Law and Gender Commons^™

Institutional Design And The Predictability Of Judicial Interruptions At Oral Argument, Tonja Jacobi, Patrick Leslie, Zoë Robinson

Faculty Articles

Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and …

Supreme Court Interruptions And Interventions: The Changing Role Of The Chief Justice, Tonja Jacobi, Matthew Sag

Faculty Articles

Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices improved in recent years, and whether the structural change in argument helped. It shows that interruptions decreased during the pandemic but then resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for …

Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson

Faculty Articles

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and …

Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag

Faculty Articles

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices …

Changing The Subject Of Sati, Deepa Das Acevedo

Faculty Articles

Charan Shah's 1999 death was widely considered to be the first sati, or widow immolation, to have occurred in India in over twenty years. Media coverage of the event focused on procedural minutiae-her sari, her demeanor-and ultimately, several progressive commentators came to the counterintuitive conclusion that the ritually anomalous nature of Charan's death confirmed its voluntary, secular, and noncriminal nature. This article argues that the "unlabeling" of Charan's death, like those of other women between 1999 and 2006, reflects a tension between the nonindividuated, impervious model of personhood exemplified by sati and the particularized citizen-subject of liberal-democratic politics in India.

#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 …

Vulnerability And Inevitable Inequality, Martha Albertson Fineman

Faculty Articles

The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in …

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

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

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

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

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

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

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, …

The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine

Faculty Articles

This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …

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 …

Addressing The Scourge Of Human Trafficking: The Challenge Ahead, Roza Pati

Faculty Articles

No abstract provided.

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

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

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.

Progress And Progression In Family Law, Martha Albertson Fineman

Faculty Articles

The process and nature of change in our family formation seems unlikely to be derailed. The policy question for those concerned with the institution of the family in today's world should not be how we can resuscitate marriage and thus save society, but rather how we can support all individuals who create intimate, caring relationships, regardless of the form of those relationships. Continued inattention to the social and economic dislocations and the emerging family needs produced in the wake of changes in family formation can be disastrous, not only to individual families, but also to society.

Of particular importance for …

Critical Race Histories: In And Out, Darren L. Hutchinson

Faculty Articles

Insider critiques of CRT also require critical assessment. Recent internal critics complain that racial identity discourse, including multidimensionality theory, marginalizes more important attention to material, class, or economic issues. If their claim holds true, the material harm critics serve a vital purpose: because racial injustice causes and interacts with economic deprivation, any progressive racial justice movement should interrogate class and economic inequality concems. Nevertheless, the analysis of the material harm critics suffers because it dichotomizes class and multidimensionality. Although these critics bifurcate multiplicity and class analysis, multiplicity theories relate to class analysis in two important respects. First, poverty has multidimensional …

Are Women More Ethical Lawyers – An Empirical Study, Patricia W. Moore, Kevin M. Simmons

Faculty Articles

We first noticed a possible "gender gap" in attorney discipline when we ran across the Oklahoma Disciplinary Commission's annual report for the year 2000. Women currently constitute 27% of Oklahoma attorneys, but 0% of the disciplined attorneys—none of the seventeen named—were women. Wondering whether the Oklahoma figures were aberrational, we attempted to locate research concerning gender and attorney discipline. But there have been few such studies, although “[p]robably no issue in the social sciences receives more attention than the difference between men and women.”

We thus embarked upon a national study of disciplinary actions decided in 2000. After collecting, coding, …

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 …

Women, Poverty, Access To Health Care, And The Perils Of Symbolic Reform, Mary Anne Bobinski, Phyllis Griffin Epps

Faculty Articles

This article looks at health care through gendered eyes. We sift though available data on access to health care, health status, and health treatments to determine whether men and women experience health care differently in the United States. While we do not doubt that overt gender-based discrimination occasionally occurs in health care, this article focuses on the importance of unintended consequences and unconscious bias. We also explore the impact of symbolism about women's roles on the process of health care reform. The results have important implications for policy makers, advocates, and health care providers.

The United States has a large …

Identity Crisis: "Intersectionality," "Multidimensionality," And The Development Of An Adequate Theory Of Subordination, Darren L. Hutchinson

Faculty Articles

This Article arises out of the intersectionality and post-intersectionality literature and makes a case against the essentialist considerations that informed HRC's endorsement of D'Amato. Part I discusses the pitfalls that occur when scholars and activists engage in essentialist politics and treat identities and forms of subordination as conflicting forces. Part II examines how essentialism negatively affects legal theory in the equality context. Part III considers the historical motivation for and the efficacy of the "intersectionality" response to the problem of essentialism. Part III also extensively analyzes the "multidimensional" critiques of essentialism offered by the most recent school of thought in …

Why Marriage?, Martha Albertson Fineman

Faculty Articles

Reflection on the prospect of varied, individualized possibilities for the meaning of marriage suggests, that in order to answer the question "why marriage?" we must first consider "what marriage?" or more succinctly, "what is marriage?" Questioning what marriage actually is calls attention to the institution's individualized and malleable nature. By contrast, a focus on "why marriage" highlights the societal function and rationale for the institution. I will discuss each question-the "what" as well as the "why" of marriage.

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

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.

Beyond The Rhetoric Of Dirty Laundry: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren L. Hutchinson

Faculty Articles

Several historical reasons explain opposition to the airing of internal criticism by scholars and activists within progressive social movements and by members of subordinate communities. Opponents often contend that such criticism might reinforce negative stereotypes of subordinate individuals and that reactionary movements and activists might appropriate and misuse negative portrayals of the oppressed. A related fear holds that internal criticism will dismantle political unity within oppressed communities and progressive social movements, thereby forestalling social change. While these concerns provide some context for understanding the resistance to internal criticism within progressive social movements, I argue in this essay that they do …