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The Common Law As A Force For Women, Bridget J. Crawford May 2020

The Common Law As A Force For Women, Bridget J. Crawford

Pace Law Faculty Publications

This essay introduces a collection of Symposium Essays examining Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press, 2019). Professor Bernstein explores the common law's recognition of both rights and liberties, highlighting in particular negative liberties such as the right to be left undisturbed. The Symposium Essays test and explore Professor Bernstein's thesis as applied to the right to be free from rape and unwanted pregnancies. Grounded in perspectives informed by the study of tort law, legal history, intellectual property, constitutional law, and critical race theory, these Essays--together with Professor Bernstein's book--suggest ...


The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman Apr 2020

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Pace Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal ...


Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger, Gabrielle Appleby, Susan Frelich Appleton, Ross Astoria, Sharon Cowan, Rosalind Dixon, J. Troy Lavers, Andrea L. Mcardle, Elisabeth Mcdonald, Teri A. Mcmurtry-Chubb, Vanessa E. Munro, Pamela A. Wilkins Jan 2020

Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger, Gabrielle Appleby, Susan Frelich Appleton, Ross Astoria, Sharon Cowan, Rosalind Dixon, J. Troy Lavers, Andrea L. Mcardle, Elisabeth Mcdonald, Teri A. Mcmurtry-Chubb, Vanessa E. Munro, Pamela A. Wilkins

Pace Law Faculty Publications

This conversational-style essay is an exchange among fourteen professors—representing thirteen universities across five countries—with experience teaching with feminist judgments. Feminist judgments are ‘shadow’ court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. This essay begins to explore the ...


Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi Oct 2019

Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi

Pace Law Faculty Publications

This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing ...


Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili Oct 2019

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Pace Law Faculty Publications

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and ...


Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay Oct 2019

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Pace Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the ...


Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger Jul 2019

Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Pace Law Faculty Publications

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges ...


#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer Jan 2019

#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

This Article proceeds in five parts. Part I reviews the history of the legal and social movement from gender-specific to gender-neutral statutory rape laws. This Part includes an exploration of critical scholarship responding to the Supreme Court's Michael M. decision. Part II explains the limitations of gender-specific legislation. This Part illustrates that there are two categories of gender-neutral statutory rape jurisdictions: age-differential statutes and arbitrary prosecution statutes. This Part also explores challenges to these statutes, particularly arbitrary prosecution statutes, on equal protection grounds. Part III provides empirical data that men are prosecuted at a rate four times greater than ...


The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman Jan 2019

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

Pace Law Faculty Publications

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any ...


California Dreaming?, Darren Rosenblum Jan 2019

California Dreaming?, Darren Rosenblum

Pace Law Faculty Publications

Over the past few years, California became the setting for shocking tales of sex inequality and abuse in Hollywood and Silicon Valley. Decades after women achieved educational parity. men still run the corporate world. In response to these stories exposed by the #MeToo movement, California joined the transnational corporate board quota movement by converting its voluntary quota into a hard one. Will California's first mover status overcome constitutional objections and inspire other jurisdictions to act. Or is just Utopian dreaming, California-style? This Essay argues that despite its many flaws, the quota may succeed in curbing male over-representation on corporate ...


The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Bridget J. Crawford Jan 2019

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Bridget J. Crawford

Pace Law Faculty Publications

Introduction to Symposium on Feminist Judgments: Rewritten Tax Opinions.


Inclusion Riders And Diversity Mandates, Emily Gold Waldman Jan 2019

Inclusion Riders And Diversity Mandates, Emily Gold Waldman

Pace Law Faculty Publications

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that ...


The Common Law As Silver Slippers, Bridget J. Crawford Jan 2019

The Common Law As Silver Slippers, Bridget J. Crawford

Pace Law Faculty Publications

Professor Anita Bernstein's book, The Common Law Inside the Female Body, is an erudite investigation into the history and operation of the common law. Bernstein's careful and wide-ranging study leads to her arresting thesis: The common law--an old, unpredictable, and slow system that has been there all along--has tremendous power to support and even advance women's legal claims to personal liberty. In other words, women have always had the common law right to be treated equally to men. We simply have not realized it.

Bernstein makes a convincing argument that the common law tradition has a unifying ...


Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Bridget J. Crawford Jan 2018

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Bridget J. Crawford

Pace Law Faculty Publications

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle: first to realize the right of women to vote and then to eliminate explicit discrimination against women from the nation's laws. For others, it is a political movement, the purpose of which is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy--a system of thought--and a community of belief centering on attaining political, social, and economic equality for women, men, and people of any ...


Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford Jan 2018

Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford

Pace Law Faculty Publications

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O'Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very ...


How Is Sex Harassment Discriminatory?, Noa Ben-Asher Jan 2018

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Pace Law Faculty Publications

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural and ...


Faith-Based Emergency Powers, Noa Ben-Asher Jan 2018

Faith-Based Emergency Powers, Noa Ben-Asher

Pace Law Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three ...


Tampon Taxes, Discrimination, And Human Rights, Bridget J. Crawford Jan 2017

Tampon Taxes, Discrimination, And Human Rights, Bridget J. Crawford

Pace Law Faculty Publications

This Article makes two contributions to the study of taxation. First, it argues that the “tampon tax”--an umbrella term to describe sales, VAT, and similar “luxury” taxes imposed on menstrual hygiene products--illustrates how deeply embedded gender is in legal structures such as the tax system that are thought to be neutral. Second, this Article posits that tax reform is an essential tool in achieving both gender equality and human rights. In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the tampon tax. In response to pressure from constituents, five states ...


Using Feminist Theory To Advance Equal Justice Under Law, Bridget J. Crawford Jan 2017

Using Feminist Theory To Advance Equal Justice Under Law, Bridget J. Crawford

Pace Law Faculty Publications

This essay provides an overview of the purposes, themes and scholarly methodologies evidenced at the October 2016 conference, The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at the University of Akron School of Law. This essay provides some of the background to the development of the path-breaking book, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016). It also focuses attention on the importance of diversity on the bench, with a particular need for judges who understand or experience the intersecting ...


In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher Jan 2017

In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher

Pace Law Faculty Publications

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article's central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser's terminology, they are not "bargaining in the shadow of the law." Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex ...


When Does Sex Diversity On Boards Benefit Firms?, Darren Rosenblum Jan 2017

When Does Sex Diversity On Boards Benefit Firms?, Darren Rosenblum

Pace Law Faculty Publications

Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a "diversity dividend" depends on three key factors: ( 1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its ...


The Two Laws Of Sex Stereotyping, Noa Ben-Asher Jan 2016

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Pace Law Faculty Publications

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework--from equal opportunity to individual liberty--that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers, but not ...


More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Darren Rosenblum Jan 2015

More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Darren Rosenblum

Pace Law Faculty Publications

In 2011, France enacted a Corporate Board Quota to establish a forty percent floor for either sex on corporate boards. Existing literature presumes that women will change the way firms function and that their presence in upper management will improve both governance and financial returns. To assess the potential impact of the quota, we interviewed twenty-four current and former corporate board members. Our analysis of these interviews generates two findings. First, our results indicate that, at least in the view of board members, the sex quota has had an impact on the process of board decision-making, but adding women has ...


Portability, Marital Wealth Transfers, And The Taxable Unit, Bridget J. Crawford Jan 2015

Portability, Marital Wealth Transfers, And The Taxable Unit, Bridget J. Crawford

Pace Law Faculty Publications

Prior to 2011, the most efficient estate tax planning for married couples required a minimal level of asset equalization. In order to take maximum advantage of all existing wealth transfer tax exemptions and credits, each spouse needed to own, in an estate tax sense, enough assets to be able to fully utilize the estate tax credit or applicable exemption. This changed with the enactment of estate tax portability in the Economic Growth and Economic Recovery and Relief Act of 2011, which became permanent under the American Taxpayer Relief Act of 2012. “Portability” refers to the ability of a surviving spouse ...


Quotas And The Transatlantic Divergence Of Corporate Governance, Darren Rosenblum Jan 2014

Quotas And The Transatlantic Divergence Of Corporate Governance, Darren Rosenblum

Pace Law Faculty Publications

The French adoption of a corporate board quota for women reflects Europe's increasingly stakeholder-oriented approach to corporate governance, one that stands in marked contrast with that of the United States. This Article discusses how the corporate board quota will shift French and European corporate governance. The change accentuates an already established stakeholder corporate culture widespread in Europe, most notably evidenced by the presence of worker representation on boards. In contrast, the United States' corporate governance structure increasingly places the shareholder at its center. The proliferation of quotas for women on corporate boards in the national and transnational European contexts ...


A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford Jan 2014

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford

Pace Law Faculty Publications

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgender individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law's commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors' rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This ...


Unsex Mothering: Toward A New Culture Of Parenting, Darren Rosenblum Jan 2012

Unsex Mothering: Toward A New Culture Of Parenting, Darren Rosenblum

Pace Law Faculty Publications

In this Article, I observe that “mothering” and “fathering” have been inappropriately tethered to biosex. “Mothering” should be unsexed as the primary parental relationship. “Fathering,” correspondingly, should be unsexed from its breadwinner status. In an ideal world, people now considered “mothers” and “fathers” would be “parents” first, a category that includes all forms of caretaking. One could even imagine an androgynous world in which parenting has no sexed subcategories, whether attached to biosex or not. I doubt our world is anywhere near that; I also wonder whether universal androgyny is a utopian ideal worth pursuing. I instead focus in this ...


Authentic Reproductive Regulation, Bridget J. Crawford Jan 2012

Authentic Reproductive Regulation, Bridget J. Crawford

Pace Law Faculty Publications

In this response to I. Glenn Cohen’s article, Regulating Reproduction, Professor Crawford notes the ways in which Professor Cohen’s questioning of “best interests” logic challenges legal scholars to reexamine received wisdom. She then evaluates Professor Cohen’s critique of “best interests” in the context of income taxation of surrogates. Professor Crawford concludes that Professor Cohen’s “unmasking” project—designed to reveal the authentic reasons for reproductive regulation—enhances the discourse about reproductive law and policy


Rethinking Addiction: Drugs, Deterrence, And The Neuroscience Revolution, Linda C. Fentiman Jan 2011

Rethinking Addiction: Drugs, Deterrence, And The Neuroscience Revolution, Linda C. Fentiman

Pace Law Faculty Publications

This article connects the debate about addiction with the fundamental criminal law principle of deterrence. It seeks to bridge the gap between the competing medical and criminal justice approaches by exploring addiction in light of recent research about the brain, gender differences, and what works best from both a treatment and justice perspective. To sharpen the issues, the article deliberately focuses on the emotionally freighted subject of pregnant drug users. This approach will illuminate prevailing assumptions about how biological, genetic, cultural, and other environmental factors shape human behavior and challenge conventional understandings of deterrence in light of new research on ...


An Equal Rights Amendment To Make Women Human, Ann Bartow Jan 2011

An Equal Rights Amendment To Make Women Human, Ann Bartow

Pace Law Faculty Publications

Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.