Law and Gender Commons^™

In Search Of Best Practices On Gender Equity For University Faculty: An Update, Constance Z. Wagner

All Faculty Scholarship

This article updates the author’s earlier work on the search for gender equity among women faculty in the university setting in the United States. The author reflects on the fact that some of the literature in this area does not sufficiently address the challenges facing women of color. She seeks to fill the gap in her own research by referencing best practices discussed in three recent books on the professional lives of university faculty who are women of color. She argues that future work on best practices for achieving gender equity must address issues of intersectionality of race, gender, and …

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 …

A Damaging Cure: Queer Youth And Conversion Therapy

Florida A & M University Law Review

This article proceeds in six parts. Part I dissects the development of the conservative narrative that queerness is a contagious trait, how the gender norm perpetuates a broad rejection of homosexuality, and the concept of “cured passing” in terms of conversion therapy success stories. Part II examines the progression of the general LGBT rights movement by highlighting its historic adult-centered victories and elaborating how these victories allowed for the necessary space and momentum for the contemporary movement of state conversion therapy bans to gain traction. Part III provides the background and history of conversion therapy by exploring its medical origin …

The Female Body In The Workplace: Judges And The Common Law, Maritza I. Reyes

Journal Publications

If the common law serves to liberate women, everybody, including judges, should understand the role they do play and should play in the development of the common law. As a career law clerk in the federal courts, I witnessed the decision-making process inside the chambers of federal judges and in the courtrooms. I came to the conclusion that judges, more than statutory law, influence what happens to female bodies in the workplace. Litigants initially drive the common law by filing complaints. However, judicial decisions affect not only the litigants in their individual cases, they also serve as precedent for future …

The Pink Ghetto Pipeline: Challenges & Opportunities For Women In Legal Education, Renee N. Allen, Alicia Jackson

Journal Publications

The demographics of law schools are changing and women make up the majority of law students. Yet, the demographics of many law faculties do not reflect these changing demographics with more men occupying faculty seats. In legal education, women predominately occupy skills positions, including legal writing, clinic, academic success, bar preparation, or library. According to a 2010 Association of American Law Schools survey, the percentage of female lecturers and instructors is so high that those positions are stereotypically female.

The term coined for positions typically held by women is "pink ghetto." According to the Department of Labor, pink-collar-worker describes jobs …

Introduction, Deborah W. Post

Journal of Race, Gender, and Ethnicity

No abstract provided.

Unbowed, Unbroken, And Unsung: The Unrecognized Contributions Of African American Women In Social Movement, Politics, And The Maintenance Of Democracy, Patricia A. Broussard

Journal Publications

Black women have made huge contributions to American society in movements, politics, and maintenance of the democracy. Black women have been relegated to footnotes, turned in memes, and largely ignored in politics and other areas of power. Notwithstanding the disrespect, disregard, and failures of the larger society to acknowledge that black own have made significant contributions, not only in the in entertainment industry, but in numerous other ways that have shaped out cultural and political landscape, black women's contributions to the larger society have been huge and impactful; yet there are so many blank spaces where their stories should reside. …

Discrimination By Design?, Naomi Cahn, June Carbone, Nancy Levit

Faculty Works

Platform world is speeding the redesign of employment. Bricks-and-mortar firms once hired through narrow portals and then invested in the workers they hired, providing job security and predictable career ladders. Platform world flings the doors wide open to income-generating efforts, providing new opportunities but also offering security and predictable advancement to almost no one.

Other legal scholars have mined these same data for gender disparities; they have found disparities in the platform economy arising from customer biases and individual preferences, and manifested in men’s and women’s different experiences in everything from pricing plumbing services to fraud prevention. Neutral-appearing algorithms may …

Trump’S Angry White Women: Motherhood, Nationalism, And Abortion, Yvonne F. Lindgren

Faculty Works

A majority of white women — fifty-two percent — voted for Donald Trump in the 2016 presidential election. White working-class women supported Trump in even greater numbers: sixty-one percent of white women without college degrees voted for Trump. This result seems remarkable considering Trump’s derogatory statements about women and his staunch opposition to legal access to abortion. Why did white women, especially those most likely to need access to reproductive healthcare—poor and working-class women — vote heavily against their own interests to embrace a candidate who called for punishing women who access abortion? Much recent commentary has considered this question …

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …

Bias In The Boardroom: Implicit Bias In The Selection And Treatment Of Women Directors

Marquette Law Review

In light of the stagnation in growth of women directors on corporate boards, board diversity advocates and corporate leaders should look to the role implicit gender bias plays in the board nomination process and in challenges women directors face while serving on boards. Relevant stakeholders often overlook how implicit bias barriers prevent women from reaching the boardroom and persist as obstacles once women directors have earned their seats on the board. Incorporating social psychological research on implicit bias and recognized strategies to work around bias, such as objective assessments and guidelines, data analytics, and accountability mechanisms, this Article encourages companies …

The Parent Trap: Equality, Sex, And Partnership In The Modern Law Firm, Miranda Mcgowan

Marquette Law Review

The fight for women’s equality in law has achieved a lot. Women have

made up nearly half of law students and law firm associates for the last two

decades. Despite this progress, the partnership ranks of law firms are

profoundly and intolerably sex segregated and will remain so for the

foreseeable future. Our profession, which has fought for and helped to achieve

legal equality on behalf of so many, is itself dogged by intractable inequality.

A standard set of solutions, which address structural barriers within law firms

and the effects of cognitive biases, have been urged for decades and yet …

Abortion Talk, Clare Huntington

Michigan Law Review

Review of Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century America.

Transparenthood, Sonia K. Katyal, Ilona M. Turner

Michigan Law Review

Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or …

Attorney General V. Miaa At Forty Years: A Critical Examination Of Gender Segregation In High School Athletics In Massachusetts, Erin E. Buzuvis

Faculty Scholarship

Forty years ago, the highest court in Massachusetts ruled in Attorney General v. Massachusetts Interscholastic Athletic Association that the state constitution's newly-added equal rights amendment prohibited the blanket exclusion of boys from girls' athletic teams. The state’s constitutional law departed from Title IX, as well as that of other states, in providing a legal foundation for a wider selection of gender-integrated high school sports. However, most sports remain segregated by sex.

The Author opines that sport organizers in Massachusetts have missed an opportunity to provide students a more balanced menu of athletic opportunities that incorporate both sex-segregated and gender-free sports …

Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …

There Isn't Any Dumpster, Jill C. Engle

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Examining The Model Rules Of Professional Conduct To Include Women's Moral Experience And Feminist Ethics, Anietie Akpan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

I Now Pronoun-Ce You: A Proposal For Pronoun Protections For Transgender People, Erin E. Clawson

Penn State Law Review (2003 - Present)

Title VII of the Civil Rights Act protects employees from discrimination “because of sex,” which the Supreme Court found includes gender and sex/gender stereotyping. The circuit courts, however, are split on whether discrimination against transgender people is “because of sex.” In the circuits that extend Title VII’s protection to transgender people, the courts differ as to whether a claim must be based on sex stereotyping or based on a person’s status as transgender or transitioning alone. This issue was recently granted certiorari by the Supreme Court.

Not only do the circuit courts conflict but government agencies disagree on this matter …

Jurisliterature And Transgression, Peter Goodrich

Articles

The jurisliterary profession is the curious enterprise of writing, as a jurist, about law. Many seek to escape into literature, philosophy, critique, psychoanalysis, the couch, but then, in the main, they have abandoned law. Those that persist, who remain jurists, have the propensity to transgress the boundaries of the juridical, the strictures of abstraction and disembodiment, so as to generate accounts of legal sensibility, so as to manifest the polyglottal and visceral potential of transforming the juridical bubble into that most ethical of realms, the poetics of desire. Jurisliterary transgression, at its strongest, returns the materiality of imagination to the …

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

University of Richmond Law Review

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax—commonly called the “tampon tax”—represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …

Of Trauma And Power: Celebrity Sexual Misconduct Tribunals, Noa Ben-Asher

Faculty Publications

In fall 2018, shortly after his nomination to the United States Supreme Court, Judge Brett Kavanaugh was accused of sexual assault. That same year, Professor Avital Ronell was the subject of a Title IX investigation at New York University (NYU), where she served as chair of the Department of German. Both were harshly scrutinized in the court of public opinion. Within several months of each other, these two individuals, at the peak of their prolific careers, were investigated for sexual misconduct by non-judicial tribunals that would determine their fate. Both scandals appeared in the midst of the #MeToo era, during …

The "Pink Ghetto" Pipeline: Challenges And Opportunities For Women In Legal Education, Renee Nicole Allen, Alicia Jackson, Deshun Harris

Faculty Publications

The demographics of law schools are changing and women make up the majority of law students. Yet, the demographics of many law faculties do not reflect these changing demographics with more men occupying faculty seats. In legal education, women predominately occupy skills positions, including legal writing, clinic, academic success, bar preparation, or library. According to a 2010 Association of American Law Schools survey, the percentage of female lecturers and instructors is so high that those positions are stereotypically female.

The term coined for positions typically held by women is "pink ghetto." According to the Department of Labor, pink-collar-worker describes jobs …

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Faculty Publications

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and …

California Dreaming?, Darren Rosenblum

Faculty Publications

Over the past few years, California became the setting for shocking tales of sex inequality and abuse in Hollywood and Silicon Valley. Decades after women achieved educational parity, men still run the corporate world. In response to these stories exposed by the #MeToo movement, California joined the transnational corporate board quota movement by converting its voluntary quota into a hard one. Will California’s first mover status overcome constitutional objections and inspire other jurisdictions to act. Or is just utopian dreaming, California-style? This Essay argues that despite its many flaws, the quota may succeed in curbing male over-representation on corporate boards. …

Kill Or Be Killed: Why New York's Justification Defense Is Not Enough For The Reasonable Battered Woman, And How To Fix It, Abigail Finkelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that New York's justification defense statute is insufficient to protect battered women who kill their abusers, as it requires an imminent threat and proportionality, which are often not applicable in intimate partner violence (IPV) cases. The author proposes amending the statute to include a broader understanding of domestic violence patterns, allowing victims to justify their actions based on the escalating nature of abuse rather than immediate danger.

They, Them, And Theirs, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But …

The Rules Of #Metoo, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a car seat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have …

The Seeds Of Early Childhood, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The trajectory of childhood is often shaped before childhood even begins. Pre-birth inequalities are not natural or inevitable. Rather, we create and cement policy choices that reduce access to adult healthcare, restrict accessible contraception, impede access to abortion, and deny prenatal care. Together, these choices mean that, in the United States, we maintain very high rates of unwanted pregnancy and increasingly high rates of maternal mortality and morbidity, burdens that fall disproportionately on women of color and women of lower socioeconomic status. Equality demands that we address these disproportionate burdens.

Women Are (Allegedly) People, Too, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.