Feminist Law Professors

What’s Wrong with Cyberspace? An “Atrophied Sense of Humility and Charity”

Posted on September 20, 2010 by Bridget Crawford

Professor Alan Jacobs (English, Wheaton College) has a reflective post on “The Online State of Nature” over at Big Questions Online. It is inspired at least in part by the cartoon at right (image source: here at xkcd.com).

I have thought a lot about why people get so hostile online, and I have come to believe it is primarily because we live in a society with a hypertrophied sense of justice and an atrophied sense of humility and charity, to put the matter in terms of the classic virtues.

Late modernity’s sense of itself is built upon achievements in justice. This is especially true of Americans. When we look back over the past century, what do we take pride in? Suffrage for women, the defeat of fascism, Brown vs. Board of Education, civil rights and especially voting rights for African-Americans. If you’re on one side of the political spectrum, you might add the demise of the Soviet empire; if you’re on the other side, you might add the expansion of rights for gays and lesbians. (Or you might add both.) The key point is that all of these are achievements in justice.

Someone might object: well, of course — those are political accomplishments, and politics is, or ought to be, largely about the pursuit of justice. That’s right, as far as it goes, but it overlooks the key variable that has changed in the late modern world: the dramatic increase in the information available to us about political action. We simply know more about politics, in all of its dimensions, than our ancestors ever could have. * * *

And so, as we have come to focus our attention ever more on politics and the arts of public justice, we have increasingly defined our private, familial, and communal lives in similar terms. The pursuit of justice has come to define acts and experiences that once were governed largely by other virtues. * * *

This same logic governs our responses to one another on the Internet. We clothe ourselves in the manifest justice of our favorite causes, and so clothed we cannot help being righteous (“Someone is wrong on the Internet”). In our online debates, we not only fail to cultivate charity and humility, we come to think of them as vices: forms of weakness that compromise our advocacy. And so we go forth to war with one another.

Read Jacobs’s full post here.

I suppose this post caught my eye because (false) righteousness is an accusation hurled often at feminists — including me, for writings on this blog. And feminists — including me, writing on this blog — often critique the lack of civility in cyberspace.

The righteousness, lack-of-civility and failure-to-cultivate-charity-and-humility critiques ask that cyber-writers assume good faith (or at least some good faith) on the part of others. I am far less sanguine than Jacobs about the high-mindedness of internet denizens. Many (most?) anonymous commenters lack Jacobs’s desire for thoughtful engagement.

-Bridget Crawford

Posted in Academia, Blog Administration, Feminism and Technology | Comments Off

Constitution Day – – – for Feminists?

Posted on September 17, 2010 by rrobson

September 17 is “Constitution and Citizenship Day,” commemorating the signing of the Constitution in 1787.

The Congressional resolution, codified at 36 U.S.C. § 106, also includes a requirement of an “educational program” at all educational institutions that receive federal funds.

Did your institution “comply”? Did you participate? Was the focus on the original signers? Did any program include feminist perspectives? A discussion of citizenship given current controversies? Reference to Amendments, such as the Fourteenth or Nineteenth?

Soliciting comments, including any programs in which you participated, on the conlawprof blog here.

~Ruthann Robson

Posted in Academia, Feminism and Law, Feminist Legal History | Comments Off

Humbach Podcast on “Sexting and the First Amendment”

Posted on September 14, 2010 by Bridget Crawford

My colleague John Humbach has a podcast here discussing many of the issues he raises in his article, Sexting and the First Amendment, 37 Hastings Const. Law Q. 433 (2010). Here’s a description of the podcast:

Sexting is a new phenomenon that is growing exponentially each day. Join Prof. John Humbach and Prof. Bridget Crawford, both from Pace Law School, discussing Prof. Humbach’s article, titled “Sexting” and the First Amendment, as Prof. Humbach explains the First Amendment and the implications of teenagers engaging in creating, sending, receiving and possessing sexually explicit images. Prof. Humbach writes that “[g]iven the reality of changing social practices, mores, and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people.”

Playing time is approximately 15 minutes. Downloadable here.

-Bridget Crawford

Posted in Feminism and Technology, Feminist Legal Scholarship, Pornography's Harms | 1 Comment

Congratulations! It’s a Patentista!

Posted on September 13, 2010 by Christine Corcos

Dan L. Burk, University of California, Irvine School of Law, has published Do Patents Have Gender? in volume 18 of the American University Journal of Gender, Social Policy and the Law. Here is the abstract.

Patent law offers a set of exclusive rights to innovators, awarding such rights for inventions that meet certain statutory criteria. The statutory requirements for invention incorporate purportedly objective criteria against which new technologies are measured for patent eligibility. For example, inventions are assessed from the perspective of the fictional “person having ordinary skill in the art” (PHOSITA) for compliance with the statutory requirements of obviousness, enablement, and written description.

Feminist scholarship has previously questioned representations of objectivity, as purportedly neutral criteria may be oriented toward a rational, masculine default that is in fact anything but neutral. Previous scholarship has disclosed such bias in fields including both the legal and scientific standards that intersect in the patent statute. These analytical tools may yield similar insights when applied to patents. In particular, feminist insights regarding situated knowledge may prove to be helpful in understanding the inherent assumptions of the patent system, as well as the effects of such assumptions.

Download the article from SSRN at the link.

Posted in Academia | Tagged Intellectual Property | Comments Off

Festschrift 2.0: Ms. Magazine Blog Celebrates bell hooks

Posted on September 10, 2010 by Bridget Crawford

The Ms. Magazine blog is in the middle of bell hooks week, “a series of essays celebrating the life and works of the extraordinary bell hooks. hooks has made a significant impact on feminism, race theory, education, class politics, the mass media and many, many people’s lives.” Most of the essays are good. Some of them are great. Here are two that really made me think:

From Melanie Klein, “The Other L-Word: How bell hooks Dared Me to Love“:

Born in 1972, an early third-wave, Gen-X feminist, I consciously rejected the one-dimensional portrayal of love as culminating in heterosexual marriage + children + suburbs. In the process, I rejected love all together. I felt that in order to be a feminist, I could not show any desire or longing for love in my life. Being heterosexual, I dated men, but became the proverbial “black widow”: I could be with you, but afterward I’d have to kill you. By the time I reached my late twenties in the late 90′s, I felt lonely, unsatisfied and afraid to admit that something was missing.

I was a long-time fan of hooks’ work on white supremacist patriarchy and representations in the mainstream media, but when I picked up Communion: The Female Search for Love, one of her series of books on the subject of love, the title itself made me self-conscious, lest anyone think it was similar to “how-to-find-a-man” books like Women Who Love Too Much.

Yet, from the moment I opened the book, I knew it was more radical than her other work. As hooks says in the book, to talk about a love in a culture of domination is radical in itself. And it turned out to be the most influential, liberating and powerful work by hooks–or anyone–that I would ever read.
I felt she was speaking directly to me, addressing my fears and my unspoken, secret desires. * * *

hooks dared me to love, to view love as revolutionary and courageous. She encouraged me to expand my girlhood, fairytale definition of love and find love all around me. As hooks states, “The communion in love our soul seeks is the most heroic and divine quest any human can take.” Given permission and validation, I opened my heart and found love within myself, for myself and my community. Of all the gifts hooks has given me, this has been the most profound.

Read Klein’s full post here.

From Jewel Woods, “bell hooks’ Love for Black Men“:

Even if her academic record and political legacy were not proof enough, there is another reason why I know that bell hooks loves men–especially black men.

You see, back in the day, I was a student at Oberlin College when people like bell hooks and Chandra Mohanty were teaching there. In fact, I was the student leader of the “brotherhood”–an organization for black men students–when bell hooks was the advisor to the black women’s student organization, Sisters of the Yam.

I remember the “epic” conversations we had about gender and power in the black community. I used to sit outside of Gloria’s office (we all called her Gloria, her given name, and not bell hooks) and on the days when I had enough courage I would walk down to her house to have her answer all the questions I had about feminism and men.

bell hooks was the first person to encourage me to write about my experiences as a black man, and she has been a tremendous influence in my life.

Today, I write a lot about the intersection–some would say collision– of race, class, and gender. By far, the most controversial piece that I have written is “The Black Male Privileges Checklist .” I wrote it for two personal reasons: 1) I love and care about black men and boys, and 2) I am unashamedly and unapologetically committed to the safety and welfare of black women and girls.

I also wanted to create a tool that every black man could use to open up areas of his life that are often hidden or concealed. A tool that could be used in a variety of spaces–from the classroom to the barbershop–that would encourage anyone that interacts with black men and boys to engage in critical conversations about their lives, and the lives of black women and girls.

I wrote the Black Male Privileges Checklist because bell hooks was correct when she said that one of the fundamental genocidal threats to black men’s lives is being “plantation patriarch,” or what I refer to as Black Male Privileges.

Even a cursory review of bell hook’s life and legacy demonstrates her profound love for black men, and I want it to be apart of the public record that we love bell hooks too!

Read Woods’ full post here.

-Bridget Crawford

Posted in Feminism and Culture, Feminists in Academia, Masculinity, Race and Racism | Comments Off

A Banner Year for Gay Rights Litigation

Posted on September 10, 2010 by David S. Cohen

Although not necessarily the issues that most impact the day-to-day lives of LGBT people in this country, marriage and military service have been at the forefront of the gay rights movement in recent years. Efforts to reverse discriminatory policies in these areas at the state and federal levels have included legislative, executive, and referendum-based politics. So far, those efforts have provided, at best, mixed results.

But this year has been a banner year in litigation efforts to advance gay rights in these areas. Over the course of the past two months, federal district courts in Massachusetts and California have struck down, in chronological order, the federal Defense of Marriage Act, California’s Prop 8, and the federal “Don’t Ask, Don’t Tell” policy.

Before conservatives cry “activist judiciary” in response to these rulings, it would be best to understand just who the judges are who struck down these laws. As you can see, this is not a list of your usual suspects of activist judges:

Judge Joseph Tauro (D. Mass.): Judge Tauro wrote the two opinions striking down DOMA. Before becoming a judge, Judge Tauro was an army lieutenant from 1956 to 1958 and then an assistant U.S. Attorney from 1959 to 1960 and U.S. Attorney in 1972. He was appointed to the District of Massachusetts by President Richard Nixon and was the chief judge of the district from 1992 to 1999.

Chief Judge Vaughn Walker (N.D. Cal.): Chief Judge Walker wrote the opinion striking down Prop 8. Judge Walker was appointed to the bench by President George H.W. Bush on the recommendation of then-U.S. Senator Pete Wilson, a California Republican. After law school, Judge Walker clerked for Judge Robert Kelleher, a Nixon appointee, on the Central District of California.

Judge Virginia Phillips (C.D. Cal.): Judge Phillips wrote the opinion striking down “Don’t Ask, Don’t Tell.” Judge Phillips is a native of Orange County, California, who became a federal magistrate judge in 1995 (meaning she most likely got her first federal judgeship on merits rather than political connections). She was recommended for an Article III judgeship by Senators Barbara Boxer and Diane Feinstein in 1999. She was appointed by President Bill Clinton that year and confirmed later in the year by the Senate, which was controlled 55-45 by the Republicans.

It’s impossible to claim that, from their backgrounds, these judges are nothing but a bunch of liberal activists on the judiciary. Rather, it might just be that the banner year this has become for gay rights litigation results from claims that have undeniable merit under a Constitution that protects equality and liberty.

Cross-posted at Faculty Lounge.

Posted in Feminism and Law, LGBT Rights | Comments Off

20,000 Women Killed Each Year for “Family Honor”?

Posted on September 9, 2010 by Bridget Crawford

From the (UK) Independent, this article about “honor killings” across the globe:

It is a tragedy, a horror, a crime against humanity. The details of the murders – of the women beheaded, burned to death, stoned to death, stabbed, electrocuted, strangled and buried alive for the “honour” of their families – are as barbaric as they are shameful. Many women’s groups in the Middle East and South-west Asia suspect the victims are at least four times the United Nations’ latest world figure of around 5,000 deaths a year. Most of the victims are young, many are teenagers, slaughtered under a vile tradition that goes back hundreds of years but which now spans half the globe.

A 10-month investigation by The Independent in Jordan, Pakistan, Egypt, Gaza and the West Bank has unearthed terrifying details of murder most foul. Men are also killed for “honour” and, despite its identification by journalists as a largely Muslim practice, Christian and Hindu communities have stooped to the same crimes. Indeed, the “honour” (or ird) of families, communities and tribes transcends religion and human mercy. But voluntary women’s groups, human rights organisations, Amnesty International and news archives suggest that the slaughter of the innocent for “dishonouring” their families is increasing by the year.

The full story is here.

H/T Joan Shaughnessy

-Bridget Crawford

Posted in Sisters In Other Nations | Comments Off

“Sexting: Youth Practices and Legal Implications”

Posted on September 9, 2010 by Ann Bartow

Abstract:

This document addresses legal and practical issues related to the practice colloquially known as sexting. It was created by Harvard Law School’s Cyberlaw Clinic, based at the Berkman Center for Internet & Society, for the Berkman Center’s Youth and Media Policy Working Group Initiative. The Initiative is exploring policy issues that fall within three substantive clusters emerging from youth’s information and communications technology practices: Risky Behaviors and Online Safety; Privacy, Publicity and Reputation;and Youth Created Content and Information Quality. The Initiative is funded by the John D. and Catherine T. MacArthur Foundation and is co‐directed by danah boyd, Urs Gasser, and John Palfrey. This document was created for the Risky Behaviors and Online Safety cluster, which is focused on four core issues: (1) sexual solicitation and problematic sexual encounters; (2) internet‐related bullying and harassment; (3) access to problematic content, including pornography and self‐harm content; and (4) youth‐generated problematic content, including sexting. The Initiative’s goal is to bring the best research on youth and media into the policy‐making debate and to propose practical interventions based upon that research.

This document is intended to provide background for the discussion of interventions related to sexting. It begins with a definition of sexting, and continues with overviews of research and media stories related to sexting. It then discusses the statutory and constitutional framework for child pornography and obscenity. It concludes with a description of current and pending legislation meant to address sexting.

Downloadable here.

Posted in Coerced Sex, Feminism and Technology, Sexual Harassment | Comments Off

Blair LM Kelley Wins 2010 Letitia Woods Brown Memorial Book Award

Posted on September 9, 2010 by Bridget Crawford

Congratulations to Professor Blair LM Kelley (History, North Carolina) who has received the 2010 Letitia Woods Brown Memorial Book Award from the Association of Black Women Historians for her book, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson.

Here is the publisher’s description of the book:

Through a reexamination of the earliest struggles against Jim Crow, Blair Kelley exposes the fullness of African American efforts to resist the passage of segregation laws dividing trains and streetcars by race in the early Jim Crow era. Right to Ride chronicles the litigation and local organizing against segregated rails that led to the Plessy v. Ferguson decision in 1896 and the streetcar boycott movement waged in twenty-five southern cities from 1900 to 1907. Kelley tells the stories of the brave but little-known men and women who faced down the violence of lynching and urban race riots to contest segregation.

Focusing on three key cities–New Orleans, Richmond, and Savannah–Kelley explores the community organizations that bound protestors together and the divisions of class, gender, and ambition that sometimes drove them apart. The book forces a reassessment of the timelines of the black freedom struggle, revealing that a period once dismissed as the age of accommodation should in fact be characterized as part of a history of protest and resistance.

UNC Press has a nice press release here. Prior winners include Carole Boyce Davies (author, Left of Karl Marx: The Political Life of Black Communist Claudia Jones); and Chana Kai Lee (author, For Freedom’s Sake: The Life of Fannie Lou Hamer).

Professor Kelley also is active on Twitter (feed here), which is how I discovered her work. She tweets about race, gender, culture, history, teaching — among other topics. I suppose this is just one more example of how social media can enrich professional knowledge; I likely would not have stumbled across this book during the school year, but for web 2.0.

Congratulations, Professor Kelley!

-Bridget Crawford

Posted in Chutes and Ladders, Feminist Legal History | Comments Off

Sizzle and Steak

Posted on September 7, 2010 by Bridget Crawford

Lady Gaga is wearing a meat mini on the cover of Vogue Homme Japan:

I have a feeling that this magazine cover will inspire “Is Lady Gaga a feminist icon?” debates in Women’s Studies classes all across the country (Madonna of the 1980’s redux). I personally find those sorts of debates a bit uninteresting and unhelpful. Be your own feminist icon.

Maybe her next cover will have a vegetarian option? Falafel pasties? Animal rights folks, chime in.

-Bridget Crawford

Posted in Feminism and Animal Law, Feminism and Culture | 2 Comments

Joan of Arc in NYC

Posted on September 6, 2010 by Bridget Crawford

According to this editorial from the New York Times on August 26, 2010 edition (at A-26), New York City’s first statue of a woman was raised in 1912:

This is the first statue of a woman — not a female abstraction — erected in New York, and the first by a female sculptor, Anna Vaughn Hyatt. A small booklet called “The Dedication of the Statue of Joan of Arc in the City of New York on the 6th of December, 1915,” (published the following year for the Museum of French Art) tells the full tale.

It says that there is a time capsule of sorts in the statue’s base — coins and documents, mostly — as well as stones from the prison that once held Joan of Arc. The dedication day was partly cloudy, 35 degrees, with a little snow and a stiff northwest wind. The surrounding trees were mere saplings, and the beatified but yet uncanonized saint stood out sharply against the sky.

Many speeches were made, some about faith, some patriotism, but all with the purpose of justifying the presence of this statue in what Cabot Ward, president of the Park Commission, called “the greatest city of the Western world.” Behind nearly every speech was the thought of the European war. The statue was raised — a little late — to commemorate the 500th anniversary of Joan’s birth in January 1412. The 600th anniversary, in a barely more peaceful world, is just around the corner. We wonder what celebrations are in store.

Read the full editorial here.

Here’s how the Riverside Park Fund describes the monument:

Located at 93rd Street and Riverside Drive, the over life-size bronze statue of Joan of Arc features her in armor, holding aloft her sword and standing in the saddle of her warhorse. The sculptor, Anna Vaughn Hyatt, wanted to depict Joan as spiritual rather than warlike. Hyatt was attempting to represent an incident that occurred after Joan found the sacred sword where “She is holding it [the sword] up to her God and praying for guidance.” Architect John Van Pelt designed the granite pedestal upon which the statue rests in the Gothic style. He incorporated stones from Rheims Cathedral and stones from the dungeon at the Tower of Rouen into the blind arches of the pedestal so that it is a literal witness to both Joan’s moments of triumph and disaster.

The statue in Riverside Park was actually modeled after a life-size plaster equestrian statue designed by Hyatt and exhibited at the Paris Salon in 1910. Around the same time, an American committee was planning a monument to commemorate the 500th anniversary of the birth of Joan of Arc. Hyatt’s design caught the eye of Americans who attended the exhibit at the Paris Salon. In 1914, the commission was awarded to Ms. Hyatt. In 1915, in the midst of World War I, French Ambassador Jean Jusserand came to Riverside Park for the dedication of this monument and presented Anna Hyatt with the Légion d’Honneur for creating a monument to France’s national heroine. Hyatt’s was the first New York City park monument dedicated to a nonfictional woman.

(Full description here.)

For more on Anna Vaughn Hyatt, see here .

-Bridget Crawford

Posted in Feminist Legal History, Firsts | Comments Off

The Wonder State: Eastern District of Arkansas Finds Serious Flaw With Arkansas’ Rape Shield Rule

Posted on September 6, 2010 by Colin Miller

This Court views the case as illustrating a serious flaw in Arkansas’s criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. Hobbs, 2010 WL 3397370 (E.D.Ark. 2010).

This was a fairly bold statement by the United States District Court for the Eastern District of Arkansas. So, do the facts back it up?

The facts in Hobbs can be found in the Eastern District of Arkansas’s prior opinion in Jackson v. Norris, 2010 WL 3447275 (E.D.Ark. 2010): Artie Jackson was charged with first-degree sexual abuse and second-degree sexual assault of a minor child based upon acts that he allegedly committed against his then seven to twelve year-old stepgranddaughter, J.W.

J.W. first made allegations against Jackson when she was 14 years old….The allegations surfaced during a conversation between J.W. and her mother, Regina Barnes….

Barnes…confronted her daughter after learning that her daughter had possibly had a sexual encounter with a young man. In response to her mother’s questioning, J.W. admitted having consensual sex with a teenage boy named Nigel. After learning that the encounter occurred at Nigel’s house, J.W.’s mother asked her how she was able to get transportation to the boy’s house. J.W. responded that “Paw-Paw” (referring to Jackson) had taken her there….

After her mother expressed shock and disbelief that Jackson would provide the necessary transportation, J.W. told her mother that Jackson “did a lot of things that y’all don’t know about” and then proceeded to make the allegations leading to the criminal charges.

Generally, evidence of the alleged victim’s other sexual conduct would be inadmissible under Arkansas’ rape shield rule; however, Arkansas’ rule has an exception if

the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature…. Ark.Code Ann Section 16-42-101(c)(2)(C).

At an in camera hearing, the prosecution argued that evidence of J.W.’s sexual act with Nigel was embarrassing to J.W. and had the capacity to unfairly prejudice and mislead jurors hearing its case. Jackson responded that the subject evidence showed that J.W. had a motive to shift her mother’s emotional reaction from J.W. to Jackson, later claiming on appeal that evidence of other sexual conduct by an alleged victim should always be admissible if it proves that the victim had a motive to lie.

The court agreed with the prosecution, finding that the probative value of the evidence did not outweigh its inflammatory or prejudicial nature, but the United States District Court for the Eastern District of Arkansas disagreed in Jackson v. Norris and found that the exclusion of the subject evidence violated Jackson’s constitutional rights, leading it to grant his petition for writ of habeas corpus. Then, in Jackson v. Hobbs, the court issued the quotation that started this post and, inter alia, granted Jackson’s motion for Release Pending Appeal.

My response: Really? I could see a court finding the probative value of the subject evidence outweighed its prejudicial effect, but I can also see a court reaching the opposite conclusion as the trial court did in this case. But how did the trial court apply the rape shield rule in a broad and sweeping manner? The subject evidence consisted of a 14 year-old girl engaging in a sexual act with a peer. It is hard to imagine what type of evidence of other sexual conduct could be more embarrassing or prejudicial. Moreover, the subject evidence had no direct connection to Jackson beyond the fact that he apparently drove J.W. to the boy’s house, reducing its probative value.

Indeed, the only “broad and sweeping” argument made in the case seems to be Jackson’s argument that the rape shield rule must give way whenever the defendant has evidence of other sexual acts, an argument that courts categorically have rejected. See, e.g., Boggs v. Collins, 226 F.3d 728 (6th Cir. 2000). It seems to me that the Eastern District of Arkansas was not concerned with Arkansas courts applying the rape shield rule too broadly but instead concerned with the rape shield rule itself. And that is a scary thought.

-Colin Miller

Posted in Coerced Sex, Courts and the Judiciary | Comments Off

Do Angry Tennis Players Discriminate?

Posted on September 3, 2010 by Bridget Crawford

It’s US Open time and the New York media is paying plenty of attention to what the NYT calls “two extended tantrums over foot-fault calls in the last two years in Arthur Ashe Stadium,” namely the Serena Williams incident last year (see NY Post coverage here) and Andy Roddick’s interchange with a line umpire earlier this week (see NYT here).

Filip Bondy, writing for today’s New York Daily News, offers a perspective on the Roddick incident. In his article, “Andy Roddick’s Tantrum at U.S. Open is a Reminder of how Tennis Players Treat Lineswomen Unfairly,” Bondy says:

And after too many examples of this in recent years, by too many players, you now have to wonder whether Roddick would have done the same if it were a man who called him on the foot fault.

Because it sure didn’t look that way, when he got buddy-buddy with the chair umpire and pardoned a male lines judge for the same call, minutes later.

This is how the silliness started: Roddick clearly, clumsily stepped on the service line during a relatively meaningless first serve and was correctly called for a foot fault. Out of sheer petulance, he then demanded to know which foot was the offender.

Roddick knew the answer of course. It was the left, his natural takeoff foot. But the flustered lines judge answered it was his right foot, and so Roddick harassed the poor woman for no good reason, game after game, questioning her intelligence. It came across as the long-winded action of a bully who has lost his way on a tennis court, who can’t seem to seize points anymore and likely will never win a second major in his front-loaded career.

Roddick, frustrated on his way to an otherwise spiritless four-set loss to Janko Tipsarevic, wouldn’t stop his bashing. The male chair umpire, Enric Molina, allowed it to continue unabated, with no code violation. Molina even seemed to encourage this nonsense on one occasion, agreeing with Roddick that his right foot had never crossed the line in any of the matches he had umpired.

It was all a pathetic scene – two old pals ganging up on one woman doing her job. And when Roddick was called on his next foot fault by a male judge, he simply put thumbs up and continued on his merry way.

The full article is here.

The NYT reports that at the invitation of the USTA, Patrick McEnroe spoke to a group of line umpires. When asked if players treat female line umpires differently from male line umpires, McEnroe “shook his head.”

“So, players hate all umpires?” the woman said.

“Yes,” he said. “Men, women, black, yellow, white.”

Everyone had a good laugh and soon after trudged out to the courts for another long day…..

Sounds to me like there’s an empirical project here for someone interested in employment discrimination, women in sports or even psychology. The USTA should sponsor it.

-Bridget Crawford

Posted in Feminism and Sports | Comments Off

Request for Law Prof Pledges of Support for Park51 Project (aka “Ground Zero” “Mosque”)

Posted on September 3, 2010 by Bridget Crawford

From law professors Susan P. Koniak (Boston University), George M. Cohen (Virginia) and David A. Dana (Northwestern):

This is not a request to sign a joint letter. We thought, as a community, we could raise our voices instead by pledging financial support for the Islamic Center, a center modeled on and supported by the Jewish Community Center in Manhattan, and currently planned to be built several blocks from the site of the World Trade Center. For more info on the JCC’s involvement see Amanpour interview with Rabbi Levitt of the JCC and Daisy Khan, spouse of Imam Faisal Abdul Rauf and for more info on the proposed Center, see here.

With many others, we have grown increasingly distressed at the intolerance and in some cases outright bigotry and hate-mongering that has been displayed in response to the plan to build an Islamic Center. And Anti-Muslim feeling and action is spreading. See, e.g., Incidents at Murfreesboro Islamic Center Spread Fear at Tennessee Mosques, NY Times, Aug. 31, 2010.

While the First Amendment is directed at government interference with speech, press and religion, it exists to guard against the danger that an angry and fearful majority will undermine those cherished rights. Thus even in the absence of government interference, it is incumbent upon us to stand with those seeking to exercise those rights in the face of heated public opposition. Unfortunately, with the notable exception of Mayor Michael Bloomberg, there have been few profiles in courage on this issue. And that too compels us to act. See Who Else Will Speak Up?, NY Times, Aug. 31, 2010.

We decided against a joint letter because we thought it might invite endless debate over the text and more important, because we feared it would get lost in the blaring voices now shouting all around us. What we have decided to do instead is to collect pledges of financial support for the Islamic Center, wherever its promoters wish to place it. We thought action here would speak louder than words.

When we collect a significant number of pledges, we plan to send the names of all who have pledged, without noting how much any individual pledged, but rather simply stating the total amount of all pledges received, along with your institutional affiliations to Park51, the Islamic Center, with this simple note:

As law professors, who spend our working lives trying to ensure that each succeeding generation can meet Benjamin Franklin’s challenge-–“We have given you a republic, if you can keep it,”-–we have decided to put our money where our principles are.

You continue to be asked, where your funding is coming from. We would be proud to have you say that part of it comes from us, a group of academics from across this nation dedicated to the spirit of freedom embodied in the First Amendment, to a nation in which all are equally free to worship how and where they see fit.

We hope that our gesture, however small in absolute terms, encourages other Americans who cherish our Constitutional principles to follow our lead.

Thus, each of the following professors of law has pledged to donate an amount to the Park 51 Islamic Center project, which in total is X. Institutional affiliations are given for purposes of identification only and so you may contact the individuals listed to fulfill their pledges.

[List of names to follow]

Our aim is just enough text to explain our pledges and no more.

We suggest pledges between $18 and $360. That is a tribute to the Jewish tradition of giving in multiples of 18, the number corresponding to the Hebrew word “life.” But any amount you would like to pledge would be greatly appreciated.

Please join us in this effort by emailing Susan P. Koniak (Boston University) (spkoniak@law.bu.edu) with your name, amount of pledge, which will not be distributed to others, and the school at which you teach.

We will, of course, circulate the final list of names (no dollar amounts provided) and periodic updates on the number of pledges received to anyone pledging money as this effort progresses.

Finally, please feel free to forward this email to others whom we may not have reached. We are sending out these emails in rolling waves, but we cannot hope to reach everyone and a certain amount of arbitrariness will undoubtedly be present in our efforts, so feel free to email whomever you’d like about this effort.

-Bridget Crawford

Posted in Feminism and Politics, Feminism and Religion | Comments Off

Learning from the Hillary Clinton Campaign

Posted on September 1, 2010 by cyrachoudhury

A new organization has formed to track the sexist statements and foci on women political candidates. Regardless of whether one supported Hillary Clinton, it was very difficult to escape the barrage of sexist “white noise” generated by media, political commentators and other candidates. So, this new organization is a welcome development and will perhaps track these tactics in a more scientific way. That data will be used to confront and change the culture of permissiveness of attacks on women candidates, according to the post. One one hand, I applaud the organization and will watch it with interest. Perhaps a concerted effort is what is required because during the Hillary campaign, the regular and vociferous objections to sexism that were made seemed to fall on deaf ears. Like the article says, the statements “keep coming.”

From the article in the Washington Post:

The effort to track sexist comments and put pressure on advertisers who help bankroll the media figures responsible for some of the remarks comes as women campaign in several high-profile races this year, including competitive Senate seats and governorships in South Carolina and California.

(Complete political coverage on PostPolitics)

The Women’s Campaign Forum, Women’s Media Center and Political Parity plan to spend $250,000 on research and outreach for the initiative, which they have dubbed NameItChangeIt. The idea is to call out a range of issues – everything from what the groups see as an unfair focus on women’s clothes and family responsibilities to profane name-calling.

The money will pay for an online advertising campaign, including a website, spoofy videos and the development of a smart phone application that allows users to report sexist comments in the media.

Their list so far, which goes back several years, includes a comment by conservative radio host G. Gordon Liddy about Supreme Court Justice Sonia Sotomayor: “Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate,” Liddy said on his show. “That would really be bad. Lord knows what we would get then.”

The women’s groups also point to a quote in a Wall Street Journal story about former Alaska governor Sarah Palin’s run for vice president where a liberal voter asks, “Who’s watching the baby? And what kind of nurturing is going on in that 17-year-old’s life if she’s pregnant?”

The comments were only lightly condemned, said Jehmu Greene, president of the Women’s Media Center, and they keep coming.

Read the rest here.

–Cyra Akila Choudhury

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NY Gov Signs Historic Legislation Protecting Rights of Domestic Workers

Posted on August 31, 2010 by Bridget Crawford

LaborNotes has the story:

The new law guarantees domestic workers time-and-half pay after working more than 40 hours and ensures at least a day off each week. They will also be covered under the state’s worker compensation and anti-discrimination laws and gain access to unemployment insurance. The law mandates the state Department of Labor to study the feasibility of collective bargaining for domestic workers and report its findings by November.

Read the full post here.

At the signing ceremony, Governor Paterson drew heavily on references from Harriet Tubman (see here) and characterized the legislation as a major human-rights victory.

-Bridget Crawford

Posted in Employment Discrimination | Comments Off

Cohen and Chen on “Trading-Off Reproductive Technology and Adoption”

Posted on August 30, 2010 by Bridget Crawford

I. Glenn Cohen (Harvard) and Daniel L. Chen (Duke) have posted to SSRN their article, Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter? forthcoming in the Minnesota Law Review. Here is the abstract:

For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.

In this paper, which was selected for presentation at the 2010 Stanford-Yale Junior Faculty Forum, we push against that conclusion on two fronts.

First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.

Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the “substitution theory.” Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption.

The full paper is available here.

Cohen and Chen bring much-needed empirics to the legal conversation.

-Bridget Crawford

Posted in Feminism and Technology, Reproductive Rights, Women and Economics | Comments Off

Queen’s University Feminist Legal Studies: CFP – Women and Equality – Gender-Based Analysis, Law and Economic Rights

Posted on August 30, 2010 by Bridget Crawford

From Kathy Lahey at Queen’s University, this Call for Papers:

QUEEN’S UNIVERSITY
FEMINIST LEGAL STUDIES QUEEN’S

Call for papers for workshop on —

Women and Equality — Gender-based Analysis,
Law, and Economic Rights

Sex equality in the twenty-first century:
Long before the 2008 global economic crisis occurred, women in large economies began to see the promise of equality eroding. ‘Crisis’ policies have done nothing to reverse that trend. A decade ago, Canada and the US were ranked first and third on the UN gender-related development index; by 2009, they had already fallen to fourth and nineteenth respectively, and are ranked even lower on equality-specific indexes (e.g., 25 and 31 on the World Economic Forum index, 74 and 105 on the UN gender disparity measure). Similar patterns can be seen in the UK and many European countries.

At the same time, countries such as South Africa continue to demonstrate that ‘feminism works’ as they accelerate their movement toward increased sex equality. For women in those countries, the question is still ‘when will women achieve equality?’ But for growing numbers of women, the question is now becoming ‘will women ever achieve equality?’

This workshop will examine current developments affecting the status of women with particular concern for legal, economic, and equality rights. What roles do race, immigration status, Aboriginal heritage, education, family composition, and other factors play in shaping the current issues facing women? Can specific roadblocks to the attainment of further equality be identified? Are there better policies that governments can enact? What role have neoliberal, neoconservative, and economic ‘crisis’ politics played? Can international obligations such as the Convention on the Elimination of All Forms of Discrimination against Women counter sexist politics? And what impact are emerging environmental, security, budgetary, and regulatory issues having on women as compared with men and across class and race lines?

Call for papers:
This workshop invites paper and panel submissions on equality issues grounded in law, public policy, economic rights, international and transnational gender studies, foreign affairs, health/medicine, women’s studies, and other multidisciplinary studies.

Date and location:
The conference will be held at Queen’s University Faculty of Law, Kingston, Ont. on Saturday October 23, 2010, with an informal reception/discussion on Friday evening.

Submitting paper topics:
If you are interested in presenting a paper at this conference, or in organizing a panel on specific issues, please email your proposal and a short description to Bita Amani at amanib@queensu.ca or Kathleen Lahey at kal2@queensu.ca. This can be sent any time until approximately September 25, 2010. Participation is being confirmed on a rolling basis.

-Bridget Crawford

Posted in Call for Papers or Participation | Comments Off

Kristof, “Don’t Write Off Men Just Yet”

Posted on August 29, 2010 by Bridget Crawford

Earlier this summer, author Nicholas Kristof responded powerfully to the Atlantic’s cover story, “The End of Men.” In this July 2010 column for the NYT, Kristof wrote:

[C]ount me a skeptic. My hunch is that we’re moving into greater gender balance, not a fundamentally new imbalance in the other direction. Don’t hold your breath for “the end of men.”

One reason is that women’s gains still have a catch-up quality to them. Catch-up is easier than forging ahead. * * *

I think we exaggerate the degree to which the sexes are mired in conflict. As Henry Kissinger once said, “Nobody will ever win the battle of the sexes. There’s too much fraternizing with the enemy.” We men want our wives and daughters to encounter opportunity in the workplace, not sexual harassment; women want their husbands and sons to be in the executive suite, not jail. Nearly all of us root for fairness, not for our own sex.

The truth is that we men have typically benefited as women have gained greater equality. Those men who have lost their jobs in the recession are now more likely to have a wife who still has a job and can keep up the mortgage payments. And women have been particularly prominent in the social sector, devising new programs for the mostly male ranks of the jobless or homeless.

So forget about gender war and zero-sum games. Odds are that we men will find a way to hold our own, with the help of women. And we’ll benefit as smart and talented women belatedly have the opportunity to deploy their skills on behalf of all of humanity — including those of us with Y chromosomes.

The notion that all people — not just women — benefit from women’s equality deserves further consideration. Some feminists are skeptical of shifting focus from “women’s rights” to “gender justice,” because women’s historic experience of justice (unmodified) has not been one of equal treatment. Some men are skeptical of feminists’ claims, fearing — perhaps — that feminists want more rights than men have, not equal rights. [Side note: “equality” and “equal rights” are contested and contestable feminist goals.]

Kristof’s column invites us to rethink justice as expansive terrain instead of limited territory. I like that.

-Bridget Crawford

Posted in Feminism and Law | 1 Comment

Vintage Clairol Ad

Posted on August 29, 2010 by Bridget Crawford

From 1952. I find it interesting that the “sleeping beauty” who is awakens is a redhead, not the blonde who went to sleep. And those eyebrows would be no minor feat.

image source: Duke Library Digital Collections.

-Bridget Crawford

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In Memory of Harry E. White, Jr.

Posted on August 25, 2010 by Bridget Crawford

Harry E. White, Jr., a former tax partner at Milbank, Tweed, Hadley & McCloy LLP, died on July 23, 2010. He was a friend and mentor. Harry was one of the few people I have ever met who really, really knew how to do old-school tax research and could actually explain to others how to do it. Harry knew all of the paper sources and reporters. He could tell you from memory how commercial reporters’ coverage of the 1954 Act varied. He knew where the “holes” were in new on-line databases. Harry loved legislative history and found buried gems that the rest of us couldn’t.

When I started teaching and was thinking about my first article, I had lunch with Harry to pick his brain, to ask whether he saw in other parts of the tax law what I thought I saw in one part. I had lunch with Harry because I liked to watch him think.

Here is the obituary from the New York Times:

Son of the late Verena Leisen and Judge Harry E. White. Received BSFS, Georgetown University and LL.B. from Columbia University Law School. Partner at the law firm of Milbank Tweed, Hadley and McCloy specializing in international taxation. Director and then President for 12 years on the Board of the “333 East 55th Street Owners Cooperative Association.” Member of the Players’ Club. Retired Major in MI-USAR, served in Vietnam. Recipient of the Bronze Star. Active member of the New York Sea Gypsies. Survived by his spouse, Dr. M. P. A. Sheaffer, his brother Thomas White, a stepsister, Lida Parrish, and a stepbrother, J. William Leisen. Contributions may be made either to Divers Alert Network or to the American Cancer Society.

I respected Harry White immensely and I will miss his counsel. Farewell, Harry.

-Bridget Crawford

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Dowd on “The Man Question: Male Subordination and Privilege”

Posted on August 25, 2010 by Bridget Crawford

Feminist Law Prof Nancy Dowd (U Florida) has just published new book about the intersection of masculinities scholarship and feminism. The Man Question: Male Subordination and Privilege its hot off the NYU presses. Here‘s the publisher’s description:

Among the many important tools feminist legal theorists have given scholars is that of anti-essentialism: all women are not created equal, and privilege varies greatly by circumstances, particularly that of race and class. Yet at the same time, feminist legal theory tends to view men through an essentialist lens, in which men are created equal. The study of masculinities, inspired by feminist theory to explore the construction of manhood and masculinity, questions the real circumstances of men, not in order to deny men’s privilege but to explore in particular how privilege is constructed, and what price is paid for it.

In this groundbreaking work, feminist legal theorist Nancy E. Dowd exhorts readers to apply the anti-essentialist model—so dominant in feminist jurisprudence—to the study of masculinities. She demonstrates how men’s treatment by the law and society in general varies by race, economic position, sexuality, and other factors. She applies these insights to both boys and men, looking at men’s experience of fatherhood and sexual abuse and boys’ experience in the contexts of education and juvenile justice, to examine how masculinities analysis exposes both privilege and subordination. Ultimately, Dowd calls for a more inclusive feminist theory, which, by acknowledging the study of masculinities, can broaden our understanding of privilege and subordination.

Looks like a worthwhile read!

-Bridget Crawford

Posted in Feminist Legal Scholarship, Masculinity | Comments Off

Is (Black) Beauty Still a Feminist Issue?

Posted on August 25, 2010 by Bridget Crawford

That’s the question that Feminist Law Prof Imani Perry (Princeton) asks in this piece over at HuffPo:

Last night I read my friends’ tweets about the Miss Universe Pageant. But I didn’t watch it. I am an old fashioned feminist when it comes to pageants. They turn my stomach. I find them embarrassing and absurd. But I can’t be preachy about my dislike.

After all, I love fashion magazines, the ones filled with fantasies of over-the-top consumption and impossible beauty and I won’t apologize for that indulgence, so I have no judgment for pageant watchers. Pageants just aren’t for me.

But out of curiosity this morning I looked at the Miss Universe contestants online, inspired by the internet chatter. And lo and behold I was shocked when I realized that Miss Ecuador, Miss Honduras and Miss Nicaragua, were all Latinas of African descent. Only recently have noticeably Indian and African looking women begun to be featured on Latin American television and film, and still in small numbers. * * *

As a Black woman, for centuries now, flesh like my flesh has carried the burden of presumed inferiority. Black women have been cast as hypersexual or desexualized, always available yet undesired, ridiculous and often ugly, the mules of the world. Notwithstanding a few beauty icons, public figures, and celebrities, these stereotypic representations are still common. And perhaps this is why the fantasy of a beauty culture that includes Black women has so much allure. Fantastic images of Black women who are desired yet untouchable, pristine, flawless, and admired, lie so contrary to how we have been cast throughout history. And that feels kind of good. * * *

My personal resolution on the beauty issue is this: When images of physical beauty serve to diminish the depth of a woman’s personhood, we should reject them. And when they seem to restore an appreciation of that which has been devalued, or to be attached to an open sense of expressiveness, play, and fun, then we should feel free to enjoy them. But in either case, our eyes must always be focused on actual lives, not just screens and pages in a magazine.

Read Professor Perry’s full article here.

-Bridget Crawford

images (from top): Lady Mina Lastra (Miss Ecuador 2010); Kenia Martinez (Miss Honduras 2010); Scharllette Allen Moses (Miss Nicaragua 2010)

Posted in Feminism and Culture | Comments Off

Buying Parental Rights

Posted on August 23, 2010 by Bridget Crawford

Earlier this summer, the journal Bioethics published this interesting piece by Jason K. M. Hanna (Philosophy, Northern Illinois: Revisiting Child-Based Objections to Commercial Surrogacy. Here is the abstract:

Many critics of commercial surrogate motherhood argue that it violates the rights of children. In this paper, I respond to several versions of this objection. The most common version claims that surrogacy involves child-selling. I argue that while proponents of surrogacy have generally failed to provide an adequate response to this objection, it can be overcome. After showing that the two most prominent arguments for the child-selling objection fail, I explain how the commissioning couple can acquire parental rights by paying the surrogate only for her reproductive labor. My explanation appeals to the idea that parental rights are acquired by those who have claims over the reproductive labor that produces the child, not necessarily by those who actually perform the labor. This account clarifies how commercial surrogacy differs from commercial adoption. In the final section of the paper, I consider and reject three further child-based objections to commercial surrogacy: that it establishes a market in children’s attributes, that it requires courts to stray from the best interests standard in determining custodial rights, and that it requires the surrogate to neglect her parental responsibilities. Since each of these objections fails, children’s rights probably do not pose an obstacle to the acceptability of commercial surrogacy arrangements.

The full cite is 24 Bioethics 341-347 (2010).

H/T Naomi Cahn

-Bridget Crawford

Posted in Feminism and Families, Reproductive Rights | Comments Off

Obama’s “Feminine” Communication Style

Posted on August 23, 2010 by Bridget Crawford

I missed this post earlier in the summer over at Indisputably, the ADR Prof Blog. Andrea Schneider (Marquette) writes about Obama’s ‘Feminine’ Communication Style:

A few weeks ago, Kathleen Parker, a writer for the Washington Post, likened Obama to a woman because of his negotiation style, calling him the first female president. (See the article here.) Confronted with crises and criticisms, our President hasn’t responded in the alpha dog style of many male politicians. Instead, he’s a listener and talks it out. Traditionally, according to Parker, these methods are exercised almost exclusively by women. While the author is quick to commend the President on this refreshing change from the norm, she also points out that his style, especially in response to crises like the BP oil disaster, may have decreased his effectiveness. Does this mean that women, in negotiating and communicating in this talk-it-out method are also less effective? Or is that assessment only true of men who adopt that style? The article goes on to cite research from University of Minnesota Professor Karlyn Kohrs Campbell, who asserts that men can adopt feminine communication styles without the consequence of being labelled as ineffective. Parker, however, isn’t convinced that Obama hasn’t suffered for his adoption.

Additionally, women are generally viewed as effective communicators while employing “feminine” communication styles, but have been chastised for taking on styles normally attributed to men. For example, Hillary Clinton has received continual criticism for talking too assertively. (For more on this, see my book chapter with others on gender, politics and negotiation or my article comparing Clinton’s experience to female lawyers) On the other hand, female candidates who are perceived as likable might also be trivalized. (See a great Newsweek article from early July–Too Hot to Handle)

Read the rest of the post (here) at Indisputably.

-Bridget Crawford

Posted in Feminism and Politics | Comments Off

Blog of the Institute for Feminist Legal Studies at Osgoode Hall

Posted on August 21, 2010 by Kim Brooks

Here’s a new blog launched by the Institute for Feminist Legal Studies based at Osgoode Hall Law School, York University. The Institute has a vibrant register of activities and visitors thanks in large measure to the Canadian feminist law prof pioneer, Mary Jane Mossman, as well as the many feminists who are and have been appointed at Osgoode Hall. Sonia Lawrence has recently stepped into the role as Director. Sonia’s work on equality jurisprudence, criminal law, feminist and critical race theory, and poverty law is always interesting. The blog itself will go a long way toward “building a community of interest,” one of the aims of the Institute. I’d urge you all to check it out and consider posting or sending material to Sonia.

-Kim Brooks

Posted in Feminist Blogs Of Interest | Comments Off

Memo to Yale Law School Professor Adam Cohen: “What Price Waterhouse did is like saying ‘nigger.’”

Posted on August 19, 2010 by admin

A member of the blogroll who has requested anonymity contributes the following post:

Adam Cohen, who is apparently a law professor at Yale Law School, seems not to be familiar with the case of Hopkins v. Price Waterhouse, and that Cohen recently wrote an article (deemed a “case study”) that was published in Time and widely disseminated elsewhere that harkens back to the troubling subtle sexism in Hopkins v. Price Waterhouse.

It is time for Professor Cohen to be educated, and I am happy to do it: In the subtle sexism case of Hopkins v. Price Waterhouse, Ann Hopkins was denied partnership at Price Waterhouse because she was not “feminine” enough. She was direct, she was unapologetic, and she had a personality that was more masculine than feminine.

When D.C. Circuit Court of Appeals Judge Harry Edwards was trying to explain to the Price Waterhouse lawyers why their client’s sexist discrimination against a woman simply because she was not “feminine” was unlawful, Judge Edwards finally said in frustration:

If someone said “I hate Blacks,” it might be clearer to you, but you seem to suggest that sexual stereotyping is different from race stereotyping. [It is not.] What Price Waterhouse did is like saying “nigger.”

With that as backdrop, I write this open letter to Yale Law School Professor Adam Cohen, based on his Time “case study,” available at available here.

Dear Professor Adam Cohen:

The bizarre article qua “case study” you wrote regarding Judge Judith Eiler reads much like an article attacking a black person for acting “too black,” and, quite frankly, the article troubles me, particularly given that you are a professor, who has exposure to students and who is in a position to mold their thoughts and attitudes.

More specifically, two things come to mind regarding your disturbing opinion article in Time.

1. First, it appears that you are taking to task Judge Judith Eiler for being a direct, honest, candid, and efficient judge who tolerates no nonsense or time-wasting in her court. With all due respect, your critique strikes me as preposterous. Being direct, honest, and unwilling to tolerate nonsense seems to me to be good traits for a judge to have, even if the judge’s candor occasionally hurts a defendant’s feelings.

Your objection is that Judge Eiler is painfully honest – maybe even brusque or acerbic at times – saying, for example, to a defendant who drove like an idiot (endangering others) “If you drive like an idiot ’cause you’re late for work, you’re gonna have to pay for it,” and warning him that continue idiotic behavior was not in his best interests, saying “You can see your picture on the headlines of the Seattle Times, stupid young man who shouldn’t be driving.”

With all due respect, particularly given that you are now teaching law school and presumably are in a position in which you should be setting standards and emphasizing the importance of following reasonable laws, are you really taking issue with a judge’s statements that, while harsh, make sense in the context of the underlying unlawful behavior? Do you honestly fail to appreciate how ridiculous your objections sound?

Similarly, it concerns me that you would write an article publicly chastising Judge Judith Eiler and using her name and picture, yet you did not mention the name of the reckless-driving lawbreaker. It seems that you tried hard to nationally shame the female judge who was doing her job (albeit in a direct, no nonsense way), yet you tried to protect the lawbreaker who was only in court before Judge Eiler because he/she drove like an idiot, broke the law, and endangered others.

That troubles me, and it speaks poorly of your judgment.

2. Second, surely you must realize how gender-biased your article and critique seem to be. To wit, do you really believe that a female jurist who has grappled her way into a position of power should be criticized for having a “tart tongue?” Really?

If so, I respectfully suggest that you should not be in the classroom at Yale Law School. Instead, you should sit down and read the opinions in the case of Hopkins v. Price Waterhouse. That case made clear that it is no longer acceptable to negatively judge professional women who catch your attention because they behave in traditionally-masculine ways, by, for example, being blunt, abrasive, or direct. It is no longer acceptable to chastise women for failing to behave as demure, quiet, submissive, needlessly supplicant, sugary-sweet belles.

Indeed, one might suggest that your op-ed smacks of subtle sexism by, for example, making reference to women in power who are no-nonsense as being “tart tongue-d” (or “bitches” or “prickly”) when men with the same qualities have traditionally been deemed as “hard-nosed,” “straight-shooter,” or “no-bullshit” sorts. (Indeed, the district court judge in the landmark Hopkins case was respectfully recognized as being “impatient, especially with the irrelevant, and acerbic when irritated.” “Acerbic when irritated.” That sounds like what Judge Eiler was. “Acerbic when irritated.”

Why do all the other male judges in the world who are “acerbic when irritated” avoid your attention, yet Judge Eiler, whom you apparently view as a bitch, merited an entire article from you and a national shaming?

With all due respect, I believe you owe Judge Eiler and the rest of the “acerbic when irritated” female lawyers and judges in the world an apology.

Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | 4 Comments

“Feminist Mom Roundup” Theme: The Power of Words

Posted on August 17, 2010 by Bridget Crawford

Transatlantic Blonde has a Friday Feminist Roundup Theme (here) calling for ruminations from “feminist moms” on “The Power of Words” (however you interpret it).

The first thing that the prompt brought to mind was a “This is What a Feminist Looks Like” t-shirt that I bought at a law school fundraiser. The shirts were being sold by the Women’s Association of Law Students at the school where I teach. I bought one for my then pre-school aged daughter. She loved it because it was black with bright pink letters, and people would say to her, “Nice t-shirt,” the few times she wore it.

She only wore it a few times because I — who bought the shirt — decided that it was not a comfortable parenting decision to put a “message” t-shirt on a child, even though the message was one with which both my husband and I felt comfortable. Yes, I explained to my daughter what “feminist” was (in appropriate-to-four-year-old terms: those who want men and women to have the same opportunities) before she wore the shirt, but it still didn’t seem right.

Around this time, I had a neighbor who dressed her pre-schooler in t-shirts that read, “Free Martha” [Stewart].

-Bridget Crawford

Posted in Feminism and Families | 1 Comment

No-Fault? No Problem in NY

Posted on August 16, 2010 by Bridget Crawford

From the New York Law Journal, this news of significant changes to New York’s divorce law. Previously, New York was a “fault” jurisdiction, requiring a finding of adultery, abandonment, cruelty or a 1-year separation pursuant to a written instrument (that, from bar review memory — thanks, prep course!).

The law, A9753/S3890, which applies to all divorce filings from now on, provides that one spouse can receive a divorce by declaring under oath that a marriage has been “irretrievably” broken for at least six months.

However, other issues related to divorce, such as child custody and distribution of property, must first be resolved by the parties or determined by the court before a marriage can be dissolved.

A 2003 survey by the Family Law Section of the state Bar Association of about 3,000 of section members indicated three-quarters favored a no-fault option in New York. However, the change has been fought by the Roman Catholic Church and the National Organization for Women. * * *

[Governor David] Paterson also signed another bill favored by no-fault divorce advocates, A7569/4532, which requires payment of counsel and experts’ fees to the “non-monied” party in a divorce action. Bill sponsors said the measure would level the playing field and allow the spouses—generally the wife—who has made little or no money during a marriage to protect their interests during a divorce.

Finally, Mr. Paterson also indicated that he had signed A10984/S8390, which will establish a schedule for temporary maintenance payments to non-monied spouses as their divorce proceedings move toward finality.

The full article is here.

No-fault divorce is a topic on which intelligent feminist opinion is divided.

-Bridget Crawford

Posted in Feminism and Economics, Feminism and Families | Comments Off

“Hiding-in-Plain-Sight” Facts about Marriage and Parenthood – The California Marriage Case and the Irrelevance of Gender

Posted on August 16, 2010 by lmcclain

At the moment, commentators are busy opining about whether or not the Ninth Circuit will affirm Judge Walker’s decision not to stay his order pending appeal – thus allowing gay and lesbian couples to marry in California — and, in turn, whether the U.S. Supreme Court will take action. I will not join the fray here on that question (although it seems hard for Prop 8 proponents to argue irreparable harm if the order is not stayed, since Californians have been living with the thousands of civil marriages by same-sex couples, entered into the several month interim between the California Supreme Court’s In re Marriage Cases ruling and voter approval of Prop. 8). Instead, I would like to invite the attention of feminist scholars and anyone else interested in the marriage debate to Judge Walker’s extensive findings of fact as well as his conclusions of law about the irrelevance of gender to marriage and parenthood. These provide an opportunity for public education and commentary about marriage in America.

To that end, Linda Greenhouse, an experienced analyst of the U.S. Supreme Court, posted (last week) an insightful commentary “Hiding in Plain Sight,” in which she praises Judge Walker for “his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails.” She refers to the gender revolution in family law, noting Judge Walker’s conclusion that “gender is not relevant to the state in determining spouses’ obligation to each other and to their dependents,” and that “gender no longer forms an essential part of marriage; marriage under law is a union of equals.” Without making any predictions, she nonetheless takes the position that if Judge Walker’s opinion survives on appeal, it will be on the basis of his conclusion that to extend marriage to gay men and lesbians will not “redefine marriage,” since marriage has already undergone profound change “as the result of forces completely independent of federal judges.” Although Greenhouse does not mention it, I believe that another “hiding in plain sight” feature of Judge Walker’s opinion concerns the irrelevance of gender to parenthood and to child outcomes, or well-being.

As I noted in an earlier post (here), Judge Walker referred to the requirement of one man-one woman, in Proposition 8, as an “artifact” of an earlier understanding of state-mandated gender roles within marriage. Greenhouse is certainly correct that some of this gender revolution occurred independent of federal judges. However, it is undeniable that the Supreme Court’s rulings of the 1970s and 1980s were one catalyst to the considerable family law reform as legislatures reassessed sex-based classifications about spouses and parents. Social, economic, and cultural transformations surrounding gender roles and women’s place in society as well as state law reform that continued the erosion of coverture begun in the 19th century were other catalysts. Feminist scholars identify the cause and effect problem here – was the Supreme Court breaking new ground or simply catching up with society when it identifying sex-based rules as antiquated and outmoded stereotypes about the capacities of women and men? In either case, Walker’s findings and conclusions about the evolution of marriage away from a marital bargain based on legally fixed gender roles to a partnership of equals resonate with Supreme Court statements (e.g., the joint opinion in Planned Parenthood v. Casey) repudiating coverture and affirming the equal status of husbands and wives.

Another significant “hiding in plain sight” feature of Judge Walker’s opinion – not brought out by Greenhouse — concerns the irrelevance of gender to parenthood. From the beginning of the new wave of challenges by same-sex couples to civil marriage laws (say, beginning with Hawaii in the early 1990s), defenders of the one man-one woman requirement appealed to arguments about optimal childrearing: marriage provides the best environment for children by securing to the child a married biological mother and father. However, even in the Hawaii litigation, the government failed to support this argument and its expert witnesses conceded the competence of gay and lesbian parents. This optimal child rearing argument lost in several other states, such as Vermont and Massachusetts. (To be sure, it has prevailed in some other courts, including Hernandez v. Robles, when New York’s high court made some common sense observations about the value of a child having male and female role models.) And the Obama Administration disavowed the optimal childrearing interest in the ongoing litigation over DOMA.

Now, Judge Walker provides the most extensive findings of fact to date on the question of the relationship between sexual orientation and parenting. Based on what he found to be credible expert testimony (including that of Michael Lamb), which summarized the state of knowledge on this issue, he concluded that sexual orientation is not relevant to child outcomes. Walker also noted the introduction into evidence testimony by Prop 8 proponents’ own expert witnesses as to the basic competence of gay and lesbian parents. He also made a very important clarifying observation about social science and the relevant basis of comparison: studies relied upon by Prop 8 proponents’ expert did not compare children reared in opposite-sex marital homes with those raised by same-sex couples, but instead compared marital homes with single-parent, divorced, and foster families. Moreover, he concluded, while these studies might tell us something about the significance of marriage as a variable, they do not isolate genetics or biology or sexual orientation as a factor.

Looking at the relevant available studies, as presented by Prop 8 opponents’ experts, Judge Walker found that children raised by gay men and lesbians “are just as likely to be well-adjusted as children raised by heterosexual parents.” Moreover, “children of gay and lesbian parents would benefit if their parents were able to marry.” As his opinion recounts, the campaign for Prop. 8 frequently appealed to claims about gender complementary and the special and unique contributions of a mother and a father. Often, these complementarity arguments stem from a belief in God’s created order and the proper roles of men and women. (Similar arguments featured, as I have written elsewhere, in Congress in support of the Defense of Marriage Act.) However, Judge Walker concluded: “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.” Like a number of other states, moreover, California has taken steps to encourage and facilitate parenthood by gay men and lesbians (including making the parental rights and responsibilities of domestic partners the same as married parents, allowing second parent adoption and the use of assisted reproductive technology, and enforcing child support obligations against a nonbiological parent in a same-sex couple), thus undercutting the argument that optimal childrearing requires a biological mother and father and that that is the only pathway to parenthood that the state supports or recognizes. Given that the state’s interest in marriage includes forming stable households, Prop 8, he concluded, undermines that interest. Like the Massachusetts high court in Goodridge, Judge Walker concludes that withholding marriage’s protective framework from gay and lesbian parents harms these families; by contrast, extending that framework does not harm the families formed by opposite-sex couple marriages.

Greenhouse helpfully suggests that, whatever the ultimate fate of Judge Walker’s ruling on appeal, “the real contribution” of Judge Walker’s opinion may be to enrich and better inform “public conversation” about marriage. She has a point. In particular, the opinion provides ample resources for unearthing what might otherwise have been “hiding-in-plain-sight” facts about the significance of gender for contemporary marriage and parenthood.

-Linda McClain

Posted in Feminism and Families, LGBT Rights | 1 Comment

Buzuvis on “Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics”

Posted on August 13, 2010 by Bridget Crawford

Erin Buzuvis (Western New England) has posted to SSRN her working paper, “Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics.” Here is the abstract:

Educators have long recognized the physical, psychological, social, and educational benefits that sport provides to students. Yet today, the barriers to athletic participation that exclude the increasingly visible population of transgender students are largely ignored. With a few notable exceptions, most governing bodies of scholastic and collegiate sports have yet to meaningfully consider how to incorporate transgender students into the existing athletic structure, which for the most part divides male and female athletes into separate programs. Many athletes and sport organizers assume that transgender athletes have an unfair advantage when they compete in sports consistent with their gender identity, whether due to residual, natural physical traits associated with their natal sex (in the case of male-born, female-identified athletes), or with the hormone therapy transition (in the case of female-born, male-identified athletes). At the same time, transgender students may be excluded, discouraged, or simply feel uncomfortable participating in athletics programs that match the sex of their birth but which are inconsistent with their gender identity and gender expression. As a result, for students whose gender identity is inconsistent with their natal sex, the entire sex-segregated world of athletics may be formally or effectively off limits.

A few associations of educational institutions have responded to this problem by adopting policies governing transgender athlete participation. After describing, contrasting, and evaluating these policies, this Article concludes that the best policies are those that, as a general rule, allow athletes to participate in sex-segregated sport in a manner consistent with their gender identity rather than their natal sex. In support of this conclusion, this paper will show that neither law nor science gives clear, dispositive guidance to policymakers seeking to balance the right of transgender athletes to participate with the perceived fairness concerns related to their cross-sex participation. Thus, educational considerations should play a primary role in creating participation policies. These considerations include the physical, academic, and socio-emotional benefits to individual athletes as well as the value that diversity brings to teams, schools, and communities. To best serve these goals, which educators claim as the basis for educationally-supported athletics in the first place, policies governing secondary school and college athletics should allow athletes to participate in a manner consistent with their genuine gender identity. Any exceptions or limitations to this default rule must be made with educational values in mind, and must be narrowly tailored to demonstrable, concrete concerns about fairness.

The full paper is available here.

-Bridget Crawford

Posted in Feminism and Sports, LGBT Rights | Comments Off

Will the Prop 8 Case Be Moot Before It Gets to the Supreme Court?

Posted on August 12, 2010 by David S. Cohen

Following last week’s decision finding that California’s Prop 8 was unconstitutional, much of the talk centered around what the Supreme Court would do when presented with the question whether a ban on same-sex marriage was constitutional. The thinking is that the Ninth Circuit will hear the case and, especially if the Ninth Circuit affirms the district court’s finding of unconstitutionality, the Supreme Court would enter the fray.

However, I’m going to go out on a limb here and predict that, even though the Supreme Court will probably enter this debate at some point in the future, this particular case will probably be moot by the time the Supreme Court would decide.

Prop 8 opponents have organized a campaign to get marriage back on the ballot in California. After much debate in the LGBT community, the decision was made to push for a marriage ballot resolution in 2012 (rather than 2010). So, in two years, Californians will once again vote on whether same-sex couples can marry.

Why the confidence that a marriage resolution in 2012 will result in same-sex marriage when the marriage resolution in 2008 rejected it? Yesterday’s news from CNN illustrates it. For the first time in a serious national poll, gay marriage polled majority support. The position in favor of equality has momentum at its back.

Not only is there momentum, but there’s also demographics. Gay marriage has much more support by younger voters than older voters. Four years is enough to make a huge difference in this regard, as older voters die off and younger people become voters (or, if voting age already, become more consistent voters).

Thus, in November 2012, I think it’s a pretty good bet that the voters of California will vote for same-sex marriage. They voted down same-sex marriage in 2008 by only 4 points. In 2012, they’ll probably vote in favor of same-sex marriage by a small, but definite margin. Prop 8 will be history. Assuming a normal appeals process, involving a panel of the Ninth Circuit, an en banc review by the Ninth Circuit, then a certiorari petition to the Supreme Court, followed by briefing and argument, I just can’t imagine the Supreme Court deciding before November 2012.

And by that time, the case will be moot, as justice will already have been attained through the ballot box.

Cross-posted at the Faculty Lounge.

Posted in Feminism and Law, LGBT Rights | Comments Off

Tenure-Track Positions at Nebraska

Posted on August 12, 2010 by Bridget Crawford

From Anna Shavers (Nebraska):

The University of Nebraska College of Law invites applications for three tenure-track faculty positions. Areas of particular interest include business associations, corporate finance and governance, transactional skills courses, securitization, venture capital, entrepreneurship, patents, trusts and estates, federal estate and gift tax, elder law, public health law, food and drug law, conflict of laws, government contracts, cyber security, military law, and space law and telecommunications law. (Courses in space and telecommunications law are offered to J.D. students as well as LL.M. students in the College of Law’s new Space and Telecommunications Law program that began in 2008.) Review of applications will begin on August 12, 2010 and continue until the positions are filled. General information about the Law College is available here. Information on the Space and Telecommunications Law program can be found here.

The University of Nebraska has an active National Science Foundation ADVANCE gender equity program, and is committed to a pluralistic campus community through affirmative action, equal opportunity, work-life balance, and dual careers.

Contact Professor Richard Moberly, Chair, Faculty Appointments Committee, University of Nebraska College of Law, Lincoln, NE 68583-0902, or send email to lawappointments@unl.edu.

The Nebraska faculty has made some very smart hires in the last few years, IMHO, and it looks like they are committed to growing the faculty.

-Bridget Crawford

Posted in Law Teaching | Comments Off

Above the Law asks whether women in the law need thicker skins

Posted on August 12, 2010 by lgoodmark

As I read this post from Above the Law, I found myself thinking about Professor Felice Batlan and the law students from Chicago-Kent who presented their study, Not Our Mother’s Law Students?: A Feminist Study of Women’s Experiences in Law School, at our first Feminist Legal Theory conference back in 2008. It’s unbelievable how differently people can perceive the world.

Leigh Goodmark

Posted in Academia | Comments Off

Middle Men’s Tax Angle

Posted on August 11, 2010 by Bridget Crawford

This week, I saw the movie “Middle Men” starring Luke Wilson and Giovanni Ribisi. I won’t spoil the ending, but income tax considerations — and a collective desire to outwit the “tax man” — play a huge role in the fate of one of the characters (and not in the Al Capone-ish way one might expect). Here’s the synopsis of the movie:

In 1995, everyone had a VCR, music was sold in record stores, and the world-wide-web was a new found discovery. Businessman Jack Harris (Luke Wilson) had the perfect life – a beautiful family and a successful career fixing problem companies. Then he met Wayne Beering (Giovanni Ribisi) and Buck Dolby (Gabriel Macht), two genius but troubled men, who had invented the way adult entertainment is sold over the internet. When Jack agrees to help steer their business, he soon finds himself caught between a 23 year-old porn star and the FBI all the while becoming one of the wealthiest entrepreneurs of his time. Witness a story so outrageous, you won’t believe it’s true.

From the website here.

There’s lots more to say about the film, including its multiple references to the role that “mainstream” hotels play in the distribution and consumption of pornography. There’s even a subplot involving the role of internet pornography in tracking terrorist suspects. But for now, suffice to say that income taxes are outcome determinative.

-Bridget Crawford

Posted in Feminism and Culture | Comments Off

Adding Up the Problems at HP

Posted on August 11, 2010 by Bridget Crawford

Analyses of the departure of HP CEO Mark Hurd has been cryptic and under-reported (see, e.g., the NYT coverage here and here). The HP board found that reality TV personality Jodie Fisher’s claims of sexual harassment were unsubstantiated, but that Hurd violated the company’s “standards of business conduct.” Huh? Pcworld.com Tech Industry columnist Thomas Wailgum puts it this way:

Most of us are aware of the booth babes phenomenon at high-tech trade shows and continuing debate about their presence. But should we be shocked to learn that, from 2007 to 2009, HP’s marketing department paid Jodie Fisher “up to $5,000 per event to greet people and make introductions among executives attending HP events that she helped organize,” according to one report? Another article claimed up to $10,000 in pay per event.

Just what kind of events required this type of hostess? Customer and CEO dinners only? Does HP still employ other female event greeters—and why are they needed at all? There’s a fine line between “event organizer” and “a female hostess paid to look pretty and laugh at all the executives’ dumb jokes.” Aren’t there plenty of smart, personable managers and execs already working at HP who could have done meet-and-greet work at events? Or just not enough of the types who had appeared on reality TV?

Wailgum’s full column is available here. I’m not crazy about the “booth babe” reference, but it certainly makes the point.

The claim that the HP board sought Hurd’s resignation because of “a break in trust caused by his falsifying expense reports to conceal the relationship” (source: here) doesn’t add up. She attended corporate events and had dinners with Hurd, presumably not in secret. Was it really news to the board that Fisher was being paid? Or is it that the sexual harassment claim (judged by the board to be “baseless“) wasn’t so baseless after all? Or is just embarrassing to the corporation to have it revealed that pretty women are paid to make male executives happy and comfortable at these events?

-Bridget Crawford

Posted in Sexual Harassment | Comments Off

ABA Resolution on Same-Sex Marriage

Posted on August 11, 2010 by rrobson

The ABA overwhelmingly adopted a resolution urging state (as well as territorial and tribal) governments to permit same-sex marriage:

RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.

The Resolution was supported by the ABA Commission on Women in the Profession, as well as by the ABA Young Lawyers Division, the Hispanic National Bar Association, the National Asian Pacific American Bar Association, and the ABA Commission on Racial and Ethnic Diversity in the Profession.

More information here.

– Ruthann Robson

Posted in Feminism and Families, LGBT Rights | Comments Off

Taking Bond’s Women Seriously

Posted on August 9, 2010 by Christine Corcos

Kimberly A. Neuendorf, Thomas D. Gore, Amy Dalessandro, Patricie Janstova, and Sharon Snyder-Suhy have published Shaken and Stirred: A Content Analysis of Women’s Portrayals in James Bond Films at 62 Sex Roles 747-761 (2010). Here’s the abstract.

A quantitative content analysis of 20 James Bond
films assessed portrayals of 195 female characters. Key
findings include a trend of more sexual activity and greater
harm to females over time, but few significant across-time
differences in demographic characteristics of Bond women.
Sexual activity is predicted by race, attractiveness, size of
role, and aggressive behaviors. Being a target of weapons is
predicted by size of role, sexual activity, and weapon use,
while being harmed is predicted principally by role. End-offilm
mortality is predicted by sexual activity, ethical status
(good vs. bad), and attempting to kill Bond. This identification
of a link between sexuality and violent behavior is
noted as a contribution to the media and sex roles literatures.

Posted in Academia | 1 Comment

Mayor Bloomberg on Tolerance

Posted on August 6, 2010 by Bridget Crawford

The proposed construction of a Muslim community center and mosque in Lower Manhattan has received national media attention. Earlier this week, Mayor Michael Bloomberg made a tremendous plea for tolerance. It is one of the best political speeches I have heard in a long time. Below is the video, followed by the text.

“We’ve come here to Governors Island to stand where the earliest settlers first set foot in New Amsterdam, and where the seeds of religious tolerance were first planted. We come here to see the inspiring symbol of liberty that more than 250 years later would greet millions of immigrants in this harbor. And we come here to state as strongly as ever, this is the freest city in the world. That’s what makes New York special and different and strong.

“Our doors are open to everyone. Everyone with a dream and a willingness to work hard and play by the rules. New York City was built by immigrants, and it’s sustained by immigrants — by people from more than 100 different countries speaking more than 200 different languages and professing every faith. And whether your parents were born here or you came here yesterday, you are a New Yorker.

“We may not always agree with every one of our neighbors. That’s life. And it’s part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11, 2001.

“On that day, 3,000 people were killed because some murderous fanatics didn’t want us to enjoy the freedoms to profess our own faiths, to speak our own minds, to follow our own dreams, and to live our own lives. Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that even here — in a city that is rooted in Dutch tolerance — was hard-won over many years.

“In the mid-1650s, the small Jewish community living in lower Manhattan petitioned Dutch governor Peter Stuyvesant for the right to build a synagogue, and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal political petition for religious freedom in the American colonies, and the organizer was thrown in jail and then banished from New Amsterdam.

“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion, and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780s, St. Peter’s on Barclay Street, which still stands just one block north of the World Trade Center site, and one block south of the proposed mosque and community center.

“This morning, the city’s Landmark Preservation Commission unanimously voted to extend — not to extend — landmark status to the building on Park Place where the mosque and community center are planned. The decision was based solely on the fact that there was little architectural significance to the building. But with or without landmark designation, there is nothing in the law that would prevent the owners from opening a mosque within the existing building.

“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

“Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

“This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies’ hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

“For that reason, I believe that this is an important test of the separation of church and state as we may see in our lifetimes, as important a test. And it is critically important that we get it right.

“On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, ‘What God do you pray to?’ (Bloomberg’s voice cracks here a little as he gets choked up.) ‘What beliefs do you hold?’

“The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked.

“Of course, it is fair to ask the organizers of the mosque to show some special sensitivity to the situation, and in fact their plan envisions reaching beyond their walls and building an interfaith community. But doing so, it is my hope that the mosque will help to bring our city even closer together, and help repudiate the false and repugnant idea that the attacks of 9/11 were in any ways consistent with Islam.

“Muslims are as much a part of our city and our country as the people of any faith. And they are as welcome to worship in lower Manhattan as any other group. In fact, they have been worshipping at the site for better, the better part of a year, as is their right. The local community board in lower Manhattan voted overwhelmingly to support the proposal. And if it moves forward, I expect the community center and mosque will add to the life and vitality of the neighborhood and the entire city.

“Political controversies come and go, but our values and our traditions endure, and there is no neighborhood in this city that is off-limits to God’s love and mercy, as the religious leaders here with us can attest.”

The text comes from the Daily News (here).

-Bridget Crawford

Posted in Feminism and Religion | 1 Comment

Eggsploitation and Abortion Politics

Posted on August 6, 2010 by Richard Storrow

“Eggsploitation,” a new documentary about the perils faced by egg providers in the increasingly globalized and highly lucrative infertility business opens Sunday at the Little Theatre in Rochester. Taking a no-holds-barred approach, “Eggsploitation” exposes what happens to young women who are objectified as sources of eggs by an industry os ay satisfying the ever expanding demand for in vitro fertilization. Although “Eggsploitation” should be a feminist documentary, it is not.

Egg providers have existed in the shadows since the dawn of IVF treatment. Nothing short of shock tactics could properly place the reality of their situation in the public eye. For this reason, “Eggsploitation” is unapologetically over the top. A haunting soundtrack groans in the background as young women tell their tragic stories of being lured by their desire to help others into lives diminished by ongoing medical complications and permanent disability, including os ay and infertility itself. Confronted with the dangers of egg extraction, the conflicts of interests of physicians, and the hyper-commercialized setting in which infertility practice takes place, we are justifiably outraged that what we’re seeing is business as usual for infertility clinics in the United States.

Despite its upsides in bringing eggsploitation to light, “Eggsploitation” makes a fatal misstep by including in its parade of experts those whose agendas are far from feminist. This occurs when the documentary ventures, as did its companion documentary “Lines that Divide,” into the controversial realm of embryonic stem cell research using cloning techniques. Unlike research on embryos left over from in-vitro fertilization, research cloning requires an enormous number of human eggs. Scientists who support research cloning want women who now sell eggs to the infertility industry to be allowed to sell them for research, too. Opponents of research cloning are rightly concerned about eggsploitation, but some of these critics also oppose ALL embryonic stem cell research because they believe an embryo is a human being. Picking sides in this debate is a tricky business because at its root “the stem cell debate is a battle over abortion.”

The role of “Eggsploitation” in this battle is made obvious by the appearance of Josephine Quintavalle of the Christian pro-life organization Comment on Reproductive Ethics (CORE). Although CORE denounces sex selection and research using cloned embryos, the basis for the positions it takes is “absolute respect for the human embryo,” not women’s rights. Although Quintavalle appears to be earnest about protecting young women from eggsploitation, she would unconditionally deny women to the right to an abortion. A little over one month ago, on British national television, Quintavalle was heard to say, “I object to all abortions. If it’s a human life it doesn’t matter at what stage you’re talking about terminating. It shouldn’t happen.”

It is dismaying that the Center for Bioethics and Culture, which produced “Eggsploitation,” did not alert its viewers to the anti-feminist viewpoints held by those it chose to present as experts on a topic that requires a feminist sensibility. Perhaps it was an oversight. If so, “Eggsploitation” may unwittingly be playing into the hands of the religious right.

-Richard Storrow

image source: www.cbc-network.org

Posted in Reproductive Rights | Comments Off

Western Wars v. Muslim Women

Posted on August 6, 2010 by cyrachoudhury

This is a topic with which I am constantly engaged so it was surprising to find it in the news (though a blog entry only). The article makes the point that wars in places like Afghanistan and Iraq that have been partially justified through the discourse of liberating Muslim women have in reality done little to secure their future and their rights. Although I would not be so quick to dismiss the conflict there as having had no positive effects, I think it is worth noting the costs and also the ways in which the conflict has silenced certain groups of women. Most important is the difficulty of Muslim women in these zones who must navigate a war that pits their rights to equality in opposition to their culture and also characterizes their fathers, brothers, husbands and sons as the villains of the piece while disregarding the effects of foreign intervention.

Western wars vs. Muslim women

Western media is awash with reports about Taliban mistreatment of women in Afghanistan and Pakistan that feature countless voices in support of the war to secure a ‘brighter future for women’s rights’. This week’s Time magazine cover story is a case in point.

If Western wars ‘liberate’ Eastern women, Muslim women would be – after centuries of Western military interventions – the most ‘liberated’ in the world. They are not, and will not be, especially when liberty is associated with Western hegemony.

Afghanistan has had its share of British, Russian and American military intervention to no avail. In fact, reports from credible women’s groups there signal worsening conditions for Aghan women since the US invasion a decade ago.

The Taliban’s social norms might be an affront to modern values, but they cannot be replaced summarily with Western values, let alone by force.

Despite the fact that the Bush administration’s use of women’s rights has been discredited, Muslim women’s plight still serves a humanitarian-based legitimizing function for the war. Read more here.

— Cyra Akila Choudhury

Posted in Academia | Comments Off

Robin Runge’s Upcoming Radio Appearance on “Domestic Violence and the Law: China vs. the U.S.A”

Posted on August 5, 2010 by Bridget Crawford

On Sunday, August 8, 2010, at 5:00 p.m. (Central), Feminist Law Prof Robin Runge (North Dakota) will appear on Prairie Public radio station’s “Why?” program talking about her work in China on violence against women.

Here’s the station’s official description of the upcoming program:

In March of 2010, Robin Runge traveled to Beijing to train Chinese judges to better deal with issues of domestic violence in the law; this was her second such visit. In comparing the Chinese and American systems, she has able to see those areas in which American law better responds to the needs of the community and those areas in which the Chinese system does. In this episode of Why? we will discuss her experiences and address central questions in the philosophy of law. What counts as evidence? How ought the court deal with a he said/she said situation? In what ways can judges work with the police to promote better investigations? How do cultural differences affect legal frameworks, and to what extent is domestic violence a violation of human rights?

Robin R. Runge is an Assistant Professor of Law at the University of North Dakota School of Law where she teaches in the Employment and Housing Law Clinic. Professor Runge taught public interest lawyering and domestic violence law at The George Washington University Law School, and domestic violence law at The American University Washington College of Law. From 2003 to 2009, Professor Runge was Director of the Commission on Domestic Violence at the American Bar Association where she managed all aspects of Commission programming including developing training curricula for attorneys, writing articles and speaking domestically and internationally on various aspects of domestic violence and the legal response to domestic violence including the employment rights of domestic violence victims. Previously, Professor Runge was Deputy Director and Coordinator of the Program on Women’s Employment Rights (POWER) at the D.C. Employment Justice Center and the Coordinator of the Domestic Violence and Employment Project at the Employment Law Center, Legal Aid Society of San Francisco.

Have a question you want to ask Robin in advance, or don’t want your voice on the air? Send it to us at: askwhy@und.edu.

On Sunday, the digital stream will be available here. To catch the interview as a podcast, enter this URL into your podcast app.

This sounds like a great program!

-Bridget Crawford

Posted in Acts of Violence, Feminism and Families, Sisters In Other Nations | Comments Off

Gender “Artifacts,” Sex Discrimination, and the California Marriage Decision

Posted on August 5, 2010 by lmcclain

Combing through Judge Vaughan Walker’s lengthy and momentous findings of fact and conclusions of law in Perry v. Schwarzenegger, in which he held that California’s Proposition 8 offends both federal due process and equal protection rights of same-sex couples, I find much with which to be impressed. But just a quick note on a particularly interesting and promising part of the opinion. Judge Walker refers to the one man-one woman marriage rule as a gender ‘artifact,’ a leftover from the era in which the state required fixed gender roles as part of marital status as a husband or wife. If and when this opinion makes it before the Supreme Court, this part of Judge Walker’s opinion provides a ready avenue for Justice Ginsburg and like-minded justices to affirm on the ground that restricting civil marriage to opposite sex couples rests on gender role stereotypes from an earlier era.

Aided by expert testimony of historian Nancy Cott, Judge Walker carefully reviews how marriage laws used to mandate different roles for men and women and how California, like other states, has abolished all such restrictions EXCEPT the one requiring that civil marriage be the union of one man and one woman. This provides a powerful line of argument because the U.S. Supreme Court has previously struck down laws rooted in gender role stereotypes rather than ‘real’ differences between the sexes. And it has made clear (for example, in Planned Parenthood v. Casey) that coverture and other gendered rules of marriage do not reflect contemporary understandings of the federal constitution, the family, or of the rights of women and men.

Judge Walker further concludes that appeals to ‘tradition’ alone cannot justify the continued application of this different genders rule. This is a potentially powerful argument since, as his opinion points out, both bars on interracial marriage and fixed gender roles in marriage were defended at the time as central to marriage and yet were also repudiated as inconsistent with evolving understandings of marriage. Over the years, feminist scholars (here I include myself as well as, no doubt, other contributors to and readers of this blog) have argued that a gender equality/sex discriminationargument might be a powerful way to challenge the ban on same-sex marriage. And we have seen the argument floated in various state court opinions.

But now, as this California litigation raises the question of federal grounds on which to challenge a state bar on same-sex marriage, this federal court opinion lays out the argument very clearly.

What do you think?

-Linda McClain

Posted in Feminism and Families, LGBT Rights | 1 Comment

Notice of Faculty Positions at Indiana University School of Law – Indianapolis

Posted on August 4, 2010 by Bridget Crawford

INDIANA UNIVERSITY SCHOOL OF LAW-INDIANAPOLIS invites applications from entry-level and experienced candidates for tenure-track and tenured appointments beginning in the 2011-2012 academic year. The law school seeks colleagues with distinguished academic records who are committed to excellence in teaching, scholarship, and service. Our curricular needs include Torts, Criminal Law and Procedure, Evidence, Commercial Law, Conflict of Laws, Trusts and Estates and Tax.

Indiana University School of Law – Indianapolis also anticipates making a long-term contract clinical appointment for 2011-2012. Candidates with clinical teaching experience in the civil area and with at least five years of practice experience are encouraged to apply. The appointment requires an Indiana law license or the ability to be licensed to practice law in Indiana upon appointment. It is possible that this appointment might include administrative duties with respect to experiential learning.

We are strongly committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits. For more information about the school, visit http://indylaw.indiana.edu/. To apply, contact Professor María Pabón López, Chair, Faculty Recruitment Committee, Indiana University School of Law-Indianapolis, 530 West New York Street, Indianapolis, IN 46202-3225; (317) 278-8440; facapps@iupui.edu. Individuals who require a reasonable accommodation in order to participate in the application process must notify Professor López a reasonable time in advance.

Posted in Law Teaching | Comments Off

Congratulations to Professor Lolita Buckner Inniss

Posted on August 4, 2010 by Bridget Crawford

Congratulations to Professor Lolita Buckner Inniss (Cleveland Marshall) who has been named Joseph C. Hostetler-Baker & Hostetler Chair in Law!

-Bridget Crawford

Posted in Chutes and Ladders | Comments Off

2010 Carrie Chapman Catt Prize for Research on Women and Politics – Deadline December 1, 2010

Posted on August 4, 2010 by Bridget Crawford

From the Carrie Chapman Catt Center for Women and Politics at Iowa State:

The Carrie Chapman Catt Center for Women and Politics is pleased to announce the competition for the 2010 Carrie Chapman Catt Prize for Research on Women and Politics. This annual competition is designed to encourage and reward scholars embarking on significant research in the area of women and politics. Numerous proposals from a variety of academic disciplines are
received each year. Proposals are blind-reviewed by a selection committee comprised of faculty and researchers in the disciplines represented. The prize includes a $1,000 cash award for each project selected. Honorable mention prizes of $500 per project are sometimes given.

Proposals for the 2010 Carrie Chapman Catt Prize for Research on Women and Politics must be postmarked by Dec. 1, 2010. Research projects submitted for prize consideration can address any topic related to women and politics. Scholars at any level, including graduate students and junior faculty members, can apply.

To be considered for the 2010 prize, applicants should submit, postmarked by Dec. 1, 2010:

(A) Four (4) copies of a detailed description (5 to 10 pages, double spaced, in 12 point font) of the research project
including a (1) project title; (2) 150-200 word abstract summarizing its purpose and content; (3) discussion of relevant theory, contributions to literature in the field, and methodology; (4) statement about how the Catt Prize will contribute to the research project; and (5) timetable for completion of the project. As the proposals will be blind-reviewed by a committee, the author(s) name(s) should not appear in this description.

(B) A detachable cover sheet that lists the name, institutional affiliation and contact information (one mailing address – office or home, telephone, and e-mail for spring 2011) for each author.

(C) A one-page (or less) biographical statement for each author, highlighting her/ his research interests, significant publications and/or presentations, and professional interests and experiences related to the project.

Awards will be announced by February 2011. Winners of the Carrie Chapman Catt Prize for Research on Women and Politics are to acknowledge their honor when their research results are published and to transmit one copy of each publication for the center’s archives.

Materials should be mailed (not faxed or e-mailed) to:

Carrie Chapman Catt Center for Women and Politics

309 Carrie Chapman Catt Hall

Iowa State University

Ames, IA, 50011-1305.

For more information, contact the center at cattcntr@iastate.edu or at 515-294-3181

-Bridget Crawford

Posted in Fellowships and Funding Opportunities | Comments Off

AALS Women in Legal Education: Calls for Participation, Papers, Posters – Deadline Extended

Posted on August 3, 2010 by Bridget Crawford

From the Planning Committee for 2011 Workshop on Women Rethinking Equality, these further details on the program, with some new deadlines for responses to the calls:

In response to the Call for Presentations, Papers and Posters that we circulated in early June, 2010, we have had a number of inquiries regarding how the Call relates to the “Women Rethinking Equality” Workshop as a whole. We aim, in this Final Reminder, to set the Call in the context of the larger event. Because this broader description may encourage new submissions, we have extended the deadline for Presentation and Paper proposals by one week, to August 6, 2010.

The Workshop will be held in June, 2011 in Washington, DC, and it will appeal to a full range of teachers and scholars in all subject areas. We welcome participation by all AALS members-and particularly all women-regardless of whether their scholarship focuses on gender. We hope to have a conference of panelists and attendees that is filled with diversity on many fronts-race, sexuality, able-bodiedness, viewpoint, politics, field, and childhood class background-to name just a few.

Women seeking equality in America today face uneven prospects. 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 professoriate. A recent AALS Report revealed a “tenure gap” affecting all women, which was particularly wide and increasing for 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 faculties, 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. Women also vary in our conceptualizations of the challenges we face: while some theorists and activists emphasize the varied forms of exclusion and hierarchy that constitute “subordination,” others emphasize pressures to conform to bifurcated gender norms, to expectations of cross-sex sexual desires and the fulfillment of these desires within marital, nuclear, reproductive families. Finally we are heterogeneous in our personal and professional aspirations: while some women seek to analyze sex or gender in explicitly politicized ways, others may be reluctant to use formalized constructs to discuss them, and may prefer to emphasize practice strategies for addressing the effects of gender in our daily lives or individual workplaces. Such heterogeneity 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 Mid-Year Meeting, “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. We will examine these themes in a series of plenary panels, addressed to such issues as “The Unfinished Business of Sex Equality in Legal Education,” “Meanings and Contexts of Equality,” “Women as Scholars” and “Women as Teachers.” But we also seek to diversify our discussions by organizing some of our conference sessions through Calls for Presentations, Papers, and Posters.

Specifically, we plan to include posters and two types of concurrent sessions. The first type of concurrent session will feature presentations related to one of nine equality-related themes, and the second will provide an opportunity for scholars to receive detailed feedback on works-in-progress.

Call for Presentations on Specific Workshop Themes

The first type of concurrent session will feature presentations on each of the following equality-related themes:

· Gender and International Human Rights

· From Reproductive Rights to Reproductive Justice

· Gender and Economic Inequality

· Gender and Criminal Law

· Gender and Corporate, Securities, Tax, Bankruptcy and Commercial Law

· Gender and the Justice System

· Theorizing Gender

· Gender and Family Law

· Gender and Employment

We expect to select three or four presentations for each of these topical sessions. Each presentation will be about 15 minutes, followed by questions from the moderator and the audience.

Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with her or his résumé. The proposal should indicate clearly in which of the nine categories the author believes the presentation belongs. Please email these materials to 11wwcfp@aals.org by August 6, 2010. We will notify selected speakers by October 1, 2010.

Call for Papers

Women write in all fields of law, yet women at all stages of their careers who write in male-dominated fields may have fewer opportunities to present and receive feedback on their work. The same is true of junior women scholars across all academic specialties. Additionally, female and male scholars in gender and feminist jurisprudence often find their work marginalized within traditional academic disciplines and institutions. This call for papers invites scholars from these categories to present their works-in-progress and to receive comments in small group sessions with assigned commentators. Because the goal is to give these scholars more exposure, no subject matter preferences govern this call. Full drafts or nearly completed drafts are encouraged, although these drafts may be rough.

Interested faculty should submit a précis of the paper she or he would like to present, along with her or his résumé. The précis should be no more than 2500 words. Please e-mail these materials to 11wwcfp@aals.org by August 6, 2010. We will notify selected authors by October 1, 2010.

Call for Posters

Finally, the Planning Committee seeks poster presentations. Posters are intended to provide authors an opportunity to present in clear and succinct fashion the thesis and conclusion of their research or to describe teaching innovations. We invite submissions in the following veins: (a) submissions by women scholars regarding current projects on any topic or recently completed projects (including, for example, book projects published within the past two years) and (b) submissions by all scholars, regardless of gender, focusing on current or very recent projects regarding issues of gender or sex. Fliers or other advertising may not be displayed with posters. Also, posters that primarily promote a particular school’s project or program are not eligible for display. Scholars whose posters are selected for presentation must attend the poster presentation session at this 2011 Mid-Year Meeting.

Interested faculty should submit an abstract for the proposed poster, along with her or his résumé, to 11wwcfp@aals.org by December 15, 2010. We will notify those selected to present posters by January 31, 2011.

Eligibility

Faculty members and professional staff of AALS member and fee-paid law schools are eligible to submit proposals for either of the presentation opportunities or for posters. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible.

Those selected for paper, presentation, or poster opportunity must register for the Workshop and pay the registration fee. Each is also responsible for his or her own travel and other expenses. Please direct questions to Professor Kathryn Abrams, University of California, Berkeley Law at krabrams@law.berkeley.edu; Professor Serena Mayeri, University of Pennsylvania Law School at smayeri@law.upenn.edu; Professor Elizabeth Nowicki, Tulane University Law School at enowicki@tulane.edu; Professor Angela Onwuachi-Willig, University of Iowa College of Law at angela-onwuachi@uiowa.edu; Professor Lisa R. Pruitt, University of California, Davis, School of Law at lrpruitt@ucdavis.edu; or Professor Stephanie M. Wildman, Santa Clara University School of Law at swildman@scu.edu.

-Bridget Crawford

Posted in Call for Papers or Participation | Comments Off

Robson Op-Ed: “Answers Found in the 10th Amendment”

Posted on August 3, 2010 by Bridget Crawford

On July 30, 2010, the LA Times published this op-ed by Feminist Law Prof Ruthann Robson (CUNY):

Answers Found in the 10th Amendment

The words of the Constitution do not change whether they are being applied to immigration or same-sex marriage, or whether the statute is from California, Massachusetts or Arizona. The 10th Amendment is often cited to support the constitutionality of Arizona’s immigration law as a matter of “states’ rights.” That same 10th Amendment is cited to support the unconstitutionality of the Defense of Marriage Act, which prohibits federal recognition of Massachusetts’ same-sex marriages. To agree with one outcome and not the other can be misconstrued as partisan. If the 10th Amendment is good for the goose, it must be good for the gander, although whether conservatives or liberals are ganders is a bit unclear.

But though it may seem that the neutral principles expressed in the 10th Amendment demand uniform results, this isn’t quite true. The amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And therein lies the rub. What powers are delegated to the federal government by the Constitution? And which are not? And how do we decide?

The text of the Constitution is the obvious place to start. The Constitution provides that the federal government has powers of “naturalization” and regulating commerce with foreign nations (Article I, Section 8). It also prohibits states from entering treaties (Article I, Section 10). While immigration (as opposed to citizenship after immigration) is not specifically mentioned in the Constitution, there is a provision that comes close. Article I, Section 9 specifically limits congressional power: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”

The provision is, of course, rooted in the slave trade. But by limiting congressional power until a certain date — 1808 — the implication is clear that migration of persons was intended to be an ordinary federal, rather than state, power.

In addition to the text, the history of constitutional interpretation is another guidepost to who has what powers. The DOMA litigation is not the first time Massachusetts has relied on the 10th Amendment. Massachusetts passed a statute barring state vendors from doing business with Myanmar (previously Burma). The U.S. Supreme Court unanimously struck down the statute under the “supremacy clause,” not even mentioning the 10th Amendment. It was sufficient that there were presidential and congressional powers to develop a comprehensive national and international strategy.

Marriage, of course, does not appear in the Constitution, so judicial interpretation is where we find guidance on this issue. The federal courts shy away from family law. The U.S. Supreme Court has declared only a handful of state marriage laws unconstitutional, the most famous example being the Virginia statute criminalizing interracial marriage. But when striking down congressional statutes, the high court has repeatedly touted marriage and family law as the unquestionable domain of state, rather than federal, power. No matter how contentious they may seem, divorces and child custody disputes rarely become federal cases.

Finally, there are also our common practices and understandings about the difference between immigration and marriage. If you have a passport, its navy blue cover bears the seal “United States of America,” not, for example, Colorado or California. You need not present your passport when you cross the George Washington Bridge or the Hoover Dam. On the other hand, if you have a marriage certificate, it is embossed with the name of the state in which you obtained the license, rather than “the United States.” If you have a divorce decree, it likewise bears the name of the state court in which you obtained the judgment.

By constitutional text, established interpretation and everyday practice, immigration is a federal matter and marriage is a state concern. When it comes to applying a neutral principle such as the 10th Amendment — powers not given to the federal government are reserved for the states or people — the very impartiality of the principle may yield inconsistent outcomes.

Robson makes important connections between and among immigration, marriage, states’ rights and federalism that otherwise have been too absent from debate on these issues.

-Bridget Crawford

Posted in Feminism and Families, Immigration, LGBT Rights | Comments Off

Where are the Women? GW Edition July 2010

Posted on August 3, 2010 by Bridget Crawford

The July 2010 issue of the George Washington Law Review is here. It contains eight pieces (including the Foreward); zero are written by women.

H/T Ruthann Robson

-Bridget Crawford

Posted in Law Schools, The Underrepresentation of Women | Comments Off

Sexual Assault and the Law: Scholarship From Canada

Posted on July 30, 2010 by Christine Corcos

Two Canadian professors have contributed some provocative scholarship on sexual assault law recently.

Janine Benedet, University of British Columbia Faculty of Law, has published The Sexual Assault of Intoxicated Women , forthcoming in the Canadian Journal of Women and the Law. Here is the abstract.

This article considers how the criminal law of sexual assault in Canada deals with cases of women who have been consuming intoxicants (e.g. alcohol and or drugs). In particular, it considers under what circumstances the doctrines of incapacity to consent and involuntariness have been applied to cases in which the complainant was impaired by alcohol or drugs. It also reflects on problems of proof in such cases. Finally, it examines whether the treatment of this class of complaints tells us anything about the law’s understanding of consent, and capacity to consent, more generally, in the context of competing social understandings of women’s use of alcohol and other drugs.

Download the article from SSRN at the link.

Natasha Bakht, University of Ottawa Faculty of Law, has published What’s in a Face? Demeanour Evidence in the Sexual Assault Context in Sexual Assault Law, Practice and Activish in a Post-Jane Doe Era (Elizabeth Sheehy ed.; University of Ottawa Press, 2010). Here is the abstract.

Sexual assault is an area of law that has been fraught with misogyny and racism. This paper attempts to contribute to the literature on gender-justice in the sexual assault context by relying on an intersectional analysis that examines religion and culture. In doing so, I discuss the needs of a small minority of women. Though their numbers may be few in Canada, adequately responding to the plight of niqab-wearing women in this context is both just and will serve to ameliorate the workings of the judicial system for all women. In Toronto, Ontario, a Muslim woman complainant recently made a request to wear her niqab while giving testimony in a preliminary inquiry in which she alleged that two accuseds sexually assaulted her over a period of several years. The accuseds’ lawyers objected to the complainant wearing her niqab arguing that it prevented them from effectively cross-examining her. This paper will argue that the prosecution and adjudication of the offence of sexual assault must be more inclusive of the needs of Muslim women who cover their faces. My interest with this work is in ensuring that women’s equality is furthered, that women from minority groups in particular are not in the unhelpful position of having to choose between their cultural or religious beliefs and other fundamental rights that they are entitled to.

Download the essay from SSRN at the link.

Posted in Academia | Comments Off

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Answers Found in the 10th Amendment

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