Law Commons^™

Hierarchy, Race & Gender In Legal Scholarly Networks, Nicholson W. Price, Keerthana Nunna, Jonathan Tietz

Articles

A potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape …

By Any Other Name, Shay Elbaum

Law Librarian Scholarship

The use of names to refer to individuals is probably as old as language itself, but many features of naming in the United States are much newer. For the most part, our naming laws and norms derive from England, where the use of surnames, for example, can be traced back to the Norman conquest and did not become a common practice until the 13th or 14th century. The idea of a surname as a family name, permanent and hereditary, is even newer.

The common law method of changing one’s name — simply using a different name, for non-fraudulent purposes — …

Mary Lou Graves, Nolen Breedlove, And The Nineteenth Amendment, Ellen D. Katz

Articles

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that—contrary to the general understanding in the scholarly literature—the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote …

Gendered Normativities: The Role And Rule Of Law, Susanne Baer

Book Chapters

In the 21st century, human rights are as present as they are endangered. Specifically, sex/gender equality rights are contested, or actively abridged, which is to be understood as an attack on women and on people who do not fit a ‘normal’ pattern of gender relations. Yet in addition, these are attacks on democratic constitutionalism itself. The article argues that to properly understand the recent contestations of human rights, one must distinguish between critique and attack, and revisit the very form and content of human rights, to deal with law’s ambivalence, such as ‘legal colonialism’, and also take into account critical …

Women, Peace, And Security: A Human Rights Agenda?, Christine M. Chinkin

Book Chapters

The Women, Peace and Security (WPS) agenda emanates from the ground-breaking Security Council Resolution 1325 (2000) which centres upon bringing women’s experiences of armed conflict into decision and policymaking in the exercise of the Council’s primary responsibility for the maintenance of international peace and security. The chapter asks whether, despite its location within the Security Council, WPS can be understood as an international human rights agenda as envisaged by women activists who lobbied for the adoption of Resolution 1325. It traces the antecedents of WPS through women’s peace and human rights activism throughout the twentieth century. It examines the texts …

A Gendered Right To Counsel?, Maureen Carroll

Reviews

The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of …

Acknowledgements As A Window Into Legal Academia, Jonathan Tietz, W. Nicholson Price Ii

Articles

Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law review articles to probe the nature of legal knowledge co-production and de facto peer review in the legal literature. Using a survey and a textual analysis of about thirty thousand law review articles from 2008 to 2017, we examined the nature of knowledge …

From The Spectacular To The Everyday: International Law, Violence And The Agenda For Women, Peace And Security, Christine M. Chinkin

Book Chapters

This article looks at the conceptions of violence within WPS and thus within these diverse international legal regimes as they relate to women and girls. It first examines the regulation of inter-state violence, both legal recourse to the use of force and constraints upon the means and methods of warfare. It then outlines how state obligations to prevent and punish violence against women were brought into human rights law in the early 1990s, primarily by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee). The WPS resolutions are then summarised, focusing on provisions for the prevention of …

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

Articles

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …

Disability And Reproductive Justice, Samuel Bagenstos

Articles

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Law & Economics Working Papers

Because Title IX of the Education Amendments of 1972 involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), the administration of that statute by the Department of Education's Office for Civil Rights has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have …

Women And Men Graduates Of The University Of Michigan Law School: Career Patterns And Adjustments For Children, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School conducted mail surveys of classes of its alumni each year from 1966 and 2006. This memorandum builds upon the mail surveys conducted through 2006 and in particular survey questions asked about the sex of the respondent, the settings in which they have worked since law school, the hours they work and their earnings in their current settings, whether they have children and the various adjustments they have made in order to care for children, such as working part-time or leaving the work force altogether for periods of time. The memorandum has two principal focuses: …

The Changing Student Body At The University Of Michigan Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

Most of the content of the memo that follows has been previously published in the article "Who We Were and Who We Are: How Michigan Law Students Have Changed Since the 1950s: Findings from 40 Years of Alumni Surveys." T. K. Adams, co-author. Law Quad. Notes 51, no. 1 (2009): 74-80, available through this website. This memo provides more detail about changing entry credentials and about the great expansion beginning in the 1970s in the numbers of women students and of racial/ethnic minority students. It also provides information not in the article about the patterns over time in students’ …

Should I Stay Or Should I Go? The Gender Gap For Securities And Exchange Commission Attorneys, Stephen J. Choi Ii, Mitu Gulati, Adam C. Pritchard

Articles

Most research on the gender gap in the legal profession focuses on the private sector. We look at the gender gap in a setting where one might expect the gaps to be smaller: the Division of Enforcement of the Securities and Exchange Commission (SEC), which has a reputation for providing employees with good childcare and work flexibility. We find a substantial gender gap in assignments but only a modest one in pay. Men are also more likely to move laterally and more likely to move to lucrative private-sector jobs. What causes these gaps? The primary explanation for the gender gap …

Domestic Violence Convictions And Firearms Possession: The Law As It Stands And As It Moves, Kate E. Britt

Law Librarian Scholarship

Legislatures have attempted to curb instances of gun use in fatal and nonfatal domestic violence by passing statutes restricting possession of firearms for perpetrators of domestic violence. This article explains federal and Michigan law as it stands and discusses current efforts to further limit perpetrators’ access to firearms.

Dignity And Civility, Reconsidered, Leah Litman

Articles

People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …

Nevada Department Of Human Resources V. Hibbs: Universalism And Reproductive Justice, Samuel Bagenstos

Book Chapters

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton—just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism—the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by …

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …

The Law Hasn't Yet Achieved Parity, Leah Litman

Articles

Parity between men and women in the legal profession is an aspiration. It’s not reality, at least not yet. I wish I’d have understood that in law school because hearing that there’s parity when there’s none can be maddening. I also wish I would have known about the resources available to people who want to do something about the lack of parity in our profession.

Potential Life In The Doctrine, Leah Litman

Articles

In their article, Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin seek to shore up the doctrinal basis for a woman’s constitutional right to end her pregnancy. While Chemerinsky and Goodwin are partly concerned about the status of abortion rights in the United States because of President Donald Trump’s promise prior to taking office to appoint Justices to the Supreme Court who will overturn Roe v. Wade, they also maintain that some of the threat to abortion rights arises from an uncomfortable tension in the doctrine that recognizes states’ interest in potential life. I agree with Chemerinsky and …

Equality Adds Quality: On Upgrading Higher Education And Research In The Field Of Law, Susanne Baer

Articles

Much has been attempted, and many pro1ects are still underway aimed at achieving equality in higher education and research. Today, the key argument to demand and support the integration of gender in academia is that equality is indeed about the quality on which academic work is supposed to be based. Although more or less national political, social and cultural contexts matter as much as academic environments, regarding higher education and research, the integration of gender into the field of law seems particularly interesting. Faculties of law enjoy a certain standing and status, are closely connected to power and politics, and …

Minority And Women Entrepreneurs: Building Capital, Networks, And Skills, Michael S. Barr

Other Publications

The United States has an enviable entrepreneurial culture and a track record of building new companies. Yet new and small business owners often face particular challenges, including lack of access to capital, insufficient business networks for peer support, investment, and business opportunities, and the absence of the full range of essential skills necessary to lead a business to survive and grow. Women and minority entrepreneurs often face even greater obstacles. While business formation is, of course, primarily a matter for the private sector, public policy can and should encourage increased rates of entrepreneurship, and the capital, networks, and skills essential …

Bottlenecks And Antidiscrimination Theory, Samuel R. Bagenstos

Reviews

In American antidiscrimination theory, two positions have competed for primacy. One, anticlassification, sees the proper goal of antidiscrimination law as being essentially individualistic. The problem with discrimination, in this view, is that it classifies individuals on the basis of an irrelevant or arbitrary characteristic—and that it, as a result, denies them opportunities for which they are otherwise individually qualified. The other position, antisubordination, sees the proper goal of antidiscrimination law as being more group oriented. The problem with discrimination, in this view, is that it helps constitute a social system in which particular groups are systematically subject to disadvantage and …

Gender And Armed Conflict, Christine Chinkin

Book Chapters

The construction of social sex and gender roles means that armed conflict is sexed and gendered. Men still make up the majority of the fighting forces, while women's generally unequal and subordinate social and economic position makes them vulnerable in particular ways during conflict. Women and men, girls and boys all suffer gender-based violence. Such violence is directed at a person because of his or her gender. For instance men sustain specific harms such as disappearances and deliberate killings in greater numbers than women, while women disproportionately experience sexual violence. The detention of Bosnian Muslims at Potocari on 12 July …

Is(N'T) Catharine Mackinnon A Liberal?, Don Herzog

Articles

Catharine MacKinnon likes to describe her view as radical feminism or feminism unmodified or feminism, full stop. And she likes to contrast it to liberal feminism, which she sometimes treats with caustic scorn. But is she right to see a contrast here?

Gender And New Wars, Christine M. Chinkin, Mary Kaldor

Articles

War plays an important role in the construction of gender, or the social roles of men and women. This article analyzes the gendered experience of what Kaldor calls "new wars." It shows that new wars are largely fought by men in the name of a political identity that usually has a significant gender dimension. They use tactics that involve deliberate attacks on civilians, including systematic rape as a weapon of war, and are financed by predatory economic activities that tend to affect women more than men. The article describes the ways in which laws relating to gendered violence have been …

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

Articles

First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …