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Legal: More

Elena Kagan on the Status of Women in the Law

Elena Kagan, the nominee proposed to fill an expected US Supreme Court vacancy, delivered the Leslie H. Arps Memorial Lecture at the Association of the Bar of the City of New York on Nov. 17, 2005. What follows is a section from that talk, given when Ms. Kagan was Dean of the Harvard Law School:

Let's start with the good news: by the turn of the twenty-first century, women accounted for almost one-third of the nation's lawyers and a majority of the nation's law students. In just over a decade, the number of women law partners, general counsels, and federal judges doubled. At Harvard, women now make up almost half of the JD student body - quite a contrast to the first class of thirteen women that graduated in 1953. Two years ago, we celebrated fifty years of women at Harvard Law School. That event drew close to 1,300 people, making it the largest alumni gathering in the Law School's history.

Such a celebration has special meaning in light of the huge obstacles faced by past generations of women — obstacles that now might seem laughable if they hadn't been so destructive. In a recent address, Justice Ruth Bader Ginsburg recalled several inglorious cases from the world of law schools. There was Columbia's denial of admission to several women in 1890, when one board member reportedly said: "No woman shall degrade herself by practicing law in New York especially if I can save her. . . . " Or consider a 1911 student resolution, widely supported — though ultimately defeated — at the University of Pennsylvania Law School: a resolution that would have introduced a twenty-five cents per week penalty on students without mustaches. Or the words of Harvard University's president, when asked how the Law School was faring during World War II. His reported response: That it wasn't as bad as he'd expected — "We have 75 students, and we haven't had to admit any women."

Thankfully such attitudes have pretty much vanished from our legal landscape; they are to be heard from only the most lunatic fringe. But despite the enormous progress made - and we don't want to lose sight of the advances — it's also true that women lawyers still lag far behind men on most measures of success. Now, as I said before, this is an issue for all of us. And since I'm the dean of a law school, that's where I'll start.

Last year, a working group of Harvard Law students issued a study on women's experiences. What they discovered closely tracked findings from other top schools that have studied these questions: While women and men arrive at law school with basically the same credentials, there's a real difference in how they experience their three years of legal study.

Most troubling are disparities in the academic arena in major law schools. Women law students are less likely to speak up in class. They graduate with fewer honors. And when asked to assess their own abilities, they give themselves far lower marks than men do on a range of legal skills. Here's an interesting statistic: according to the Harvard student survey, 33% of men considered themselves in the top 20% of their class in legal reasoning while only 15% of women did. Women also gave themselves lower marks in their ability to "think quickly on their feet, argue orally, write briefs, and persuade others." Reading this list, I had to shake my head: What exactly is left? Studies at other schools have found very similar trends. In the disturbing words of one female law student from the University of Pennsylvania: "Guys think law school is hard, and we just think we're stupid."

Read more »

 

Joanna Grossman on Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance

We pick up Joanna Grossman's article at this point ...

Common-Law Marriage Today

Today, common-law marriages can be established in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Moreover, six additional states recognize common-law marriages that were established prior to the date that the relevant state's legislature abolished the status. Thus, for example, common-law marriages established in Oklahoma prior to November 1, 1998 are valid.

(Readers who watch the ABC drama Grey's Anatomy might note that Washington State is not on this list. Thus, Derek and Meredith, who purported in last year's season finale to get married by "post-it note" because they couldn't find the time to sneak away from the hospital to Seattle's city hall, are not, even in TV-land, actually married.)

But common-law marriage sometimes reaches even further – for most states that have abolished common-law marriage nonetheless will give effect to such a marriage if it was validly established elsewhere. This is consistent with the general principles of interstate marriage recognition, which I have discussed in many previous columns, including here and here. The "place of celebration" rule, which every state follows, provides that a marriage is valid everywhere if it is valid where celebrated.

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The Decision to Remove an Obese Child From His Mother: A Lawyer Differs

Sherry Kolb, a lawyer, Cornell professor and law clerk to former Justice Harry Blackman, voices her views on the recent decision by a South Carolina court to remove a child from his mother's custody. Here are a few paragraphs from her FindLaw column:

This past May, the South Carolina Department of Social Services accused Jerri Althea Gray of unlawful neglect of a child, because her 14-year-old son, Alexander Draper, weighed 555 pounds. After a hearing was scheduled to determine whether Gray was in fact medically negligent in caring for her son, Gray and Draper fled the state. They were found a few days later in Baltimore. The police arrested Gray and placed Draper in protective custody in South Carolina. Though Draper's weight is extreme (and may well reflect a metabolic disorder), the arrest of his mother and his removal from her custody raise an important question about parental obligations and nutrition: Might it be child neglect simply to feed our children the Standard American Diet?

Why Jerri Gray Should Still Have Custody of Alexander

Without venturing very deeply into the issue of over- versus under-nutrition, it is readily apparent that taking Jerri Gray's son away from her was the wrong decision. Here we have a woman who loves her son and who has spoken out publicly, explaining that she works so many hours at more than one job – to support herself and Alexander – that she must rely on fast food far more often than she would like. She is not saying that she believes strongly in a fast food diet and wants her son to eat it in great quantities so that he can remain morbidly obese.

Gray has no commitment to unhealthy food. If the government is prepared to spend time and money helping her son, Alexander, lose weight and eat the right kinds of foods, then she would seem by all appearances to be more than happy to receive such aid. Gray stated, convincingly, that "[m]entally he needs to be with me. We both need to be included together in whatever program that they have to offer so that we both can benefit from it. So as our lives go on together, then we will have learned how to control it and keep it under control."

Rather than employing people to take away Gray's beloved child, in other words, the government could spend considerably less money providing her with healthy food and information about nutrition. What she evidently lacks are resources, not love or concern for her son.

Imagine a contrasting scenario. A single father has a 14-year-old daughter who is severely underweight. Preliminary investigation reveals that the daughter suffers from anorexia nervosa and refuses to eat more than a few hundred calories each day, because she believes she is fat. The father tells his daughter that she is too thin and should eat more, but she refuses to do so and in many contexts eats (or fails to eat) outside the presence of her father (because he is at work, or she is in school). The father is unfamiliar with the condition of anorexia nervosa and does not realize that there are mental health treatments for it.

In this situation, a government official wanting to help the anorexic girl might begin by notifying the father that his daughter is suffering from a dangerous mental illness, an illness that could prove fatal if left untreated. The same official could give the father information about places that assist victims of anorexia. Indeed, the official might even encourage the father to have his child forcibly admitted to a hospital and given nutrition, if all else fails.

What would not make sense, however, would be for the government to remove the daughter from her father's custody on grounds of child neglect. Doing this would break apart an otherwise loving family and needlessly add psychological trauma to an already fragile child's life. And in the case of Jerri Gray and her child, that seems to be exactly what has happened.

Read the  rest of Sherry Kolb's column at FindLaw

 

Case Law

From Johanna Grossman's article, Sex-Stereotyping and Dress Codes Under Title VII: Why the Courts Can't Get it Right

"In 1989, the US Supreme Court held in Price Waterhouse v. Hopkins that Title VII – the main federal anti-discrimination statute — prohibits employers from penalizing employees for failing to conform to the gender stereotypes associated with their sex. Yet, two decades later, courts continue to show ambivalence in sex-stereotyping cases."

The Jespersen Case: The Ninth Circuit Rules on a Dress Code Requiring Women to Maintain a Highly Sexualized Appearance

"Perhaps the most objectionable case in this area is Jespersen v. Harrah's, a 2006 case in which an en banc panel of the Ninth Circuit upheld by a vote of 7-4 the casino's sex-differentiated grooming policy under Title VII. The policy was startling in the degree to which it required women to maintain a highly sexualized feminine appearance.

"Employees at Harrah's were required to wear the same uniform, and all were required to be "well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform." In addition, men and women had sex-specific grooming requirements. Male employees had to wear their hair short, trim their fingernails and refrain from wearing makeup or nail polish. Female employees had to wear their hair 'teased, curled, or styled,' as well as wear stockings, colored nail polish, and specific types of facial makeup outlined by an "image consultant." Employees were made up by the image consultant, photographed, and held to the 'personal best' image standard each day at work.

"Darlene Jespersen, a longtime, well-regarded bartender at the casino, objected to the requirements for female employees. She was not in the habit of teasing her hair or wearing makeup and claimed that being forced to do so interfered with her chosen identity and constituted sex discrimination.

"Jespersen's claim seemed promising, since the Ninth Circuit had applied Price Waterhouse broadly in two prior cases brought by gay men claiming they were harassed for being too effeminate. In those cases, which I have written about in a previous column, the court correctly treated gender policing — punishing gay men for failing to act according to expectations of masculinity — as a form of unlawful sex discrimination.

"But Jespersen was foiled in her attempt to take a similar stand against forced femininity. The court sidestepped Price Waterhouse by simply noting that any stereotype being applied did not inhibit Jespersen's ability to do the job. 'The only evidence in the record to support the stereotyping claim is Jespersen's own subjective reaction to the makeup requirement,' the court claimed. The court ruled, in effect, that sex-differentiated grooming and dress codes are permissible under Title VII as long as they do not impose unequal burdens on men and women."

Read the entire article at Writ

New Links

Women and the Law - A sub-category of a site, World Legal Information Institute, it's possible to search for a topic by:

The nations covered by the BY COUNTRY choice are: Afghanistan, Argentina, Australia, Burkina Faso, Canada, Chili, Costa Rica, Fiji, Finland, Indonesia, Iraq, Japan, Kenya, Mauritius, Pakistan, Philippines, Sri Lanka, United Kingdom and Zambia.

The World Legal Information Institute itself provides:

The Law Journals include:

The Commentary section includes:

Muslim Women and Women's Rights [Search]
Contains links to papers and articles on Muslim Women. Maintained by Professor Alan Godlas (on University of Georgia)

The Women's Rights section includes a number of domestic and international organizations such as "Annual Review of Population Law [Search]
Database of summaries and excerpts of legislation, constitutions, court decisions, and other official government documents from every country in the world relating to population policies, reproductive rights and health, women's rights, HIV/AIDS and related topics from 1974 (Harvard Law School)

Another organization is Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer (CLADEM) [Search]: Official website of the Latin American and Caribbean Committee for the Defense of Women's Rights (in Spanish, Portuguese and English)

Finally, another important site noted: Women of the World - Formal Laws and Policies Affecting Their Reproductive Rights; The Centre for Reproductive Law and Policy

The Fortieth Anniversary of Loving v. Virginia: The Personal and Cultural Legacy of the Case that Ended Legal Prohibitions on Interracial Marriage

Forty years ago, the US Supreme Court held that state laws criminalizing interracial marriage are unconstitutional. In that case, Loving v. Virginia, the Court invalidated the anti-miscegenation law not only in Virginia, but also in the fifteen other states that banned the practice.

The immediate import of Loving was clear: States no longer had the power to prohibit interracial marriages. However, as the next sections will explore, the ruling had other notable effects as well.

With the Supreme Court's ruling in hand, the Lovings were finally able to return to Virginia without fear of criminal persecution, and with the veil of illegitimacy raised from the heads of their three interracial children. That meant a great deal to them, for returning home as a couple was their ultimate goal, according to Robert Pratt, who knew both Richard and Mildred.

Interestingly, the Lovings did not see themselves as civil rights activists or heroes, but rather simply as people engaged in a personal struggle for freedom. They did not attend the argument in the Supreme Court, and, when asked by Ebony magazine what the ruling meant for them, Richard said only that: "For the first time, I could put my arm around her and publicly call her my wife." Mildred reported similar sentiments, telling the Washington Post in 1967 that "I feel free now . . . it was a great burden."

Though many people remained opposed to interracial marriage, the Lovings told reporters they had the support of their hometown community and were welcomed home. Richard told Life magazine that they "encounter hostile stares only when they venture away."

The Lovings's marriage ended tragically in 1975 when Richard was killed by a drunk driver. Mildred lost an eye in the same accident, but lived several decades more without Richard. She and the sheriff who arrested them never "exchanged a single word," though both lived in the same small Virginia town for decades.

In Part One of this series, I considered the personal and cultural legacy of Loving. In this Part, I'll consider its legal legacy: What role has the opinion played in American law?

The Legal Legacy of the Case that Ended Legal Prohibitions on Interracial Marriage

Loving v. Virginia obviously had immediate, liberating effects for Mildred and Richard Loving, who were able to return home with their children after several years living effectively in exile. And other couples residing in states like Virginia were similarly freed from the constraints of an outdated and discriminatory law.

But Loving's legacy extends beyond these immediate effects. While the ruling in Loving hastened the demise of bans on interracial marriage, such laws were already on their way out; fourteen states had repealed them without judicial pressure in the decades prior. The rest of these laws, too, would eventually have fallen as cultural norms evolved even further away from those of the era that embraced racial segregation and explicit subordination. But a landmark case like Loving should be remembered for its effects on other legal doctrines as well.

 

Website:

Studies in Scarlet: Marriage and Sexuality in the US& UK
1815-1914

"Studies in Scarlet includes American, British, and Irish cases 1815-1914 involving domestic violence, bigamy, seduction, breach of promise to marry, and the custody of children, as well as trials for murder and rape. These trials are especially rich sources for the study of the history of women in early modern society."

"Studies in Scarlet presents the images of over 420 separately published trial narratives from the Harvard Law School Library's extensive trial collections. Included are a number of trials of the wealthy and renowned such as an account of the adultery trial of Caroline, Queen Consort of George IV, the sodomy trial of Oscar Wilde, and the trial of Harry Thaw for the murder of Stanford White, the famous architect who was Evelyn Nesbit Thaw's lover. The larger part of the collection, however, consists of the stories of ordinary men and women thrust into the public eye when their marriages and love affairs went wrong or their relationships did not conform to social standards."

Another online collection is:

The Nuremberg Trials Project

By far, the Library's largest undertaking to date is The Nuremberg Trials Project. The Library holds over one million pages of documents related to the war crimes tribunals held after World War II. The Nuremberg Trials Project combines document imaging, document re-keying, and document analysis to create a database of information about the trials, and a Web interface that will allow searching of the documents and the trial transcripts themselves, with links to the various evidentiary documents used in the trials.


Article

From FindLaw's Writ by Joanna Grossman

In its recent opinion in Baldwin v. Blue Cross, the Eleventh Circuit ended Susan Baldwin's attempt to seek legal redress for the sexual harassment she alleges that she suffered at the hands of her supervisor. But this decision is much more than just a blow to a single plaintiff in a single case.

(The Hostile Environment Alleged by Susan Baldwin)

Baldwin worked for Blue Cross in Huntsville, Alabama as a marketing representative. In November 2000, Scott Head became her boss when he was promoted to district manager. According to the facts as judged in the light most favorable to the plaintiff (the required stance for an appellate court reviewing a grant of summary judgment to the defendant), Head engaged in two types of conduct that Baldwin found unwelcome and offensive:

First, he used profanity regularly, and used sex-specific derogatory terms to refer to both employees and applicants. Male subordinates were "peckerwoods" and "cocksuckers"; female employees were "bitch" or "babe"; one female applicant was not hired, according to Head, because she was a "slut" and a "tramp." (He apparently reserved "fucking bitch" for his wife, when complaining about her at work.)

The second type of conduct about which Baldwin complained was more serious and targeted directly at her. On July 26, 2001, Head accompanied Baldwin and other marketing representatives to a banquet for Blue Cross managers in Birmingham. During the banquet speech, Head leaned over to Baldwin and invited her to dance, party, and spend the night in his hotel room in Birmingham, rather than driving home. "No one will ever know," he promised. She declined the invitation politely and left to return to Huntsville.

While she was driving home, Head called and urged again that she spend the night with him. He said he was driving to her house in Huntsville and that he would be there with beer to pick her up. He called several more times, telling her during one call that he was at her house, waiting. Baldwin told him to go home to his wife and kids.

A few days later, when Baldwin went to Head's office for a meeting, he closed the door, cornered her against a couch and said "Hey, Babe, blow me." She moved across the room and changed the subject. Head offered a report on his weekend: "Well, you know, we went out partying this weekend and that fucking bitch wife of mine, you know, she got tanked and we got home and she came pretty unglued and she came at me," and "I threw that fucking bitch on the floor." Head continued with more details about his interaction with his wife, leading Baldwin to become very concerned about her own safety around him, particularly given his sexual advance just a few minutes earlier.

Read the rest of the article at the FindLaw Writ site

New Link

Justice At Stake - From the website: "A nationwide, nonpartisan partnership of more than thirty judicial, legal and citizen organizations. Judges and citizens are deeply concerned about the growing impact of money and politics on fair and impartial courts."

"Our mission is to educate the public and work for reforms to keep politics and special interests out of the courtroom—so judges can do their job protecting the Constitution, individual rights and the rule of law."

"This website can help you learn more about the threat to fair and impartial justice, what’s happening in your state, and what you can do to help protect the courts that protect your rights."

The Proceedings of the Old Bailey

The well-known English court provides historical records for the years 1674 to 1834. The site self-describes as "A fully searchable online edition of the largest body of texts detailing the lives of non-elite people ever published, containing accounts of over 100,000 criminal trials held at London's central criminal court."

"The Proceedings contain accounts of trials which took place at the Old Bailey. The crimes tried were mostly felonies (predominantly theft), but also include some of the most serious misdemeanours. The first published collection of trials at the Old Bailey dates from 1674, and from 1678 accounts of the trials at each session (meeting of the Court) at the Old Bailey were regularly published. Inexpensive, and targeted initially at a popular rather than a legal audience, the Proceedings were produced shortly after the conclusion of each sessions and were a commercial success."

The site provides a daily look back at proceedings at the court such as:

Trial Summary:


Original Text:

Sarah Hewlet , of St. Sepulchres, was indicted, for that she being a person of ill Fame, and a common Receiver of stolen Goods, did on the 30th of March feloniously receive 4 Pound of Bacon, the Goods of John Godfrey , and a Cheese of Thomas Low 's, that had been stolen by George Dawson and Thomas Curtis .

George Dawson depos'd, That the Prisoner did entice and ncourage Boys to go a thieving, lodg'd them in her House, and us'd to give them what she pleas'd for the Things they stole, and then made them spend the Money at her House; that she bought the Hock of Bacon that he had stolen from Mr. Godfrey, and also a Gammon of Bacon of 18 Pound, for which she gave them 3 s.

Perkins depos'd, That he stole Mr. Low's Cheese, and carried it to her, and she gave him 18 pence for it, and they spent the Money in Gin. and Hot-Pots, at her House; that he stole half a Firkin of Soap, and sold it to her for 3 s.

These Evidences were very little Boys of about 12 Years of Age (as they said) tho' by their Stature one would have taken them not to be above 8 or 9.

The several Facts being prov'd to the Satisfaction of the Jury, they found her guilty of the Indictment.

[Fine. See summary.]

[Imprisonment. See summary.]

 

Links

The Brennan Center for Justice (named for the former Chief Justice). As a branch of the NYU School of Law the Center declares "Our mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. We use scholarship, public education, and legal action to find innovative and practical solutions to intractable problems in the areas of democracy, poverty, and criminal justice.

Citizen Media Law Project - For those conducting or thinking of starting a blog, this site endeavors to lay out resources and knowledge for 'citizen journalists.'

"The Citizen Media Law Project (CMLP) is jointly affiliated with Harvard Law School’s Berkman Center for Internet & Society and the Center for Citizen Media. Our central aim is to provide practical knowledge and tools for citizen journalists. In the coming months we will be adding many resources to this site, including a legal guide that will cover everything from how to form a business to how to use freedom of information and open meetings laws to get access to information, meetings, and governmental records, as well as other legal subjects such as risks associated with online publication."

The site has an interesting article, Website Isn't Liable When Users Lie About Their Ages — Doe v. SexSearch and a PDF of Social Networking Sites and the Law.

Cornell Legal Information Institute - One of the services of this site is access to the U.S. Code. Since it's such a large document the site recommends limiting your text searches to a particular area (Title) of the Code; go first to the listing of all Titles and choose the Title you want; then, use the text-search link on the overview page for that Title to do your search. A future goal is to 'explore integrated editorial and software strategies for easing the use and understanding of law materials by those who are not expert researchers of U.S. legal documents, including ordinary citizens. State Law, Supreme Court term schedule.

Guide to European and International Legal Databases (NYU) - This site monitors and evaluates foreign and International legal databases. One of the features that you might consult before searching is the Evaluating the databases article written for LLRX by Mirela Roznovschi who maintains this site.

Villanova Legal Express - Legal magazines and news, law search portals, subject guides and general reference, directories and discussion groups. A government section includes core documents of democracy, statutes, regulations, public records and dockets.

How to Pick an Estate Planning Attorney:- From the Motley Fool archives, an attorney's view as to how to choose a qualified estate planning lawyer. Requires registration.

Law Library of Congress Home Page - Condensed from the Scout Report: "The Guide to Online law contains sites offering the full texts of laws, regulations, and court decisions, along with commentary from lawyers writing primarily for other lawyers. Materials related to law and government that were written by or for lay persons also have been included, as have government sites that provide even quite general information about themselves or their agencies. The guide offers both domestic and global legal information networks. The United States Law section contains United States Code, Statutes at Large, and Public Laws.

Martindale-Hubbell is the bible of directories and listings for lawyers throughout the US. Using their description, its site, Lawyers.com, offers the following:"Accurate and reliable profiles of 420,000 attorneys and firms worldwide. Listings are continuously updated and scrupulously reviewed by the entrant before release. Complete Lawyer HomePages for many law firms featuring practical details such as practice focus, professional credentials, fees, office hours and directions. A wealth of consumer-oriented legal information to help users better understand the law, make more informed personal legal choices and identify high quality legal representation. Helpful tips on how to select an attorney, an interactive "Ask a Lawyer" forum for submitting questions, consumer friendly explanations of 24 major areas of law, articles on current legal topics, links to legal resources on the web, a glossary of 10,000 legal terms, and more."

Municipal Codes Online - The Seattle Public Library houses in their collection of "Government" web sites and databases the US Municipal codes under the subcategory of "Law & Legal." This page provides links to city and county codes available for unrestricted searching on the World Wide Web. For state codes, (as well as those of American Samoa, Guam, Puerto Rico and the Virgin Islands) and related legal sources, see FindLaw's State Resources Indexes.

Nolo.com - A mainly commercial site with some free information that was started by two Legal Aid lawyers unhappy with the fact that the average person couldn't find affordable legal information and advice. Nolo Legal Dictionary - If you've got a legal document or find an article that doesn't appear to be in English, use this file to search for that term's meaning.

Nolo.com's ElderCare site - An extraordinary collection of topics relating to this subject: durable power of attorney for finances and healthcare, healthcare directives and proxy, incapacity, incompetence, life prolonging procedures,life sustaining procedures, age discrimination in employment act.

Oyez, Oyez, Oyez - Information about Supreme Court decisions, provided by Northwestern University, available in easy-to-understand summaries, linked to the complete texts of opinions. Since the court's proceedings have been taped since 1961, you can download RealAudioPlayer from the site to hear proceedings. There's also a virtual tour.

Real Estate Forms - Electronic real estate forms, most drawn up by practicing professionals, a number free and others with relatively low costs. Mortgage calculator, state revenue tax forms, buying and renting disclosure tips.

Sentencing Law and Policy. Most of the entries and discussion center around the Blakely case and sentencing guidelines as questioned by numerous states across the US. Douglas Berman's site also carries links to related organizations, such as Families Against Mandatory Minimums Foundation and the Vera Institute State Sentencing and Corrections. Other links include those to Criminal Law Blogs: Talk Left, Punishment Theory, Criminal Appeal, CrimLaw, Public Defender Dude, The Prosecutor's Spot, Crime & Federalism and Blakely Blog.

World Wide Web Virtual Law Library - Indiana U's School of Law in Bloomington was chosen to be the host of the Virtual Law Library, a collection of subject-related websites maintained by institutions throughout the world, each administering a different subject. Impressive.

WRIT - An online magazine from FindLAw directed towards the legal community and readers in general characterized by interesting articles. A section dealing with current news is updated daily.

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