New Article: Ederlina Co, Abortion Privilege, 74 Rutgers L. Rev. 1 (2021). Abstract below:
This Article launches a critical dialogue about the abortion privilege. On the one hand, most abortion patients are low income or live below the poverty line and are disproportionately women of color. Many of these patients encounter multiple restrictions on abortion and must travel lengthy distances to abortion care facilities. These patients take center stage in abortion rights cases and in abortion rights discourse. On the other hand, there is a smaller but not insignificant group of abortion patients for whom abortion care is paid for by private or public health insurance or available out-of-pocket funds. Many of these patients live in states where abortion is unrestricted, and abortion care facilities are accessible often in the county in which they live. These patients experience abortion as a form of ordinary health care and rarely show up in abortion rights cases and abortion rights discourse. They have the abortion privilege.
This Article reveals the abortion privilege and contends that its recognition and thoughtful incorporation into abortion rights law and discourse could help redistribute the oppressive load women without the same privilege carry in connection with the right and help shore up the abortion right. First, demonstrating widespread reliance on abortion, including by women with the abortion privilege, is crucial to the stare decisis argument to uphold Roe v. Wade. Demonstrating widespread reliance on abortion would also help reduce the abortion stigma, which is both harmful to women and makes demonstrating widespread reliance on abortion so difficult in the first place. Second, the abortion debate and abortion itself has changed, but women’s experience with abortion as a form of ordinary health care has not surfaced as part of the public narrative about abortion. Such a narrative demonstrates that abortion is like other medical procedures and confirms that women have the knowledge to decide the outcome of their pregnancies without state intervention. Although not everyone may be willing to see abortion as ordinary health care today, they may be open to seeing it that way in the future if we begin to tell that story. Finally, as equality re-emerges as a prominent theme in legal and political arguments in support of the abortion right, to advance that argument with integrity and to coalesce a base of support around it, there must be concerted efforts within the abortion rights movement to acknowledge and reckon with the inequalities among women who make the abortion decision. The abortion privilege framework is designed to recognize these inequalities and prompt efforts to equalize them. In addition, the framework is designed to preempt the deprioritization of women without the same privilege and make clear to privilege holders that the abortion privilege perpetuates their inequality, too.
New Book: Joanne Meyerowitz, A War on Global Poverty: The Lost Promise of Redistribution and the Rise of Microcredit (2021). Overview below:
A War on Global Poverty provides a fresh account of US involvement in campaigns to end global poverty in the 1970s and 1980s. From the decline of modernization programs to the rise of microcredit, Joanne Meyerowitz looks beyond familiar histories of development and explains why antipoverty programs increasingly focused on women as the deserving poor.
When the United States joined the war on global poverty, economists, policymakers, and activists asked how to change a world in which millions lived in need. Moved to the left by socialists, social democrats, and religious humanists, they rejected the notion that economic growth would trickle down to the poor, and they proposed programs to redress inequities between and within nations. In an emerging “women in development” movement, they positioned women as economic actors who could help lift families and nations out of destitution. In the more conservative 1980s, the war on global poverty turned decisively toward market-based projects in the private sector. Development experts and antipoverty advocates recast women as entrepreneurs and imagined microcredit—with its tiny loans—as a grassroots solution. Meyerowitz shows that at the very moment when the overextension of credit left poorer nations bankrupt, loans to impoverished women came to replace more ambitious proposals that aimed at redistribution.
Based on a wealth of sources, A War on Global Poverty looks at a critical transformation in antipoverty efforts in the late twentieth century and points to its legacies today.
New Article: Deborah A. Widiss, Equalizing Parental Leave, 105 Minn. L. Rev. 2175 (2021). Abstract below:
The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for most federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure—probably unintentionally—disadvantages sole-parent families.
In America, unlike most other countries, leave is provided on a sex-neutral basis as an individual benefit to each parent of a newly-born or newly-adopted child. This structure is intended to shift gender norms around caretaking within (different-sex) marriages, but it means that sole-parent families receive only half as much support. This is a significant problem, as forty percent of new mothers in the United States are unmarried. Under state family laws, most single mothers, disproportionately poor and working-class women of color, bear sole legal responsibility for the care of their children, and many are functionally parenting on their own. The new laws are an important step forward from the prior baseline of no paid leave, but they shortchange the families that are likely to need them the most.
Prior theoretical and doctrinal assessments of equality in the context of parental leave discuss the relative merits of treating mothers and fathers identically, versus providing “special” supports to mothers. This focus obscures other important considerations, such as whether families or children are treated equally. Additionally, since women are far more likely than men to be single parents, privileging ideals of formal equality in this context has the practical effect of disadvantaging women. Drawing on models used in other countries, this Article proposes that sole parents should be eligible to receive an extended period of benefits, or that a broader range of extended or chosen family members should be able to claim benefits to care for a newly-born or newly-adopted child. This proposal would not unduly burden businesses, because the financing mechanism for these laws already spreads costs across the tax base.
New Article: Deborah M. Weissman, In Pursuit of Economic Justice: The Political Economy of Domestic Violence Laws and Policies, 2020 Utah L. Rev. 1 (2020). Abstract below:
Violence experienced within the family — perhaps the most intimate of all social arrangements — causes devastating consequences. Recent phenomena, including accounts of perpetrators of mass shootings with a history of domestic violence and the #MeToo movement, have called new attention to the costs and consequences of violence against women. Intimate violence wreaks havoc extending beyond the private spaces of the household, thereupon to lay bare the structural shortcomings of public institutions.
The act of domestic violence enters the public imagination principally as an offense of physical abuse. It is more complicated. In fact, intimate partner violence (IPV) is often exercised as an act of coercion by abusers who engage in strategies to interfere with their partners’ ability to engage productively in the workplace and deny them control over economic resources, that is, to deny them agency. Certainly, awareness of the insidious facets of economic coercion of IPV has expanded in recent years. However, attention to the efficacy of legal and policy responses to the economic consequences of such abuse has not received commensurate attention. Federal and state laws designed to address economic abuse are applied haphazardly if at all. The laws themselves, moreover, are ill-suited to address the structural issues that contribute to domestic violence in the first place. Similarly, “economic justice initiatives” promoted by anti-violence advocates to “respond to, address, and prevent financial abuse” related to domestic violence fall far short of their intended goals. The primary programmatic focus of the “economic justice initiatives” tend to privilege personal financial literacy as a means to repair consumer credit and enhance victims’ capacities to bank and save as a strategy of economic independence. These programs ignore the overarching neoliberal underpinnings of the political economy that burden victims with the costs of their own remediation through practices designed to benefit financial markets.
The recent attention to remediating domestic violence including economic abuse sets in relief the need to introduce analyses of political economy into law practices and advocacy strategies. This article provides such analysis and considers how legal remedies and advocacy strategies that address economic abuse are constrained and shaped market forces. It argues that without an understanding of political economy, programmatic “advances” may in fact exacerbate the economic circumstances of victims as well as abusers. Those whose lives are shattered by domestic violence should not be subjected to a remediation paradigm more suited for those who possess political and financial power than those who do not.
New Article: Michelle Ewert, Their Home is Not Their Castle: Subsidized Housing’s Intrusion into Family Privacy and Decisional Autonomy, 99 N.C. L. Rev. 869 (2021). Abstract below:
The anti-Black racism that has permeated public benefits programs and federal housing policy for over a century persists in subsidized rental housing. Public housing authorities (PHAs) impede the ability of tenants—who are disproportionately Black women—to change household composition as their family situations change. PHAs routinely take months or longer to approve requests to add or remove household members and often require tenants to produce inaccessible third-party verification of a former household member’s new address before removing them from official records. In failing to grant these requests promptly, PHAs infringe on tenants’ fundamental right to privacy and family autonomy, impose a financial burden on tenants who have limited resources, and put tenants at risk of eviction if former household members are arrested for criminal activity.
This Article proposes workable solutions to these problems. First, PHA failure to timely respond to a request to adjust household composition should be treated as a constructive denial, as is done in fair housing law and other areas of administrative law. This strategy would allow tenants to pursue administrative and judicial review rights that already exist in public housing and the housing choice voucher program. Second, the statutory or regulatory schemes governing subsidized housing should be amended to include subpoena powers such as exist in the Administrative Procedure Act to allow tenants to access needed third-party records. These changes would protect the substantive and due process rights of vulnerable tenants and help dismantle systemic racism that continues to plague public benefits programs.
Katherine A. Sabbeth & Jessica Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming 2022). Abstract below:
This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.
We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.
Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases—family law, eviction, and debt collection—all disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, their individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.
Noah M. Kazis, Fair Housing for a Non Sexist City, 134 Harv. L. Rev. 1683 (2021). Abstract below:
Sex discrimination is built into the American landscape. Zoning ordinances, building codes, restrictive covenants, and other housing laws reflect — and then entrench — the gender norms of an earlier era. These laws evict domestic violence victims from their homes, privilege stay-at-home parenting over paid child care, push men into homelessness by eliminating forms of low-cost housing on which they disproportionately relied, and create spatial patterns of development that systematically exacerbate women’s secondary-earner status. This Article identifies the ways that gender disparities and sex stereotypes are built into our cities and suburbs — something few legal scholars have recognized — and for the first time shows that fair housing law provides the tools to confront this discrimination.
This Article also demonstrates that fair housing law has uniquely failed to tackle sex-discriminatory policies and structures. Neither litigants nor the Department of Housing and Urban Development, the agency responsible for administering the Fair Housing Act (FHA), has done so — unlike for other protected classes, including race or disability. Instead, the FHA has been used almost exclusively to attack individual, intentional acts of sex discrimination.
This Article proposes a new path forward, showing how the FHA can take on subtly sex-discriminatory housing policies. It identifies policies that are readily cognizable as sex discrimination under current law, including the FHA’s unique mandate that governments “affirmatively further fair housing.” Drawing on those examples, the Article advances a new understanding of “fair housing” for sex: one that seeks to dismantle the legacy of the gendered “separate spheres” ideology underlying so much of contemporary American urbanism.
New Article: Bridget J. Crawford & Emily Gold Waldman, Period Poverty in a Pandemic: Harnessing Law to Achieve Menstrual Equity, Washington University Law Review, Forthcoming. Abstract below:
Period poverty is not new, but it has become more visible during the COVID-19 crisis. Worldwide, menstruation has long caused marginalization and vulnerability for some. The pandemic has amplified these conditions. This Article makes three claims. The first is descriptive, identifying four interrelated aspects of global period poverty that have gained new salience during the coronavirus pandemic: lack of access to affordable menstrual products; lack of access to other needed supplies and services for health and sanitation; lack of menstruation-related information and support from schools and health professionals; and menstrual stigma and shame. By using examples from multiple countries, the Article highlights the importance of having the ability to manage one’s menstruation in a safe and affordable way.
The Article’s second claim is that law has a role to play in eliminating period poverty—both during a pandemic, and beyond. By making sure that menstruation-related concerns are taken into account in defining “essential businesses,” for example, governments can both address the material needs of approximately half the population and signal that those needs are important.
Finally, the Article explores the heightened visibility of menstruation-related concerns during the COVID-19 crisis as suggestive of an emerging popular awareness of period poverty. This Article’s account has important implications for a larger world-wide menstrual equity movement that takes aim at all menstruation-related obstacles standing in the way full participation for all people in private and public life.
G. Alex Sinha, Original(ism) Sin, 95 St. John’s L. Rev. (forthcoming 2021-2022). Abstract below:
For all the celebrated brilliance of the Framers, the Constitution betrays deep moral failings we would never countenance today. These failings, such as the original Constitution’s overt racism and abidance of slavery, made their way into the document because the drafters and ratifiers represented a narrow, privileged, homogeneous slice of the American population. The Framing excluded others—such as women, racial minorities, and those with fewer assets—due to their diminished social station. This bare fact is profoundly troubling, yet in some respects irremediable. Its implications are also surprisingly evasive. Some feminist and critical race scholars have highlighted the problem of constitutional exclusion in powerful fashion. Constitutional scholars have typically interpreted (and rejected) that objection as a challenge to the democratic or popular legitimacy of the Constitution, or as a general, perhaps amorphous concern that the Framing “contaminated” the Constitution or otherwise alienates systemically disadvantaged groups.
This Article offers a novel, broad and consequential interpretation of the problem of constitutional exclusion. It argues that concern about exclusion is, first and foremost, a concern about inequality, and more specifically a concern about the preclusion of racial minorities, women, and less wealthy Americans, as moral inferiors, from playing a role in laying the legal and political cornerstones of our Republic. Inequalities reinforced through subsequent constitutional adjudication—and the substantive disadvantages that persist in the life outcomes of members of excluded groups—take on a particularly sharp form when understood as compounding constitutional exclusion. Reframing the problem in this way reveals the basis for its persistence.
Understood as a problem of inequality, constitutional exclusion also highlights a commonly shared but generally hidden assumption: that the law—and the Constitution in particular—should inspire us morally. This hidden assumption about law’s moral role is a central feature of virtue jurisprudence, a burgeoning theoretical approach that analyzes the law primarily in terms of its relationship to the individual virtues (like courage and wisdom) of those it governs. The Article thus argues that our increasing recognition of the significance of constitutional exclusion, once properly defined, betrays an underappreciated affinity for virtue jurisprudence.
Finally, the Article illuminates how exclusion-as-inequality poses an especially serious challenge to originalism, particularly when viewed through the lens of virtue jurisprudence. Originalism urges the resolution of constitutional questions by appeal to a temporally-fixed, original understanding of the Constitution, and it is the preferred methodology of a significant proportion of the federal judiciary. It is therefore a prominent approach that seeks to entrench rather than jettison certain inequalities embedded in the Constitution, sapping the power of the Constitution to model virtue for the public. The tension between virtue jurisprudence and originalism is of significant theoretical importance because virtue jurisprudence is especially popular among scholars with originalist inclinations. Scholars drawn both to originalism and to virtue jurisprudence therefore face a serious dilemma concerning which to select.