selected to participate, a complete draft of your job talk will be due by July 22, 2015.
Stefanie Carsley, McGill University Faculty of Law, has published Rethinking Canadian Legal Responses to Frozen Embryo Disputes at 29 Canadian Journal of Family Law 55 (2014). Here is the abstract.
This article examines and critiques Canadian legal responses to disputes over frozen in vitro embryos. It argues that current laws that provide spouses or partners with joint control over the use and disposition of embryos created from their genetic materials and that mandate the creation of agreements setting out these parties’ intentions in the event of a disagreement or divorce overlook the experiences of women who undergo in vitro fertilization treatment. It also maintains that these laws do not accord with how Canadian law and public policy has responded to similar conflicts between spouses, or to agreements that seek to control or restrict women’s reproductive choices. This article considers how legislatures and courts in other jurisdictions have sought to respond to embryo disposition disputes, but argues that their respective approaches raise similar issues and would pose additional problems within the Canadian context. It ultimately provides recommendations for how Canadian laws might better support the express objectives of the Assisted Human Reproduction Act and Quebec’s Act Respecting Clinical and Research Activities Relating to Assisted Procreation to protect the health and well-being of women, to promote the principle of free and informed consent and to recognize that women are more directly affected than men by the use of assisted reproductive technologies.
Download the article from SSRN at the link.
Jessica Wolfendale, West Virginia University, Philosophy Department, is publishing Provocative Dress and Sexual Responsibility in the Georgetown Journal of Gender and the Law. Here is the abstract.
Numerous studies have found that many people believe that a provocatively dressed woman is at greater risk for sexual assault and bears some responsibility for her assault if she is attacked. Furthermore, in legal, academic, and public debates about sexual assault the appropriateness of the term ‘provocative’ as a descriptor of certain kinds of women’s clothing is rarely questioned. Thus, there is a widespread but largely unquestioned belief that it is appropriate to describe revealing or suggestive women’s clothing as ‘provocative’ and that women who wear such clothing could provoke sexual assault and harassment from men. Yet it is rarely noted that only women’s clothing is described as sexually provocative. Men’s clothing, no matter how revealing, is never described as provocative. Why is this the case?
This Article challenges the assumption that it is appropriate to describe women’s clothing as provocative. Drawing on on models of the legal defense of provocation and research on objectification and responsibility, this Article demonstrates that continued use of ‘provocative’ term normalizes and entrenches deeply problematic attitudes about women’s responsibility for men’s sexual behavior. The social interpretation of women’s clothing as provocative arises from the privileged social and legal status of men’s sexual arousal and the objectification of women’s bodies. Describing women’s clothing as provocative thus reinforces a problematic conception of women’s bodies and sexuality that is connected to women’s experiences of their bodies, their clothes, and shapes their vulnerability to sexual assault and social and legal attitudes to such attacks.
Download the article from SSRN at the link.
AALS Section on Commercial and Related Consumer Law
AALS Section on Women in Legal Education
Call For Papers
Female Perspectives in Commercial and Consumer Law
The AALS Section on Commercial and Related Consumer Law is pleased to announce a Call for Papers for its program co-sponsored by the Section on Women in Legal Education during the AALS 2016 Annual Meeting. The papers from the program will be published in the Columbia Journal of Gender and Law.
Female scholars have made pivotal contributions to the development of commercial and consumer laws and scholarship in the United States, especially in the past few decades. Not only have specific women’s voices played an important role, but distinctively feminist concerns have engendered changes in legal theory and policy. This panel will discuss the contributions that specific female legal academics have made to the field (as just a few examples, Elizabeth Warren and Jean Braucher). Also, it will reflect on how feminist concerns have influenced commercial and consumer law scholarship. Finally, it will also include scholarship focused on women’s experiences with consumer and commercial law.
The Committee invites submissions from scholars interested in presenting at the program and in publishing their papers with the Columbia Journal of Gender and Law. Two speakers will be selected from this call for papers. The panel is focused on “female perspectives,” broadly construed. The Section strongly encourages proposals from all genders.
There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights.
Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper to a Section’s call for papers. Fellows from AALS member law schools are also eligible to submit a paper but must include a CV with their proposal. All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.
Deadline: AUGUST 15, 2015. We will make decisions shortly after that date. Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Hawkins at firstname.lastname@example.org with “AALS Submission” in the subject line. Before sending, please remove all identifying information from the Word or PDF document.
For those who might be interested, here is a link to the introductory chapter in a volume of collected works on the subject published this year by Ashgate, part of a five-volume series on International Human Rights:
Issues discussed in this chapter include:
- theories of equality;
- formal versus substantive equality;
- structural and institutional inequality;
- the drafting history of human rights treaty provisions on equality and non-discrimination;
- incisive critiques of how UN and regional human rights bodies have interpreted and applied these provisions;
- non-treaty instruments that have influenced international law and practice;
- perspectives on how to determine when difference in treatment is permissible or impermissible under international human rights law;
- what grounds of discrimination are prohibited under international law and why;
- the intersection of multiple grounds of discrimination;
- approaches to determining what special measures, also known as affirmative action, are allowed or even required under human rights law;
- state responsibility for discrimination by non-state actors;
- legal requirements to use non-legal measures to address discrimination, such as governmental programs to address root causes of the prejudice that leads to discrimination.
From Rockstar Dinosaur Pirate Princess (here), this lesson on consent:
You say “hey, would you like a cup of tea?” and they go “omg fuck yes, I would fucking LOVE a cup of tea! Thank you!*” then you know they want a cup of tea.
If you say “hey, would you like a cup of tea?” and they um and ahh and say, “I’m not really sure…” then you can make them a cup of tea or not, but be aware that they might not drink it, and if they don’t drink it then – this is the important bit – don’t make them drink it. You can’t blame them for you going to the effort of making the tea on the off-chance they wanted it; you just have to deal with them not drinking it. Just because you made it doesn’t mean you are entitled to watch them drink it.
If they say “No thank you” then don’t make them tea. At all. Don’t make them tea, don’t make them drink tea, don’t get annoyed at them for not wanting tea. They just don’t want tea, ok?
They might say “Yes please, that’s kind of you” and then when the tea arrives they actually don’t want the tea at all. Sure, that’s kind of annoying as you’ve gone to the effort of making the tea, but they remain under no obligation to drink the tea. They did want tea, now they don’t. Sometimes people change their mind in the time it takes to boil that kettle, brew the tea and add the milk. And it’s ok for people to change their mind, and you are still not entitled to watch them drink it even though you went to the trouble of making it.
If they are unconscious, don’t make them tea. Unconscious people don’t want tea and can’t answer the question “do you want tea” because they are unconscious.
Ok, maybe they were conscious when you asked them if they wanted tea, and they said yes, but in the time it took you to boil that kettle, brew the tea and add the milk they are now unconscious. You should just put the tea down, make sure the unconscious person is safe, and – this is the important bit – don’t make them drink the tea. They said yes then, sure, but unconscious people don’t want tea.
If someone said yes to tea, started drinking it, and then passed out before they’d finished it, don’t keep on pouring it down their throat. Take the tea away and make sure they are safe. Because unconscious people don’t want tea. Trust me on this.
If someone said “yes” to tea around your house last saturday, that doesn’t mean that they want you to make them tea all the time. They don’t want you to come around unexpectedly to their place and make them tea and force them to drink it going “BUT YOU WANTED TEA LAST WEEK”, or to wake up to find you pouring tea down their throat going “BUT YOU WANTED TEA LAST NIGHT”.
Do you think this is a stupid analogy? Yes, you all know this already – of course you wouldn’t force feed someone tea because they said yes to a cup last week. Of COURSE you wouldn’t pour tea down the throat of an unconcious person because they said yes to tea 5 minutes ago when they were conscious. But if you can understand how completely ludicrous it is to force people to have tea when they don’t want tea, and you are able to understand when people don’t want tea, then how hard is it to understand when it comes to sex?
Whether it’s tea or sex, Consent Is Everything.
Check out the full post here.
Caroline Mala Corbin (Miami) has posted to SSRN her paper, Intentional Discrimination in Establishment Clause Jurisprudence, forthcoming in the Alabama Law Review. Here is the abstract:
In Town of Greece v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement — that a religiously disparate impact must be intentional before it amounts to an establishment violation — is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional discrimination standard made in the equal protection context apply in the establishment context. It also argues that free exercise and establishment jurisprudence still differ substantially despite their superficial symmetry.
The full piece is available for download here.
The Association of College Unions International hosts a poetry slam each year. The final rounds of this year’s College Unions Poetry Slam Invitational was held March 25–28, 2015 at Virginia Commonwealth University. The final round featured this brilliant performance by student Mikayla Mitchell:
CALL FOR CONFERENCE PAPERS AND PRESENTATIONS:
“Creating Excellence in Learning and Teaching for Today’s Law Students”
October 2-3, 2015, Phoenix, AZ
Arizona Summit Law School (ASLS) will be celebrating its 10th Anniversary with a conference for legal educators, law students, the legal community, and anyone interested in legal education. The Conference will be opened by Professor Gerald Hess, a leading American scholar on legal education, and founder of the Institute for Law School Teaching at Gonzaga University School of Law. The Conference will include panels and workshops intended to address an array of challenges facing law schools in the early 21st Century.
Possible topics may include, but are not limited to: Applying the latest teaching techniques, methods and technology in the classroom; Integrating practice-ready skills with doctrinal teaching; Teaching the underprepared student; Keeping higher performing students engaged and challenged; Teaching alternative and second career students; Preparing students for the new legal marketplace; Building an excellent academic support program; Preparing students to serve underserved communities
PAPER SUBMISSION PROCEDURE:
Select papers will be published in the Arizona Summit Law Review, ASLS’s flagship publication, or Accord, the internet-based sub-journal of Arizona Summit Law Review. To submit a paper, please send the following information by July 15, 2015 to ASLSConference@azsummitlaw.edu:
- Author(s) name, contact information, and school affiliation
- Author(s) CV
- Title of the proposed paper
- A brief description (500 words or less) of the paper
PRESENTATION PROPOSAL SUBMISSION PROCEDURE:
The Conference Committee welcomes proposals for 25-minute conference presentations or panel discussions, and anticipates a limited number of 50-minute slots as well. To submit a proposal, please send the following information by July 15, 2015 to ASLSConference@azsummitlaw.edu:
- Presenter(s) name, contact information, and school affiliation
- Presenter(s) CV
- Title of the proposed presentation
- A brief (one paragraph) description of the presentation, including a description of the presentation format (lecture with Q&A, interactive, PowerPoint, etc.)
- A two-sentence summary of the presentation for the conference program, if accepted
- Length of presentation
- Technology needs for the presentation
Participants will be notified of their selection by August 15, 2015. Please note that travel assistance is not available. Please direct all questions and final submissions to the Conference Chair, Dr. Marren Sanders, at ASLSConference@azsummitlaw.edu
Marie Ashe, Suffolk University Law School, and Anissa Helie, John Jay College of Criminal Jsutice, have published Realities of Religio-Legalism: Religious Courts and Women’s Rights in Canada, the United Kingdom, and the United States at 20 U. Cal.-Davis J. International Law & Pol’y 139 (Spring 2014). Here is the abstract.
Religio-legalism – the enforcement of religious law by specifically-religious courts that are tolerated or endorsed by civil government – has long operated against women’s interests in liberty and equality. In the 21st century, religious tribunals – Protestant, Catholic, Jewish, and Muslim – operate throughout the world. Almost all are male-dominated, patriarchal, and sex-discriminatory. Harms to women produced by Muslim or sharia courts have come into focus in recent years, but present realities of religio-legalism operating through Christian and Jewish – as well as Muslim – religious courts in Western nations have been under-examined. This essay documents controversies concerning sharia-courts that have arisen in Canada and in the United Kingdom during the past decade and also looks at concurrent developments relating to sharia and to other-than-Muslim religious courts in the US.
Religious courts – Christian, Jewish, and Muslim – have in common that they assert original or exclusive jurisdiction over certain matters. In calls for “official recognition” of sharia-courts, proponents have advanced a religious-equality argument, claiming that denial of that status to Muslim tribunals would violate the governmental obligation to avoid discrimination among religions. At the same time, sharia-related controversy has raised sharply the question about the implications for women’s liberty and equality rights that are produced by governmental accommodations of the religious-equality and religious-liberty interests asserted by all religious entities enjoying governmental recognition.
While recognizing the legitimacy and weight of the complaint against inequitable treatment of religions, we argue here that whenever governmental action to “resolve” sharia-related conflict adopts the avoidance of discrimination among religions as its single goal and therefore expands its “official recognition” to include additional religious courts, it will have the effect of enlarging religions’ power and at the same time exacerbating harms to women.
Referencing feminist writings that have documented the global spread of religious fundamentalisms from the 1990s to the present and that have exposed capitulations of liberalism to those fundamentalisms, we call for reconceptualization of the law-religion-women nexus. We urge recognition that governmental goals of equitable treatment of religions and protection of women’s rights will together be served not by expansions of governmental engagements with religion, but by retrenchment from religio-legalism. Thus, we urge, in policy and in law, clear prioritization of the protection of women’s rights and concurrent retreat from the formal recognition of all religious courts and of civil-law enforcement of the orders of any such bodies.
Download the article from SSRN at the link.
The Vanderbilt Center for Teaching has published a new guide on feminist pedagogy, written collaboratively by a faculty member and seven graduate students. Here is an excerpt from the introduction:
Feminist pedagogy is not a toolbox, a collection of strategies, a list of practices, or a specific classroom arrangement. It is an overarching philosophy—a theory of teaching and learning that integrates feminist values with related theories and research on teaching and learning. It begins with our beliefs and motivations: why do we teach? why do students learn? what are the goals of learning?… In this guide, we explain some of the fundamental beliefs, values, and intentions behind feminist pedagogy to inform a deliberate application in specific classrooms–any and all classrooms, as feminist pedagogy can inform any disciplinary context.
View the full document here.
Keith Cunningham-Parmeter, Willamette University College of Law, is publishing (Un)Equal Protection: Why Gender Equality Depends on Discrimination in volume 109 of the Northwestern University Law Review (2015). Here is the abstract.
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses — laws that give families additional parental leave when fathers stay at home with their newborns — have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
Download the article from SSRN at the link.
Leigh Goodmark (Maryland) has posted to SSRN her paper Hands Up at Home: Militarized Masculinity and Police Officers Who Commit Intimate Partner Abuse. Here is the abstract:
The deaths of Michael Brown and Eric Garner and the almost daily news stories about abusive and violent police conduct are currently prompting questions about the appropriate use of force by police officers. Moreover, the history of police brutality directed towards women is well documented. Most of that literature, however, captures the violence that police do in their public capacity, as officers of the state. This article examines the violence and abuse perpetrated by police in their private lives, against their intimate partners, although the public and private overlap significantly to the extent that the power and training provided to police officers by the state makes them significantly more dangerous as abusers. Intimate partner abuse by police officers is a systemic, structural issue created and fueled by the ways in which police officers are socialized and trained. Police officers are more likely than others to abuse their partners, and as a result of their training and their state imprimatur, police abuse of partners is more problematic and more potentially dangerous than abuse by civilians. Changing the behavior of abusive police officers may be nearly impossible given the interplay of policing and masculinity. Policing is a male profession; it encourages and rewards many of the same notions of masculinity that underscore intimate partner abuse. Feminist theories about how intimate partner abuse serves a means of asserting control over one’s partner may not explain officer-involved domestic violence; intimate partner abuse in law enforcement may be part of a larger pattern of violent behavior justified by problematic notions of masculinity. Moreover, the increasing militarization of police forces has given rise to a particularly pernicious type of masculinity, militarized masculinity, which is reflected in the attitudes and training of and methods used by police officers, both on the street and at home. Despite the high rates of intimate partner abuse by police officers, however, each incident is treated as an isolated event, rather than part of a systemic problem, and officers are largely able to act with impunity because of their centrality in the law and policy response to intimate partner abuse in the United States. The state has a serious stake in this conversation, not only because it trains and arms abusers, but because it depends upon these same abusers to enforce the very laws that they are violating in their own relationships. The U.S. response to intimate partner abuse relies heavily on the criminal justice system to enforce domestic violence laws; this article asks whether criminalization can succeed as a policy when police officers are disproportionately committing intimate partner abuse.
The full paper is available here.
Caroline Mala Corbin (Miami) has posted to SSRN her essay, Exploiting Mixed Speech, 103 Cal. L. Rev. Circuit (forthcoming 2015). Here is the abstract:
The Supreme Court has been taking advantage of mixed speech – that is, speech that is both private and governmental – to characterize challenged speech in the way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms one, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case where the local government invited overwhelmingly Christian clergy to give a prayer before town meetings, the Court found no Establishment Clause violation in part because it attributed constitutionally troubling aspects of the speech to the private speakers rather than to the government.
The full essay is available here.
Elizabeth A. Sheehy, University of Ottawa, Common Law Section, has published Defending Battered Women on Trial, at Defending Battered Women on Trial: Lessons From the Transcripts 1 (Vancouver: UBC Press, 2014). Here is the abstract.
In the landmark Lavallee decision of 1990, the Supreme Court of Canada ruled that evidence of “battered woman syndrome” was admissible in establishing self-defence for women accused of killing their abusive partners. This book looks at the legal response to battered women who killed their partners in the fifteen years since Lavallee.
Elizabeth Sheehy uses trial transcripts and a detailed case study approach to tell, for the first time, the stories of eleven women, ten of whom killed their partners and one who did not. She looks at the barriers women face to “just leaving,” how self-defence was argued in these cases, and which form of expert testimony was used to frame women’s experience of battering. Drawing upon a rich expanse of research from many disciplines, including law, psychology, history, sociology, women’s studies, and social work, she highlights the limitations of the law of self-defence, the successful strategies of defence lawyers, the costs to women undergoing a murder trial, and the serious difficulties of credibility that they face when testifying. In a final chapter, she proposes numerous reforms.
In Canada, a woman is killed every six days by her male partner, and about twelve women per year kill their male partners. By illuminating the cases of eleven women, this book highlights the barriers to leaving violent men and the practical and legal dilemmas that face battered women on trial for murder.
Download the essay from SSRN at the link. Link to the case R. v. Lavallee here.
Upon the request of a member of the Indiana legislature, a letter signed by 30 law professors, many from Indiana University, was released today analyzing the proposed “Religious Freedom Restoration Act” bills pending before the Indiana legislature. The letter provided careful analysis of the bills in light of Indiana and federal religious liberty law. The analysis stresses that:
- Religious freedom is a fundamental American value enshrined in the Indiana Constitution. But the proposed legislation could undermine those values and result in harmful consequences.
- The proposed Indiana RFRA would unsettle a well–reasoned harmony struck by Indian courts between rights to religious liberty and other fundamental rights – as such, this is not a modest proposal but instead could have radical consequences and will unleash a wave of litigation.
- Such harmful consequences could include employers, landlords, and corporations taking the law into their own hands and arguing that their religious beliefs allow them to avoid complying with laws that apply to everyone else. This will likely result in a flood of lawsuits.
- The right to religious liberty, like most fundamental rights, is not absolute. The law is very clear that religious liberty rights secured under state RFRAs or under the Indiana or U.S. Constitutions cannot be secured by shifting material costs to third party rights-holders. The proposed legislation should not be enacted because it does not limit the scope of religious liberty rights in cases where they undermine other important rights to public health, equality, or security.
- For instance, when a state police officer sought an exemption from working as a riverboat gaming agent because he had a religious objection to gambling, an Indiana court rejected this challenge, the Indiana Court of Appeals noted that, “law enforcement agencies need the cooperation of all members…Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical.”
- In a Supreme Court case, an Amish employer challenged on religious grounds the requirement to pay Social Security taxes on behalf of his employees. The court rejected the exemption, noting the harm it would impose on others.
- Some supporters of the proposed RFRA have argued incorrectly that the language of the proposed Indiana RFRA is the same as the federal RFRA and as such the Indiana law should gain bipartisan support, just as the federal RFRA did in 1993.
- In fact, many original supporters of the federal RFRA, including members of Congress who voted for the law and advocates who supported it, have withdrawn their support for the federal RFRA because it has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law.
The letter is available here.
More than $1,278, apparently. According to the (UK) Mirror (here), a 24-year old Romanian man is offering to “sell” his virginity and has turned down an offer of 1,125 euros (approximately $1,278).
Sound familiar? A Russian man received $2,600 in 2013. See here.
Michelle Goldberg, a contributing writer at the Nation, wrote in the Washington Post that, “Feminist Writers are so Besieged by Online Abuse that Some Have Begun to Retire.” Here is an excerpt:
This is a strange, contradictory moment for feminism. On one hand, there’s never been so much demand for feminist voices. Pop stars such as Beyoncé and Taylor Swift proudly don the feminist mantle, cheered on by online fans….
On the other hand, while digital media has amplified feminist voices, it has also extracted a steep psychic price. Women, urged to tell their stories, are being ferociously punished when they do. Some — particularly women who have the audacity to criticize sexism in the video-game world — have been driven from their homes or forced to cancel public appearances. Fake ads soliciting rough sex have been placed in their names….
Feminists of the past faced angry critics, letters to the editor and even protests. But the incessant, violent, sneering, sexualized hatred their successors absorb is harder to escape. For women of color, racial abuse comes along with the sexism….
Uppity women, of course, have long been targets of rage and contempt. In 1969, when Marilyn Webb spoke about feminism at an antiwar demonstration in Washington, many of the men who were listening erupted, screaming at her to strip and demanding that she be pulled down and raped. Feminists of the second wave regularly contended with real-world hostility from left-wing men that would be inconceivable today. Nona Willis Aronowitz, features editor at Talking Points Memo, is the daughter of the revered late feminist writer Ellen Willis, who wrote for publications including the Village Voice and the New Yorker. “Forget random online commentators — people who were working at her same publications were total sexists,” Aronowitz says. Male Voice staffers, Willis once wrote, regularly referred to their female colleagues as the “Stalinist feminists.”
Read the full piece here.
On March 6, 2015, the Stetson Law Review is holding a symposium on Inequality, Opportunity, and the Law of the Workplace. Here are the 12 scheduled speakers:
Adjunct Professor of Law at NYU
Former NLRB Chair
Labor and Employment Editor for Politico
Former Writer for Slate and MSNBC
David Cay Johnston
Distinguished Visiting Lecturer at Syracuse University College of Law
Pulitzer-Prize Winning Journalist
Samuel Bagenstos, University of Michigan Law School
Matthew Bodie, Saint Louis University School of Law
Charlotte Garden, Seattle University School of Law
Dr. Larry Mishel, President of the Economic Policy Institute
Paul Sonn, General Counsel and Program Director at the National Employment Law Project
Katherine Stone, UCLA Law
Michael Tanner, Senior Fellow at Cato Institute
Steven Willborn, Nebraska College of Law
Michael Zimmer, Loyola University Chicago School of Law
Only 3 out of 12 speakers are female. Perhaps the symposium will address the interrelationship between gender inequality and economic inequality, and what it means when the dialogue about inequality is dominated by men.
Thomas Jefferson School of Law announces registration is open for its 15th annual Women and the Law Conference. The Conference will be held March 27, 2015. Well-known defense attorney Leslie Abramson will deliver the Ruth Bader Ginsburg Lecture this year. More information at the TJSL website here.
Feminist Law Prof Ruth Colker (Ohio State) is part of the 5-person expert panel nominated pursuant to the consent decree settling the federal ADA action against the Law School Admission Council. (For more info on that case, see here.) The expert panel just issued its report proscribing practices that LSAC must implement. LSAC has until February 26 to notify the court of any objections to the expert recommendations.
Anyone wishing to urge LSAC to accept the recommendations instead of challenging them in court should feel free to email LSAC Executive Director Daniel Bernstine: email@example.com
Erez Aloni (Whittier) has an op-ed in the Guardian, Republicans Want ‘Stronger’ Marriages but are Fighting Equality Within Them. Here is an excerpt:
Even as social conservatives pontificate on preserving the sanctity of marriage and the importance of making divorce once again more difficult, other conservatives have launched a complementary crusade if ‘I do’ isn’t forever: hands off your ex’s money. * * * [C]onservatives around the country are fighting to make it easier for the wealthier partner or spouse to walk away with minimal financial obligations when marriage does end in divorce – which has the potential to disproportionately affect women.
That concurrent campaign, also led by conservatives, employs a very different tactic, and has largely evaded public scrutiny. In recent years, several states have passed or considered laws that would reduce alimony payment periods (Massachusetts, Florida, Connecticut), make prenuptial agreements more difficult to invalidate (Colorado, Mississippi), and make it much harder for unmarried partners to claim support from their exes. * * * Taken together, these reforms to alimony, palimony and prenuptial law create significant freedom for the wealthier party to skirt any financial responsibility to support an ex-partner while limiting protections for the less-well-off partner. Paradoxically, these changes provide incentives both not to get married … and then to get divorced if you do.
These modifications have gradually seeped into the legal system, with alimony reform being perhaps the most familiar (and controversial) development. Legislation was enacted last September in New Jersey, which followed Massachusetts’s lead: most notably, for marriages that last fewer than 20 years in New Jersey, alimony payments can no longer exceed the length of the marriage. Two years earlier, New Jersey had amended its prenuptial agreements law: before the changes, the courts had discretion not to enforce prenuptial agreements if their terms were unfair at the time of divorce, recognising that engaged couples are often blind to the possibility of divorce and that circumstances and needs change over the course of a marriage. Since 2013, however, if couples follow certain procedural requirements when they sign their pre-marriage agreements, courts are legally bound to enforce their terms. * * *
Conservatives claim that they want to strengthen marriage in order to reduce poverty. But these simultaneous reforms to divorce law actually weaken marriage by giving the economically better-situated partner or spouse (usually the man) a legal escape hatch to dodge financial obligations, thereby perpetuating the cycle of poverty, particularly for women. If conservatives – or we as a society – are genuinely interested in strengthening families, it is time to rethink the legal system that makes it easy for one partner to walk away from a relationship with little or no responsibility for the life of the other.
Read the full piece here.
The February 2015 print edition of the ABA Journal gives a nice shout-out to the forthcoming Feminist Judgments book in an article by Leslie A. Gordon, New Project Rewrites SCOTUS Opinions from a Feminist Perspective. Here is an excerpt:
More than 50 law professors and lawyers are collaborating to analyze how U.S. Supreme Court jurisprudence would look if seminal cases had been adjudicated from a feminist perspective. The book Feminist Judgments: Rewritten Opinions of the United States Supreme Court will contain 24 rewritten decisions on topics such as reproductive rights and substantive due process to show how feminist legal reasoning might actually change the course of law.
Inspired by the 2010 publication of a similar study in Britain, Feminist Judgments pioneers a new form of critical socio-legal scholarship in the U.S. The rewritten decisions will use the same precedent that bound the Supreme Court at the time of each case but will incorporate a feminist perspective on the facts and the law. The book aims to prove that stare decisis can mask what is really a masculine viewpoint, and that hidden gender bias—not stare decisis—may be what drives the reasoning and results in much of the nation’s jurisprudence.
The article has a nice quote from my co-editor Kathryn Stanchi (Temple) explaining that the book will be a collaboration between master theorists and people firmly grounded in the practical.”
Read the full ABA Journal piece here.
From the Lesbian Caucus of the National Women’s Studies Association:
The Lesbian Caucus of the National Women’s Studies Association invites submissions for a sponsored session on “The Revolutionary Lesbians of the 1970s,” to be held at the annual conference in Milwaukee, WI on November 12-15, 2015.
Panel Title: The Revolutionary Lesbian 1970s
Conference Sub-Theme: Precarity, Distortion/Dispossession
The 1970s is well known as a particularly intense time for radical lesbian activism and new experimental lesbian sexualities, lifestyles, cultural production and living arrangements. The “Lesbian 70s” is now the object of a growing scholarship which has generated panels at professional meetings as well as some conferences on their own. However, until now, specifically revolutionary lesbian-positioned analyses, activisms and practices of the 1970s, by lesbians of color and lesbians of all colors, have received less attention. And yet, to remember them and the solidarities they created could be very fruitful for our times. This panel engages with 1970s revolutionary lesbian analyses of how multiple relations of power such as gender, sexuality, capitalism, colonialism and neo-colonialism, genocide, racism, religion, ethnicity and specism, operate together, inseparably. It also addresses the revolutionary activisms and transnational solidarities in the 1970s of lesbians
– as individuals and in lesbian groups- within and allied with people’s liberation and anti-colonial movements in the U.S. and across the globe.
Some keyword topics might include:
*Historical erasures of revolutionary lesbians of color, and of all colors, of the 1970s
*race, class, colonial and sexual politics of (non)citational violence
*production of knowledge, concept-terms and re-languaging by revolutionary lesbians of the 1970s
*revolutionary lesbian 1970s modalities of transformative resistance
* 1970s revolutionary lesbians within, out of and allied with people’s movements for liberation in the U.S. and transnationally
*1970s revolutionary lesbians’ analytics of oppression, repression and the inseparability of multiple relations of power (gender, race, class, cpitalism, imperialiam, sexuality, colonialism, specism, etc)
*coalitions, collaborations, alliances, assemblages
*politics of alter-modalities of inter-subjectivity and community
*politics of 1970s revolutionary lesbians living together
*lesbian issues and actions of revolutionary lesbian 1970s
*1970s revolutionary lesbian re-inventions of sexualities and the erotic
*illegibilities of 1970s revolutionary lesbians today
*new epistemologies and methods for understanding 1970s revolutionary lesbians
*prior and current precarities of revolutionary lesbian theorists and activists of the 1970s
*1970s revolutionary lesbians and the State (State repressions, prison, exile, as well as lesbian analytical and activist responses)
*why remember the revolutionary 1970s today?
*the revolutionary lesbian 1970s and feminist, lesbian, queer and transgender inter-generational community and politics
To submit, please send a proposed title and an abstract of no more than 150 words, along with a current CV to the session organizer, Paola Bacchetta at firstname.lastname@example.org and the Lesbian Caucus chair, Jaime Cantrell at email@example.com no later than 5pm on February 18th, 2015.
See here for the link for the CFP for other proposals.
[A]s ideologies and movements, libertarianism and feminism have a lot to offer one another. Not every libertarian matter is necessarily a feminist one, of course (and vice versa). Libertarianism can, however, provide a lens through which to view gender issues, and in doing so help counter the monopoly that a more coercive, carceral feminism has come to enjoy.
“Carceral feminism” is a term that’s gaining popularity, and it’s in many ways synonymous with progressive feminism these days. Progressive feminists will identify gender-based concerns, then immediately look to the state for solutions—via strict regulation, at least, or criminalization and jail in many instances. Carceral feminism is the relatively small but incredibly vocal voice within millennial feminism that says due process can be sacrificed if it means catching a few more rapists, hate speech should come with a jail sentence, and images promoting “unrealistic” female body standards should be banned by the government, among other things. * * *
Libertarian feminism seeks to provide an alternative way of viewing these issues, one that emphasizes the negative, unintended consequences of increased government intervention and policing power. It can provide a jumping-off point for considering less coercive, less reactionary, and less rights-infringing solutions; be a third-way between patriarchy-preserving social conservatism and the intolerant, illiberal feminists sometimes referred to as “social justice warriors” these days.
And for libertarians, a feminist perspective can enrich the scope of our battle to lessen government coercion and maximize liberty. Libertarian feminists bring overlooked or under-emphasized issues into the liberty movement, such as reproductive freedom (not just abortion but things like making birth control available over-the-counter, state coercion of pregnant women, surrogacy law, and the emerging legal issues surrounding things like IVF and artificial wombs), state overreach into parenting, the over-regulation of female-heavy occupations, how decriminalizing sex work fits into overall criminal-justice reform efforts, and the growth of women as a percentage of millennial libertarians. * * *
Feminism is, essentially, concerned with ensuring that neither biological sex nor gender should be destiny. Releasing everyone from strongly gendered expectations—and the policy they spawn—is a good way to maximize liberty, happiness, and human flourishing.
To me, claiming the feminist label is no different than calling myself a libertarian. They both inform my beliefs, but neither has primacy and neither requires strict allegiance. I don’t “belong” to or consider myself a “member” of either, as people often do with major political parties. They are guiding principles, microscopes, ways of being curious, not dogma nor identities.
The full post is available here.
This column caught my eye for many reasons, including its use of the phrase “carceral feminism,” which hasn’t gained much of a foothold in the legal academy (many critics preferring Janet Halley’s term “governance feminism,” which is not quite the same thing). I will be interested to watch whether it gains more traction among legal scholars critical of so-called “mainstream” feminist theory.
From a group of students at Columbia Business School, this parody video riffing on Meghan Trainor’s “All About that Bass”:
It includes a shout-out to women in law schools and med schools, too. Very funny.
National Association of Women Lawyers 2015 Selma Moidel Smith Law Student Writing Competition Now Open
National Association of Women Lawyers®
2015 Selma Moidel Smith Law Student Writing Competition
The National Association of Women Lawyers (NAWL)® is a national voluntary legal professional organization whose mission is the advancement of women in the legal profession and women’s rights. Since 1899, NAWL has served as an educational forum and active voice for the concerns of women lawyers in this country and abroad. NAWL continues to support and advance the interests of women in and under the law, and in so doing, supports and advances the social, political, and professional empowerment of women. Through its programs and networks, NAWL provides the tools for women in the profession to advance, prosper, and enrich the profession. NAWL has established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law. The rules for the competition are as follows:
Entrants should submit a paper on an issue concerning women’s rights or the status of women in the law. The most recent winning paper was “The Decriminalization of Rape on America’s College Campuses: How Federal Sex Discrimination Policy Has Diminished the Role of the Criminal Justice System in Combatting Sexual Violence” written by Danielle Elizabeth DeBold, New York University School of Law. Please view paper at http://www.nawl.org/p/cm/ld/fid=83.
Essays will be accepted from students enrolled at any law school during the 2014-15 school year. The essays must be the law student author’s own work and must not have been submitted for publication elsewhere. Papers written by students for coursework or independent study during the summer, fall, or spring semesters are eligible for submission. Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.
FORMAT: Essays must be double-spaced in 12-point, Times New Roman font. All margins must be one inch. Entries must not exceed fifteen (15) pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook – A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or which are not in the required format may not be read.
JUDGING: NAWL Women Lawyers Journal® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.
QUESTIONS: Questions regarding this competition should be addressed to the chair of the Writing Competition, Professor Jennifer Martin at firstname.lastname@example.org.
SUBMISSION AND DEADLINE: Entries must be received by May 1, 2015. Entries received after the deadline will be considered only at the discretion of NAWL. Entries must provide a cover letter providing the title of your essay, school affiliation, email address, phone number, and mailing address. Entries must be submitted in the following format: email an electronic version (in Microsoft Word) to email@example.com.
AWARD: The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in the NAWL Women Lawyers Journal.
The Center for Gender and Sexuality Law at Columbia Law School invites applications for a sabbatical visitor for the 2015-2016 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, 2015.
For more information: https://web.law.columbia.edu/gender-sexuality/visiting-scholars-research-fellows/sabbatical-visitor-program
Katherine Franke, Columbia Law School
The year 2014 marked the 20th anniversary of the federal Violence Against Women Act (VAWA). That milestone presented an opportunity to critically reflect on current gender-violence policy, and to build on shared critiques to flesh out an alternative agenda. In that spirit, two new resources offer inspiration for mobilization and advocacy. First, the City University of New York (CUNY) Law Review’s Footnote Forum has published an online collection of 15 short essays “re-imagining” VAWA in service of progressive reform. The essays are based in an intersectional understanding of the ways in which various forms of inequality create and sustain violence. They draw on critiques grounded in the movement against mass criminalization and intrusive state intervention in the lives of poor people, as well as in work for immigrant rights, economic rights, LGBTQ equality, disability rights, racial justice, and human rights. The multi-disciplinary essays, plus an introduction that summarizes the works and draws out themes, can be found here: http://www.cunylawreview.org/category/vawa/.
Similarly, the conversation held at CUNY Law School on November 13, 2014, “VAWA@20: Reflecting, Re-imagining & Looking Forward,” with Professor Kimberlé Crenshaw, Sharon Stapel and Sujata Warrier, and moderated by Professor Julie Goldscheid, is now available on line for those who missed the event: https://www.youtube.com/watch?v=lJ60BSodHaA. The conversation explored similar themes to those elaborated in the essay collection. Speakers reflected on how lessons from the last 20 years can inform policies and programs that promote gender, racial and other forms of equality, while working to end intimate partner and other forms of violence.
Courtney Joslin (UC Davis) has posted to SSRN her article, Leaving No (Nonmarital) Child Behind, 48 Fam. L. Q. 495 (2014). Here is the abstract:
Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.
There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.
The full article is available here.
Jamie R. Abrams (Louisville) has posted to SSRN her article, The Illusion of Autonomy in Women’s Medical Decision-Making, 42 Fla. St. U. L. Rev. 1 (2015). Here is the abstract:
This article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy. This article instead considers the far more common scenario when women and their doctors align in the face of great decision-making complexity and uncertainty. What decision-making framework normalizes this doctor-patient alignment and how does this decision-making framework complicate the actualization of autonomy for the women who do not elect this framework? This article concludes that many, if not most, of the four million women who birth in hospital settings attended by physicians align with their doctors by applying a shared decision-making framework that presumptively elects the outcome that minimizes any, even minor, risks to the fetus. While individual patients can certainly elect this approach autonomously, when understood in the context of tort law — in which the actions of “most women” and “most doctors” can become the standard of care itself — this framework is deeply concerning.
This fetal-focused decision-making framework perpetuates an illusion of autonomy because doctors can apply the framework independently. This decision-making model problematically resurrects the ghost of Roe v. Wade’s medical model in which doctors effectuate decision-making autonomy for women. Understood in a tort lens, while this illusion of autonomy might not seem problematic to the individual women who elect this framework, it risks imputing a distorted standard of care to all obstetric cases by creating a primacy that always prioritizes fetal risks over maternal risks, a primacy that explicitly contravenes existing tort standards. Tort law ordinarily governs “unreasonable risks,” whereas this framework elevates any fetal risk to an unreasonable risk and reduces any maternal risk short of death to reasonable. It risks imputing to all women a standard requiring the complete acceptance of medical guidance.
This article concludes that tort law standards should explicitly govern not just the “what” of childbirth outcomes, but the “how” of childbirth decision-making by using decision-making aids to ensure that women’s autonomy is actual and not illusory. Incorporating decision-making aids in the standard of care would remedy the illusion of autonomy by ensuring that “most women’s” decision-making frameworks are not presumptively applied to all women so as to distort tort law and undermine patient autonomy.
The full article is available here.
From the FLP mailbox:
Haverford College invites applications for a three-year visiting Assistant Professor (with possibility of renewal) in its Peace, Justice and Human Rights Program. The position is open to scholars at all pre-tenure levels with training in the humanities or social sciences who focus in their work on questions of justice, peace and conflict, human rights and related fields, with special attention to ethics or ethical leadership.
Candidates should be able to teach an applied ethics course in issues of global justice and/or an introductory course on peace, justice and human rights, as well as offer more specialized courses. The teaching load is five courses per year. Successful candidates will be given resources to plan and host a symposium oriented around themes of ethics and justice in the second year of the appointment, during which the teaching load will be reduced to four courses to accommodate the responsibilities of preparing and hosting the symposium.
Salary is competitive and commensurate with experience and qualifications. Research and travel money is also available. Faculty housing on campus may be available.
Haverford College is a leading liberal arts college serving highly motivated students on a nationally recognized arboretum in suburban Haverford, just outside Philadelphia. The program in Peace, Justice and Human Rights is an interdisciplinary concentration that students may add on to any major. Its goal is to foster cross-disciplinary collaboration and creative new perspectives on entrenched problems. For more information, see http://www.haverford.edu/pjhr/.
Candidates for the position should have a Ph.D and demonstrated evidence of strong teaching at all levels of the curriculum to a diverse student body. ABD candidates may apply but must also provide assurance of completion of the degree by September 1, 2015 and evidence of relevant teaching experience.
Please submit a cover letter addressing your fitness for the position, curriculum vitae, a sample course syllabus for “Introduction to Peace, Justice and Human Rights” or “Applied Ethics of Peace, Justice and Human Rights,” a short teaching statement and evaluations, and a writing sample of no more than 25 pages to (interfolio). In order to receive full consideration, all materials must be uploaded to Interfolio (http://apply.interfolio.com/27643) by February 6, 2015.
Mary Heen (Richmond) has posted to SSRN her article, Nondiscrimination in Insurance: The Next Chapter, 49 Georgia L. Rev. 1 (2014). Here is the abstract:
For nearly 150 years, American insurance companies have engaged in race and gender pricing practices that would be illegal if followed today by any other major commercial enterprise. The insurance industry has defended its long-standing practices, first for race and now for gender, based on ideas about insurance “equity” developed in the nineteenth century. The continued application of these ideas, and the practices that have resulted from them, conflict with fundamental civil rights principles and should not be tolerated as exceptions to our national civil rights laws. As that history shows, classifications used by insurers to determine rates and benefits raise complex distributional, financial, and political issues that cannot be resolved simply as technical questions of actuarial risk or economics. This Article proposes comprehensive federal civil rights legislation to ban discrimination based on race, color, religion, national origin, and sex in insurance coverage, rates, and benefits. It explains why previous reform efforts have failed and why recent developments, including the adoption of unisex insurance rates in Europe, could make consideration of such legislation in the United States timely once again.
The full article is available here.
Student Opportunity: Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights
From the FLP mailbox, this notice of a student writing competition:
Law Students for Reproductive Justice (LSRJ) in collaboration with the Center for Reproductive Rights, is pleased to announce the Call for Submission for the tenth annual Sarah Weddington
This year, the Sarah Weddington prize
The deadline for submission is January 15, 2015.
Winning authors will receive cash prizes: $750 (1st place), $500 (2nd place), or $250 (3rd place). The first place winner will also have a chance at publication with the NYU Review of Law and Social Change.
Drummond and Cohen: Enforcement and Prosecutorial Restraint in the Transnational Trade in Human Eggs
Susan G. Drummond (Osgoode Yall) and Sara R. Cohen (D2 Law LLP) have published Eloquent (In)action: Enforcement and Prosecutorial Restraint in the Transnational Trade in Human Eggs As Deep Ambivalence about the Law, 26 Can. J. of Women & the Law 206 (2014). Here is the abstract:
This article approaches a piece of Canadian criminal legislation by analyzing the law’s extraterritorial effect and putting the law’s practical import within a mobile and global context—and from that perspective concludes that the domestic law is practically and morally impoverished. The law in question is section 7 of the Assisted Human Reproduction Act (AHRA), which criminally prohibits the purchase, offer to purchase, and advertising for purchase of gametes from a donor or from a person acting on behalf of a donor. While large swathes of the AHRA were held to violate the division of powers in a 2010 Supreme Court reference, section 7 remains standing as valid federal legislation, though effectively almost never enforced. Some scholars, notably Francoise Baylis and Jocelyn Downie, urge more rigorous enforcement both within Canada and extraterritorially, drawing on common law principles that stretch the long law of Canadian penal statutes across national borders. Sara Cohen and Susan Drummond argue that not only is the extraterritorial reach of the Canadian executive drastically shorter than Baylis and Downie might wish, a growing and elite transnational reproductive traffic has outpaced and undermined the moral legitimacy of the law domestically. They argue that any well-founded policy aspirations behind section 7 are far more likely to be met with the repeal of section 7 in favour of an administrative regime for the regulation of reproductive technologies. The result would be less hypocritical and more democratic.
The full paper is available here.
May her memory be a blessing.
From the FLP mailbox, this announcement:
We are excited to announce the new Kent Summer School in Critical Theory, which will run for the first time in Paris next July. Our website has just gone live, and we invite you pay us a visit: www.kssct.org.
This new summer school for early career researchers and doctoral students aims to create a unique pedagogical experience, enabling leading critical thinkers to conduct an intensive 2-week seminar with members of a new generation of critical scholars.
Applications are now open to attend the summer school, and you will find application instructions on the website.
The inaugural teachers of the intensive seminars will be Professor Peter Goodrich, and Professor Davide Tarizzo. In addition, we will also hear lectures by Goodrich, Tarizzo, and Professors Geoffrey Bennington, Davina Cooper, and Roberto Esposito. The website also contains information about the seminars and the school’s other events.
Writing for the Berkeley alumni magazine, author Tamara Straus asks, “What Stalled the Gender Revolution? Child Care That Costs More Than College Tuition.” Here is an excerpt:
Vox reported in August that child care costs are growing at nearly twice the rate of prices economywide. A 2013 report from Child Care Aware noted that as of 2012, in 31 states and the District of Columbia, day care is more expensive than one year of public college tuition—and that was among a cohort of faculty, people with the highest levels of education.
For people with less education and lower incomes, the news is much worse. The U.S. Department of Health and Human Services reports that only one in six federally eligible children received child care assistance in 2006, the most recent year for which data are available. In the Golden State, according to a June 2014 study from the California Budget Project, funding for child care and preschool was cut by roughly 40 percent (after adjusting for inflation) compared to 2007–08. The result? Approximately 110,000 child care and preschool slots disappeared—a decline of nearly one-quarter since the Great Recession. There are just too many studies to cite here showing that when parents can’t find affordable child care, they give up working or looking for work.
Even at Berkeley, mecca of progressive politics, full-time day care for infants is $2,060 a month, $1,846 for toddlers, and $1,528 for Pre-K. * * *
If we are stuck with a system that privileges small government (except for military expenses) and low taxes (particularly for the rich), we certainly will never be able to afford subsidized childcare. And if we continue to uphold a corporate culture that pushes workers to sacrifice family time for continued employment and/or higher earnings, care for children will remain in a vise. This vise, as Hochschild points out, devalues human connection and care. It also ignores the vast demographic changes in employment and American families over the last 40 years, and can be used by conservatives and traditionalists to blame women and poor people for society’s failings.
Feminism isn’t a prominent social movement in this country anymore. And one reason for this is blazingly clear: We don’t have an affordable, taxpayer-subsidized system of infant-to-12 child care that levels the playing field for all women, their partners, and their children. What we have is elite women (and men) blathering on about choice, and billionaire executives passing themselves off as role models for working women, while refusing to acknowledge, let alone celebrate the women who help raise their children and manage their homes.
Read the full post here.
From the FLP mailbox, this notice of fellowships at the Baldy Center at SUNY Buffalo. The deadline is February 2, 2015.
Baldy Fellowships in Interdisciplinary Legal Studies 2015-16
The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships for 2015-16 to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social sciences.
Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to university libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.) and are encouraged to develop collaborative research projects with SUNY Buffalo faculty members where appropriate. Those who wish to teach a course to aid their research or gain teaching experience can be accommodated on a case-by-case basis.
Post-Doctoral Fellowships are available to individuals who have completed the PhD or JD but have not yet begun a tenure track appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and may apply for up to $2000 in professional travel support. For 2015-16 the Baldy Center also plans to co-sponsor one post-doctoral fellowship focused on the Transnational Business Interactions Framework with York University. Further information on this fellowship is available on the Baldy Center website and below.
Mid-Career and Senior Fellowships are available to established scholars who wish to work at the Center, typically during a sabbatical or research leave. Awardees will receive a living expense allowance of $1,500 per month during the period of their residence.
Application materials include:
(1) a description of the planned research (question, conceptual framework, method, possible findings, importance to the field),
(2) a complete academic and professional resume,
(3) an academic writing sample,
(4) the names and contact information of three academic references (no letters yet), and
(5) if a mid-career or senior applicant, the time period during which the applicant would work at the Center. Completed applications are due no later than February 2, 2015. (Apply by clicking the button below). For further information, see our answers to frequently asked questions. Additional questions about the Baldy Fellows Program should be addressed to Assistant Director Laura Wirth, firstname.lastname@example.org or (716) 645-2581.
Primary criteria for selection include intellectual strength of the proposal, demonstrated academic achievement, and promise of future success. Additional considerations include the overall mix of topics, disciplines, and backgrounds of the selected group of fellows.
For information on current and past Baldy Fellows, see the Baldy Center website.
The University of Illinois College of Law posts its Annual Report here, listing many good things happening at that school. The online materials include a two-page spread, with photos, touting the school’s “Significant Lectures” in 2012-2013. Notice anything?
Apparently the organizers of the lecture series and the marketing folks at Illinois did not notice the lack of diversity among its lecturers OR they think it is worth advertising that the school’s “Significant Lectures” are delivered by white men. Did any of the speakers think to ask about the diversity of those delivering a “Significant Lecture” at the school, either?
How about the “Significant Lectures” at Illinois more recently? Here’s what I found in the “News” section of the College of Law’s website:
Chai Feldbaum (EEOC Commissioner) delivered the Vacketta-DLA Piper Lecture on the Role of Government and the Law on October 29, 2014.
Daniel J. Solove (George Washington University Law School) delivered the David C. Baum Lecture on Civil Liberties and Civil Rights on October 14, 2014.
Kenneth Mack (Harvard) delivered the David C. Baum Lecture on Civil Liberties and Civil Rights on March 28, 2014.
Lawrence Gostin (Georgetown) delivered the Ann F. Baum Memorial Elder Law Lecture on March 3, 2014.
Tom Daschle (Senator, South Dakota) delivered the Vacketta-DLA Piper Lecture on the Role of Government and the Law on October 25, 2013.
That adds one white woman and one African-American man to the list of eleven who delivered a “Significant Lecture” at Illinois College of Law in two academic years. If there were others, the lectures aren’t publicized in the “News” section of the school’s website. Corrections and additions welcome.
I have so many basic factual questions about this story concerning the frozen sperm of an Auckland, New Zealand teenager:
Promising young film-maker Cameron Duncan banked sperm at age 15 before starting chemotherapy in 2002 for bone cancer in his left femur. Knowing the chemotherapy might destroy his fertility, he wanted to preserve the chance of having children in the future. * * *
Tragically, Cameron was only 17 when he died in November 2003 – but in his will, he preserved his sperm, and it has remained frozen ever since.
The Human Assisted Reproductive Technology Act, passed shortly after, imposed a 10-year limit on storage of frozen sperm, embryos and eggs plus testicular and ovarian tissue.
There is an additional one-year window, though, to argue the case that sperm could be used to create a baby, rather than be destroyed.
Under the act, nobody had the right to use sperm stored by a minor aged under 16 years, except the person himself. An applicant would have to show that Cameron did grant his consent for the use of the sperm, before he died.
The Advisory Committee on Assisted Reproductive Technology said it would be necessary to prove how the law could allow using a minor’s sperm without his consent.
Read the full story here.
Is there someone who is seeking to use the decedent’s sperm? What evidence is there that the decedent consented to posthumous reproduction? What is the legal significance of the fact that the decedent was a minor at the time the sperm was frozen and at the time of his death? Does New Zealand’s Human Assisted Reproductive Technology Act apply retroactively? If any children were born of this decedent’s sperm, would the offspring be entitled to state support or other survivor’s benefits, as was sought in the Massachusetts case of Woodward v. Commissioner of Social Security, 70 N.E.2d 257 (Mass. 2002)? Any thoughts or recommendations for further study from New Zealand readers would be much appreciated.