Thursday, July 30, 2009

Gender Fairness. We're Done, Right?, but we're working on it.

Actually, this is the title of a great opportunity: the Gender Fairness Implementation Committee of the Minnesota Supreme Court is hosting a student writing contest.

The topic is Gender Fairness. Students are asked to write a paper, article or essay on one of the following four categories: Domestic Violence, Family Law, Civil and Criminal Law, and Court Room Environment.

The deadline for submissions is October 15, 2009. The technical details can be found here.

The award is significant: The judges of the contest will select one paper from each topic to be honored at an October 27, 2009 conference to commemorate the 20th Anniversary of the Report of the Minnesota Supreme Court Task Force for Gender Fairness in the Courts.

Then, in addition, each of the following publications will publish the winning paper from a topic in one of their spring 2010 issues: Hamline Journal of Public Law & Policy (Domestic Violence), St. Thomas Law Review (Civil and Criminal Law), William Mitchell Law Review (Courtroom Environment), Journal of Law & Inequality (Family Law).

Chapter 6 of Equal: The First Pregnancy Case: 'Aiello'

While Williams was working on gathering potential plaintiffs to join Armendariz, another lawyer filed suit on behalf of Carolyn Aiello who was forced out of work due to an ectopic pregnancy. Aiello had filed in federal court, while Williams wanted to stay in state court, which had decided Sail'er Inn. Williams' cases got moved to federal court, joined with Aiello, and she became the lead lawyer after the original lawyer left.

Williams had to made federal claims and so she relied on the equal protection clause, with which Ginsburg had won a partial victory in Reed, and the sex discrimination guidelines of the Equal Employment Opportunity Commission. The EEOC had issued guidelines that said that classifications based upon physical characteristics unique to one sex are sex-based classifications.

Williams prevailed at the District Court and the case was fast-tracked to the Supreme Court because it involved a constitutional challenge to the state law.
The state then decided to pay benefits in the case of abnormal pregnancies with involuntary complications, which narrowed the group of women discriminated against and weakened the case.

Armendariz and Aiello were now both out of the case now known as Gedulig v. Aiello.Williams had broken her ankle and did her argument on crutches. Blackmun gave her a B- and wrote that she had long stringy hair. California was also represented by a woman, Joanne Condas, who received a B+. It was only the second time in history that two women had argued at the court.

Justice Potter Stewart wrote the majority and framed the case as one where “there is no risk from which men are protected and women are not.” Brennan''s dissent argued that the law was sex discrimination. In response, Stewart added a footnote explaining that the law was permissible because it discriminated between pregnant women and nonpregnant persons.

Monday, July 27, 2009

The Erin Andrews Tale: Lessons to Women Lawyers

Upon first hearing the story of Erin Andrews, our blood might boil. Feelings of anger and sympathy might be invoked--perhaps even guilt, by avidly following the story that stems from inappropriate obsessions with popular figures. But, instead of using this story to just continue society's voyeuristic escalations, there appear to be at least a few lessons we can use.

Andrews, a popular ESPN women reporter, was unknowingly videotaped while alone in her hotel room, a tape which soon hit the Internet. The media-at-large soon picked up the story, drawing a quickly expanding number of people's horror and fascination with the story.

One lesson, unfortunately, is that objectification is still an issue. Sure, the lawyer world might not have as big of a concern with it as television sportscasting, but extra professionalism is never a bad thing.

Another lesson is that it highlights that several professions are still male-dominated, and what is appropriate for people to say about women and our expectations of women in those professions feels like treatment from decades ago. A surprising amount of people have reacted to this story by stating that she shares the blame by her outfits and her position of popularity in the sports world.

And finally, although this lesson is a little off-topic, it shows the great gaping hole that is Internet law. Not only in the fact that it is a vehicle used to reach the masses quickly, but that others can quickly capitalize on wrongly posted items.

Thursday, July 23, 2009

Laura H. is on base

Our friend and fellow-blogger Laura H. is multi-talented. Not only is she a great lawyer and blogger, she's got a mean left arm, as this photo, courtesy of Bill Klotz at Minnesota Lawyer, illustrates. She made the catch.

Wednesday, July 22, 2009

Part Two of 'Equal' -- Pregnancy

PREGNANCY (1972-1978)

5.What Happened to Sally Armendariz Could Not Happen to a Man

Sally Armendariz was injured in a car accident and suffered a miscarriage as a result. She requested state disability insurance but was denied because the program didn't pay benefits for “any disability arising in connection with a pregnancy.”

Happily, she worked for California Rural Legal Assistance.

One of those lawyers had a friend, Wendy Webster Williams, who clerked for Justice Raymond Peters of the California Supreme Court. The court took a case that found a California law that forbade the hiring of women to work as bartenders violated equal protection under both the state and federal constitution. Under Sail'er Inn – which actually came about because the bar wanted to have topless bartenders –sexual classifications would be treated as suspect and race and sex would be analogized. Sail'er Inn would be important in Armendariz's case.

Reluctant to Self-Promote

Self-Promotion: the concept brings two competing images to mind. On one hand, we are told to be proud of our accomplishments, confident in our work, and to refrain from modesty if we want our employers to know how much value we bring.

On the other hand, we've also been taught that no one likes a braggart. And we know this because we all know a braggart, and we don't like them.

How do we balance this--especially as women from Minnesota, where "Minnesota nice" also means a large degree of modesty? The AmLaw Daily recently had an article about how a Lack of Self-Promotion Hurts Women in Large Firms. The article surmises that a contributor to the dearth of women in position of power is due to a somewhat stereotypical, but also true, fact that women are more reluctant to self-promote.

Many women don't ask for business and career opportunities, for leadership positions, for chances to strut our stuff. Correspondingly, many women don't tell (read: acknowledge their wins) when they are successful. Instead, women tend to wait for the recognition and reward--a wait that can last a career.

The article goes on to suggest solutions for both employers and women in trying to overcome this reluctance.

And, as a final note, the definition of braggart is: "One given to loud, empty boasting." A realistic portrayal of your accomplishments clearly falls outside of that definition.

Tuesday, July 21, 2009

Welch's comments still resounding

On Friday, we posted to a ABA Journal article about Jack Welch and his comments that Women Take Time off at Their Peril.

You may want to revisit that article today--not because of anything that has been added to the article itself, but to the large number of people (190) who have posted on the website. And posted extensive thoughts.

These posts run the gamut of opinions. From people who agree with Welch:

What Welch is saying is just common sense.

A woman taking time off for the children is no different from a man taking time off for another worthy pursuit. It would be admirable for a man to take time off to, say, join a humanitarian aid mission in Sudan. And who’s to say that’s not more worthy than another business trip? But if he’s not there when the company needs him, they’ll turn to someone else who will get the reward.

To others who disagree:

Dear Jack,

Thanks for being a stand-up guy and for prospering off a sociological model that makes children the responsibility of women and then defending an economic/industrial model that does not promote those women when perform high caliber work yet undertake their parenting responsibility [which is the same parenting responsibility the male partners impose on their wives].

The posts get a little repetitive, but they give a sense of what a lot of lawyers are feeling on this subject. Although, as a warning, some may not want the sense that the posts give to be revealed.

Friday, July 17, 2009

MPR story on women of color in law firms

Elizabeth Stawicki has a good story on MPR about the difficulties faced by women of color in law firms.

"Two studies found women of color have little chance of rising to the most powerful ranks in law firms. The National Association for Legal Professionals says less than 2 percent of all partners at the nation's law firms are minority women. In Minnesota, it's less than 1 percent.

The American Bar Association's Commission on Women in the Profession is in the midst of a nationwide study that's showing similar results."

Regrettably unsurprising.

"No Such Thing As Work-Life Balance"

The media and workplaces alike are buzzing after comments recently made by former CEO of General Electric Co. Jack Welch.

"There's no such thing as work-life balance," Welch told the Society for Human Resource Management's conference in New Orleans on June 28. "There are work-life choices, and you make them, and they have consequences."

Welch went onto say that women who take time off for family could be passed over for promotions if they are “not there in the clutch.”

As reported in an ABA Journal article,

Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."

An Am Law Daily article offers some thoughts on whether this is true for law firms. But even if we limit these statements to only apply to Fortune 500 companies, are we still going to continue to make women the only ones who have to make tough choices, and feel the consequences?

Thursday, July 16, 2009

A break from Sotomayor: Chapter 4 of 'Equal'

4.Wiesenfeld brings reality.

As you may recall, Paula Wiesenfeld died in childbirth and Stephen was denied the same social security benefits he would have received if he had been a widow instead of a widower. The Wiesenfeld case was prepared by students in Ginsburg's Equal Rights Advocacy Seminar at Columbia Law School. Astonishingly, the District Court applied the Frontiero minority's strict scrutiny test.

Representing the government was Robert Bork, who a few months earlier had fired Watergate special prosecutor Archibald Cox.

For the argument, for the first and only time at the Supreme Court, Ginsburg had her client sit at the counsel table. “She would never know if the justices knew that the man sitting at her side was Stephen Wiesenfeld. But she did not that judges worry about made-up cases, and she wanted to send a signal that 'this was a genuine as any case' and that 'this sort of sex stereotyping hurt many people, everyday people, people like Stephen Wiesenfeld.'”

Wiesenfeld was not a man grasping after a woman's benefits – it was a child who was not receiving benefits for which his mother had paid.

In a unanimous decision, the court ruled for Wiesenfeld and Ginsburg. Justice Brennan had a woman clerk, although he had told the law school at Berkely he wanted a male. Berkely told him he wasn't getting a male. Brennan's clerk, Marsha Berzon, had written the part of the opinion that showed that the purpose of the law was to aid children who had lost a parent. This analysis led the court to unanimity. Ginsburg later said, “Rehnquist was caught by the baby.”

But the court stopped at heightened scrutiny and could not bring itself to apply strict scrutiny. Ginsburg has not yet brought the court to strict scrutiny. In 1996, in a case involving the Virginia Military Institute's exclusion of women, she got the court as far as “skeptical scrutiny.” The ruling was 7-1-- Justice Scalia dissented and Justice Thomas recused.

In United States v. Virginia, Ginsburg wrote: “The justification [for sex discrimination] must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overboard generalizations about the different talents, capacities, or preferences of males and females. . . . "Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities (they have) suffered," to "promot(e) equal employment opportunity," and to advance full development of the talent and capacities of our nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women.”

No Rest for the Weary...

Reports predict that Judge Sotomayor will wrap up her testimony sometime this morning or early afternoon.

Although there is a lot of analysis out there right now on what has been said during her confirmation hearings, one Slate article talks about what hasn't been said, discussing the wasted opportunities by both parties thus far. Including a kudos to Franken's questioning, the article points out that both parties had nothing to lose, but played it like they had everything to lose.

Tuesday, July 14, 2009

A small word of praise for Judge Sotomayor’s “Latina Woman” comment:

Here's a guest post from Marie Failinger, associate dean of Hamline Law School and member of the Infinity Project.

A small word of praise for Judge Sotomayor’s “Latina Woman” comment:

Lots of pundits have tried to excuse Judge Sotomayor’s “wise Latina woman” comment as an offhand remark or suggest that we should give her points for telling the truth about judges in a political climate where nobody quite says his or her mind for fear of the repercussions down the road. Few have suggested that perhaps her comment reflects a positive character trait: that she’s self-reflective. Harvard Law Prof. Martha Minow perhaps put it best when she noted that those in the majority or in power tend to unconsciously assume that their viewpoints are impartial and objectively “real,” the truth about the world from which others’ viewpoints should be judged. Maryland Law Professor Sherrilyn Ifill on the American Constitution Society website notes that many citizens unconsciously assume that white male judges are neutral and impartial once they don the black robe, while others are not.

Yet, a judge who recognizes the fact that she is situated in a particular culture and personal history is more likely to be on the lookout for her own hidden assumptions about “the way things are,” biases about others, things she needs to learn and questions she needs to ask before making a decision. A judge who rarely questions whether his judicial views might be affected by his upbringing or culture is probably not a very self-reflective person. Armed with self-knowledge and the ability to engage in self-critique, a judge can approach the task of deciding a case always questioning whether she’s trying to justify her own existence and values in her judicial decisions. While judicial self-questioning may not comfort the average citizen with the veneer of a wise, all-knowing judge watching over American justice, it is more likely to produce real justice for everyone.

And the Questioning Begins...

The questioning in Judge Sotomayor's confirmation hearings began today (about 10 minutes ago, in fact.) Each of the 19 senators on the Senate Judiciary Committee (which includes Senator Klobuchar and Senator Franken) will question the judge for 30 minutes in the first round and 20 minutes in the second round.

In their opening remarks yesterday, both Minnesota senators tried to indicate what their top priorities in questioning would be. Senator Klobuchar said she plans to focus her questions later this week on Sotomayor's time as a prosecutor and her varied career:

As we consider your nomination, we know that you are more than the sum of your professional experiences. You bring one of the most wide-ranging legal resumes to this position--local prosecutor, civil litigator, trial judge and appellate judge.

In Franken's brief comments, he said he plans to ask about judicial activism, particularly in the areas of voting rights, the Internet, and campaign finance reform.

I am weary of judicial activism and I believe in judicial restraint. Except under the most exceptional circumstances, the judicial branch is designed to show deep deference to the Congress and not make policy by itself.

Monday, July 13, 2009

Sotomayor Statement

It's not on the Justice Department but it's on Daily Kos

Sotomayor: Senator's Statements

The first day of the hearings has been given over largely to senator's statements. They are available here -- click on the senator's name at the right.

The SCOTUS blog had a nice commentary today. It's pretty funny. There have been one million references to balls and strikes, and Sen. Franken is wearing a flashy tie. "Junior senators, making fashion statements." Tom Goldstein, SCOTUS blogger, is a terrific speaker and will be on NPR at 7 (Eastern? Central? probably Eastern) tonight.

Confirmation Hearings Begin Today

The confirmation hearings of Sonia Sotomayor begin today (right now, in fact).

So far, has been providing a live feed, which it appears to plan to do throughout the hearings. So, if you have a slow day at work ahead, and such things are okay at your workplace, that could certainly be a diversion today.

The New York Times has a guide for What to Watch For, if that helps your viewing. It also has a Live Blog of the proceedings, for those who want to stay updated more surreptitiously.

If you have any thoughts about the confirmation hearings, please leave a comment or e-mail us at

Friday, July 10, 2009

Franken chooses comments on Sotomayor carefully

U.S. Senator Al Franken, a member of the Senate Judiciary Committee, met with Judge Sonia Sotomayor on Thursday, July 9.

He released the following statement:

“Choosing a Supreme Court Justice is one of the most important decisions a United States Senator will make and I’m thrilled to be a member of the Senate in time to participate in the confirmation process. Judge Sotomayor will be the most experienced appointee in 75 years, and has a great life story. I’m glad to have had the chance to meet with her this afternoon, and I look forward to carefully considering her next week during the hearing.

“The current Supreme Court has been sliding back on the rights of Americans as employees, as parents, as consumers, and as investors, and it is critical that the next appointee understand the importance of these protections.”

Chapter Three of "Equal"

3.Frontiero Brings Hopes

When Ginsburg first heard about Wiesenfeld, two ACLU cases concerning discrimination in the military were heading for the Supreme Court.

Susan Struck became pregnant in 1973 when the Air Force required discharge of pregnant service members. According to Strebeigh, the government urged her to have an abortion (this was prior to Roe v. Wade.) Instead she used leave time she had accumulated to have the baby, whom she put up for adoption. She was discharged for “moral or administrative reasons.”

The Air Force gave in and made an exception for Struck, rendering her case moot. The instructions came down from Erwin Griswold, solicitor general and former dean of Harvard Law, who had invited Ginsburg to his home in 1956 to ask why she was taking a man's place at the school.

The remaining case was Sharron Frontiero, who was denied a military housing allowance for her husband on the grounds that he was not dependent on her – a standard that a male seeking the same pay would not have had to meet. Lower courts found a rational basis for the discrimination.

Southern Poverty Law Center lawyer Joseph Levin handed the case off to the ACLU with the understanding that the ACLU would control the case and Ginsburg would argue. Levin reneged, based on his attachment to the case and not any “chauvinistic” desires. The ACLU was left to an amicus position, arguing for strict scrutiny, and Ginsburg would get 10 minutes of argument. She drew on Reed to argue that the court could proceed from the test articulated therein to a strict scrutiny test without making a “giant step.” She argued for 10 minutes without interruption, and the discovery of Justice Blackmun's papers later revealed he had given her a C+.

The court ruled for Frontiero but did not adopt strict scrutiny. Ironically, one of the key points in the argument against strict scrutiny was the court's desire to avoid “activism”-- preempting the enactment of the Equal Rights Amendment, which in 1973 appeared imminent. Four justices – Brennan, Douglas, White and Marshall – favored strict scrutiny.

Ginsburg wanted to turn next to Wiesenfeld, but had to detour around a case unvolving Melvin Kahn, a widower who was denied a Florida tax break. Kahn had been brought by another attorney and then forced on Ginsburg. She relied on Reed, stepping back from strict scrutiny because she had no faith she could prevail in Kahn. The court found a rational basis for Kahn – Justice Douglas, the son of a widow, was mindful of women's particular financial difficulties. Only two justices (Brennan and Marshall) wanted strict scrutiny. The court had taken a step backward.

Wednesday, July 8, 2009

Q&A with Justice Ginsburg

In a great tie-in to the posts on Equal, the New York Times today featured an interview with Justice Ginsburg about her thoughts on The Place of Women on the Court. Justice Ginsburg gives a very candid interview on her thoughts on the dearth of women on the Supreme Court, Sotomayor's nomination, her reflections on some past cases, and her thoughts on legal agendas in the future. Some highlights:

On being the only woman on the Court: My basic concern about being all alone was the public got the wrong perception of the court. It just doesn’t look right in the year 2009.

On Sotomayor's "Latina women" comment: I thought it was ridiculous for them to make a big deal out of that. Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could. I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.

On how the next generation could change things: [In Nguyen v. INS, the court in 2001 upheld, by 5 to 4, a law that set different requirements for a child to become a citizen, depending on whether his citizenship rights came from his unmarried mother or his unmarried father.] The majority thought there was something about the link between a mother and a child that doesn’t exist between the father and a child. But in fact the child in the case had been brought up by his father.

They were held back by a way of looking at the world in which a man who wasn’t married simply was not responsible. There must have been so many repetitions of Madame Butterfly in World War II. And for Justice Stevens [who voted with the majority], that was part of his experience. I think that’s going to be over in the next generation, these kinds of rulings.

ABA Gives Sotomayor the "Well-Qualified" Nod

The ABA Standing Committee on the Federal Judiciary has said that Judge Sotomayor is "well-qualified" for a position on the Supreme Court. Although it doesn't sound that enthusiastic, this is the committee's highest rating for potential judges. The vote was unanimous.

The rating is based on Sotomayor’s integrity, professional competence and judicial temperament. More on the finding can be found here.

Tuesday, July 7, 2009

Group Status Update Continued: MWL

In the last few weeks, we have been updating everyone on the current status and plans of women lawyers groups in Minnesota. We have gone through most of MWL's recently-passed 2009-2012 Strategic Goals, with only one more to explore. (To see all the goal postings together, click on the "Strategic Plan" label at the bottom of this post).

STRATEGIC GOAL E: Develop and implement social action initiatives that advance MWL’s mission.

  1. Evaluate the alignment of MWL’s judicial committees and their work as it relates to MWL’s mission and develop a plan of action to move forward.
  2. Define MWL’s social action goals and guidelines and align MWL’s committees with them.

This goal is one that contemplates a broad reach for MWL, and puts some of the broader goals into more tangible terms. For example, the group will be working toward its mission of "advanc[ing] the success of women lawyers and striv[ing] for a just society" through finding some of the more definable policies and social initiatives that can help achieve this mission.

Monday, July 6, 2009

Dressing for the Recession

National Public Radio had an interesting piece last week about workplace changes in light of the current recession. The piece, "Workers Dressing Better to Hold On To Jobs," observes that many people are dressing nicer and approaching their workplace interactions with more formality in order to retain their jobs.

One interesting component was the speculation on why businesses started to move to "business casual" in the first place. The piece surmises that the trend started when businesses were working hard to recruit and retain talented people. It was an easy thing to offer--work expectations could remain the same, but there was a perceived aura of being more laid back.

If it is an easy perk to offer, it seems like it would be an easy thing to take away once businesses no longer had to worry about a shortage of talented applicants. But does the formality of dress affect the nature of the workplace enough for this to be a fight worth fighting--on either side?

Another interesting question is if this affects women differently than it affects men. Business casual for men is pretty clear--collared shirt or sweater, nice pants, perhaps a tie. For women, though, it opens up a multitude of questions: how much of your toes or arms can show? What is appropriate jewlery? While it is nice to be able to have more room for individuality and unique dress, it can also be the source of stress as people are starting to question whether what one wears can have that much influence over advancing in, or even just keeping, your job.

For a few sites that discuss business casual for women, make sure to visit Corporette, the Fibers blog, and one (harsher) thought from the Women For Hire blog.

Thursday, July 2, 2009

Chapter Two of "Equal: Women Reshape American Law:

2.Old Law Meets a New Case: Reed

The Idaho Supreme Court had said that “nature itself [had] established the distinction between men and women.” Ginsburg used the case as the first step to getting gender viewed as a suspect class.

Ginsburg worked with a group of law students who wrote a brief filled with social history and left it with her with notes that said, “check source.” She fixed their footnotes and added law to their “student screed.” Ginsburg was a hidden radical who had been turned down for many jobs, including clerkships at the Supreme Court, because she was a woman.

In Reed she argued for strict scrutiny, or, in the alternative, for intermediate scrutiny, or, failing those, for a classification that is reasonable, not arbitrary, and related to the object of the legislation. The language of the third test was drawn from a 1920 case named Royster Guano. Ruling for Sally Reed, Chief Justice Warren Burger applied the “rational relationship” test. Ginsburg was delighted with the decision which she saw as a “turning point” case, Although the rational basis test sounded easy, it called for an intermediate level of scrutiny, while the so-called intermediate test was actually quite difficult.

Ginsburg took charge of the Women's Rights Project of the ACLU (which received early funding from the Playboy Foundation, causing mailings to go out under a Playboy Bunny imprint.) Ginsburg assembled an “Equal Rights Advocacy Seminar” at Columbia, where she was now teaching. “Never again would student drop their drafts in Ginsburg's lap, telling her to fix the footnotes.”