Law Commons^™

Gender, Race, And Job Satisfaction Of Law Graduates, Joni Hersch

Vanderbilt Law School Faculty Publications

Studies typically find that lawyers have high job satisfaction and that women are not less satisfied than are men. But racial differences as well as gender differences by race or ethnicity in satisfaction may be masked because most lawyers identify as racially White. To examine whether job satisfaction differs by race and whether gender and race/ethnicity have an intersectional relation to job satisfaction, I use data on nearly 13,000 law graduates drawn from six waves of the National Survey of College Graduates (NSCG) conducted between 2003 and 2019. The NSCG uniquely provides a large enough sample to examine intersectionality in …

Through The Looking Glass With Alice: The Current Application And Future Of Title Ix In Athletics, Josephine (Jo) R. Potuto

Vanderbilt Journal of Entertainment & Technology Law

This Article is a snapshot of the past pervasive discriminatory treatment of women in athletics and where women athletes and women’s athletics currently stand. It discusses some of the new challenges for Title IX enforcement—-female transgender athletes and treatment of name, image, and likeness revenues now open to college athletes. It reviews research regarding the physiological, hormonal, metabolic, body size and composition, and brain and neurological differences between men and women and how these factors impact both athletic performance and athletic interest. Finally, this Article concludes that the Title IX three-pronged test to assure gender equity in athletic participation opportunities …

Let's Talk About Gender: Nonbinary Title Vii Plaintiffs Post-Bostock, Meredith R. Severtson

Vanderbilt Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII’s sex-discrimination prohibition applies to discrimination against gay and transgender employees. This decision, surprising from a conservative Court, has engendered a huge amount of commentary on both its substantive holding and its interpretive method. This Note addresses a single question arising from this discourse: After Bostock, how will courts address allegations of sex discrimination by plaintiffs whose gender identities exist outside of traditional sex and gender binaries? As this Note explores, some have argued that Bostock’s textualist logic precludes sex-discrimination claims by nonbinary plaintiffs. While such arguments fail to …

The Diversity Imperative Revisited: Racial And Gender Inclusion In Clinical Law Faculty, G. S. Hans, D. N. Archer, Et Al.

Vanderbilt Law School Faculty Publications

The demographics of clinical law faculties matter. As Professor Jon Dubin persuasively argued nearly twenty years ago in his article Faculty Diversity as a Clinical Legal Education Imperative, clinical faculty of color entering the legal academy in the 1980s and 1990s expanded the communities served by law school clinics and the lawyering methods used to serve clients in significant ways that enriched legal education and the profession. They also broadened clinical scholarship to include deconstructions and reconstructions of clinical teaching, offered crucial role modeling and mentorship to students of color, and helped to elevate cross-cultural communication and multiracial collaboration as …

The Rules Of #Metoo, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a car seat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have …

They, Them, And Theirs, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But …

Why Are Seemingly Satisfied Female Lawyers Running For The Exits? Resolving The Paradox Using National Data, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Despite the fact that women are leaving the practice of law at alarmingly high rates, most previous research finds no evidence of gender differences in job satisfaction among lawyers. This Article uses nationally representative data from the 2015 National Survey of College Graduates to examine gender differences in lawyers’ job satisfaction, and finds that any apparent similarity of job satisfaction between genders likely arises from dissatisfied female JDs sorting out of the legal profession at higher rates than their male counterparts, leaving behind the most satisfied women. This Article also provides a detailed examination of the specific working conditions that …

The Pregnancy Penalty, Jennifer Bennett Shinall

Vanderbilt Law School Faculty Publications

Despite the renaissance of pregnancy-related scholarship over the past decade, 322 very little has been documented empirically regarding the status of pregnant women in the labor market. As such, scholars and advocates have been constrained in their ability to assess both the adequacy of current legislation and the relative urgency for new legislation. Furthermore, in the absence of labor market data, they have been limited in their ability to propose reform measures that can target the pregnant women most in need of assistance. This Article has taken an initial step towards filling these critical gaps in the literature, utilizing a …

The Price Is (Not) Right: Mandatory Arbitration Of Claims Arising Out Of Sexual Violence Should Not Be The Price Of Earning A Living, Nicolette Sullivan

Vanderbilt Journal of Entertainment & Technology Law

As demonstrated by the #MeToo movement, current attempts to curtail systemic sexual violence in the workplace have fallen flat: approximately sixty million US workers are subject to mandatory arbitration clauses, which employers tend to bury deep within the fine print of employment contracts. These clauses, often coupled with confidentiality agreements, have provided offenders--and their employers--with a mechanism to escape liability and public scrutiny. Under the existing judicial framework, whether a court will allow victims of workplace sexual violence to escape binding arbitration remains unclear. Congress attempted to address this uncertainty by proposing the Ending Forced Arbitration of Sexual Harassment Act …

Feminism And The Tournament, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …

For What It's Worth: The Role Of Race- And Gender-Based Data In Civil Damages Awards, Loren D. Goodman

Vanderbilt Law Review

Following months of behavioral problems, hyperactivity, and intermittent complaints of headache and nausea, five-year-old Kelsey Craig's mother finally takes her to the pediatrician to determine the root of the problem. After multiple consultations, a blood test shows a surprising culprit: there is a dangerously high amount of lead present in Kelsey's blood, suggesting prolonged exposure to the irreversibly toxic substance. Upon returning to their older, prewar apartment building, Kelsey's mother passes a neighboring family in the hallway and woefully relays the tale of her diagnosis. The neighbors' eyes grow wide as they realize their own five-year-old son has been experiencing …

Identity And Form, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars …

The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock

Vanderbilt Law School Faculty Publications

Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by …

Anatomy Of An Uprising: Women, Democracy, And The Moroccan Feminist Spring, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

During the Arab Spring, Moroccan men and women first took to the streets on February 20, 2011 to demand governmental reforms. Their movement became known as the Mouvement du 20-Février. In a series of protests, Moroccans called for democratic change, lower food prices, freedom for Islamist prisoners, and rights for the Berber people. Initially, King Mohammad VI attempted to suppress the movement. When this approach did not succeed, in a televised speech, the King agreed to reform the government. In June 2011, the constitutional committee proposed changes that would reduce the King’s absolute powers, implement democratic reforms, and create a …

Inferring Desire, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.

This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …

Green Jackets In Men's Sizes Only: Gender Discrimination At Private Country Clubs, Thaddeus M. Lenkiewicz

Vanderbilt Journal of Transnational Law

On November 3, 2009, the Supreme Court of Ireland held that the Portmarnock Golf Club could maintain its rule prohibiting female membership free from the sanctions of Ireland's antidiscrimination laws. Portmarnock is representative of the numerous private golf clubs that continue to promote discrimination against women. Despite significant advances in gender equality, private country clubs in the United States, the United Kingdom, and Ireland remain bastions of codified gender discrimination. Many of the most prominent golf clubs hold firmly to discriminatory policies established generations ago. Opposition to these policies has come in various forms of protest and litigation, with mixed …

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …

Refining The Meaning And Application Of "Dating Relationship" Language In Domestic Violence Statutes, Devon M. Largio

Vanderbilt Law Review

Many young people date in high school, and Lisa Santoro was no exception.' Her father Tom tells her story:

In January, 1994, Lisa started to date a guy [named "Dan"].... In the five months Lisa dated this guy, I never really understood why she was attracted to him.... Around June, when Lisa started to work at the swimming pool, she met another guy who was in charge of the pool .... Shortly after, Lisa [broke] up with Dan. Dan tried to get Lisa to go back to him, but Lisa had her mind made up.... On July 27th, Dan called …

Banned And Enforced: The Immediate Answer To A Problem Without An Immediate Solution, Alison W. Manhoff

Vanderbilt Journal of Transnational Law

India has banned the use of ultrasound technology to determine the sex of a fetus for more than a decade. Despite this ban, India's 2001 census showed that for every one thousand boys under the age of six there are only 927 girls. There is speculation that this striking gender imbalance is largely the result of the abortion of fetuses discovered to be female after a sex determination ultrasound or amniocentesis procedure. Traditionally, the desire not to have a female child is viewed as a consequence of the dowry system that is prevalent in India. Commentators often propose efforts to …

Trapped By A Paradox: Speculations On Why Female Law Professors Find It Hard To Fit Into Law School Cultures, Beverly I. Moran

Vanderbilt Law School Faculty Publications

Feminist psychologists postulate that women are more people focused than men and therefore less likely to be attracted to rule oriented cultures that do not take into account personal differences and needs. This work postulates that the opposite is true of males and females who are attracted to law school teaching. Instead of rule oriented men and people oriented women, the legal academy is populated by women who believe that rules are meant to protect the weak against the tyranny of the strong and who then find themselves in "female" cultures ruled by men.

Compensating Differentials For Gender-Specific Job Injury Risks, Joni Hersch

Vanderbilt Law School Faculty Publications

Women have largely been excluded from analyses of compensating differentials for job risk since they are predominantly employed in safer, white-collar occupations. New data reveal that their injury experience is considerable. One-third of the total injury and illness cases with days away from work accrue to female workers. Adjusted for employment, women are 71 percent as likely as men to experience an injury or illness. As one would predict on theoretical grounds, these risks generate compensating differentials. Based on gender-specific injury incidence rates for both industry and occupation, I find strong evidence of compensating wage differentials for the job risk …

United States V. Virginia's New Gender Equal Protection Analysis With Ramifications For Pregnancy, Parenting, And Title Vii, Candace S. Kovacic-Fleischer

Vanderbilt Law Review

In this Article, Professor Kovacic-liTeischer argues that the Supreme Court's recent decision in United States v. Virginia raises gender equal protection analysis to the level of strict scrutiny. Professor Kovacic-Fleischer asserts that the Court's refusal to accept as immutable VMI's single-sex institutional design, and the Court's requirement that VMT make adjustments and alterations that will enable qualified women to undertake VM's curriculum evidences this shift in gender equal protection analysis. Professor Kovacic-Fleischer then turns to the significance of the Court's citation to California Federal Savings & Loan Association v. Guerra. She asserts that this citation indicates that the Court effectively …

The Economics Of Home Production, Joni Hersch

Vanderbilt Law School Faculty Publications

The composition of the labor force has changed dramatically since 1960. In 1960, only one-third of the labor force participants were female. However, since the 1960s, the labor force rates of men have declined, from 83.3% to 75% as of 1995, while the participation rate for women has surged, from 37.7% in 1960 to 58.9% in 1995.1 The combination of rising labor force participation rates for women and falling rates for men has resulted in a work force that is approaching equal representation of each gender. However, the picture at home indicates a far greater gender stratification of work than …

Sex Selection: Regulating Technology Enabling The Predetermination Of A Child's Gender, Owen D. Jones

Vanderbilt Law School Faculty Publications

The debate over the prohibition of sex (or gender) selection (also known as "preselection" or "predetermination"), has focused almost exclusively on the context of aborting a "wrong-sex" fetus after a fetal gender-identification procedure. Despite the fact that sex selection abortions represent only a small subset of sex selection procedures, attitudes toward the former are driving general policy approaches to the latter. However, the issues are analytically distinct, and only during the former infancy of the pre-conceptive (and non-abortive post-conceptive) technology for sex selection were members on both sides of the debate afforded the economy of using one logic to support …

Employer Sexual Harassment Liability Under Agency Principles:A Second Look At Meritor Savingsbank, Fsb V. Vinson, Michael J. Phillips

Vanderbilt Law Review

With its 1986 decision in Meritor Savings Bank, FSB v. Vinson,the United States Supreme Court put its imprimatur on the Title VII sexual harassment cause of action that had emerged over the preceding decade. Early commentary on the case tended to emphasize this aspect of the Court's decision or to speculate about Meritor's impact on the future course of Title VII sexual harassment litigation. Getting relatively short shrift in this early commentary, however, was the Court's command that "agency principles" --the common law of agency-- be consulted to determine an employer's liability for harassment committed by its employees.' As subsequent …

Women's Rights Litigation In The 1980s: More Of The Same?, Tracey E. George, Lee Epstein

Vanderbilt Law School Faculty Publications

In the September 1983 issue of Judicature,Karen O'Connor and Lee Epstein published the results of their examination of the fate of gender-based cases in the U.S. Supreme Court during the 1970s. Overall, they found that the justices were quite receptive to such claims, supporting the women's rights position in about 58 percent of the 63 disputes resolved between the 1969 and 1980 terms.

Economics, Feminism, And The Reinvention Of Alimony: A Reply To Ira Ellman, June Carbone

Vanderbilt Law Review

Divorce reform and gender roles are inextricably linked. When Lenore Weitzman chronicled the devastating consequences of divorce for most women, she described a legal system that, in an effort to be gender neutral in a formal sense, made no allowance for the domestic role women continue to perform. Herma Hill Kay, in reviewing Weitzman-inspired proposals to expand the scope of the financial awards made at divorce, nonetheless warned against encouraging "future couples entering marriage to make choices that will be economically disabling for women, thereby perpetuating their traditional financial dependence upon men and contributing to their inequality with men at …

Gender Discrimination And The Transformation Of Workplace Norms, Kathryn Abrams

Vanderbilt Law Review

Lately when I talk about gender, I am often confronted with the message that women's equality has already been achieved. A colleague may provide this insight, or a complete stranger waiting in a grocery line. But the thought was most succinctly expressed by a student who grew impatient with my activism. "I don't understand," she declared."Women have gotten just about everything they wanted. Don't they see that the time for militancy is over?" Perhaps this response should come as no surprise. The battle for the Equal Rights Amendment has been lost, but in salient ways our society seems to have …

Preferential Economic Treatment For Women: Some Constitutional And Practical Implications Of Kahn V. Shevin, Margaret E. Clark

Vanderbilt Law Review

The apparent willingness on the part of three members of the Supreme Court to sustain legislation granting economic benefits to a selected subgroup of women, while failing to deal with the similar racially suspect classification issue in Defunis, is simultaneously puzzling and disturbing. The key to the result reached in Kahn may be the size of the benefit involved, or the fact that a state tax statute was involved;"' yet the underlying principles in the two cases are logically indistinguishable and the differing approaches taken by certain members of the Court in the two cases are difficult to reconcile...

Thus, …