The Faculty Lounge

Designing Compensation for Sterilization Victims, Part II

Following up on a post from a few days back on how we could approach the problem of designing a compensation plan for victims of North Carolina's sterilization program, I want to try out an idea.  What's on the table now is $50,000 for every now-living survivor -- that's what the Governor's Task Force is recommending.  There are some obvious advantages to these kinds of payments.  No amount of money will return victims to the position they were in, so we have to settle on some rather arbitrary figure in every case and rather than trying to gauge varying levels of suffering, it makes everyone's life easier to give the same amount.  This may work particularly well where everyone has suffered in pretty much the same way.  That flat approach was used in the compensation of Japanese Americans interned during World War II who survived until 1986.  

There are, however, other compensation schemes.  The 9.11 Victims Compensation Act (also known  -- revealingly -- as the Air Transportation Safety and System Stabilization Act) is one that provided differential amounts -- vastly differential, actually -- based on the lost income of 9.11 victims.  That bothers me in a lot of ways, in that it compensated families differently based on how much their loved ones made.  (Even with that differential, I understand that some of the families of high-earning victims thought that they were under-compensated.)  Without wading too much into a topic that's a distant analogy to this issue, it seems like if you're going to have a compensation program like this and not going to give everyone the same, perhaps some of the differential should be based on how much the survivors were dependent on the deceased.

I have already raised the possibility, however, that there may be some significant differences between the sterilization cases in North Carolina.   That is, that the levels of intrusion on personal autonomy varied -- perhaps dramatically -- in some of these cases.  There are well-documented instances of shameful interference with personal autonomy.  But what I'm less clear on are the "voluntary" cases, where at least some people seem to have sought out state-supported sterilization.  And so that leads to a question, which a friend asked recently, would some kind of program more akin to 9-11 be appropriate here?  Because we do not have a good estimate of the number of still-living victims (and thus are not quite sure what the cost of the program will be) and there are some important (though potentially not resolvable) questions about the level of coercion involved, perhaps we should think about setting aside an appropriate amount of compensation and then have a special master try to make more focused determinations based on whatever records are available.  I'm wondering if something like that might well address the differences between the cases?

The illustration is from the North Carolina Historical Highway Marker Program, on McDowell Street between Jones and Edenton Streets in Raleigh.  What particularly interests me about this marker is they got the story right in a very few number of words -- the program was state-sponsored and some were sterilized involuntarily -- through varying levels of coercion -- and others by "consent."  Though "consent" may often have involved a lot of coercion.  Next time I'm over in Raleigh I'll have to get a picture of that.  And also a picture of the NC Department of Justice, which -- irony of ironies -- now occupies the Old Education Building.  That is the building where the Eugenics Board met.

Designing Compensation for Sterilization Victims

In 1943 the North Carolina Law Review published an article by Harvard Law Professor Thomas Reed Powell on "Compulsory Vaccination and Sterilization: Constitutional Aspects. "  Powell was trying to provide guidance on just what the Constitution  permitted in terms of public health measures, from vaccination through sterilization.  The article reads very much like the opinion of a realist; there are several references to how ambiguous the law is and how difficult it is to predict what will happen in subsequent cases.  "If all this seems sadly vague and amorphous to those who extract certainties out of test tues, it can only be answered that of such is the kingdom of jurisprudence," Powell wrote towards the end.  He thought that the twin Supreme Court precedents of Buck v. Bell (1927) and Skinner v. Oklahoma (1942) offered little "light on what they or their successors would do with milder measures, except to make clear that they would be zealous in insisting upon strong scientific support for the necessity and the efficacy of prophylactic prescriptions and upon adequate procedural safeguards in picking the persons subjected to them."  Later Powell observed that Skinner v. Oklahoma -- which struck down Oklahoma's law that permitted sterilization of those convicted of three felonies -- would not be a "stumbling block in the way of any sane public health program however much it may intrude on privacy and preclude self-determination."

Powell's article was published while North Carolina was in the midst of a decades-long program of sterilization.  Several years after that Duke Law Professor James Bradway -- a famous figure in the development of legal aid and also clinical education -- published a brief article that summarized North Carolina's law regarding involuntary and voluntary sterilization.  He included  the good news for physicians that there were immune from civil liability for participation in what Bradway termed involuntary sterilizations (those ordered by the Eugenics Board), "except in the case of negligence in the performance of said operation."

Now North Carolina is debating what, if anything, it ought to do about that.  In 2003 then Governor Mike Easley issued an apology to victims.  At the end of last month the "Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics" recommended that each now-living person who was sterilized receive $50,000.  The kin of those who have already passed away will receive nothing under this plan.  And while one might think that the victims would have no children, a fair number of people who were sterilized had already had children.

I've been following this with increasing interest over the last six months or so and am now mightily interested in it.  (Here's Debra Goldschmidt's CNN story on this and also a link to a discussion I had earlier in the week at the legal talk network with James Bowden and Craig Williams on this).  There are several issues that especially interest me in all of this.  First, just how did the government's program function?  Who was selected for sterilization; how did the administrative agency -- the state Eugenics Board -- operate; what are the demographic data on the gender, age, race, and family status of those sterilized?   (North Carolina's first sterilization act, passed in 1929, was struck down by the North Carolina Supreme Court in Brewer v. Valk in 1933 because it didn't afford enough due process.)  Judging from the Eugenics Board Meeting minutes that are on the North Carolina Sterilization Victims Compensation Fund website the hearings were perfunctory and often no family members challenged the petition for sterilization.  And rather hauntingly -- though understandably -- there were well-established administrative procedures for this, including a type-script manual produced in 1948, and pre-printed sterilization petitions for state officials to fill out.

Exploring "Educational" Epithets

The image of the t-shirt in Eric's post, and the various reactions it received (mine included) have been very enlightening. The use of insults and slurs can be used as "teachable moments" in various classroom settings, but we all have a moral compass that makes us seriously take pause when a certain usage crosses the line. In Advocacy to Zealousness, many of the films I've included have a secondary purpose of encouraging the exploration of various elements of diversity in the legal profession. Some of the films include the use of slurs. Perhaps the most famous example is To Kill a Mockingbird (1962). Another is Gentleman's Agreement (pictured, 1947), an earlier film starring Gregory Peck that explores Anti-Semitism. My question concerns open discussions of diversity in classroom settings, either with law students or during CLE presentations involving attorneys. How do you approach these topics in classroom settings? What steps do you take to ensure that these potentially-heated subjects are discussed openly and civilly?

Don't Read if Disillusioned About Legal Academia ....

With thanks to a colleague - I won't embarrass her by identifying her here - some of you may enjoy this comic novel excerpt from Cameron Stracher's new work, The Law School Trifecta.

Mentoring Traps and Tricks

I was at a general meeting today (ie not law school specific) about approaches to effective mentoring for tenure track faculty.  In particular, we were asked about what advice we would give junior faculty members about ensuring satisfactory mentoring experiences eg what we wish we had thought to ask when we were on the tenure track.

The variety of responses was interesting.  Some people spoke about transparency in promotion processes, salary information etc.  The real issue here was how do you know what you don't know that you actually do need to know on the tenure track.  That's a tough one and I'd be interested in people's thoughts.  For example, how do you know if you are obtaining fair compensation at a private school, sufficient research support etc.

We also talked a little about gendered differences in giving and receiving criticism and how to shape mentoring programs to ensure that mentees and mentors are aware of those differences to the extent they exist and impact a person's career planning.

One issue that came up that was particularly interesting was how to make the most of unconstructive criticism.  What can you learn from unhelpful comments about your work in terms of learning something from the comments themselves and/or whether the mentee has any responsibility or opportunity to educate the mentor about giving more constructive/useful feedback.

In this context, some really great examples of fairly ineffective criticism were discussed.  A couple of my personal faves are:

1/ You need to show us what you bring to the table.

2/ You have a great voice, but you don't have anything to say.

I'd be interested in people's thoughts about their experiences on the tenure track, what they know now that they wish they'd known then, how open they felt about questioning their mentors, and what to do if a mentoring relationship just isn't working out.  And of course if you have any great zingers people have given you about your work in the past, feel free to share them too.

 

The Right Question For The Wrong Reasons: The WSJ On Why So Few Female Directors?

Today’s WSJ asks the question: why do so few women sit on US corporate boards?  According to Catalyst, women now hold about 16% of Fortune 500 board seats, as illustrated in the chart at right (source: Catalyst)  The article then goes on to the standard discussion of the Catalyst data on gender diversity and corporate profits in a manner that suggests that gender diversity improves profitability:

Major companies with three or more female directors achieved significantly better financial results than those with none between 2004 and 2008, according to a 2011 study by Catalyst, a nonprofit research group. In general, they outperformed companies with zero women on boards by 84% for return on sales, 60% for return on invested capital and 46% for return on equity.

I’ve repeatedly discussed the problems with this line of reasoning, as well as the numerous academic studies finding no impact or, in at least one case, a negative impact, of gender diversity on corporate performance.   See here and here, for example.  Previous board diversity posts are collected here.

Popular studies, such as Catalyst’s (discussed in the WSJ article quoted above), that consistently document the superior financial performance of firms with more female directors are frequently cited in the press and by industry and advocacy groups as proving “the business case” for board diversity.  In reality, we know very little about whether, how, why, and under what conditions board diversity impacts firm performance. (See here for a literature review)

Nonetheless, the WSJ inadvertently asks a good question.  With the notable exception of the Matsa and Miller study (previously discussed here), studies of board diversity tend to show no negative effect of female board representation, and there is clearly public pressure to diversify boards, both in the US and elsewhere.  

Moreover, in recent, ongoing research, Lissa Broome, John Conley, and I interview board directors and other corporate insiders about their views on board diversity. Nearly all of our respondents extol the virtues of board diversity in the abstract (though they often struggle for meaningful rationales and/or examples, a point about which we’ve written at length).  Which causes us to ask respondents the same question posed by the WSJ: if board diversity is supposedly so great for business, why isn’t there more of it? 

In our forthcoming book, The Danger of Difference: How Corporate Directors Talk About Diversity (University of Pennsylvania Press), we discuss our respondents’ answers when confronted with the disconnect between the nearly universal “board diversity is good for business” talk and the reality of limited change in boardroom demographics.  Some of their answers are also mentioned in the WSJ, including the preference for experienced CEOs and CFOs, most of whom are men, and women’s more limited professional networks.    

Like the WSJ, our respondents also discuss the talent pool question, but disagreed on the question of whether a limited pool of talented women explained the slow growth of women on boards.  Some respondents argued that there was still a shortage of qualified women willing and able to take on the job, others argued that this was no longer the case, and some argued that though there were talented women, many lacked public company experience and, instead, had found success as small business owners.  Even female accountants and lawyers, according to one (female) respondent may make early career choices that affect their later attractiveness as board candidates:

The difficulty for women getting on boards, particularly of sort of bigger boards is that most of the women, at least at [Company X], didn’t have public company experience and that could be for a few reasons. . . . I think also for the women, you know, a lot of women didn’t want to do the public company stuff if they had children because you get called, [inaudible 01:16:00] you get called at a moment’s notice. You don’t have the same control over your schedule so the number of women out there that they might sort of technically meet the financial expert but that really have the public company experience to really do a job or to not learn on the job is probably not as high.

I’m sure that I’ll be back with much more on this topic as we continue to work.  In the meantime, we’ve posted papers on the topic here, here, here, and here.

Masculinities and Law Conference

Professor Nancy Dowd at the University of Florida is one of the most important scholars doing work in the field that has come to be called law and masculinities.   

I am very pleased to announce that other scholars who work in law and masculinities have convened a workshop at the University of Florida in honor of Nancy’s recently published book, The Man Question.

Professor Martha Fineman at Emory will provide that keynote address and confirmed speakers include Professors Frank Rudy Cooper, John Kang, Ann McGinley, and Valorie Vojdik.    

The event is free and all are invited.  Those interested may email me at johnmkang@gmail or Professor Rachel Rebouché.  The formal announcement follows.      

 Asking “The Man Question:” A Workshop on Contemporary Masculinities

 University of Florida Levin College of Law

Third Floor, Holland Hall, Room 345

Friday, November 18, 2011, 10:00 a.m.

This workshop brings together leading gender and masculinities scholars to discuss the issues raised by Professor Nancy Dowd in The Man Question.  Speakers will explore questions of masculinity across diverse areas of employment discrimination, criminal law, international law, and constitutional law.  In addition, participants will grapple with theoretical questions of history, identity, vulnerability, and the limitations of equality rights.

 

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 3

The second and final day of the "Critical Perspectives on Tax Policy" Conference at Emory is under way.  

This morning, Tony Infanti (Pitt) presented "A Critical Perspective on International Equity." In that paper, he argues that tax issues are embedded in larger foreign policy and development issues.

Sarah Webber (Business, Dayton) presented "Earned Income Tax Alternatives: A Comparative Look at Other Developed Nations' Response to Working Poor Assistance."  She examines the tax benefits provided by G8 countries, as well as Norway, Australia and New Zealand, for families and low-income workers.  Professor Webber looks at the extent to which other countries have adopted aspects of the U.S. EITC program, and considers alternatives to a U.S. model.

Devin Fergus (History, Hunter College) spoke on "Reagan's Tax Eaters: College Students and the Origins of Today's Student Debt Crisis."  He is at work on a book and a documentary film on the subject.  I was captivated by Professor Fergus's explanation of how federal law, rates of inflation, the rise of conservatism in America - among other factors - have contributed to a true economic crisis in the financing of higher education.

The current project of Palma J. Strand (Creighton) is "Give the Kids a Break: Using Tax Policy to Support Care for Children."  She investigates poverty and economic inequality experienced by women and children.  Professor Strand argues for tax benefits for care-providers.

Camille Walsh (Interdisciplinary Studies, U. of Washington Bothell) spoke on "Racial Consciousness and 'Taxpayer Citizenship' in 20th Century School Funding Debates."  This is the topic of her book manuscript, Racial Taxation: School Finance and "Taxpayer Citizenship," 1869-1973, in which she argues that the historic disaggregation of racial and class identities in education-related litigation arose, in part, out of an interconnected set of ideas about property tax, citizenship, and a right to education. 

After lunch, Nancy Knauer (Temple) will offer reflections on and lead a discussion about "Critical Tax Theory: Earning a Place at the Table."

The conference is a great size -- 19 participants -- which has allowed for ample discussion.  The schedule also has included several unhurried breaks and meals, which has encouraged informal interaction.  Sometimes conferences can be too big or too programmed, but conference organizer Dorothy Brown (Emory) struck the right balance (and knows how to pick a great restaurant!).  

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 1

At Emory University School of Law, the first day of the "Critical Perspectives on Tax Policy" conference is well under way.  They program began with a welcome from Dean Robert Schapiro and an introduction by Professor Dorothy Brown.  Professor Brown explained the origins of the conference in conversations with national tax colleagues about a desire to "put the 'critical' back in critical tax theory."  

Here's how Tony Infanti (Pitt) and I described the field in Critical Tax Theory: An Introduction.

Tax law is political. That is a fundamental assumption of critical tax theory....[A]ll critical tax scholarship shares one or more of the following goals: (1) to uncover bias in the tax laws; (2) to explore and expose how the tax laws both reflect and construct social meaning; and (3) to educate non-tax scholars and lawyers about the interconnectedness of taxation, social justice, and progressive political movements. Critical tax scholars employ a variety of methods to achieve these goals. Among other methods, the contributions to this book demonstrate how critical tax scholars bring “outsider” perspectives to the study of tax law; use historical material, contemporary case studies, and personal or fictional narratives to illustrate the practical impact of the tax laws on individuals and groups; interpret social science and economic data to show how the tax laws impact groups differently; and explore the interconnectedness of tax laws with economic forces such as the labor market (especially as it impacts women) and international financial and political development.

During the first panel this morning, John C. Scott (Public Policy, UNC) presented his work on "The Problem of Private Pensions: Risk, Institutions, and Politics in the Hidden Welfare State."  Reginald Mombrum (NCCU) spoke on "Shifting the Paradigm by Bringing Tax Arbitrage to the Lower Income Separated Family: Why Should the Middle to Upper Class Family Have All the Fun?"  I shared a few thoughts on "Wealth, Inequality and Democracy."

In the morning's second panel. Lynn Lu (NYU) workshopped her paper, "Beyond Watchdogs, Whistleblowers, and Scapegoats: Pushing the Limits of Social Justice Reform through Tax Exemption for Public Charities."  Carolyn Jones (Iowa) just began her talk by saying, "This is a low-tech presentation on sin."  The formal title of her presentation is "Taxation as a Means of Reaching the Kingdom of God."  Up next will be Andre Smith (Widener) talking about "Taxes and the Demise of White Supremacy in the United States." 

Lots more to follow!

Novkov on Román on Citizenship and Its Exclusions

In the April issue of Law & Politics book review, Julie Novkov, Department of Political Science and Women’s Studies, University at Albany, SUNY, reviews Ediberto Román’s Citizenship And Its Exclusions: A Classical, Constitutional, And Critical Race Critique, New York: New York University Press, 2010 (Critical America Series):

Ediberto Román’s CITIZENSHIP AND ITS EXCLUSIONS: A CLASSICAL, CONSTITUTIONAL, AND CRITICAL RACE CRITIQUE primarily analyzes exclusionary and partial practices of state recognition of citizenship in the United States. Román identifies several ways that citizenship as a concept, despite its universalist aspirations, fails to embrace all those subject to the laws of the United States in equal ways. Relying on T.H. Marshall’s tripartite classification of citizenship (political, civil, and social), Román shows in historical and contemporary terms that members of some groups (women, African Americans, and Latinos, for instance), do not achieve full access to the rights of citizenship in Marshall’s terms. However, he also notes that millions of individuals living under the sovereign authority of the United States possess rights of citizenship only at the whim of Congress because they live in territories rather than states. His goal is to show that, while “Western societies have uniformly accepted the aspects of citizenship discourse that have championed equality . . . these same societies have repeatedly denied disfavored groups full social, civil, and political citizenship rights” (p.12). 

Read the full review here: Vol. 21 No. 4 (April, 2011) pp.204-207.

 

Two Narratives of Courage

One of the corollaries of any study of manliness is courage, the supremely male virtue.  But if courage forms the center of male virtue, do we know what courage is?  In a work in progress, I’m interested in juxtaposing two narratives of courage, those proffered by judges to underwrite their opinions and those ushered by combat soldiers to make sense of what they experienced.  I know the below examples, not at all the product of random sampling, hardly begin to scratch the surface; perhaps, though, they’re food for thought. 

 Three Judges on Courage

 “Those who won our independence believed. . . .courage to be the secret of liberty. . . .”--Justice Brandeis, Whitney v. California (1927). 

“. . . the exercise of First Amendment rights often requires an act of courage,. . . .” --Judge Ramirez, Keene v. Meese (1985).  

“To justify a homicide the fears of the slayer must be those of a reasonable man, one reasonably courageous, reasonably self-possessed, and not those of a coward.” --Judge Louis L. Brown, Wheeler v. State (1934). 

Three Soldiers on Courage

“It is hard to know what bravery is.”--Tim O’Brien, Vietnam War combat veteran.

“It was some months and only a few more bullets and shells later that I knew my courage for what it was—a reaction to the shame I felt at being afraid,. . . .”--Robert Crisp, World War II veteran, recipient of Britain’s Distinguished Service Order and Military Cross.

“I understand desertion.  A man distraught determines that the last act of his life shall at least be one of his own volition; and who can say that what is commonly regarded as the limit of cowardice is not then heroic?”--Max Plowman, World War I combat veteran.

Man up!........Man up?

Thanks to Dan for letting me guest blog.  Alas, I immediately repay his kindness by exploiting this opportunity to post on something bleakly provincial to my own scholarly preoccupations:  manliness.  Specifically, manliness in the context of law and literature.  I know, I know.  Here we are, in the debt crisis, facing the impending end of Western civilization, and I want to blog about law & literature. . .regarding. . . “manliness.” (isn’t this the shameless epitome of the self-indulgent academic?) 

But so much of the debt crisis is suffused with the idiom of manliness, isn’t it?  Liberals cry that Obama needs to “man up” and confront the Tea Party while Boehner, even for a dude who doesn’t mind having a good ole’ public cry now and then, once committed, can’t stand down from his manly posture without embarrassment. 

But this post isn’t me expounding my views on manliness (ummmm, you can find that here, incidentally).  It’s rather me asking for your help.  I’m trying to put together an annotated bibliography, provisionally titled, “Manliness:  A Law and Literature Perspective.”  So, for example, I would include—would have to include—Mario Puzo’s The Godfather.  Talk about manliness, it has every aspect of it:  the patriarch, the reckless man-child, the avuncular bully, the callow son trying to prove his manhood, the faltering wimp, you name it.  And all of it takes place in the context of law.  Guys trying to violate it, bribe it, evade it, enforce it.  Much of the law, then, presents obstacles and opportunities for and extensions and emanations of manliness. 

So, I need your help:  what do you think would be good pieces of literature to include in such a bibliography of manliness in law and literature?    

TWP (Teaching While Pregnant)

My first child was born three months before I started my academic career at Pace. I quickly gained an expertise in teaching without sleep. This upcoming semester, I will be embarking on a new adventure -- teaching while pregnant.

My nervousness around the experience centers mostly on the steep stairs in my classroom. I am a klutzy person. Pregnancy seems to exacerbate this condition. As my girth expands and my balance lessens over the course of the semester, those stairs will loom before me as a daily challenge in concentration.

I also wonder, however, about student reactions. As a youngish female professor, I already have a different relationship with my students than most of my colleagues. I have been told multiple times that I remind students of their older sisters. They tend to be less formal with me, spend lots of time in my office hours, and bring up topics that have nothing to do with class. I briefly considered establishing a more formal relationship (cutting off non-class related discussions during office hours, calling them by their last name, hiding my tattoos, etc.), but decided that it just wasn't me and I have to embrace my own style. It makes me wonder, however, how many people will want to talk about the baby. I expect they might ask when I am due (Jan. 6th) out of a concern that I won't make it through the semester or whether it is a boy or girl (I don't know) out of curiosity, but what else might I expect?

Do those of you who have gone before have any insight or advice to share?

Parental Leave?

This past February, Keith Hirokawa at Albany organized the excellent 2011 Northeast Regional Scholarship and Teaching Development Workshop. After dinner on the first night, there was a discussion/panel entitled "Women as Teachers and Scholars." One of the topics of discussion about access to information didn't hit home for me until recently. The heart of the discussion centered around the fact that many women were not sure what the maternity/paternity leave policies were at their school. Additionally, there was a lack of information about what other schools did. (FWIW -- besides the FMLA, we get a course release (3 units) to be taken within a year after the child's birth here at Buffalo).

I was surprised that people didn't know this because we are often well versed in other leave policies. For example, I would be shocked if a room full of junior scholars couldn't tell you their school policies for research leave, junior (or productive scholar) course relief, or sabbaticals. Yet, the lack of information and understanding about family leave policies seems widespread. My general sense from talking to friends (and some are teaching in departments other than law) is that each person's leave is individually negotiated based on the timing of the leave and that person's perceived worth to the institution.

The reasons for this lack of information is probably unsurprising (but perhaps no less disheartening). We tend to be afriad to ask. When we ask about research leaves available to junior faculty during an interview, we send a signal that we are serious scholars looking for time to write. When we ask about maternity leave, we worry that we are sending out the opposite signal. During my interviews, I think I only asked one or two schools about maternity leave -- and only when I felt very comfortable with the person I was talking to or they brought it up. We know that this is a touchy topic legally. Obviously, the prospective employer can't ask you if you are planning to have kids.(but that shouldn't stop them from just generally outlining all leave policies)

The lack of questioning about such policies may also contribute to the ad hoc nature of parental leave. If there is not a large junior faculty or many people questioning such policies, there may not be the motivation to put things in writing. While individuals here and there may benefit from an unwritten policy giving them room to negotiate, I think there is a good reason to have clear parental leave policies. Additonally, making those leaves public will help people at other schools improve their policies. Arguably, this is why many big law firms have such good maternity leave policies -- because everyone knows what the competition is doing.

AALS Women Rethinking Equality

Like Bridget, I’ve been at the AALS Women Rethinking Equality conference this week and quite enjoyed this event.  Planning committee chair, Kathy Abrams, and the rest of the planning committee did a really great job with the program and gave credit to Elizabeth Nowicki for the program’s inclusiveness this year in terms of subject matter (corporate, securities, and tax law panels!) and seniority (lots of junior scholar panels). The full event program is here.

On Tuesday, I was on the plenary session, The Workplace As A Site Of Gender (In)Equality.  The description from the program is at right, though it omits Victoria Brescoll, Yale School of Management, and Tanya Hernandez, our panel moderator.  I’m sure that I’m biased, but I thought that our panel was really great.  Both Victoria and Catherine (“K.T.”) presented new and interesting empirical research, while Joan and Vicki discussed legal developments and theory.  I discussed some of the research on corporate board diversity that you Loungers have heard me talk about here before and considered myself really lucky to be on a panel with researchers who have been so influential in this field. 

On Wednesday, I was a commenter for Rachel Anderson on the Corporation/Tax panel, whose description is below left.  In these sessions, junior faculty were selected through a call for papers to present works in progress and receive feedback from assigned commentators and audience members.  Faith Stevelman commented on Christina’s paper and Elizabeth Nowicki commented on Afra’s.  This panel was also quite good -- all of the papers tackle interesting and ambitious topics, the commentators took their jobs seriously, and our (small) audience gave some great feedback as well. 

And since no conference blog post would be complete without a restaurant review, I thought that the best of the restaurants we visited was Proof.  A sample menu is here.  In addition to the chef’s charcuterie selection, we ordered the crispy pig’s head, roasted beats, pan roasted sweetbreads, crispy cauliflower, and several other yummy dishes. 

I will now have to eat nothing but yogurt for a week to make up for that. But it was worth it -- two and a half days very well spent!

Mack and Brown-Nagin on "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy"

The second day of the AALS workshop on "Women Rethinking Equality" featured luncheon addresses by legal historians Kenneth Mack (Harvard) and Tomiko Brown-Nagin (UVa).  The theme was "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy."  

Professor Mack spoke about civil rights lawyer Pauli Murray (picture at right) and her development of a "Jane Crow" theory of gender discrimination.  Professor Mack is completing a book entitled Representing the Race: Creating the Civil Rights Lawyer, 1920-1955, to be published by Harvard University Press.

Professor Brown-Nagin shared her work on Constance Baker Motley, the civil rights lawyer, judge, and government leader.  In her public remarks, Judge Motley never acknowledged that she had experienced gender discrimination. Professor Brown-Nagin's work with Judge Motley's private papers reveal the Judge's awareness of gender inequality and its deleterious effects.  Professor Brown-Nagin is working on a biography of Judge Motley.  

In the film clip below, Judge Motley talks about how she first became interested in the law.

 

I'm interested in these two historical figures and the work of these two legal historians.  Looking forward to reading both forthcoming books!

CFP: "New Voices in Gender Studies"

The AALS Section on Women in Legal Education will hold a program during the AALS 2012 Annual Meeting in Washington, D.C., with paper presentations by the winners of the 2012 New Voices in Gender Studies paper competition.

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.

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.

The immediate past winners of the prior year’s competition are ineligible to participate this year.  In the event of a tie, one consideration for the reviewing panel will be whether any of the submitting authors have the opportunity to present the submitted article during another presentation at the conference.

To be considered, papers must be submitted electronically to Professor Linda Jellum, Mercer University School of Law, jellum_l@law.mercer.edu. The deadline for submission is Monday, August 15, 2011. Authors of accepted papers will be notified by October 3, 2011.  Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

Full-time faculty members of AALS member and fee-paid law schools, who have been teaching for five or fewer years as of August 16, 2011, 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 to submit.

Papers will be selected after review by an ad hoc committee composed of officers, executive committee members, and the winners of the 2011 competition.

Any inquiries about the Call for Papers should be submitted to:  Professor Linda Jellum, Mercer University School of Law, jellum_l@law.mercer.edu, (478) 301-5689.

Is Rep. Anthony Weiner a Sexual Harasser?

Is Representative Anthony Weiner a sexual harasser?  I think not, based on what we know so far.  Here's how I see it:

• Some stupid people are sexual harassers.
• Some sexual harassers are stupid people.
• Not all stupid people are sexual harassers.
• Not all sexual harassers are stupid people.

By stupid people, I mean those who are susceptible to making or proven to have made mistakes of judgment, especially in the realm of sexualized communications.  Is there any among us who has not made a mistake of judgment, even if not in the particular nature or realm of Rep. Weiner's?

Let's be clear that sexual harassment is not simply communication of a sexual nature.  It is intimidating or unwelcome speech or action of a sexual nature that impacts someone's work or educational environment.  If one adult wants to "sext" another in a non-work/non-education context, that may be stupid and it may reflect on the sender's poor judgment, but it's not sexual harassment, in my opinion.

The Invisible Woman Versus The “First And Only”

Via my colleague, Kate Bartlett, I came across this short article by Amanda Gerut, Still Working to Cure ‘Invisible–Woman Syndrome,’ in Agenda.  The article opens: 

Women on boards aren’t considered token members anymore. But they still must work doubly hard to claim leadership positions and sometimes to prove their value to male board colleagues. 

The piece probably caught my attention because of some similarities to the narratives of tokenism that Lissa Broome, John Conley, and I discuss in Does Critical Mass Matter? Views From the Boardroom. Several of our female respondents reported that they worked harder and prepared more for board meetings than their male colleagues.

For many, this felt need to work harder did not just emerge in the boardroom, but reflected a lifetime pattern of behavior derived from being the first and only female or minority at many important career stages.  For example, in response to a question about whether she felt she was being held to a higher standard as a woman and therefore had to work harder, one respondent—a pioneering white female director as well as a member of her company’s management team—recounted her up-bringing and her education:

A: I think that I have a tendency to create that higher standard for myself, because having grown up in the timing that I did, I was al- ways the only woman doing whatever it was, and so, as a result, I always felt I had to work harder—example, being in an accounting class where I was the only woman, and back there that was—back then it was very common, and the professor saying that he had never given a woman an A. And, I mean, he announced that to the class. And you couldn’t do that today. So there was always that tendency that you had to work harder. 

My father was the type who didn’t feel that a woman should go to college, that a two-year school was all that a woman needed. And I had to—I proved him wrong. I paid for myself to go to college, whereas he totally paid for my brother and gave him a car. So I had to prove that I was going to do better than my brother. So I think you get that ingrained into you.

In a similar vein, an African American female director said that she “absolutely” prepared more for board meetings than other directors. Her explanation centered on being black, female, and middle class:

I was always told, and remember I grew up in the 60s when I was a teenager and went to college, that I have to go that extra mile, I have to extend myself beyond the benefit of the doubt ‘cause I’m not going to be extended the benefit of the doubt, so, if I’m asked to X, I have to do X plus Y.

A white female academic and former board member remarked that when she was the only woman on one board, “it did feel like I was continually representing something, or being a token. And that didn’t feel nearly as good as being part of a group of two or three” as she was on another board she later served on.  She also mused: 

I was just trying to figure out whether there are ways in which women are more or less likely to want to serve on boards as men; or whether minority people are more or less likely? Whether they feel that they will have too heavy a burden because they’ll be expected to be responsible for womanhood or minorityhood? I don’t think that’s true of most boards in fact. But whether, before you’ve ever served on one you might think you were going to have to? I don’t know if that’s a concern for some potential board members . . . if so, I would hope people would be able to lay those worries to rest.

Several women also reported that they understood in some sense that whether they did well as the first female board member might influence whether or when another woman would be invited to join the board. One white female board member told us that she was the first woman on a particular corporate board, joining an African American male who was already on that board. She acknowledged that by the time she left the board, there were four female board members, then quipped, “I guess I didn’t mess up too badly.” She also commented, however, on the pressure that this placed on her:

I never really had a bad experience as a token. In fact, they seemed to be particularly curious in what I did think. And that put some pressure on—if you were speaking, you didn’t want to just blurt out stupid things. But I never really felt intimidated about asking questions, either. 

And this leads to an important caveat to our respondent’s narratives about their potential token status:  although we heard stories of the stresses associated with being the first and only female or minority board member, this narrative is in tension with our respondents’ professed comfort with their first and only status and the benefits that they perceive accompany these stresses. Many of our respondents tend to view themselves as pathbreakers—often the first and only female or minority at many important career stages. They exhibit a certain pride in the notion that they are highly qualified corporate directors, accustomed to their “outsider” status, and need no additional reassurance or support from the presence of other members of their demographic group. All report an ability to function as effective directors, even when the sole female or minority in the boardroom.

One respondent, an African American female director, gave a vivid version of this account, made especially powerful by its framing as a retelling of a conversation that she had just had with her son: 

A: Well I’ll answer that question [how it felt to be the only racial minority on a particular board] this way because I just had that conversation with my son last night, yesterday, who’s going to take a new job. He’s a recent graduate. I told him that the first thing you have to do is recognize that you have the job because you have the skills to do it, and throughout my life I have never gone into any situation thinking that I was a minority. I know I’m a minority, but I don’t go into any situation with that as a conscious part of it. Any situation that I’m in is because I’m there as a person, and I’m there because I have something to contribute, I have some skill, I have some expertise, and so that is the mindset that I took to the [name of company] board. I’m here because I have something that they wanted and it’s regulatory expertise and that’s what I’m here to provide, and so I never let being a woman or a minority come to the forefront and I think when you do that, it can put you at a disadvantage because that’s what you focus on and so when you say how was it, I never dwelled on that. I was there because they asked me to be there for a particular reason and that was the value that I brought to the board so it was not an issue for me, and I don’t think that they viewed that as an issue either. One of the things that I know happens when boards actively seek other members who don’t look like them, they’re not white and they’re not male; they’re at a point in their life that they recognize that they have to do things differently from a business standpoint. 

The paper contains numerous additional quotes highlighting this tension between our respondents’ recognition of the stresses associated with being the first and only female or minority in the boardroom and their apparent embrace of their “first and only” pathbreaker status. 

Image Source

 

Women's Badminton as the Next Beach Volleyball?

According to this article from today's New York Times, the Badminton World Federation will require women in elite-level competitions to wear skits or dresses.  The reason?

“We’re not trying to use sex to promote the sport,” said Paisan Rangsikitpho, an American who is deputy president of the Badminton World Federation, which is based in Kuala Lumpur, Malaysia. “We just want them to look feminine and have a nice presentation so women will be more popular.”

Interest is declining, Rangsikitpho said, adding that some women compete in oversize shorts and long pants and appear “baggy, almost like men.”

“Hardly anybody is watching,” he said. “TV ratings are down. We want to build them up to where they should be. They play quite well. We want them to look nicer on the court and have more marketing value for themselves. I’m surprised we got a lot of criticism.”

Apparently, many badminton players wear shorts or track pants to play.  And the shorts, I guess, are not short enough.  The badminton folks must have figured that if bikinis made beach volleyball popular, skirts will do the same for badminton.  

What arena is next?  The classroom?  Hey lady law profs!  Teaching evaluations down this year?  Show a little more skin next semester!  Get a little more "marketing value" for yourself!  If you have a "nice presentation," you'll be more popular, right?! 

Marketing in the legal professional world is less important than in the sports world.  To be sure, image, dress, presentation, etc. are relevant to lawyers, law professors and law students.  But my tongue-in-cheek suggestion aside, noone can or will decree that all female law professors must wear skirts in the classroom.  Personal preference, local culture and whether the laundry or dry cleaning is done tend to be the governing factors.

With that background, it does seem absurd to require women look more "feminine" with a "nice presentation" by wearing skirts.  An athlete should be judged on the basis of her or his performance, not appearance.  

In reality, though, elite-level athletes are not judged solely on their performance.  This is especially true for women.  Remember the first time Martina Navratilova appeared at Wimbleton in ribbons? I don't think I ever saw Lisa Leslie play without lipstick.  Women who are not conventionally attractive are rarely media darlings (and inevitably suffer rumors about their sexuality).  

It's unrealistic to think that society will ever evolve to a place where appearance is irrelevant.  (Query, also, whether an appearance-blind society would be desirable, either.)  I just wish that showing skin were not an official marketing strategy of an international sports organization.  

As for me, I don't even like toes showing at the office, so I won't be breaking out the swimwear in the classroom any time soon.  (Shudder the thought!)  Heck, I'd like the Snuggie to be standard academic attire.  Or at least a Hogwarts robe.  

image sources: Badminton World Federation (here) and USA Volleyball (here). 

Update 6/3/11: The World Badminton Federation has withdrawn the skirts-only rule.  See here.