Feminist Law Professors

Forhcoming: William & Mary Journal of Women and the Law, Vol. 12, No. 3, 2006. It’s downloadable at SSRN; below is the abstract:

This article presents liberal feminist, essentialist feminist, communitarian feminist, and humanist feminist critiques of the gendered scope of United States intellectual property protection. Different feminist perspectives lead to different conclusions regarding intellectual property. However, the most important aspect of intellectual property for feminists should be the public domain. The public domain is essentially feminine; feminists of all types should join the movement to reinvigorate and protect the currently-endangered public domain. The Article then addresses the conflict between communitarianism and feminist. As to intellectual property, this conflict can be bridged by theorizing the public domain in terms of a right not to be excluded.

Here’s the unbluebooked, SSRN-style citation: UMKC Law Review, Vol. 73, No. 2, pp. 469-497, 2004.   You can download this paper from SSRN. Here’s the abstract:

This article, which was part of a symposium entitled “Dismantling Hierarchies in Legal Education”, uses social inequality and feminist theories to demonstrate that American law faculties are stratified into an illegitimate and gendered hierarchy. It critiques the subjective and contrived nature of this faculty hierarchy and the various criteria used to support it. In particular, it focuses on the academy’s use (and misuse) of the academic triad of scholarship, service and teaching to maintain inequality among law faculty. Finally, it challenges law professors and administrators to recognize the hierarchy and work toward greater fairness and parity in the legal academy.

By Llew Gibbons, downloadable here and forthcoming in 2 Marquette Intellectual Property Law Review (2005). Here’s the abstract:

In Lawrence v. Texas, the United States Supreme Court held for the first time that morality, standing alone, is not a sufficient basis for prohibitory legislation. Instead, the state must explain how behavior is harmful before it can make it unlawful. The significant post-Lawrence question is whether this holding in Lawrence marks a paradigm shift in constitutional jurisprudence so that teaching of Lawrence may be extended from the bedroom into the commercial marketplace to remove mere moral disapproval as a constitutionally rational basis on which to regulate commercial conduct. Trademark law may at first blush appear to be an unlikely source of law to analyze Lawrence. Nevertheless, some symbols (signs) capable of identifying or distinguishing goods or services, may not serve as trademarks because they may offend some demographic of the citizenry as scandalous, immoral, or disparaging homologues for mere moral disapproval. Since scandalousness in the United States is often loaded with connotations of sexuality, this is of particular interest to the Queer community. Section 2(a) is particularly problematic for the Queer community as the denial of queer marks places the U.S. government’s imprimatur of scandalous and immorality upon the mark (and by extension on the queer community). For non-commercial entities, these marks serve a dual purpose to identify the group for trademark purposes (for example source, origin, or sponsorship) while the mark itself conveys a message of pride to their membership, client base, or to the public at large. Under these circumstances, Lawrence may teach that such laws that stigmatize must receive some level of heightened scrutiny. This is important because our understand of marks has changed. This more recent use of marks as communicative symbols of social identity are inadequately explained using only the juridically accepted law and economics approach. Semiotics provides a better theoretical structure to understand these new uses of marks and to properly credit the role of the new authors in developing the mark’s cultural significance. This Article evaluates section 2(a) of the Lanham Act in the meta-framework of queer marks. First, this Article establishes a theoretical framework to better understand modern trademark usage. The Article then places trademarks in the context of First Amendment jurisprudence, analyzes these marks under the Equal Protection and Due Process Clauses as authoritatively construed in Lawrence v. Texas, and concludes that a fair reading of Lawrence places substantial limitations on the United States Patent and Trademark Office’s (USPTO’s) authority to reject queer marks under section 2(a) of the Lanham Act. Thus, the teachings of Lawrence are moved out of the bedroom and into the market.

You can download the whole draft at SSRN! Here is the abstract:

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law – as it is owned, constituted, created, and enforced – both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations.

Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark and patent have been used – often with great success – to silence transgressive depictions of sexuality, sexual identity, and gender expression. While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents also demonstrate how, increasingly, such incidences of semiotic disobedience personify an underlying tension between our legal regimes of intellectual property and speech, and reveal how issues of distributive justice are invisibly intertwined within the interstices of commodified representations.

To show how this world is possible, I draw on performance theory to demonstrate the need for copyright’s active reengagement with its audience. By creating spaces for such reworkings of cultural texts, we allow texts to transcend their fixed, stable form – and instead to become properties that are performative in nature; that is, they become ripe for audience participation and contribution. I suggest that copyright law must embrace a clear division between the product as property and the product as performance. While most conventional scholarship tends to think of the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions, and instead has offered scholars a host of insights regarding the multiple and intersecting ways in which audiences respond to performances, often creating rich and varied interpretations of a preexisting work, fan fiction being a single example. Along these lines, I argue that copyright must view its commodities not as fixed, stable texts, but rather as a set of starting points, a set of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, I argue that copyright law needs to equalize the authorial monopoly of the creator in favor of a more dialogic and dynamic relationship between producers and consumers in the process.

Wendy Gordon brought this article to my attention last fall, and it’s really interesting. It was apparently published here: Annual Review of Law and Social Science, Vol. 1, p. 285, 2005. Downloadable at SSRN, the abstract is as follows:

In recent years there has been a renewed effort to ground conventional law and economics methodology, with its exclusive focus on efficiency and income redistribution through the tax system, in modern welfare economics (Kaplow & Shavell 1994, 2001). This effort raises a challenge to the possibility of a feminist law and economics: Is it possible to be a good (welfare) economist and still maintain the ethical and political commitments necessary to address feminist concerns with, for example, rights, inequality, and caring labor? In this review, I argue that modern welfare economics, rather than supporting the ethical minimalism of conventional methodology advocated by Kaplow and Shavell, ratifies the need for an ethically and politically informed economic analysis. Feminists can, and should, use the tools of both positive and normative economics to analyze feminist issues in law.

Myrna Raeder (Southwestern U. School of Law) has a new article available on SSRN: Remember the Ladies and the Children Too: Crawford’s Impact on Domestic Violence and Child Abuse Cases, 77 Brooklyn Law Review 311 (2005). Here is the abstract:

Crawford v. Washington, 541 U.S. 36 (2004), which altered the Supreme Court’s approach the Confrontation Clause, has generally impacted trial practice. However, its effect on domestic violence and child abuse cases has been particularly severe. Pursuant to Crawford, if a declarant makes a”testimonial”statement, in the absence of forfeiture, its admission at trial violates the defendant’s right of confrontation unless the declarant is unavailable and has been subjected to prior cross-examination. Young child witnesses may be incompetent to testify or otherwise available. Most complaining witnesses in domestic violence cases do not willingly cooperate with the police. Prior to Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), and its progeny permitted the statements of absent declarants to be introduced under firmly rooted hearsay exceptions, or under ad hoc exceptions when the statements were trustworthy. As a result, in child abuse cases, statements of children were frequently introduced which had obtained through multidisciplinary forensic interviews. Prosecutors relied heavily on excited utterances, statements to medical personnel, and child hearsay exceptions as well as on medical expert testimony and introduction of prior molestations by defendants. In domestic violence cases, prosecutors developed”victimless”prosecutions, based primarily on the complainant’s excited utterances, medical statements, or other trustworthy hearsay, which were introduced through the testimony of police and medical personnel who photographed the injuries. In some jurisdictions expansive use of prior acts of domestic violence were offered under Rule 404(b) or domestic violence exceptions.

The effort to hold batterers accountable for their actions did not create uniformly good results for battered women. Some complainants were virtually forced to testify or face jail when they ignored subpoenas in”no drop”jurisdictions. In addition, more women were arrested for domestic violence, judges often granted mutual protective orders, women were charged criminally for endangering their children who witnessed their abuse; and even when they were not charged, their children might be removed from the home and placed in foster care. The effect and effectiveness of such policies began to be questioned even before Crawford.

This article critiques the testimonial approach, discusses how testimonial statements should be defined focusing particularly on excited utterances and 911 calls, and identifies current trends affecting domestic violence and child abuse litigation. It also explores forfeiture, waiver, and opening the door to testimonial statements. Rather than fighting Crawford, consideration should be given to adopting new hearsay exceptions for declarants who testify, determining whether Rule 404(b) is being adequately used, and expanding expert testimony to permit background about battering and child abuse. More globally, the article proposes restructuring domestic violence prosecutions into three separate tracks in order to devote scarce criminal justice resources to the most dangerous offenders. Finally, best practices are suggested that are most likely to permit child testimony.

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