Feminist Law Professors

Patent Law and the Female Body

Posted on May 5, 2011 by Bridget Crawford

Written Description is a blog by Dr. Lisa Larrimore Ouellette. The blog reviews “Recent Scholarship on Patent Law, IP Theory, and Innovation.” (Dr. Ouellette also is a 3L at Yale Law School.) Today, Written Description features this post by Dr. Allison Tait, another Yale 3L, reviewing Kara Swanson’s Getting a Grip on the Corset: A Feminist Analysis of Patent Law. Here is an excerpt of Dr. Tait’s review:

For Swanson, feminine interventions in patent-protected technology converge in the corset. The corset involved women as both consumers and litigants. The corset constructed gender by shaping the feminine form into a graceful silhouette with a small waist. And the corset narrated gender by calling into question the divide between public and private in Egbert v. Lippmann—the 1881 “corset case” that provided a foundational examination of the public use doctrine. The case turned on the question of Francis Lee Barnes’ right to her deceased husband’s patent for an improvement in corset springs. Problems abounded for Francis because the Court cast her as a public woman at a time when the public space of the market belonged to men and the private sphere of domestic relations to women.

Read the full review here.

-Bridget Crawford

image source: The Omaha Clinic, Volume 1 (1888), via The Condenser Magazine.

Posted in Feminism and Technology, Feminist Blogs Of Interest, Feminist Legal Scholarship | Comments Off

Thief Me (Or, Giving a Six for a Nine in Providing Public Education)

Posted on May 5, 2011 by Lolita Buckner Inniss

In Norwalk, Connecticut Tonya McDowell has been indicted for first-degree larceny. She faces a maximum sentence of 20 years in prison and a $15,000 fine. She is charged with stealing education: she allegedly enrolled her son in Norwalk schools from September 2010 to January 2011 when she did not live there. She is alleged to have used the address of her babysitter who did live in Norwalk. You can read about it here in the New York Times. Several people have expressed outrage that a parent seeking a better education for her child would be subjected to such charges. They argue that what should be under indictment is the system of school funding in much of the United States that relies upon local tax funding and thus makes schools in wealthy neighborhoods more likely to be excellent while leaving schools in poor areas deficient.

There are however, a large number of people who remain silent through all of this. They are the quite rational, well-meaning, sympathetic and even empathetic people who, though they might not have criminally charged Ms. McDowell if it appeared that she had enrolled her child in a school district where she did not live, certainly would have advocated the prompt removal of her child from the school. One of their arguments goes something like this: “I worked hard for years to be able to afford a house in this neighborhood. I work even harder to pay the taxes that support the schools in this neighborhood. Why should someone who hasn’t done those things get to take advantage of the school system here?” I get this argument; I really do. Good quality education can be expensive. Yes, we do in many cases pay taxes for certain other services that may be used by all comers whether or not they live in our neighborhood, such as roads, firefighters, and police. But these, we might assert, are in the realm of the really necessary from a health, safety and welfare standpoint. Moreover, these tend to be services that do not always rely entirely on local funding, or that are not frequently used by non-residents (and still, there are sometimes calls to limit use or to charge a fee for use of even these essential services).

Continue reading the post here.

-Lolita Buckner Inniss

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

Posted in Feminism and Families, Primary and Secondary Education | Comments Off

ABA Launches LGBT Antibullying/Antidiscrimination Campaign

Posted on May 5, 2011 by Tony Infanti

The American Bar Association’s Opening Doors Project has launched a new LGBT antibullying/antidiscrimination campaign–“the kids are listening.” Here is a video with a call for people to stand up against hate speech and discrimination that they produced and are encouraging people to share:

Click here to go to the project’s web site.

-Tony Infanti

Posted in LGBT Rights | Comments Off

Leslie Griffin on Religion, Free Exercise and Women’s Equality

Posted on May 4, 2011 by Bridget Crawford

Leslie C. Griffin (Houston) has posted to SSRN her essay Smith and Women’s Equality, 32 Cardozo L. Rev. __ (forthcoming 2011). Here is the abstract:

This essay was part of a Cardozo symposium celebrating the twentieth anniversary of the landmark free exercise case, Employment Division v. Smith. I argue that full enforcement of Smith is essential to women’s equality. I explain that male-dominated religious communities have repeatedly opposed women’s rights by seeking not only to exempt themselves from the law of women’s equality but also to change the content of that law to undermine women’s rights. Although Smith has given women’s groups some victories over this anti-egalitarian trend, resistance to Smith and refusal to apply its holding have harmed women’s rights.

In Part I, I explain why Smith is necessary to support women’s equality in the family and reproductive rights. In Part II I argue that if Smith were taken seriously, the courts would not continue to dismiss sex discrimination lawsuits under the invented ministerial exemption and church autonomy theories of the First Amendment, and the legislatures would not persistently seek to undo Smith’s regime by exempting religious groups from the law.

The full essay is available here.

Professor Griffin makes a similar point on the American Constitution Society blog (here) in arguing against the ministerial exception.

-Bridget Crawford

Posted in Feminism and Religion | Comments Off

First Female Dean at University of the Andes Law School

Posted on May 4, 2011 by Bridget Crawford

Earlier this year, Helena Alviar García became the first female dean of the Law School at the University of the Andes in Bogotá (Colombia). The school’s press release is here.

Last month at an International Association of Law Schools Conference on Teaching, Legal Education and Strategic Planning, Dean Alviar García presented on “How to Incorporate Gender Redistribution into the Classroom: The Experience of the Gender Studies Program at the University of Los Andes Law School.” Here is an excerpt from her written remarks:

Ten years ago, when I finished my doctorate in law, I had an interview with the director of the Latin American Gender Equality in the World Bank. In that conversation, she told me that in terms of laws and regulations, in Latin America we had done everything that was needed. This statement continues to puzzle me today, because even though it is true that there is an equality clause in most constitutions, there are laws criminalizing domestic violence and a range of regulations to include women, the fact is that the unequal distribution of resources among gender lines continues to be prevalent in the region and in Colombia specifically. * * *

[L]egal education plays a fundamental role in raising consciousness about pressing inequality issues and the effective exercise of existing rights as well as expanding the academic discussion about the redistribution of resources across gender lines. Therefore, the question that we have tried to answer in our law faculty is: What is the best way to create an intellectual space in legal academia that promotes thinking about, producing knowledge and promoting an improved distribution of resources across gender lines?

A copy of Dean Alviar García’s full written remarks are here.

-Bridget Crawford

Posted in Chutes and Ladders, Feminists in Academia, Firsts, Sisters In Other Nations | Comments Off

Kim Krawiec Named Kathrine Robinson Everett Professor at Duke Law School

Posted on May 4, 2011 by Bridget Crawford

Al Brophy has the good news over here at The Faculty Lounge that Kim Krawiec has been named the Kathrine Robinson Everett Professor at Duke Law School. Here is an excerpt from the Duke press release:

Krawiec will become the Kathrine Robinson Everett Professor of Law on July 1. A highly regarded scholar in corporate law and financial markets who joined the Duke Law faculty in 2009, her research interests span a variety of fields, including the empirical analysis of contract disputes; the choice of organizational form by professional service firms, including law firms; banned commercial exchanges; corporate compliance systems; insider trading; derivatives hedging practices; and “rogue” trading.

“In 2000, she wrote an article in the Oregon Law Review making an argument that was unusual for the time but now appears prescient,” said Brodhead in his citation, “that banks had an incentive to reward ‘rogue’ trading because the increased risk meant they would profit from this activity.” Krawiec’s recent scholarship addresses issues of diversity in the corporate boardroom and organizational misconduct and trade within forbidden or contested markets, including the competing forces at work, such as altruism and money, in the “baby market.”

At Duke Law, Krawiec teaches Business Associations, Financial Derivatives, Taboo Trades and Forbidden Exchanges, and Readings in Ethics.

Congratulations, Kim!

-Bridget Crawford

Posted in Chutes and Ladders | Comments Off

What an MIT Feminist Looks Like

Posted on May 4, 2011 by Bridget Crawford

At the MIT Open House on April 30, 2011, the Women’s and Gender Studies Program brought a whole new meaning to campus visibility for feminists:

The Women’s and Gender Studies Program set up a professional photobooth where several hundred people (among them MIT President Dr. Susan Hockfield), had their pictures taken as part of a 150th Anniversary project called This is What a Feminist Looks Like at MIT.

The full set of photos (here) — a compelling collage.

For law school student groups looking to raise awareness of feminist issues, MIT’s example might be exported to new student orientation or similar event in the early days of a new semester.

H/T Feminist Philosophers.

-Bridget Crawford

Posted in Feminists in Academia | 1 Comment

Questioning Judge Walker’s Impartiality

Posted on May 4, 2011 by Tony Infanti

As we warned might happen more than a year ago, the seeds planted by (since confirmed) rumors about Judge Walker’s sexual orientation have now borne fruit. Last week, proponents of Prop. 8 filed a motion to vacate Judge Walker’s judgment on the ground that his sexual orientation and long-term relationship with another man disqualify him because he had an interest in the outcome of the case. (This problem would, however, apparently have been cured had he publicly disavowed any intent to ever marry his partner.)

Given that the voter guide for Proposition 8, not to mention the arguments made in the case before Judge Walker, focused on the measure’s preservation and protection of the institution of marriage, it would seem, as I noted in my post last year, that any heterosexual judge who is married or in a long-term relationship would have a similar interest in the outcome of the case and would, therefore, likewise be disqualified from hearing the case if they did not publicly disavow an intent ever to marry. What about the Ninth Circuit judges hearing this motion to vacate? Should all of them now either recuse themselves or, alternatively, come forward to disclose their sexual orientation, relationship status, an intention (or lack of intention) to marry? Will the proponents of Prop. 8 be making a motion for Supreme Court justices to recuse themselves on these grounds when they get there?

It seems that the proponents’ arguments here are too clever by half. If the proponents of Prop. 8 try to argue that the protection and preservation of heterosexual marriage does not give heterosexual judges a sufficient interest in the outcome of the litigation to disqualify them, doesn’t that completely undermine their arguments in support of Prop. 8 itself? Rather than having found a “clever” way to use Judge Walker’s arguments against him and to get out from under an adverse decision, the proponents of Prop. 8 seem to have painted themselves into a corner. Either very few judges will be left to hear their case (would the Supreme Court even be able to muster a quorum?) or they will have sucked the wind from the sails of their arguments.

-Tony Infanti

Posted in Academia, LGBT Rights | 1 Comment

Exception(al) Opinion: Supreme Court of Montana Opinion Might Mean Montana Has Broadest Abuse Exception to Court-Ordered Mediation

Posted on May 3, 2011 by Colin Miller

Mediation in child custody determinations is popular, partly due to the mediation principle of neutrality, which theoretically gives both parents an equal chance at a fair allocation of parenting time. However, not all divorce cases are appropriate for mediation. In severe cases of intimate partner violence there are power and control dynamics in which victims may have little bargaining power with their batterer. When a screening for domestic violence indicates safety risks to victims, their children, and possibly the mediator, it is imprudent and possibly negligent to undertake the mediation process in these cases. There is a controversy over whether mandatory custody mediation is appropriate in the context of domestic violence that is clear from the differences between state statutes in the United States. Jan Jeske, Custody Mediation Within the Context of Domestic Violence, 31 Hamline J. Pub. L. & Pol’y 657, 659-60 (2010)

Some states hold that domestic violence is merely one of several factors that courts can use in their discretion to decide whether mediation is appropriate. See, e.g., Pollack v. Anderson, 2007 WL 5476610 at *7 (Ariz.App. Div. 1 2007). Other states preclude courts from ordering mediation in cases involving domestic abuse/domestic violence, with such abuse/violence being defined narrowly as actual or threatened physical or sexual violence. See, e.g., Adolphson v. Yourzak, 2008 WL 4628722 at *6 (Minn.App. 2008). As one author has put it, “Some jurisdictions allow opt-out provisions for the victim, some ban custody mediation in cases involving domestic violence, and others permit judicial discretion on an individualized, case-by-case basis in ordering custody mediation.” Jeske, supra, at 674. And then, there is Montana, which after the recent opinion of the Supreme Court of Montana in Hendershott v. Westphal, 2011 WL 1376319 (Mont. 2011), has what I believe to be the broadest exception to custody mediation. And that’s a good thing.

Continue reading →

Posted in Acts of Violence, Courts and the Judiciary | 1 Comment

PA Marriage Protection Amendment

Posted on May 3, 2011 by Tony Infanti

At a time when our governor’s budget includes 50% cuts in funding for higher education and drilling for natural gas in the Marcellus shale is raising issues about (the lack of) a severance tax and (already occurring) environmental damage, Pennsylvania State House Rep. Daryl Metcalfe has introduced a marriage protection amendment in the Pennsylvania legislature. From the press release:

Pennsylvania House State Government Committee Chairman State Representative Daryl Metcalfe (R-Butler) announced today the introduction of a Constitutional amendment to allow the citizens of Pennsylvania to precisely define marriage as a union between one man and one woman.

“The institution of traditional marriage has never been under greater attack,” said Metcalfe. “This not only includes the special interests who want to permanently redefine marriage, but unfortunately the executive branch and the federal Department of Justice who have blatantly and recklessly refused to uphold and defend its Constitutionality. Once again, it falls to the responsibility of state lawmakers to restore the rule of law and carry out the will of the people.”

Once House Bill 1434 is approved in two consecutive sessions of the General Assembly, Pennsylvanians would then have the choice, through voter referendum, to amend the state Constitution to include a provision containing the following language:

“Marriage is the legal union of only one man and one woman as husband and wife and no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

The language contained in Metcalfe’s legislation is modeled after Florida’s marriage protection amendment, which was approved by more than 60 percent of Florida voters in 2008. The amendment was also unanimously ruled Constitutional by the Florida Supreme Court, after being challenged by the American Civil Liberties Union (ACLU).

To date, voters in 30 states have ratified similar amendments to their state constitutions.

“Pennsylvania voters deserve the opportunity to do the same,” Metcalfe said. “The definition of marriage as ‘the union of one man and one woman,’ defended and upheld by this legislation, is the traditional definition of marriage that has been recognized and accepted throughout history and the world for centuries. It should not be the Obama administration’s Department of Justice and the executive branch bureaucrats that decide this critical issue for our Commonwealth, but rather the voters.”

Though the text of the proposed amendment differs slightly from the version that failed last time around, the attempt to score cheap political points is ever present. Notably, from the last sentence of the press release, it appears that Rep. Metcalfe does not understand that President Obama ordered the Department of Justice to cease defending the portion of the federal DOMA that defines marriage for purposes of federal law. The President’s decision has nothing to do with the definition of marriage in Pennsylvania. But why bother with such legal niceties when you can fire up reactionaries by going after the LGBT community and the President all at once.

-Tony Infanti

Posted in Academia, LGBT Rights | Comments Off

Discount for Lesbian Moms

Posted on May 1, 2011 by Tony Infanti

A Brooklyn maternity store that is now giving a 10% discount to lesbian moms has prompted both criticism and now threats.

In a one-week period, Paperno [the owner of the store] says she’s fielded five crazed callers — mostly homophobes from out of state — who have spewed hate speech and even threatened to hurt her.

Among the comments reported in The Brooklyn Paper and their effect on the shop owner:

“This is blatantly discriminatory,” wrote Richard Sol, one commenter on the blog. “I wish godspeed to whomever sues these sexists.”

It got worse when several scary men — some of whom accused Paperno of trying to get rich in the name of sin — began to phone Boing Boing.

One called her, “a fat bull dyke who needs to get f—ed.”

Now, she says she’s scared to be alone at the shop at night.

The store owner decided to offer the discount “as a celebration of feminism and diversity” and out of a recognition that women make less money than men. She has been taking customers at their word in asking for the discount and said that the straight moms have had no problem with the discount.

I guess it is true that no good deed goes unpunished.

-Tony Infanti

Posted in Feminism and Families, LGBT Rights | Comments Off

King & Spalding Fired for “Obsequious Act of Weakness”

Posted on April 30, 2011 by Tony Infanti

The notoriously anti-LGBT Attorney General for the State of Virginia has fired King & Spalding in retaliation for its withdrawal from representing the U.S. House of Representatives in defending the constitutionality of the federal DOMA in court:

“King & Spalding’s willingness to drop a client, the U.S. House of Representatives, in connection with the lawsuit challenging the Defense of Marriage Act (DOMA) was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives,” Cuccinelli said in a letter to Joseph Lynch in the firm’s Washington, D.C. office.

Cuccinelli does, however, make an interesting point:

Cuccinelli said he acted because “Virginia does not shy away from hiring outside counsel because they may have ongoing professional relationships with people or entities, or on behalf of causes that I, or my office, or Virginia as a whole may not support. But it is crucial for us to be able to trust and rely on the fact that our outside counsel will not desert Virginia due to pressure by an outside group or groups.”

There have been reports that Coca Cola pressured the firm to drop the representation, and HRC had announced an “educational campaign” (which is just a nicer way of saying “campaign to boycott”) regarding King & Spalding’s acceptance of this representation. Legal ethicists have been debating the propriety of King & Spalding’s withdrawal and whether the broad gag rule in the retainer agreement was merely cover for caving into pressure from outside groups. I would be interested to hear what our readers have to say about the ethics of King & Spalding’s decision from a feminist perspective.

-Tony Infanti

Posted in Feminism and Law, LGBT Rights | Comments Off

DOL Adds Gender Identity and Pregnancy to Nondiscrimination Policy

Posted on April 29, 2011 by Tony Infanti

Here is the press release:

US Department of Labor announces renewed commitment to fair treatment and equal opportunity for all of its employees

New policy statements prohibit discrimination based on gender identity and pregnancy

WASHINGTON — The U.S. Department of Labor today announced its full commitment to implementing equal employment opportunity policies for all department employees and applicants. The policies ensure equal protections for all employees and applicants regardless of race; color; religion; national origin; sex, including pregnancy and gender identity; age; disability, whether physical or mental; genetic information; status as a parent; sexual orientation; or other non-merit factor. New, robust statements signed by Secretary Solis include updated policies on prohibiting discrimination on the basis of sex, including gender identity and pregnancy.

Secretary Solis strongly supports fair equal employment opportunity policies, and creating diversity and fairness in the workplace.

“I am expressing my personal commitment to ensure that the U.S. Department of Labor is a model workplace, free from unlawful discrimination and harassment, which fosters a work environment that fully utilizes the capabilities of every employee,” said Secretary Solis. “It is my goal that we achieve and maintain a high-quality, diverse workforce at all organizational levels throughout the department.”

The Labor Department is required to issue annual written policy statements expressing the secretary’s commitment to equal employment opportunity and a workplace free of discriminatory harassment, pursuant to 29 Code of Federal Regulations Part 1614, Federal Sector Equal Employment Opportunity, and the U.S. Equal Employment Opportunity Commission’s Management Directive 715. The EEOC’s directive identifies minimum requirements for the policy statements.

The statements issued by Secretary Solis articulate stronger protections and establish responsibilities to ensure meaningful adherence to equal employment opportunity throughout the department. They have been disseminated to all current employees and will be disseminated to new employees during orientation as well as to employees who are promoted into supervisory ranks.

The department’s policies on equal employment opportunity and harassing conduct in the workplace can be viewed at http://www.dol.gov/oasam/programs/crc/crc-internal/eeo.htm and http://www.dol.gov/oasam/programs/crc/crc-internal/Policy-Statement-on-Harassing-Conduct-in-the-Workplace.htm.

-Tony Infanti

Posted in Feminism and the Workplace, LGBT Rights, Reproductive Rights | Comments Off

Transgender Professor Denied Tenure and Fired

Posted on April 28, 2011 by Tony Infanti

In contrast to the good news for Danne Johnson, a professor at another Oklahoma university has apparently been denied tenure and terminated for being transgender:

Despite the complete support of her colleagues and direct superiors within Southeastern Oklahoma State University’s English, humanities and language department, Rachel Tudor, a professor of American and Native American literature, modernity and theory, humanities, composition and philosophy, has been denied tenure and informed that her employment will be terminated as of the end of this spring semester.

According to Claire Potter, a professor of American studies and history at Wesleyan University, Tudor has an amazing record as a scholar, teacher and colleague at the university and has been highly recommended by the tenure review committee. However, the dean and vice president of academic affairs deem Tudor’s “lifestyle” inappropriate, so they have taken actions to make sure Tudor leaves.

After transitioning, she had apparently been told that “she could only use the single handicap bathroom located quite a distance from her office.” And the vice president for academic affairs reportedly “openly asserted that Tudor’s lifestyle ‘offends his Baptist beliefs.’ ”

Click here to view the petition to reinstate Rachel Tudor.

-Tony Infanti

Posted in LGBT Rights | Comments Off

Another Pro-LGBT Billboard

Posted on April 28, 2011 by Tony Infanti

Following up on my earlier post today, this billboard in Toledo has also given rise to a mixed reaction:

According to a local news report, the Central United Methodist Church hoped that its billboard would generate conversation. And that it has. On the negative side:

One person wrote “homosexuality is a sin – it’s a curse not a gift. You are the one taking the scripture out of context …” Another said, “I am not against gays worshiping in our church, just against them holding leadership positions and teaching that being gay is okay with god. I am praying for your church. I fear you are going about this the wrong way.”

On the positive side:

One e-mail read, “Mavel tov on your “Gay is a Gift from God” campaign! I love that your church isn’t just quietly welcoming – you’re ready to shout about God’s perfect love for LGBTQ people from the rooftops!” Another e-mail of support came from halfway across the world. “I am writing to you from London, England and wish to thank you for being so clear in your message of love and tolerance of all of people on this planet…Thank you, once again for helping to spread the light of gods love. If we all work together, a difference can and will be made.”

Kudos to the church for getting the conversation started!

-Tony Infanti

Posted in LGBT Rights | Comments Off

Congratulations to Danne Johnson!

Posted on April 28, 2011 by Bridget Crawford

Congratulations to Danne Johnson whose tenure at Oklahoma City University School of Law whose was confirmed yesterday by the trustees.

Professor Johnson also has been named the winner of OCU’s 2011 Student Choice Awards for Best Mentor and Favorite Overall Professor.

Professor Johnson presently serves as Chair of the AALS Section on Women in Legal Education. Her publications include:

(forthcoming) New Century Freedom for the Freedmen, __ University of Miami Race and Social Justice Law Review __-__ (2011)
(forthcoming) Untwisting Lifeline NonProfits in the Economic Crisis, __ Georgetown Journal of Poverty Law & Policy __-__ (2011)
Seeking Meaningful Nonprofit Reform in a Post Sarbanes-Oxley World, 54 St. Louis University Law Journal 187-237 (2009)
SEC Settlement: Agency Self-Interest or Public Interest, 12 Fordham Journal of Corporate & Financial Law 627-684 (2007).

Congratulations!

-Bridget Crawford

Posted in Chutes and Ladders | Comments Off

Planned Parenthood Taking Flak for LGBT Outreach

Posted on April 28, 2011 by Tony Infanti

Planned Parenthood of the Southern Finger Lakes, which is an affiliate located in upstate New York, has been taking flak (reports here and here) for this billboard:

A local politician objected to this billboard, which is part of the organization’s programming under a five-year grant from the State of New York to address documented health disparities in rural LGBT communities, because the message “seems to be in support of same sex marriage and using tax payer dollars to support that political agenda.” And this even though the billboard makes absolutely no mention of marriage and touts Planned Parenthood, a health care provider, as being “here” and “proudly serving the LGBT community.”

Maureen Kelly, vice president of programming and communications for Planned Parenthood of the Southern Finger Lakes, reported that, aside from this politician’s remarks, the opposition to the billboard did not focus on same-sex marriage but “on broader opposition to the ‘gay lifestyle.’ ” Among the comments from locals on the news:

“I don’t agree with the gay community it has something to with the kids. I don’t want my kids seeing something like that.”

“I think it should be a man and a woman. It’s adam and eve not adam and steve. I wouldn’t pay attention to it.”

Fortunately, not all of the response has been negative, political, and playing into stereotypes:

Despite the outcry, Kelly said most of the feedback since February has been positive. The campaign represents the first time Planned Parenthood of the Southern Finger Lakes has ever presented a billboard to rally the LGBT population around access to health care.

“There’s been a whole swell of fabulous people from around town,” she said. “We have enough both anecdotal and e-mail feedback about how much it means to people.”

-Tony Infanti

Posted in LGBT Rights | 2 Comments

Article of Interest: Kerri L. Stone’s Clarifying Stereotype

Posted on April 27, 2011 by Colin Miller

Federal Rule of Evidence 801(d)(2)(E) provides that “[a] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E) is based upon agency theory. As long as co-conspirators are engaged in a conspiracy, statements made by one conspirator in furtherance of that conspiracy are attributable to co-conspirators. But when exactly is a statement in furtherance of a conspiracy? Well, as the Court of Appeals of Idaho noted in State v. Rolon, 201 P.3d 657 (Idaho.App. 2008), there is a split among the courts.

Some courts find that “stray” comments qualify as co-conspirator admissions. For instance, in United States v. Clark, 18 F.3d 1337 (6th Cir. 1994), Jeffrey Mullins, Roger Clark, and others allegedly robbed three banks. After the third alleged robbery (but before the money from the robbery was distributed), Mullins said to his girlfriend that “Roger (Clark) got sick, that he was a wimp, that he couldn’t handle it any better than anybody else could. Everybody wanted part of the money, but they couldn’t handle the job.” The Sixth Circuit found no problem with the girlfriend testifying concerning this statement under Federal Rule of Evidence 801(d)(2)(E), finding that a “statement need not actually advance the conspiracy to be admissible” and that “statements which identify the participants and their roles in the conspiracy are made ‘in furtherance’ of a conspiracy.” The court in Rolon rejected this reading of Rule 801(d)(2)(E) and joined those courts that had held that “a determining factor is whether a statement in any way assists or advances the objectives of a conspiracy-otherwise such a statement is not ‘in furtherance’ as prescribed by the rule.”

This split was the first thing that I thought about after reading the terrific recent article, Clarifying Stereotype, 59 U.Kan. L. Rev. 591 (2011), by Kerri L. Stone, a professor at the Florida International University College of Law. The major point of Professor Stone‘s article is that, in the wake of the Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), courts have cited to Hopkins “in a one-size-fits-all manner in virtually every case brought under Title VII in which stereotyping of any kind or in any context has been alleged.” In other words, courts themselves have engaged in stereotypical thinking in addressing Title VII stereotyping claims, sometimes leading to similar claims being treated disparately and other times leading to disparate claims being treated similarly. And this is how we end up with a supervisor’s “stray” stereotypical comment to an employee being one court’s garbage but another court’s treasure. Professor Stone‘s goal in the article is to dig beneath courts’ habitual citations to Hopkins and see what really is (and should be) going on.

Continue reading →

Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminist Legal Scholarship | Comments Off

CFP: Critical Perspectives on Tax Policy Workshop

Posted on April 27, 2011 by Tony Infanti

Dorothy Brown, a leading (and always exciting, interesting, and provocative!) voice in critical tax theory, is organizing a critical tax workshop to take place this fall at Emory University. Here is the call for papers that she has begun circulating:

Critical Perspectives on Tax Policy Workshop

Call for Papers

This is a call for individual paper presentations or incubator ideas that look at tax policy from a critical perspective. A critical perspective on tax policy interrogates the ways that tax policy impacts historically disadvantaged groups. Critical perspectives on tax policy for this workshop will be limited to a focus on at least one of the following topics: race or ethnicity, socio-economic status, gender or gender identity/expression, sexual orientation, or disability. Those examining tax policy in a critical way from a legal, social science, humanities, or comparative/international perspective are encouraged to participate. The goals of this workshop are to connect those of us working throughout the academy in this area with each other, welcome new members into the critical perspectives community, provide collaborative support for our research, and transmit that to a wider audience. The conference will take place at Emory Law School in Atlanta, GA on September 16-17, 2011.

There will be no registration fee. The cost of all meals will be provided by Emory Law School; however, each participant will be responsible for their own transportation costs and hotel expenses. The conference hotel will be the Emory Conference Center, and the group rate is $99 per night. The block of rooms will be available at the group rate until August 15, 2011. To reserve a room please contact my administrative assistant Mr. Daniel Kim at djkim3@emory.edu or 404-727-9434.

Abstracts no greater in length than 500 words including name, affiliation, and contact information should be submitted no later than June 30, 2011 via e-mail to Dorothy Brown at Dorothy.Brown@emory.edu. Participants will be notified whether their proposal was accepted no later than August 1, 2011.

-Tony Infanti

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Sarah Weddington Cut from Texas Adjunct Ranks

Posted on April 26, 2011 by Bridget Crawford

Sarah Weddington, who represented the plaintiff in Roe v. Wade, has been teaching at the University of Texas at Austin since 1988. She is an adjunct professor in Women’s and Gender Studies and has a salary of $80,899 per year. Her position will not be renewed because of budget cuts. Here’s what The Daily Texan has to say:

Weddington said she was aware of the looming budget crisis but was surprised to hear her position was in jeopardy.

“I always thought that tenure for me was not that important because I thought as long as you were really good at what you do and did a lot to work with your students, you’d be OK,” she said. “Now I know I was wrong.”

Weddington said she received an email on Feb. 8 from Susan Heinzelman, Center for Women’s and Gender Studies director, telling her there would not be funding for her to continue teaching. The email said the center was facing a 25.9-percent cut totaling more than $58,000 and would have to cut faculty positions. According to the UT employee salary database, Weddington makes $80,899 per year.

Heinzelman said because of the 25-percent budget cut spread over three years, the center has no money to hire any teaching faculty this year, though in the past it has hired three to five adjunct professors a year, Heinzelman said. The money that remains is allocated to fund an incoming cohort of about 10 graduate students. * * *

Weddington currently teaches two undergraduate courses that are in high demand, said Jo Anne Huber, director of government undergraduate advising. She said it is not uncommon for Weddington’s classes to fill within a few hours of opening for registration.

“We opened our door at 8:30 and at 8:35 a student came in wanting to be on her list,” she said. “I had to tell him we weren’t signing people up because we weren’t sure she would be teaching in the fall and he was very disappointed.”

Alumnus Eric Cuellar, one of Weddington’s former students, wrote a letter to President William Powers Jr. saying the University would benefit from keeping Weddington.

He said Weddington’s “Leadership in America” class, which he took in spring 2010, was the best class he had during his time as an undergraduate at UT. Cuellar said he spent more time in her office than he did in any other professor’s at UT, and he believes he is a stronger leader for having taken her class.

“Being around a person like that is an experience that I wish every UT undergrad could experience,” he said in the letter. “I will never forget Dr. Weddington and her class as long as I live, and I hope you do not forget her either.”

Although she is identified as a world-renowned speaker and was named one of Time magazine’s “Outstanding American Young Leaders” in 1980 for her many national accomplishments, Weddington said it is teaching that will “leave a hole” in her life once she moves on.

“I’ve really loved teaching because I’ve gotten to work with wonderful, talented students and I’m really proud of all the things they have gone on to do,” she said. “That’s what I’ll miss, and believe I would not be leaving here voluntarily.”

Read the full story here.

-Bridget Crawford

Posted in Feminists in Academia | Comments Off

On Civil Marriage

Posted on April 26, 2011 by Christine Corcos

Jessica Knouse, University of Toledo College of Law, is publishing Civil Marriage: Threat to Democracy in the 2012 volume of the Michigan Journal of Gender & Law. Here is the abstract.

This article argues that civil marriage and democracy are inherently incompatible, whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.

Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.

Download the article from SSRN at the link.

Posted in Feminism and Law, If you're a woman | Tagged marriage | Comments Off

Paul Clement Leaves King & Spalding to Continue Defending DOMA

Posted on April 25, 2011 by Tony Infanti

Following up on my earlier post today, there are now reports that Paul Clement has left King & Spalding so that he can continue to defend DOMA on behalf of the House of Representatives. According to his letter, Clement’s decision stemmed from his “firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” And he specifically states that his decision to leave is not because he has strongly held views about DOMA. But if a lawyer does not necessarily agree with a client’s views simply by dint of taking on representation, why the need to muzzle all of the other lawyers in the firm to do your job?

-Tony Infanti

Posted in LGBT Rights | Comments Off

King & Spalding Withdraw from Defending DOMA

Posted on April 25, 2011 by Tony Infanti

After a week of weltering criticism, King & Spalding has decided to withdraw from defending DOMA on behalf of the U.S. House of Representatives. The reason: the process used for vetting the assignment was “inadequate.” Given the concerns that Katherine Francke and others have raised regarding the attempt to muzzle employees not working on the DOMA litigation from working to repeal the law, I think this is an understatement.

-Tony Infanti

Posted in LGBT Rights | Comments Off

ACLU’s “Don’t Filter Me” Project

Posted on April 22, 2011 by Tony Infanti

As part of its “don’t filter me” project, the ACLU of Pennsylvania recently sent a letter to a Philadelphia-area school district demanding that it lift its ban on accessing LGBT content on the internet. But this problem is in no way unique to Pennsylvania. Here is the national ACLU’s state-by-state map of web filtering:

The ACLU has a form on its web site that gives high school students instructions on how to test their schools’ computers for software that filters LGBT web sites. The students are told to check to see if they are blocked from viewing information regarding the day of silence, GLSEN (the Gay Lesbian Straight Education Network), the GSA (gay/straight alliance) Network, the Trevor Project, and the It Gets Better Project. Apparently because some schools configure their filtering software to only block positive LGBT web sites, students are also asked to check to see if they are blocked from viewing antigay web sites (e.g., Parents and Friends of Ex-Gays).

Naturally, the objection to this filtering software is that it is an infringement on freedom of speech as well as, in the case of blocking access to information regarding the formation of gay/straight alliances, a violation of the Equal Access Act, which guarantees students equal access to school resources for extracurricular activities.

-Tony Infanti

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Charges in the Tyler Clementi Case

Posted on April 21, 2011 by Bridget Crawford

From the Chronicle:

A former freshman at Rutgers University at New Brunswick who allegedly used a hidden Web camera to broadcast his roommate’s sexual encounter with another man was indicted on Wednesday on 15 counts in a case that drew nationwide attention last fall when the roommate, Tyler Clementi, killed himself.

Dharun Ravi, 19, reportedly used a camera in the dormitory room he shared with Mr. Clementi last September to secretly Webcast Mr. Clementi’s encounter. Days later, Mr. Clementi committed suicide by jumping from the George Washington Bridge.

In a case brought before a grand jury by the Middlesex County Prosecutor’s Office, Mr. Ravi was charged with two counts each of invasion of privacy, attempted invasion of privacy, second-degree bias crimes, and third-degree bias crimes, reports The Star-Ledger, a newspaper in New Jersey. Mr. Ravi also faces charges of tampering with evidence, hindering his own apprehension, and witness tampering. Invasion of privacy and attempted invasion of privacy are offenses that could result in penalties of up to five years in prison.

Rutgers said it would not release a statement in response to the charges. Mr. Ravi withdrew from the university in October, along with Molly Wei, another former Rutgers freshman who was charged with invasion of privacy following Mr. Clementi’s suicide. The charges against Ms. Wei are pending, and her case was not presented to the grand jury, The Star-Ledger reports.

The full story is here.

-Bridget Crawford

Posted in Acts of Violence, LGBT Rights | Comments Off

Big Law’s New Version of Don’t Ask Don’t Tell: King & Spalding Muzzles All Employees From Advocating Repeal of the Defense of Marriage Act

Posted on April 21, 2011 by Katherine Franke

Metro Weekly has the story, but this is outrageous. Paul Clement, partner at King & Spalding, signed the firm up to represent the House of Representatives in defending DOMA, the agreement between the firm and the government contains a provision that prohibits all King & Spalding attorneys and non-attorney employees from any advocacy to “alter or amend” DOMA. Here’s the exact language:

“partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”

This contract provision if surely offensive, but it’s illegal in several states where the firm has offices. New York law, for instance, states

Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:

an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal …

McKinney’s Labor Law § 201-d (2)(a)

Similarly, the California labor code states that: “[n]o employer shall make, adopt, or enforce any rule, regulation, or policy … [f]orbidding or preventing employees from engaging or participating in politics ….”

Of course King & Spalding can take on the representation of a public client on a matter of public concern, but this kind of firm-wide gag rule is quite another. It’s illegal and it’s wrong.

FYI – King & Spalding’s website has a lovely page describing their robust commitment to diversity. The gag rule probably violates firm policy as well:

At King & Spalding, we recognize that diversity is more than just a buzz word, it is an integral part of our culture. We believe that the diversity of our firm significantly enhances our ability to provide the highest quality legal services to our clients. We strive to create a collaborative environment that benefits from the sharing of experiences, ideas and unique qualities that each of our lawyers brings to the firm.

Of course, we recognize that diversity and inclusion are about more than numbers. Because diversity is one of the firm’s core values, it is supported by a standing committee that leads the firm’s diversity and inclusion efforts.

. . .

The Diversity Committee includes partners, counsel and associates from across the firm and the members represent differences in ethnicity, race, gender, lifestyles (?? is this a closet word for sexual orientation?), backgrounds and viewpoints.

. . .

Each partner in the firm has committed to spend a minimum of 15 hours working on diversity and inclusion efforts. In 2009, our partners devoted more than 2800 hours to diversity efforts. This is in addition to the time spent on associate professional development activities.

(emphasis mine)

Finally, on the firm’s “LGBT Diversity” page they describe how they “encourage and support their partners, counsel, and associates taking leadership roles in organizations serving the LGBT community:

Partner Sam Griffin has served as co-chair of Georgia’s Multi-Bar Leadership Council, and is a member of the board of directors for the Stonewall Bar Association of Georgia, the statewide group for LGBT legal professionals.

Associate Brian Basinger is President of the Stonewall Bar Association of Georgia. Mr. Basinger also has served on the board of directors for Georgia Equality, the statewide non-partisan LGBT advocacy organization.

The firm’s LGBT Affinity Group provides opportunities for partners, attorneys, and counsel throughout the firm to interact and collaborate on diversity efforts.

Are all these nice people going to have to resign from their community work in light of the contract Clement negotiated to defend DOMA?

Cross-posted from Gender & Sexuality Law Blog
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Posted in Academia | Comments Off

Latina Lawyers Before the Supreme Court

Posted on April 21, 2011 by Christine Corcos

Maria Guadalupe Mendoza has published The Thirteen Known Latina Litigants Before the Supreme Court of the United States. Here is the abstract, updated April 3, 2011.

From 1935 to 2010, only thirteen known Latinas have argued before the Supreme Court of the United States. The first known Latina to argue before the United States, Miriam Naveira Merly, then serving as the Solicitor General to Puerto Rico, argued before the High Court in 1975. A year later, Vilma Martinez, the first known Mexican American woman to appear before the Supreme Court, argued East Texas Motor Freight Sys., v. Rodriguez, marking the last time the 1970s was known to entertain an appearance by a Latina advocate. Over the course of the 1980s, six Latinas are known to have litigated before the Court, and sadly, the 1990s only brought one known appearance by a Latina before the High Court. From 2000 to 2010, four known Latinas have argued before the Supreme Court.

Before the Supreme Court, these Latinas took on everything from the battles of the downtrodden and the impoverished – including the legal woes of the Latino community – and they took on the causes of the government. After defying odds and breaking down barriers, these Latinas went on to become the “firsts” to hold particular positions such as judgeships, Ambassador to Argentina, law school professor, and appellate attorney. They are perhaps the most underrepresented demographic to appear before the Court, which is unfortunate, because Latinas are now part of the nation’s largest, youngest, and fastest growing minority in the United States. Historically, advocates from all walks of life have powerfully shaped our nation’s laws to reflect the values, priorities and character of the American people, and the Supreme Court bar and greater legal profession must act aggressively to ensure that “we the people” continue to contribute to the development of the law.

These Latinas who powerfully shaped our laws deserve to go down in history along with the other “firsts” and champions of the Supreme Court, but unfortunately, never before has there been an attempt to learn who was the “first” Latina to argue before the Supreme Court or learn about the history of Latina litigants before the High Court. By interviewing these Latina litigants about their formative experiences, entry into the legal profession, and the pathway these remarkable Latinas took to present their argument before the High Court, this article tries to understand why so few Latinas have argued before the Supreme Court. Part one of this article addresses the lack of research on Latinas before the Court, and why caring about the history of Latina litigants before the Supreme Court matters. Part two of this article looks both at the salient barriers and opportunities that made it possible for these Latinas to argue before the Court, and part three of this article focuses on the life and career of these Latina litigants. Part four of this article describes how the dearth of appearances by Latina advocates is highly influenced by the rise of a small group of elite lawyers who focus on Supreme Court cases, the Court’s shrinking docket, and the bleak state of Latinas in the legal profession.

The full text is not available from SSRN, but Ms. Mendoza intends to make additional research via an article available in future. On the issue of Latina/Latino attorneys to argue before the High Court, see also Michael A. Olivas’ The First Latina and Latino Lawyers To Argue Before [the] Supreme Court. [Hat tip to Maria Guadalupe Mendoza].

Posted in Feminism and Law, Feminist Legal History, If you're a woman, The Underrepresentation of Women | Tagged Legal History, The Judiciary | Comments Off

Where are the Women? Cornell Law Review Edition

Posted on April 20, 2011 by Bridget Crawford

There are none published in Volume 96:2 (January 2011) of the Cornell Law Review.

Cornell Law Review, Volume 96 Number 2 (January 2011)

Articles

Deciding When to Decide: How Appellate Procedure Distributes the Costs of Legal Change
Aaron-Andrew P. Bruhl

Consent versus Closure
Howard M. Erichson & Benjamin C. Zipursky

Destructive Coordination
Charles K. Whitehead

Notes

Welfare Family Caps and the Zero-Grant Situation
Christopher Dinkel

Confrontation Clause Violations as Structural Defects
David H. Kwasniewski

-Bridget Crawford

Posted in Academia, Where are the Women? | Comments Off

Putting a Price on Discrimination

Posted on April 19, 2011 by Tony Infanti

The Huffington Post has obtained a copy of the agreement retaining the law firm of King & Spalding to step in to defend section 3 of the federal Defense of Marriage Act. (Click here and here for prior posts on President Obama’s decision to order the Justice Department to cease defending the law in court.)

The agreement places an initial cap on the cost of defending DOMA at $500,000. As Joe Solmonese from HRC points out, with the federal government being charged a “blended rate of $520 per hour” and the large number of lawsuits (he says, at least nine) challenging DOMA already pending, it would not take long at all to bust through this cap. Under the agreement, the cap can be raised by written agreement with the approval of the Committee on House Administration of the U.S. House of Representatives. Given the open-ended nature of this commitment to pay private lawyers to defend DOMA in court, it seems that the Republican leadership in the U.S. House of Representatives considers the ability to continue discriminating against the LGBT community to be truly priceless.

(By way of a tax aside, I would note that the agreement with King & Spaulding engages them to defend DOMA in the bankruptcy courts, federal district courts, federal courts of appeals, and U.S. Supreme Court. No specific mention is made of the U.S. Tax Court or U.S. Court of Federal Claims. The agreement, of course, prefaces its list with the usual “including, but not limited to,” but I though it interesting that there was no specific enumeration of tax fora. This is odd in view of the fact that two of the pending DOMA challenges are tax cases, though they both happen to have been brought in federal district court.)

-Tony Infanti

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Arizona–Compassionless Conservatism

Posted on April 19, 2011 by Tony Infanti

Coming on top of its xenophobic racial profiling law and the decision to help balance the state budget by cutting funding for organ transplants, Arizona Governor Jan Brewer signed into law yesterday S.B. 1188, which gives a specific preference to married different-sex couples over “singles” (i.e., everyone else–including, especially, same-sex couples) in both public and private adoption agency placements. The bill also contains accompanying requirements for reporting regarding the marital status of adoptive parents.

In the Arizona Republic story on the bill, the bill is justified by its supporters in the following terms:

Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mother and father.

But, given the shortage of adoptive parents, doesn’t this justification ring hollow? Are we really helping children by waging the culture wars at their expense rather than doing everything we can to find them a good home? Take a look at this quote at the end of the article, which is far more revealing, especially for what it does not say:

But Cathi Herrod, president of the Center for Arizona Policy and a strong advocate of SB 1188, said Monday that the bill was among those that dealt with “critical issues of life, marriage and religious liberty,” and that she was “grateful” for the governor’s support.

See any mention of children in there?

-Tony Infanti

Posted in LGBT Rights | Comments Off

What’s on Your (Seder) Plate?

Posted on April 18, 2011 by Bridget Crawford

Even Time magazine is hip to the orange on the seder plate:

Some may consider the orange a symbol of women’s rights, derived from a man supposedly telling Professor Susannah Heschel that “a woman belongs on the bimah [in a leadership position in the congregation, or reading from the Torah] as much as an orange belongs on the seder plate.” But Heschel herself has said that no such exchange took place, and the orange has a different meaning. Reflecting on when she added the orange to her seder plate in the 1980s, she says it was to be eaten “as a gesture of solidarity with Jewish lesbians and gay men, and others who are marginalized within the Jewish community,” including widows. The seeds, symbolizing homophobia, were to be spat out. Bottom line: There’s room for more symbols on the seder plate — and room for more participants around the seder table.

The full Time coverage is here.

-Bridget Crawford

Image source: http://chezpim.typepad.com (here)

Posted in Feminism and Religion | Comments Off

Shh! Today Is the Day of Silence

Posted on April 15, 2011 by Tony Infanti

For more info from GLSEN (the Gay Lesbian Straight Education Network), click here.

-Tony Infanti

Posted in LGBT Rights | Comments Off

Transmen’s Health Care at Planned Parenthood

Posted on April 15, 2011 by Tony Infanti

Planned Parenthood of Western Pennsylvania, which is located in Pittsburgh (where I live and teach), has announced “Extended Clinic Hours for Transgender, FTM, Two-Spirit, Genderqueer, Gender Nonconforming, Butch Women, Queer and Questioning people.” They explain the impetus for the extended hours as follows:

Transgender people often experience discrimination in healthcare settings. Here at Planned Parenthood of Western Pennsylvania we want to create a safer space for transgender and gender nonconforming people to get the care they need.

The National Gay and Lesbian Task Force and the National Center for Transgender Equality recently came out with the largest transgender research study to date. According to their findings:

55% of Transmen have forgone care due to inability to pay

42% of Transmen have postponed necessary care due to discrimination by providers

The extended hours are next Wednesday, Apr. 20th, from 5-8 p.m. They will be providing refreshments, free lube and condoms, a transmen’s health resources table, free STD testing, group or individual clinic tours, an opportunity to meet staff and ask questions, one-on-one consultations, pap testing and pelvic exams, and a feedback system.

-Tony Infanti

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Where are the Women (and Gays and Lesbians)? Surgery Edition

Posted on April 15, 2011 by Tony Infanti

This bizarre editorial in Surgery News has highlighted issues regarding the treatment of women and lesbians and gay men in the community of surgeons. Dr. Pauline Chen has a well-contextualized (if depressing) piece explaining the controversy over at the New York Times web site.

-Tony Infanti

Posted in Feminism and Science, LGBT Rights, Where are the Women? | Comments Off

Where are the Women? William and Mary Law Review Edition

Posted on April 14, 2011 by Bridget Crawford

There are no female authors among the 8 writers published in Issue 52:4 (March 2011) of the William and Mary Law Review.

C’mon, editors, you can do better.

-Bridget Crawford

Posted in Academia | Comments Off

Astonishing Reversal in Adar v. Smith

Posted on April 14, 2011 by Tony Infanti

In an astonishing reversal, the 5th Circuit has issued an en banc decision that upholds Louisiana’s refusal to issue a revised birth certificate to a New York same-sex couple who adopted a child born in Louisiana to reflect both members of the couple as the child’s parents. The federal district court and a panel of the 5th Circuit had earlier ruled against Louisiana and in favor the same-sex couple.

The court’s majority placed heavy emphasis on the fact that Louisiana recognized the validity of the couple’s New York adoption of the child. It held that it was perfectly permissible for Louisiana, while recognizing the validity of the New York adoption decree, to then simply refuse to issue a revised birth certificate reflecting that decree. According to the court:

Louisiana can be described as the “sole mistress” of revised birth certificates that are part of its vital statistics records. Louisiana has every right to channel and direct the rights created by foreign judgments. Obtaining a birth certificate falls in the heartland of enforcement, and therefore outside the full faith and credit obligation of recognition.

Adar v. Smith, slip op. at 21 (citation omitted). And, in considering the couples’ equal protection claim, the court found that Louisiana’s treatment of the children of unmarried couples was unproblematic because the state could rationally prefer the stable environment of a married couple or a single individual to that of a cohabiting couple who could separate at any time. Amazingly, no mention is made by the majority of the fact that Louisiana bars same-sex couples from marrying and does not recognize a same-sex couple’s marriage entered into out of state, meaning that a same-sex couple could never be considered stable under any circumstances. The majority also ignored, as the dissent points out, that this distinction between married and unmarried couples is made in Louisiana’s adoption laws–which did not apply to this case–but not in its laws governing the issuance of birth certificates–which were the central issue of the case.

The dissent, which decries the majority’s “judicial legerdemain” (slip op. at 35), is scathing, palpably exasperated, and definitely worth the read. As the dissent puts it:

[I]t is certainly Louisiana’s prerogative to determine the benefits to which out-of-state “adoptive parents” are entitled in Louisiana, but the FF&C [Full Faith and Credit] Clause nevertheless mandates that (1) Louisiana “recognize” all valid out-of-state status judgments and (2) Louisiana evenhandedly confer to all such judgment-holders those benefits that Louisiana law does establish. Here, Louisiana law declares that every “adoptive parent” is entitled to have his or her name reflected on a corrected birth certificate. Yet, the Registrar un-evenhandedly refuses to issue such a certificate to Appellees for the sole reason that she will not “accept,” viz., give full faith and credit to, their unquestionably valid out-of-state judgment. What else could this mean but that she refuses to recognize the out-of-state judgment that defines Appellees as “adoptive parents”?

Slip op. at 35. The dissent goes on to state:

I lament that, in its determination to sweep this high-profile and admittedly controversial case out the federal door (and, presumably, into state court), the en banc majority:

• Strips federal district and appellate courts of subject matter jurisdiction over violations of the FF&C Clause.

• Unduly cabins, if not emasculates, Ex parte Young and § 1983 by holding that the federal courts may not enjoin a state’s refusal to act in accordance with the mandate of the FF&C Clause.

• Creates a circuit split on the full faith and credit that must be afforded to valid, out-of-state adoption decrees by the adopted child’s birth state, as well as the availability of a federal forum for deciding such claims.

• Dismisses sua sponte the Appellees’ very likely winning claims under the Equal Protection Clause without affording the district court, as the court of “first impression,” the initial opportunity to hear the evidence, analyze the case, and adjudicate those claims, as historically required by the prudence and practice of this and other appellate courts.

Slip op. at 36. (Note that the circuit split mentioned by the dissent refers to the 10th Circuit’s decision in Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), which considered a similar issue and came it in favor of the same-sex couple.)

-Tony Infanti

Posted in LGBT Rights | Comments Off

Film About Loving v. Virginia at Tribeca Film Festival

Posted on April 13, 2011 by Bridget Crawford

The Tribeca Film festival begins next week. Included in the film line-up is Loving Story, a documentary about Mildred and Richard Loving. Here is the film description:

Loving v. Virginia was a watershed civil rights case in which the United States Supreme Court declared Virginia’s anti-miscegenation statute unconstitutional in 1967. A racially charged criminal trial and a heartrending love story converge in this documentary about the Lovings, an interracial couple who fell in love and married at a tumultuous social and political time in American history, yet nevertheless brought about change where previously no one else could. Through stunning archival footage of the Lovings, the film revisits this public battle through the eyes of a private couple who simply wanted to have the right to get married and live in the place they called home.

Director Nancy Buirski reacquaints us with this famous couple with the same grace and elegance of the soft-spoken but driven Mildred Loving herself, and subsequently breathes vibrant new life into history. Beyond the trials and legal battles, Buirski delicately anchors this inspiring film in an engaging human love story with a timely message of marriage equality, echoing the words of Mildred on the 40th anniversary of the Supreme Court decision: “I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

More info about the film is here. Read an interview with director Nancy Buirski here.

After the 5:30 p.m. screening on April 27, 2011 at SVA Theater (33 West 23rd Street, b/n 8th and 9th), the audience may join director Nancy Buirski, attorney Phil Hirschkop, Esq. (counsel for the Lovings), and Anthony Romero, Executive Director of the ACLU. They will discuss the case and contemporary issues of race and marriage equality.

-Bridget Crawford

Posted in Courts and the Judiciary, Feminism and the Arts, Feminist Legal History, Race and Racism | Comments Off

Policing Gender

Posted on April 13, 2011 by Tony Infanti

This J. Crew ad has been causing some controversy over at Fox News because a mom is painting her son’s toe nails PINK! Dr. Keith Ablow had this to say about the ad:

Yeah, well, it may be fun and games now, Jenna, but at least put some money aside for psychotherapy for the kid—and maybe a little for others who’ll be affected by your “innocent” pleasure.

This is a dramatic example of the way that our culture is being encouraged to abandon all trappings of gender identity—homogenizing males and females when the outcome of such “psychological sterilization” [my word choice] is not known.

And it just goes down hill from there:

Well, how about the fact that encouraging the choosing of gender identity, rather than suggesting our children become comfortable with the ones that they got at birth, can throw our species into real psychological turmoil—not to mention crowding operating rooms with procedures to grotesquely amputate body parts? Why not make race the next frontier? What would be so wrong with people deciding to tattoo themselves dark brown and claim African-American heritage? Why not bleach the skin of others so they can playact as Caucasians?

Why the dire need to put children into color-coded boxes? Into stereotyped gender roles? What psychological harm does this do to kids (like myself) who are(were) gender nonconforming at an early age but who are (were) pushed to be gender conforming (in my case, by other kids who had already absorbed the need to conform to rigid gender roles in our society, no less!)?

For some push back, check out this and this.

-Tony Infanti

Posted in LGBT Rights | 1 Comment

CFP: Race and Criminal Justice in the West

Posted on April 13, 2011 by Bridget Crawford

From the FLP mailbox:

Conference Announcement and Call for Papers: Race and Criminal Justice in the West

Gonzaga University School of Law, Friday-Saturday, September 23-24, 2011

Sponsored by: Gonzaga University School of Law, The Task Force on Race and the Criminal Justice System

Description

This conference seeks to examine the topic of race and the criminal justice system in the Western states. Racial minorities continue to be overrepresented in our criminal justice system; yet too often concerns about the high arrest and incarceration rates are dismissed as simply the result of a high rate of criminality. This conference will explore the role of bias, both conscious and unconscious, to ask whether race still matters in our criminal justice system. While the emphasis will be on the West, we welcome papers and presentations focusing on other areas of the country, particularly ones that engage in comparative analyses. Examples of the topics we expect to explore include:

historical treatment of racial minorities with crime in the West
empirical research examining the role of racial bias in the criminal justice system
changing demographics and immigration reform
unique experiences of African-Americans, Asian-Americans, Latinas/os, and Native Americans with the criminal justice system
role and impact of police actions, prosecutorial discretion, and judicial decisions
comparative analyses of the criminal justice in the West with other areas of the country
solutions for addressing the problem of racial bias.

We invite scholars, practicing lawyers, prosecutors, judges, law enforcement officials, and engaged citizens to submit proposals for individual papers and presentations dealing with these and related issues. We also seek your participation as panel moderators.

The Honorable Barbara Madsen, Chief Justice of the Washington Supreme Court, will be delivering the keynote address on Friday, September 23.

Papers selected for publication will be published by the Gonzaga Law Review in a special symposium issue.

We anticipate approving the conference for CLE credit.

Proposal Submissions

Proposals must contain the following information:

Name, Address, Phone, and e-mail
Title of Presentation and whether you seek, additionally, to submit a Paper for publication
A statement of up to 300 words explaining your topic

We welcome suggestions for full or partial panels. If you suggest a panel, please be certain to submit the above information for each participant.

If you would be willing to serve as a moderator, please indicate that on your proposal.

Deadline for submission of proposals is June 6, 2011. Please submit proposals via e-mail to Professor Jason Gillmer at jgillmer@lawschool.gonzaga.edu. Those submitting can expect to receive a response by July 1, 2011.

Final drafts of papers will be due October 24, 2011. Publication decisions for papers will be made by the Gonzaga Law Review.

-Bridget Crawford

Posted in Call for Papers or Participation | Comments Off

Serena Mayeri, “Reasoning from Race: Feminism, Law, and the Civil Rights Revolution”

Posted on April 13, 2011 by Bridget Crawford

Anyone interested in feminist jurisprudence or rights discourse will want to read this new book by Serena Mayeri (Penn): Reasoning from Race Feminism, Law, and the Civil Rights Revolution. The publisher’s description is here.

Mayeri uncovers the history of an often misunderstood connection at the heart of American antidiscrimination law. Her study details how a tumultuous political and legal climate transformed the links between race and sex equality, civil rights and feminism. Battles over employment discrimination, school segregation, reproductive freedom, affirmative action, and constitutional change reveal the promise and peril of reasoning from race—and offer a vivid picture of Pauli Murray, Ruth Bader Ginsburg, and others who defined feminists’ agenda.

Looking beneath the surface of Supreme Court opinions to the deliberations of feminist advocates, their opponents, and the legal decision makers who heard—or chose not to hear—their claims, Reasoning from Race showcases previously hidden struggles that continue to shape the scope and meaning of equality under the law.

That description is a bit too modest, in my view. Mayeri pulls back the layers of the complicated story behind constitutional litigation and looks at how advocates for sex equality borrowed from Civil Rights-era ideas and discourse to advance women’s claims. This work is nothing short of spectacular.

-Bridget Crawford

Posted in Feminist Legal History | 1 Comment

ClassCrits IV:CFP: Criminalizing Economic Inequality, Sept. 23-24 2011 at American University

Posted on April 13, 2011 by Bridget Crawford

ClassCrits IV: Criminalizing Economic Inequality, Sept. 23-24 2011 at American University

Deadline for paper proposals is May 6, 2011.

The dominance of “free market” economic theory and policy has been accompanied in the U.S. by increasing reliance on the criminal justice system to make and enforce economic policy. The criminal justice system is increasingly used to control persons and groups whose participation in formal markets is marginal at best. Many aspects of traditional immigration law have morphed into “crimmigration”, appropriating domestic criminal law enforcement tools and redefining whole communities of workers and their families as “illegal people.” States and municipalities have criminalized the lives of homeless people, including those who are mentally ill. International markets in heroin, cocaine, and marijuana are the targets of a “war on drugs” fought through criminal justice (and military) methods. Criminal law is used to deter and punish sex trafficking, and the criminal justice system buttresses, or substitutes for, welfare policy. At the same time, corporate wrongdoing has been lightly punished, if at all, and the drumbeat against “government” as the enemy of the people continues unabated. In this sense, economic inequality has not been “criminalized” at all. Quite the opposite, powerful interests encourage American citizens to see economic inequality as natural and good. Criminalizing Economic Inequality will provide an opportunity for legal scholars, economists, policymakers, activists, and others to critically examine the relationship between state power and market power in upward redistribution and the continued spread of laissez-faire ideology.

We invite panel proposals and paper presentations that speak to this year’s theme as well as to general classcrits themes. In addition, we extend a special invitation to junior scholars to submit proposals for works in progress. Each work in progress will be commented upon by a senior scholar as well as other scholars in a small, supportive working session.

Via Martha McCluskey.

-Bridget Crawford

Posted in Call for Papers or Participation | Comments Off

Tax Credits for Abortion

Posted on April 13, 2011 by Bridget Crawford

Could the federal government offer tax credits for abortion? That’s what one commenter asks over here at Metafilter, about the implications of the decision of the United States Supreme Court in Arizona Christian School Tuition Organization v. Winn (copy of that decision is here).

The Supreme Court ruled that tax payers have no standing to sue over tax credits given to those who donate to religious schools.

Justice Anthony Kennedy, writing for the five-justice majority, said that taxpayers may challenge a direct legislative appropriation for religious schools, but not a tax credit. He conceded that a tax credit and a direct government expenditure “may have similar economic consequences,” but he said a tax credit is different because any injury to the disagreeing taxpayer is “speculative,” and the money is directed by private individuals, not the state.

Reading between the lines, Kennedy and the majority agreed that money isn’t fungible. The money given in the tax credit is different from the money donated to the religious organization.

By this logic, a tax credit to those women who get an abortion (or perhaps, a dollar-for-dollar tax credit to those who donate to organizations associated with Fund Abortion Now) would not be a violation of the Hyde amendment. After all, it’s not federal dollars being spent on abortions, it’s my own money. Any consequences are purely speculative.

Recall that the Hyde Amendment prohibited Medicaid funding of abortions. If government spending is, in fact, constitutionally different from tax credits, then would the credit pass muster under the Hyde Amendment?

If a credit would be permitted, it might be politically difficult to implement, especially if the credit were refundable. Although there’s lots of good scholarship — by Francine Lipman (here, e.g.) and Dennis Ventry, Jr. (here, e.g.), among others — that suggests the EITC is an efficient means of delivering a financial benefit to the working poor, the program’s critics are quick to point to highly sensationalized cases of fraud and abuse. For many taxpayers, taking the EITC is the equivalent of asking the IRS for an audit.

Consider also that a non-refundable (i.e., “use it or lose it”) credit is beneficial only to those who file tax returns. For a married couple filing jointly where both spouses are younger than 65, the income tax return filing threshold is $18,700. A married couple with, say, three children will be eligible for Medicaid in New York States, for example, where the household income is below roughly $36,000 per year. So, many Medicaid recipients file tax return, but the poorest of the poor do not.

H/T Sarah Tx and Ribesfuchia.

-Bridget Crawford

Posted in Feminism and Politics, Reproductive Rights, Women's Health | Comments Off

A Tax Cut for Same-Sex Couples

Posted on April 13, 2011 by Tony Infanti

Tax day is quickly approaching and there is much talk now of the right mix of revenue raising and spending cuts to address the budget deficit. House Republicans recently floated a long-term budget proposal larded with more tax cuts for the wealthy and vague promises that these “pro-growth” tax cuts will pay for themselves. Given Republican tax-cutting fervor, it’s surprising that they can’t get behind the one tax cut that really would cost the government no revenue—repealing DOMA.

Repealing the federal and state “defense of marriage” acts would be a significant tax cut with no revenue cost. The state and federal DOMAs purport to deny recognition to same-sex marriages (and sometimes civil unions and domestic partnerships, too). But, in reality, they do no more than require a same-sex couple to pay a tax for their relationship to be legally recognized.

Let’s consider the situation faced by two couples—one different-sex and one same-sex—both married in Massachusetts. Under Massachusetts law, both couples enjoy the same rights and have the same obligations. But how will the federal government and other states treat their relationships? Marital status is a factor in the application of more than 1,100 federal laws. And it will be the rare couple that never crosses a state line.

Other states and the federal government will routinely recognize the different-sex couple’s marriage. However, the same-sex couple can’t count on similar treatment. They will need to have wills, living trusts, powers of attorney, hospital visitation authorizations, and a domestic partnership agreement for their relationship to be recognized.

The different-sex couple may draft some of these same documents, but not to have their relationship recognized. They draft them to alter the default rules regarding inheritance, medical and financial decision making, and divorce that apply to their marriage throughout the country. The same-sex couple must draft these documents because the default rules do not apply to their marriage throughout the country.

If the same-sex couple has children—as so many do—additional planning is necessary. If the couple adopted their children, a shared-parenting agreement and powers of attorney may be necessary in case questions arise about whether other states must recognize the adoption. If a lesbian couple conceives through artificial insemination, they can’t rely on a presumption of parentage to create a legal relationship between the nonbiological mother and the child. As a backup, the nonbiological mother may wish to adopt the child and draft a shared-parenting agreement.

Different-sex couples would never dream of drafting a shared-parenting agreement or powers of attorney with regard to their children. And husbands would be shocked at the suggestion that adoption is necessary to ensure their parent–child relationship is recognized outside their home state.

For same-sex couples, the cost of this DOMA-related planning is significant. To get a partial estimate, I asked a law firm in Pittsburgh—where I live and teach—how much it would charge for its role in this planning. The firm, which has experience with legal planning for same-sex couples, responded that the cost would range from $7,000 to $13,500.

This significant financial burden is a tax on lesbian and gay families. Like a tax, it is unavoidable. Just consider what happens when a same-sex couple can’t afford to pay the tax. The federal and many state governments then forcibly take away the legal rights and obligations associated with their marriage. This is what happens when a taxpayer can’t pay her property taxes. The government steps in to take the property in satisfaction of the tax due. By taking in kind what the government can’t force a same-sex couple to pay in cash, the government is essentially imposing a tax on them.

That this tax does not aim to raise revenue is of no consequence. Not all taxes serve that purpose. For example, we speak of “taxes” on cigarettes even though the professed purpose of these taxes is to discourage smoking and reduce smoking-related health and financial costs. At best, cigarette taxes only incidentally raise revenue. Indeed, we would probably be delighted if they raised no revenue at all.

Like a cigarette tax—and many other taxes that act as disguised penalties—the purpose of the tax on lesbian and gay families is not to raise revenue. Rather, this tax furthers the government’s professed interest in discouraging the legal recognition of lesbian and gay families by making that recognition either more expensive or, in the case of those who can’t afford the expense, of limited significance.

In stark contrast to the House Republicans’ long-term budget proposal, which would sacrifice revenue to give more tax cuts to the wealthy while shredding the social safety net, repealing the tax on lesbian and gay families would strengthen the legal and social safety net without actually sacrificing government revenue. It’s about time that Republicans got behind repealing the federal and state DOMAs—the only tax cuts that really would pay for themselves.

-Tony Infanti

Posted in LGBT Rights | Comments Off

Sexual Orientation and Censorship

Posted on April 12, 2011 by Tony Infanti

Once again, the lovely children’s book And Tango Makes Three has topped the American Library Association’s list of most frequently challenged books. This book also topped the list in 2007, 2008, and 2009. The book, which is on the bookshelf in my daughter’s room and which I have read to her on numerous occasions, is about two male penguins who care for and hatch an egg. I would highly recommend it to anyone who wants a children’s book that both acknowledges the existence of, and affirms the worth of, nontraditional families.

In a country where freedom of speech and expression are so highly prized, it never ceases to amaze me how people so often rush to defend gay bashing–a few examples of this that come quickly to mind are (1) those who voice opposition to enhanced punishment for gay bashing and other bias crimes on the ground that the enhancement punishes “thought” crimes, (2) reactionaries who decry the Southern Poverty Law Center for labeling some anti-LGBT groups as hate groups because the “hate card” stifles debate over whether same-sex couples have the same rights as different-sex couples to marry, and (3) the U.S. Supreme Court’s decision upholding the rights of individuals to picket funerals carrying signs that say “God Hates Fags”–but apparently find it quite acceptable to attempt to censor a book with a story that conveys a positive and affirming message about nontraditional families.

-Tony Infanti

Posted in LGBT Rights | Comments Off

CFP: “Effective Faculty/Student Collaborations and Student Initiatives”

Posted on April 12, 2011 by Bridget Crawford

From the FLP mailbox, this notice from the AALS Section on Balance in Legal Education:

The section on Balance in Legal Education is pleased to announce its program topic for the 2012 annual meeting of the American Association of Law Schools as “’Effective Faculty/Student Collaborations and Student Initiatives: Working Together to Enhance Students’ Professional Identity and Personal Integrity.”

Despite the Carnegie Institute’s admonition in Educating Lawyers about the important role law schools play in shaping our students’ values and understanding of their roles and responsibilities as lawyers, discussion of these important topics is not part of the typical law school curriculum. Likewise, law schools have done little in the way of curricular reform to specifically address the deleterious effects experienced by law students and documented by various researchers. This program will explore the spectrum of successful courses and programs that have emerged in response to these concerns, which frequently have resulted from the collaborative efforts of faculty, students, and administrators.

The Balance in Legal Education section draws both its governing board and its general membership from all segments of the legal academic community, and believes that its program topic will be both interesting and relevant to many of you.

The Section has obtained a commitment from the Touro Law Review to publish papers relating to this program. The list of speakers is currently only partially formulated and so we invite proposals for speakers, as well as papers from non-speakers. If you have an interest in being considered as a panel member on this topic, or in submitting a paper for publication, please contact me at your earliest opportunity, but in any event no later than May 1, 2011, at julie.sandine@vanderbilt.edu. Your submission should include a brief description of the perspective that you would bring to the topic, whether you wish to be a member of the panel and/or prepare a paper for publication, and a copy of a current curriculum vitae.

-Bridget Crawford

Posted in Call for Papers or Participation, Law Schools | Comments Off

Corbin on “Nonbelievers and Government Religious Speech”

Posted on April 12, 2011 by Bridget Crawford

Caroline Mala Corbin (Miami) has posted to SSRN her article Nonbelievers and Government Religious Speech, 97 Iowa L. Rev. __ (2011). Here is the abstract:

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination.

This Article argues that government religious speech such as “In God We Trust” or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless, and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers. It undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard and by reinforcing stereotypes – in particular, that atheists are immoral and unpatriotic – which lead to discrimination against them. The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstands exactly what is at stake.

The full article is available here.

-Bridget Crawford

Posted in Feminism and Religion | Comments Off

Palm Center Merges with Williams Institute

Posted on April 12, 2011 by Tony Infanti

The Palm Center, which was formerly known as the Center for the Study of Sexual Minorities in the Military and has been a leader in research regarding the federal government’s “Don’t Ask, Don’t Tell” policy, has announced that it is merging with the Williams Institute at UCLA. As the post on Metroweekly’s poligot observes, this merger makes sense given the imminent demise of DADT. The Williams Institute has a much broader spectrum of LGBT-related issues that it covers, and the Palm Center has apparently revised the description of its mission in keeping with that broader focus: “The Palm Center is a research institute committed to sponsoring state-of-the-art scholarship to enhance the quality of public dialogue about critical and controversial issues of the day.”

I hope that this partnership works out well and that they all continue to produce great work on LGBT-related issues.

-Tony Infanti

Posted in LGBT Rights | Comments Off

AALS Workshop on “Women Rethinking Equality”

Posted on April 11, 2011 by Bridget Crawford

The AALS 2011 Workshop on Women Rethinking Equality will be held June 20-22, 2011 at the Mayflower Renaissance Hotel in Washington, D.C. Here is the official “Why Attend?” pitch:

Women seeking equality in America today face an uneven prospect. Women are represented in record numbers in all branches of government, yet also struggle in unprecedented numbers below the poverty line, and they remain notably absent from many corporate boardrooms. Two more women have been appointed to the Supreme Court, including the first Latina justice; yet the popular debate and confirmation hearings were marred by race and gender stereotypes and by homophobia.

Advocates of same-sex marriage and new reproductive technologies have challenged the traditional family, yet they have been met by efforts to re-naturalize marriage, childbirth, and the place of women in the private sphere. These same contradictions mark women’s role in legal education. Women comprise a majority of students in many law schools, yet women are not equally represented in the professoriat. A recent AALS Report revealed a “tenure gap” affecting all women, which was particularly wide and increasing among women of color. The predominance of women in lower-paid, lower-status positions without job security in the legal academy mirrors their relative absence from top positions in law firms, law schools, and other highly paid legal positions. As we address the unfinished business of equality, women confront complex challenges. Some impediments stem from a public perception that the central problems of women’s equality were solved a generation ago. Other obstacles – which women are often reluctant to confront – arise from the heterogeneity of the group itself.

We are heterogeneous first in the ways we experience our lives as women: women share commonalities based on sex, while also differing along lines of race, ethnicity, class, immigration status, religion, sexual orientation, and disability. In the cities and rural areas of this country, as in the halls of law schools, these stark variations can give women widely different experiences of gender and sharply different stakes in its continued political amelioration. Women also vary in our conceptualizations of the challenges we face. Some continue to emphasize “sex discrimination” as the social and institutional dynamic that produces the inequality of women. Other theorists and activists have focused on the pressures to conform to bifurcated gender norms: expectations of cross-sex sexual desires or the fulfillment of these desires within marital, nuclear, reproductive families. Finally we are heterogeneous in our personal and professional aspirations: Many women may not analyze sex or gender in these explicitly politicized ways, or may not use more formalized constructs to discuss them. These women may want to focus efforts not on analyzing gendered dynamics in a theoretical way, but on developing practical strategies for confronting them in daily lives or individual workplaces. This variation is hardly surprising in a group that includes more than half of the human race. Yet if women fail to understand and negotiate this heterogeneity in a self-aware, reflective way, we may end up chasing an elusive unity, or diffusing our efforts with unnecessary friction.

The 2011 Workshop on Women Rethinking Equality will address these challenges, in the broader society and in the specific context of legal education. In analyzing the remaining barriers, we will think specifically about how to understand and to bridge the heterogeneity our group reflects – by glimpsing our shared stake in struggles of particular subgroups, and by focusing on the immediate institutional environment that we all share. We will also ask how we might use many kinds of connections among women – networking, mentoring, sharing of information – to secure greater opportunity, and transform the institutional settings in which we live and work.

“Women Rethinking Equality” will appeal to a full range of teachers and scholars in all subject areas. It will challenge us to think about the meaning, contours and status of equality for women: in legal, social, and institutional settings – and in the specific context of legal education. In the law school setting, discussions will focus on women’s scholarship, teaching concerns and professional development. We have particularly sought to reach out to a wider and more varied group of women faculty, through calls for presentations on substantive legal questions implicating gender, and for works-in-progress by junior and other scholars seeking commentary and discussion. The substance and format of the program, in general, will offer opportunities for networking and small-group discussion. We welcome participation by all AALS members, and particularly all women, whether or not their scholarship includes a gender focus.

The registration brochure and additional details are here.

-Bridget Crawford

Posted in Upcoming Conferences | Comments Off

Reproductive Health Providers as Human Rights Workers

Posted on April 11, 2011 by Bridget Crawford

Over at TrustLaw.org, Cynthia Soohoo, Director of the U.S. Legal Program at the Center for Reproductive Rights, has posted an op-ed entitled, “The Word on Women – And now some good news for women’s abortion rights…” Here is an excerpt:

We all…know…that anti-choice extremists’ intimidation and sometimes violent tactics have led to a striking decrease in the numbers of abortion providers over the last two decades. The good news is that in the midst of what seems to be an increasingly untenable situation, there is a little-known movement to raise the status of abortion providers here in the U.S. and it is gaining momentum.

For the first time, health professionals who provide sexual and reproductive health services have been explicitly included in a select group of heroic individuals who work non-violently to protect and promote human rights. The designation of human rights defenders…is an important step towards getting governments to understand that the doctors, counselors, nurses, and health professionals who provide abortion and other reproductive health services play an indispensible role in making sure that women have access to essential medical services fundamentally tied to their health and well-being. Without committed reproductive health professionals, women’s right to make personal and fundamental decisions about their reproductive health and lives would be meaningless. Recognizing them as human rights defenders requires that governments take responsibility for ending attacks and harassment and encourage respect for these individuals and the work that they do.

Read the full post here.

-Bridget Crawford

Posted in Reproductive Rights | Comments Off

Guest Blogger Marie Owens: Are Criminal Justice and Law “Masculine” Professions?

Posted on April 11, 2011 by admin

As a member of the graduating class of South Texas College in 1957, Joe Kegans practiced law for twenty years before being appointed to the 230th Criminal District Court. One of the earliest women to earn a criminal justice degree in America, and considered posthumously to have been a “pioneer of Texas criminal law,” Kegans was the first woman to sit on the bench as a criminal district court judge in the state of Texas. That was over 30 years ago, and not enough has changed since then.

“When I started in 1981, I was the only sitting woman judge,” said District Court Judge Jane Kauvar, “and then for a period of time there were two others here. And now I’m back to being the only one. It just seems incredible that in 2010 I am back to being the only one.” Indeed, it seems incredible that a decade into the 21^st century women remain such a significant minority in criminal justice and law enforcement. Despite all our forward-thinking progress toward gender equality, there are still vastly fewer women than men on the benches and on the beat.

During the presidency of Ronald Reagan only six percent of federal judges were women. Today, women make up only 22 percent of all United States federal judges and 26 percent of all state-level judges. In 1985 only 13 percent of lawyers were female. Today, even though 44 percent of law students in the United States are women only 25 percent will become practicing lawyers. In other words, while women make up nearly half of the law graduates in this country, only a quarter of them will take on the same roles as their male colleagues.

Outside the courts, women’s presence in American law enforcement has remained relatively minimal as well. In 1972, the average proportion of female police officers in the United States was around 2 percent. In 2010, they numbered just over 15 percent. Although many continue to dismiss this disparity by appealing to physiology to justify the lower number of female police officers, women have shown that they can do the job just as well, smaller muscles or not. Subtler factors are at work behind the unequal female presence in criminal justice.

Considering the enormous contribution women have made in various fields of criminal justice, these disparities are all the more striking. Women like Grace M. Fernald blazed the trail in establishing forensic psychology as a legitimate, integral part of the criminal justice system, and it was through the ground-breaking work of Diane Barnes in her studies of postpartum psychosis that we now understand its previously ignored relation to the inconceivable act of infanticide. Women of great renown have also advanced the practice and popular awareness of the amazing science of criminal profiling and proven how an understanding of the criminal mind can be a crucial asset in the efforts of investigators to identify and capture violent offenders.

Yet in spite of the huge contributions of these pioneering scholars, a Google search on “women in forensic psychology” will yield more information on women sufferers of mental disorders who have committed horrific crimes than about the women who literally wrote the books on diagnosis and definition of these conditions. While the outstanding work of these remarkable figures represents the reality of women’s entry into the criminal justice fields, the fact that so few women have entered those fields again suggests that these exceptional few women are those who broke through a barrier that is still holding many others back.

Although women have made significant strides in the “man’s world” of criminal law, it remains plain to see that women are still on far from equal footing in the fields of criminal justice and law. Despite the fact that the way has been opened for women to take these career paths, the numbers don’t add up. The rising number of women in law enforcement has not led to a commensurate rise in their average rank, and male domination of the police force maintains an anti-female status quo.

Until the obstacles to females in criminal justice and law are removed, these areas will remain unjustly masculine professions no matter how equal they appear to be on the surface. In the meantime, it is ironic that the scales that represent the sanctity of justice, themselves held by a female figure, are yet to become gender balanced.

Marie Owens works in security logistics. In her spare time she teaches a female self-defense course and studies law in Washington state.

Posted in Guest Blogger, Legal Profession | 1 Comment

image source: The Omaha Clinic, Volume 1 (1888), via The Condenser Magazine.

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US Department of Labor announces renewed commitment to fair treatment and equal opportunity for all of its employees

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