Focus on Intentional Pedagogy at “Faculty Teaching Day”

Many law schools have annual faculty retreats or “scholarship days” to showcase faculty scholarship.  My home institution instituted that tradition two years ago.  For the first time this year, we also held a “Faculty Teaching Day,” a half-day program for the full-time faculty to discuss pedagogy, consider recent developments in legal education and entertain ponderous questions about the future of law teaching.  It was a worthwhile program that helped me appreciate what my colleagues are doing in the classroom.  (We don’t have a formal post-tenure review or “classroom visit” as part of the annual evaluation process.)

Here is a quick list of the day’s sessions:

  • Overview of MacCrate, Carnegie and Best Practices
  • Learning From Examinations and Evaluations
  • Student Perspectives on Excellent Teaching
  • Incorporating Comparative Law into Domestic Law Classes
  • Teaching in the First Year: Is it Different?  Should it Be?
  • Powerpoint Do’s, Don’ts and What If’s
  • Skills Throughout the Curriculum
  • Adult Learning Styles
  • Delivering Post-Millennial Legal Education

Full program descriptions appear after the jump.  I’d be happy to share additional information with anyone who is interested.

-Bridget Crawford

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Ambivalent About the Boobquake

You’ve probably seen it by now. First, a Neanderthal Iranian cleric scolded women for wearing “immodest” Western clothing which of course leads to adultery, which of course causes earthquakes. In response, blogger Jen McCreight announced:

On Monday, April 26th, I will wear the most cleavage-showing shirt I own. Yes, the one usually reserved for a night on the town. I encourage other female skeptics to join me and embrace the supposed supernatural power of their breasts. Or short shorts, if that’s your preferred form of immodesty. With the power of our scandalous bodies combined, we should surely produce an earthquake.

Within hours, thousands more had signed up for the “boobquake.” There are currently almost 150,000 confirmed attendees, and a variety of news stories have discussed the phenomenon.

I have to say, I’m conflicted about this one.

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Posted in Feminism and Culture, Sisters In Other Nations | 1 Comment

Inniss on History of U.S. Slave Trade

The New York Times published Lolita Buckner Inniss’s letter to the editor in response to  Henry Louis Gates’s April 23, 2010 op-ed, “Ending the Slavery Blame-Game.”  Professor Inniss writes:

To the Editor:

As Prof. Henry Louis Gates Jr. points out, the role of Africans themselves in slave trading is one that is sometimes ignored by advocates of reparations. I fear, however, that in looking at the role of Africans in creating or sustaining the slave trade, we will make the same mistake that we make in trying to assess blame for international drug trafficking — focusing too much on the supply side of trafficking.

While it is true that without slaves having been provided to Europeans there probably would have been no large-scale trans-Atlantic slave trade, it is equally true that without the demand for African slaves in the West there could have been no large-scale slave trade.

To use the metaphor of a modern-day kidnapping, the question becomes, Who is more culpable: the abductor who initially takes the victim, or the captor who obtains the victim and keeps him (and often his offspring) captive for generations?

Lolita Buckner Inniss
Cleveland, April 23, 2010

The writer is a professor at Cleveland Marshall College of Law.

-Bridget Crawford

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Women and Investing

In response to the special financial challenges faced by women (live longer; earn less; take breaks from workplace) and recent research identifying characteristics of women that generally make them different investors with lower risk tolerances than men, a need has arisen for financial advice tailored specifically to women. Saturday’s “Your Money” column in the New York Times (here) highlights these investing differences and reviews several books and websites designed to meet this need for female-specific financial advice. While women are fortunate that these financial advising resources exist, they are less fortunate that the law has not yet recognized that women are different as investors. Courts and arbitrators judge the reasonableness of women’s investment decisions according to the “reasonable investor” standard — which is almost always a male investor, as historically more men were investors than women. Perhaps this gender-based research will lead to a much-needed recognition in the law that what is suitable as an investment for men may not be suitable for women.

-Jill Gross

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Op-Ed on Nebraska’s Post-20-Week Abortion Ban

The L.A. Times ran my op-ed on April 25 on Nebraska’s “Pain-Capable Unborn Child Protection Act”:

Nebraska legislation aimed at undoing Roe vs. Wade

Nebraska’s Abortion Pain Prevention Act, signed into law last week, appears to have a quite reasonable aim: to prevent fetuses from feeling pain during abortions. In fact, the law, which bans abortions for women more than 20 weeks pregnant, is yet another attempt to undo Roe vs. Wade and abolish a woman’s constitutional right to a pre-viability abortion. To do this, the law takes a disingenuous path, one well trodden by antiabortion legislation passed in the decades since Roe.

Abortion legislation today commonly masquerades as something much smaller than a call to ban all abortions. Laws that require teens to consult their parents before obtaining abortions purport to encourage family communication and protect youth from rash decision-making. Laws that require women to wait 48 hours and make two trips to the doctor before obtaining an abortion are cast as ensuring “informed consent.” Ostensibly, Nebraska’s new law addresses fetal pain. . . .

–Caitlin Borgmann

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If Nero Had Internet Access, He Might Have Watched Porn While Rome Burned

From the Associated Press:

Senior staffers at the Securities and Exchange Commission spent hours surfing pornographic websites on government-issued computers while they were being paid to police the financial system, an agency watchdog says.

The SEC’s inspector general conducted 33 probes of employees looking at explicit images in the past five years, according to a memo obtained by The Associated Press.

The memo says 31 of those probes occurred in the 2 1/2 years since the financial system teetered and nearly crashed. * * * It summarizes past inspector general probes and reports some shocking findings:

– A senior attorney at the SEC’s Washington headquarters spent up to eight hours a day looking at and downloading pornography. When he ran out of hard drive space, he burned the files to CDs or DVDs, which he kept in boxes around his office. He agreed to resign, an earlier watchdog report said.

– An accountant was blocked more than 16,000 times in a month from visiting websites classified as “Sex” or “Pornography.” Yet he still managed to amass a collection of “very graphic” material on his hard drive by using Google images to bypass the SEC’s internal filter, according to an earlier report from the inspector general. The accountant refused to testify in his defense, and received a 14-day suspension.

– Seventeen of the employees were “at a senior level,” earning salaries of up to $222,418.here.

WaPo has the full story here.

-Bridget Crawford

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CFP: Women’s Choices, Women’s Voices: Legal Regimes and Women’s Health

Call for Speakers

AALS Section on Law, Medicine and Health Care
Co-Sponsored by Section on Women in Legal Education

Women’s Choices, Women’s Voices:  Legal Regimes and Women’s Health
Friday, Jan. 7, 2011, 4:00 –  5:45 p.m.

The AALS Section on Law, Medicine and Health Care will hold a program during the AALS 2011 Annual Meeting in San Francisco, CA, co-sponsored by the Section on Women in Legal Education, on “Women’s Choices, Women’s Voices: Legal Regimes and Women’s Health.”   This panel will explore the ways in which the choices made in the legal system – at times without sufficient input from those most affected – influence women’s health.   Examples of this phenomenon can be found throughout health care.   In medical research, for example, the long-permissible exclusion of women from clinical studies, coupled with the historical focus on primarily male or gender-neutral medical conditions, has resulted in well-documented gaps in knowledge regarding appropriate treatment options for female patients (particularly women of color).   In the reproductive rights and technologies context, the services available to women may be affected by such legal doctrines as medical licensure, criminal law, and Constitutional and civil rights protections.   Even in the traditional bioethics areas of informed consent and end-of-life decisionmaking, the assumptions underlying the legal doctrine – reflected, for example, in the models we use to determine how a typical patient would want a dispute to be resolved – may not adequately reflect the options that women would like to have.   This panel will explore the ways in which the legal system’s approach to these issues affects women’s health, and how we might better integrate women’s voices – and their choices – into the discussion.

The AALS section is issuing an open Call for Speakers to fill the remaining slot on this panel.   To be considered, please submit a one or two paragraph summary of your topic to  jhkrause@email.unc.edu by August 15, 2010.   Submissions will be reviewed by members of the Executive Committee of the Section on Law, Medicine and Health Care, and authors will be notified in September 2010.

Participants will be responsible for paying their Annual Meeting registration fee and travel expenses.  Full-time faculty members of AALS member and fee-paid schools are eligible to submit papers.  Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Inquiries should be submitted to Professor Joan Krause, UNC School of Law,  jhkrause@email.unc.edu.

-Bridget Crawford

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Choudhury on “Globalizing the Margins”

Cyra Akila Choudhury (FIU) has posted to SSRN her article “Globalizing the Margins: Legal Exiles in the War on Terror and Liberal Feminism’s War for Muslim Women,” 9 Int. Rev.   of   Constitutionalism (2010)Here is the abstract:

In the post-9/11 United States, there has been a great deal of anxiety surrounding Muslims and their assimilability in Liberal democracies. Part of the debate has focused on the identity of Muslim men and women both locally and globally. This Article examines the production of Muslim masculinity as dangerous and violently patriarchal, the co-production of Muslim women as victims of Muslim men and Islam, and the use of law to contain the former while rescuing the latter and to legitimate these actions. Central to the argument are two linkages that follow. First is the linkage between the local production of identity and their global regulation. The production of these identities occur in both the West and the East. Indeed, the attacks of 9/11 brought the reality of radical Islamist violence from the global to the local providing the kernel of reality to the stereotype of the”Muslim”terrorist. However, the article focuses on the export of Western local anxieties and preoccupations about Muslims, which have been fed by both local racism and by the global terror attacks, to the world particularly after 9/11. The result of such export of legal mechanisms that are based on these anxieties is to globalize the local margins exiling certain groups of people to the hinterlands of civilization, sometimes marking them as outlaws. The second linkage that the Article makes is between the production of violent Muslim men who deserve therapeutic violence and Liberal feminist efforts to”save”Muslim women. This second link requires complex rearrangements of identity, decoupling women from community and sometimes family. The claim of the Article is that Liberal feminists who are interested in the liberation of women must first understand the marginalization of Muslims in the West and how it impacts Muslim women and the hierarchies that exist within Liberal orders. Resisting the globalization of the margin allows for truer partnerships with women in the Global South in the struggle for gender justice. In the final section of this Article, I outline the ways in which law works to legitimate the “exceptional” treatment which many Muslims are subjected to in both local and global contexts and how it maintains their otherness.

The full article is available here.

-Bridget Crawford

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Cooper on “When Machismo Meets Post-Racialism: The Gates Controversy”

Frank Rudy Cooper (Suffolk) has posted to SSRN his working paper, “When Machismo Meets Post-Racialism: The Gates Controversy.”   Here is the abstract:

On Thursday, July 16, 2009, white male police officer James Crowley was called to the home of prominent black male scholar Henry Louis Gates, Jr. on a report of a potential break-in. After confirming that no break-in had occurred and Gates’s identity, Crowley arrested Gates for disorderly conduct. Gates was promptly released without charges, and claimed he had been racially profiled. After the event became a national controversy, some people said that Gates was the true racist for assuming Crowley was racist. Only the parties”beer summit”with the President and Vice-president cooled the controversy. This article asks why Crowley arrested Gates and why some view Gates as the culprit.

The answer to the first question is that this was not just racial profiling, but also a masculinity contest. The arrest can be conceived of as resulting from the ways the parties challenged each others’ masculinities, which resulted in a masculinity contest. Specifically, Gates’s violation of the unofficial rule of deference to the badge created a masculinity challenge for Crowley and resulted in a masculinity contest between the parties that Crowley resolved by arresting Gates.

The answer to the second question is that race was indeed the dominant factor, but because of post-racialism, not traditional racism. Whereas colorblind ideology presumed the best way to reach an egalitarian society was to pretend race does not matter, post-racial ideology assumes we have reached that state. The ironic result of Obama’s election was to make it harder for the mainstream to see Crowley as implicitly biased and easier for them to see Gates as the true racist for having called Crowley racist.

The complicated nature of the Gates arrest and controversy reveals the need for a scholarly program demonstrating that norms of masculinity, while invisible, strongly influence behavior and that post-racialism, while explicitly progressive, hides implicit bias from view.

The full paper is available here.

-Bridget Crawford

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Please Don’t Put a Wig on Your Baby

image source: babytoupee.com

I know some people find “baby wigs” funny and harmless, but I find them utterly disturbing.  In my view, putting a wig on a baby either (a) sexualizes the child; or (b) functions as a type of minstrelsy (coincidence that three out of four wigs shown above are meant to mimic hairstyles of black performers?), or both.  Yuck.  Children are not dolls or playthings.

-Bridget Crawford

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Where Will We Be? Another Hate Crime Murder Trial in New York

Two men now stand trial in Brooklyn for the 2008 deadly beating of José O. Sucuzhañay, an Ecuadorean immigrant.  The victim’s brother, Romel Sucuzhañay, was attacked also, but he not seriously injured.  The prosecution’s theory in the case?  That the men were attacked “because they were Hispanic and because the assailants were under the mistaken impression that they were gay” (see here).  (The two men had been walking arm in arm.)  Earlier this week, a Long Island teenager was convicted in the fatal stabbing of Marcelo Lucero, another Ecuadorean immigrant.

When any one of us — straight or gay, male or female, immigrant or citizen — is unsafe in the streets, we are all unsafe.  When any one of us is silent when confronted with hate, we are complicit.  These lines from Pat Parker’s “Where Will You Be?” echo in my mind:

Every time we watched
a queer hassled in the
streets and said nothing --
It was an act of perversion.

A powerful recording of poet Pat Parker reading  “Where Will You Be?” at the 1979 National March on Washington for Lesbian and Gay Rights is here, courtesy of John Frame (queerradio.org, Australia).

Where will we be when hate strikes?  Where will we be when justice comes?

-Bridget Crawford

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Title IX: Back from Outer Space

Vice-President Biden announced yesterday that the Obama administration had withdrawn the Bush administration’s approach to Title IX.  The White House website describes the action as follows:

Today, Vice President Biden announced that the Administration has issued a ‘Dear Colleague’ letter that withdraws a 2005 interpretation of Title IX policy. Enacted in 1972, Title IX mandates that any educational institution receiving federal funding for programs and activities cannot discriminate on the basis of sex.   The 2005 policy issued compliance standards that were widely criticized for being inadequate and inconsistent with Title IX’s nondiscrimination goals. Today’s announcement reverses this interpretation, and returns to a more thorough test for assessing compliance with Title IX.

The full details are  here.

What was the Bush administration’s approach that President Obama has withdrawn? Permitting the use of surveys with low response rates to “prove” a lack of women’s interest in campus sports.

Erin Buzuvis (Western New England) and Kris Newhall (PhD candidate, Iowa) cover the story over at the  Title IX blog (here, here and here).

-Bridget Crawford

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“No Crime Seems Too Depraved”: NY Mafia Accused of Trafficking in Children

The United States Attorney for the Southern District of New York has arrested and charged 14 people – purportedly members of the Gambino crime family – for murder, racketeering and other crimes. Seven of the named defendants have been charged with sex trafficking. According to the indictment excerpted in the prosecution’s press release (here):

[Four of the accused men are] charged with sex trafficking and sex trafficking of a minor. From 2008 to 2009, the defendants operated a prostitution business where young women and girls:including an underage girl who was 15 years old at the time:were exploited and sold for sex. The defendants first recruited various young women and girls:ages 15 through 19:to work as prostitutes. The defendants then advertised the prostitution business on Craigslist and other websites. The defendants drove the women to appointments in Manhattan, Brooklyn, New Jersey, and Staten Island to have sex with clients. The defendants then took approximately 50 percent of the money paid to the young women. The defendants also made the women available for sex to gamblers at a weekly, high-stakes poker games that [one of the indicted men] and his crew ran.

The head of the New York office of the FBI commented to the New York Times (here) that “[n]o crime seems too depraved to be exploited [by the accused] if it was a money maker, including the sexual exploitation of a 15-year old.”

-Bridget Crawford

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SCOTUS rules in U.S. v. Stevens that law banning “crush porn” is unconstitutional infringement on free speech.

From the NYT:

The Supreme Court, with only one dissenting vote, on Tuesday struck down a federal ban on videos that show graphic violence against animals. The ruling cheered free speech advocates, but it raised concerns that more animals will be harmed.

The justices threw out the criminal conviction of Robert Stevens of Pittsville, Va., who was sentenced to three years in prison for videos he made about pit bull fights.

The law was enacted in 1999 to limit Internet sales of so-called crush videos, which appeal to a certain sexual fetish by showing women crushing to death small animals with their bare feet or high-heeled shoes.

The videos virtually disappeared once the measure became law, the government argued. The Bush administration used the law for the first time when it indicted Stevens in 2004.

All 50 states have laws against animal cruelty, but the federal statute targeted the videos because it has been difficult to prosecute people who take part in violence against animals with a camera rolling, but not showing their faces.

Chief Justice John Roberts, writing for the majority, said the law goes too far. He suggested that a measure limited to crush videos might be valid.

A lawmaker said he was moving immediately on Roberts’ suggestion. Rep. Elton Gallegly, R-Calif., said he is introducing legislation as early as Tuesday that would focus narrowly on crush videos. He said the bill would have bipartisan support and noted that the 1999 law passed both houses of Congress overwhelmingly and quickly worked.

”There aren’t too many thing you pass around here that actually work as well as this has,” Gallegly said.

In dissent, Justice Samuel Alito, a dog owner himself, said the harm animals suffer in dogfights is enough to sustain the law. Alito’s dog, Zeus, a springer spaniel, is sometimes seen around the court being walked by Alito’s wife, Martha-Ann.

Alito also said the ruling probably will spur new crush videos because it has ”the practical effect of legalizing the sale of such videos.” …

Read the full SCOTUS opinion here. From the syllabus:

(a) Depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment. Because §48 explicitly regulates expression based on content, it is “‘presumptively invalid,’ . . . and the Government bears the burden to rebut that presumption.”United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817. Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech:including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct:that”have never been thought to raise any Constitutional problem,”Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Depictions of animal cruelty should not be added to that list. While the prohibition of animal cruelty has a long history in American law, there is no evidence of a similar tradition prohibiting depictions of such cruelty. The Government’s proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government out-weigh the costs. New York v. Ferber, 458 U. S. 747, distinguished.

Previously blogged about here and here.

–Ann Bartow

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The Regulation of Naming

Yofi Tirosh, Faculty of Law, Tel Aviv University, has published A Name of One’s Own: Gender and Symbolic Legal Personhood in the European Court of Human Rights, in volume 33 of the Harvard Journal of Law and Gender (2010). Here is the abstract.

Legal regulation of surnames provides a fascinating venue for examining how women negotiate their interests of autonomy and of stable personhood vis a vis a patriarchal naming structure. This is a study of 25 years of adjudication of surnames and personal status at the European Court of Human Rights. It explores the intricate ways in which legal norms governing surnames (and their judicial interpretation) sustain, shape, and reify social institutions such as gender, family, and citizenship.

As a pan European court, the adjudication of the ECHR operates within the framework of human rights. The universal characteristics of human rights principles allow for an analysis that goes beyond the jurisdiction-specific doctrines of the different countries in Europe, relying on a more general protection of basic rights such as equality and privacy.

All of the cases studied here originated in civil law countries. Unlike the common law, the civil law has a highly regulated approach to name-giving and name-changing, a fact that results in litigation in cases that would not reach courts in contemporary common law countries. The rulings in such cases provide a unique opportunity to learn about judicial assumptions regarding gender roles and their symbolic representation through names.

This study is part of a larger project that explores the legal treatment of”external”personal markers such as clothes, hairstyle, names, and accent. Adding an important comparative dimension to the overarching project, this article further illustrates the difficulty of modern legal logic to be humble about its ability to classify and categories legal subjects in fixed rubrics of identity. Employing theoretical tools from feminist jurisprudence, semiotics, and textual analysis, this article lays out an alternative legal approach, which would perceive the subjects of law as multidimensional and complex persons, engaged in an ongoing project of finding ways of expressing themselves meaningfully.

Download the article from SSRN here.

–Christine Corcos
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Gender Frustrations

So I have taken a week to think about how to blog about a session that I saw last weekend at the ABA Conference.   The session was about using movies to demonstrate gender differences in negotiation  and I went to see what teaching tools might be provided.   I was on the negotiation program track for the ABA, and had helped select this session for presentation at the conference, so I was really looking forward to it.   Instead, the session became a very good example of the challenges in teaching  about gender differences in negotiation.

The session started out with slides that listed how women communicate or how women negotiate.   I think, in retrospect, that the speakers may have been trying to  highlight some of the stereotypes about women from the 1970’s and ask whether these were still relevant  but– without any introduction to what they planned to do, cites to the outdated research, or other signposting, –it appeared that the speakers were presenting these comments as current and true (even if that was not their intention).   When asked what research this was based on, the speakers stated that”this is what the research shows. ”  As some in the audience continued to challenge further assertions about the research, the tone went downhill and unfortunately, rather than becoming a learning experience, became more of an argument, which continued even after the session.   All this, of course, at a dispute resolution conference.

I wanted to unpack a few key things from this session.   First, as presenters, academics and scholars, it is incumbent upon each of us to know  the research in any given area on which we speak.   One of the frustrations was that the presenters referred to”research”without differentiating where, what, how and by whom the research was done.   (I think it was taken primarily from an ADR textbook that they use though I have not confirmed this.)     So, below, I am linking to a batch  of  the latest research on gender in negotiation.

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The Examined Life at Age 8 or 98: Dorothy Height Rest in Peace

The New York Times reported today that Dorothy Height, Activist, Educator, Civil Rights Leader, and quintessential black feminist, has died at the age of 98. You can read the NYT obituary of Dorothy Height here.

Miss Height (and she was a Miss, not a Ms.; Dorothy Height reminded us that words such as”miss” and”Negro”need not be relegated to the dustbin) was for 40 years the president of the National Council of Negro Women. Many people are aware of her work as a quiet but determined worker for the cause of black progress. Far fewer understand that she was also instrumental in helping to forge bonds between black and white women and between people of differing religious beliefs. She championed causes both large and small, and was a counselor to presidents as well as an advocate for the rights of poor children. As the New York Times reports, for much of her early life she was pushed to the background by the male leaders of black civil rights groups and the female leaders of white feminist groups. But she kept working nonetheless.

The post continues here.

-Lolita Buckner Inniss

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

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Kimberle Crenshaw at Thomas Jefferson Law School Women and Law Conference

I’d like to invite readers to attend the 2010 Women and the Law Conference at Thomas Jefferson School of Law. This event, our Tenth Annual Women and Law conference, will examine the past, present and future of intersectionality. Speakers will discuss ways that intersectional analysis illuminates stories of marginalization in the lives of women of color and other groups; and will set out concrete and aspirational visions of what it means to use intersectional awareness to reshape social movements and advance social justice.

The conference will take place on April 30th at 2 p.m.  The keynote speaker is Kimberle Crenshaw of UCLA and Columbia Law Schools, who will deliver the Ruth Bader Ginsburg lecture.  She will be followed by a distinguished panel of critical race scholars: Devon Carbado, Cheryl Harris, Russell Robinson and Saul Sarabia.

Registration is free for students and faculty. Additional information and registration is available at www.tjsl.edu/wlp_2010 . If you have any questions, please let me know.  I hope to see some of you there!

Kaimi Wenger

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What is “women’s clothing”?

Seems that a full-fledged gender-panic may be breaking out.   As if the whole mishigas with Constance McMillen being told she couldn’t wear a tux to her senior prom weren’t enough, now a mom in Maple Shade, New Jersey has had a fit that has gone viral on Facebook about the humiliation her son would face if he complied with an assignment from his third grade teacher: that all the kids in class come to school wearing women’s clothing from a time period of their choosing.

The teacher, Tonya Uibel, sent a letter home with her third grade class, informing parents that for Women’s History Month the class would be examining how women’s fashion has changed over time.   It gave all the kids in the class a project: come to class dressed in clothing that women wore from some period.   But the letter clarified: “If your child is a young man, he does not have to wear a dress or skirt, as there are many time periods where women wore jeans, pants and trousers. However, each child must be able to express what time period their outfit is from. Most of all, your child should have fun creating their outfit and learning about how women’s clothing has changed!”

I love this project!   It promised to set up a wonderful discussion about the gendering of clothing over time.   Here’s some stuff they could learn: that there is a “male” and “female” way to sew in zippers on pants and buttons on shirts; that “in the early years of the twentieth century, before World War I, boys wore pink (“a stronger, more decided color,” according to the promotional literature of the time) while girls wore blue (understood to be “delicate” and “dainty”). Only after World War II … did the present alignment of the two genders with pink and blue come into being,” as Marjorie Garber taught us; or that men in the Army and Marine Corps are not allowed to use umbrellas because they are considered too feminine.

Who knew?   Certainly not the third graders and their parents in Maple Shade, New Jersey.

But somehow Janine Giandomenico missed the pedagogical opportunity in this project and instead she flipped out that her son might have to go to school in a dress and be humiliated by a project that required cross-dressing as part of an overarching “gay agenda.”   You can read elsewhere about the campaign to queer-bait this exercise that Giandomenico launched on Facebook that took off in the blogosphere.

My interest in the issue is with the teaching moment that was lost.   Take a look at this picture of parents and kids assembled in front of the Maude Wilkins School (where this dispute took place) in the aftermath of the Women’s History Month clothing exercise debacle:

How would you gender their clothing?   Which of them has on “women’s clothing”? Which of them has on “men’s clothing”?   And whatever they’re wearing, none of them looks very happy.   Could it be their clothing that is making them so glum?

If I’d been given this assignment by my third grade teacher, know what I’d have worn?   A tux, of course.   Go Constance!

Katherine Franke, cross-posted from the Gender & Sexuality Law Blog

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An all women Supreme Court?

It’s not impossible.   The Texas Supreme Court is a testament to the possibility.   It happened eighty-five years ago,   if only for a single case.

In 1925, the Texas Governor appointed three women to fill all the positions on the Texas Supreme Court to hear a single case:   an appeal involving Woodmen of the World, a fraternal group whose members included virtually every male lawyer in the state.

(Pictured from left to right: Hortense Ward, Hattie Henenberg, and Ruth Brazzil; photo Texas State Library and Archives Commission, via).

The Texas Lawyer Blog found this bit of history relevant because Justice Harriet O’Neill, a woman, presided over oral arguments at the Texas Supreme Court yesterday, due to an absence and a recusal, thus becoming the first woman since 1925 to do so.

– Ruthann Robson

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Posted in Courts and the Judiciary, Feminism and Law, Feminist Legal History, If you're a woman, Legal Profession, The Underrepresentation of Women | 2 Comments

Guest Blogger Deborah Zipf: “Every Saturday Morning…”

Every Saturday morning, regardless of the weather or the state of the world, a group of anti-choicers gathers on the sidewalk outside the clinic in this city.   They have been faithful to their cause for over thirty years.   And, since nothing seems to change their minds – not statistics, not unwanted children, not child abuse, not the costs of raising a child, not the cruelty of children bearing children nor of young lives thrown off track by unplanned pregnancy, certainly not the principle of individual freedom of choice nor enough respect for women to allow them to make their own decisions, never the arguments people occasionally give them on their way in or out of the clinic – they will be there to the end of time.   They do not appear to be rational people.

Every Saturday morning, no matter the weather or the state of the world, a small group from the National Organization for Women is there to counter them.   We have our pet names for them of course, and no doubt they have theirs for us.   But they don’t need pet names; they have our photographs, our license plate numbers, the make of the cars we drive, and taped recordings of our voices.   When you are wearing a florescent orange pinny and standing within inches of these people, you have a powerful incentive to stay alert.

Over and over, they tell each woman who enters the clinic, “You’re a beautiful girl,”as if beauty defined her and certainly made it reasonable that she should produce a baby.    “You’ll regret this all your life,”   they repeat,   though statistics, admittedly from the National Abortion Federation, show that the most common response is relief.  “Don’t let her do it,”they tell the men, as if the decision were theirs and theirs only.  “We can help you,”they urge and sometimes a young woman falls for it and is driven off to be”helped”with diapers, a crib, much praise and little else.   What to do in a world where the driving reality is that no child should be born unwanted – and these folks don’t care.

There’s no hope of converting these people.   The abortion wars have been fought since Roe v Wade in 1973, which should have ended them.    As long as the anti-choicers keep doing what they’ve been doing,   we’ll   be outside the clinic doing what we’ve been doing – which means not only Saturday morning escort duty but holding our legislators to their promises and keeping New York — if not the nation – pro-choice. Anything less brings us back to where we were before Roe v. Wade.   It lets people who don’t give a damn about women, or children either, make the decisions for all of us.

-Deborah Zipf

Deborah Zipf is a graduate of Middlebury College.  She is active in local non-profit advocacy organizations and city political groups in White Plains, New York.  Ms. Zipf coordinates graduate program admissions at Pace Law School and generally ensures that the department functions smoothly.

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Could it be you don’t have any?

Fun with corporate website search functions:

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Via.

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When the NYT wants to spark debate about cussing, it asks “Why Do Educated People Use Bad Words?” and then queries one woman and five men.

Which makes the NYT ripe for cussing out. Impressive class bias, in addition to the sexism. Lovely quote from Timothy Jay: “This doesn’t mean the average person is swearing more. But we have recorded more women swearing in public than before, and more young children using offensive language and at younger ages than before.” The average person would seem to possess a penis.

–Ann Bartow

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Hide That Tramp Stamp!

A friend recently told me about a panel at her law school, where judges admonished young female attorneys about wearing inappropriate clothing and groused about attorneys who let their “tramp stamps” show.  The judges were women, by the way…I thought this was an isolated annoyance until I read this on Jezebel.  Apparently, lecturing young women about their clothing choices has become quite the fad, with “tramp stamps” a main topic of conversation.  How is this any different than the (female) federal judge who wouldn’t allow her (female) clerks to wear pants to work?

Leigh Goodmark

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Posted in Feminism and Law, Legal Profession | 1 Comment

Invasion of Privacy: Court of Appeals of Texas Finds Trial Court Properly Excluded Evidence of Alleged Victim’s Prior Nonconsensual Sexual Acts Under Rape Shield Rule

Texas Rule of Evidence 412(a) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

Meanwhile, Texas Rule of Evidence 412(b)  provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless [an exception applies].

The most typical rationale for such  rape shield rules is that they prevent evidence of an alleged victim’s prior sexual acts to be admissible to prove that the alleged victim has a propensity to consent to sexual acts and thus likely consented to the sexual act at issue. If this were the only rationale, evidence of an alleged victim’s prior nonconsensual sexual acts would not be precluded under such rules. While not explaining its reasoning, the Court of Appeals of Texas, Forth Worth, did not reach this conclusion in its recent opinion in Bryan v. State, 2010 WL 1137038 (Tex.App.-Fort Worth 2010). This post explains why I agree with the court’s conclusion.

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Batlan on “Roles, Perceptions and Working Conditions of Legal Secretaries in Large Law Firms”

Felice Batlan (Chicago Kent) has posted to SSRN an abstract of her article ‘If You Become His Second Wife, You are a Fool’: Shifting Paradigms of the Roles, Perceptions, and Working Conditions of Legal Secretaries in Large Law Firms (forthcoming,  Studies in Law, Politics, and Society):

The academic literature which addresses the creation and transformation of large law firms seldom mentions the presence of legal secretaries. Likewise works which discuss women attorneys and even issues of gender in such firms also neglect women secretaries to the point that one might conclude that female lawyers are the only women at large law firms. Such absence of legal secretaries, the vast majority who are women, reproduces law firm hierarchies in which attorneys are deemed to matter and to be of importance in understanding the legal profession and law firm dynamics while secretaries remain invisible. Given the lack of secondary literature on legal secretaries in large law firms, much of this article is based upon legal secretaries’ responses to a nation-wide survey which I conducted in 2009. Using such data, along with other primary sources, the article examines how legal secretaries’ roles and work have changed during the past fifty years, why women decide to become legal secretaries, their level of satisfaction, the work/ family conflicts they experience, how the recent financial crisis has affected them, and the complicated relationships that they have with attorneys, especially women attorneys. Moreover, the most significant scholarship on secretaries has depicted the secretary/boss relationship as one of a personal and domestic nature – what we might call the”second-wife”or”office wife syndrome.”Yet what does this mean in a culture in which the very meaning of”wife”is changing and unstable and where legal secretaries now work for a multiple attorneys, including women lawyers?

Sounds like interesting research!  I’ll keep my eyes open for a copy of the working paper.

-Bridget Crawford

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Ms. Magazine Welcomes Letters to the Editor

Ms. Magazine seeks letters to the editor responding to its most recent issue (here). There is a student rate for profs using the   magazine in the classroom.

-Bridget Crawford

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Fellowships at Simone de Beauvoir Institute

The Simone de Beauvoir Institute at Concordia University (Montreal, Canada) is accepting applications for its Lillian S. Robinson Scholars program:

This program is designed to attract distinguished visiting scholars working on a range of feminist research topics to the Simone de Beauvoir Institute. The program supports stays of varying lengths for scholars with a PhD. The program provides small stipends ranging from $500 to $3000. See the document below for more information on the program and for instructions on how to apply for the 2010-2011 academic year.

Further details and application instructions are available here.

-Bridget Crawford

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Anita Allen Appointed to Presidential Commission for the Study of Bioethical Issues

Feminist Law Prof Anita L. Allen (Penn) has been appointed by President Obama to the  Presidential Commission for the Study of Bioethical Issues.  The White House press release is here.

-Bridget Crawford

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Special Commission’s Recommendations to City of Cleveland on Responding to Sexual Assault Victims

In response to the shocking murders of several women in Cleveland, Ohio (see here), that city’s mayor appointed a Special Commission on Missing Persons and Sex Crime Investigations.  That Committee has issued its final report  here.

The Cleveland Plain Dealer summarized several of the key recommendations (here):

Recommended: Create a missing persons unit to analyze and distribute information. This would not add more investigators but should improve record keeping and sharing, and give families a contact person.

Currently: Patrol officers take initial reports and attempt to locate the missing person before passing cases to detectives in the five police districts. One officer in the departments downtown headquarters acts as a liaison. This would stay the same.

Recommended: Update the Sex Crimes/Child Abuse Units technology, such as cell phones, e-mail and electronic systems to track cases. The unit should relocate to a victim-friendly environment and private space should be created at police districts for victims to make reports.

Currently: The unit is located in dingy offices at Cleveland Police Headquarters. Parking is costly. Victims are often interviewed in the same space used to interrogate suspects. Officers do not have city-provided cell phones or e-mail. Cases are entered and updated in a handwritten logbook.

Recommended: City prosecutors with specialized training and detectives should collaborate on sexual assault cases from the start. The city should hire trained advocates.

Currently: In most cases, unit detectives consult with city prosecutors only when their investigations are finished. City prosecutors then decide whether the cases warrant charges or should go to the Cuyahoga County Prosecutor’s Office. Currently, less than 1/3 of all cases reported and investigated get prosecuted.

Recommended: Provide new or additional training for safety workers about victim sensitivity. Train department personnel to be courteous, friendly and professional. Specialized training is needed for responding to people, such as drug addicts, mentally ill.

Currently: Officers get limited training on victim trauma and crisis situations in the police academy. Yearly, officers receive up to 40 hours of training, sometimes by outside agencies, or seek additional training on their own.

The same paper has said (here) that, “History shows sexual-assault cases have not been a priority for Cleveland’s city leaders, law enforcement.”

-Bridget Crawford

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Where Are The Women? The Catholic University of America and its Law School’s Center for Law, Philosophy and Culture is hosting a womenless symposium on”The Nature of Judicial Duty: A Reflection on Philip Hamburger’s Law and Judicial Duty”on April 8-9, 2010.

The Symposium’s home page is here. The listed speakers include: Philip Hamburger (keynote), Richard A. Epstein, Emilio M. Garza, R.H. Helmholz, H. Jefferson Powell, Lloyd L. Weinreb and Michael P. Zuckert.

–Ann Bartow

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Posted in Courts and the Judiciary, Feminism and Religion, The Overrepresentation of Men, The Underrepresentation of Women, Where are the Women? | Comments Off on Where Are The Women? The Catholic University of America and its Law School’s Center for Law, Philosophy and Culture is hosting a womenless symposium on”The Nature of Judicial Duty: A Reflection on Philip Hamburger’s Law and Judicial Duty”on April 8-9, 2010.

Why did David Brooks feel the need to churn out another concern-trolling column urging women to choose marriage over career success?

Historiann contemplated that question here.

–Ann Bartow

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Posted in Feminism and Culture, If you're a woman, Sexism in the Media | 2 Comments

“Tax Protest Bake Sale”

Here’s one of many reasons I so appreciate being at Vermont Law School (VLS) — the initiative by our students’ Tax Club to raise travel funds for our delegation heading to DC for Don’t Ask Don’t Tell Lobby Day.   The subject heading of the all-school email they sent last month announcing the initiative:   Tax Protest Bake Sale.

Dear VLS Students and Faculty,

Let’s all pitch in to support the VLS Tax Club, as they sponsor a Transportation Tax Levy today through next week, protesting the waste of federal tax revenue on “Don’t Ask, Don’t Tell” prosecutions.   The Solomon Amendment makes this the problem of each of us at VLS, so we can’t just leave it to Alliance to fight on their own.

If you are not going to the capitol but you want DADT repealed, come to the Tax Protest Bake Sale and levy yourself a Transportation Tax to help get someone there in your place to lobby Congress for repeal so the Treasury Dept. can fund more worthwhile ventures, such as due process of law.

– Stephanie Farrior

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Important Post at The Legal Theory Blog.

It’s quite convincing. Excellent drafting, Professor Solum.

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Gender Construction Right Before Your Eyes

Startling and moving. I have to give the dad props for posting this to YouTube, given how things roll.

–Ann Bartow

ETA: Video has been made “private.” What it showed was three children, two girls and a boy, in the back seat of a car dancing joyfully to “All the Single Ladies” when the dad tells the boy he isn’t a “single lady.” The boy bursts into tears and is not mollified when his sisters tell him he can be a single lady if he wants to. The dad is confused but contrite and apologetic.

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Posted in Feminism and Culture, Sociolinguistics | 1 Comment

Tomorrow, April 1st is the last day to apply to Ms. JD’s 2L Fellowship

No fooling! More information here.

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Latoya Peterson originally wanted to title the post: “All The Women Are Still White, All The Blacks Are Still Men, But Some Of Us Are Tired of Being Brave and Want to Kick Someone’s Ass.”

Read it here. Peterson co-authored it with Thea Lim and there is a lot there to think about, that really needs to be thought about.

–Ann Bartow

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Posted in Feminism and the Workplace, Race and Racism, Sociolinguistics, Women and Economics | Comments Off on Latoya Peterson originally wanted to title the post: “All The Women Are Still White, All The Blacks Are Still Men, But Some Of Us Are Tired of Being Brave and Want to Kick Someone’s Ass.”

If you have forgotten for a second how much Supposedly Liberal Doods hate women, read the comments about the RNC “stripper” expenditures at any supposedly liberal blog.

For example here, here or here.   Impressive amount of racism too. Those folks are not our allies.

–Ann   Bartow

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If SCOTUS Opinions Don’t Use Gender-Neutral Language, Why Should Any Lawyer?

Leslie Rose (Golden Gate) has posted to SSRN her article, The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind (forthcoming Duke J. of Gender Law & Policy).  Here is the abstract:

Most modern legal writing texts and style manuals recommend that writers use gender-neutral language. Gender-neutral language is achieved by avoiding the use of gendered generics (the use of masculine or feminine nouns and pronouns to refer to both men and women). For example, gender neutrality could be achieved by referring to “Members of Congress,” rather than “Congressmen,” and by writing that “an attorney should file the motion before the deadline,” rather than “an attorney should file his motion before the deadline.” Even the venerable Chicago Manual of Style advises that the use of a generic masculine pronoun to refer to both men and women can negatively affect the writer’s credibility with some readers.

Most of the advice on gender-neutral writing is directed at lawyers and law students, emphasizing that this technique is part of good advocacy and effective communication with the reader – usually a judge. It can be hard, however, to convince both new and experienced legal writers that the heightened consciousness and extra editing required to achieve gender neutrality is worth the effort when a similar effort is not reflected in their models – the appellate court opinions they read. Thus, the advice should apply equally to judges.

This article argues that the members of the United States Supreme Court should avoid the use of gendered generics because such language can communicate subtle sexism, distract the reader, and create ambiguity. As the most influential members of the legal profession, the justices should be setting the standard, creating a model for law students and lawyers. With one exception, they are not.

This article examines the use of gender-neutral language by the current members of the Supreme Court. I reviewed more than 100 cases from the 2006-2007, 2007-2008, and 2008-2009 terms looking for patterns in the use of gendered generics and for the use of gender-neutral techniques (e.g., using plural nouns, repeating the noun, using an article instead of a pronoun, and using paired pronouns). This research shows that only one justice consistently uses gender-neutral language, that three justices consistently use generic masculine pronouns, and that the rest fall somewhere in between. Most members of the Court use gendered pronouns to refer to both men and women, at least some of the time.

In addition to presenting the results of this research, this article summarizes the history of the gender-neutral language movement, generally and in the legal arena, and discusses the importance of language in Supreme Court opinions by reviewing relevant social science research and by applying the concepts of reader-centered legal writing to judicial writing.

The full article is available here.

-Bridget Crawford

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Posted in Courts and the Judiciary, Legal Profession, Sociolinguistics | 1 Comment

Chapman Dean Search

Chapman University School of Law has announced its Dean’s Search.  Applications are welcome immediately.  For further details, see after the jump.

Chapman law faculty members of the Dean’s Search Committee are Tom  Bell, Bobby Dexter,  Kurt Eggert, Henry Noyes, John Tehranian and Francine Lipman.

-Bridget Crawford

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Why a Women’s Seder?

Why a women’s seder?  Here’s how Rabbi Susan Fendrick explains (here):

To read the biblical story of the Exodus with open eyes is to understand Passover as, among other things, a celebration of women’s heroism. But in the traditional haggadah, women are missing. True, Moses is absent too, and the telling of the biblical story focuses on God’s intervention and liberation, not human agency:but in the many references to human beings throughout the haggadah, it is men and boys who are referred to, and women and girls who are invisible.

If it were simply the need for feminist critique that motivated the emergence and persistence of women’s seders,  dayeinu:that would be enough. But there is more: the Passover story is, at its core, one of freedom from oppression, from the expectation that one group of people will be subservient to another. It is fundamentally a story of liberation:a story the telling of which feminists not only critique, as above, but also embrace, as elemental to our own journey as Jewish feminists.

The first feminist seder was organized by Esther Broner, Marcia Freedman, and Naomi Nimrod in Haifa in 1975…..

Esther Broner fills in some of the details of the first women’s seder, with a slightly different start date (here):

image credit:http://www.phyllis-chesler.com

Each year since 1976, the”Seder Sisters”have met for their own Women’s Passover. I had co-writtenThe Women’s Haggadah with Nomi Nimrod. The group reads from that text – with the original feminist substitution for the males: the Wise Women, the Four Daughters, the Women’s Questions, the Women’s Plagues, and our own”Dayenu.”The Haggadah is xeroxed and passed around to the guests so we can all participate, pray, question, harangue, and celebrate together. When the book was published by Harper San Francisco, our first artifact was formalized. And, as the decades passed, artifacts have accumulated. There was”The Sacred  Schmata (rag),”[shown in 1983 photo above – ed.] a shlocky pink strip of nylon, roped and knotted together, with which we enwrapped ourselves and one another to proclaim that we were community.

-Bridget Crawford

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Posted in Feminism and Religion | 1 Comment

What is Race, Anyway?

Before I begin, let me announce in advance: even as a progressive, Race and the Law teaching, feminist black woman, I DO have a sense of humor about race, gender and other matters of identity.   Really.   I’ve even been known to laugh at things that some people find distinctly unfunny.   Take for example the”mockumentary”film Borat that I recently watched again for the nth time. I find it hilarious. In Borat, comedian Sasha Baron Cohen reprises one of his roles from Da Ali G Show, one wherein he depicts an uncouth, brazen, bigoted foreigner out to make a documentary in America and along the way decides to meet and marry actress Pamela Anderson from the television show Baywatch. In his travels he encounters real, non-actor Americans. Unbeknownst to them, Cohen uses his fictional persona to make many of the people he encounters objects of derision. Some viewers found Borat, like the Da Ali G Show itself, sexist, anti-Semitic, homophobic and racist, especially in the way it portrayed black women. The black woman character in Borat was a scantily dressed, middle-aged, overweight prostitute that the main character takes as his escort to a Southern white dinner party. (As part of the delicious irony, the character is actress and comedienne Luenell Campbell, one of the few”non-real”people in the film). At the end of the film, the Borat character marries the black prostitute character and takes her home to his  “native”Kazakhstan, where she is greeted with reverence by villagers. Borat was funny because of the way that these images and situations were used to make fun of Western mainstream society’s ignorance, fear and hatred of the Other.

I suppose I could say that The Root’sThe Blackest White Folks We Know“falls somewhere within this genre of over-the-top, offensive humor that makes a point about social bias. I could say that. But I think I’d be wrong in saying so.   The problem with”The Blackest White Folks We Know”article and the accompanying slide show is that, while tongue in cheek, it offers what may be interpreted as serious commentary about the black bona fides of the white people it features (let’s call it their blackafides).   Reading across the comments (e.g. Phil Jackson’s”moves,”Justin Timberlake’s”curly ‘fro,”Nicole Austin’s portrayal of a  â€œbootylicious video vixen,”Kim Kardashian’s”Booty Pop physique,”and Bill Maher’s”obsession with black women”–notice how many of these comments are about black women’s bodies or white women with”black”body styles? I sense a pattern emerging…) the underlying message is that black is the new black:that is, black history, culture and folkways can be succinctly summed up, packaged and sported as a hairstyle, a singing style, a body style (thanks to surgery, injections, and padding, bodies can be styled) or a black companion on your arm. Black becomes a fashion accessory that anyone can don.”The Blackest White Folks We Know“is a mash-up of cultural appropriation, objectification and festishization.  Such displays are part of why, despite the continuing scourge of racism, it has become harder to talk about race and racism and harder to teach about it.   What is race, anyway?

-Lolita Buckner Inniss

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What Is Race, Anyway?

The Root is hosting a slide show (here) entitled,”The Blackest White Folks We Know.”   Here’s the lede:

Race relations have gotten a little crazy lately. An all-white basketball league? Seriously? Then there’s Rod Blagojevich, declaring that he’s”blacker than Obama.”The Root takes a look at those who claim “blackness” and those that we think make the cut — whether they like it or not.

Huh?

For those not familiar with The Root, it is a”daily online magazine that provides thought-provoking commentary on today’s news from a variety of black perspectives.”   It is published by the Washington Post Company (also the publisher of Slate).   Who might be these”blackest white folks”?   Here are 6 of the 32 (for the rest, see here)

  • Christina Aguilera (entertainer; she”received her official black card when she channeled Patti LaBelle in the remake of ‘Lady Marmalade'”);
  • Bob Barr (former Georgia Representative; at least one blogger speculates that Representative Barr has African-American heritage);
  • Rod Blagojevich (ex-governor of Illinois;”recently noting that he is “blacker” than President Barack Obama because he “shined shoes” and “grew up in a five-room apartment.” He has walked back his comments.”);
  • Ken Burns (filmmaker; for films about Jazz and Brooklyn,”Brotherman is certified, for sure!”);
  • Nicole Austin (wife of rapper Ice-T; since their wedding,”Coco’s been playing the bootylicious video vixen”);
  • Phil Jackson (basketball coach;”Something about the way he moves, his confident and laid-back demeanor, and his success in basketball both as a player and as a coach had some folks convinced that the blood of Mother Africa ran through his veins.”).

Contemporary media outlets are prime vehicles for the perpetuation of”Guess Who’s ____”parlor games — played by “in” group members and “out” group members alike.   Fill that blank with just about any religious, ethnic or racial minority in this country.   The Root‘s slide show adds a twist to familiar line-drawing, making claims not only (or, in some cases, at all) on the basis of ancestry, but instead on the basis of affinity, self-identification, association with African-American people, or possession of characteristics (either positively or negatively) associated with African-American people.

The slide show keeps the tongue firmly planted in cheek, but what does it say about race that might be relevant to those who think and teach and write about the law? Or is it just a humorous diversion on the internet, an invitation to laugh?   To my mind, the slide show invites consideration of complex ways that race is constructed by mainstream (and mainsteam-financed) media.

-Bridget Crawford

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“VERGINA WEISS is a wheat, foamy beer with a hazy appearance, which comes from a special top fermenting yeast…”

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Website here.

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Ninth Circuit Cites Ben-Asher on Commercial Surrogacy Prohibition

Noa Ben-Asher

In a decision last week, the United States Court of Appeals for the Ninth Circuit cited the work of my excellent  colleague Noa Ben-Asher.      Coyote Publishing v. Miller, 2010 U.S. App. LEXIS 5182 (9th Cir. 2010) involved a First Amendment challenge to rules on advertising by legal brothels.  (An audio recording of the oral arguments before the Ninth Circuit is available here.)

Writing for the majority in Coyote, Judge Berzon cited Ben-Asher’s article The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) in support of the proposition that the law recognizes a variety of bans on commercial trades in, for example, the surrogacy context.

Noa Ben-Asher joined the Pace Law School faculty from the Associates-in-Law Program at Columbia (2007-2009), a Williams Fellowship (2006), and the JSD program at NYU, with a stint at Proskauer, too.    Her essay Legal Holes was been published earlier this year at 5 Unbound: Harvard Journal of the Legal Left 1 (2009).

Noa Ben-Asher is a rising star to watch!

-Bridget Crawford

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Legally Blind Grading: Do Class Participation Docks and Boosts Unfairly Disadvantage Female and Minority Students?

I’ve been doing a series of guest posts (here,  here,  here, and  here) over on  PrawfsBlawg concerning what I refer to as “legally blind grading” in law school, i.e., the grading process under which law professors are deprived of information that would match exams with names but under which we can dock or boost students’ grades based upon class participation. In  today’s post, which I am cross-posting here, I question whether these docks and boosts unfairly disadvantage female and minority students:

When I guest blogged here last April, I posted  an entry which traced the origins of blind grading in law schools. In that post, I noted that

In  One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s. He then notes that “[t]o protect against concerns of favoritism  for students specially admitted, most schools adopted some form of blind grading.”

At  the time, I found this fact surprising as it went against my assumption that blind grading was adopted to  help female and minority students by preventing prejudice. Instead, blind grading was implemented to ensure that minority students did not get a boost. But does it do so in more ways than one?

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H. Anderson Recommended for Tenure

The Pace Law School faculty has recommended that the University President and Trustees grant tenure to  Horace Anderson.  

Graduating students voted Professor Anderson as “Oustanding Professor of the Year” in 2009.  

Professor Anderson is an IP specialist, Feminist Law Prof blogroll member,  Hip Hop Law  blogger, my law school classmate (and 1L ConLaw study partner),  an all-around fantastic teacher, a wonderful colleague and a treasured friend.

Congratulations, Horace!

-Bridget Crawford

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Infanti on “Dissecting O’Donnabhain”

Tony Infanti (Pitt) has published his essay “Dissecting O’Donnabhain” in the March 15, 2010 issue of Tax Notes.   Here is the abstract:

In O’Donnabhain v. Commissioner, a sharply divided Tax Court allowed a medical expense deduction for some costs related to sex reassignment surgery. This short commentary examines the opinions in the case and concludes that the taxpayer’s victory rings hollow.

The abstract doesn’t convey the full extent of Professor Infanti’s hard-hitting (and spot-on) analysis.  Here’s an excerpt from the essay:

Reading Judge Gale’s opinion for the majority, the words “cautious,” “clinical,” and “detached” immediately come to mind. * * *  This firm and deliberate grounding in extant authority seems designed to lend the decision a feeling of natural development or inevitability, despite its admitted novelty.   * * *

Notwithstanding apparent sympathy for the taxpayer, Judge Gale’s treatment of the claimed medical expenses deduction is as cold and antiseptic as the operating room where O’Donnabhain’s sex reassignment surgery took place. * * * In fact, Judge Gale’s attempt to thoroughly prepare for appellate court scrutiny seems to have taken things too far for Judge Holmes, who concurred with the majority’s decision. * * *  Judge Holmes seems altogether uncomfortable with having to decide this case. He openly despairs of the  “crash course on transsexualism that this case has forced on us.” Curiously, this appears to be the first use of the phrase “crash course” in a U.S. Tax Court decision. Why haven’t Tax Court judges complained before about being “forced” by a taxpayer to get a crash course in the workings of a specific business or industry or of a complex business or financial transaction? What ever happened to celebrating tax law’s close connection with the diversity of taxpayers’ life experiences? Perhaps Judge Holmes needs to be reminded that he is paid to decide tax issues faced by all taxpayers and not only those with whom he feels comfortable.

(Emphasis added; citations omitted.)

Professor Infanti’s full essay is available here.   I recommend it to anyone interested in judicial reasoning, critical theory, taxation or gender issues.

-Bridget Crawford

(H/T Paul Caron’s Tax Prof Blog)

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“Maryland’s roadblock to helping victims of abuse”

WaPo article by Eileen King:

The Maryland House Judiciary Committee has a reputation for being not only a place where good bills go to die but also where witnesses can expect little sympathy for having suffered from violent or sexual crimes. The committee’s worst tendencies were in evidence once again during a Feb. 25 hearing on a bill to help keep victims of domestic abuse safe from their abusers.

The bill, sponsored by Del. Sue Hecht (D-Frederick) and Sen. Jennie Forehand (D-Montgomery), would have changed the burden of proof from “clear and convincing evidence” to “preponderance of the evidence” for final orders of protection, the same standard in place for the vast majority of other civil actions in Maryland, including tort actions for large damage awards, child abuse determinations and custody decisions. Maryland hangs on obstinately as the only state to adhere to this high standard of proof.

Predictably, the bill was killed by the committee.

Our witness was Amy Castillo, a Montgomery pediatrician who did everything she could to protect her three children, including getting a temporary protective order on Christmas 2006 after her husband, Mark, told her that “the worst thing he could do to me would be to kill the children and not me.” On March 29, 2008, Mark Castillo followed through on this threat, drowning Anthony Castillo, 6, Austin, 4, and Athena, 2, in a hotel bathtub.

Amy Castillo came to Annapolis to tell the members of the committee about her unsuccessful attempts to get a final protective order against Mark Castillo. She told them about his behaviors, threats, mental health problems and refusal to get the help he needed, and about her grave fears for her and her children’s safety.

This testimony was met with something worse than indifference. Referring to a transcript of the final hearing on her request for an order of protection, Del. Luiz R.S. Simmons (D-Montgomery) attacked the rationale for the bill, stating that Judge Joseph A. Dugan Jr. had substantial problems with Amy Castillo’s credibility. In tones that were anything but kind, Simmons declared that he wouldn’t read verbatim what the judge said because he didn’t want to “embarrass” Castillo. The exact nature of this “embarrassing” information — presumably the fact that she submitted to her estranged husband’s demand for sex, something not uncommon in such cases — was left to the imagination of those present.

In his zeal to discredit the mother of three murdered children, Simmons seemed to forget that Dugan had been tragically wrong when he disregarded Amy Castillo’s fears for her children’s safety and bought the arguments made by Mark Castillo and his lawyer. Simmons’s flawed logic: The judge found reason to question Amy Castillo’s credibility, so it was her fault that she didn’t get the protective order. Simmons expressed doubt that Castillo could have met even the preponderance standard, suggesting that changing the legal threshold wouldn’t have helped save her children. And this is why other at-risk or abused children should be denied protective orders?

Amy Castillo’s case illustrates a point made by Joan S. Meier of the Domestic Violence Legal Empowerment and Appeals Project at George Washington University Law School: “The higher the burden, the more the risk of error is placed on the alleged victim or protective parent. The burden is a direct reflection of whether you believe the majority of petitioners are lying, or not. If you don’t, this burden is inappropriate because it privileges abusers over victims.”

Feeling they have nowhere to turn, parents are condemned to wait helplessly for the next violent or abusive act. Try this thought experiment: Imagine that your child has met the preponderance standard for abuse but a judge says that is not enough for a protective order to keep the child from the abuser. Imagine what it would be like to live knowing that you or your children are at lethal risk but that you can get help only if you or the children are hurt badly enough. …

Via Naomi Cahn

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Naomi Cahn and June Carbone, “Blue Biology: Women, Economics, and Family Values”

Full text at the HuffPo, excerpt below:

… The economy and biology are on a collision course. The latest news confirms what many women fear — wait too long and your eggs are gone. The scientific findings aren’t quite that bad. According to a new study by researchers at the University of St. Andrews and Edinburgh University, by age 30, most women retain only 12 percent of their original egg reserves, and by age 40 just three percent. Three percent may be still be on average 9000 eggs — more than enough to get pregnant — but the odds definitely change.

So what we should be doing if we want to make sure our descendants are still around in another generation or two? The answer, like everything else about families and the economy, is two-pronged.

First, the Great Recession is likely to accelerate the ongoing disinvestment in the human capital of the new generation, and initiate a new round of “dumber and dumber.” Consider the immediate effect. Hard times make the responsible, thoughtful, cash-pressed wait longer — there goes that ticking biological clock. The Guttmacher Institute reported last fall that 64% of American women “could not afford to have a baby right now,” with almost half saying they wanted to delay or reduce childbearing because of the recession.

Second, tighter finances simultaneously make it harder NOT to get pregnant. The reduction in the teen birth rate in the prosperous nineties, for example, was fueled in part by more reliable contraceptives, but the new techniques, such as Depo-Provera and other injectables, are more expensive than condoms from the local drugstore. Guttmacher also reported last fall that 23% of women were having a harder time affording birth control, and other studies indicate that women in their early twenties, at the peak of fertility, have become less likely to have health care. …

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