Law Commons^™

Testimony To The Senate Judiciary Committee By The Era Project At Columbia Law School And Constitutional Law Scholars On Joint Resolution S.J.Res. 4: Removing The Deadline For The Ratification Of The Equal Rights Amendment, Katherine M. Franke, Laurence H. Tribe, Geoffrey R. Stone, Melissa Murray, Michael C. Dorf

Faculty Scholarship

The Equal Rights Amendment Project at Columbia Law School (ERA Project) and the undersigned constitutional law scholars provide the following analysis of S.J.Res. 4, resolving to remove the time limit for the ratification of the Equal Rights Amendment (ERA) and declaring the ERA fully ratified.

Political Equality, Gender, And Democratic Legitimation In Dobbs, Aliza Forman-Rabinovici, Olatunde C.A. Johnson

Faculty Scholarship

This Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the …

Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan P. Sturm

Faculty Scholarship

The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.

Class, Care, And The Equal Rights Amendment, Kate Andrias

Faculty Scholarship

This piece was submitted in connection with the 2022 Symposium The Equal Rights Amendment: A New Guarantee of Sex Equality in the U.S. Constitution. The event was co-sponsored by the Columbia Journal of Gender and Law and the Columbia Law School ERA Project.

Era Project Olc Letter, Katherine M. Franke, David E. Pozen, Erwin Chemerinsky, Melissa Murray, Laurence H. Tribe, Martha Minow, Geoffrey C. Stone, Cary Franklin, Michael C. Dorf, Victoria Nourse

Faculty Scholarship

The Equal Rights Amendment Project at Columbia Law School (“ERA Project”) and the undersigned scholars submit this letter at the request of your office to provide legal analysis of the January 6, 2020 Department of Justice Office of Legal Counsel Memorandum to the National Archives and Records Administration on the Equal Rights Amendment (“2020 OLC Memo”).

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to …

The Paradox Of Legal Training And Leadership: A Conversation Between Akilah Folami And Susan Sturm, Akilah Folami, Susan P. Sturm

Faculty Scholarship

Professor Akilah Folami:
Welcome and thank you for coming. I am eager to engage in this opening exchange with Susan Sturm today in hopes that it will help bring to surface some of the issues that undergird the conversations planned for today in the panels. So let us begin. Susan has been teasing out a series of paradoxes that she argues develops in the tensions built into lawyer-leadership, i.e., legal training and leadership development. Her work on these lawyer-leadership paradoxes grows out of her other work that is related to the theme of this conference: Leading Differently Across Difference. She …

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Criminal Deterrence: A Review Of The Missing Literature, Alex Raskolnikov

Faculty Scholarship

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself. By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent. These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-known yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment). I also use “missing” to refer to the areas …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler

Faculty Scholarship

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth." This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor

Faculty Scholarship

Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.

This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her film, …

The Abortion Closet (With A Note On Rules And Standards), David E. Pozen

Faculty Scholarship

An enormous amount of information and insight is packed into Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Recorded encounters between women of color and police officers have been invaluable in bringing the reality of these interactions into the living rooms of otherwise unknowing Americans. The recordings are instrumental pieces of documentation and evidence, with the power to impact verdicts and galvanize the domestic struggle for human rights outside of the courtroom. They also are fraught with ethical issues that must be addressed by attorneys and activists hoping they effect change. Complexities such as implicit biases, editing and sourcing of videos, anonymity for those attacked and bystanders, and vicarious trauma on affected communities complicate use of violent police …

Testimony On Pennsylvania Sb1306: No Additional Protections For Religious Freedom, Katherine M. Franke, Burton Caine, Lenore F. Carpenter, Eric A. Feldman, Thersa Glennon, Nancy J. Knauer, Jules Lobel, Wendell Pritchett, Dara E. Purvis, Brishen Rogers, Victor C. Romero, Kathryn M. Stanchi, Nancy A. Welsh

Faculty Scholarship

On behalf of the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School I offer the following legal analysis of Senate Bill 1306. Overall, the current version of the bill promises to modernize Pennsylvania’s Human Relations Act by expanding antidiscrimination protections in employment to include sexual orientation and gender identity-based discrimination. Were the Pennsylvania legislature to pass SB 1306, the Commonwealth would join twenty-two states that include sexual orientation and nineteen states that include gender identity in their laws assuring equal employment opportunities for their citizens.

Admin, Elizabeth F. Emens

Faculty Scholarship

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work – both managerial and secretarial – that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people – often women – who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home …

Multidimensional Advocacy As Applied: Marriage Equality And Reproductive Rights, Suzanne B. Goldberg

Faculty Scholarship

Talking about marriage equality and reproductive rights advocacy together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a shifting terrain shaped by competing views of sexuality, autonomy, equality, personhood, and more.

Yet the two advocacy efforts have experienced very different receptions over time. Just over two decades ago, the Supreme Court expressly affirmed that women have a constitutional right to seek an abortion and …

A Free Start: Community-Based Organizations As An Antidote To The Mass Incarceration Of Women Pretrial, Amber Baylor

Faculty Scholarship

In 1973, the feminist newsmagazine Off Our Backs featured a segment on women in jail awaiting trial in Washington, D.C. Many of the women faced minor charges, such as soliciting prostitution, but remained in detention because they could not afford to pay even very low amounts of monetary bail. The magazine interviewed Myrna Raeder, then a fellow at Georgetown, and other attorneys involved in a class action suit against D.C. corrections, who argued that low-income women were unjustly subjected to the punitive effects of pretrial detention, in violation of their due process rights. Raeder reported to the newsmagazine, “as a …

Honoring And Celebrating Myrna Raeder, Brett Dignam

Faculty Scholarship

It is a great privilege to be honoring Myrna Raeder and to celebrate her impressive career, scholarship and personhood. How appropriate to bring together scholars and advocates who share and will carry on her passions. Thank you everyone at Southwestern Law School who worked so hard to imagine and realize this symposium, for gathering us together, and for giving us the opportunity to reflect on the many gifts and fierce challenges Myrna gave to each of us. There is no finer tribute we can give than to carry on her work – the development of ideas and the encouragement of …

Health Rights In The Balance: The Case Against Perinatal Shackling Of Women Behind Bars, Brett Dignam, Eli Y. Adashi

Faculty Scholarship

Rationalized for decades on security grounds, perinatal shackling entails the application of handcuffs, leg irons, and/or waist shackles to the incarcerated woman prior to, during, and after labor and delivery. During labor and delivery proper, perinatal shackling may entail chaining women to the hospital bed by the ankle, wrist, or both. Medically untenable, legally challenged, and ever controversial, perinatal shackling remains the standard of practice in most US states despite sustained two-decades-long efforts by health rights legal advocates, human rights organizations, and medical professionals. Herein we review the current statutory, regulatory, legal, and medical framework undergirding the use of restraints …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Faculty Scholarship

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence …

Our Fair City: A Comprehensive Blueprint For Gender And Sexual Justice In New York City, Cindy Gao, Katherine M. Franke

Faculty Scholarship

Columbia Law School’s Center for Gender & Sexuality Law offers this report to aid the de Blasio administration in evaluating the steps it can and should take to eliminate all forms of gender and sexual discrimination, and to assure gender and sexual justice in City policy and programs. After consultation with numerous groups advocating for gender and sexual justice across New York City, the Center for Gender & Sexuality Law at Columbia Law School has synthesized in this report a set of key recommendations to the de Blasio administration, all designed to eliminate a wide range of disadvantages, invisibility, violence, …

Toward A Field Of Intersectionality Studies: Theory, Applications, And Praxis, Sumi Cho, Kimberlé W. Crenshaw, Leslie Mccall

Faculty Scholarship

Intersectional insights and frameworks are put into practice in a multitude of highly contested, complex, and unpredictable ways. We group such engagements with intersectionality into three loosely defined sets of practices: applications of an intersectional framework or investigations of intersectional dynamics; debates about the scope and content of intersectionality as a theoretical and methodological paradigm; and political interventions employing an intersectional lens. We propose a template for fusing these three levels of engagement with intersectionality into a field of intersectional studies that emphasizes collaboration and literacy rather than unity. Our objective here is not to offer pat resolutions to all …

Taking A Break From Acrimony: The Feminist Method Of Ann Scales, Katherine M. Franke

Faculty Scholarship

In this Essay, written as part of a symposium honoring the work of Professor Ann Scales, Professor Katherine Franke explores how Professor Scales may have approached the cutting edge problem of same-sex couples divorcing. Professor Scales's work evidenced a deep commitment to the twin projects of recognizing structural gender disadvantage suffered by women and the tyranny of gender stereotypes. This Essay speculates that Professor Scales's feminist commitments would be unsettled by the application to divorcing same-sex couples of rules and norms of divorce forged in the heterosexual context where gender inequality set the parameters of justice. Indeed, Franke speculates that …

About Abortion: The Complications Of The Category, Carol Sanger

Faculty Scholarship

My subject this afternoon is abortion, a subject that for the last 40 years has embedded itself in American consciousness, American politics, and American culture with remarkable durability and reach. Looking only at the first decade of this century – from George W. Bush to Barack Obama, to use two presidential landmarks – abortion has been central to how Americans conceptualize, debate, and sometimes resolve all sorts of things: foreign aid, health care reform, high school sex education, and judicial nominations to the Supreme Court. Abortion has been at the heart of disputes over what products Walmart keeps on its …

Intuition And Feminist Constitutionalism, Suzanne B. Goldberg

Faculty Scholarship

In any constitutional system, we must ask, as a foundational inquiry, when and why a government may distinguish between groups of constituents for purposes of allocating benefits or imposing penalties. For feminists and others with a stake in challenging inequalities, the rationales that a society deems acceptable for justifying these classifications are centrally important. Heightened scrutiny jurisprudence for sex-based and other distinctions may help capture some of the rationales that rest on stereotypes and outmoded biases. However, at the end of the day, whatever level of scrutiny is applied, the critical question at any level of review is whether, according …