Article: Margaret F. Brinig, “Racial and Gender Justice in the Child Welfare and Child Support Systems,” 35 Law and Inequality: A Journal of Theory and Practice (forthcoming).
While divorcing couples in the United States have been studied for many years, separating unmarried couples and their children have proven more difficult to analyze. Recently there have been successful longitudinal ethnographic and survey-based studies. This piece uses documents from a single Indiana county’s unified family court (called the Probate Court) to trace the effects of race and gender on unmarried families, beginning with a sample of 386 children for whom paternity petitions were brought in four months of 2008. It confirms prior theoretical work on racial differences in noncustodial parenting and poses new questions about how incarceration and gender affect low income families.
Article: Michele E. Gilman, “En-Gendering Economic Inequality,” Colum. J. Gender & L. (forthcoming).
We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither inevitable nor intractable. Given that the government creates the rules of the market, it is essential to analyze the government’s role in perpetuating economic inequality.
This Article specifically examines the role of the Supreme Court in contributing to gender based economic inequality. The thesis is that the Supreme Court applies oversimplified economic assumptions about the market in its decision-making, thereby perpetuating economic inequality on the basis of gender. Applying insights of feminist economic theory, the Article analyzes recent Supreme Court jurisprudence about women workers, including Wal-Mart v. Dukes (denying class certification to female employees who were paid and promoted less than men), Burwell v. Hobby Lobby Stores, Inc. (granting business owners the right to deny contraception coverage to female employees on religious grounds), and Harris v. Quinn (limiting the ability of home health care workers to unionize and thereby improve their working conditions). In these cases, the Court elevates its narrow view of efficiency over more comprehensive understandings, devalues care work, upholds harmful power imbalances, and ignores the intersectional reality of the lives of low-wage women workers. The Article concludes that the Court is eroding collective efforts by women to improve their working conditions and economic standing. It suggests advocacy strategies for reforming law to obtain economic justice for women and their families.
Op-Ed: Natasha J. Cabrera & Ron Mincy, Papa’s Not a Rolling Stone: Low-Income Men and Their Children, American Prospect, Aug. 19, 2016.
New Article: Kate Sablosky Elengold, Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing, 27 Yale J. L. & Feminism 227 (2016). Abstract below:
This Article identifies and analyzes the structural forces that permit and ignore racialized sexual harassment in housing. Although scholarship on sexual harassment in housing is sparse, the existing research and resulting body of law generally advances a narrative focused on the female tenants’ economic vulnerability and violation of the sanctity of her home. The narrative advanced in scholarship and advocacy, along with the resulting jurisprudence, presents an archetype of a deviant male landlord abusing his authority to take advantage of women sexually who, because of their economic circumstances, have no alternatives. This Article terms it the “dirty old man” narrative. Drawing attention to the racialized sexual harassment that lies beneath the stock story for many African American female tenants, this Article dismantles that narrative. The purpose of the scholarship is two-fold. The first is to expose, for the first time, the undercurrent of racialized sexual victimization that is absent from the “dirty old man” narrative. To do that, this project methodically examines court filings in sexual harassment cases brought by the Attorney General under the federal Fair Housing Act and analyzes the entire body of federal and state court opinions assessing residential sexual harassment claims. The second objective is to identify the structural factors — cultural acceptance of the “Black Jezebel” myth, legal rights, access, and generational economic and racial hierarchies — that operate together to perpetuate racialized sexual harassment in rental housing, an analysis that draws on social science research, along with critical race, critical feminist, and intersectionality theories. This Article contends that those structural forces are the same factors that have operated to permit and hide the sexual subjugation of Black women in the private sphere throughout history — during slavery, as domestic workers, and in the present-day failure to prosecute sexual assault against Black women. Ultimately, it argues that the prevailing “dirty old man” narrative risks silencing both the individual stories of racialized sexual harassment at home and the larger conversation about the structural forces permitting and ignoring the abuse.
New Article: Elizabeth L. MacDowell, Domestic Violence and the Politics of Self-Help, 22 William & Mary J. Women & the Law 203 (2016). Abstract below:
Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to stereotypes about domestic violence victims and responded negatively to litigants who raised questions or sought assistance outside the scope of narrowly defined services. Staff members also failed to provide assistance with important economic remedies and de-prioritized safety planning and referrals to vital antiviolence services. In these and other ways, staff members influenced what relief was sought and by whom. This finding is especially troubling given the overarching goals of domestic violence protection orders to increase safety and empower low-income women, and has broad implications for studying access to justice and law and social movements. This Article also contributes to the analysis of demeanor by expanding previous typologies with the addition of two new categories: token supportive demeanor, and apathetic demeanor. These additions further account for how authority is displayed in legal settings, and how law is implemented through everyday interactions as well as formal decision-making.
New Book: Felice Batlan, Women and Justice for the Poor A History of Legal Aid, 1863–1945 (2015). Abstract below:
This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women’s history in dialogue, it demonstrates that nineteenth-century women’s organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor.
Conference: “Poverty and Reproductive Justice: When Choice is a Privilege, Not a Right” – Mar. 23, 2015 at American University Washington College of Law, Washington, DC.