Law and Gender Commons^™

Misjudging A Reasonable Jury: Evidence That Courts Dismiss Meritorious Harassment Claims, Elizabeth C. Tippett, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Courts assessing summary judgment motions in Title VII harassment claims commonly grant the motion on the basis that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard. This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the severe or pervasive element of a Title VII harassment claim. We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently severe or …

Not A Pretty Picture: Race, Gender, And Inequality In The Legal Profession And Legal Education, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

Responding to renewed interest in law school as a path to a career “to do well and do good,” this essay examines Nelson, Dinovitzer, Garth, Sterling, Wilkins, Dawe, and Michelson’s The Making of Lawyers’ Careers and its account of inequality and opportunity in the American legal profession. Based on a 20-year study of more than 2,000 lawyers, the book traces how credentials, race, gender, class, and law school selectivity profoundly shape career trajectories. The essay situates those findings within the divide in private practice between corporate practice and people law and interrogates the professional ideology—rooted in the lawyer’s traditional role …

Fairer Public Benefit In Copyright Law, Amanda Levendowski Tepski

Georgetown Law Faculty Publications and Other Works

In 1966, a court considered expressly whether a secondary use of copyrighted works served a public benefit. While public benefit has become a subfactor of the fair use doctrine, it remains undefined, uncodified, and undertheorized. Courts often invoked public benefit in pivotal cases involving novel technologies, from home video recorders to digital libraries to algorithms--but they did not need to. After the recent Supreme Court decision in Google v. Oracle, however, public benefit is unavoidable: The Court stated that “we must take into account the public benefits the copying will likely produce.” A qualitative analysis of key public benefit cases …

Mind The Gap(S): Mitigating Harassment In A Post-#Metoo Workplace, Jamillah Bowman Williams, Elizabeth C. Tippett, Anu Ramdin

Georgetown Law Faculty Publications and Other Works

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. …

Just Research And Citation, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey …

The Common Law’S Resistance To Gender Violence, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Over twenty years ago, Congress developed a “mountain of evidence” that state criminal and civil remedies against sexual assault and battering were inadequate. The Supreme Court rejected that evidence in United States v. Morrison, striking down a federal civil rights remedy for sexual assault and battering. Since then, there have been many civil cases of sexual assault and battering against high-profile individuals, including the recent E. Jean Carroll lawsuit against a former President. This five-year study, surveying fifty states’ civil law, asks the question prompted by Morrison: Does the civil law today provide adequate remedies to survivors of sexual assault …

Bridging Silos: Environmental And Reproductive Justice In The Climate Crisis, Sara A. Colangelo

Georgetown Law Faculty Publications and Other Works

The climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

“We Do No Such Thing”: 303 Creative V. Elenis And The Future Of First Amendment Challenges To Public Accommodations Laws, David Cole

Georgetown Law Faculty Publications and Other Works

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.

Feminist Use, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

In 2015, Judge Pierre Leval wrote that copyright isn’t about authors, it’s about the rest of us. “While authors are undoubtedly important intended beneficiaries of copyright,” he explained, “the primary intended beneficiary is the public.” He would know—his scholarship has been transformative for how every jurist from the Supreme Court down approaches key copyright questions. But copyright often falls short of this aspiration by benefiting only a sliver of the public.

Copyright law grants exclusive rights to authors of qualifying works, such as books, which protects those works from unauthorized copying. The first copyright legislation, the Statute of Anne of …

The Taylor Swift Effect And International Law, Katrin Kuhlmann

Georgetown Law Faculty Publications and Other Works

Taylor Swift’s Eras Tour has come to an end, but the Taylor Swift Effect will remain a powerful force with influence well beyond even Swift herself. Often used to describe Swift’s economic impact through her fandom, it has become shorthand for the broader network effect that amplifies and extends the reach of her discography and cultural influence. As this article discusses, the Taylor Swift Effect has real implications for international relations and international law at a time when many nations are withdrawing from constructive international engagement, with devastating consequences in terms of global rights, liberties, and norms.

This article explores …

Western Feminism Before And After October 7, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In this interview, I provide my view on the state of Western feminism before and after the assault on Gaza. The interview includes discussion of the various strands of emergent feminisms in the West and some of their offshoots as they appear in Palestine in the context of Israeli colonialism and resistance to it.

Integrating Lawyers Into Perinatal Care Teams To Address Unmet, Health-Harming Legal Needs, Loral Patchen, Roxana Richardson, Asli Mccullers, Vicki W. Girard

Georgetown Law Faculty Publications and Other Works

Across the United States, historically imposed structural, social, and environmental variables are intimately connected to poor obstetric outcomes and high maternal and infant mortality rates among Black pregnancy-capable people. Efforts to diminish the effect of these variables include integrating screening for social determinants of health during the perinatal period and treating them with social services, mental health support, and other referrals, including connections to community-based resources. Although helpful, some of these social determinants cannot be overcome without legal advocacy. Medical–legal partnerships, which integrate lawyers into health care, fill this gap. This commentary by an interprofessional team of authors relies on …

Defragging Feminist Cyberlaw, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which alternately amplifies and abridges the feminist values of consent, safety, and accessibility. Cyberlaw simply hasn’t been understood that way—until now.

In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how feminist values …

Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan

Georgetown Law Faculty Publications and Other Works

Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive …

Resetting The Rules On Trade And Gender? A Comparative Assessment Of Gender Approaches In Regional Trade Agreements In The Context Of A Possible Gender Protocol Under The African Continental Free Trade Area, Katrin Kuhlmann

Georgetown Law Faculty Publications and Other Works

At long last, gender and trade are together on the international agenda, with significant implications for women entrepreneurs and traders around the world. Alongside the landmark 2017 Joint Declaration on Trade and Women’s Empowerment, regional trade agreements (RTAs) have taken the lead on more tangible gender commitments. One such RTA is the African Continental Free Trade Area (AfCFTA), in which gender appears as an express priority alongside sustainable and inclusive socio-economic development. Yet, this is only a starting point. A gender-focused protocol has been proposed under the AfCFTA framework, representing a significant opportunity to reassess RTA provisions on gender and …

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear. Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

Gender Mainstreaming In Trade Agreements: "A Potemkin Façade"?, Katrin Kuhlmann, Amrita Bahri

Georgetown Law Faculty Publications and Other Works

The distributional outcomes of trade agreements have historically been uneven, creating both “losers” as well as “winners” and benefitting certain stakeholders while leaving others without benefits or even with negative repercussions. In particular, distributional outcomes can vary between women and men, since they play different roles in society, markets, and economies, and they enjoy different opportunities as well. At times, and sometimes by their very nature, trade agreements can restrict opportunities for women and further increase the gender divide. But in recent years, there has been a drastic upsurge in the number of countries that are incorporating commitments on gender …

Supreme Court Ruling On The Texas Abortion Law: Beginning To Unravel Roe V Wade, I. Glenn Cohen, Rebecca Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In 2021, Texas enacted an abortion statute, SB8, stating “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” SB8’s prohibition applies broadly against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The law’s design is unprecedented, enforced solely by private lawsuits, providing damages of $10,000 or more for each abortion. SB8 prohibits government enforcement, with the explicit intent of preventing federal judicial review. SB8 clearly violates current Supreme Court precedent creating a constitutional right to …

The Social Psychology Of Inclusion: How Diversity Framing Shapes Outcomes For Racial-Ethnic Minorities, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Research on the efficacy of organizational diversity efforts has yielded mixed results. It remains unclear when positive or negative outcomes should be expected, and why. This article fills a gap in the sociological literature by examining critical social psychological mechanisms. In Experiment 1, I found that common diversity messaging led to increased bias towards racial minorities. In Experiment 2, I examined how alternative framing may influence these outcomes. Findings revealed that the common “business case” emphasizing profit and performance gains made decision-makers less likely to select a Black job candidate than emphasizing civil rights law. I then examined social psychological …

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa O. Singh

Georgetown Law Faculty Publications and Other Works

In summer 2020, mass protests spread across the globe challenging police brutality and racial injustice and demanding change. Fueled by the Black Lives Matter (BLM) movement in the wake of the police murder of George Floyd, these protests drew 15 million to 26 million participants in the United States alone to participate in late May and June of 2020. The sheer scale of these protests made them the largest movement in U.S. history. While there has been some consensus that this unprecedented protest movement pushed social awareness and changed the national conversation around race, existing research has yet to clearly …

The Supreme Court, The Texas Abortion Law (Sb8), And The Beginning Of The End Of Roe V Wade?, I. Glenn Cohen, Eli Y. Adashi, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Thirteen states have enacted so-called “fetal heartbeat” laws banning abortions once embryotic cardiac activity can be detected. Courts have enjoined their enforcement as unconstitutional. However, on September 1, 2021, the Supreme Court declined to block a Texas fetal heartbeat law, which virtually eliminates access to abortion services. Texas Governor Greg Abbott signed SB8 into law on May 19th, with an effective date of September 1st. The law essentially prohibits abortion after 6 weeks of gestational age, before most women know they are pregnant.

Texas’ fetal heartbeat law has a unique feature. It empowers private individuals to bring civil lawsuits not …

Maximizing #Metoo: Intersectionality & The Movement, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Although women of color experience high rates of harassment and assault, the #MeToo movement has largely left them on the margins in terms of (1) the online conversation, (2) the traditional social movement activity occurring offline, and (3) the consequential legal activity. This Article analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to fail women of color thirty years beyond Kimberlé Crenshaw’s initial framing of intersectionality theory. I discuss the weaknesses of the reform efforts and argue for more tailored strategies that take into account the ineffectiveness of our current Title VII framework and, …

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

In Search Of Equality For Women: From Suffrage To Civil Rights, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This article analyzes women’s rights advocacy and its impact on the meanings of gender equality during the period from the achievement of suffrage in 1920 until the 1964 Civil Rights Act. It teaches that one cannot separate the conceptualization of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that actively give it life. Social movements identify the institutions and practices that will be challenged, decisions that in turn determine which doctrinal issues will provide the raw material for jurisgenerative change. Without understanding a movement’s strategy and opportunities for action, one cannot know …

Reconstructing Liberty, Equality, And Marriage: The Missing Nineteenth Amendment Argument, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote …

Discounting Credibility: Doubting The Stories Of Women Survivors Of Sexual Harassment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited …

Building Bridges Across Curricular And Status Lines: Gender Inequity Throughout The Legal Academy, Kristen K. Tiscione, Melissa H. Weresh

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Gender Inequity Throughout The Legal Academy: A Quick Look At The (Surprisingly Limited) Data, Kristen K. Tiscione

Georgetown Law Faculty Publications and Other Works

The long-standing overrepresentation of female law faculty in skills teaching and service-oriented positions is well documented. In contrast, the historical underrepresentation of female law faculty in top dean and tenured or tenure-track teaching positions has been widely recognized but difficult to quantify. The American Bar Association has a link in the statistics archives of its website to a chart from Fall 2013 on the gender, ethnicity, and status of law faculty. The Association of American Law Schools (AALS) links to the same chart on its website. This chart replaced a similar chart covering 2008 to 2009 that the ABA has …

Diversity As A Trade Secret, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

When we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and …