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Full-Text Articles in Law
#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman
#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman
Faculty Articles
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are …
Reinvigorating Commonality: Gender & Class Actions, Brooke D. Coleman, Elizabeth G. Porter
Reinvigorating Commonality: Gender & Class Actions, Brooke D. Coleman, Elizabeth G. Porter
Faculty Articles
The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, …
Incarcerated Child Birth And “Broader Birth Control”: Autonomy, Regulation, And The State, Deborah Ahrens
Incarcerated Child Birth And “Broader Birth Control”: Autonomy, Regulation, And The State, Deborah Ahrens
Faculty Articles
In recent years, the scholarly literature, the journalistic press, and even pop culture have begun to grapple with the many ways in which prison life works to degrade and dehumanize female prisoners, particularly pregnant women and new mothers. These voices are drawn — quite understandably — to the worst abuses, to practices (such as the shackling of laboring women) that underscore the dichotomy between the brutality of prison life and the allegedly autonomous norms governing pregnancy and parenting in the outside world. This article supplements — and in crucial places challenges — the narrative implicit in those depictions by, first, …
For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro
For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro
Faculty Articles
Feminists have long been engaged in the debates over surrogacy. During the past thirty years, thousands of women throughout the world have served as surrogate mothers. The experience of these women has been studied by academics in law and in the social sciences. It is apparent that if properly conducted, surrogacy can be a rewarding experience for women and hence should not be objectionable to feminists. Improperly conducted, however, surrogacy can be a form of exploitation. Compensation is not the distinguishing factor. In this essay I offer two changes to law that would improve the surrogate's experience of surrogacy. First, …
Presumed Incompetent: Continuing The Conversation, Carmen Gonzalez, Angela P. Harris
Presumed Incompetent: Continuing The Conversation, Carmen Gonzalez, Angela P. Harris
Faculty Articles
On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways …
“If They Hand You A Paper, You Sign It”: A Call To End The Sterilization Of Women In Prison, Sara Ainsworth, Rachel Roth
“If They Hand You A Paper, You Sign It”: A Call To End The Sterilization Of Women In Prison, Sara Ainsworth, Rachel Roth
Faculty Articles
The context in which the sterilization of incarcerated women takes place is a deeply coercive one. The practice of sterilizing incarcerated women, whether intentionally coerced or not, takes place against a backdrop of mass incarceration and the long and ignominious history of forced and coerced sterilizations directed at poor people and women of color in the United States. Professor Sara Ainsworth and Dr. Rachel Roth explore this backdrop, and the federal sterilization regulations that arose from this history and from women's activism to change it, in Part I. In Part II, they explain how the appallingly bad and often unconstitutional …
Challenged X 3: The Stories Of Women Of Color Who Teach Legal Writing, Lorraine Bannai
Challenged X 3: The Stories Of Women Of Color Who Teach Legal Writing, Lorraine Bannai
Faculty Articles
Much of what has been written concerning the experience of women of color in the legal academy has focused on tenured or tenure-track women of color who teach doctrinal courses. I speak from a somewhat different place-as a woman of color who teaches Legal Writing and who, like most faculty who teach Legal Writing, is untenured. Of course, I nod my head with recognition as I read the stories shared by tenured or tenure-track women of color who teach 2 doctrinal courses, including challenges they face from students and colleagues. At the same time, I also know (1) that untenured …
Bearing Children, Bearing Risks: Feminist Leadership For Progressive Regulation Of Compensated Surrogacy In The United States, Sara Ainsworth
Bearing Children, Bearing Risks: Feminist Leadership For Progressive Regulation Of Compensated Surrogacy In The United States, Sara Ainsworth
Faculty Articles
Compensated surrogacy-an arrangement in which a woman carries and gives birth to a child for someone else in exchange for money-intimately affects women. Yet, feminist law reformers have not led efforts to regulate this practice in the United States. Their absence is notable given the significant influence of feminist lawmaking in a host of other areas where women's interests are at stake. This lack of feminist law reform leadership can be understood, however, in light of the complex issues that surrogacy raises-complexity that has long divided feminists. In response to efforts to pass surrogacy legislation in Washington State in 2010, …
A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro
A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro
Faculty Articles
Recent years have seen a proliferation of alternative reproductive technologies and the ready availability of reliable DNA testing. These developments have lead to enormous uncertainty concerning the meaning of a genetic tie between adult and child. On the one hand, reproductive technology has lead to a robust market where genetic material is readily bought and sold. This suggests it is not the root of parental status. On the other hand, DNA testing has allowed men to contest paternity of children, asserting that they are not genetically related to them. And their challenges have often been successful. Genetic linkage is particularly …
Check Only One: M/F/Other, Julie Shapiro
Check Only One: M/F/Other, Julie Shapiro
Faculty Articles
In this extremely brief essay, the author questions Lawrence Summers' generalizations about women in science. We live in a world of uncertainty about the boundaries of gender. Transgendered and intersexed individuals challenge us to step away from strict categories of men and women.
Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse
Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse
Faculty Articles
This paper attempts to trace the links between the Lawrence v. Texas decision and campaigns for gay marriage rights in order to envision movements that seek justice for more than just the most racially and economically privileged lesbians and gay men. The authors outline the limits of the agenda represented by Lawrence and propose alternative modes for resisting the coercive regulation of sexuality, gender, and family formations.
On Academic Discrimination, Janet Ainsworth
On Academic Discrimination, Janet Ainsworth
Faculty Articles
Professor Ainsworth addresses President Lawrence H. Summers’ explanation of the paucity of women academics in the physical sciences, and discusses how Summers does not address the possibility that the lack of female academics could be due to discrimination.
Resisting Medicine/Remodeling Gender, Dean Spade
Resisting Medicine/Remodeling Gender, Dean Spade
Faculty Articles
In this article, Dean Spade explores the problematic role of medicine in pushing for trans rights. Spade uses a combination of personal narrative of his own interaction with the healthcare system and his experience with legal advocacy on behalf of transgender and gender nonconforming clients. He reveals how the medicalization of trans identity, by categorizing it as a mental health disorder called Gender Identity Disorder, serves to reaffirm that everyone should either be male or female. Spade further asserts this medicalization can be problematic when advocating for the legal rights of gender nonconforming individuals. For example, he points out that …
Confronting The Limits Of Gay Hate Crimes Activism: A Radical Critique, Dean Spade, Craig Willse
Confronting The Limits Of Gay Hate Crimes Activism: A Radical Critique, Dean Spade, Craig Willse
Faculty Articles
Questioning the emancipatory potential of hate crimes activism for sexual and gender non-normative people, this paper outlines the limits of criminal justice remedies to problems of gender, race, economic and sexual subordination. The first section considers some of the positive impacts of hate crimes activism, focusing on the benefits of legal "naming" for disenfranchised constituencies seeking political recognition. In the next section the authors outline the political shortcomings and troubling consequences of hate crimes activism. First, they examine how hate crimes activism is situated within a "mainstream gay agenda," a term they use to designate the set of projects prioritized …
Erasing Race? A Critical Race Feminist View Of Internet Identity Shifting, Margaret Chon
Erasing Race? A Critical Race Feminist View Of Internet Identity Shifting, Margaret Chon
Faculty Articles
Race and gender become even more abstract in the disembodied presence they inhabit online. This article outlines the importance of being sensitive to the under-identified online presence of race and gender related issues, with an in depth discussion of the complications these issues face.
A Lesbian-Centered Critique Of Second-Parent Adoptions, Julie Shapiro
A Lesbian-Centered Critique Of Second-Parent Adoptions, Julie Shapiro
Faculty Articles
When lesbian couples start families, one woman often begins with all the legal entitlements of parenthood, either by giving birth or by virtue of adopting a child, while the other woman has no legal rights. She is a non-legal parent. Absent legal rights she suffers many critical disadvantages. Second-parent adoptions have been developed to allow lesbians to create families with two-legal parents. They have been widely hailed as a solution to the problem of the non-legal parent. This article argues, however, that for many women they may actually make matters worse. Because some women can use second-parent adoptions, women who …
De Facto Parents And The Unfulfilled Promise Of The New Ali Principles, Julie Shapiro
De Facto Parents And The Unfulfilled Promise Of The New Ali Principles, Julie Shapiro
Faculty Articles
Alternative families - those that do not fit the classic nuclear family model - have been the focus of legal reform over the last twenty years. The American Law Institute has produced model legislation recognizing de facto parents as holders of some limited rights. To some this is a more flexible regime that would benefit non-nuclear families, in particular lesbian families. This article critiques the ALI draft, demonstrating that its promise is largely illusory.
Gender Bias In The American Bar Association Journal: Impact On The Legal Profession, Marilyn Berger, Kari A. Robinson
Gender Bias In The American Bar Association Journal: Impact On The Legal Profession, Marilyn Berger, Kari A. Robinson
Faculty Articles
The ABA Journal presents women in the legal system in a similar fashion to the presentation of women in the journals of other professions. Women are portrayed in traditional sex roles, they are pictured passively and they are often shown negatively as victims. In the volumes the authors studied, they found that the numbers of images of attorneys, judges and professors were not proportionate to the number of men and women in the legal profession. Moreover, the ABA Journal predominantly displayed women as dependent on their male counterparts. The authors also found instances where the ABA Journal portrayed women as …
Single-Sex Education After United States V. Virginia, Catherine O’Neill
Single-Sex Education After United States V. Virginia, Catherine O’Neill
Faculty Articles
In United States v. Virginia, the Supreme Court held that courts must invalidate sex-based classifications that "create or perpetuate the legal, social and economic inferiority of women." This contribution to equal protection jurisprudence, however, leaves unclear when single-sex higher education remains constitutional. This article argues that the Court has been preoccupied with legislative motive in this area. A capability approach, which assesses well-being and identifies individual advantage by reference to an account of what a person is able to do or be, might better help courts determine when there is an "exceedingly persuasive justification" for a sex-based classification.
Being Between: A Review Of Chinese Women Traversing Diaspora: Memoirs, Essays, And Poetry, Margaret Chon
Being Between: A Review Of Chinese Women Traversing Diaspora: Memoirs, Essays, And Poetry, Margaret Chon
Faculty Articles
In this essay Professor Chon reviews Chinese Women Traversing Diaspora: Memoirs, Essays, and Poetry. Chinese Women Traversing Diaspora is the second volume of a series on the theme of "Gender, Culture, and Global Politics." Professor Sharon Hom, who edited this volume, deliberately contextualizes the "I" and "we" that supply the narrative voice and subject in each of these works as specific ethnic, gendered, and generational locations within Asian America. However, Professor Chon illustrates how this anthology is not so much about the "I" as it is about the "we." Professor Horn is engaged in a project of excavating individual histories …
Custody And Conduct: How The Law Fails Lesbian And Gay Parents And Their Children, Julie Shapiro
Custody And Conduct: How The Law Fails Lesbian And Gay Parents And Their Children, Julie Shapiro
Faculty Articles
When parents dispute child custody, courts determine their rights by using a "best interests of the child" analysis. In this context, courts consider a host of factors, including parental sexuality. When considering the suitability of custody for a lesbian or gay parents, most courts employ a nexus test - one that requires a showing of a nexus between parental sexuality and the well-being of the child. A smaller number continue to use a harsher test that disqualifies lesbian and gay parents under a per se rule. This article argues that closer examination reveals that even the apparently more liberal nexus …
Woman's Ghetto Within The Legal Profession, Marilyn Berger, Kari A. Robinson
Woman's Ghetto Within The Legal Profession, Marilyn Berger, Kari A. Robinson
Faculty Articles
In this article, we explore how the historical, stereotypical images of women as the timid, delicate caretaker shaped and continue to shape women's roles in the work force. As women entered the workplace, they became nurses, not doctors; dental hygienists, not dentists; paralegals, not lawyers; and kindergarten teachers, not university professors. This pattern persists today. We examine the professions to show how women's nurturing caretaker image has resulted in special niches within the professions, positions which perpetuate women in caretaker roles. Specifically, we examine the legal profession and probe the contemporary barricades erected to channel women into positions that fulfill …
Abortion And The Pied Piper Of Compromise, Annette E. Clark
Abortion And The Pied Piper Of Compromise, Annette E. Clark
Faculty Articles
In this article, Professor Clark offers a detailed analysis of the controversy among legal scholars which has long surrounded the issue of legal regulation of abortion. Professor Clark begins by focusing on a recent book by Professor Laurence Tribe, Abortion: The Clash of Absolutes. She argues that although Tribe claims to seek a compromise solution to the abortion problem, he fails in this pursuit both because he does not truly search for compromise and because he is unwilling to explore intermediate moral or legal positions that are not acceptable to either the pro-choice or pro-life movements. In contrast, Professor Clark …