posted by Kaimipono D. Wenger
In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why.
The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented,
“This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.”
The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context?
Well, maybe. Read the rest of this post »
February 18, 2013 at 7:11 pm Tags: blind review, gender, law reviews, Race, unconscious bias Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race Print This Post 5 Comments
posted by Kaimipono D. Wenger
As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.
But is it really the case that law review affirmative action would be a bad thing? Read the rest of this post »
February 16, 2013 at 2:07 pm Tags: gender, law reviews, Race, scholastica, unconscious bias Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race Print This Post 43 Comments
posted by Leora Eisenstadt
Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet. As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.
When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions). But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.” That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.
Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all. In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave. Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.
The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past). But it has not been the American way. Might we be changing? In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond. I am wondering whether there is a chance that Americans could recognize this too.
Of course, that would not be the end of the debate. What would the privileging of women or parents mean for equality? If women (by law) gain options that men don’t have, do they come out equal, better, or worse? For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men? What if the option is non-gendered and open to all parents? Will men exercise the option or continue to feel pressure to return to work immediately after a child is born? Will women? While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own. Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.
August 9, 2012 at 1:09 pm Tags: feminism, gender, maternity leave, parenting, sex discrimination Posted in: Employment Law, Feminism and Gender, International & Comparative Law, Uncategorized Print This Post 3 Comments
posted by Leora Eisenstadt
I am thrilled to be guest-blogging for Concurring Opinions for the month of August. For my first post, I thought I would draw your attention to an interesting case out of the Seventh Circuit last month. In Passananti v. Cook County, the court considered a hostile work environment sexual harassment claim brought by an investigator for the Cook County Sheriff’s Department. The primary issue on appeal was whether the “frequent and hostile use of the word ‘bitch’ [was] a gender-based epithet that contributed to a sexually hostile work environment.” In other words, is “bitch” always sexist?
Putting aside the use of the word in dog-training circles, you might be wondering how this word could possibly not be sexist? It turns out that the Seventh Circuit, in a prior case, actually concluded that the use of the word was not based on sex but rather on personal animosity that “arose out of an earlier failed relationship between the plaintiff and the harasser.”
But in Passananti, the Seventh Circuit reversed the lower court, finding that the mere use of the term in this case, without other gendered words, is sufficient for a finding of sexual harassment. And the court, quite reasonably, pointed out that “when gender-specific language is used in the workplace . . . context is key.” A laudable approach until you look one step further at the specific context that the court looked to for help here: “The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment.” Not exactly convincing. We are supposed to understand that the term is gendered because he didn’t use it in jest and was threatening her employment?
Most of us would agree that the supervisor’s use of the word “bitch” in this case was gender-derogatory for one simple reason: he is a man, using a gendered word, against a woman, and there is no other explanation for its use. Can the term have different meanings in other contexts? Absolutely. When women use it amongst themselves, for one, the term can be endearing or playful. But it is rarely benign when spoken by a man and directed at a woman. But nowhere in the court’s lengthy discussion of context does this simple truth appear. Why is the court so hesitant to name this reality – that linguistic meaning is the product of multiple contextual factors, including, importantly, the identity of the speaker?
I’ll save additional discussion and some possible answers for a later post. Suffice it to say, I am thinking a lot about this question right now and have just posted a draft of my article on the topic on SSRN. I’ll discuss the article in a later post but for now here’s the link to The N-Word at Work: Contextualizing Language in the Workplace.
posted by Kaimipono D. Wenger
You mention male privilege in a blog post, and it’s inevitable: Someone else (usually male) will start asking about female privilege. If men have privilege, don’t women have privilege too? And does that undercut the idea of male privilege as a type of gender subordination which is built into society? (Because, the implication goes, we all have privilege — and so feminists should stop complaining about male privilege.)
And, so, predictably, some critics of feminism, “men’s rights” blogs, and the like have assembled lengthy lists of female privilege. (Women get their dates paid for — it isn’t fair!) And it’s true that there are areas where, taken on a stand-alone basis, male and female treatment appears to favor women. As we’ll see, I don’t think these areas really provide an analogue to male privilege.
We’ll start with the obvious, descriptive matter: Some areas exist in which women have some advantages. For one obvious example, some bars offer free drinks to women on some evenings. (Ladies night.) Looked at in isolation, these could be viewed as areas of female privilege. However, in context, it seems evident that this apparent female privilege fills one of two roles. Read the rest of this post »
posted by Kaimipono D. Wenger
A familiar theme comes up frequently in internet discussions: Women who complain about online harassment are just missing the joke.
As an initial descriptive matter, it’s pretty clear that women and men are often treated differently in online discussion. (Quick, name a case in which someone was harassed online. Was the person you thought about a woman? I thought so.)
A few months ago, John Scalzi noted that:
In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn’t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects (politics, sexuality, etc) will get more abusive responses than ones who write primarily on other topics, but even in those fields, women seem more of a target for abusive people than the men are. And even women writing on non-controversial topics get smacked with this crap. I know knitting bloggers who have some amazingly hateful comments directed at them. They’re blogging about knitting, for Christ’s sake. . .
I can contrast this with how people approach me on similar topics. When I post photos of processed cheese, I don’t get abused about how bad it is and how bad I am for posting about it. People don’t abuse me over my weight, even when I talk explicitly about it. I go away from my family for weeks at a time and never get crap about what a bad father that makes me, even though I have always been the stay-at-home parent. Now, it’s true in every case that if I did get crap, I would deal with it harshly, either by going after the commenter or by simply malleting their jackassery into oblivion. But the point is I don’t have to. I’m a man and I largely get a pass on weight, on parenting and (apparently) on exhibition and ingestion of processed cheese products. Or at the very least if someone thinks I’m a bad person for any of these, they keep it to themselves. They do the same for any number of other topics they might feel free to lecture or abuse women over.
It’s this sort of thing that reminds me that the Internet is not the same experience for me as it is for some of my women friends. (Emphasis added.)
That bears repeating: The Internet is not the same experience for men as it is for women. (No wonder women are numerically underrepresented in prominent internet discussion spaces.)
Why is the internet a different place for men than for women? There are doubtless a number of contributing causes, but one of the major factors is that the internet is largely a male-constructed discursive space, and internet discussion norms often build on assumptions of male privilege. Read the rest of this post »
posted by Rachel Godsil
Courts regularly grapple with the competing principles of autonomy and obligation in the context of family law. How to reconcile these principles – when gender, money, relative status, jealousy, spite, avarice are involved – is a fascinating challenge for judges. These issues are also fun to teach since they are often uncomfortably close to most people’s own experiences.
On Monday, the Massachusetts Supreme Court considered a variant of the autonomy/obligation condundrum in Pierce v. Pierce - in which the Court was basically asked to decide whether a higher earning spouse has a “right to retire” and be exempted from otherwise on-going alimony obligations.
Rudolph Pierce was a well-compensated attorney. In the divorce agreement from Carniece, his wife of 32 years, he agreed to pay $110,000 year in alimony until either party died or she remarried. When he decided to retire from his partnership at age 65, he argued that he should be relieved of any obligation to pay alimony and asked the court to adopt a rebuttable presumption that all alimony should be terminated when (1) the supporting spouse retires from employment at a customary retirement age and has no actual earned income, (2) the parties’ marital assets, including their retirement assets, had been equally divided at the divorce, and (3) the parties have the same amount of liquid assets at the time of the provider spouse’s retirement.
The trial court agreed to a significant modifcation of Rudolph’s obligation – to $42 k – but held that in light of Carniece’s recent loss of her job, the fact that she was not yet t entitled to Social Security, and that Rudolph continued to have significant earning capacity (in addition to his assets and his current wife’s salary), he wasn’t off the hook altogether. The Supreme Court rejected Rudolph’s rebutabble presumption and affirmed the multi-factoral test generally applicable to modification requests.
My first thought (which the Court echoed) is why (at age 57), Rudolph agreed to such a high alimony award without a change upon his retirement. A cynic would suggest that this might have been intentional so that his wife would agree to a fairly equal division of property despite the parties’ differential earning capacity (his wife had been the primary caretaker of the children and home though she worked outside of the home as well).
Cynicism aside – this is a difficult issue. Rudolph’s arguement that declining to accept the presumption would grant the recipient spouse “effective veto power over the provider spouse’s retirement decision” was wildly exaggerated. But the Court did impose limitations on when a “supporting spouse” will be able to retire – and for some, the idea of having to continue to work to support a former spouse will seem deeply problematic.
posted by Jaya Ramji-Nogales
In many ways, law teaching is an ideal job for ambitious women who value a balance between work and family. Many (though by no means all) law schools have generous maternity leaves — a semester paid, and if you can time your baby at the beginning of the calendar year or the end of the academic year, you can tack on a summer and win nine months at home with your newborn. Once you’re back to teaching full time, the flexible schedule makes it possible to spend quality time with children during the hours they are available and to get your work done after the little ones have gone to bed. And, at least in an ideal world, your colleagues view you as a lifetime investment rather than a disposable worker, so they will be flexible and supportive at this particularly challenging stage of your life.
That has been my experience and that of several of my friends, but I have heard significantly more negative stories from other women, ranging from law schools that refuse to provide more than six weeks paid leave to schools that expect female professors to wait until they have tenure to bear children. I’ve heard of other schools that require women to “make up” the classes they miss while on leave; I can only imagine what a 2-2 or 2-3 teaching load while juggling a toddler (or nursing!) does to one’s research agenda. And of course, for all of us, there’s no “part-time” option as a law professor; while working moms in many other fields can opt to work only two or three days a week for less pay, there’s no “mommy track” to tenure. So while law prof moms often have the flexibility to work from home two or three days a week, those days must be productive and can’t be spent playing with little ones. (To be sure, that’s just fine with many of us, including yours truly, but may not be ideal for all law prof moms.) Read the rest of this post »
posted by Kaimipono D. Wenger
Which factors might predict a country’s likelihood of going to war? Undemocratic government? Widespread poverty? Dare we ask — Islamic religious values?
According to a provocative new study from Valerie Hudson and WomanStats, there is another factor more closely correlated with national belligerence than any of the above: A country’s levels of violence against women. As summarized in the Deseret News:
Look closely at the way women are treated, says Valerie Hudson. Look at the nonchalance with which a nation’s men beat their wives, or the dismissive way a country condones genital mutilation. These are clues, she says, about that nation’s likelihood of waging war. . . .
It has been widely assumed that other factors are more predictive of whether a nation might be unstable or aggressive. The three most likely candidates were poverty levels, lack of democracy, and the nation’s adherence to Islamic values.
But the WomanStats project offers a fourth predictor of a nation’s instability. Violence against women (VAW, in the shorthand of WomanStats) trumps the other explanations, proving to be three times more predictive of a nation’s instability than whether a country is Islamic, and one-and-a-half times more predictive than whether a country is undemocratic, Hudson says.
posted by Naomi Cahn
This post is prompted by Jaya Ramji-Nogales’s discussion of the recent OECD Social Institutions and Gender Index. In her very thoughtful post – with which I entirely agree — she discusses the problems of “empirically measuring and ranking intangible phenomena such as social norms,” And she notes that the OECD publication was not entirely successful.But at least it tried.
In conjunction with a recent conference on state security in Norway, I examined six reports on state weakness to determine their approach to the use of gender equality as an indicator of state fragility or failure. These six reports were issued between 2005-2008 by highly influential U.S. foreign policy institutions, including private and public agencies, and one of them was co-authored by Susan Rice (before she became our Ambassador to the UN). While measures of gender equity are included in other assessments, such as the OECD’s index, the UNDP’s Human Development Report , or Freedom House’s evaluation of global freedom, this simply shows the integration of gender into development or civil liberties markers; these assessments are not self-conscious analyses of state security and fragility, unlike the 6 reports I examined. Apart from the USAID report, the other 5 reports did not use gender as an assessment tool.
Indicators and assessment tools can be important components in establishing state policies and practices towards developing countries. Consequently, the components that comprise each of these evaluative efforts are signs of what is considered critical to ensuring state stability. Donor agencies are increasingly using various indicators to help them evaluate country performance in order to ensure that their resources will be used most efficiently and effectively. While indicators are imperfect – they are subject to errors in measurement, and they take thin slices of complex issues — they are useful, within these limitations, for providing broad-brush pictures of a country’s status. But not if they don’t include gender at all. Gender equity provides a useful measurement of state security, as Fionnuala Ni Aolain, Dina Haynes, and I argue in our forthcoming book. Nonetheless, its significance is virtually unrecognized in numerous evaluations of state fragility, thereby leading to the risk that gender will remain unrecognized in efforts to promote state stability.