Recent Submissions

  • An Empirical Investigation of Arbitrator Race and Gender in U.S. Arbitration

    Chandrasekher, Andrea Cann (Yale Journal of Law and Feminism, 2024)
    For decades, the United States system of arbitration has been subject to nearly constant public criticism. Calling arbitration a rigged judicial system, consumer and employee rights groups have voiced opposition to the practice of “forced arbitration” whereby millions of Americans are contractually required to resolve disputes in arbitration rather than in litigation. On top of the concerns over the unfairness of forced arbitration itself, recent attention has been drawn to the lack of racial and gender diversity within the arbitrator profession. When women and racially marginalized plaintiffs are forced to arbitrate their employment discrimination or consumer-based claims in the arbitral forum, that they may have no meaningful access to arbitrators that look like them seems additionally problematic. Scholars in the field have argued back and forth about the root of the diversity problem. Is it a labor supply problem? In other words, are parties to arbitration open to hiring marginalized arbitrators but there are just not enough to choose from? Or is it a labor demand problem? In other words, when women and arbitrators of color are available, are they chosen at rates consistent with their white male counterparts? Or, are both supply and demand problems at work? Because much of the scholarly diversity conversation has been based on anecdotal information and survey data which don’t cover the full population of U.S. arbitrators, these basic questions are still unanswered. This paper contributes to the literature by using an originally-collected data set of arbitrator race, ethnicity and gender from the two largest arbitration firms in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the American Arbitration Association (“AAA”). The data were collected using public data sources and cutting-edge machine learning techniques. This is the first-ever scholarly effort to empirically estimate the race and ethnicity of arbitrators for both the JAMS and AAA populations. The analysis presents estimates of the demographic profile of the supply of U.S. arbitrators and the demographic profile of the subset of arbitrators that are actually selected to arbitrate—with a special focus on the extent to which under-selection is happening. The study has four main findings. First, along the supply dimension, women and people of color are underrepresented amongst JAMS arbitrators, both relative to the U.S. population and relative to the population of American lawyers and judges. The extent of the underrepresentation for both groups is significant, though it is more severe for arbitrators of color than for female arbitrators. For AAA arbitrators, I find an even greater degree of underrepresentation for Black arbitrators. Second, along the demand dimension, I find different results for JAMS and AAA. For JAMS, I find that, conditional on being selected to arbitrate at least once in the sample period, Asian and Black arbitrators receive fewer cases than their proportional share, and female arbitrators receive slightly more cases than their proportional share. Moreover, arbitrators that were formerly judges receive more cases than their proportional share. For AAA, the selection analysis is hampered by limited data availability. However, the data that I do have suggest that diverse neutrals are selected for cases at a rate that is at or above their proportional share. Third, given the first two results, my data suggest that diversity issues exist both along the labor supply dimension and the labor demand dimension within U.S. arbitration. Fourth and finally, I find that future empirical diversity work in arbitration will be severely hindered unless more and better data are available to researchers. The study concludes by offering concrete and specific recommendations for how and why better data should be collected and made available to the public.
  • Sex/Gender Segregation: A Human Rights Violation, Not a Protection

    Tueller, Jessica (Yale Journal of Law and Feminism, 2024)
    This Article argues that human rights law should be interpreted to prohibit sex/gender segregation in all contexts, including education, employment, bathrooms, prisons, and sports, because of the gendered harms it produces. Prohibiting sex/gender segregation would constitute a departure from the current approach of international and regional human rights mechanisms, which has been to discourage sex/gender segregation in education and employment, require it in bathrooms and prisons, and devote little attention to it in other contexts, such as sports. This departure is needed because sex/gender segregation, no matter the context, perpetuates and reinforces gender stereotypes to the detriment of everyone, especially women and LGBTI persons. Since international law requires States to modify harmful gender stereotypes and eliminate wrongful gender stereotyping, States have an international obligation to eliminate sex/gender segregation regardless of the context in which it occurs. Common arguments in favor of sex/gender segregation, arising out of protection, choice, and culture, do not prevent human rights mechanisms from finding that international law prohibits sex/gender segregation, but these concerns should be taken into consideration when proceeding toward the elimination of sex/gender segregation. Implementation of this prohibition on sex/gender segregation will need to be gradual and context-specific.
  • Removing the Bias of Criminal Convictions from Family Law

    Stoever, Jane K. (Yale Journal of Law and Feminism, 2024)
    What happens when a legal system reduces a person to a record of arrests and prosecutions and prioritizes that information in family court? And what are the implications when this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors? The Black Lives Matter movement brought attention to the need to expose racial injustice in areas that scholars often overlook. This Article is the first legal scholarship to examine judicial reliance on convictions in family law and domestic violence proceedings. Judges are currently provided with entire criminal histories, and statutes explicitly allow for or require family court judges to consider past criminal convictions and the probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence, as revealed by the research and fifty-state survey conducted for this Article. Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants' lives, relationships, families, and communities. Judges' implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, further affect adjudication and pressure parties to accept plea offers or settlements. This Article also addresses survivors' advocates' potential objections to decreasing judicial reliance on criminal convictions and the imperative to avoid minimizing harms experienced by people of color. The Article concludes by offering a statutory framework to reform the role of criminal convictions in domestic violence and family court proceedings. The recommended statutory reforms are positioned alongside emerging expungement and vacatur laws. Without the remedy recommended in this Article, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.
  • "Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws

    Alstott, Anne; Olgun, Melisa; Robinson, Henry; McNamara, Meredithe (Yale Journal of Law and Feminism, 2024)
    In a hearing before the Florida House of Representatives, Rep. Webster Barnaby addressed transgender witnesses as "demons and imps who come and parade before us and pretend that you are part of this world." Barnaby's remarkably candid statement is an outlier because it reveals that religion-rather than sound science-underlies the new wave of antitransgender laws that have been adopted by at least 20 states since 2021, with the vast majority enacted in 2023. In legislatures, courts, and agency hearings, proponents of anti-trans measures - in contrast to Barnaby - frame their arguments in scientific terms, contending that biology and medicine dictate exceptionalist treatment of trans gender people. In this Article, we make three contributions. First, we debunk these purported scientific claims, showing (with full citations to the scientific literature) that the core arguments for anti-trans laws rest on misinformation ( defined as false information that could, with due diligence, be determined to be false) and religious pseudoscience ( defined as statements that use scientific vocabulary but rest on religious tenets and defy sound science). We closely examine key state legal documents, including legislation, attorney general opinions, and administrative agency documents. Our analysis shows that the core and repeated "scientific" arguments in these documents defy sound science and rest, instead, on religious principles about the binary nature of sex and gender and the corruption of secular society. Second, we show that the "playbook" of misinformation and pseudoscience that has long fueled anti-LGBTQIA+ and anti-abortion laws is now being deployed by conservative religious organizations to promote and defend anti-trans laws. Not all religious organizations oppose transgender and queer rights, and not all opposition to transgender rights is based in religion. Still, close-knit conservative Catholic and evangelical Protestant groups have been on the front lines of efforts to promote and defend anti-trans laws. Leaked documents and emails show how medical and legal groups united by religion collaborated to create purported "scientific" documents and identify purported "experts" to push anti-trans measures. Third, we address the limitations of litigation in com batting anti-trans laws. Transgender plaintiffs challenging healthcare bans won decisive victories at the trial level, with federal and state courts in six jurisdictions forcefully rejecting the misinformation and purported "experts" put forward by the states. In the summer of 2023, however, subsequent decisions in federal appellate courts and state supreme courts overturned these decisions, with the higher courts giving credence to states' pseudoscientific claims and sharply narrowing constitutional protections for transgender youth and their families. These decisions explicitly connected transgender rights to abortion rights and adopted the Dobbs approach of limiting constitutional protections based on nineteenth-century social conditions. Litigation remains ongoing, and recent court decisions have addressed only preliminary injunctions based on limited factual records, so the plaintiffs may yet prevail in some cases. Even in the best case, however, litigation takes years-with harm accruing to transgender people in the meantime- and is vulnerable to gaming by states that are doubling down, enacting new anti-trans laws even as existing ones are struck down. We conclude that litigation is a welcome but limited remedy and that additional legal and policy measures are worth exploring. These include the enactment of express protections for LGBTQIA+ people by Congress and federal agencies. More speculatively, we consider procedural protections that could be adopted at the state level as well as possibilities for private action by researchers and nonprofit organizations. Although there are no easy answers, this Article outlines a range of possible approaches, some of which would make it more difficult for states to target queer people and others of which would tackle the broader problem of misinformation and religious pseudoscience enacted into law. We also explore potential challenges under the Establishment Clause, which could prompt courts, legislatures, executives, and popular movements to reject pretextual secular claims when-as here-the underlying motivation and asserted "facts" are religious in nature and amount to the state adoption of religious doctrine.
  • Black Feminist Thought Grounds and Centers Us: A Reflection by Two Activists and Legal Workers

    Shabazz, BeKura W.; Sangoi, Lisa (2023)
    Working in and around the law for the past several years, we became acutely aware of—have felt in our bones—a certain paradox in the law: how legal resources and opportunities to shape the law are completely unavailable to the vast majority of people in the United States, and yet legal structures exert an enormous, tsunami-like force on those people, even those who are trained to work within those structures. Give birth to a baby who tests positive for opioids? The law says the state can take your baby away. How does the law govern when and how you can get your child back? Can you—and how often can you—visit your baby? What must you do to be reunited? How long can the agency that took your kid away stay in your life? The answers to all these questions should be readily available to you, but instead, they will likely be made up as you churn through the system.
  • Feminism, Legal Activism, and Sex Work: Reconciling to Move Forward

    D’Adamo, Kate (2023)
    When it comes to the sex trade, some principles of feminist legal theory have done grave damage to those on the ground. While intended to uplift, these principles have instead created more violence, discrimination, and gender-based hierarchies. Two main areas where feminist legal theory has failed to appreciate the lived realities of sex workers are its reliance on the criminal legal system and its limited view of who counts as a woman. While I wish to explore the relationship between theory and practice, I reject the idea that these are two separate spheres that should interact. This view posits that the interaction between theory and practice is a choice, but it is not. Sex work has inspired theories on how to understand and address certain issues related to transactional sex. The creation of theories and their implementation impacts people in the sex trades. This interaction is a constant reinforcing loop, but only theorists can choose to ignore it. While we should continually re-envision what lessons from the ground feminist legal theory can learn from, the exchange between theory and practice must begin with repair, and it must recognize the effect that feminist legal theory has already had on people who trade sex. This work must begin to repair the incredible damage done to sex workers as a result of the implementation of these theories.
  • Strategic Human Rights Litigation: A Feminist Reflection

    Yoshida, Keina (2023)
    In 2012, I was lucky enough to attend a Black feminist event at the Trafford Rape Crisis Centre in Manchester, United Kingdom, where Kimberlé W. Crenshaw and Sara Ahmed spoke about intersectional feminism. Ahmed explained that she often turns to the work of Audre Lorde as a feminist lifeline. Lifelines can be “anything or perhaps it is always something” and that something might be “words sent out by a writer, gathered in the form of a book, words that you hang on to, that can pull you out of an existence, which can, perhaps later, on another day, pull you into a more livable world.” Lorde’s work questioning whether the master’s tools could ever dismantle the master’s house, is among my lifelines. The question has taken on a different significance for me and has become central to my own thinking about strategic feminist praxis and the law. Can the law ever really dismantle patriarchy and challenge the oppression and discrimination women suffer through structural inequalities? What is the role of the master’s tools in all of this? How is the law complicit in such oppression?
  • At the Crossroads of Theory and Practice

    LaFleur, Greta (2023)
    This special issue fittingly concludes with mediations from a diverse group of advocates and practitioners on what relationship exists—or should exist—between feminist legal theory, on the one hand, and the practice of legal advocacy, on the other. Focusing on how feminist prerogatives guide how movements make use of, or eschew, the law, the writers whose advocacy is showcased in this section explore how and to what degree feminist legal theory has taken up the actual practice of law and advocacy as a site for intervention or the advancement of gender justice. Conversely, these four practitioners—two attorneys, one sex work policy advocate, one self-identified “non-attorney legal advocate,” and none of them law professors— also reflect on their own experiences of feminist lawyering and advocacy, considering to what degree their own praxis reflects, engages, or refuses the myriad insights and political priorities emphasized in feminist legal theory, as a body of thought. Across the three pieces, there are multiple points of convergence and divergence, but where these writers and advocates agree is around the fact that process, in movement lawyering work, is every bit as important as product. In other words, as authors BeKura Shabazz and Lisa Sangoi write, the question of “how social change is achieved is just as important as the social change that is achieved.”
  • A Feminist Defense of Transgender Sex Equality Rights

    MacKinnon, Catharine A. (2023)
    An emerging direction in sex equality law—one I have taught and sought for decades for both sexual orientation and transgender rights—is that discrimination against trans people is discrimination on the basis of sex, that is gender, the social meaning of sex. The Bostock decision recently recognized the simplest version of the argument. This recognition does not, contrary to allegations of anti-trans self-identified feminists, endanger women or feminism, including what some in this group call “women’s sex-based rights.” To begin with, women—in the United States anyway—do not have “sex-based rights” in the affirmative sense some in this group seem to think. We do have (precious few) negative rights to be free from discrimination on the basis of sex— which has almost always meant gender, actually—and so do men. If this invented term means a right to single-sex education for women, as against co-education, it has been on the thinnest possible legal ice for decades under the hegemony of gender neutrality. It may be that women’s schools continue to exist largely because no case challenging them has reached the Supreme Court in a very long time. I support women’s colleges and am glad to see them admitting anyone who identifies as a woman and graduating anyone they admit (some girls become boys these days). But the weight of sex discrimination law, built to be gender neutral since Ruth Bader Ginsburg’s early cases, leans strongly against the constitutionality of women’s schools (and HBCUs under colorblindness), public or private.
  • Feminist Jurisprudence in Tribal Courts: An Untapped Opportunity

    Deer, Sarah (2023)
    What if every gendered legal issue was not burdened by over 200 years of patriarchal and racist precedent? How would feminists craft legal practices and structures in a way that would be grounded by a clear understanding of the harms of oppression and subjugation? These questions are not just rhetorical; this essay argues that a fresh perspective is possible in the context of an Indigenous feminist jurisprudence. Indigenous feminist legal theory (IFLT) is in its nascent stages as a contemporary academic discipline and praxis. It has largely been elucidated by legal scholars in Canada, including Emily Snyder, Val Napoleon, and John Borrows. Snyder explains that IFLT lies at the intersection of feminist legal theory, Indigenous feminist theory, and Indigenous legal theory.
  • Deterritorializing Abortion: Gender, Law, and Procedure

    Douglass, Patrice D. (2023)
    In the wake of the Dobbs v. Jackson Women’s Health Organization United States Supreme Court decision—which overturned the landmark decisions in Roe v. Wade and Planned Parenthood v. Casey—UC Berkeley Law Professor Khiara M. Bridges testified before the United States Congress about the potential catastrophic consequences of the ruling. Bridges discussed abortion as an issue impacting people with the capacity for pregnancy, which was met with intense opposition and disregard from Missouri Republican Senator Josh Hawley. He insisted that abortion was a “women’s right issue,” while pressuring Bridges to agree. However, in a clear and direct response, Bridges offered firm rebuttal, noting that this line of questioning from Hawley was transphobic, stating further, “Denying that trans people exist and pretending not to know that they exist is dangerous.” This, she argues—and the argument presented here will agree—“opens up trans people to violence,” given that multiple genders are represented under the umbrella of people needing abortion access and care.
  • Ne Nya Sexpuritanerna

    Thusi, India (2023)
    The northbound train has just arrived at the Old Town train station in Scandic City. The subway conductor is looking for passengers on the platform before preparing for the train’s departure to the next stop. Jasmine and Rebecca hurry past the sliding doors of the well-maintained red train and feel a sense of relief that they caught it. As the ladies run into the train, the conductor shuts the doors and begins to direct the train toward its next destination, into downtown Scandic City. Scandic City is the capital city of Oceania, which is reputed to be a truly egalitarian society. Scandic City’s extensive police force includes “security officers” that handle low-level and quality-of-life offenses, as well as more professionalized “police officers.” This security organization is central to the democratic socialist agenda in Scandic City because the preservation of law and order is critical to the radical left agenda of the egalitarian New Radicals political party. This egalitarian society reflects the feminist vision of the world. The country has a well-developed statecraft for control, which—for the most stigmatized women and people in Oceania—is experienced as pain.
  • The Critique of Carceral Feminism

    Gruber, Aya (2023)
    Few scholarly arguments incense self-identified feminists—especially prominent ones—as much as the claim that feminism contributed to the racist, inhumane, and overbroad American penal system. Over the years, scholars from outside and within feminism have offered various historical, philosophical, and genealogical analyses of the feminist movement’s relationship to mass incarceration. These writings assert that powerful feminist ideologies and groups contributed materially to the growth of the criminal punishment system and served as powerful legitimators of penal authority in the last several decades. Critics of “carceral feminism” argue that feminists collaborated with the carceral state, often unintentionally, by among other things cementing raced and gendered narratives of crime victimhood, giving bipartisan credence to policing and prosecution programs, reinforcing the notion that the criminal system “works,” and bolstering the neoliberal precept that violence stems from individual choices rather than structural conditions.
  • Feminist Legal Theory and Praxis after Dobbs: Science, Politics, and Expertise

    Ahmed, Aziza (2023)
    Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor. That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women’s liberation. In Dobbs v. Jackson Women’s Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist legal praxis, I will argue that contestation around medical and epidemiological evidence will continue to shape the abortion debates despite the Supreme Court’s recent decision. Reproductive rights advocates need to continue to pay close attention to new battles occurring in the register of evidence, medicine, and expertise. Doing so will require reproductive rights advocates to examine purportedly neutral scientific and expert-based justifications in the legal regulation of the practice of medicine and medication more closely. This will create new and necessary avenues for legal advocacy, including challenging when and where legal institutions legitimate misinformation about abortion or limit access to abortion based on science and evidence. In taking on questions of expertise and evidence, abortion rights advocates can learn from the overlapping movement to end racial bias in medicine and medical technology.
  • On Marching Karens and Metaphorical Black Women

    Nash, Jennifer C. (2023)
    In 2021, the New York Times published “March of the Karens,” an article that described a figure who symbolizes all that is wrong with contemporary feminism: Karen. Ligaya Mishan describes Karen as an “interfering, hectoring white woman, the self-appointed hall monitor unloosed on the world, so assured of her status in society that she doesn’t hesitate to summon the authorities . . . for the most trivial and often wholly imaginary transgressions.” In a moment when leftist calls for abolishing and defunding the police proliferate, Karen enacts her power by enlisting and supporting the police in her violent anti-Black efforts all the while disavowing the power she wields. Karen calls the police on Black people engaged in the most ordinary of activities, including Black children selling water, Black people stenciling on their own homes, Black families barbecuing, and Black people bird-watching.
  • Distorting the Reconstruction: A Reflection on Dobbs

    Goodwin, Michele (2023)
    History will likely record Dobbs v. Jackson Women’s Health Organization1 as the most devastating case of the Supreme Court’s 2021 term and perhaps one of the worst Supreme Court decisions of all time. However, the Dobbs decision offers an opportunity to revisit the damaged path to reproductive freedom, dating back to American slavery and bridge pathways forward with better understanding. This Essay offers a reflection on Dobbs, speaking to the origins of reproductive autonomy and justice concerns that preexisted Reconstruction. The Essay argues that by examining the antebellum archive, a different type of slavery and involuntary servitude comes into view, namely the involuntary reproductive servitude imposed on Black girls and women.
  • Social Reproduction in and of Feminist Legal Theory

    Dinner, Deborah (2023)
    My reflections on the subject of “origins” begin with social reproduction in feminist activism and thought. This topic is more commonplace in feminist scholarship outside of the legal academy. Feminist sociologists, political philosophers, and historians define social reproduction as the “various kinds of work—mental, manual, and emotional—aimed at providing the historically and socially, as well as biologically, defined care necessary to maintain existing life and to reproduce the next generation.” Social reproductive labor includes unpaid care work within families, kin networks, and communities as well as various forms of paid work. Such labor divides along racial as well as gender lines. The law’s role in distributing, rewarding, and regulating social reproductive labor is pivotal to the construction of gender, race, and class identities and inequalities.
  • The Winding Path Toward Gender Equality and the Advocates and Scholars Who Forged It

    Grossman, Joanna L. (2023)
    At its broadest, “feminist legal thought” describes the effort across generations to secure equality for women through law. The ideas that have emerged from this work can be loosely typed as “equality theories,” and the statutes, constitutional interpretations, and doctrines they inform can be tied together under the heading of “gender law.”
  • The Intersectional Origins of Modern Feminist Legal Advocacy

    Mayeri, Serena (2023)
    Intersectionality, reproductive justice, abolitionism, LGBTQ+ liberation, and democracy defense have moved to the center of twenty-first century feminist legal thought and advocacy, with feminists of color and queer scholars and activists at the forefront. But it wasn’t always so. Or was it?
  • Our Moment - Letter from the Editor

    Hayes, Jelani (2023)
    his Symposium was inspired by events that took place last summer. In fact, I have measured the past decade in summers. In summer 2013, a jury failed to provide legal justice for Trayvon Martin, and the verdict sparked the Black Lives Matter movement. The next summer, Michael Brown’s death at the hands of a police officer inspired intense protests in Ferguson, Missouri. During summer 2015, nine black American worshippers were murdered at the historic Emanuel AME Church in Charleston, South Carolina. President Obama sang “Amazing Grace,” and Congress failed, once again, to reform our gun laws. But a week later, Americans celebrated the United States Supreme Court’s landmark decision in Obergefell v. Hodges, which held that the Fourteenth Amendment protects the right to same-sex marriage.

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