I've already written about some of the books I'm looking forward to reading this spring, such as Robert Ferguson's Inferno: Anatomy of American Punishment and John W. Compton's The Evangelical Origins of the Living Constitution. Both of those will be published by Harvard University Press in the spring. I now want to branch out to Cambridge University Press' spring list and talk about Sarah N. Roth's expansive volume, Gender and Race in Antebellum America. Cribbing now from the CUP website:
In the decades leading to the Civil War, popular conceptions of African American men shifted dramatically. The savage slave featured in 1830s' novels and stories gave way by the 1850s to the less-threatening humble black martyr. This radical reshaping of black masculinity in American culture occurred at the same time that the reading and writing of popular narratives were emerging as largely feminine enterprises. In a society where women wielded little official power, white female authors exalted white femininity, using narrative forms such as autobiographies, novels, short stories, visual images, and plays, by stressing differences that made white women appear superior to male slaves. This book argues that white women, as creators and consumers of popular culture media, played a pivotal role in the demasculinization of black men during the antebellum period, and consequently had a vital impact on the political landscape of antebellum and Civil War–era America through their powerful influence on popular culture.
I had the chance to read an earlier draft of this book and I have to say that I'm really excited to see the final version. She talks about a lot of literature that I'd never heard of -- including some outrageously proslavery science fiction and some other really obscure work. This will expand dramatically the sense of antebellum fictional literature. Though Roth's interest is largely in the fictional literature of both the anti-slavery and the pro-slavery sides, I think the dramatically changing images of men of African descent can be very readily and profitably applied to the judiciary. (The short version here is that in the 1820s/1830s enslaved men were depicted as savages by both anti-slavery and proslavery literature. That shifted in the 1840s and 1850s as abolitionists depicted enslaved men (and other men of African descent) as people deserving citizenship. The proslavery forces responded to that critique by accepting -- largely -- that men of African descent were not savages. The proslavery forces replaced that with an image of enslaved people generally as happy and child-like, not vicious and rebellious.)
What interests me is that this framework correlates with what was happening in state legislatures and also in the judiciary. I want to look closely at cases where judges discuss slaves' character -- such as cases involving torts by slaves against white people and against each other, cases invovling slaves' rights to freedom following travel in free states and because of the wills of their owners, and even criminal prosecutions. Based on some as yet unscientific looks at judicial opinions I think that southern judges were talking in similar terms to Roth's subjects about slave personality over the period 1830 to the mid-1850s. (And I think this follows, generally, academic thought, too. On this I'm going to have a lot more to say right soon.) But one thing that I notice in particular is that as the Civil War approached -- like in the late 1850s -- southern judges were talking again in dramatic terms about men of African decsent as savages. That is, as they prepared for war the talk turned -- unsurprisingly -- to enslaved men as savages who had the power to wreck havoc and maybe even destroy the white slave-owning south. Justice Harris' viciously proslavery opinion in Mitchell v. Wells in 1859 is an example of this. I'd like to write an essay about this once the book comes out, because I think this is a very good way of thinking about the sine curve of proslavery southern thought, 1830 to 1860, especially in the judiciary.
But that's dealing really with only a part of Roth's book; the majority of it is focused on the depiction of enslaved men in antislavery literature. One thing that I like about this -- and I should also say I find bold (or maybe brave is a better word?!) -- is the sense that white women were not just gauges of changing attitudes towards enslaved men, but their widely-read literature helped change the dominant image of them. That is, white women in particular helped free enslaved men. This is certainly true to some extent -- Harriet Beecher Stowe is a key person here. (I've written some about her assessment of jurisprudence and I think it a fairly easily supported case that she not only critiqued law but helped change attitudes towards it. Caleb Smith's written about this too, of late.) The key question is just how much the independent variable of antislavery fictional literature produced by white women contributed to the the multiple regression equation that explains the huge change in our nation's attitudes towards enslaved people (and men in particular). On this I suspect there will be a very lively debate coming soon to the history journals.
And with that I'll say happy new year!
The illustration is a print of the Nat Turner rebellion, which is from the early era of Roth's study, when enslaved men were depicted as savages.
The AALS Section on Women in Legal Education is pleased to open nominations for its second Lifetime Achievement Award. Last year, the inaugural award honored Justice Ruth Bader Ginsburg for her remarkable impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profesison.
The purpose of the Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.
The Section is seeking nominations for this most prestigious award. Please submit your nomination by filling out this electronic form by November 8, 2013. Please note that only nominations submitted via the electronic form by the deadline will be accepted.
Please email Dean Cynthia Fountaine, chair of the Lifetime Achievement Award Subcommittee if you have any questions or difficulty with your online submission.
Now that I'm back from Oklahoma City University's conference, "trusts and estates meets gender, race, and class," I want to talk a little bit about it. Carla Spivack organized it to get a bunch of us who've been working in what I think of as "progressive trusts and estates" together. The core idea with this group -- I think -- is that we want to do things differently. Differently in terms of pedagogy and scholarship. The pedagogy discussion was terrific -- and pretty well advanced. Unsurprisingly trusts and estates faculty have a lot of ideas for integrating exercises like client interviewing and drafting into the basic course in ways that seem both useful and doable.
And on the scholarship side there were some terrific papers as well. Bridget Crawford and Tony Infanti -- who have helped organize the critical tax scholars -- framed the day's discussion with a look at recent literature in trusts and estates and some of the open questions. Casey Ross-Petherick gave a really surprising look at the American Indian Probate Reform Act (a statute about which I knew nothing). Stephen Clowney talked about his work on monuments. Friend of the blog Kent Schenkel spoke about a really intriguing question -- how the repeal of fee tail fits (or doesn't) with Americans' love of property that was so apparent around the time of the Revolution. I hope to speculate some more on this when he posts his paper to ssrn. My co-author Deborah Gordon spoke about expressions of inheritance and devise outside of the context of wills (what she calls letters non-testamentary). This builds on her previous work on language regarding death. And there was a lot of talk about wealth inequality and how that's grown over time.
I rolled out the first version of my paper on trusts for slavery and freedom -- that is, the use of trusts to keep slaves out of the hands of creditors, to manage them, and even sometimes to provide them with quasi-freedom. There's no telling how legal technology is going to be used. (Here's an audio file of my talk if you're interested. I'm looking forward to working this up in substantially greater detail and to rolling out a lot more data on both the appellate cases regarding slaves in trust and the view from the county probate offices, too.)
Over the next few weeks I hope to talk in depth about a bunch of the papers.
For fans of the "Missed Connections" genre on Craig's List, this gem:
The scene: 4:30 pm Friday, intersection at American Blvd and 34th Avenue.
You: Middle-aged, dark hair, tan skin, driving a green SUV * * *
Me: 20s, blonde hair, black fitted dress, gladiator sandals and waiting at the intersection to catch the lightrail. * * *
So, that's where we were. Me, minding my own business. You, apparently observing my ass. At that point you had options. You could have driven past me and said nothing. You could have turned up your radio and waved, ensconcing us in some beats and camaraderie. You could have shouted out, "Happy Friday! Yeehaw!" Any of those options would have been great. I probably would have waved, smiled, and started my weekend on the same high note as you.
Instead, you chose the most pathetic option available to you: You leaned out of your window and made some ridiculous series of leering comments about whether I was wearing a thong, right as the light changed and you peeled off, pleased with yourself and saved from any consequences. * * *
Let me make this abundantly clear, to you and to the other men reading this: when you comment on a woman's appearance, you are not doing it for her. You are doing it for you. It's not some great way to make a woman feel sexy and appreciated. It's not flattery, even if you mean for it to be. The only thing it is is a great way for you to create a shitty power dynamic, by which you have announced yourself as the arbiter of her value, and you've deemed her fuckable, and she is supposed to be happy or impressed by that.
If you really find a woman beautiful, don't choose the juvenile selfish route that makes her feel weird and you look like an asshole. Just take a deep breath, commit the image to memory, and get on with your life. Or, if it's really that great of an ass that you can't possibly survive without commenting on it, post about it on CL missed connections after the fact and let her decide what to do about it.
Read the full post here.
My favorite line? "Just take a deep breath, commit the image to memory, and get on with your life."
[This post falls squarely in the “[pop] culture” portion of TFL’s “law, culture, and academia” mandate. Regular programming will resume in due course.]
Hi Gloria. Can I call you Gloria? I understand that you were displeased by the duet performed by your son and Miley Cyrus (as you know, your boy shows up at the 3:00 mark) at the MTV VMA awards Sunday evening.
Specifically, you said:
I was not expecting her to be putting her butt that close to my son. The problem is now I can never unsee it. . . . Him? Loved it! I love that suit, the black and white suit. I don’t understand what Miley Cyrus is trying to do. I just don’t understand. I think she’s misbegotten in this attempt of hers. And I think it was not beneficial.
Gloria, I’m confused about your confusion. I mean, look, the whole obscenity concern trolling thing isn’t my bag. VMA has been doing this for years, and if you wanted to see something else, well, that’s what they have C-SPAN for. But hey, you’re certainly free to know it when you see it. Obscenity, that is.
What I don’t get is why you see it in Cyrus but not in your own son.
To be fair, it’s not just you. All the commenters I’ve seen, from Sean Hannity (“outrageous,” “downright raunchy,” and “inappropriate” for a role model) and Bill O’Reilly (“she’s a troubled young lady” and “out of control”) to Camille Paglia (whose focus is on the philistine rather than the obscene nature of the routine) have reserved their criticism for Cyrus.
A mommy blogger’s open letter to her daughter, warning her not to follow in Cyrus’s footsteps, has gone semi-viral. But not a single Mommy blogger has warned her son against following in your son’s footsteps.
To no one's surprise, Bill O’Reilly blames Cyrus’s twerking on “bad parenting,” and after Miley’s father, country singer Billy Ray Cyrus, defended his daughter, O’Reilly asked whether he should be “shunned.” Even Brooke Shields, who played mom to Cyrus’s Hannah Montana, felt the need to weigh in and demand answers: “I was Hannah Montana’s mother. I do not approve. Where did I go wrong? I just want to know who’s advising her, and why it’s necessary?” (By contrast, Shields remains “shocked” by the controversy over her own performance in the infamous “You wanna know what comes between me and my Calvins? Nothing.” ad campaign, which she shot when she was just fifteen years old (Cyrus is twenty), and which was banned by CBS.)
And yet no one blames you, Gloria, for raising a son whose music and videos are—in addition to being just as "obscene" as Cyrus’s (and just as arguably misappropriating of black culture and glorifying of drugs)—kinda rapey. Following the VMA hoopla, Cyrus's father canceled a scheduled interview with Piers Morgan at the last minute. But free from the burden of having to defend your parenting and your child, you can grant media interviews in which you accept the condolences of a shamed nation and join the #MileyGate pile on. It’s all a little reminiscent of Justin Timberlake, whose image was only barely and very temporarily tarnished by the “wardrobe malfunction” of Janet Jackson (remember her?), which he, too, apparently helped orchestrate. I don’t personally care about either Cyrus’s butt or Janet’s nipple, Gloria. But I am annoyed by the double standard involved in criticizing the female but not the male co-venturers in these manufactured controversies—the twerkers but not the twerkees, if you will—which is why I'm writing. (More after the jump.)
In this series of posts, I’ve been detailing some of the ways in which the gender undertones of the Yellen-versus-Summers-for-fed-chair debate resemble discussions we've heard about corporate board diversity. In this wrap-up post, I want to return to a theme I mentioned in my first post – the criteria that the Obama administration says will dictate the choice, which will not include gender, but will include the President’s comfort with the candidate, how well he believes he or she will do the job, and how successful the new chair will be in dealing with the market and with Wall Street.
But these criteria, depending as they do on subjective assessments, may not be separable from gender, which is rather the point made by some of Yellen’s supporters when they label Obama’s economic policy team a boy’s club. And this, at bottom, is part of the tension we have noted in the board diversity debate. In neither case –the fed chair nor the corporate boardroom -- is anyone arguing that more-qualified men should be passed over for less-qualified female candidates in the name of “diversity.” But in the contest for fed chair, at least, most seem to agree that both candidates are highly qualified for the job. (Though, as always, some believe one candidate is more capable than the other). As former Obama administration economist Jared Bernstein describes it: “It’s an embarrassment of riches. . . .He’s weighing who would do the best job at a sensitive time, and the differences here are nuanced.”
And those nuances are, I assume, what concern some of Yellen’s supporters, because they often involve the type of subjective criteria that our respondents sometimes refer to as “fit.” Do incumbent directors and the CEO click with the new candidate? Have any of them worked with him or her in prior positions and developed a relationship (or not)? And similarly, whom does the President (or his economic advisors) trust and feel comfortable with? Who does “the market” favor?
The tension here, it seems to me, is that these assessments may not be gender neutral, and yet at the same time are not irrelevant to the selection process. It really is important that a group work well together and have confidence in each other. It really does matter whether key constituencies have confidence in the selection. And separating proper from improper reasons for discomfort with a candidate is not always easy.
In the boardroom context, our respondents emphasized the importance of collegiality and consensus in the board’s interactions with the CEO. Indeed, this relationship is so important that many of our respondents characterized the role of the CEO in selecting board members as something approaching a veto power, despite recent corporate governance interventions that emphasize the board’s independence from the CEO.
As stated by one white female director:
A: And the way we did [director selection] is the CEO and I interviewed the candidates together . . . And I think if the CEO truly disliked the person we wouldn’t go forward because you don’t want to do that. You want good chemistry. You’ve got to be focused on the end game. What do you want to occur? Do you want to have better results than you would have had before? And say if you’ve got at the very beginning the CEO doesn’t like how someone combs their hair, you’re probably better off to go find someone else. But, if you’ve got the CEO trying to veto everything because it’s another strong CEO and they just don’t want to deal with the person, that’s a different scenario. (emphasis added)
Another white female director emphasized the same point:
Q: What role do the CEOs now play in board selection?
A: They’re in there, but they’re not the sole source any longer, in most companies that I’ve been engaged with. I think they’re still. . .
Q: Do they have a blackball?
A: Probably they could veto, yeah. I’ve not seen it happen, but yeah, I think so. But it’s not...Well, I should . . . It’s not that they choose the board members the way—in this clubby fashion that used to go on, but I think they all would like to. Well, their opinions count, but you need more opinions than just the CEO’s opinion. And I think that’s far more commonplace, even in smaller companies, than it used to be.
Perhaps not surprisingly, given these statements, nearly all of our respondents cite the "tone at the top" -- i.e. the CEO's commitment to a diverse board -- as the primary driver (or, in some cases, impediment to) board diversity.
That’s it on this topic for now. Thanks for reading!
In this series of posts, I’ve been detailing some of the ways in which the gender undertones of the Yellen-versus-Summers-for-fed-chair debate resemble discussions we've heard about corporate board diversity. In my last post, I noted that a common rationale put forward in favor of corporate board diversity is the avoidance of groupthink and an ability to facilitate board independence through countering the insularity and “sameness” that can characterize some boardrooms. Yet, this supposed role of diverse directors is in some tension with two other strong narratives that emerge from our interviews: (1) the importance of collegiality and getting along in the boardroom and (2) the efforts undertaken by female and minority directors to fit in and conform to the prevailing boardroom culture – in short, to behave like, and be accepted on the same terms as, any other board member.
In today’s post, I want to elaborate on those efforts. Recall, first, the statements by Christina Romer, former chief of the White House Council of Economic Advisers under Obama, on the difference between formal inclusion and real influence:
“I was always officially where I should be,” Ms. Romer said of her White House experience. “When there was a quick meeting on the phone, or the side meeting, that’s when you felt like maybe business was being done or maybe I was being left out of things.”
Recall also that some of the concerns about Yellen (expressed through what Ezra Klein has labeled a “sexist whispering campaign against Janet Yellen”), have to do with her style, which has been labeled not “tough,” lacking “gravitas,” too “soft-spoken,” and “passive.” There is concern that she may not be able to handle the inevitable tough fights with Congress.
In our recent article, The Danger of Difference: Tensions in Directors’ Views of Corporate Board Diversity, Lissa Broome, John Conley, and I discuss the efforts of our respondents to look, speak, and behave like a director. All directors, regardless of race or gender, take pains to “perform” the social role of director, in the sense of presenting oneself in a way that is appropriate to time, place, and audience. Directors thus give careful thought to the way in which their questions, comments, behavior, and even their dress are perceived by other board members.
Though all directors gave some thought to the performance of their social role of director (especially when new to board service), female and minority directors were especially likely to report working hard at managing the impressions of other board members, putting colleagues at ease, and fitting into the boardroom environment. (In fact, our forthcoming book on this topic dedicates an entire chapter to the use by female directors of sports –playing, watching, and discussing – as a means to build rapport with board colleagues).
To illustrate, one white female director spent years adjusting to the male-dominated culture of one boardroom:
A: Right. But I’ll tell you something else. It took me several years to be comfortable at this board, partly because it was—the culture was so male—not just male dominated, but a particular kind of culture, and because I didn’t know it.
An African American female director gave a particularly detailed account of her successful efforts to gain the trust and acceptance of her new board colleagues:
A: [I]n being on the board at [company name], I’ve consciously forced myself out of my comfort zone because I knew I had to know these people and learn who they are and interact with them and so after the conclusion of the board meetings, I found myself looking around and I was saying, why am I always the last person here and that was a conscious decision that I had made. I hung around and I talked to people and got to know them, and that paid off because they felt comfortable with me. They felt comfortable calling me up and saying, “let me bounce something off of you.” They felt comfortable saying, “I’m going to sit beside [name of respondent] at the meeting today,” and so that may be my biggest success on that board, was letting them know who I was and letting them know we’re all on the same team, and I wasn’t that student who always raised my hand. I knew the answer. . . .
I would get there early because I realized that some of them got there early. If the meeting started at two, they were there at twelve. So I started coming early and have lunch with them in the cafeteria, so I kind of developed my little group. I knew they were going to be there, and I would sit at the table and talk with them and understood what the rituals were. Then they would all go to another little area and read the papers and sit and talk. And so you talk about— you have a board meeting, but then they go out to the parking lot and talk. I began to understand that decisions were not only made in the board room, but they’re made somewhere else, and so if I hadn’t stepped outside of my comfort zone, I would never have known that. (emphasis mine)
Notice, however, that this acceptance as part of the group came only with time, and only after continued efforts from our respondent. Though the other directors made no overt attempts to exclude her, neither did they inform her of unofficial group norms, such as arriving early to lunch together, despite the fact that informal board business sometimes occurred during these gatherings:
Q: But nobody came up to you and said, “Hey, [identifying director information], come a little early next time because we have lunch in the [company cafeteria]?”
A: Uh-uh. They didn’t. . . . Then after a couple of times they began to look for me, and we’re going to lunch, and so we had our table that we sat at and so I just kind of learned how to click with the group.
Q: Have you done that your whole life, worked hard to fit in to whatever group you’re in?
A: I have.
I’ll be back with some final thoughts in my next post.
In my last post, I discussed the Yellen-Summers Fed Chair debate and noted that the discussion bore many similarities to the corporate board diversity debate. Let me outline just a few of those similarities here. For example, many critics point to the “insular” and “clubby” nature of the Obama White House and to its economic policy positions, in particular, which are held by “a small, close-knit group of men who have known one another since the Clinton administration, if not before.” This, according to sources quoted in the New York Times leaves Janet Yellen (along with other women) “on the outside looking in.”
It probably will not surprise most readers to learn that the corporate boardroom is frequently described in similar terms, even by those who are a part of the club. Indeed, countering this very insularity is a common rationale put forward in favor of boardroom diversity. As Lissa Broome, John Conley, and I discuss in our article recently posted to SSRN -- The Danger of Difference: Tensions in Directors’ Views of Corporate Board Diversity -- our respondents frequently asserted both the avoidance of group- think and an ability to facilitate board independence as rationales in favor of race and gender diversity. Yet, as we note in the article, these rationales are in some tension with our respondents’ even more frequently asserted contentions that boards must get along with both each other and senior management, be collegial, and avoid confrontation.
For example, one respondent, a proxy advisor with substantial experience in board and corporate governance issues, told us that most of the investors whom his company advised did not take board diversity seriously, as they did not believe it improved shareholder value. Among those that did, however, the most important reason was likely the avoidance of groupthink:
A: I think people know especially on the risk side that whenever you get anything involving sort of groupthink, everybody in the room having the same background, group of experiences and so forth that that is an absolute breeding ground for risk, for problems to occur. . . . and I think by and large the folks that believe that diversity is important put a very high value on it for that exact reason that they think this creates greater, frankly, psychological independence in the board room. It creates more viewpoints in the board room and that leads to better decision making I think, and I think that’s a change from certainly fifteen or twenty years ago— when I think it was purely viewed in terms of sort of social equity issues about increasing participation by women and minority group members on boards of directors—and I don’t see that as much today.
I think the arguments in favor of board diversity are much more sophisticated today, and that we’re really talking about trying to help boards to provide stronger oversight. We’re trying to help boards to eliminate the possibility of groupthink I think.
Yet, this supposed role of diverse directors is in some tension with two other strong narratives that emerge from our interviews: (1) the importance of collegiality and getting along in the boardroom and (2) the efforts undertaken by female and minority directors to fit in and conform to the prevailing boardroom culture – in short, to behave like, and be accepted on the same terms as, any other board member. This “fitting in” is a task on which many of our respondents report spending substantial time and effort.
In my next post, I’ll describe those efforts in more detail.
In recent debates about the relative merits of Janet Yellen versus Larry Summers for the job of Fed Chair, one of the more interesting aspects to me has been the gender issues that very quickly rose to the fore. Sometimes those issues are explicit, such as when Ezra Klein mentions the “sexist whispering campaign against Janet Yellen,” or when Binyamin Appelbaum and Annie Lowrey in a New York Times headline reference the “gender undertones” of the debate.
Other times they are more subtle. For example, while not explicitly tied to gender, many point to the “insular” and “clubby” nature of the Obama White House, where influential economic policy positions are held by “a small, close-knit group of men who have known one another since the Clinton administration, if not before.” Janet Yellen (along with other women, according to this narrative) is “on the outside looking in.”
I find statements like those of Christina Romer, former chief of the White House Council of Economic Advisers under Obama, even more interesting. Romer elaborates on the difference between formal inclusion and real influence:
“I was always officially where I should be,” Ms. Romer said of her White House experience. “When there was a quick meeting on the phone, or the side meeting, that’s when you felt like maybe business was being done or maybe I was being left out of things.”
Yellen and Summers also have stylistic and ideological differences that can be perceived as gendered. For example, Yellen (and, according to former Administration officials, other senior female economic policy officials) are further to the left than the Rubinites. Yellen is considered more focused on unemployment than is Summers, which I suppose could translate somehow into “touchy-feely.” And, Yellen isn’t “tough,” lacks “gravitas,” is too “soft-spoken,” and “passive.” She may not be able to handle the inevitable tough fights with Congress. Whatever criticisms one might throw at Summers, a lack of toughness isn’t likely to make the list, though it is notable that Ben Bernanke is typically described in terms more similar to those used to describe Yellen than Summers – a soft-spoken consensus builder.
Naturally, the Obama administration denies that gender would play any role in selection of the fed chair. The determining factors will instead be the President’s comfort with the candidate, how well he believes he or she will do the job, and how successful the new chair will be in dealing with the market and Wall Street. (a point to which I’ll return later)
This debate has intrigued me because it bears so many similarities to discussions we have heard about corporate board diversity. Corporate boards remain, despite some recent progress, overwhelmingly male (and white, though that isn’t particularly relevant to this post). Moreover, they are frequently characterized as insular, clubby, and cloistered, even by those who are a part of the club and even when that club includes board members that bring racial and gender diversity to the table.
In later posts I’ll elaborate on these similarities between the Yellen-Summers debate and the dialogue surrounding board diversity. Be back soon . . .
The AALS Section on Women in Legal Education will hold a program, New Voices in Gender Studies, during the AALS 2014 Annual Meeting in New York City. They are soliciting papers now. From the CFP:
Submissions should be of scholarship relating to: (1) women in legal education; (2) any aspect of women’s or men’s relationship to the law; or (3) gender, sexuality and the law. There is a maximum 30,000 word limit (inclusive of footnotes) for the submission. Since this is a paper presentation opportunity, and not one for publication, submitted papers can be committed for publication prior to their submission, but cannot be actually in print prior to their submission. Each professor may submit only one paper for consideration.
Full-time faculty members of AALS member and fee-paid law schools, who have been teaching seven (7) or fewer years as of August 1, 2013, are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible. Faculty members who have presented their papers during previous New Voices in Gender Studies programs are also ineligible.
Papers will be reviewed anonymously. The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.
To be considered, papers must be submitted electronically to Professor Wendy Greene, Samford University’s Cumberland School of Law, at firstname.lastname@example.org. The deadline for submission is Friday, August 30, 2013. Authors of selected papers will be notified by September 28, 2013. Call for Paper participants will also be responsible for paying their annual meeting registration fee and travel expenses.
Papers will be selected after review by a sub-committee composed of Section on Women in Legal Education members. This is a wonderful showcase for junior scholars’ work on gender and women’s issues; therefore, if you have been teaching for seven (7) or fewer years, please consider submitting a paper.Any inquiries about the Call for Papers should be submitted to: Professor Wendy Greene, Samford University’s Cumberland School of Law, 205. 726. 2419 or email@example.com
A new development in the Baby Girl case has occurred--namely, the attempted adoption of the child by her biological father and stepmother and, alternatively, her paternal grandparents. More information is availiable here. This is something that Justice Sotomayor predicted could happen in the case, given that ICWA mandates placement preferences for adoption of Indian children that include the child's extended family. Slip Op. at 25.
The case remains troubling to me in a number of respects, most importantly its exceedingly narrow interpretation of ICWA. I also remain concerned, as I noted earlier, that sub silento termination of unmarried fathers' rights, as is allowed under South Carolina law, conflicts with the equal protection clause. Finally, I'm skeptical of the Majority's notion of abandoning children "in utero." Slip Op. at 16; see also Slip Op. at 2. I fully acknowledge that it can be harmful and distressing for a pregnant woman to be deserted by her partner, and that this can harm the child who is later born, but I am not sure that that is the same thing as abandoning a child. It seems to me that it may be necessary to assume a pro-life stance to get to this conclusion (although I think a parent's actions during pregnancy should certainly be relevant in a later proceeding regarding parental rights).
As much of the Indian law community holds its breath waiting for the Supreme Court to decide the so-called Baby Veronica case, I’ve been thinking about an issue that’s not raised at all before the Supreme Court and that doesn’t seem to have been raised below (although the lower court materials in South Carolina state court remain confidential), namely, shouldn’t a law that allows a newborn to be adopted without the unmarried father’s consent be interpreted as a violation of equal protection?
For those of you unfamiliar with the case, here’s a quick recap on its facts. Bio mom and dad date on and off for years, become engaged, and then the mother becomes pregnant and breaks off the engagement. The father is a member of the Cherokee Nation. Through a text message shortly after the break-up, the father agrees to “relinquish” his rights to the mother. The mother then secretly decides to put the child up for adoption, and through a Christian adoption agency, picks the adoptive parents. She has the child without notifying the father (indeed instructing the hospital to keep her presence there a secret). The adoptive parents reside in South Carolina, and South Carolina law does not grant unmarried fathers in these circumstances a say in the adoption unless they have lived with the child or his or her mother for six months preceding the adoption or they have provided “a reasonable sum” for support or expenses. S.C. Code 1976 § 63-9-310. However, the Indian Child Welfare Act (“ICWA”), which applies here because the child is the biological child of a tribal member and is herself eligible for tribal membership, 25 U.S.C. § 1903(4), recognizes the rights of unmarried fathers as long as their paternity has been acknowledged or established. 25 U.S.C. § 1903(9). Pursuant to ICWA, mother’s attorney attempts to inquire into the father’s membership status through the Cherokee Nation, but the father’s name is spelled wrong and his birth date is listed incorrectly, so the Nation is unable to verify that he is a member. The father is finally served with adoption papers just before he is to be deployed, and at that point begins to contest the proceedings, as does the Cherokee Nation. He eventually ends up with custody of his daughter under rulings of the South Carolina courts. The case is now before the Supreme Court, and the adoptive parents are painting ICWA as racist and claiming that the ruling will bar any interracial adoptions of Native children.
There are strong responses to these arguments. For one, Indian status, especially when based on tribal membership, has long been considered political rather than racial. Additionally, an important thing to understand about ICWA is that it was enacted to remedy decades and decades of assimilationist (and arguably genocidal) policy, which encouraged forcible removal of Indian children from their parents and cultures allegedly for their own betterment. The legacy of that policy continues even today--Indian children continue to be removed from their families in many states at much higher rates than other children.
But what has been bothering me most about the case lately is the South Carolina law. Given that young men cannot be denied the privilege of drinking low-alcohol beer based on their gender, Craig v. Boren, 429 U.S. 190 (1976), why should they be so easily denied their parental rights based on their gender? And yet the Supreme Court affirmed a similarly harsh rule in a different context fairly recently. In Nguyen v. INS, 533 U.S. 53 (2001), the Court affirmed a law that made it much more difficult for a non-marital child born outside the U.S. to claim citizenship through an American father than through an American mother. In affirming the law and upholding the adult child’s deportation, the Court noted that its decision was based “on the significant difference” between each parent’s relationship to the child at the time of birth and noted that male and female biological parents are not “similarly situated to each other with regard to the proof of biological parenthood.” While the latter statement is undoubtedly true, I still don’t see how it justifies placing the types of formal, affirmative obligations on fathers that the Court has allowed as a pre-condition to their taking advantage of parental rights, particularly in cases where the father’s parentage is uncontested. For one, having a child is something that can just happen to a person. I can’t imagine an ordinary unmarried father’s first thought would be to go out and file a form claiming paternity, as some states require. See, e.g., Lehr v. Robertson, 463 U.S. 248 (1983) (upholding New York law that gave putative fathers the right to notice of adoption only if they mailed a postcard putative father registry). And, when the adoption occurs just after a child is born, as in the Baby Veronica case, how the father-child relationship will develop remains unknown, particularly in this case, where the birth was sandwiched between an acrimonious break-up and a military deployment. To say, as South Carolina does, that unless very specific requirements are met within a short timeframe, the father lacks any rights, seems patently unfair.
Finally, although the issue isn’t raised here, the case seems to me to be another illustration of the impoverishment of formalistic equal protection analysis. In Geduldig v. Aiello, we see the Court basically saying pregnant women are not like men, so they aren’t entitled to the benefits in the workplace that men have. In the unmarried father cases, we sometimes see the Court saying fathers aren’t like mothers, so they aren’t entitled to the same rights. But see Caban v. Mohammed, 441 U.S. 380 (1979). In work, the norm is male, but in unmarried father cases, the norm tends to be female. The problem is that individuals should be entitled to basic equal protection rights even when biology—or the social construction of gender or race—prevents them from being similar to the favored group in every significant respect.
For all who have attempted to read Judith Butler and found her writing a bit, ahem, obscure, writer Chelsea Clammer has a funny essay called "Li'l Butler" over at the Doctor T.J. Eckleburg Review. She reads Butler side by side with lyrics from Lil' Wayne: "[H]ere I am, reading the grammatically challenging quality of Butler’s work while listening to Lil’ Wayne get all creative about power, sexism, and oppression, and by god—it happens. I read Butler, I hear Lil’ Wayne, and now the two of them are call-and-responsing to each other in my mind...."
Clammer imagines the results in a faux "syllabus" for a class on "Feminist Theory and Misogynistic Rap Mash-up 101":
On the subject of grief and broken relationships:
Judith Butler says, “Let’s face it. We’re undone by each other. And if we’re not, we’re missing something….One does not always stay intact.”
That sounds depressing. But Lil’ Wayne sure does know how to incorporate the notion and idea of grief into his life in a positive way, “Got the girl twisted...."
On the subject of longing:
Judith Butler says, “Love is not a state, a feeling, a disposition, but an exchange, uneven, fraught with history, with ghosts, with longings that are more or less legible to those who try to see one another with their own faulty vision.”
Ooookay. Now, Lil’ Wayne, I ask of thee, how do we acutually see each other, but more importantly how do we deal with our longings?
Lil’ Wayne jumps in with, “Had my heart broken by this woman named Tammy...."
On the subject of power and opressive hierarchies:
Judith Butler tells us that, “To operate within the matrix of power is not the same as to replicate uncritically relations of domination.”
Holla back, Lil’ Wayne. How do you think we can navigate power relations—such as the domination of the wealthy over the poor and how the “esteemed” white race is always acting like they own the place?
He says, “No matter who’s buyin’, I’m a celebration. Black and white diamonds, f*ck segregation.”
And to those impeccably brilliant explanations, I say, word.
The asterisks are mine, not Clammer's. Lil' Wayne lyrics more robust (!) without the elipses. Read Clammer's full piece here.
My Twitter feed is filled with outrage over a New York Times obituary. Science writer extraordinaire Ed Yong (whose excellent National Geographic blog happens to be called Not Exactly Rocket Science) started it off by tweeting:
Rocket scientist dies. NYT obit leads with her cooking skills, husband and kids. Oh just [f@!*] off.
That tweet has, as of this writing, earned 732 retweets (and an additional 140 favorites). In case Yong’s objection wasn’t clear from his tweet (or from the obit itself), here’s another version, from someone else responding to Yong:
Lesson to women scientists: even when you’re totally badass, you will be remembered for "following your husband from job to job"
Later, co-science writer extraordinaire Steve Silberman (who tipped Yong off to the obit in question) tweeted to Yong:
Notice we’re in the middle of a social science experiment? People enraged about [Yong’s tweet critiquing the obit]: male. People who got it: female.
In an effort to distinguish myself from my soon-to-be-90-year-old father-in-law, I try to spend as little time reading NYT obits as possible. So I hadn’t seen it. But after reading these and many, many similar tweets in my feed, I pointed my browser on over there, prepared to be outraged, too.
But you know what? I’m not.
For the fairest test of your own reaction, I was going to advise reading the obit first. But as I was writing this, the Times edited the lede (without indicating that it did so), presumably in response to the Twitter backlash. I provide the new lede and the link to the obit below. But first, let's focus on what, until a short time ago, the obit used to say and why people are so worked up about it.
Carla Spivack of Oklahoma City University's law school has a new paper up on ssrn, "Killers Shouldn't Inherit from Their Victims . . . Or Should They?" Here is the abstract:
offers a profound reassessment of so-called “Slayer Rules,” laws that, in all
states, bar killers from inheriting from their victims. For the first time in
the literature, this piece questions the underlying rationale for these rules by
examining the context of family violence and mental illness in which these
killing occur, and argues that, given that context, these rules are often
neither legally nor morally justified.
My argument is as follows: at first glance, the idea behind Slayer Rules seems reasonable, indeed, morally obvious: a killer should not be able to profit from his or her crime. This truism, however, may not necessarily be true. Where murder and inheritance overlap, we often find family. When family members kill one another, the equities are often cloudy. The sociopathic child who kills a grandparent to hasten an inheritance is an anomaly. In reality, murders within families are usually a product of that family’s harmful, often violent, dynamics, from which, because of the failures of state and society, a family member sometimes can find no escape except murder. Most women who kill their husbands or partners do so to protect themselves or their children from violence. Most children who kill a parent act to stop severe and prolonged abuse by that parent; most of the other child killers are acutely mentally ill. Most mothers who kill children suffer from post-partum psychosis, a severe mental illness whose symptoms include visual and auditory hallucinations and delusions. Once the tragedy has occurred, the legal system often fails to address the defendant’s plight, offering inadequate representation, barring effective defenses at trial, and extorting guilty pleas that may not reflect actual guilt. Given this reality, it’s not clear that barring the defendant’s inheritance is just, fair, or even sound policy.
Carla's article is part of the growth (or perhaps I should say rebirth) of serious work in trusts and estates that we've been seeing in the last half-dozen years or so. I think this is happening for several reasons -- first, a lot of newer scholars have realized that the area is ripe for analysis along lines of gender (and to a lesser extent race and class) that have been so prominent in allied areas, like property. Second, there is a realization that there is room for a lot of empirical and doctrinal work as well--especially doctrinal work; and third, this is an area that has increasing appeal for students, in part because there seem to be better job opportunities here than in many other areas (or maybe I should say less bad career opportunities).
I'm particularly intrigued by Carla's framing of this -- where the conventional wisdom is that slayers shouldn't be able to inherit from the people they kill, Carla reminds us that the statutes apply almost exclusively against family members. (A slayer might be a non-family member beneficiary of a will, trust, or life insurance contract. Or one might be a non-family member and joint tenant with the decedent.) Because of the preponderance of family members among the slayers, Spivack suggests that blanket provisions against inheriting may work inappropriate hardship. Carla raises some really serious questions about whether slayer statutes -- which I usually fully support -- are too broad. And whether we should allow slayers to inherit from family member decedents. I wonder how much this will matter, because I'd imagine that a lot of people who would inherit absent a slayer statute will still be liable up to the value of what they inherit in a wrongful death suit to the decedent's other heirs. Though I suppose this could be handled by limiting wrongful death claims when a family member is slayer. That would be controversal, to say the least.
Anyway, if you teach trusts and estates or family law you'll find the article worth reading. I'm excited by how much new and interesting scholarship is being written in trusts and estates these days!
A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.
Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog, Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research. It offers several of what seem like valid criticisms and a few that don't seem so valid to me.
The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make. I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction. Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid. Finally, terms like "disrimination" "bias," etc. are all themselves extremely loaded in that they might suggest more to some readers than the authors intend.
On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony, does provide that expert testimony needs to meet some basic standards of reliability, etc. that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it.
I think other observations in the review are less valid. Take this one: "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test." First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes. A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.
Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched." There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.
Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques. There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions. Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references. I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.
At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts. So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.
Over at CoOps, Dave Hoffman has graciously taken the time to respond to my query about why there’s been such a fuss over Scholastica’s diversity widget, given prevailing attitudes in legal academia and elsewhere in the academy that when selecting participants in conferences, workshops, colloquia, and the like — which I’ll call, for short, “speaking opportunities” and which may or may not also involve publication opportunities — it is somewhere between permissible and obligatory to consider diversity. Dave argues that symposia (I don’t know if he sees symposia as different than the other speaking opportunities I mention) and articles serve different purposes, and hence, selection criteria should be different in these two contexts. Go read his argument, then come back for my response — and a bit of a confession.