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Law, Justice, and Society:
A Sociolegal Introduction

        Chapter 12
    Women and the Law
    (by Mary K. Stohr)
Women and the Law
Feminist Legal Theory
• feminism is a set of theories and strategies
  for social change that takes gender as its
  central focus to understand social
  institutions, processes, and relationships
• feminist jurisprudence is the practice of
  examining and evaluating the law from the
  feminist perspective
Women and the Law
Feminist Legal Theory (cont.)
• embraces conflict view
• patriarchy: sociocultural system that is male
  dominated at all levels
• law is a mirror of patriarchy
Women and the Law
Feminist Jurisprudence
• reformist/radical
  – reformist: liberals who want to retain current
    legal system and reconfigure it
  – radical: present system should be abandoned
• sameness/difference
  – should women be treated equally or differently?
  – compromise position: law must accept relevant
    gender differences but should not focus on the
    differences; rather, focus on their consequences
Women and the Law
Women and the Law Throughout History
• Greek
  –   ambivalent
  –   earth goddess creator
  –   soon male gods assumed rational role
  –   Homer (800 BCE)
  –   Plato and Aristotle
  –   Athens versus Sparta
  –   in general, laws were repressive
Women and the Law
 Women and the Law Throughout History
 (cont.)
• Roman
  – Cicero
  – Twelve Tables of Roman law
  – women were minors of their fathers or
    husbands
• Medieval Europe--feudal system
  – subjugated state supported by church theology
  – “natural state” ordained by God
Women and the Law
 Women and the Law Throughout History
 (cont.)
• Renaissance
  – women seen as virtuous and not worldly
  – laws kept women in the home to protect them
• sixteenth century
  – Protestant faiths reinforced concept of domestic
    patriarchy
  – men were sovereign rulers in politics and home
Women and the Law
 Women and the Law Throughout History
 (cont.)
• Thomas Hobbes and John Locke
  – concede some rights to women
  – still subordinate to men in all matters
  – women invisible to political writers (including
    Rousseau)
• Wollstonecraft argued that women would
  not be inferior if given the same
  opportunities as men
Women and the Law
Suffrage and Other Basic Freedoms
• efforts to secure legal standing for women throughout
  the nineteenth and twentieth centuries in Europe and
  the United States were conditioned by sexist views
• the U.S. Founding Fathers paid little attention to pleas
  of their wives to allow women the vote
• slaves sexually exploited by masters
• women given the right to vote in Wyoming and Utah
  territories and their subsequent states
• women given the right to vote in Colorado and Idaho
• rest of the country waited until 1920 and the
  Nineteenth Amendment
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• in 1872 Susan B. Anthony and fourteen other
  women were on trial for illegally voting
• found guilty when the judge instructed the jury to
  do so
• the judge did not make her pay her fine or serve
  time
• her attorney bailed her out of jail
• why did they do this?
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• International Woman Suffrage Conference in 1902
   – in Washington, D.C.
   – organized by Elizabeth Stanton, Susan B. Anthony, and
     Carrie Chapman Catt
   – five countries sent delegates
   – next meeting was in 1904 in Berlin
• Declaration of Principles
• major result of conference was creation of the
  International Women’s Suffrage Alliance
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• other rights denied women during the 1920s,
  1930s
   –   enslavement
   –   sold for marriage/prostitution
   –   right to deal with property and earnings
   –   arranged marriages
   –   mothers had lesser rights than fathers
   –   less education and training
   –   work restricted to traditional roles; pay was less
   –   holding public office
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• rights were gained through grassroot feminist
  work
• first wave of feminism achieved voting rights
• second wave focused on other basic rights
   –   property
   –   education
   –   employment
   –   male violence against women and children
• role of the USSC
Women and the Law
Women as Human and Person
• women have been legally and culturally
  considered to be property
• as property, a woman can be bought, sold,
  replaced, traded, etc., whenever convenient
• if women follow these cultural mores, they are
  "madonnas"; if they do not, they are "whores"
• Gage’s explanation of the witch hunts
Women and the Law
Women as Human and Person (cont.)
• Brownmiller’s history of rape
• U.S. courts’ resistance to legal protection against
  physical and sexual abuse and their link to
  property rights
• petite treason in England
Women and the Law
Women as Human and Person (cont.)
• at times in American history women were allotted
  more rights than previously, but such rights were
  soon taken away
• during colonial period, free white women could
  own property and engage in business
• some colonies allowed unmarried women with
  property to vote
Women and the Law
Women’s Work and Other Legal Matters
• Reed v. Reed, 1971
   – intermediary scrutiny standard of review
   – gender/sex is a quasi-suspect class
• Nguyen v. INS, 2001
   – children need mothers more than fathers
   – satisfies sameness feminists
• international standards
   – preserve differences while protecting economic and
     political participation
Women and the Law
Women’s Work and Other Legal Matters
(cont.)
• Article 11 of the Convention on the Elimination of
  All Forms of Discrimination Against Women
   – not yet ratified by United States
• first wave of feminism: voting rights
• second wave of feminism: other basic rights
Women and the Law
Women’s Work in Law
• social barriers have kept women from working in
  the law
• however, women have historically participated in
  law to some limited degree throughout U.S.
  history
   – Margaret Brent
   – Elizabeth Freeman
   – Lucy Terry Prince
• women were excluded from clerkships, the
  ordinary means of entering the legal profession
Women and the Law
Women’s Work in Law (cont.)
• exclusionary underpinnings were the beliefs that
  feminine characteristics are not suited for the
  practice of law and that a woman’s place is in the
  home
• women viewed as lacking logical capacity
• accused of being overly subjective and emotional
• women were not full citizens, and so it would be
  paradoxical for them to practice law
Women and the Law
Women’s Work in Law (cont.)
• exceptions:
• Arabella Babb Mansfield and Myra Bradwell
  passed the bar in 1869
  – Bradwell v. Illinois, 1873
• Lemma Barkloo and Phoebe Cousins were
  admitted to Washington University Law School in
  1869
• Ada Kepley graduated from University of Chicago
  Law School in 1870
Women and the Law
Women’s Work in Law (cont.)
• Charlotte Ray, first African American
  woman, was admitted to the bar in 1872
• Robert Morris, first African American man,
  appointed as magistrate judge in Boston in
  1852
• Esther Morris, white woman, appointed as
  justice of the peace in a mining camp in
  Wyoming in 1870
Women and the Law
Women’s Work in Law (cont.)
• not until 1918 were women allowed to join the
  ABA
• not until 1920 were women allowed on all state
  bars
• not until 1928 were women allowed to enter
  Columbia Law School
• not until 1950 were women allowed to enter
  Harvard Law School
• law schools continued to discriminate against
  women
Women and the Law
Women’s Work in Law (cont.)
• discrimination tempered by second wave of
  feminism
• passage of Title VII Civil Rights Act of 1964
• passage of Equal Employment Opportunity Act of
  1972
• lack of bona fide occupational occupations in
  criminal justice systems
• Title IX of the Higher Education Act
Women and the Law
Women’s Representation in the Legal System
• more women applying for law school now than
  before
• gendered experiences:
   –   men expect to work in a law firm or for a company
   –   more likely to submit to law review
   –   women expect to work for nonprofit or legal services
   –   feel less confident in their legal skills
• female law professors are underrepresented
• presidents more willing to appoint women to
  federal judgeships
Women and the Law
Women’s Representation in the Legal System
(cont.)
• despite inroads, barriers are still apparent
• women lawyers are underrepresented in
  judgeships, full partnerships in legal firms, law
  school faculty
• the "mommy track" effect
• latent sexism
• women outperform men in all educational tracks
  except law school
   – differential treatment in school
Women and the Law
Women’s Representation in the Legal System
(cont.)
• still, there are more similarities than differences in
  experiences
• job satisfaction
• job value
• attitudes about punishment issues and defendants
• variance explained by promotional opportunities
Women and the Law
The Bias Studies
• women defendants and litigants face an uphill
  battle
• manifest in the perceptions and practices of
  courtroom actors
• domestic violence
• sexual assault
• divorce
• treatment of female attorneys and judges
• custody discrimination against men
Women and the Law
Law, Equity, and Justice
• the law is androcentric, and therefore female
  victims of male crimes will be viewed through
  masculine lenses (Smart, 1989)
• also, as more women enter the workforce,
  feminine traits such as cooperation and support
  will make inroads against masculine traits of
  adversity and competition (Gilligan, 1982)

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Walsh power point_chapter 12

  • 1. Law, Justice, and Society: A Sociolegal Introduction Chapter 12 Women and the Law (by Mary K. Stohr)
  • 2. Women and the Law Feminist Legal Theory • feminism is a set of theories and strategies for social change that takes gender as its central focus to understand social institutions, processes, and relationships • feminist jurisprudence is the practice of examining and evaluating the law from the feminist perspective
  • 3. Women and the Law Feminist Legal Theory (cont.) • embraces conflict view • patriarchy: sociocultural system that is male dominated at all levels • law is a mirror of patriarchy
  • 4. Women and the Law Feminist Jurisprudence • reformist/radical – reformist: liberals who want to retain current legal system and reconfigure it – radical: present system should be abandoned • sameness/difference – should women be treated equally or differently? – compromise position: law must accept relevant gender differences but should not focus on the differences; rather, focus on their consequences
  • 5. Women and the Law Women and the Law Throughout History • Greek – ambivalent – earth goddess creator – soon male gods assumed rational role – Homer (800 BCE) – Plato and Aristotle – Athens versus Sparta – in general, laws were repressive
  • 6. Women and the Law Women and the Law Throughout History (cont.) • Roman – Cicero – Twelve Tables of Roman law – women were minors of their fathers or husbands • Medieval Europe--feudal system – subjugated state supported by church theology – “natural state” ordained by God
  • 7. Women and the Law Women and the Law Throughout History (cont.) • Renaissance – women seen as virtuous and not worldly – laws kept women in the home to protect them • sixteenth century – Protestant faiths reinforced concept of domestic patriarchy – men were sovereign rulers in politics and home
  • 8. Women and the Law Women and the Law Throughout History (cont.) • Thomas Hobbes and John Locke – concede some rights to women – still subordinate to men in all matters – women invisible to political writers (including Rousseau) • Wollstonecraft argued that women would not be inferior if given the same opportunities as men
  • 9. Women and the Law Suffrage and Other Basic Freedoms • efforts to secure legal standing for women throughout the nineteenth and twentieth centuries in Europe and the United States were conditioned by sexist views • the U.S. Founding Fathers paid little attention to pleas of their wives to allow women the vote • slaves sexually exploited by masters • women given the right to vote in Wyoming and Utah territories and their subsequent states • women given the right to vote in Colorado and Idaho • rest of the country waited until 1920 and the Nineteenth Amendment
  • 10. Women and the Law Suffrage and Other Basic Freedoms (cont.) • in 1872 Susan B. Anthony and fourteen other women were on trial for illegally voting • found guilty when the judge instructed the jury to do so • the judge did not make her pay her fine or serve time • her attorney bailed her out of jail • why did they do this?
  • 11. Women and the Law Suffrage and Other Basic Freedoms (cont.) • International Woman Suffrage Conference in 1902 – in Washington, D.C. – organized by Elizabeth Stanton, Susan B. Anthony, and Carrie Chapman Catt – five countries sent delegates – next meeting was in 1904 in Berlin • Declaration of Principles • major result of conference was creation of the International Women’s Suffrage Alliance
  • 12. Women and the Law Suffrage and Other Basic Freedoms (cont.) • other rights denied women during the 1920s, 1930s – enslavement – sold for marriage/prostitution – right to deal with property and earnings – arranged marriages – mothers had lesser rights than fathers – less education and training – work restricted to traditional roles; pay was less – holding public office
  • 13. Women and the Law Suffrage and Other Basic Freedoms (cont.) • rights were gained through grassroot feminist work • first wave of feminism achieved voting rights • second wave focused on other basic rights – property – education – employment – male violence against women and children • role of the USSC
  • 14. Women and the Law Women as Human and Person • women have been legally and culturally considered to be property • as property, a woman can be bought, sold, replaced, traded, etc., whenever convenient • if women follow these cultural mores, they are "madonnas"; if they do not, they are "whores" • Gage’s explanation of the witch hunts
  • 15. Women and the Law Women as Human and Person (cont.) • Brownmiller’s history of rape • U.S. courts’ resistance to legal protection against physical and sexual abuse and their link to property rights • petite treason in England
  • 16. Women and the Law Women as Human and Person (cont.) • at times in American history women were allotted more rights than previously, but such rights were soon taken away • during colonial period, free white women could own property and engage in business • some colonies allowed unmarried women with property to vote
  • 17. Women and the Law Women’s Work and Other Legal Matters • Reed v. Reed, 1971 – intermediary scrutiny standard of review – gender/sex is a quasi-suspect class • Nguyen v. INS, 2001 – children need mothers more than fathers – satisfies sameness feminists • international standards – preserve differences while protecting economic and political participation
  • 18. Women and the Law Women’s Work and Other Legal Matters (cont.) • Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women – not yet ratified by United States • first wave of feminism: voting rights • second wave of feminism: other basic rights
  • 19. Women and the Law Women’s Work in Law • social barriers have kept women from working in the law • however, women have historically participated in law to some limited degree throughout U.S. history – Margaret Brent – Elizabeth Freeman – Lucy Terry Prince • women were excluded from clerkships, the ordinary means of entering the legal profession
  • 20. Women and the Law Women’s Work in Law (cont.) • exclusionary underpinnings were the beliefs that feminine characteristics are not suited for the practice of law and that a woman’s place is in the home • women viewed as lacking logical capacity • accused of being overly subjective and emotional • women were not full citizens, and so it would be paradoxical for them to practice law
  • 21. Women and the Law Women’s Work in Law (cont.) • exceptions: • Arabella Babb Mansfield and Myra Bradwell passed the bar in 1869 – Bradwell v. Illinois, 1873 • Lemma Barkloo and Phoebe Cousins were admitted to Washington University Law School in 1869 • Ada Kepley graduated from University of Chicago Law School in 1870
  • 22. Women and the Law Women’s Work in Law (cont.) • Charlotte Ray, first African American woman, was admitted to the bar in 1872 • Robert Morris, first African American man, appointed as magistrate judge in Boston in 1852 • Esther Morris, white woman, appointed as justice of the peace in a mining camp in Wyoming in 1870
  • 23. Women and the Law Women’s Work in Law (cont.) • not until 1918 were women allowed to join the ABA • not until 1920 were women allowed on all state bars • not until 1928 were women allowed to enter Columbia Law School • not until 1950 were women allowed to enter Harvard Law School • law schools continued to discriminate against women
  • 24. Women and the Law Women’s Work in Law (cont.) • discrimination tempered by second wave of feminism • passage of Title VII Civil Rights Act of 1964 • passage of Equal Employment Opportunity Act of 1972 • lack of bona fide occupational occupations in criminal justice systems • Title IX of the Higher Education Act
  • 25. Women and the Law Women’s Representation in the Legal System • more women applying for law school now than before • gendered experiences: – men expect to work in a law firm or for a company – more likely to submit to law review – women expect to work for nonprofit or legal services – feel less confident in their legal skills • female law professors are underrepresented • presidents more willing to appoint women to federal judgeships
  • 26. Women and the Law Women’s Representation in the Legal System (cont.) • despite inroads, barriers are still apparent • women lawyers are underrepresented in judgeships, full partnerships in legal firms, law school faculty • the "mommy track" effect • latent sexism • women outperform men in all educational tracks except law school – differential treatment in school
  • 27. Women and the Law Women’s Representation in the Legal System (cont.) • still, there are more similarities than differences in experiences • job satisfaction • job value • attitudes about punishment issues and defendants • variance explained by promotional opportunities
  • 28. Women and the Law The Bias Studies • women defendants and litigants face an uphill battle • manifest in the perceptions and practices of courtroom actors • domestic violence • sexual assault • divorce • treatment of female attorneys and judges • custody discrimination against men
  • 29. Women and the Law Law, Equity, and Justice • the law is androcentric, and therefore female victims of male crimes will be viewed through masculine lenses (Smart, 1989) • also, as more women enter the workforce, feminine traits such as cooperation and support will make inroads against masculine traits of adversity and competition (Gilligan, 1982)