Reposted from The Public Rights / Private Conscience Project Blog
Back in August the Obama Administration responded to the Supreme Court’s opinion inHobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believed notifying their insurance company or third-party administrator (TPA) of their objection was also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS would work together to notify the insurance company or TPA. (I’ve written elsewhere about why this is, not to put too fine a point on it, a somewhat pointless exercise). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.
These regulations were open for public comments, and the Public Rights / Private Conscience Project at Columbia Law School drafted comments on both rules that were signed by more than 60 prominent legal academics. Along with more than 40 corporate law scholars, we argued that “[t]he Supreme Court’s approach to corporate religious rights in Hobby Lobby was associational in nature: for-profit entities have religious rights because they are a collection of individuals with religious rights. In that sense the entity is merely the vehicle through which a group of individuals with religious rights exercises those rights in a collective manner.” Given that, we urged the Department to only allow for-profit entities that (1) were privately-held and limited to a certain size, (2) could produce evidence of their religious operating mission, and (3)produced evidence of a unanimous owner agreement to seek the accommodation annually.
In addition, along with more than 20 important scholars of law and religion, we submitted comments urging both HHS and DOL to create stringent monitoring and enforcement standards in order to avoid Establishment Clause violations. As we explained in ourcomments, “[s]tatutes like RFRA may exempt religious actors beyond what is constitutionally required, but only if they do not offend superior rights found in the Constitution. The Establishment Clause can be violated when . . . accommodations shift the burden of a religious observance from those who practice the religion to those who do not.” Because the accommodation process has the potential to impose burdens on affected employees – like delays or gaps in coverage – it is essential that the accommodation process truly be seamless. Otherwise there will only be more lawsuits ahead.
The Women Project began in a very spontaneous and unpretentious way. My initial goal was just to practice my technique with colored pencils while saying something nice to my friends who already followed my work.
When looking for a theme, I opted for intersectionality for being something that I acknowledge as a personal issue. It always bothered me the world’s constant attempts to control women’s bodies, behaviors and identities. This control is such a deep part of our culture that we hardly ever realize how cruel it is and how it restricts our personal choices. However, I don’t believe it’s enough to discuss exclusively the issues that affect a specific group of women. We also need to talk about racism, homophobia, transphobia, classicism, xenophobia and ableism. The fight for equality and respect is very wide and should be inclusive.
The images are thought-provoking, inspirational, and definitely worth a look. At left is one example.
In the 1970s, we women used to talk about loving our own bodies. Inspired by the generation-defining tome Our Bodies, Ourselves, we trained for childbirth without anesthesia, we looked at our cervixes using a speculum, and in general cultivated in ourselves the thought that our own bodies were not sticky, disgusting, and shameful, but dynamic, marvelous, and, more important, just us ourselves. Today, as we boomers age, male and female, what has happened to that love and excitement? I fear that my generation is letting disgust and shame sweep over us again, as a new set of bodily challenges beckons.
In conversations, in the ways people I know meet medical challenges (routine and not-so-routine), I’ve noticed not just a discomfort with the unpopular aspects of aging (sagging skin, brown spots, loss of muscle tone), but something more general: a shrinking from the body itself, a desire to deny that this body is who we are. * * *
What has become of that youthful surge of profound self-love? As we age, we are yielding to all the forces we tried, back then, to combat: not only the forces of external medical control, but the more insidious force of self-loathing.
Read the full piece here.
Margo Kaplan recently published this Op-Ed in the NYT entitled “Pedophilia: A Disorder, Not a Crime”, in which she asserts:
A pedophile should be held responsible for his conduct — but not for the underlying attraction. Arguing for the rights of scorned and misunderstood groups is never popular, particularly when they are associated with real harm. But the fact that pedophilia is so despised is precisely why our responses to it, in criminal justice and mental health, have been so inconsistent and counterproductive. Acknowledging that pedophiles have a mental disorder, and removing the obstacles to their coming forward and seeking help, is not only the right thing to do, but it would also advance efforts to protect children from harm.
Today she presented the law review article this is drawn from, “Taking Pedophilia Seriously” (forthcoming in the Washington & Lee Law Review) at Pace Law School. Had she not been a Pace Law colloquium speaker, I probably would not have read either the Op-Ed or the article, based on incorrect assumptions about the arguments she is making. I am very glad I did, though. She has convinced me that society is going to be a lot better off if pedophiles can self identify and seek treatment for what she characterizes as a mental disorder. Right now, because pedophilia is so stigmatized, pedophiles are understandably afraid to disclose their illegal attractions to children, leaving them without support or access to medical and psychiatric treatment that they may want and benefit from. Pedophiles are understandably and appropriately unable to legally have sex with the children they desire. But leaving a group of people in a situation where they can’t legally have sex, ever, or even look at child porn (which is illegal, as it should be) for sexual release and then leaving them in the shadows to deal with this situation themselves, is just wrong. Pedophiles who fight their urges and do not act on them are not hurting anyone, but they may me treated like criminals nonetheless. Maybe some readers can’t actually feel sorry for pedophiles, but surely the benefits for potential victims of sexual predation by pedophiles that treatment might bring make Margo Kaplan’s work worth considering.
I must also applaud her bravery. An interview with Philadelphia Magazine just after publication of the Op-Ed makes it clear that many people are condemning her work without reading and understanding it. Don’t make that mistake! She has undertaken something important in the very best tradition of legal scholarship.
This essay, published at The Verge, tells the troubling story of the harassment of Kathy Sierra, the incident that drove her away from particiapting in the tech Internet for years, and how the man who perpetrated this incident is being lionized and help up as a hero by cyber civil liberties organizations like EFF. Below are a couple of excerpts:
… In March of , some visitors to Sierra’s blog called “open season” on the now 57-year-old. Hundreds of commenters on her blog made rape and death threats. “I hope someone slits your throat,” wrote one person. People posted photoshopped images of her with a pair of panties choking her, or a noose near her head. She had enraged scores of men for supporting a call to moderate reader comments, which is of course common practice now. Sierra went public about the threats, writing on her blog, “It’s better to talk about it than to just disappear.”
But disappear is exactly what she did next. Andrew “weev” Auernheimer, a well-known provocateur, hacker, and anti-Semite, circulated her home address and Social Security number online. He also made false statements about her being a battered wife and a former prostitute. Not only did Sierra find herself a target for identity theft, but all the people who had threatened to brutally rape and kill her now knew where she lived. So, she logged off and didn’t return to the web until two months ago. She gave up the book deals, speaking engagements, and even fled her home. An anonymous internet group had chased her off the web and out of tech, and it finally managed to hijack her offline life. ….
…Auernheimer is in jail now. In March, he was sentenced to spend 41 months in prison for releasing the email addresses of 114,000 AT&T customers. He says that all he did was expose a security flaw and that forced the company to secure its systems. According to him, he was doing society a favor. The FBI saw it differently. They called it “identity fraud and conspiracy to access a computer without authorization.”
Immediately, there was a call in the tech sector to rally around Auernheimer. Tech pundits predicted that his prosecution would prevent security analysts from exposing vulnerabilities. Lawyers from the Electronic Frontier Foundation, the group that advocates for internet users and tech companies, jumped in to help with his defense.
“I have this beef with a lot of organizations, including EFF,” Aurora said. “This is another case where they’re saying, ‘The cases we care about are the ones white men are interested in. We’re less interested in protecting women on the web.’” …
… There were plenty of techies who criticized Auernheimer and said he was getting his due. But the debate over his case was larger than anything that has ever occurred regarding internet harassment. That wasn’t lost on the women who have been threatened with rape and death while online. What it came down to for them was that a man who threatens women can generate more concern within the tech industry than female victims of abuse.
“His rise as a folk hero is a sign of how desensitized to the abuse of women online people have become,” Sierra said. “I get so angry at the tech press, the way they try to spin him as a trickster, a prankster. It’s like they feel they have to at least say he’s a jerk. Openly admitting you enjoy ‘ruining lives for lulz’ is way past being a ‘jerk’. And it wasn’t just my life. He included my kids in his work. I think he does belong in prison for crimes he has committed, but what he’s in for now is not one of those crimes. I hate supporting the Free Weev movement, but I do.” …”
From author Elana Maryles Sztokman over at The Jewish Week:
Yom Kippur asks us to forgive, but this a challenge for me because I think forgiving can be much harder than asking for forgiveness — especially if we are expected to forgive without having our pain acknowledged. Women are often expected to just let it all go, to accept the hurtful and abusive practices of the community without their pain ever properly acknowledged and validated. We are sometimes told that our outcry is too provocative, or that it threatens the “unity” of the congregation, or that women’s assertiveness makes people uncomfortable. So many people prefer a self-effacing woman to a woman who values her own dignity. Women’s outcries are too odd, too destabilizing, too unfamiliar, too confronting. So women are sent back to their silent corners behind their curtains, and silently search within their hearts for the ability to forgive.
And so, I will stand before my Creator, along with all the women of Israel, and try to forgive the sins against women. I will ask God to forgive the abusers even though the abusers have not asked me for forgiveness. And I will continue to pray for a better world, in which women are truly valued as equals.
May the year 5775 be a year in which we all feel and appreciate one another’s pain, and we all open our hearts with empathy and compassion.
Read the full piece here.
From the FLP mailbox:
The University of Missouri-Kansas City School of Law anticipates hiring two entry level or early career tenured or tenure-track faculty members with a strong commitment to educating lawyers for the twenty-first century, a lifetime of scholarship, and being part of a collegial, collaborative community. We are particularly interested in candidates with research and teaching interests in the following areas: property, environmental law, real estate, land use, contracts, business and entrepreneurship. Additional areas of interest may include professional responsibility, criminal law, and civil litigation.
UMKC is the urban law school of the University of Missouri System and is located on a beautiful landscaped campus in the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of more than two million people and offers courses leading to J.D. or LL.M. degrees for approximately 500 students. It benefits from its metropolitan location, a large and academically talented pool of student applicants, a strong university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support.
UMKC is an equal access, equal opportunity, affirmative action employer that is fully committed to achieving a diverse faculty and staff. The university will recruit and employ qualified personnel and will provide equal opportunities during employment without regard to race, color, religion, national origin, sex, sexual orientation, age, status as a protected veteran or status as a qualified individual with a disability. To request ADA accommodations, please call the Director of Affirmative Action at 816-235-1323.
Application Process: The School of Law will review the Faculty Appointments Registry maintained by the AALS. In addition letters of inquiry and resumes may be sent to:
Nancy Levit, Chair
Faculty Appointments Committee
UMKC School of Law
500 E. 52nd St.
Kansas City, MO 64110
Applications for the position go through the University at https://myhr.umsystem.edu/psp/tamext/KCITY/HRMS/c/HRS_HRAM.HRS_CE.GBL?SiteId=8
A group that includes some of the world’s best female soccer players has sued FIFA alleging gender discrimination on account of FIFA’s stated plans to have the Women’s World Cup played on turf instead of grass fields. The NYT has coverage here.
Justice Ruth Bader Ginsburg recently spoke with Professor Marina Angel (Temple). You can watch the full 50+-minute interview here.
Source: Here, at Maclean’s.
From the opinion:
“Model Mayhem is a networking website, found at modelmayhem.com, for people in the modeling industry. Plaintiff Jane Doe, an aspiring model who posted information about herself on the website, alleges that two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video. She also alleges that Defendant Internet Brands, the company that owns the website, knew about the rapists but did not warn her or the website’s other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn. The district court dismissed the action on the ground that her claim was barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c) (2012). We conclude that the CDA does not bar the claim. We reverse and remand for further proceedings.”
Read the full opinion here.
One press account notes:
…Summarizing that history for a three-judge appellate panel Wednesday, Judge Richard Clifton noted that the law generally “protects websites from liability for material posted on the website by someone else,” In reviving the case of an aspiring model named in the court record only as Jane Doe, however, Clifton noted that her “claim is different.”
Doe sued Internet Brands Inc. dba ModelMayhem.com in Los Angeles for negligent failure to warn.
She said the company knew but failed to warn users that two men, Lavont Flanders and Emerson Callum, would scan the website to lure victims to the Miami area for bogus modeling auditions, then drug them, rape them and film it to make a porno.
The 9th Circuit found Section 230(c)1 inapplicable Wednesday because Doe does not seek to hold Internet Brands liable as the publisher “of content someone posted on the Model Mayhem website, or for internet Brands’ failure to remove content posted on the website.”
“Flanders and Callum are not alleged to have posted on the website,” the decision continues. Doe instead alleges only that her attackers contacted her through the site by using a fake identity. She seeks to hold the company liable for failing to warn her about how the men used the website to lure in rape victims.
“The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes such content,” Clifton wrote. “Any obligation to work could have been satisfied without changes to the content posted by the website’s users.”
The company “would simply have been required to give a warning to Model Mayhem users, perhaps by posting a notice on the website or by informing users by email what it knew about the activities of Flanders and Callum,” he added.
“Barring Jane Doe’s failure to warn claim would stretch the CDA beyond its narrow language and its purpose,” the 13-page ruling continues. “To be sure, Internet Bands acted as the ‘publisher or speaker’ of user content.”
The judges also emphasized that the company has “specifically denied substantially all of the allegations, including that the assailants contacted plaintiffs through the website.” …
Feminist Law Prof Sarah Deer (William Mitchell) has been named as one of this year’s MacArthur Fellows. Congratulations, Professor Deer!
Over at Jewish Women Watching:
In these days of repentance, ask yourself:
Is the leader of my organization a man?
Is the board of my organization more than 50% men?
Is my rabbi a man?
Plus feminist Rosh Hashana e-cards!
If you are planning to attend the AALS Annual Meeting in January 2015 you may be interested in two law and film AALS Film Committee-sponsored events taking place during the conference. The first, on January 2, at 7:30 p.m. (the first night of the conference), will be a screening of the classic Judgment at Nuremberg, directed by Stanley Kramer, written by Abby Mann, and starring a whole host of great actors, including the very strong female characters Mrs. Bertholt, played by Marlene Dietrich, and Irene Hoffman, played by Judy Garland. The two female characters represent different ways of coming to terms with the events discussed in the film. Mrs. Bertholt is loyal both to her husband and to the narrative maintained by many Germans. She assures Judge Haywood, the head of the international tribunal (played by Spencer Tracy), that she and others like her “did not know” about the atrocities committed by the Nazis. But she also says, “We must forget if we want to go on living.” For her, and others like her, the way forward must include a kind of amnesia. In contrast, Irene Hoffman cannot forget. As someone who suffered under the regime, she has finally has the chance to tell her story and to tell it to someone who will believe her. More here about the background of the film from Professor Douglas Linder’s excellent law and film website (page created by Sean Bradley).
To introduce our film, we are honored to have Professor Harold Koh, Sterling Professor of International Law at Yale Law School. Professor Koh served as Legal Adviser for the Department of State from 2009 to 2013, service for which he received the Secretary of State’s Distinguished Service Award. Professor Koh is an expert in the area of national security, international human rights, and foreign relations, areas in which he has written extensively. I will be moderating a discussion afterward of the film for those interested.
On Sunday, January 4th, at 8 p.m. the Committee will sponsor a showing of the 2011 film Hot Coffee, directed by Susan Saladoff. The film recounts the famous lawsuit Stella Liebeck brought against McDonald’s when she accidentally spilled some of its excessively hot beverage on herself. Hot Coffee is not just a movie about the torts regime. It’s also a film about public relations and the rhetoric that lawyers use in telling stories. Dennis Greene, Professor of Law, University of Dayton School of Law, will moderate the discussion about this provocative and interesting film.
Finally, on Monday, January 5th at 2 p.m. AALS will present a very special event, a Cross-Cutting program, due in great part to the efforts of members of the Law and Film Committee. Professor Michael Olivas, former President of AALS, and current Chair of the Committee, will moderate a panel on the topic Anita F. Hill, Supreme Court Confirmation Hearings, and a Screening of the Film Anita. Speakers include Professors Taunya Lovell Banks of the University of Maryland School of Law, Jessica Silbey, Suffolk University Law School, and special guest Anita Hill, Senior Advisor to the Provost and Professor Social Policy, Law, and Women’s Studies, Brandeis University Heller School for Social Policy and Management. This program also includes a special screening of the film Anita: Speaking Truth To Power (2014).
Professor Hill will also be a special guest at the Section on Minority Groups Luncheon, January 5, 2015, 12 p.m. to 1 p.m.
Hope to see you at one or more of these very exciting events!
Bumping to front, because 9/15 deadline rapidly approaching.
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process. The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of Feminist Judgments:From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received. Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had a feminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here.
Applications are due by September 15, 2014 at 5:00 p.m. eastern. Editors will notify accepted authors and commentators by October 7, 2014. First drafts of rewritten opinions will be due on February 1, 2015. First drafts of comments on the rewritten opinions will be due on March 15, 2015. The editors are in the process of identifying a publisher; publication of the final volume is anticipated for late 2015.
A list of cases tentatively scheduled for rewriting is available here.
Applicants may indicate their preferences among the list of cases. Applicants also may suggest other cases for rewriting. The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.
Courtney G. Joslin, University of California, Davis, School of Law, is publishing Windsor, Federalism, and Family Equality in the Indiana Law Journal. It is also available as UC Davis Legal Studies Research Paper No. 394. Here is the abstract.
The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters — specifically, family status determinations — are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent appearance (although surely not its last) in the litigation challenging Section 3 of DOMA.
This Article accomplishes two mains goals. The first goal is doctrinal. This Article undermines the resilient myth of family law localism by uncovering a long history of federal family status determinations. Although the federal government often defers to state family status determinations, this Article shows that there are many circumstances in which the federal government instead relies on its own family status definitions.
The second goal of this Article is normative. Having shown that Congress does not categorically lack power over family status determinations, this Article begins a long overdue conversation about whether the federal government should make such determinations. Here, the Article brings family law into the rich, ongoing federalism debate — a debate that, until now, has largely ignored family law matters. In so doing, this Article seeks to break down the deeply-rooted perception that family law is a doctrine unto itself, unaffected by developments in other areas, and unworthy of serious consideration by others.
Download the article from SSRN at the link.
From Jessica Litman, John F. Nickoll Professor of Law and Professor of Information
University of Michigan:
I’ve decided to pick up Torts again after ten years away from it. I took a quick look through the Casebooks that would be obvious choices because they are current editions of Casebooks I used when I taught the course in the past, and came away unhappy, not least because the decade’s progress in gender issues does not seem to be reflected in any of them. I’m trolling for recommendations of Casebooks I should consider adopting instead. Any suggestions?
Please contact Professor Litman directly with suggestions: jdlitman (at) umich.edu
From the mailbox:
Canadian Journal of Women and the Law/Revue Femmes et Droit welcomes a new English language editor, Natasha Bakht.Co-editorship of the CJWL is currently shared by Associate Professor Natasha Bakht from the Faculty of Law at University of Ottawa and by Professor Annie Rochette from the Département des sciences juridiques, Université du Québec à Montréal.
Natasha Bakht is an associate professor of law at the University of Ottawa. She served as a law clerk to Justice Louise Arbour at the Supreme Court of Canada and was called to the bar of Ontario in 2003. She teaches Criminal Law and Procedure, Family Law and Multicultural Rights in Liberal Democracies. Professor Bakht’s research interests are generally in the area of law, culture and minority rights and specifically in the intersecting area of religious freedom and women’s equality. She has written extensively in the area of religious arbitration and assisted in Canadian judicial education on issues of religion, culture and diversity. Prof Bakht was an active member of the Law Program Committee of the Women’s Legal Education and Action Fund (LEAF) from 2005-2009. Her most recent writings on the rights of niqab-wearing women were cited by the Supreme Court in the case of R v NS, 2012 SCC 72. She is the current English Language Editor of the Canadian Journal of Women and the Law (CJWL). She is also an Indian contemporary dancer and choreographer.
Canadian Journal of Women and the Law/Revue Femmes et Droit is available online at:
CJWL Online – http://bit.ly/cjwlonline
Project MUSE – http://bit.ly/cjwl_pm
Submission Information – http://bit.ly/cjwlsubmissions
The CJWL/RFD is Canada’s oldest feminist legal periodical. Since it began in 1985, the journal has provided a forum in which feminist writers from diverse backgrounds, speaking from a wide range of experience, can exchange ideas and information about legal issues that affect women. We are looking to build on this tradition and remain committed to reflecting a diversity of political, social, cultural, and economic thinking, unified by a shared interest in law reform.
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, disciplines and jurisdictions who are doing new feminist work. The CJWL/RFD is seeking papers for publication in the following sections of the CJWL/RFD: articles, review essays, commentaries, case comments, research notes, book reviews, and notes on Canadian and International events of interest to our readers. Comments on previously published materials are also welcome. The journal is a refereed publication.
Canadian Journal of Women and the Lawcjwlfirstname.lastname@example.org
Clare Huntington (Fordham) has published an op-ed, Help Families from Day 1, in the New York Times, tied to the opening of universal pre-kindergarten in New York City. Here is an excerpt:
In my research, I have cataloged government policies that undermine parent-child relationships during early childhood. Our legal system, for example, destabilizes low-income, unmarried families, distracting them from parenting. Forty-one percent of children are born to unmarried parents. These parents are usually romantically involved when the child is born, but these relationships often end. Rather than help these ex-partners make the transition into co-parenting relationships, the legal system exacerbates acrimony between them. States impose child support orders that many low-income fathers are unable to pay, creating tremendous resentment for both parents. And courts are not a realistic resource for many unmarried parents, leaving them to work out problems on their own.
Our workplace protection laws likewise do too little to address the needs of families. The dearth of paid parental leave means that many parents have to choose between their job and bonding with their newborn.
Read the full op-ed here.
From the FLP mailbox:
Call for Papers
Special Issue of Gender & History:
Marriage’s Global Past
Sara McDougall, John Jay College of Criminal Justice (CUNY)
Sarah Pearsall, Cambridge University
This special issue of Gender & History explores marriage’s global past from the medieval to the modern era. We solicit contributions that examine aspects of the history of marriage in societies and cultures throughout the world, with special attention to ideas and practices of monogamy and polygamy. Of particular interest is the role of gender in the construction and reconstruction of marriage. We also solicit papers that interrogate the relationship of marriage to various forms of power, including those of state, religious, and colonial institutions as well as the complicated dynamics of authority within households. We welcome both broad, comparative studies and more narrowly-focused ones.
Many imagine marriage as a timeless institution. In fact, as William Alexander wrote in 1779, in his History of Women, From the Earliest Antiquity, to the Present Time, “Marriage is so far from having been an institution, fixed by permanent and unalterable laws, that it has been continually varying in every period, and in every country.” This historian thus acknowledged both the shifting nature of marriage as an institution in a global context, as well as the ways that marriage profoundly shapes, and is shaped by, the role and status of women and men. This special issue similarly assumes varieties of marriages, in terms of both chronology and geography.
This special issue will also interrogate the profound interconnection of gender and marriage, especially with reference to issues of rank, race, age, nationality, culture, religion, and sexuality. Indeed, what might constitute “traditional” marriage in one context might appear radical in another. Indeed, while many contemporary scholars and advocates have called for a redefinition of what is termed “traditional marriage,” recent scholarship has also emphasized how very little is traditional about what is currently described in the Oxford English Dictionary as: “the formal union of a man and a woman, typically as recognized by law, by which they become husband and wife.”
One of the goals of this special issue is to explore how the idea of so-called “traditional marriage” took root and spread in many cultures. Often, of course, it did so even as local social practices deviated, sometimes notably, from this norm. Christian teachings beginning in the first millennium endorsed a particular model of marriage that became not only a centerpiece of Christian faith but also a potent political and social force across the world. In this model, marriage had to be exclusive and indissoluble, a monogamous and enduring commitment between one man and one woman. At that time and in subsequent centuries, as Christian teachings spread throughout the world, this model of marriage came into contact with cultures that had a variety of different ideas about the best ways to marry, and the purpose of marriage. Clashes between different practices of marriage lay at the heart of many early modern and modern encounters. This special issue of Gender & History hopes to offer new interpretations of this complex and fascinating history.
The volume will begin with a colloquium to be held 18-20 March 2016 at Cambridge University. Paper proposals (750 words maximum) are to be submitted by 15 January 2015. Invitations to present at the colloquium will be issued in February 2015. All those presenting must submit articles for pre-circulation by 15 January 2016. Participants will also be expected to read all the other articles and to participate fully in the two-day colloquium. This participation will include commenting on the paper of another participant, as well as more general discussions. After the colloquium, participants will be invited to submit their revised papers for publication. Those accepted by the editors for publication will be expected to submit their manuscripts by 1 September 2016. This timeframe will allow the editors to work with authors to produce the final text of the issue for publication in 2017.
Professor Karima Bennoune’s powerful and inspiring TED Talk® When people of Muslim heritage challenge fundamentalism, posted online this summer, is already nearing one million views. From the TED site (emphasis added):
Karima Bennoune shares four powerful stories of real people fighting against fundamentalism in their own communities — refusing to allow the faith they love to become a tool for crime, attacks and murder. These personal stories humanize one of the most overlooked human-rights struggles in the world.
It must have been a daunting task, to distill into a short talk the essence of the 286 interviews of incredibly brave people she conducted for her book, Your Fatwa Does Not Apply Here: Untold Stories from the Fight against Muslim Fundamentalism (W.W. Norton 2013). Yet she succeeds brilliantly. Her talk can be viewed here.
This work redefines courage in a humbling dimension. Bennoune’s meticulous testament serves as a warning to the complacent and rebukes ‘politically correct’ posturing that makes excuses for the inexcusable and canvasses tolerance for the intolerable.
Additional features on Karima’s TED Talk page include:
Hold the press!
As I was preparing to post this blog, I saw in a press release issued today that Karima’s book Your Fatwa Does Not Apply Here is a finalist for the prestigious Dayton Literary Peace Prize. Inspired by the 1995 Dayton Peace Accords that ended the war in Bosnia, this prize is “the first and only annual U.S. literary award recognizing the power of the written word to promote peace.”
Heartfelt congratulations, Karima!
From the mailbox:
The AALS Section on Women in Legal Education is delighted to announce that Professor Herma Hill Kay, the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley School of Law, is the 2015 recipient of the AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award. Professor Kay is the third recipient of this award; the first award went to Justice Ginsburg in 2013, and the second was given to Professor Catharine MacKinnon in 2014.
Professor Kay’s nominators described her this way:
In her fifty-plus years at Berkeley, Herma has been an award-winning teacher, a productive scholar, a generous colleague, and an inspiring leader. . . . Appointed dean of the law school in 1992, she was the first woman in the school’s history to serve in this capacity. She has served on boards and committees for almost every significant legal academic institution in the country, including the AALS, which she served as President in 1989. . . . Beyond her excellent teaching and support of students, Herma is currently finishing a book on the first fourteen women law professors in the United States. She also continues as a principal author on two casebooks: Text, Cases and Materials on Sex-Based Discrimination (Ruth Bader Ginsburg was one of her original co-authors) and Conflict of Laws: Cases-Comments-Questions. . . . Herma was an active participant in the women’s rights movement. As a member of Governor Edmund Brown’s Commission on the Family, she paved the way for California’s adoption of a no-fault divorce statute in 1969, and later served as co-reporter of the Uniform Marriage and Divorce Act. Herma was also active in the passage of California’s therapeutic abortion statute and testified in favor of California’s ratification of the Equal Rights Amendment. Herma has generated opportunities for generations of Berkeley Law graduates, men as well as women, to engage in legal activism on behalf of women and other underrepresented groups. Indeed, to honor Herma’s legacy at Berkeley and in the profession, in 1999 the Boalt Hall Women’s Association established the Herma Hill Kay Fellowships. For over ten years, the fellowships have been used to encourage and support public interest work benefitting women. . . . Throughout her career, Herma has been a pioneer, blazing a trail for all women in the legal academy.
The Section will present Professor Kay with her award at the Annual Meeting Section Luncheon in Washington, D.C., on Saturday, January 3, 2015, from 12:15 to 1:30 p.m. at the Marriott Park Wardman Hotel. We are happy to note that Justice Ginsburg is also scheduled to be at the luncheon to formally accept the award she received in 2013. We hope that you will be able to attend.
Thank you to all who nominated individuals for the award. We had a large number of wonderful nominations; it was a pleasure to read about the many valuable contributions of Section members.
Congratulations again to Professor Kay!
The AALS Section on Women in Legal Education Executive Committee
Kirsten Davis, Chair
Wendy Greene, Chair-Elect
Bridget Crawford, Immediate Past-Chair
Rebecca Zietlow, Secretary
Kerri Stone, Treasurer
Cindy Fountaine, Member-At-Large
From the FLP mailbox:
Dear Friends and Colleagues,
We would like to invite you to a working-paper conference that we are planning to hold in the days before the AALS mid-year family law conference in Orlando next summer. Our group, the Family Law Scholars and Teachers Conference, has been known in the past as the Emerging Family Law Scholars and Teachers Conference (EFLS). That group held an annual conference for the past eight years, but until now has been limited to junior scholars. This year we are opening the conference to scholars at all levels of seniority, and are hoping that many of you can join us.
The conference will take place on Monday, June 22, 2015, in Orlando, Florida—the day of the AALS workshop’s opening reception. Since our conference will be held earlier that day, these two events will not conflict. We will be hosted for the day by Florida A&M University College of Law, which is just a few minutes’ drive from the Doubletree Hotel that hosts the AALS workshop.
For those of you who are not familiar with the EFLS conference, the main purpose of the meeting is to allow family law scholars to receive detailed, constructive feedback on their work in a supportive, collegial environment. In addition, the meeting is a forum to meet others in the field and talk about teaching, service, developments in the law, and other relevant themes raised by participants. Scholars present their work—either in its very initial form (an incubator session) or in its more developed form (a work-in-progress session)—in intimate groups. We have a very strong norm that participants carefully read drafts of the papers in advance of the sessions, and there are no formal presentations. Many of us feel that this has been a very meaningful conference that significantly contributed to our development as scholars and teachers.
Although we have decided to open up the conference to scholars at all levels, we are still committed to preserving the conference’s intimate and supportive character. Therefore, we can accommodate only 45 participants, selected on a first-come-first-served basis. Additionally, although we will try to fulfill all requests for an incubator or work-in-progress session, if space is limited, we will give some preference to junior scholars. As always, there is no registration fee, and people only need to pay for their meals and accommodation. The Doubletree Hotel will give the discounted rate for rooms a couple of days prior to the conference.
We will open up the registration and submission, via TWEN, in February 2015. For now, if you would like to receive announcements about the conference, please sign in on our TWEN page. To do that, go to “Add Courses” and select “Family Law Scholars and Teachers 2015 Conference.” If you have already selected the course in 2014, we will migrate your e-mail automatically and you do not need to register again. You should expect to receive an e-mail with further information about submissions and registration in February 2015.
FLST Planning Committee,
Anibal Rosario Lebron
Jessica Dixon Weaver
Carmen G. Gonzalez, Seattle University School of Law, has published Women of Color in Legal Education: Challenging the Presumption of Incompetence in the Federal Lawyer (July 2014). Here is the abstract.
Female law professors of color have become the canaries in the academic mine whose plight is an early warning of the dangers that threaten legal education and the future of the legal profession. As legal education is restructured in response to declining enrollments, tenure itself is coming under fire, and downsizing and hiring freezes are becoming more common. Female law professors of color, who tend to be concentrated at middle- and lower-tier law schools, are particularly vulnerable. But this vulnerability may foreshadow the predicament of all but the most elite law faculty if academic employment becomes increasingly precarious. This article discusses the importance of faculty diversity to the health of the legal profession, and examines the barriers that female law professors of color encounter in the academic workplace. Drawing upon the author’s co-edited book, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012), the article sets forth best practices that can be adopted by academic leaders to remove these barriers, to create an inclusive and equitable campus climate, and to ensure that the upheavals in legal education do not sabotage these efforts. The article includes recommendations for the American Bar Association, the Association of American Law Schools, and US News & World Report.
Download the essay from SSRN at the link.
From the FLP mailbox:
Call for Papers – Friday September 19th Deadline
Feminist Legal Theory Collaborative Research Network
at the Law and Society Association Annual Meeting
Seattle, May 28 – 31, 2015
Dear friends and colleagues,
We write to invite you to participate in panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2015.
Information about the Law and Society meeting (including registration and hotel information) is at: http://www.lawandsociety.org/Seattle2015/seattle2015.html
Within Law & Society, the Feminist Legal Theory CRN seeks to bring together scholars across a range of fields who are interested in feminist legal theory. There is no pre-set theme to which papers must conform. We would be especially happy to see proposals that fit in with the LSA conference theme, which is the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities. We welcome proposals that would permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN or the Gender, Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.
Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while proposals may reference work that is well on the way to publication, we are particularly eager to solicit proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.
Our panels will use the LSA format, which requires four papers, but we will continue our custom of assigning a commentator for each individual paper. A committee of the CRN will assign individual papers to panels based on subject and will ask CRN members to volunteer to serve as chairs of each panel. The chair will develop a 100-250 word description for the session and submit the session proposal to LSA before their upcoming deadline on October 15, so that each panelist can submit his or her proposal, using the panel number assigned. Chairs will also be responsible for recruiting commentators but may wait to do so until panels have been scheduled later this winter.
If you would like to present a paper as part of a CRN panel, please submit a 400-500 word abstract, with your name and a title, on the Feminist Legal Theory CRN TWEN page (details provided below). If you would like to serve as a chair or a commentator for one of our panels, or if you are already planning a LSA session with four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let Cynthia Godsoe know (email@example.com). In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or the roundtable discussion. If you have an idea that you think would work well in one of these formats, please
let us know.
TWEN is an online resource administered by Westlaw. If you have access to Westlaw but haven’t yet registered for the TWEN page, signing up is easy:
Sign onto Westlaw, hit the tab on the top for “TWEN,” then click “Add Course,” and choose the “FLT CRN 2014” from the drop-down list of National TWEN Courses.
Once you arrive at the Feminist Legal Theory CRN TWEN page, look to the left hand margin and click on “Law & Society 2015 – Abstracts.” If you do not have a Westlaw password, please email Aziza Ahmed at Az.Ahmed@neu.edu and ask to be enrolled directly.
Please submit all proposals for paper presentations by Friday, September 19. This will permit us to organize panels and submit them prior to the LSA’s deadline on October 15. If we cannot accept all proposals for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.
We hope you’ll join us in Seattle to discuss the scholarship in which we are all engaged and connect with others doing work on feminism and gender.
LSA Planning Committee
Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School. You can find out more about the Project here. This blog was originally posted on the Center for Gender & Sexuality Law Blog.
Yesterday the Obama Administration released the long-awaited updates to the regulations that govern the availability of an accommodation for religious objectors to the Affordable Care Act’s contraceptive coverage requirement. They came in two parts:
1. A final interim regulation that allows objecting religiously-affiliated organizations who decline to fill out the original form required for an exemption to instead notify the government in writing that they object and to provide the government the contact information for their insurance company or third-party insurer.This, in effect, is the Wheaton College regulation. After such notification is received HHS will then take on the responsibility of contacting that insurance company or third-party insurer to inform them that they must provide contraceptive coverage to the eligible employees at no cost to the employer in question. This regulation is effective immediately, but comments may be submitted for 60 days, after which a final regulation will be issued (which may or may not end up differing from the interim final regulation).
2. A proposed regulation to govern the process for closely-held corporations or non-corporate-form businesses to seek an accommodation from the contraceptive coverage requirement. This is the Hobby Lobby regulation. Under the regulation, closely-held for-profit businesses that object would have access to the same accommodation as non-profit organizations (i.e., the insurance company or third-party insurer must provide the coverage at no cost to the eligible employees or the company). The regulation is not in effect yet, and the government is actively seeking comments as to a number of elements, including how the regulations should define a closely-held corporation, and how the administering departments should evaluate the existence and scope of a religious objection (if at all). Comments may be submitted for 60 days, after which the government will issue a final regulation.
If you’re interested in the details of how this will all work, logistically, Marty Lederman has written up a nice concise explanation here; no reason to reinvent the wheel on that score. What I want to draw attention to in this post is the fact that none of these accommodations will satisfy the objectors who seem to believe that any type of notification to the government makes them impermissibly complicit in what they believe to be a sin. This may well turn out to be some of the for-profit businesses as well as some of the non-profit organizations. As I explained when the order was issued, this was always a problem with the logic of the Wheaton College order, and nothing in these accommodations will solve that problem. Instead, at least some of the plaintiffs will continue to maintain their suits on the grounds that nothing apart from a full exemption will satisfy their religious obligations, and the courts will likely end up drawing the line somewhere, which makes the entire Wheaton College order and all this rigamarole seem fairly silly. If courts are going to have to end up telling these plaintiffs that they have to notify the government in some way even if they believe that violates their religious beliefs, then it’s hard to understand why the Supreme Court shouldn’t have just required them to fill out the original form and be done with it. The alternative, that courts will eventually grant blanket exemptions to some of these plaintiffs, is an unacceptable outcome given the great harm that such an exemption would impose on the women covered by the insurance plans at issue.
From the FLP mailbox, this CFP:
CALL FOR PAPERS: “APPLIED FEMINISM AND WORK”
The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Eighth Annual Feminist Legal Theory Conference. This year’s theme is “Applied Feminism and Work.” The conference will be held on March 5 and 6, 2015. For more information about the conference, please visit law.ubalt.edu/caf.
As the nation emerges from the recession, work and economic security are front and center in our national policy debates. Women earn less than men, and the new economic landscape impacts men and women differently. At the same time, women are questioning whether to Lean In or Lean Out, and what it means to “have it all.” The conference will build on these discussions. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on the intersection of theory and practice to effectuate social change. The conference seeks papers that discuss this year’s theme through the lens of an intersectional approach to feminist legal theory, addressing not only the premise of seeking justice for all people on behalf of their gender but also the interlinked systems of oppression based on race, sexual orientation, gender identity, class, immigration status, disability, and geographical and historical context.
Papers might explore the following questions: What impact has feminist legal theory had on the workplace? How does work impact gender and vice versa? How might feminist legal theory respond to issues such as stalled immigration reform, economic inequality, pregnancy accommodation, the low-wage workforce, women’s access to economic opportunities, family-friendly work environments, paid sick and family leave, decline in unionization, and low minimum wage rates? What sort of support should society and law provide to ensure equal employment opportunities that provide for security for all? How do law and feminist legal theory conceptualize the role of the state and the private sector in relation to work? Are there rights to employment and what are their foundations? How will the recent Supreme Court Burwell v. Hobby Lobby and Harris v. Quinn decisions impact economic opportunities for women? How will the new EEOC guidance on pregnancy accommodation and the Young v. UPS upcoming Supreme Court decision affect rights of female workers?
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 work 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 5, 2015, with a workshop. This workshop will continue the annual tradition of involving all attendees as participants in an interactive discussion and reflection. On Friday, March 6, 2015, the conference will continue with a day of presentations 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, Senators Barbara Mikulski and Amy Klobuchar, and NOW President Terry O’Neill.
To submit a paper proposal, please submit an abstract by Friday, 5 p.m. on October 31, 2014, to firstname.lastname@example.org. 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 2015. 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 6, 2015. 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 symposium-length or article-length papers will be due no later than February 13, 2015. Abstracts will be posted on the Center on Applied Feminism’s conference website to be shared with other participants and attendees. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate, as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com.
I’ve been to the Feminist Legal Theory Conference at Baltimore and find that it hosts high-quality programming, so definitely check this out!
When it comes to protecting themselves from HIV, women need more options.
About of 84 percent of all women diagnosed with HIV contract the virus through heterosexual sex. And right now, the female condom is the only contraception available that stops HIV — and is controlled by the woman. These devices can be hard to find and tough to use.
Now engineers at the University of Washington in Seattle have come up with an experimental technology that may one day make HIV protection for women as easy as using a tampon.
For years, scientists have been developing gels or creams that contain anti-HIV drugs known as microbicides. But these topical ointments can be problematic. They’re messy to apply. They can leak. And the medication absorbs slowly, so women have to use the gels or creams at least 20 minutes before sex.
A new delivery method could solve all these problems, say bioengineers Cameron Ball and Kim Woodrow. The secret? An electrically spun fabric.
Read the full story here.
Later this month, Oxford University Press will publish Technologies of Sexiness, a new book by Adrienne Evans (Media, Coventry University, UK) and Sarah Riley (Psychology, University College Wales, Aberystwyth). Here is the publisher’s description:
Key cultural shifts have enabled a “new sexualization” of women. Neoliberal, consumerist, and postfeminist media culture have shaped ways of understanding female sexuality, embodied by the figure of the choosing, empowered, entrepreneurial consumer citizen-woman, whose economic capital determines feminine success (and failure). Informed by older constructs of privilege such as class, sexuality, race and (dis)ability, this version of sexiness also constrains by folding contemporary femininity back into previous panics about youth, excess, “bad” consumption, and appropriate feminine behavior
In Technologies of Sexiness, Adrienne Evans and Sarah Riley identify how current understandings of sexiness in public life and academic discourse have produced a “doubled stagnation,” cycling around old debates without forward momentum. Developing a theoretical and methodological framework, they expand on the notion of a “technology of sexiness.” They ask what happens and what is lost when people make sense of themselves within the complexities and contradictions of consumer-oriented constructs of sexiness. How do these discourses come to “transform the self”?
This book provides a framework for understanding how women make sense of their sexual identities in the context of a feminization of sexual consumerism. The authors analyze material collected with two groups of women: the “pleasure pursuers” and “functioning feminists,” who broadly occupy positions across the pre- and post-Thatcher eras, and the changes brought about by the feminist movement. As one of the first book-length empirical studies to explore age-related femininities in the context of what “sexiness” means today, the authors develop a series of insights into various “technologies of the self” through analyses of space, nostalgia, and claims to authentic sexiness.
More details here.
Katie Rose Guest Pryal (UNC) writes here for Chronicle Vitae on “Shattering the Madness Monolith: On the Intersections of Race, Gender, and Psychiatric Disability. She also wrote another powerful column on mental health and the academy, “She’s So Schizophrenic!”: How Not to Alienate Your Colleagues with Psychiatric Disabilities.
My guess is that most of us have colleagues who suffer from mental illness, but they may not be “out.” How can we extend a helping hand without causing discomfort? What do we need to do to make it more acceptable to get help? To be help?
Carys J. Craig, Osgoode Hall Law School, is publishing Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self in Protecting and Promoting Diversity with Intellectual Property Law (Cambridge: Cambridge University Press, forthcoming). Here is the abstract.
Copyright law is fundamentally concerned with the value of cultural works — both the recognition and the creation of this value. Yet it is seldom acknowledged that copyright law makes or requires any value judgment in the sense of an aesthetic evaluation of copyright’s subject matter. Indeed, it is often emphasized that copyright protects original works of authorship regardless of their quality or merit. That copyright protection demands the satisfaction of only the most minimal of qualitative standards does not, however, dispose of the larger claim that forms the basis of this chapter: our copyright system is dominated by a particular aesthetic theory or idea. Any attempt to justify the rights established by the copyright system over artistic works must presuppose an aesthetic theory of sorts in order to explain what is protected and why (as well as what is not protected or permitted, and why not). While not based on the quality of copyright’s subject matter, these explanatory efforts will point to its nature as original literary or artistic expression, which thus deserves or requires some form of legally recognized reward. We simply cannot justify the copyright system without ascribing some value to the particular expressive works in which it vests, and the creative acts and actors that it privileges. Seen in this light, it can hardly be claimed that copyright law is aesthetically agnostic. In this chapter, my goal is to uncover, in copyright’s most basic patterns, the hidden aesthetics of copyright law as viewed from a critical feminist perspective. My suggestion is that conceptions of aesthetic value and its production are stitched into the very fabric of copyright law, defining its contours and determining the purposes it serves — and what is more, these conceptions of aesthetic value are fundamentally gendered.
Download the essay from SSRN at the link.
Association of American Law Schools
Call for Presentations and Papers
AALS Workshop on Next Generation Issues on Sex, Gender and the Law
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
We are seeking proposals for presentations and papers for the 2015 Workshop: Next Generation Issues of Sex, Gender and the Law, scheduled to take place June 24 – 26, 2015 at the Doubletree by Hilton at the Entrance to Universal Studios in Orlando, Florida.
After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider. To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women’s poverty, and women in legal education.
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women’s equality. An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women’s lives. We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women’s needs. Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women’s equality and the law.
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women’s poverty, and women in legal education. We will organize the presentations into panels based on the subject matter of the proposals. Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume. Please e-mail these materials to firstname.lastname@example.org by September 15, 2014. We will notify selected speakers by November 1, 2014.
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments. Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women’s poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume. Please e-mail these materials to email@example.com by September 15, 2014. We will notify selected speakers by November 1, 2014.
Faculty members at AALS member schools are eligible to submit proposals.
Fellows at AALS member schools are eligible to submit proposals along with current curriculum vitae.
Visitors without faculty status at an AALS member law school and adjunct faculty members at AALS member schools are not eligible to submit proposals. Faculty at U.S. non-member law schools are not eligible to submit proposals. We do welcome your attendance at the workshop.
Proposers and panelists pay the registration fee and expenses.
Please direct questions regarding this Call for Papers and Presentations to firstname.lastname@example.org.
Planning Committee for the 2015 Workshop on Next Generation Issues of Sex, Gender and the Law:
Angela Onwuachi-Willig, University of Iowa College of Law, Chair
William Eskridge, Yale Law School
Aya Gruber, University of Colorado School of Law
Kimberly Yuracko, Northwestern University School of Law
Rebecca Zietlow, University of Toledo College of Law
FWIW, I’m thrilled to see that this AALS program is using a broad call for participation. Too many AALS programs are insider-driven and characterized by a kind of “clubbiness” that can be off-putting to newcomers. Great to see that this Planning Committee is doing things differently!
I admit I find the program’s title a bit awkward…not sure what “Issues on Sex, Gender and the Law” (emphasis mine) are, but it looks like the organizers struggled a bit with the wording, too, because the call later refers to the “Planning Committee for the 2015 Workshop on Next Generation Issues of Sex, Gender and the Law” (emphasis mine). “On” or “of”…whatever. Equality matters, regardless of prepositions. Looks like a great program.
Vermont Law School’s website is hosting a memorial page/on-line “Remembrance Journal” here for Cheryl Hanna:
Professor Cheryl Hanna was a beloved teacher and role model to many within and beyond the Vermont Law School community. Her untimely death is a profound loss to our faculty, staff, students, and alumni. Our hearts are with her family.
This online forum is a space for sharing your thoughts, condolences and memories of Professor Hanna, to be shared with her family and with the Vermont Law School community.
Funeral services will be held this Friday. Details here.
She is very, very missed. May her memory be a blessing.
Professor Cheryl Hanna (Vermont) has died.
Vermont Dean Marc Mihaly sent an email to the Vermont Law School community earlier today. It stated in part:
It is with the most profound sorrow that we announce the untimely death of our dear colleague Professor Cheryl Hanna.
Professor Hanna was a beloved teacher, a role model to many within and beyond the Vermont Law School community, and a powerful force for innovation. We are heartbroken. She will be deeply missed.
A graduate of Harvard Law School, Professor Hanna was an expert in constitutional law, the United States Supreme Court, and women and the law. Her scholarship has been published in leading journals, including the Harvard Law Review, Yale Law Journal, and Michigan Journal of Gender and the Law. Professor Hanna was also a frequent media commentator, including on Vermont Public Radio and WCAX-TV 3.
She consulted on constitutional cases and represented public interest organizations through the filing of amicus briefs in cases before state and federal courts. This included the amicus brief she and Vermont Law School students wrote on behalf of the Vermont Commission on Women in Dreves v. Hudson, the first case implicating Vermont’s Equal Pay Act. The book she co-authored, Domestic Violence and the Law: Theory and Practice, was the leading casebook on violence against women.
Professor Hanna is survived by her husband and two children.
The Burlington Free Press has coverage here.
I will pass along more information as I receive it.
May her memory be a blessing.
UPDATE 7/29/14: A funeral for Professor Hanna will be held on Friday, August 1, 2014, at 3:00 p.m. in the Ira Allen Chapel at the University of Vermont in Burlington. Details here. Vermont Law School has a memorial web page here.
Polly Morgan is a Lecturer in Law at the University of East Anglia School of Law. UAE is located in Norfolk, England. She recently answered these questions for Feminist Law Professors.
What is your educational and professional background?
I hold an undergraduate degree in law, a master’s degree in family law and policy, and also the professional qualifications to practise law as a solicitor. (In the UK, Law is an undergraduate degree followed by a further stage of more practical procedural training to become either a solicitor or a barrister.) I spent about eight years in practice as a family solicitor, which culminated in my co-founding my own specialist family law firm. However, in 2012 I was approached to teach family law at the University of East Anglia, and am now full-time faculty. I do not regret leaving practice, although I sometimes miss being obliquely rude in that way that lawyers can do so well.
What courses do you teach?
I teach two undergraduate modules, Child Law and Adult Relationships Law. Both are very popular options which look at different aspects of the state’s relationship to the family and in both we make use of a range of feminist perspectives. In my Adult Relationships Law module, for example, I draw on readings by fellow Feminist Law Professors Nancy Polikoff, Elizabeth Scott, Martha Fineman, and Nicola Barker, among others.
I also teach on two first year undergraduate modules, Law in Practice (which draws on my professional skills) and Legal Method, Skills, and Reasoning. As part of Law in Practice, I deliver some lectures on feminist legal theory. I have to begin my lectures by explaining what feminism is, and what it is not.
How does feminism influence your teaching/scholarship/service?
During my years in practice I represented both men and women in disputes over children or on divorce. I always did so from an inherently feminist perspective, in that I believe that fathers should take part in child care and that women’s lesser economic position is partly explained by parenting responsibilities falling mainly on them. One of the things we analyse in Child Law is why there is a perception that men are treated less favourably on matters relating to contact with their children, and we consider the extent to which this is traced back to the status quo of parenting arrangements during the parents’ relationship.
I also believe that women, post-divorce, should be able to become financially independent, but that this is not always possible and should not be at the expense of recognising what our Supreme Court has called ‘relationship-generated disadvantage’, i.e. that overwhelmingly during relationships women sacrifice their career and earning opportunities in a way that men do not. It was a proud moment when a male Conservative party candidate submitted an essay that called for the abolition of marriage on the grounds that it was oppressive to women.
I gain enormous pleasure from teaching and I like to believe that I get students to think, and that that thinking ability will enable them to question the status quo throughout their lives. There is a feminist student group at the university and in the city, and it is nice to see young women, and a few men, engaged and enthusiastic about feminist issues.
When did you first make a connection between feminism and the law?
My mother’s career opportunities were limited by gender: she wanted to go to university, but her parents sent her to secretarial college. She worked her way up from there. When I was about eleven, my parents swapped roles: my father gave up work outside the home to do part-time work that fitted around the child care and housework, and my mother went to work outside the home. So I grew up with the belief that traditional gender roles were not fixed and presented no barrier to me.
However, I don’t think I really identified as a feminist until after my first degree. It was at Master’s level that I first engaged with feminist legal scholars, for example Lenore Weitzman on post-divorce financial outcomes, and started to question the role of law. I began to see how law creates and/or perpetuates traditional gender roles and privileges the powerful. Law is not neutral, I tell the students.
What is the “feminist climate” at your school? Does your self-identification as a feminist impact the way you are perceived by students, colleagues or university administrators?
After working in a law firm which thought Mad Men was a guide to employee relations, the academic environment is a refreshing change. A (male) former head of department laid in a Law School stock of the feminist bestseller (yes, there is such a thing) How to Be a Woman by Caitlin Moran, and emailed the entire law student body to invite them to borrow a copy: a valiant attempt to introduce students to the notion that feminism may have something to offer them. I am thus fortunate in that throughout the university there are feminist colleagues, although of course there are also those who believe in equality but do not identify that as being related to feminism. So it is necessary to educate colleagues as well as students.
What are you working on now?
I am trying to establish a Masters level module in Gender, Sexuality, and Law as part of an interdisciplinary Masters in Gender Studies. I am also updating my Adult Relationships course materials on same-sex marriage from ‘what if’ to ‘what now?’ following the introduction of same-sex marriage in England and Wales in 2014 as an alternative to civil partnerships.
I have also recently been appointed to lead the Law School’s Athena Swan submission. Athena Swan is a national programme that promotes women’s career progress in science, technology and medicine, but which has now been widened to non-STEMM subjects, including Law. As part of this, I will be analysing women’s progression and opportunities as faculty members and as students, and making recommendations to address some of the barriers they face.
Could you recommend at least one book/article/theorist to law students who are interested in feminism’s relationship to the law?
One thing I do give my students is Catharine Mackinnon’s 1989 Yale Law School address, in which she talks about the responsibility of those practising law to ‘hold yourselves accountable including for the uses to which you are put.’
More than 50 legal scholars today strongly urged President Obama to resist calls for an overly broad religious exemption in a proposed executive order prohibiting sexual orientation and/or gender identity discrimination by federal contractors.
The effort is being spearheaded by Columbia Law School’s Center for Gender and Sexuality Law, as part of its recently launched Public Rights/Private Conscience Project. The new initiative is one of the first independent law school projects aimed at re-conceptualizing religious exemptions and the law, particularly as the exemptions impact reproductive and sexual liberty and equality rights.
In a letter signed by 54 legal scholars from around the country, Columbia Law School Professor Katherine Franke, Public Rights/Private Conscience Project Director Kara Loewentheil, and Brooklyn Law School Professor Nelson Tebbe argue that the broad exemption urged by some religious leaders and several law professors is not required by the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act (RFRA), or accommodations of religious liberty in other federal non-discrimination laws, including Title VII.
“The Supreme Court’s recent opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors,” said Franke. “Including an exemption for religious discrimination in an executive order securing work-place rights for LGBT people sends a message that the federal government has a more ambivalent commitment to sexual orientation and gender-identity based discrimination as compared with other forms of workplace equality.”
Loewentheil said the letter “reflects an emerging consensus among legal scholars that a proper balance between religious liberty and equal rights can be struck without creating carve-outs for religion in new laws protecting LGBT or reproductive rights.”
“We are delighted that many prominent scholars in the legal academy signed this letter,” Loewentheil said. “The views of these scholars provide responsible counsel to the White House as it considers the wording of an important new executive order securing LGBT and gender identity non-discrimination rules for employers who receive public funding.”
The story and a host of links are available at TaxProf Blog. One question I have is whether the man accused of sexual harassment and retaliation will continue to teach students. I assume the answer is yes, but given the nature of the allegations against him, I wonder whether this is an appropriate outcome. Based on what I read about the dispute, which is all I know about it, Ray Ku showed a lot of courage by stepping up and reporting activities that he believed were inappropriate. The price he appears to have paid for that was significant. Will anybody else step up if the misbehavior, assuming it occurred, continues?
By: Kara Loewentheil
Kara Loewentheil is a research fellow and the director of the Public Rights/Private Conscience Project in the Center for Gender and Sexuality Law at Columbia Law School. You can see her interview on Bloomberg News with more of her thoughts on the Hobby Lobby decision here.
The Supreme Court is supposed to be the final word on our legal questions, but apparently it reserves the right to change its mind at a moment’s notice. When the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores on Monday June 30th, holding that the Religious Freedom Restoration Act required the government to allow for-profit businesses with religious objections to contraceptives to opt out of complying with the Affordable Care Act’s contraceptive coverage requirement, the majority opinion stressed at length the idea that the law was not narrowly tailored because the government could have offered for-profit businesses the same accommodation available to non-profit religiously-affiliated organizations. Under the regulations implementing the ACA, religiously-affiliated non-profit organizations are allowed to certify that they object to providing insurance coverage for contraception. They send that form to the government and to their insurance company, at which point their insurance company is required to pay for the coverage out of its own funds. The majority opinion relied on the existence of this program as proof that the government had a better option available to achieve its goal of universal contraceptive coverage. As Justice Alito wrote, that accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.”
One might have thought this meant that the accommodation was, in fact, a legally acceptable system that would withstand a challenge under RFRA (given the lack of enforcement or monitoring in the regulation, it’s far from a morally acceptable system anyway). But only three days later the Supreme Court has issued an order enjoining the government from enforcing the requirement that a non-profit religiously-affiliated organization certify that it objects to coverage. There are almost 80 cases pending in the lower federal courts brought by non-profit organizations that claim that even signing the certification form is a substantial burden on their free exercise, because they believe that signing the form “triggers” the insurance company to provide the contraceptives and thereby makes them – the nonprofit organization – complicit. And not just complicit, but socomplicit it violates their religious freedom. Let me just be clear again, we’re talking about signing a form, the entire purpose of which is to excuse the organization from being required to pay for contraceptive coverage. The majority held that these organizations need not sign the form nor send the required notifications. Instead the majority arbitrarily rewrote the applicable regulations, making it the government’s responsibility to make sure that women receive seamless contraceptive coverage once they have received some kind of undefined written notice that an organization objects. (One presumes that a scrawled note on a cocktail napkin will suffice).
So why should we care? After all, what does it matter whether the organizations have to sign a form or send some other kind of written notice? It matters for a few reasons. First, it matters for the actual women employed by these religiously-affiliated organizations, which includes Catholic hospitals, religiously-affiliated universities, and other large complicated institutions that employ thousands and thousands of women. The accommodation already suffered from a lack of monitoring and enforcement mechanism, and now objecting institutions need not even sign a standard form, and the government is supposed to somehow ensure that all these women don’t fall through the cracks, if it chooses to do so – the order doesn’t require it to do so, and neither do the current regulations. We can hope for the best, but should be prepared for the worst on that front.
The dangers of this order go far beyond those women though. Misguided as the opinion in Hobby Lobby was – inaccurate and poorly-reasoned though it might have been – at least the objectors were arguably requesting relief from an actual legal requirement. The objectors in these non-profit cases are already being given an accommodation. The idea that signing a form that allows one to get an exemption can itself be a substantial burden on one’s free exercise boggles the mind. It makes a mockery of the substantial burden standard – forget the word “substantial,” even of the word “burden.” It effectively deprives the test under RFRA of any real meaning, and hollows out the court’s evaluative role in adjudicating these claims. If signing a form that gives you access to an exemption is a substantial burden, then anything is a substantial burden, and there’s absolutely no check on what religious objectors can refuse to do.
The only silver lining is that these cases – and this result – make clear what we have long suspected: religious objectors to the contraceptive coverage requirement (and other equality measures) aren’t looking for a reasonable compromise. They are looking to reject secular governmental authority altogether in favor of obedience to a religious law, regardless of the fact that the vast majority of the actual individuals affected do not share their religion or their beliefs. It’s the tyranny of the minority, and it looks like it may be here to stay.
 Burwell v. Hobby Lobby Stores, slip. op. at 34 (available at http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)
 I say arguably because there was a strong argument in the case, first proposed by Marty Lederman but not accepted by the majority, that in fact there was no legal requirement to provide insurance coverage for contraception – rather there was a choice to provide comprehensive coverage or to provide no coverage and pay a tax to subsidize insurance on public exchanges instead. See e.g. Marty Lederman, http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html.
As a health law professor who teaches a course on women’s health care issues, I have been following the ACA contraceptive mandate debate with great interest and more than a little trepidation. I admit to rather mixed feelings about the outcome: disappointment, relief that the decision wasn’t broader (at least on its face), concern for what comes next, and frustration regarding the choices that created this situation in the first place. With the benefit of hindsight, I can’t help wishing we’d found another way right from the start.
Many aspects of the contraceptive mandate debate have long struck me as curious. For one thing, it’s clear that the government does indeed have less restrictive alternatives to ensure broad access to low- or no-cost contraceptives. The Obama Administration could have extended to closely-held religious corporations the same accommodation it offered to religious non-profits, which essentially requires insurers to cover these costs. Whether the Administration should do so now, before the Court has squarely addressed the wide-open question of the sufficiency of that accommodation, is a different matter, however. Others have suggested alternative means to provide access to contraceptives, ranging from government-funded distribution to tax credits. Each has disadvantages, of course, and I can understand how the mandate would appear to be a more efficient option. But that choice relied heavily on the assumption that RFRA would not be applied to corporations – an assumption that, in a post-Citizens United world, was a risky proposition. * * *
Does Hobby Lobby spell the end of the ACA, or the end of contraceptive access for women? Clearly not. But with the benefit of hindsight, I can’t help wishing we’d found another way right from the start.
Read the full post here.
The Guttmacher Institute has issued a statement on the Hobby Lobby case. Here is an excerpt:
[D]espite its potentially limited impact, the decision is very troubling for multiple reasons. Chief among them is the fact that five Supreme Court justices singled out contraception as a health service against which private companies may discriminate. More than 99% of women aged 15–44 who have ever had sexual intercourse have used at least one contraceptive method.
As far as finding a less restrictive means to ensuring coverage, the Court suggested that employees of companies that reject covering contraceptives could come under the umbrella of an existing accommodation for a broad range of nonprofit organizations (such as universities, hospitals or social relief agencies) that object to contraception on religious grounds. The Obama administration last year set up a mechanism so that employees of such organizations will have seamless coverage of contraceptive services without out-of-pocket costs. (A narrow group of religious employers closely tied to houses of worship are exempt entirely.)
Under this accommodation, coverage is arranged through a third-party insurer or administrator and, as the administration puts it, “an eligible organization need not contract, arrange, pay or refer for contraceptive coverage” to which they object on religious grounds. The Court’s majority opinion indicated that such a mechanism would not violate the beliefs expressed in these cases by the for-profit employers that challenged the requirement. However, this accommodation—as applied to nonprofits—is itself subject to numerous court challenges, one or more of which will likely be heard by the Court during its next term.
The Obama administration has not yet indicated what specific actions it might take in response to the Court’s ruling, but it has stated that it “will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.” The administration could take the Court’s suggestion and expand the existing accommodation to closely held for-profit corporations that assert a religious objection to some or all contraceptive services and methods. Congress, too, could act through new legislation to protect employees and their family members from their employers’ objections.
It is noteworthy that, given the opportunity to do so, the Court’s conservative majority did not reject the premise that the government has a compelling interest to promote contraceptive access, instead stating that for purposes of argument, “we assume the HHS regulations satisfy this requirement.” Indeed, in an impassioned dissent, Justice Ruth Bader Ginsburg—citing the Guttmacher Institute’s amicus brief —made it clear that the government’s case for the contraceptive coverage policy is very strong. Decades of scientific evidence and the life experiences of millions of women show that contraception enables women to prevent unintended pregnancies and to plan and space wanted pregnancies. That, in turn, has numerous health benefits for mothers and babies and promotes women’s educational, economic and social advancement.
Read the full statement here.
There has been quite a hubbub lately over Hillary Clinton’s criminal defense of an alleged child rapist in 1975, when she was 27 years old and just starting out as a legal aid attorney. (See, e.g., here.) Her client was accused of sexually assaulting a 12 year old girl and beating her so severely that she spent five days in a coma. He was charged with Rape in the First Degree, but Clinton (then Rodham) successfully negotiated a deal in which her client pled guilty a lesser charge. A reporter found the victim in 2008, while she was serving a prison sentence. She had been in therapy for a decade following the attack, suffered fear of men, turned to drugs, and eventually landed in prison. At the time, she was quoted by Glenn Thrush (then of Newsday) as saying, “I’m sure Hillary was just doing her job,” although the victim now asserts that she was misquoted.
The story recently resurfaced because of an article in The Washington Free Beacon, an online newspaper which posted an interview from the mid-1980s between reporter Roy Reed and Hillary Clinton that had been archived at the University of Arkansas at Fayetteville. In the interview, Clinton said that her client passed the polygraph test that was administered to him, and then she chuckled and said that she didn’t trust polygraph tests after that. She also discussed one of the pieces of physical evidence in the case, her client’s underwear. The blood on the underwear linked her client to the crime, but when she asked to see the underwear, she learned that the portion with the blood which was tested by the lab had been disposed of. The court file for the case, which is available online (here), includes Clinton’s affidavit for psychiatric evaluation of the victim in which she wrote, “I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and to engage in fanaticizing. I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body. Also that she exhibits an unusual stubbornness and temper when she does not get her way.”
After the Reed interview tape was released, The Daily Beast reached out to the victim for a new interview. The victim expressed her anger with Clinton’s statements in the affidavit and in the Reed interview, saying (here) “I would say [to Clinton], ‘You took a case of mine in ’75, you lied on me… I realize the truth now, the heart of what you’ve done to me. And you are supposed to be for women? You call that [being] for women, what you done to me? And I hear you on tape laughing.”
Following The Daily Beast’s piece, several news outlets ran articles and discussions discussing Clinton’s legitimacy as an advocate for women and viability as a presidential candidate. Kimberly Guilfoyle of the Fox News debate program “The Five” said (transcript here), “I hope that women are going to be smarter and intelligent, and say ‘Listen, this is inconsistent with what she’s been telling us. Who would I believe? Which is the real Hillary Clinton? The one back then, taking cases on, voluntarily choosing to represent a child rapist?’ That’s a big choice.” Another speaker on “The Five” described Clinton’s representation of the client (here) as “declaring war on women when it’s politically convenient.” Washington Post reporter Melinda Henneberger characterized Clinton’s interview (here) as “not . . . typical talk for a lifelong defender of women and children,” and asked, “wouldn’t her apparent willingness to attack a sixth-grader compromise a presidential run?”
These criticisms of Clinton should matter to feminists and ethical members of the legal profession, regardless of political ideology. It is important not to discount the victim’s feelings about Clinton’s role in what she had experienced. However, what often gets lost in the discussion of Clinton’s role in this case is her ethical duty as an attorney to zealously advocate for her client. The issue of the conflicting moral obligations to a lawyer’s client and to the dignity of the opposing party, particularly in cases involving rape, has been written about at length. There is little debate about the role of a criminal defense attorney as a zealous advocate, regardless of what the client has been accused of, or how much evidence there is against him.
It was not Hillary Clinton’s job to unilaterally decide her client’s guilt or innocence and to temper the quality of her representation accordingly. An individual accused of rape is entitled to an attorney, and that attorney is bound to zealously advocate for his client. Being a steadfast advocate for a criminal defendant, no matter how reprehensible he might be, or how many prior convictions he has, is a feminist issue. If defense attorneys are expected to ignore missing evidence and allegations that the accuser is untruthful, no self-respecting advocate for women can trust that the system is convicting guilty individuals. In short, it is precisely our current system, wherein every ‘t’ must be crossed and every ‘i’ must be dotted in order to obtain a conviction, that lends legitimacy to rape convictions. Certainly, the way that the system operates is cruel and off-putting for victims of rape to go through, and the low conviction rate in rape cases points to other systemic problems. Yet it is patently unreasonable to fault Clinton for fulfilling her ethical and professional responsibilities in the system that exists, especially since she has advocated for victims of sexual violence in the decades that have followed.
An attorney has an ethical duty to listen to his client, to assess the client’s arguments in his own defense, and where there is a credible argument that makes strategic and legal sense, to pursue that argument. What Hillary Clinton wrote in the affidavit requesting the psychiatric evaluation reflects an assertion by her client, or someone else with knowledge about the victim, that the victim had fabricated her allegations and had made false accusations in the past. What she wrote in her affidavit is exactly what advocates for reform point to when they describe the revictimization of rape victims by the justice system. But the possibility that the victim was not being forthright warranted investigation. No competent criminal defense attorney in Clinton’s shoes would have acted differently. It unfortunately is a valuable way of mounting a defense to a charge like this, but the blame for that does not rest on the 27-year old shoulders of a new attorney in 1975. Henneberger, the Washington Post reporter, (here) described Clinton’s defense of her client as an attack on a sixth grade girl, but it was no more an attack on a sixth grade girl than defending an accused robber is an attack on the person who was robbed or defending a speeding ticket is an attack on Sunday drivers.
After accepting that our criminal justice system can only function when those accused of serious crimes are provided with competent, zealous representation, it is also hard to condemn Clinton’s investigation of the forensic evidence from the underwear. The justice system doesn’t allow the government to simply declare that forensic evidence indicated a certain conclusion, and then dispose of the evidence so that the defense cannot rebut it. Clinton was criticized for being boastful in her interview about her work on the missing evidence. But it’s hard to blame her for being boastful after her legwork helped to protect her client’s rights. It begs the question of whether such boasting would have been criticized if she were male, since it has been well-documented that while women are penalized in the workplace for aggression and self-promotion, men are rewarded for such characteristics.
Throwing away the sample that was tested is such an enormous error that it is hard to characterize her work on the missing evidence as an attack on the victim. Clinton’s critics seem to be confusing victim-blaming tactics with a legitimate investigation that a competent criminal defense attorney would undertake. If Clinton had not made the efforts that she had in the case, she would have been derided as unethical, someone who substituted her own judgment for that of the justice system. It would have been difficult to argue with that characterization.
Clinton was also criticized for helping to negotiate a plea deal for her client. It may seem seedy to someone outside of the legal profession, but around 90% of criminal cases end with a plea deal. Plea deals have special value in cases like this, where they can protect the victim (here, a 12-year old girl) from having to testify in front of strangers about the attack. Although this case involves an allegation of an extremely vicious sexual assault, it is worth noting that the cumulative year that Clinton’s client spent in jail is more than most rapists are sentenced to today. According to RAINN (here), including the estimated 60% of rapes that are never reported, only 3% of rapists ever spend a day in prison. It’s not as though Clinton’s client received an overly lenient deal that was outside of the normal range of outcomes for a case like this, whether or not the client’s attorney was aggressive.
Defense work has been political poison in recent years, but Clinton has suffered doubly because she has been characterized in the media as a hypocritical traitor to her gender and a woman who is not fulfilling her role by protecting children. Male candidates who have a background in criminal defense, even those who advocate for victims of sexual assault, have not endured the same treatment. They have not been criticized for the zealousness and aggressiveness that they put into their work, only on the outcomes they have produced. Perhaps this is reflective of Clinton’s higher profile as a potential presidential candidate, or the greater number of details available about this case, but it does smart of a double-bind that penalizes Clinton as a woman for the work that she did. What Clinton’s critics have failed to recognize is that there is no conflict between ensuring that criminal defendants are treated as the Constitution and the legal profession require that they be, and being a feminist and an advocate.
Emily Gillingham is a rising 3L at Michigan State University College of Law. She received her BS from Eastern Michigan University in Political Science and Women’s and Gender Studies in 2012. She is the incoming president of the MSU Law chapter of Law Students for Reproductive Justice and volunteers at a local domestic violence shelter.
A 27-year old Virginia man has agreed to a vasectomy as part of a plea deal in Virginia.
“It’s a condition of his probation, and I’m sure he’ll have to provide documentation to his probation officer,” [prosecutor Ilonia L.] White said of the vasectomy.
White said her motivation in offering the vasectomy option to [the defendant] stemmed from concerns raised at sentencing hearings in earlier cases about how many children have been traced to him from different women.
“It was primarily due to the fact he had seven or eight children, all by different women, and we felt it might be in the commonwealth’s interest for that to be part of the plea agreement,” White said of the vasectomy provision.
But the defendant in this case, Jessie Lee Herald, was facing charges related to a car crash. The charges included child endangerment, hit-and-run driving and driving with a suspended license. Mr. Herald fled the scene of the accident with the child who had been traveling with him.
The Northern Virginia Daily has the story here.
It is difficult to read this report against Virginia’s history with forced sterilization, most notably the Buck v. Bell decision.
Writing (here) for the (UK) Telegraph, reporter Kathryn Dobson covering the Wimbledon beat asks, “Why do women grunt?” The explanations proferred in the article include a tennis player’s desire to gain psychological advantage over one’s opponent, facilitate application of maximum force to a shot, enhance relaxation, and release tension. Some tennis insiders criticize the sounds as unsporting and distracting to other players. Indeed even the casual fan can tell you that the sounds can be distracting enough to cause television viewers to reach for the mute button on their remote controls.
To be sure, the “grunting” phenomenon is not limited to the women’s game. As quoted in the Telegraph article, Ivan Lendl said of Andre Agassi’s vocalizations that “when he goes for a big shot, his grunt is much harder, like he thinks he’s a winner. It throws off your timing.” But the vocalizations from women seem to be more pronounced and louder than their male counterparts’. To my ear, 104+ decibels from Maria Sharapova are more than “grunts.” They are in a far higher register than her speaking voice, too. As gendered as it sounds, I’d have to say that Maria Sharapova shrieks, whereas male tennis players grunt. Her noises bother me in a way that Agassi’s never did.
Why is that?
The knee-jerk analysis is that I am inappropriately criticizing a female athlete for doing what a male athlete does. If a woman and a man engage the same biomechanics, then it would appear that I register a “shriek” from a woman and a “grunt” from a man. The only physical difference is the register of the voice. Thus it is my sexist cultural conditioning that makes me label the female athlete a “shrieker” (always negative) and the male athlete a “grunter” (could be positive if I think it is “manly;” neutral if I think that’s just what guys do or it is “athletic”; or negative if it reflects bad manners).
But is there more going on? My suspicion is that female tennis players who vocalize to gain psychological advantage over one’s opponent, facilitate application of maximum force to a shot, enhance relaxation, or release tension could do so in a lower register. In other words, female tennis players could grunt like the men if they wanted. But vocalizing in a higher — and perhaps the highest possible — register emphasizes and maintains gender distinctions. In other words, even if the psychological/tactical/biomechanical motivations are the same for men and women, exaggerating pitch differences makes the female athletes as least like men as possible, under the circumstances. The athlete may be sweating like a man and performing a traditionally male activity (hey, look at the history of sports), but she makes herself audibly recognizable as a female.
That being said, I don’t think that vocalizing in a higher register is a necessarily a gender-aware, deliberate choice. News reports say that some of the female tennis players who are “noisy” in their 20’s were vocalizing even as youth players. But to say that any of us has ever existed pre-gender is to suggest a utopia that does not exist. Elite athletes certainly are not thinking about gender or sex while in a game situation. But is it too far-fetched to suggest that to the extent that female tennis players vocalize, it sounds a teensy-weensy orgasmic? Cultural tolerates certain sounds and not others from women.
Clare Huntington (Fordham Law School) has published a new book, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014). Here is Oxford’s description:
Exploring the connection between families and inequality, Failure to Flourish: How Law Undermines Family Relationships argues that the legal regulation of families stands fundamentally at odds with the needs of families. Strong, stable, positive relationships are essential for both individuals and society to flourish, but from transportation policy to the criminal justice system, and from divorce rules to the child welfare system, the legal system makes it harder for parents to provide children with these kinds of relationships, exacerbating the growing inequality in America.
Failure to Flourish contends that we must re-orient the legal system to help families avoid crises and, when conflicts arise, intervene in a manner that heals relationships. To understand how wrong our family law system has gone and what we need to repair it, Failure to Flourish takes us from ancient Greece to cutting-edge psychological research, and from the chaotic corridors of local family courts to a quiet revolution under way in how services are provided to families in need. Incorporating the latest insights of positive psychology and social science research, the book sets forth a new, more emotionally intelligent vision for a legal system that not only resolves conflict but actively encourages the healthy relationships that are at the core of a stable society.
Over here at truthout.org, there is a write-up of radio host Dennis Bernstein’s interview with filmmaker Sini Anderson. Anderson is the former director of the National Queer Arts Festival and the director of the documentary The Punk Singer about former Bikini Kill leader Kathleen Hanna. During the course of filming, Anderson was diagnosed with Lyme disease, which Hanna also battled. Here is a portion of the interview:
As you know, we’ve been doing this series on Lyme disease. We interviewed recently Dr. Richard Horowitz. We asked him why there seems to be a larger percentage of women with Lyme disease. He was explaining to us that Lyme can cause an autoimmune-type reaction and studies found that greater percentages of women have other autoimmune diseases, which seems to be related to hormonal reactions that can accelerate the autoimmune process. What are your thoughts about why so many women are being hit with such a crippling disease? Any thoughts on that?
Sure Dennis. I mean I think that we’re talking about a few different issues here. And Dr. Horowitz is one of my doctors. Another doctor of mine is Dr. Leo Galland who is in New York City. The two of them collaborated together to get me to a place of better health and I’m immensely grateful to both of them.
I think that the amount of women that are being diagnosed with late-stage Lyme disease is . . . it’s infuriating. And I think that what is happening is that women are going to their doctors and are presenting with these symptoms and they are being brushed off by their doctors in a way that I don’t think men are experiencing at the same rates. So what ends up happening is they just say, “Oh, yeah, I must be making this up” or “I must be making this worse than it is. And I should suck it up.” And then they go a few more months and then something else happens. And, you know, often times by the time they end up getting so incredibly sick that their systems can’t take it anymore, we’re talking 10 years down the line, 15 years down the line. And they’re so sick at that point that it’s really hard to get them well.
As far as like the hormonal stuff and the autoimmune responses, yeah definitely. I mean, I’m not a scientist; I am just shocked at the lack of knowledge that we have around this. And I’m not entirely convinced that this is the only thing that we’re dealing with. I don’t know what to put behind that statement, but there is something very, very, very complex going on with peoples’ immune systems right now. I have Lyme disease, Babesia and Bartonella. And with whatever else is going on in my system, it is . . . it had created a crippling response where I was taken out so quickly.
And it’s completely terrifying, you know. I don’t know what’s going on. I cannot believe that we don’t know more about it. And I think it’s going to take a lot of enraged people in order to get to the bottom of this. And there are a lot of parallels between what’s going on right now and what was happening with the AIDS epidemic in the late ’80s. And I think that, as time goes on, more is going to be revealed. And I think there’s going to be a lot of people, especially from the CDC [Centers for Disease Control and Prevention] and the IDSA, which is the Infectious Diseases Society of America.
They’re going to have to be giving us some answers that they haven’t been forthcoming about up until now. I mean really the key part is, we’re ignoring the answer to the question, which is, “What happens if you don’t catch it?” How are a bunch of doctors telling people that, you get it, you take six weeks; you should be good on antibiotics; you’ll be fine. We’re ignoring everybody who doesn’t catch it. And are we just made to believe that it should just disappear? Or that six years down the line, we should take six weeks of antibiotics, and it’s going to disappear? That’s ridiculous.
So, you know, for me, I’m a feminist activist; I’m a part of this community. I am also a queer activist and I come from activism roots. And we have got to make noise. I lost many friends to HIV and AIDS in the ’90s and I watched as we struggled to fight the CDC and to fight the American Medical Association and demand answers, and demand treatment. But this is a little bit different. This is much quieter and people are so, so sick. Unfortunately the people that really are infuriated and wanting to protest are the ones that are sick and they are unable to get out there and have their voices heard.
Read the full interview here.
On Wednesday, Brian Leiter posted a list of the ten most-cited legal scholars during the years 2009-2013 (really eleven, due to a tie for tenth place). All eleven are men, and to the best of my knowledge, 10/11 are white. Following in the footsteps of other contributors’ “Where are the Women” posts, I’ve written a post at my personal blog considering possible explanations for the disparity. I thought I’d link to it here in case it’s of interest to readers of this blog.
– Nancy Leong
From my in-box: published here with permission, Bryan Adamson’s essay on Michael Sam, the media, and why challenging norms is not comfortable (or, apparently, welcome).
The “Problem” With Michael Sam: It Wasn’t the Kiss
Bryan Adamson, Associate Professor, Seattle University School of Law
Through the ensuing furor over ESPN’s coverage and the NFL Network’s simulcast of Michael Sam’s draft selection to the St. Louis Rams, we have heard so many people—even well-meaning people—say that there is nothing wrong with Sam being gay, but that ESPN should not have aired the kiss and celebration between Sam and his partner Vito Cammisano. We can be quite certain that Sam’s draft (No. 249!) would be less than a non-story had he kissed a woman and smeared cake on her face. But because he didn’t, and Cammisano isn’t, we must now have a conversation about heteronormativity and heterosexual privilege.
Lately, there has been a good deal of talk about privilege in the news—of the white kind. Tal Fortgang’s adolescent tirade against the concept of white privilege—or rather, his rant against what he thinks it is…Donald Sterling’s bigoted babble about how he has done more for black folks than black folks have done for each other….Welfare Rancher Cliven Bundy’s far-reaching life experiences that apparently bestowed upon him the select ability to tell us “one more thing” he “knows about the Negro.” (On the last especially: I. Can’t. Even.). I submit that the vehement reactions of disgust to Sam’s televised lip-lock with Cammisano—occurring in the hyper masculine context of professional football, and captured by the most male-oriented networks on television—illuminate an odious variation on the privilege theme.
The outrage over Sam’s celebration wasn’t because he cried—we’ve long been good with seeing men shed tears. And, strictly speaking, the outrage wasn’t about the male-to-male affection demonstrated. Again, we’ve seen it before: fiction and non-fiction broadcast television history is rife with examples of men—as friends, brothers, fathers or sons—kissing each other. What caused not an insubstantial number of viewers fits had everything to do with the knowledge of Sam and Cammisano’s relationship, the setting, and that cake.
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