Law Commons^™

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

GW Law Faculty Publications & Other Works

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, …

Law And Norms In The Market Response To Discrimination In The Sharing Economy, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Published by De Gruyter May 11, 2019, https://www.degruyter.com/document/doi/10.1515/lehr-2019-0001/html

Sharing-economy firms have opposed the application of antidiscrimination law to their transactions. At the same time, these firms have heralded their ability to achieve antidiscrimination aims without the force of law, and have adopted various measures to address discrimination. This Article documents and assesses these measures, focusing on the relationship between law and norms. Relying on the sharing economy as a case study, this Article shows how law can play a crucial role in spurring antidiscrimination efforts by firms that it does not regulate, but also how antidiscrimination law might nonetheless be …

Women, Rule-Breaking, And The Triple Bind, June Carbone, Naomi R. Cahn, Nancy Levit

GW Law Faculty Publications & Other Works

Two growing literatures critique Hobbesian corporate cultures. Management analyses document the way high-stakes/zero-sum bonus systems undermine, rather than enhance, productivity as they subvert teamwork, valorize self-interested behavior, and weaken ethical standards. This literature treats negative effects of such systems, including lawless and unethical behavior, as the unintended consequences of efforts to shake up complacent institutions or replace an insular old guard with an ambitious and meritocratic new workforce. A second, darker literature terms such Hobbesian environments “masculinities contests” that select for those executives who best exemplify masculine traits such as a single-minded focus on professional success, physical strength, and the …

Class, Politics, Gender And The Marriage Divide In The United States, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article we use the idea of the 'marriage divide' to describe the transformation of the family to meet the needs of the information economy and the divisions that the transformation has created. In doing so, we emphasise three types of 'marriage divides' in the United States: class and racial, ideological and political, and family law/gender ideology.

Whither/Wither Alimony?, June Carbone, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Can alimony be saved? Historically, alimony protected women's dependence during marriage. The most fundamental challenge for its continuation therefore rests on reconciling alimony with an era in which the majority of women, including 71% of mothers with children under 18, are in the labor market. This requires reconsideration of the nature of marriage, not just as a partnership ideal, which arguably it has long been, or as a relationship between equals, which has emerged more recently, but as an integrated part of a new economic model. This review of The Marriage Buyout by Cynthia Starnes assesses her justification for the …

The Family And The Market At Wal-Mart, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Wal-Mart Stores v. Dukes received much attention for what it means for collective litigation. Far less attention has been paid to what the case reveals about sex discrimination law. This symposium contribution uses an overlooked aspect of the Dukes case — the challenge to Wal-Mart’s relocation policy — as a lens to explore employment discrimination law’s failure to adequately take account of employees’ families in a way that further entrenches the family-market divide and seriously hinders the promise of sex discrimination law.

The challenge to the relocation policy exposes how employment discrimination law simultaneously pays …

The End Of Men Or The Rebirth Of Class? How Hanna Rosin Leaves Out The 1% & Family Law Fails The Other 99%, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article argues that much of what has been described as “the end of men” is in fact the recreation of class. Greater inequality among men and among women has resurrected class differences and changed the way men and women relate to each other and channel resources to their children. While women have in fact gained ground in the workplace and acquired greater ability to live, work, play and raise children without men, a mere relative move towards sex equality only masks the more fundamental changes occurring in American society and the continuing existence of patriarchy. First, the improved freedom …

Linking Gender Security With The Armed Conflict To Peace Continuum, Naomi R. Cahn, Fionnuala D. Ni Aolain, Dina Francesca Haynes

GW Law Faculty Publications & Other Works

In the immediate aftermath of armed conflict, security is critical to the possibility that refugees, displaced persons, and former combatants will return home, that the rule of law can be established, and that the state can move forward positively. Security in a post-conflict society is critical to preventing further conflict. Available empirical evidence suggests that conflicts are highly cyclical and for societies experiencing internal conflict there is up to a 50% risk that conflict will again reignite. Security issues are at the heart of the reconstruction process for the local population, national leaders, and the international community. Security is also …

Returning Home: Women In Post-Conflict Societies, Naomi R. Cahn, Dina Francesca Haynes, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that context, it assesses the range of barriers and challenges that women face and offers some thinking to addresses and remedy these complex issues. As countries face the transition process, they can begin to measure the conflict’s impact on the population and the civil infrastructure. Not only have people been displaced from their homes, but, typically, health clinics, schools, roads, businesses, and markets have deteriorated substantially. While the focus is on humanitarian aid in the midst of and during …

Gender, Masculinities And Transition In Conflicted Societies, Naomi R. Cahn, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This article uses a gender lens to explore how conflict affects men and women differently. It examines issues related to the emergence of certain kinds of “hyper” masculinity in situations of conflict and how such masculinities continue to function in subsequent peace-building attempts. The article argues that a failure to account for and be cognizant of these specific masculinities has a significant effect for women in particular, and, more generally, on the success of the conflict transition process. Finally, we show how using a gender lens could make a difference by considering the specific example of the impact of violent …

Why Do Women Lawyers Earn Less Than Men? Parenthood And Gender In A Survey Of Law School Graduates, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Using a dataset of survey responses from University of Michigan Law School graduates from the classes of 1970 through 1996, I find that fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature. Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take …

The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi

GW Law Faculty Publications & Other Works

This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which …

Red Families V. Blue Families, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

The "culture wars," as they play out in high profile Supreme Court decisions and legislative fights over abortion and same-sex marriage, are first and foremost about family values. Central to these differences - and the focus of the article - is the fact that different families in different parts of the country are leading different lives. The one clear, organizing principle that distinguishes the two systems: age of family formation. The defining characteristic of what we term the "new middle class morality" is delay in family formation until the late twenties or early thirties. This new morality, which correlates more …

Behavioral Biology, The Rational Actor Model, And The New Feminist Agenda, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this paper, we will incorporate gender consciousness into critiques of the rational actor model by revisiting Carol Gilligan's account of moral development. Economics itself, led by the insights that have come from game theory, is reexamining trust, altruism, reciprocity and empathy. Behavioral economics, defined as "the combination of psychology and economics that investigates what happens in markets in which some of the agents display human limitations and complications," further explores the implications of a more robust conception of human motivation. We argue that the most likely source for a comprehensive theory will come from the integration of behavioral economics …

The Many Faces Of Darlene Jespersen, Michael Selmi

GW Law Faculty Publications & Other Works

This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact …

Women In Post-Conflict Reconstruction: Dilemmas And Directions, Naomi R. Cahn

GW Law Faculty Publications & Other Works

A critical issue for post conflict reconstruction is moving beyond criminal prosecutions that ensure accountability of perpetrators toward a system that also serves the needs of victims. When reconstruction includes disarmament, demobilization, and reintegration (DDR) and development services, these programs cannot be separated from perpetrator responsibility. The traditional criminal justice is perpetrator-centric. Alternative forms of justice have broadened this focus, recognizing that the legal system must respond to both victims and perpetrators. Transitional justice, which focuses on responding to past human rights violations, is critical to holding violators accountable for their acts.

In addition to criminal and civil accountability (rights-based …

Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment qualifies as …

Davis V. Monroe County Board Of Education: The Unresolved Questions,, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article focuses on the recent trend of permitting liability of schools when students are sexually harassed, which the Supreme Court has only recognized for twenty years. I examine the majority and dissenting opinions of the Court’s most recent decision about this topic, Davis v. Monroe County Board of Education and analyze three questions brought to light by Davis and Gebser v. Lago Vista Independent School District. These questions are: (1) what qualifies as “actionable” sexual harassment, (2) who must receive notice, and (3) what satisfies the “deliberate indifference” standard from Davis. The answers to these questions are just …

An Emerging Right For Mature Minors To Receive Information, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article argues that parental objections should not be allowed to block minors from accessing information from government agencies, including schools and libraries. This is particularly important when a mature minor seeks information that is essential to meaningful decisions about the exercise of autonomy rights that are constitutionally protected for teenagers, such as reproductive rights including the right to contraception and abortion. The right to receive information is also implicated where minors seek information to facilitate emerging identity choices that may conflict with those of their parents, such as religion and reliance on medical care. Part I analyzes the nature, …