Woman, Esq.

Let's Make Some Connections

2010-08-25T13:20:00.012-05:00

Ah, Networking. The word, innocuous as it is, brings with it so many bad connotations: for me, I imagine standing in a room packed with people, but having no idea who is receptive to being approached. Or that moment when you do enter a conversation, and it immediately stalls out. Sounds terrible.

But, it is getting to be that time of year. On Campus Interviewing for law students. Kick-off receptions for legal organizations. A renewed sense of programming for every workplace as summer ends and people are more readily available.

And really, if you think about it, those awkward situations pass quickly, or never really happen. Bring a friend out to an event, or put your arm in a sling as an automatic conversation starter if you're really nervous. But I usually leave an event thinking about the good conversations I had--not the few seconds I spent browsing the room nervously looking for someone to approach.

That cheerleading moment aside, I did some web-browsing for some networking tips for those with events around the corner. Forbes has some fun pictures to click through in this article for women networkers, although its tips basically boil down to "be yourself" and "get involved." If you are specifically looking for some good interviewing tips, I like this article on how interviewing is like dating, which can be applied to most professional events.

And sometimes the guise of networking is good: you'll never catch me "gossiping" with co-workers....I'm simply "networking."

KAGAN CONFIRMED 63-37

2010-08-05T16:25:00.002-05:00

Republicans voting for Solicitor General Kagan were were Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana and Judd Gregg of New Hampshire. . Thirty-six Republicans and one Democrat, Sen. Ben Nelson of Nebraska, voted against the nominee.

CONGRATULATIONS CHIEF JUSTICE LORIE GILDEA

2010-05-14T15:53:00.005-05:00

Minnesota Women Lawyers issued the following statements following the appointment of Justice Lorie Gildea as chief justice, as well as two more women to the district court:

Minnesota Women Lawyers congratulates Justice Lorie Gildea on her appointment to Chief Justice of the Minnesota Supreme Court. We also congratulate Mary Mahler, appointed to a judgeship in the seventh district and Christine Long appointed to a judgeship in the third district, both of which were also announced today. MWL believes that the judiciary should fairly reflect the composition of the legal profession and of the public, and appreciates these appointments as important steps towards parity on the bench and in its leadership ranks. As women currently represent 26% of state judges on a national basis, we commend these efforts, and encourage the continued consideration and appointment of qualified women candidates for future Minnesota judicial positions.

Kagan Set to be Nominated

2010-05-10T08:24:00.003-05:00

As can be seen in all the news reports this morning, President Obama is set to nominate Solicitor General Elena Kagan as the 112th Supreme Court Justice, to succeed Justice John Paul Stevens. The announcement is set to take place at 10 a.m.

This announcement brings with it all sorts of potential historical implications. It could be the first time that three women will serve at the same time. Ms. Kagan could be the youngest person ever nominated to the court, at 50 years old. There is also a lot of talk about her prior judicial experience....

Any thoughts on how different this confirmation process could be from Justice Sotomayor's confirmation? I'm betting quite a bit different.

Equal: the end (of the book, that is)

2010-05-06T15:27:00.001-05:00

26. Reckoning at the Supreme Court

Of course, the prospects for VAWA, at least for a civil rights remedy, were too good to be true and the Supreme Court immediately found the provision unconsititutional as soon as a case reached it.
It was the case of Christy Brzonkala, who said she was raped by two football players at Virginia Polytechnic Institute. The college's sexual assault policy was unsatisfactory, to put it mildly. One of her alleged rapists was an important football player and the proceedings against him were reduced to “abusive conduct.” He would have been eligible to play when Virginia Tech went to the Sugar Bowl in 1995, had he not been charged with breaking the door of a bar and hit and run.
Judges found VAWA's civil remedy unconstitutional almost every step of the way. She lost at the District Court, won before an appellate panel, lost in an en banc rehearing and eventually would lose at the Supreme Court.
Before she did, however, the high court decided two other cases that would limit the commerce clause and be used to strike down VAWA. The first was United States v. Lopez, where the court said that a federal law regulating guns near schools was not justified by the commerce clause. Justices Breyer, Souter, Stevens and Ginsburg dissented. Breyer's dissent argued that the gun law could have been upheld readily under existing precedent applying a rational basis test.
Lopez was decided in 1995, about a year after VAWA, which Rehnquist had vigorously opposed, was enacted,

In 1997, City of Boerne v. Flores addressed congressional power under the 14th amendment. Congress had passed the Religious Freedom Restoration Act in 1993, setting forth a compelling state interest for a law burdening the exercise of religion. It relied on the same law that supported the civil rights remedy in VAWA. But in Borene, the court rebuffed Congress's attempt to tell it what test to use to judge constitutionality. It required congurence and proportionality between the injury and the remedy in legislation enacted under the 14th Amendment.
Both the constitutional provisions underlying VAWA had been battered. During argument Justice O'Connor asked for a “hook” to the commerce clause, and she turned out to be Justice Rehnquist's fifth vote to strike down VAWA. Gender motivated crimes of violence were not economic activity, and the voluminous fact findings of Congress were irrelevant. The four who dissented in Lopez dissented again.
Rehnquist also relied on the Civil Rights Cases of 1883 – which upheld racial discrimation – to say that the 14th amendment reached only state action. Those cases were written by Justice Joseph P. Bradley, who had also written the words, based on “the law of the Creator,” that prevented Myra Bradwell from becoming a lawyer, “The Supreme Court, as ever mostly male, closed the twentieth century be reaffirming a nineteenth-century justice who claimed blacks were the law's favorites and women were protected, thanks to the Creator, by men.

POSTSCRIPT
Toward Equality (Twenty-first Century)

Strebeigh writes that we don't know if Harriet Meiers was nominated to the court to serve as a “screen” to allow President Bush to nominate two men, John Roberts and Samuel Alito, to the court. We do understand that Justice Rehnquist maneuvered Justice O'Connor off the court ahead of him, leaving a vacancy to be filled by Roberts, his former clerk.
Streibeigh writes, “One might supposed that the gender of judges no longer shapes judgments about gender. But during the last three decades of the twentieth century, that supposition proved often false. Men in law fought to avoid looking closely at discrimination. Men in law fought to penalize pregnant women at work. Men in law fought to permit their firms to discriminate against women. Men in law saw sexual harassment at normal conditions of employment. Men in law cut away the legal power of Congress to curtail violence against women. Men in law then gained an increased majority on the court.”
Male presidents and senators allowed that to happen, he points out, writing before Justice Sonia Sotomayor ascended to the bench, appointed by President Barack Obama. “Voters can vote for equality.”

More good news for women partners

2010-04-30T15:26:00.002-05:00

Forbes has reported that a new study shows that not only is it hard for a woman to make partner, its hard to stay there. The joint study, conducted by the Minority Corporate Counsel Association, the ABA Commission on Women in the Profession, and the Project for Attorney Retention, surveyed 700 female lawyer at regional and international law firms. According to the study, the majority of women who had made it partner had to attain the position by making a lateral jump to another firm--few were promoted from within.
It also reported that 9 percent of the woman partners lost their equity stakes.
The solution, according to Forbes--more women at the top. Sounds like a vicious cycle to me.

Myra Bradwell award goes to Mary Vasaly

2010-04-29T15:38:00.003-05:00

Minnesota Women Lawyers has made an outstanding choice with its decision to present its highest honor, the Myra Bradwell Award, to its past president Mary Vasaly.
The award is presented to an MWL member who expresses the highest ideals of the legal profession and who possesses the qualities exemplified by Myra Bradwell such as courage, perseverance, and leadership on issues of concern to women. Bradwell went before the U.S. Supreme Court in an attempt to be admitted to the practice of law, which the court denied. Bradwell was admitted a few years later in Illinois.
Vasaly is also the former president of the Hennepin County Bar Association and a founding member of the Infinity Project. The award will be presented at MWL’s annual meeting in May.

Toobin predicts Kagan will get SCOTUS nod

2010-04-23T16:24:00.003-05:00

Last night's Law Day dinner, sponsored by the Fund for Legal Aid, was a boffo hit featuring Garrison Keillor, who talked about Don and Arvonne Fraser, and journalist Jeffrey Toobin, who covers the Supreme Court and is the author of "The Nine." In good news for readers of Woman, Esq., Toobin predicted that the next Supreme Court nominee would be Solicitor General Elena Kagan, and then after her, Janet Napolitano, Secretary of Homeland Security. That will make for interesting discussions, Toobin said, since Napolitano used to be Anita Hill's attorney. He also said that if Minnesota would elect a Democratic governor, Amy Klobuchar would be in the running. I think he was serious, although Klobuchar was in the audience and Toobin also remarked, "Nobody panders like I do."

New Title IX Changes

2010-04-20T09:45:00.001-05:00

The following is a post by Erin Davenport, an associate at Dorsey & Whitney:

Today, the Obama administration will reverse a Bush-administration policy regarding Title IX, which governs gender equity in athletics. Under Title IX, universities show their compliance with the law in three ways: (1) the number of male and female athletes are proportional to the university’s enrollment, (2) the university is expanding the athletic opportunities on campus, or (3) the university is meeting the interests and abilities of female students on campus. The third option initially required the consideration of several factors, but the policy changed under the Bush administration. The change allowed universities to meet the third option by using a model survey. Additionally, no response to the survey was allowed to be considered as a disinterest in athletics. The NCAA opposed the Bush administration policy.

With today’s announcement, using only the model survey will no longer be sufficient to show Title IX compliance. Universities can still use surveys but must provide additional information to prove that they are meeting students’ interests. The universities also cannot use students’ lack of response to a survey as an indicator of disinterest in athletics.

Although some disagree with changing the policy and think that students may not express their opinions, others think that the new policy will help female students. Perhaps, those in opposition are correct that students will not express their opinions under the new policy and that the administration assumes that it can gauge the level of interest better than students. Allowing a lack of response to a survey, however, to be considered a disinterest in sports is not an accurate indicator. Students have busy lives and may forget to complete the survey – especially when most people receive a large volume of email on a daily, if not hourly, basis. The new policy does not ban surveys as a tool; rather, the new policy merely wants universities to use multiple indicators, which could include the survey, to provide a balanced perspective. Thus, students could still have a voice in what athletics they are interested in if the university uses the survey. Ensuring female participation in athletics helps women realize their potential and may provide them with educational opportunities that they might not have had through athletic scholarships. This new policy likely will ensure that female athletes have an equal opportunity to participate in athletics of their interest and allow students’ voices to be heard.

Rumors that Kagan is a lesbian should be ignored, not disputed

2010-04-16T14:52:00.002-05:00

Apparently rumors are circulating that Elena Kagan, the solicitor general who is widely viewed as a front-runner for Justice Stevens’ seat on the bench, is a lesbian. The response to this “news” should be a big yawn, but that’s not the real world. The first blog posting that Kagan is a lesbian was made by a Republican, so it wasn’t intended to be neutral information.

The White House, instead of saying, "so what," responded by asking CBS to pull a report on the blog posting because it made “false charges,” which the network eventually did . Not sure that really made the situation any better. What if the White House said, “Really? Who cares?” We don’t live in that society yet, but we have to take steps to get there. Might as well start here.

Equal: Women judges to the rescue

2010-04-16T11:32:00.001-05:00

More posts from Equal. See the last one here.

24. Seeking Equal Judicial Firepower

VAWA turned to the National Association of Women Judges, which had pioneered research into gender bias in the court system, not only from judges but from male attorneys. They took their work back to their states, sometimes to the chagrin of their male colleagues. New Jersey was first, followed rapidly by other states, including Minnesota. Slowly, the federal courts became involved. “Nourse [recognized] the potential power of almost a decade of surveys and investigations into judicial gender bias led by America's National Association of Women Judges.”

25. Women Judges to the Rescue.

The National Association of Women Judges was led by Minnesota Hennepin County District Court Judge Cara Lee Neville at the time NAWJ agreed to back VAWA. It stood at the intersection of the judiciary, led by Rehnquist, and the young women lawyers who supported VAWA. After the association voted to support VAWA, Ninth U.S. Circuit Court of Appeals Judge Mary Schroeder and University of Southern California Law School Professor Judith Resnick were two influential women who threw their influence toward VAWA and got the resolution supporting it passed prior to the ABA annual meeting where the ABA Judicial Administration Division was expected to attack it. NAWJ supported four parts of VAWA as written, and supported the civil rights provision if it was narrowly tailored to cases where a federal forum was necessary and appropriate. This wording would give Judge Norma Shapiro, a member of the ABA house of Delegates and the Judicial Administration Division, a chance to influence the division to accept the women judges language regarding a civil remedy. Judge Schroeder would work on tailoring the civil rights language.

Right before the climactic ABA meeting, Justice Sandra Day O'Connor addressed the Ninth Circuit Judicial Conference and told them to think more expansively about the reach and responsibility of the federal courts in addressing discrimination against women.

The ABA seemed poised to vote against VAWA, even thought the Board of Governors supported it, when attorney Brooksley Born, chair of the ABA standing committee on the federal judiciary, told the House of Delegates this would be the first time the ABA opposed civil rights legislation. In the end, the judicial administration was defeated and VAWA had survived its worst moment en route to Congress.

Then, in 1993, in a move that many saw as miraculous, the Judicial Conference reversed course from Rehnquist and shifted from opposition to VAWA to no position, opening the way for moderate judges to push for an acceptable and constitutional civil rights law for women. Judges began to see that closing the courthouse doors to women was not good for the judiciary.

A final challenge to VAWA came in meeting the concerns of judges by narrowing the scope of the civil rights provision but still affording the remedy that Nourse and the others involved with the bill sought. They wanted to draw on legal precedent but avoid the obstacles created in the 1880s civil rights cases and the early pregnancy cases. Eventually they reached the definition of crimes that VAWA covered: crimes committed because of gender or or the basis of gender and due, at least in part, to an animus based on the victim's gender. VAWA became law on Sept. 13, 1994.

Avoid engagement right catfights if you want the job

2010-04-16T11:27:00.000-05:00

The What Not to Wear Fashion Show recently held in Chicago attracted all sorts of blogosphere attention. I’m a person who still wears pantyhose (when I can find them in stores) so I’m not the best to comment on the overly-casual dress I see everywhere that irritates me to death. Still, isn’t this kind of weird advice to job seekers: “do not wear your engagement ring if it is large because it may anger your women interviewers and cause jealousy (and perhaps rage).” Apparently that is advice from a woman lawyer.
However, this is my favorite comment and one I kind of agree with, although I haven’t been in Express in years (it’s not for the 50-something). “Maybe you bought your suit at Express or somewhere… and you bent over to get a Danish and I can see your tramp stamp.” Click here for Above the Law’s full coverage.

MWL Supports Retention Elections

2010-04-12T18:06:00.001-05:00

The following is an update from Kelly Francis on MWL's recent public policy decisions:

At MWL's March Board meeting, the Board of Directors voted to support legislation proposing a constitutional amendment to move from contested judicial elections to retention elections. The proposed amendment stemmed from the recommendations of the Quie Commission, a group tasked with evaluating the potential ramifications of recent Supreme Court decisions on impartiality in Minnesota courts. In particular, the Commission was concerned that political and financial influences that had previously been restricted would start to interfere with judicial elections and outcomes. The resulting bills, SF70 and HF224, would change our current election process to an appointment and retention system with a Performance Evaluation Commission to evaluate appointed judges' qualifications.

The Board of Directors also voted to add MWL to the Coalition for Impartial Justice as a supporter of the pending legislation. The Coalition for Impartial Justice currently consists of 27 supporting organizations, both legal and non-legal.

National bar association recognizes Infinity Project

2010-03-23T09:12:00.000-05:00

The Infinity Project has been awarded The 2010 Public Service Award by the National Conference of Women’s Bar Associations (NCWBA).

The Infinity Project was started in 2008 by Minneapolis lawyers Lisa Brabbit, Mary Vasaly and Marie Failinger; along with Sally Kenney of the University of Minnesota, to promote gender diversity on the Eighth U.S. Circuit Court of Appeals.

“We share this award with all of you, our supporters and organizers. Thanks to Minnesota Women Lawyers who nominated the project and to all of you for your commitment to the mission,” said Brabbit, who now serves as Infinity’s president.

The Public Service Awards, first presented in 1985, recognize programs of member women’s bar associations which serve the wider community. The purpose of the awards is both to honor the work of the organizations selected and to inspire other women’s bar groups to consider creating similar programs in their own associations and communities.

The award will be presented at a luncheon during the 2010 Women’s Bar Leader Summit, Transforming Law, Transforming Lives, to be held on Friday, August 6th in San Francisco at Golden Gate University School of Law.
More information about the Infinity Project is available at http://www.hhh.umn.edu/centers/wpp/infinity/

Another Country's Struggle for Equality

2010-02-17T10:01:00.002-06:00

Although it is clear that the playing-field is not yet level for American women pursing legal careers, at least we are allowed on the field.

A good reminder of all the opportunities that women have in this country is a news story posted just today on Arab News.com: Women Lawyers Face Difficulty in Pursuing Careers.

The story talks about the difficulties facing all lawyers in the Saudi kingdom, but emphasizes how women are probably the worst off because they are not hired for necessary training jobs at firms.

“Women lawyers are not welcome in the Kingdom’s courts at all,” [one woman] said, adding that as a result she is forced to operate through male representative.

Instead of having the job opportunities available to male law school graduates, most women specialize in contracts or real estate, or work for the government.

MWL Winter Event

2010-02-08T08:57:00.002-06:00

Save the date! MWL's 2010 Winter Celebration is taking place on Tuesday, March 16th, 2010. The celebration will feature dinner, a silent auction, and a keynote address given by Civil Rights Attorney and Harvard's first tenured black woman professor Lani Guinier.

Registration and information can be found here. This appears to be a speaker you will not want to miss--her credentials and publications sound absolutely fascinating:

In 1998, Professor Guinier became the first black woman to be appointed to a tenured professorship at Harvard Law School. Before joining the faculty at Harvard, she was a tenured professor for ten years at the University of Pennsylvania Law School.

Ms. Guinier came to public attention when she was nominated by President Bill Clinton in 1993 to head the Civil Rights Division of the Department of Justice, only to have her name withdrawn without a confirmation hearing. Ms. Guinier turned that incident into a powerful personal and political memoir, Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice.

While a member of the faculty of the University of Pennsylvania Law School, Ms. Guinier investigated the experience of women in law school, leading to the publication of a book, Becoming Gentlemen: Women, Law School and Institutional Change. She and her co-authors found that women were not graduating with top honors, although women and men came to the school with virtually identical credentials.

The author of many articles and op-ed pieces on democratic theory, political representation, educational equity, and issues of race and gender, Ms. Guinier has written The Tyranny of the Majority (Free Press, 1994) about issues of political representation; Who’s Qualified? (Beacon Press, 2001) written with Susan Sturm about moving beyond affirmative action to reconsider the ways in which colleges admit all students; and The Miner’s Canary (Harvard Press, 2002), written with Gerald Torres about the experience of people of color as a warning or “canary” signaling larger institutional inequities.

A graduate of Radcliffe College of Harvard University and Yale Law School, Ms. Guinier has received numerous awards, including the 1995 Margaret Brent Women Lawyers of Achievement Award from the American Bar Association’s Commission on Women in the Profession.

Equal: Judges strike back, and then strike back again

2010-01-28T15:37:00.004-06:00

I just realized how long it's been since I posted a chapter of Equal. My apologies.
Here's two, to make up for it.

23. Judges Strike Back

Chief Justice William Rehnquist's attacks on women's rights were not unusual, which was why his opinion in Vinson was a surprise. But they usually were contained in judicial opinions. But in 1991, Rehnquist attacked VAWA in his year-end report. VAWA would involve the federal courts in a host of domestic disputes, add to the caseload crisis, and degrade the high quality of the federal courts. Only congressional action vital to meeting important national interests was appropriate, which did not include violence against women.

At the time, O'COnnor was the only Supreme Court woman justice; 9 percent of the Courts of Appeals judges were women and fewer than 7 percent of the federal trial judges were women. More than half the district courts had no women judges.

The Conference of Chief Judges of the state supreme courts opposed the civil rights provision as well. Then, a federal judicial impact assessment suggested that VAWA would damage the judiciary, apparently because violence was so pervasive that the courts would be flooded with claims. The need for the law meant the law should be opposed.

Rehnquist formed an ad hoc committee on gender-based violence to prepare a resolution for the Judicial Conference of the United States. Two women judges were appointed to the committee. The committee met with Nourse and was reassured that VAWA would not flood the federal courts, but the Judicial Conference disregarded this assurance and claimed the impact of the law would be more than 20 times greater than the original judicial impact assessment.

In doing so, the judges arguably were going beyond lobbying against legislation but interpreting in opposition to the stated intent of its drafters and before it was considered by Congress. These events coincided with the confirmation hearings of Clarence Thomas, which Biden was conducting.

Rehnquist continued his attack of VAWA on the grounds of federalism, again arguing that the federal courts limited role should be reserved for important national issues. He and other judges began to lobby the ABA to oppose VAWA's civil rights actions.

At a Congressional hearing sponsored by Rep. Chuck Schumer, chair of the House subcommittee on crime and criminal justice, Biden took on the chief justice. He told them that one of the judges in the ad hoc committee had said, in response to a comparison between VAWA and civil righs laws protecting African-Americans, “I wouldn't do it for black folks either.” Biden was challenging the committee to explain the difference between race discrimination and sex discrimination.

24, Seeking Equal Judicial Firepower

VAWA turned to the National Association of Women Judges, which had pioneered research into gender bias in the court system, not only from judges but from male attorneys. They took their work back to their states, sometimes to the chagrin of their male colleagues. New Jersey was first, followed rapidly by other states, including Minnesota. Slowly, the federal courts became involved. “Nourse [recognized] the potential power of almost a decade of surveys and investigations into judicial gender bias led by America's National Association of Women Judges.”

Remembering Angie McCaffrey

2010-01-28T09:17:00.002-06:00

The legal community and I lost a friend last night. Professor Angela McCaffrey, director of clinics at Hamline University School of Law, died from ovarian cancer. She was a kind and gentle soul, a loyal friend to Legal Aid, and an inspiration to law students. As the director of legal clinics at Hamline, she was an advocate for the poor and voiceless.

Anglie was married to Assistant Hennepin County Public Defender Mark Cosimini, and mother to Charlie and Michael. Her mother survived the war in Hitler's Germany, and Angie once told me her mom mopped up blood in concentration camps. She was, understandably, an advocate of non-violence and the sort of person who loved origami birds that symbolized peace. She liked to go hear Mark play the blues and she liked to play bridge with us – although not as much as she liked staying home with her kids in the evenings, so we didn't see enough of her. During her cancer treatment her hair came back in very curly, and she thought that was “wild.”

She was not somebody the legal profession, or the world, can afford to lose.

Reflections on a SmartTalk

2010-01-26T19:54:00.002-06:00

On Monday, hundreds of Minnesota women (and maybe a few men) gathered at Orchestra Hall as the Minneapolis SmartTalk series got underway.

SmartTalk is a lecture series held once a month for the first five months of the year. The mission "stems from the idea that women are inspired by the heart and voice of other remarkable women." The lectures feature about 45 minutes of speech and then 45 minutes of question-and-answer.

The first speaker was former First Lady Laura Bush. Her topic: Life at and after the White House. All politics aside was the theme of the night. Her down-to-earth personality and easy-going nature allowed the audience to really think: what would it be like to live in the White House? How does such a life-altering experience ever allow you to feel at peace?

And even though you had to wonder if Laura Bush had really ever had a normal life once marrying the former President, with the Bush family's heavy involvement with high-stake politics, it made you realize that no matter where you live, certain things, like family, children, and love, always take the top priority.

While the talk may not have inspired all to go out and change the world, that might be the exact point. No matter how much of our lives we dedicate to changing the world, it is the close relationships with others that truly shape the world around us.

The Tragic Endings Continue

2010-01-18T08:47:00.002-06:00

This morning's Star Tribune features a report on Minnesota's latest domestic dispute to end in tragedy. Three people were found dead on Sunday in a farmhouse in the southern part of the state.

The tribune was able to discover that the people were a 25-year-old woman, her stepfather, and a 28-year-old man who had been charged with assaulting the woman in December. The man, Shaun Haugen, had been released from the local jail just last Thursday after having violated the no contact order.

The tribune reports that this is at least the third such incident in recent months, and further states that:

In 2008, 3,119 of the 10,798 protective orders issued in Minnesota were violated. In 2007, there were 3,365 violations of the 11,374 orders filed. The first violation of an order is a misdemeanor. A second is a gross misdemeanor, and a third is a felony.

One quick Google search lead to one potential thought--tailoring protective orders or security measures when some of the more serious factors are present in a woman's request for a protective order. One study found that two huge indicators of protective order violations and further abuse is any continuing relationship once the order is issued, and any patterns of stalking. Although the courts are already stretched thin on domestic abuse work, there may need to be one extra step in the issuance of such orders to prevent the tragic endings that have been occurring with more and more frequency.

Sotomayor profile: She thought she deserved to be a Supreme Court justice

2010-01-12T16:48:00.003-06:00

The New Yorker has a really interesting piece on Sonia Sotomayor. I like this story:

Not every senator was charmed by Sotomayor. The day she broke her ankle, she kept an appointment with Senator David Vitter, a Republican from Louisiana. Vitter, Sotomayor later told a friend, was unwelcoming. As they were finishing their meeting, Vitter said, “I want to ask you—do you think if I was you, and I had made the wise-Latina comment that you made, that I would have deserved to be a Supreme Court Justice?”

Sotomayor replied, “If you had my record, yes.”

Read more: http://www.newyorker.com/reporting/2010/01/11/100111fa_fact_collins?currentPage=4#ixzz0cRQd2AS7

ATL readers react with cruelty to sex discrimination filing

2010-01-04T11:54:00.003-06:00

Above the Law has a post about lawyer Julie Kamps suing the Big Law firm of Fried Frank for sex discrimination. She worked there as an associate for 10 years, was repeatedly promised partnership, and then was fired. Now she is suing for sex discrimination, claiming sexual harassment. Although what I've read of the complaint is melodramatic and could use a good edit, it sounds like a sad story. What is really annoying, however, are the personal comments. (Annoying, but not surprising. I read them in order to get blog fodder.) "Ugh, look at her. Nobody is going to sexually harass that. I would make her wear a burqua if she worked in my office." Nice. What is the matter with these ATL readers?

Eat your heart out, ladies...

2009-12-30T07:48:00.006-06:00

News out of Denver this morning: Outback Steakhouse will pay $19 million to settle a major class lawsuit alleging sexual discrimination at its hundreds of restaurants nationwide.

According to the Denver News, the suit, filed in September 2006, alleges that managers made comments that disparaged women workers.

Tom Flanagan, a joint venture partner, allegedly said female managers had "let him down" and "lost focus" when they had children. He also allegedly said women managers had trouble "saying no" and that he wanted "cute girls" to work in the front as servers. Ben Martinez, a managing partner, allegedly told another female employee she should be a teacher instead of working in the restaurant business.

The $19 million will be paid to female employees at Outback who have worked from 2002 to the present, and who have worked there for at least three years.

And a woman lawyer helped to make this happen. Stephanie Struble, an associate at a Denver law firm, was one of the lead attorneys on the case.

The Gift (or Conflict?) of Romance

2009-12-21T09:19:00.007-06:00

The Texas Supreme Court has set forth changes to the state's attorney discipline rules, changes which all lawyers in the Texas bar will vote on next June. The majority of the changes surround conflicts of interest, such as those rules surrounding arbitration agreements and scienter.

Although fascinating topics, there is another proposed rule change that could directly display how greater numbers of women lawyers are influencing the bar.

The Texas Supremes proposed a rule that would prohibit sex between a lawyer and his or her client unless they were already involved in a sexual relationship. This is not a new rule: several states have such a rule. It was strongly recommended by the ABA's ethics committee back in 1992, where they said the clients are often emotionally vulnerable, and that sexual relations can cause serious conflicts of interest.

And interestingly, the rule has been vetoed twice in the past by the Texas bar's board of directors. As this is the first time it will be voted on by all lawyers, some commentators say that the increasing number of women lawyers may influence how the vote turns out.

You've Got Mail

2009-12-14T21:01:00.002-06:00

In the season of holiday cards and social gatherings galore, the November/December issue of the New York State Bar Association Journal reminds us about the importance of keeping our correspondence in line an article called E-mail Netiquette for Lawyers.

The article is helpful in a way that other e-mail etiquette articles are not: it recognizes that not all e-mails are equal. There are different levels of formality. But no matter what level of formality, conciseness is key. And errors should not be acceptable. Although it feels more informal, it is still a written communication that is demonstrating your level of care.

My favorite tip: never forward without permission, but always assume others will forward without your permission.

And for once, my love of exclamation points in e-mails is validated (otherwise e-mails are completely emotionless!)

Next chapter of Equal: Using Civil Rights to Combat Violence

2009-12-10T16:44:00.001-06:00

22, Using Civil Rights to Combat Violence

Following the passage of civil rights legislation after the Civil War, the Supreme Court had adopted a narrow jurisprudence based on states rights – a jurisprudence that had resulted in Plessy v. Ferguson. These precedents would create difficulties for the civil rights laws passed in the 1960s as well as the Violence Against Women Act.

However, the right of a victim to sue her attacker had survived. Under VAWA, a civil action would exist, based on the Fourteenth Amendment.

Biden was supported by the NOW Legal Defense Fund, and its staff attorney Sally Goldfarb. They drew on evidence gathered throughout the country from task forces on gender bias in the courts.

A Minnesota judge [Ed. Note: Kathleen Sanberg], chair of the state's gender bias task force, said, “'Acquaintance rape' promises to be one of the major upcoming issues with which the legal system must learn to deal effectively and with fairness to the victim.”

A task force was created from diverse women's groups throughout the country to vigorously debate the issues and came up with a consensus that VAWA should include a civil rights section.

Pat Reuss, of the now folded Women's Equity Action League, became a grassroots organizer. She saw VAWA as a civil rights law that belonged to women everywhere, not just litigants at the Supreme Court. By early 1992, 50 percent of the senators and 40 percent of the representatives had become VAWA co-sponsors. “The prospects for VAWA seemed too good to be true.”

For the Public Good

2009-12-06T21:54:00.003-06:00

The MWL Professional Development committee is hosting an important program this upcoming Thursday, December 11. Titled "For the Public Good: A User's Guide to Pro Bono Work," the event is being hosted at Lindquist & Vennum. The event goes from 12:00 to 1:30 p.m., it's free, and there is lunch served. (Attendees are asked to bring an item for a food shelf.)

The panel of speakers could not be more experienced in this area:

Moderator: Nicole Siemens, Attorney, Lindquist & Vennum
Karen Canon, Associate General Counsel/Chief Regulatory Counsel, US Bancorp
Janine Laird, Executive Director, Minnesota Justice Foundation
Sandra Smalley-Fleming, Attorney, Lindquist & Vennum

If that isn't enough to convince you, I'm not above throwing out a small reminder that it is the season of giving...what could be more valuable than your time and professional skills, given towared a good cause? Registration can be found here.

Rally today to stop abortion-coverage ban

2009-12-02T09:39:00.002-06:00

This post comes courtesy of Susan Burns:

Dear friends:

Please take time out today to read the [below] article about Rep. Louise Slaughter (D-NY), Rep. Debbie Wasserman (D-FL) and other strong, wise and courageous women who are fighting to preserve the reproductive health rights of our daughters. Then, please give serious consideration to joining other strong, wise and courageous leaders tomorrow at the State Capitol at noon for a rally for reproductive rights. Exercise your voices and express your deep compassion and concern for future generations of young women, who deserve no less than the choices we have had in our lifetime.
Please join the Minnesota Choice Coalition on Wednesday, December 2 at 12:00 p.m. and demand that our lawmakers defend women’s reproductive health while passing meaningful health-care reform!
What: Rally to Stop the Abortion-Coverage Ban
Where: Minnesota State Capitol Rotunda
When: Wednesday, December 2 from 12-12:30 p.m.
Who: You and the pro-choice community
Why: Because we cannot allow anti-choice legislators to use health reform to take away our reproductive freedoms!
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We had a good and informative conference call on November 20th with Beth Sousa of the National Women’s Law Center. She relayed background information on the perils of the Stupak-Pitts Amendment and offered thoughts on where to focus our energy to make sure the amendment does not carry through as part of the final bill on health care reform. Stupak Pitts stands as an unprecedented limitation on reproductive rights. It is not just a grafting of the Hyde Amendment onto health care reform. It is a de facto elimination of health care coverage for abortion.

Here’s how it works:

• Women who receive any federal subsidies or tax credits for the purchase of health care coverage will be prohibited from purchasing policies that cover abortion. Otherwise stated, no policy that provides coverage for abortion may be offered to any purchaser who receives federal subsidies or tax credits for health care coverage.
• Women may use personal funds to purchase a rider that covers abortion, but only if such riders are available.

Problem?
• The number of people expected to receive some form of federal support for health care is significant. A family of four earning up to 400% of the federal poverty level, which is $88,000, will be eligible to receive federal support to purchase health care. Imagine how many Americans will belong to this insurance pool.
• The net effect is that insurers will write few, if any, policies that put at risk the ability to serve this huge pool of potential customers.
• Real world example: North Dakota already has in place a program requiring separate rider coverage for abortion. Blue Cross has 91% of the market share in North Dakota, and it does not provide any abortion riders.

Sadly, the bill contains special provisions to protect companies who are unwilling to provide riders, but contains no provisions to protect abortion providers.

What can we do?

• Support the Caps Amendment (Rep. Louise Caps. D-Ca)

The Caps Amendment is a viable compromise position that prohibits the use of federal funds for abortion (essentially Hyde), but allows women receiving federal subsidies for health care to segregate those subsidies and use private dollars to purchase the premiums for abortion coverage. The Caps Amendment was moving smoothly through the House until the 11th hour attack by a group of anti-abortion Congressmen and Catholic bishops resulted in the removal of the CAP insertion of the Stupak-Pitts Amendment.

• Attend the rally, Weds., Dec. 2, 12:00 p.m. at the Capitol

• Contact your Representatives and Senators

Rep. McCollum deserves our gratitude and support for speaking out against the Stupak-Pitts Amendment. See here for the text of her statement.

Sen. Franken has also made clear his position in support of reproductive rights.

Sen. Klobuchar is perceived as less clear in her position. Her position paper on health care reform makes no mention of the issue and there does not appear to be anything on her website addressing the Stupak-Pitts Amendment.
http://klobuchar.senate.gov/healthcare.cfm

FROM THE NEW YORK TIMES

New York Times________________________________________November 28, 2009
By SHERYL GAY STOLBERG
WASHINGTON — In the early 1950s, a coal miner’s daughter from rural Kentucky named Louise McIntosh encountered the shadowy world of illegal abortion. A friend was pregnant, with no prospects for marriage, and Ms. McIntosh was keeper of a secret that, if spilled, could have led to family disgrace. The turmoil ended quietly in a doctor’s office, and the friend went on to marry and have four children.
Today, Louise McIntosh is Representative Louise M. Slaughter, Democrat of New York. At 80, she is co-chairwoman of the Congressional Pro-Choice Caucus — a member of what Nancy Keenan, president of Naral Pro-Choice America, calls “the menopausal militia.”
The militia was working overtime in Washington last week, plotting strategy for the coming debate over President Obama’s proposed health care overhaul. With the Senate set to take up its measure on Monday, a fight over federal funding for abortion is threatening to thwart the bill — a development that has both galvanized the abortion rights movement and forced its leaders to turn inward, raising questions about how to carry their agenda forward in a complex, 21st-century world.
It has been nearly 37 years since Roe v. Wade, the landmark Supreme Court decision that established a right to abortion, and in that time, an entire generation — including Mr. Obama, who was 11 when Roe was decided — has grown up without memories like those Ms. Slaughter says are “seared into my mind.” The result is a generational divide — not because younger women are any less supportive of abortion rights than their elders, but because their frame of reference is different.
“Here is a generation that has never known a time when abortion has been illegal,” said Anna Greenberg, a Democratic pollster who studies attitudes toward abortion. “For many of them, the daily experience is: It’s legal and if you really need one you can probably figure out how to get one. So when we send out e-mail alerts saying, ‘Oh my God, write to your senator,’ it’s hard for young people to have that same sense of urgency.”
Polls over the last two decades have shown that a clear majority of Americans support the right to abortion, and there’s little evidence of a difference between those over 30 and under 30, but the vocabulary of the debate has shifted with the political culture. Ms. Keenan, who is 57, says women like her, who came of age when abortion was illegal, tend to view it in stark political terms — as a right to be defended, like freedom of speech or freedom of religion. But younger people tend to view abortion as a personal issue, and their interests are different.
The 30- to 40-somethings — “middle-school moms and dads,” Ms. Keenan calls them — are more concerned with educating their children about sex, and generally too busy to be bothered with political causes. The 25-and-under crowd, animated by activism, sees a deeper threat in climate change or banning gay marriage or the Darfur genocide than in any rollback of reproductive rights. Naral is running focus groups with these “millennials” to better learn how they think.
“The language and values, if you are older, is around the right to control your own body, reproductive freedom, sexual liberation as empowerment,” said Ms. Greenberg, the pollster. “That is a baby-boom generation way of thinking. If you look at people under 30, that is not their touchstone, it is not wrapped up around feminism and women’s rights.”
Abortion opponents are reveling in the shift and hope to capitalize. “Not only is this the post-Roe generation, I’d also call it the post-sonogram generation,” said Charmaine Yoest, president of Americans United for Life, who notes that baby’s first video now occurs in the womb, often accompanied by music. “They can take the video and do the music and send it to the grandmother. We don’t even talk anymore about the hypothesis that having an abortion is like having an appendectomy. All of this informs the political pressures on Capitol Hill.”
The pressures relating to abortion had seemed, for a time, to go dormant. Mr. Obama, who campaigned on a vow to transcend “the culture wars,” even managed to win confirmation of a new Supreme Court justice, Sonia Sotomayor, without the usual Washington abortion uproar. Most of his political energy around abortion has been spent trying to forge consensus on ways to reduce unintended pregnancies.
The quiet was shattered this month, when the House — with surprising support from 64 Democrats — amended its health care bill to include language by Representative Bart Stupak, Democrat of Michigan, barring the use of federal subsidies for insurance plans that cover abortion. Lawmakers like Ms. Slaughter, who advocate for abortion rights, found themselves in the uncomfortable position of voting for the larger health bill even though the Stupak language was in it.
Proponents of the Stupak language say they are simply following existing federal law, which already bars taxpayer financing for abortions. Democratic leaders want a less restrictive provision that would require insurance companies to segregate federal money from private premiums, which could be used to purchase plans that cover abortion.
Representative Debbie Wasserman Schultz, Democrat of Florida and chief deputy whip of the House, blames what she calls the complacency of her own generation for the political climate that allowed Mr. Stupak to prevail. At 43, the mother of three children, she has taken up the abortion rights cause in Congress, as she did as a state legislator.
But if she had to round up her own friends “to go down to the courthouse steps and rally for choice,” she said, she is not certain she could. When older women have warned that reproductive rights are being eroded, she said, “basically my generation and younger have looked at them as crying wolf.”
That is not to say all younger women are indifferent. Serena Freewomyn (a name she adopted to reflect the idea that “I don’t belong to any man”) is a 27-year-old administrative assistant at an H.I.V. service provider in Tucson who was inspired, she said, by reading “The War on Choice” by Gloria Feldt. When George Tiller, a doctor in Kansas who performed abortions, was killed in May, she started a blog, Feminists for Choice.
“I think that a lot of younger women do take for granted the fact that they’ve come of age in a time of post-Roe v. Wade, where they have access to lots of different birth control options,” Ms. Freewomyn said. “But I don’t think it’s fair to say younger women are not engaged; I think younger women are mobilizing in different ways than what people in current leadership positions are used to.”
On Wednesday, a coalition calling itself “Stop Stupak” will hold a “National Day of Action” to lobby lawmakers. It will include abortion rights advocacy groups that have sprung up in recent years to reach out to younger voters. Law Students for Reproductive Justice, founded in 2003, will host an Internet seminar to educate law students on the fine points of the House and Senate bills. There’s also Choice USA, which targets people under 30. Kierra Johnson, the group’s executive director, is pairing up with counterparts in the immigrant rights and gay rights movements — tactics she says are necessary if young people are to be drawn in to the reproductive rights cause. “The same young people who are fighting to keep anti-abortion language out of the health care bills are also fighting to insure that lesbian, gay, bisexual, transgender people fit in to broader health care reform, making sure that immigrant women don’t fall through the cracks,” she said. “They’re coming at these issues in a much more complex way.”
The question now is whether the Stop Stupak coalition can succeed. Ms. Wasserman Schultz sees the debate as a chance to rouse women of all generations, and Ms. Slaughter warns that if Mr. Obama signs a bill including the amendment, it will be challenged in court. She says she has worried for years about what would happen “when my generation was gone.”
At the moment, her concern has diminished. “Right now, I’ve never seen women so angry,” Ms. Slaughter said. “And the people that were angriest with me were my three daughters.”

GFIC: Substantive Law and Courtroom Environment Changes

2009-11-30T20:14:00.002-06:00

To finish out November is the final recap of the Gender Fairness in the Courts CLE from earlier in the month. The last panel reviewed differences in substantive areas of law impacting women and changes in the court environment for women litigants, witnesses, attorneys, and judges in the last 20 years.

The panel consisted of:
Hon. Diana E. Murphy, Eighth Circuit Court of Appeals
Hon. Susan Richard Nelson, Magistrate judge for the U.S. District Court
Marianne D. Short, Dorsey & Whitney
Michelle Grant, Dorsey & Whitney (moderator)

Judge Nelson was asked about her thoughts on the new federal rules surrounding who will be lead counsel in a class action, and how judges have to look at the gender and minority make up of the firms. Judge Nelson thought these rules were important to follow because of the diverse group of plaintiffs present in some of the large class actions law suits. "All those people should be represented by a representative group." She noted that on the Guidant and Medtronic MDLs, the lead trial lawyers and the top in-house counsel where all women lawyers. "This is an extraordinary moment for us."

Marianne Short was asked about how law firms are working to continue to eliminate gender disparity. She said that while 10 years ago it was all about recruiting, "now it is all about retaining and engaging women in practice." She said that they really work to make sure women and minority associates have mentors and role models, and they continue to work on their work distribution, exposure to clients, and taking advantage of technology and the ability to work remotely. She also talked about how the changes law firms are making due to the recession, such as merit-based pay, have to be monitored carefully to make sure they are not having a disparate impact on women. "That concern does give me pause."

When asked what the Bar should focus on in the next 20 years, Murphy responded that there continues to be a need to focus on implementation. Everyone needs to recognize there is a problem, and recognize that each appointment matters. She talked about how studies like the Gender Fairness study from 1989 are a tremendous amount of work, and that there needs to be another generation of people to step up and think about initiating the next one.

'Equal' on violence against women

2009-11-24T14:31:00.000-06:00

'EQUAL'
PART FIVE VIOLENCE (1990-2000)

21. A Challenge for a Young Lawyer

In 1990, Senator Joseph Biden asked a staffer, Victoria Nourse, to figure out what Congress should do to reduce violent crimes against women.
Judges historically had viewed rape cases skeptically, requiring proof of the utmost resistance to the point of enduring additional physical violence before finding that a woman or girl had not consented. The law frequently also required corroboration of the victim's testimony. The machinations of a vengeful, scheming woman were much feared.

But Nourse's reading eventually took her to the Fourteenth Amendment. Section five of the amendment granted Congress the right to pass legislation to achieve the amendment's equal protection goals. She discovered that Professor Robin West had proposed “A Married Woman's Privacy Act” that would guarantee protection against sexual assault to all women and prohibit discrimination against married women in applying rape laws. West's use of the right to privacy was somewhat problematic, since that right had been used against women, as for example, refusal to charge batterers for crimes committed in the home. But Nourse believed that a law could target violence against women as a civil rights violation by giving women a civil cause of action.

Laura's wedding bells

2009-11-23T14:14:00.002-06:00

Our friend and fellow blogger Laura Hammargren got married Saturday night in a lovely ceremony at the Minnesota History Center. I've never seen a prettier or happier bride. Or one with better earrings (my gift!) Laura danced with her husband Cristof to "Brown-Eyed Girl" and her dad to "Isn't She Lovely." I wanted to cry, and I saw Laura's mom dab her eyes. I haven't written a wedding announcement since I first got out of J-school, but this one was worth it.

Conference call on Stupak-Pitts Amendment

2009-11-18T16:11:00.003-06:00

Minnesota attorney Susan Burns and other lawyers will hold a conference call this Friday at noon for lawyers and legal professionals to learn what the Stupak-Pitts Amendment says about insurance coverage for abortion and how women will be impacted if the same provision makes its way into the final Senate bill.

Speaking will be attorney Bethany Sousa of the National Women’s Law Center in Washington, D.C.

Friday, November 20, 12:00 p.m. (CST)
Dial in: 1-888-870-8262
Participant Passcode: 202 956 3065

************************************************************************
Key Language of the Stupak-Pitts Amendment:
“No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act or rape or incest.”

GFIC: Domestic Violence

2009-11-17T22:33:00.000-06:00

At the recent 20th Anniversary Commemoration Luncheon and CLE Seminar for the Gender Fairness in the Courts task force report, a third panel spoke on the topic of "Domestic Violence: How Practitioners Identify Violence in Today's Complex World."

The presenters, Loretta Frederick of the Battered Women's Justice Projcet and Professor Nancy VerSteegh of the William Mitchell College of Law, really centered their presentation on the practical. After showing a clip from the movie Waitress (a must-see, by the way), they had these tips for identifying domestic abuse in clients:

Context is key: for example, think of the many meanings of a slap. Depending on the fear you may or may not have of the offender, it can be a much more, or less, threatening action.
Differentiate between non-coercive and coercive violence. The difference between the two depends on the reoccurance and constancy of threats. The difference will also greatly impact your representation of a client.
Think carefully about a common vocabulary. Make sure you are using terms that everyone can have a common understanding of.
Talk in a safe setting, and remind your client of confidentiality.
Be as comfortable as you can with the issues, because that will translate to your client.
Help the client assess the risk, and help her realize the violent outcomes that domestic abuse can have.

MacKinnon's students say her class was emotional

2009-11-12T16:37:00.001-06:00

Here's a link to a wonderful article about Catherine MacKinnons's Sex Equality class at Harvard.

The student writes: "Legal discourse is theoretically and intentionally rational, but Sex Equality was an emotional class. Contrary to the need to suppress emotion, it was invited into the classroom to inform processes of reason and applications and evaluations of law and legal opinion. Does the current state of rape law make you angry? Well, it should; and that anger is an indication that the law in both the black letter and in its implementation should be modified. Do the horrifying realities of prostitution and legal decisions that blame the victims of these horrors and not the perpetrators of them make you sick? They should."

"And instead of throwing your hands up and joining the ranks of the complacent, consider instead what your unique position as a person with elite legal training could contribute to eradicating horrors, and to eradicating all of the other forms of discrimination we face in our daily lives."

The posts on Equal show how important MacKinnon has been to all of us; and anyone who quotes Virginia Woolf to law students is a pal of mine.

16 Days Against Gender Violence Starts Nov. 25

2009-11-12T16:16:00.003-06:00

The Center for Women's Global Leadership at Rutgers University's 16 Days of Activism Against Gender Violence starts Nov. 25. It is an international campaign originating from the first Women's Global Leadership Institute sponsored by the Center for Women's Global Leadership in 1991. Participants chose the dates, Nov. 25, International Day Against Violence Against Women and Dec. 10, International Human Rights Day, in order to symbolically link violence against women and human rights and to emphasize that such violence is a violation of human rights. This 16-day period also highlights other significant dates including Nov. 29, International Women Human Rights Defenders Day, Dec. 1, World AIDS Day, and Dec. 6, which marks the Anniversary of the Montreal Massacre, when a gunman who claimed to be "fighting feminism" murdered 14 women before killing himself.

In connection with the 16 days, The Advocates for Human Rights will hold "Legal Reform on Violence against Women in the Republic of Georgia: Recent Successes and Challenges," a brown bag lunch seminar on Tuesday, Nov. 24, from 12:00 - 1:00 p.m. at Fredrikson & Byron, P.A., Minnetonka/Tamarack Room (40th floor), 200 S. Sixth Street, Suite 4000, Minneapolis

Equal: Vinson at the Supreme Court

2009-11-12T16:09:00.000-06:00

20. At the Supreme Court
Justice Sandra Day O'Connor thoroughly questioned the bank's attorney, Robert Troll, who was forced to concede that if Vinson had brought a case of racial harassment she would not have to lose her job to win her case, and that the same standards should apply to sexual harassment.

O'Connor also began the questioning of Barry. Barry, aided by MacKinnon, told the court that Vinson had pled a pattern of harassment and a hostile environment in the lower courts. Barry had assistance from O'Connor at another point in the argument when she interrupted an exchange with Justice William Rehnquist and gave her an opportunity to point out that she had been denied a free transcript. Rehnquist was committed to a discussion of the evidence of unwelcomeness and the clothes that Vinson wore to work.

Getting caught up in the questioning, Barry twice referred to the California Rules of Evidence. But the general consensus was that Barry had done a terrific job, even with Rehnquist's distractions and Chief Justice Warren Burger's concern that the bank shouldn't be held responsible for the act of the employees.

Despite the hostile environment created by Rehnquist's questioning, the court unanimously supported Vinson in an opinion he wrote. Two days earlier, Rehnquist had been appointed chief justice. Barry assumed that he ruled in her favor because he wanted his appointment confirmed by the Democratic Senate.

The early votes appeared to be in Vinson's favor but the first draft to the Rehnquist opinion surprised the justices. Rehnquist wanted to limit the bank's liability but other justices wanted to apply the same strict liability standard to hostile environment cases as was applied to quid pro quo cases. It didn't seem that Congress would have intended the two Title VII claims to have different standards, Stevens wrote in a memo.

Rehnquist replied that he would be Stevens' sixth vote but not the fifth one. Rehnquist was determined to be in the majority. O'Connor joined with Stevens and Rehnquist followed. But Justices Marshall, Blackmun, Brennan and Stevens concurred in the judgment only, distancing themselves from Rehnquist's refusal to apply strict liability or to define the limits of employer liability.

“We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.,” wrote Rehnquist.

Vinson eventually settled with the bank and used some of the money to go to nursing school. Her harasser went to jail for embezzlement. Barry went bankrupt but later revived her practice and MacKinnon became a tenured professor of law at the University of Michigan, and, eventually, Minnesota.

MWL Mentor Kick-off

2009-11-09T21:54:00.005-06:00

Last Wednesday was MWL's Student-to-Attorney Mentor Program kick-off event, titled "Reflections on Becoming a Leader: Tips and Perspectives From Women Attorneys." Over 100 attorneys and students attended, reflecting the huge jump in participants this year: The program grew from 60 pairings last year to 120 pairings.

Andrea Pavelka, one of the co-chairs of the mentor program committee, wrote this recap of the event:

The event included a panel presentation moderated by MWL President Megan Hertzler of Trudy Halla, Liz Cutter and Justice Gildea. The panelists and moderator offered a spirited, candid discussion of their paths to leadership within the profession. The panelists reminded the audience to be involved, do what you love, and do it well. The panelists each got involved in their respective leadership positions by pursuing organizations in areas of interest and volunteering to be involved within these organizations. The evening was inspiring for all in attendance. Look for another Student-to-Attorney Mentor Program event in spring 2010.

As an attendee, I echo Andrea's praise that the moderator and the panelists did a great job of reminding everyone to keep developing your career, even in a down economy. The best way to do that: finding what you love and working hard. The leadership will develop naturally from those elements.

GFIC Recap: Family Law

2009-11-06T20:16:00.006-06:00

The second panel during the Commemoration of the Gender Fairness in the Courts report last week focused on family law. The panelists were Susan Rhode of Moss & Barnett P.A., and Kay Nord Hunt of Lommon, Abdo, Cole, King, Stageberg P.A.

Both women talked about crucial changes to family law in the last 20 years, and also important changes that still need to be examined. Here are just a few:

Early Neutral Evaluations: This was highlighted as incredible progress in family law, as these evaluations help parents by evaluating situations early in the process and leading to better parenting decisions over the long haul.
Best interest of the child: Hunt noted that an important advance in family law was the presumption that joint custody was in the best interest of the child, getting away from notions that to be with one parent offered stability, which should be valued higher.
Child support: Both women spoke positively about the changes in child support that revolve around assigning support based on parenting time, rather than custody. However, both women commented on how spousal support was still being counted as income in child support calculations, which reduced overall support for children.
Spousal support in general was a big topic. For instance, spousal support ends upon remarriage of the recipient partner. But an interesting question is why should the need or fair share based on one partnership end if another is entered into?
Another interesting topic was that of professional women getting divorced. Both panelists commented that the time frames for those women reentering the profession are too short--courts expect professional women to start earning a large salary right away, even if they have been gone from the profession for years.

Magistrate Judge Nelson Nominated

2009-11-04T21:55:00.002-06:00

Yesterday, Federal Magistrate Susan Richard Nelson was announced to be Senator Amy Klobuchar's recommendation to the U.S. District Court. Minnesota Women Lawyers released this statement:

Minnesota Women Lawyers congratulates our member and past president, Magistrate Judge Susan Richard Nelson, on her nomination to the U.S. District Court. We anticipate and encourage an efficient confirmation process. Magistrate Judge Nelson has served as a magistrate judge for nearly 10 years, and before that had a very successful trial practice. Not only is Magistrate Judge Nelson a qualified candidate with demonstrated experience as a judge, she brings important additional gender diversity to the court. MWL believes that it is important for the judiciary to fairly reflect the composition of the legal profession and the public that they serve, and applauds the nomination of Magistrate Judge Susan Richard Nelson for the federal district court bench.

New judge to be named today

2009-11-03T09:02:00.002-06:00

The word on the street is that an announcement about the new U.S. District Court judge will come at noon today.

GFIC Recap: Looking Back

2009-11-01T20:59:00.012-06:00

Last week was the 20th Anniversary and Commemoration of the Minnesota Supreme Court Task Force For Gender Fairness in the Courts Report. Don't even attempt to say that five times fast.

In other words, last week a luncheon and an afternoon of discussions centered around a report released 20 years ago from a task force created by the Minnesota Supreme Court in the late eighties. The task force--Gender Fairness in the Courts--collected data on several areas of the law and courtroom environment to see if there were gender disparities in the court. Not surprisingly, there were.

The commemoration last week had too much good information and discussion points for one blog post. Thus, this week Woman, Esq. will recap and examine each different component of the program.

We start with the Keynote Address given by Minnesota Court of Appeals Judge Ha r rie t Lansing. Judge Lansing played a key part in initiating the movement to make gender fairness on the bench and in the courts a priority in both the nation and Minnesota. Judge Lansing talked about (and even showed photos!) of the many conferences and meetings that she attended to initiate the examination of this issue, in the company of women such as former Justice Rosalie Wahl, former Justice Sandra Day O'Connor, and Sociology Professor Norma Wikler.

The issue was finally addressed in Minnesota in 1987 with the establishment of the Supreme Court's Gender Fairness in the Courts Task Force. This task force surveyed and reported on issues surrounding gender fairness in the courts, and still exists today to implement the recommended changes.

One statement in Judge Lansing's speech was especially relevent: she noted how the questions of gender fairness that existed in 1989--and, I argue, even today--are more comprehensive and subtle than law reform. Even directly addressing the issues through substantive law are not enough to change the disparities that exist in the legal process and the legal profession. For example, the small percentage of women who are law firm partners, or the many women who still suffer from the cycle of domestic abuse, despite being in the court system.

Of course, it is those comprehensive and subtle problems that are the hardest to solve. Judge Lansing also got it right when she said that interest and work on these problems need to be regenerated in the new generation of lawyers.

NAWL survey says women aren't making the rain happen

2009-10-27T08:48:00.001-05:00

Speaking of gender gaps (see Laura's post) and coinciding with the anniversary celebration of the Minnesota gender fairness task force report, the National Association of Women Lawyers has issued its 2009 Report on the Status of Women in Law Firms. It shows that on average, a female equity partner earns $66,000 a year less than a male equity partner.
Also, women lawyers continue to lag significantly behind men as rainmakers in their firms with nearly half of major law firms indicating they have no women among their top 10 rainmakers. This does not bode well and will likely manifest itself in continued salary discrepancies between men and women.
“[W]omen lawyers are terribly underrepresented in the ranks of major rainmakers in large U.S. firms. Our data cannot tell us whether this underrepresentation is a function of less aggressive rainmaking activities among women, or the result of ‘inherited’ clients of the firm flowing to men, whether women are given opportunities to participate in business development on an equal footing with men, whether women are receiving credit for business development at the same rate as men, or if there is some other explanation for the observed differences,” the survey states.
In addition, the survey examined the affect that the economic downturn had on female lawyers, revealing that women have been disproportionately affected by the layoffs. Women constituted almost all of the terminated attorneys who practiced on a part-time basis. Among full-time lawyers, men and women were laid off proportionally.
Other results:
o About 14 percent of the nation’s largest law firms have no women on their governing committees;
o Women account for about 16 percent of equity partners;
o Women make up only about 15 percent of recent equity laterals, compared to 85 percent for men.
The survey results suggests women lawyers need to take a hard look at whether they are making the rain happen or whether there is an institutional umbrella over their practices.

Reflections on the Current Gender Gap

2009-10-26T20:00:00.001-05:00

Lisa Belkin had a recent piece in The New York Times Magazine titled The New Gender Gap. The piece compares the historic and current trend where women's status in the workplace is a reflection of men's situations.

The article notes that women will soon be the majority of workers because some are opting back in, and many others who never left are more likely to find and keep jobs than men. But Belkin theorizes that the reasons for this are not a function of the clout of women, but of the predicament of men. Gains by women actually display how far women have to go:

Primarily, women are still cheaper. They earn 77 cents to every dollar earned by a man, and in a flailing economy employers see that as an attractive quality. Women who are returning to the work force after several years at home raising children are particularly cheap. Sylvia Ann Hewlett, an economist and the founder of the Center for Work-Life Policy, has estimated that the penalty is 10 percent of income for every two years out of the job market, a loss that is never recouped. From the hiring side of the table, that may be a good bargain.

In addition, women are concentrated in lower-paying industries, like health care and education, where there have been fewer layoffs, rather than in higher-paying realms, like finance, construction and manufacturing, which have contracted. Why this is true has long been an economic chicken-and-egg question — are these professions less lucrative and prestigious because they are predominantly held by women, or are they predominantly held by women because men are less likely to take them given their lower pay and status? But whatever the cause, the end result is that the “female” professions have not suffered as much this past year.

Makes one wonder if we'll ever be able to truly gauge when women are making grounds in the workforce. Even when things seem to be going well, this article reminds us of all the factors at play.

Equal: Mechelle Vinson heading to high court

2009-10-22T14:37:00.000-05:00

19. To the Supreme Court

Barry began to solicit help, including from MacKinnon, who was unemployed at the time. Lawyers at the Sex Discrimination Clinic at the Georgetown University Law Center drew in amici, But it appeared she would not get the support of the EEOC, which was afraid that if Vinson lost, the EEOC would lose its guidelines.

The chair of the EEOC was Clarence Thomas, who would join the Supreme Court in 1991.Thomas opposed the sexual harassment guidelines and the Vinson case, saying that it would be impossible to eliminate personal slights and sexual advances. A lawyer working for the EEOC, Anita Hill, whose strained “relationship” with Thomas would become well known, urged him to accept the guidelines even though talking to him about it make her feel as though she had been dipped in a vat of scalding water. Eventually the EEOC voted 3-2 to oppose Vinson.

The government's brief aligned closely with Bork's dissent. MacKinnon drafted Vinson's brief, hampered by the fact that they could only pay for bits of a transcript at a time. Barry appeared for the first moot courts unprepared and replacing her with Professor Laurence Tribe was discussed. But Barry pulled herself together and stayed on the case.

Actually, there is a formula for predicting domestic violence

2009-10-22T14:27:00.003-05:00

Click here for The Advocates for Human Rights director of women's rights, Cheryl Thomas', reply to the local coverage about the murder of Pam Taschuk by her husband.She argues that the prosecutor and judge who released Allen Taschuk did not follow proper procedures when dealing with such a violent person.

Pro Bono Week

2009-10-21T08:25:00.009-05:00

Next week, October 25 through October 31, is the ABA's 2009 Pro Bono Celebration.
Several local groups are highlighting the week with events:

The MSBA has a whole week of events planned, starting with a day-long CLE and following celebration. Many of the events are low cost, and the MSBA has also incorporated several pro bono activities that week. Information on the week can be found here.
The University of St. Thomas Law School is hosting an event titled "Pro Bono in a Down Economy: Challenges and Rewards" on Thursday, October 29. Information and registration can be done here.
The Minnesota Justice Foundation has their law school public interest expo on Thursday, with its 27th annual celebration that evening. Information can be found here.

And if you can pack one more event into your schedule, don't forget to register for MWL's Rosalie Wahl lecture next Tuesday night, October 27. The event is held in conjunction with the 20th anniversary of the Minnesota Supreme Court's Gender Fairness in the Court Report, which has a luncheon and CLE in the afternoon. Information and Registration: here.

I'm exhausted just reporting on all the events for next week--but think of all the great opportunities to get out and recommit to improving the legal profession. That's worth a little juggling of the schedule and perhaps a little less free time. It's supposed to be chilly, anyway.

Does 'a woman's nation' change everything?

2009-10-20T16:52:00.003-05:00

Here's a link to a post of mine at Minnesota Lawyer about The Shriver Report and next week's gender fairness CLE. If you go to the Minnesota Lawyer blog, be sure and check out the comment by Dave Ziemer of the Wisconsin Law Journal. Your comments are welcome on either blog.

Domestic Violence Awareness Month

2009-10-16T08:50:00.000-05:00

October is Domestic Violence Awareness Month. According to the Domestic Violence Awareness Project, it is meant to be a time where "we recommit ourselves to ending violence within our homes, our communities, and our country."

We are reminded of the importance of committing ourselves to this issues when reading stories like the one written by Abby Simmons this week in the Star Tribune. The story describes the murder of Pam Taschuk, a social worker from Lino Lakes. The perpetrator committed suicide--and was also Pam's husband of 22 years.

The disturbing thing about Pam's death was the many times that police had investigated calls at her home. The many times police had responded to calls about her husband bullying people all over the community. But he was never caught committing a serious crime, and those he bullied were never willing to testify.

The story--one that happened in our own city--reminds us of the complicated cycle that characterizes relationships involving domestic violence. We are reminded that how even when the violence is clear, it is difficult to stop. So perhaps our first commitment should be to ensuring those around us who may be experiencing violence know of our personal and communal support.

More from Equal on Mechelle Vinson

2009-10-15T16:50:00.000-05:00

18. Appeal to a Higher Court

Broke, Barry got help from the Women's Legal Defense Fund and attorney Ronald Schechter helped with the brief and the argument. The case went before a three-judge panel that included Robinson. Robinson became ill, and the case took three years to decide. Eventually Vinson heard from a journalist that she had won.

During the pendency of Vinson's appeal, the EEOC had promulgated new sexual harassment guidelines that included a hostile environment within the definition. They were applied by the D.C. Circuit in a case against the D.C. Department of Corrections and that case thus was available to Robinson in Vinson. The appellate court sent the case back down for evidence about hostile environment harassment and explicitly stated that a victim's capitulation to sexual advances did not foreclose redress.

Judge Robert Bork, who would later be nominated to the U.S. Supreme Court but not confirmed, dissented when the bank unsuccessfully moved for an en banc hearing. He was joined by Judge Antonin Scalia and Judge Kenneth Starr. The U.S. Supreme Court took the case.

MWL and Public Policy

2009-10-11T22:59:00.004-05:00

Information was recently submitted by an MWL member about an amendment by Senator Franken to a Defense Department appropriations bill. That amendment, S.A. 2588--sponsored by Senator Al Franken and co-sponsored by Senator Mary Landrieu--to H.R. 3326 (the Department of Defense Appropriations Act), was supported by MWL.

Senator Franken's amendment to the Defense Appropriations Bill will restrict funding to Department of Defense contractors that continue to use mandatory arbitration clauses, which require employees to arbitrate claims of sexual assault and related torts, as well as claims arising under Title VII of the Civil Rights Act of 1964. Senator Franken's amendment will prmote the right of a victim of violence to have access to due process and an effective and adequate remedy.

The bill, including Franken's Amendment, went up for a vote in the U.S. Senate on October 6, and passed 68-30. Amy Klobuchar also voted for the amendment. An online article on the bill's provisions can be found here.

Sexual Violence and Inequality

2009-10-09T13:15:00.005-05:00

To jump off a recent "Equal" post, Catharine MacKinnon, University of Michigan law school professor (and former University of Minnesota professor), gave a lecture at an annual Dartmouth event yesterday. MacKinnon's lecture on greater equality for women centered on "overcoming the denial of atrocities" that is sexual violence.

About 44 percent of women have experienced rape or attempted sexual assault, MacKinnon said in her speech, adding that 37 percent of teenagers and young girls are sexually assaulted.

And institutional structures are not in place to lower these numbers. For example, MacKinnon argued that the perceived male domination of the legal system continues to further inequality. Women victims of sexual violence hesitate to use the legal system, because they are afraid of having to rely mostly on men in order to get justice against their attacker.

More about her lecture can be found here.

8th circuit (just barely) says shackles during labor violate 8th amendment

2009-10-08T15:55:00.003-05:00

Last week, the 8th Circuit handed down Nelson v. Norris, which found that a woman's constitutional rights were violated when her legs were shackled to her bed during labor. True. In a six-to-five en banc decision, the Eighth Circuit held that this was a constitutional violation and that the guard was not entitled to qualified immunity. Click here for a post at the American Constitution Society blog.

More on Equal: Chapter 17, Mechelle Vinson goes to trial

2009-10-08T15:48:00.002-05:00

Vinson's case landed in the lap of a new lawyer named Patricia Barry, who had a fledgling law practice in D.C., when her lawyer decided to move to Florida. Barry read MacKinnon's book, “Sexual Harassment of Working Women,” which had just been published that year, 1979. The book provided a blueprint for harassment litigation, based on a three crucial victories in district courts, two in D.C. In Williams v. Saxbe, Judge Charles Richel held that sexual advances coupled with retaliation for their refusal constituted actionable sex discrimination.

Meanwhile, Barnes was on its 19-month journey. Robinson was for Barnes but Judge MacKinnon and Chief Judge David Bazelon weren't. But Judge MacKinnon said he might change his mind if a better job of legislative and statutory analysis could be done than was done by the litigants. But Judge MacKinnon was concerned about employers' vicarious liability. He laid out steps for employers to follow and then concluded that Barnes' case could proceed, in the end concurring with Bazelon and Robinson. Robinson was apparently affected by Catharine MacKinnon's paper, although that cannot be confirmed.

After Barnes, other courts began ruling for women on the issue of quid pro quo sexual harassment.

Barry could not get the evidence admitted in Vinson that she thought would show a pattern of harassment in the bank's working environment. The District Court opinion would eventually define sexual harassment as a quid pro quo but not a hostile environment. However, the judge did include a footnote referencing his refusal to allow evidence of a pattern and practice of harassment, which would be crucial in coming years. He also made two other key findings of fact concerning notice to the bank and voluntariness. Barry and Vinson decided to appeal.

The Good Wife

2009-10-06T12:34:00.000-05:00

Last Tuesday night, around 9:00 p.m., I was fortunate enough to find myself with some free time and in total charge of the remote control. A couple of new television series were in their second week, and so I decided take a chance on one. The risks were clear to me: I might not like it, or, worse, I might like it and then be committed to trying to catch yet another show I usually don't, or at least shouldn't, have time for.

I settled on The Good Wife, a new CBS drama on at 9 p.m. Julianna Margulies plays the wife of a prominent state attorney who is imprisoned. Margulies has to go back to work as a lawyer in a big firm after taking 13 years off to help her husband and raise two children.

There are several of the expected characters: the male partner who tries to be sympathetic at times, but also makes comments to show some insensitivity to gender issues. The female partner who wants to force Margulies to earn her own way to the top. The fellow associate who competes with her at every step, and makes snide comments along the way.

There is the possibility for at least two different opinions on the series. One could be that the show plays a little too much into stereotypes of the big firm and women's roles in those firms. But, there is also the argument that the show puts women in large firms, and some of the trials they may face, squarely in the public eye. Any discussion about those issues, even in the form of discussing a television show, seems like a good thing.

Additionally, the show so far has delivered in entertainment value. I guess I'll have to tune in again tonight....I was afraid that would happen....

20th Anniversary Celebration & MWL Wahl Lecture

2009-10-02T14:46:00.003-05:00

Save the Date: Tuesday, October 27, 2009. The whole date.

Two important events fill the day: The 20th Anniversary Commemoration of the Minnesota Supreme Court Gender Fairness in the Court Report, and the MWL Rosalie Wahl Leadership Lecture. Both events happen at the Crowne Plaza in St. Paul.

20th Anniversary Commemoration
This Commemoration is in recognition of the Minnesota Supreme Court's establishment of a Task Force to explore gender bias in the court system, and the 1989 report where the Task Force presented its findings and recommendations.

The Commemoration is an opportunity for the gender fairness task force to show its improvements and continue the dialog on what still needs discussion and improvement. The event starts with lunch and a keynote address at 12 p.m., followed by three panel discussions, ending the event at 5 p.m.

CLE credits are being applied for--both more information and registration is here.

Rosalie Wahl Lecture
Next, MWL welcomes Eleanor D. Acheson as keynote speaker for the 2009 Wahl Lecture. Acheson is Vice-President, General Counsel, and Corporate Secretary for Amtrak. The event will begin with registration and a reception at 5:30 p.m., the keynote lecture at 6 p.m., and a reception to follow. Registration can be done here.

Chapters 15 and 16 of 'Equal': featuring Catherine MacKinnon

2009-10-01T11:17:00.002-05:00

15. Naming Sexual Harassment

It wasn't until 1975 that the term sexual harassment was coined in a letter from the Human Affairs Program of Cornell University. In a “Dear Sisters” letter, sent to lawyers around the country, a group of women referred to “sexual harassment” as a pervasive problem in the workplace and asked for information to assist them in organizing. One of the recipients was Ruth Bader Ginsburg and another was Catharine MacKinnon.

MacKinnon was the daughter of a Minnesota state legislator and congressman who would be named to the D.C. Circuit Court of Appeals by Richard Nixon, with whom he passed the Taft-Hartley Act and investigated Alger Hiss. Her applications to Yale Law School received short shrift but she was eventually admitted after six years of trying. Her 1987 doctoral dissertation in political science for Yale and her 1989 book for Harvard University Press would be titled “Toward a Feminist Theory of the State.”

16. Women and the Law

A group called Working Women United gathered for a speak-out on sexual harassment on May 4, 1975 in Ithaca, New York. A New York Times reporter, Enid Nemy, became interested in the topic after a New York City human rights commission hearing organized by Eleanor Holmes Norton. However, the Times ran her article in the family/style section.

As a law student, MacKinnon developed a theory of sexual harassment as sex discrimination. She compared racism to sexism. Why did courts allow sexism and repudiate racism? Why did judges not apply the same level of scrutiny to sex discrimination? She argued that the question should not be whether the discrimination against women was arbitrary, which would almost never be true because women and men were not similary situated, as in the pregnancy cases. Instead, she argued for a “disadvantagement approach,” based on whether a practice or rule disadvantaged one sex and not the other. Then the question would be, for example, if men are ever disadvantaged by the denial of pregnancy benefits. Obviously not, and thus the denial would be discriminatory.

MacKinnon had the opportunity to use a new tool called Lexis in her father's chambers. She was trying to find information when a young women appeared who worked for Judge Spottswood Robinson and asked MacKinnon about her research. MacKinnon gave her a copy of her paper—her only copy—and it was returned via her father.

In the meantime, Paulette Barnes, an administrative assistant for the director of equal employment opportunity for the Environmental Protection Agency, had been told by a District Court judge that when her job was eliminated she was discriminated against for refusing to have an affair with her supervisor but that was not sex discrimination because it was not an arbitrary barrier to continued employment based on sex.

A three-judge panel, including Judge MacKinnon and Judge Robinson (whose clerk had not mentioned Barnes), was assigned to the appeal in Barnes. Robinson was the first black judge on the D.C. District court and the first black judge in any federal appellate court, the D.C. Circuit. “So when Catharine MacKinnon handed over her draft, full of linkages of legal racism to legal sexism, to someone she understood worked with Judge Robinson, she was apparently sending it to the judicial chambers of one of the most brilliant advocates in the history of the American battle against race discrimination.”

Newsy Thoughts

2009-09-30T08:00:00.000-05:00

Instead of quoting the current Entertainment Weekly (as has been done in the past), I went a little more highbrow and found some relevant thoughts from recent Newsweeks.

First: The "New" Sexual Harassment. No longer do we see the blatant overtures during business hours--it has been pretty clearly communicated, and pretty ingrained, that such actions are illegal. Don Draper would have a tough time in today's world (probably).

Today's harassment comes much more often in the form of "flirtation, subtle power plays, retaliation and, of course, text messages." The article talks about how new technologies allow people to make comments without being truly accountable for what they could mean. Or at least allow people to believe they might not be accountable.

Second: Women on What Matters Most. This online feature has pictures and articles written by 10 successful women, in order to give advice to the next generation of empowered and successful females. There are a few celebrity interviews of which I have to question their usefulness (Not really sure how much more advice I need from Tyra Banks). But the feature branches out to CEOs and medical school deans whom we don't hear from often.

For example, from Sheryl Sandberg, CEO, Facebook:

When I am asked about career strategies, I respond that you need two things: a long-term dream and one- to two-year plan. A long-term dream allows you to work with purpose to achieve real fulfillment. A short-term plan makes sure you are learning and growing from the work you do each day.

Advocates, Dorsey present talk on 'war against women'

2009-09-29T14:52:00.002-05:00

The Advocates for Human Rights, Dorsey & Whitney, and the Center for Holocause and Genocide Studies will present a lecture on Violence Against Women and War in the Congo and Asylum in the U.S. at Dorsey on Friday, Oct. 16 at noon. To RSVP for this lecture, contact Colleen Beebe at cbeebe@advrights.org 612-341-3302, ext. 114.

The Advocates' Web site states:

One of the deadliest wars in the last half-century, the ongoing conflict in the Democratic Republic of Congo is considered by many a "war against women." In an effort to destroy families and communities, rape is used as a weapon of war. Some women have been able to escape such persecution and find themselves in refugee camps or seeking asylum in Europe or the United States. Experts in the field will discuss country conditions, in particular with respect to violence against women, its traumatic effects on refugees and asylum seekers, and how to develop an asylum case based on politically motivated violence against women.

Divided We Fall: Americans in the Aftermath

2009-09-24T10:32:00.003-05:00

The Minneapolis YWCA's upcoming Forum on Race features a fascinating film on race and religion in America and the remarkable woman, and Yale Law Student, behind that film.

On Monday, November 9, at 7 p.m., the Southern Theater will show Divided We Fall: Americans in the Aftermath. The film is a feature-length documentary film on hate violence in America post-September 11, 2001. The film follows the journey of 20 year-old college student Valarie Kaur as she records crimes against Sikhs and Muslims in the immediate aftermath of the World Trade Center attacks and examines the larger question of who is truly allowed to be American.

Then, on Tuesday, November 10, at 11:30 to 1:30, Valarie Kaur will be the keynote speaker at a luncheon presentation. In addition to her work on the film, as a third generation Sikh American, she is a writer, public speaker, and lecturer in religion and ethics. Valarie presently studies the intersections between religion and law at Yale Law School and serves as founding director of the Discrimination and National Security Initiative at the Harvard Pluralism Project.

Earlier that day, from 8 a.m to 10 a.m., Valarie will present a two hour CLE interdisciplinary workshop for attorneys and law students on legal responses to race and religion in post-9/11 America. The title is: Law as Sword and Shield: A Progressive Approach to Race in Post-9/11 America.

Registration for all the events can be found on the YWCA's website.

Chapter 14 of Equal: Mechelle Vinson goes to trial

2009-09-22T10:26:00.001-05:00

Antiquated Adultery Law

2009-09-20T20:48:00.001-05:00

While writing an article for the upcoming issue of MWL's With Equal Right publication, Hennepin County Judge Ann Alton (a source) mentioned that Minnesota's adultery statute still limited the crime to when a married woman has intercourse outside of marriage.

Although not relevant to my article, I was intrigued. After an in-depth google search, I discovered it was true. Minnesota Statute section 609.36 reads as follows:

Subd. 1: Acts constituting

When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Subd. 2: Limitations

No prosecution shall be commenced under this section except on complaint of the husband or the wife, except when such husband or wife is insane, nor after one year from the commission of the offense.

Subd. 3: Defenses

It is a defense to violation of this section if the marital status of the woman was not known to the defendant at the time of the act of adultery.

Finding the ramifications of such a statute is my next priority--I'm not sure how many cases are brought under this section, or whether women have been imprisoned or fined in the past decades. But for such a distinction drawn on gender lines to still exist within the law appears to make little sense.

Women on Boards

2009-09-16T09:49:00.003-05:00

Women currently represent only 15.2% of the membership of Fortune 500 company boards. To correct that depressing statistic, an events and marketing firm, SHARP UpSwing, hosts an event in major cities called Women On Boards.

The event is coming to the Twin Cities on Tuesday, December 1. A panel is scheduled from 4 p.m. until 6 p.m., with a social hour to follow. The event will be at the Hyatt Regency Hotel in downtown Minneapolis.

Topics of the panel include being an effective board member, how to position yourself to get on a board, and how to transition from serving on a non-profit board to a for-profit board.

Cost is $95 for individuals, or $950 for a table of 10, and registrations can be done online. The Panel includes:

Barb Allen
Retired President, Proactive Partners

Alice Richter
Retired Partner, KPMG

Sandra L. Davis, Ph.D
Founder & CEO, MDA Leadership Consulting

Beth Leonard
Managing Partner, Lurie Besikof Lapidus & Company, LLP

Kudos to Infinity Project

2009-09-14T17:41:00.002-05:00

The Infinity Project's efforts to spread the word about its excellent work and the Court of Appeals terrible gender imbalance are the subject of a great editorial in the Star Tribune. Congrats and well-done to Sally Kenney, Lisa Brabbit, Mary Vasaly and Marie Failinger.

Chapter 16 of 'Equal' -- the Barnes case

2009-09-11T12:18:00.002-05:00

How would the "disadvantagement" approach affect the Ohio Supreme Court's ruling see (Laura's post below) about breast pumping?

16. Women and the Law

A group called Working Women United gathered for a speak-out on sexual harassment on May 4, 1975 in Ithaca, New York. A New York Times reporter, Enid Nemy, became interested in the topic after a New York City human rights commission hearing organized by Eleanor Holmes Norton. However, the Times ran her article in the family/style section.

As a law student, MacKinnon developed a theory of sexual harassment as sex discrimination. She compared racism to sexism. Why did courts allow sexism and repudiate racism? Why did judges not apply the same level of scrutiny to sex discrimination? She argued that the question should not be whether the discrimination against women was arbitrary, which would almost never be true because women and men were not similary situated, as in the pregnancy cases. Instead, she argued for a “disadvantagement approach,” based on whether a practice or rule disadvantaged one sex and not the other. Then the question would be, for example, if men are ever disadvantaged by the denial of pregnancy benefits. Obviously not, and thus the denial would be discriminatory.

MacKinnon had the opportunity to use a new tool called Lexis in her father's chambers. She was trying to find information when a young women appeared who worked for Judge Spottswood Robinson and asked MacKinnon about her research. MacKinnon gave her a copy of her paper—her only copy—and it was returned via her father.

In the meantime, Paulette Barnes, an administrative assistant for the director of equal employment opportunity for the Environmental Protection Agency, had been told by a District Court judge that when her job was eliminated she was discriminated against for refusing to have an affair with her supervisor but that was not sex discrimination because it was not an arbitrary barrier to continued employment based on sex.

A three-judge panel, including Judge MacKinnon and Judge Robinson (whose clerk had not mentioned Barnes), was assigned to the appeal in Barnes. Robinson was the first black judge on the D.C. District court and the first black judge in any federal appellate court, the D.C. Circuit. “So when Catharine MacKinnon handed over her draft, full of linkages of legal racism to legal sexism, to someone she understood worked with Judge Robinson, she was apparently sending it to the judicial chambers of one of the most brilliant advocates in the history of the American battle against race discrimination.”

Blogger Buzz "Pumped" Up

2009-09-11T09:29:00.000-05:00

Quite a few blogs and websites are affronted by a ruling by the Ohio Supreme Court on a case where a woman was fired for taking unauthorized breaks to pump milk. As reported by a Wall Street Journal blog, the court ruled that the woman's attorneys did not offer enough proof that the employer's actions were motivated by discrimination.

But people are taking exception to the question that the court dodged: whether breast-feeding mothers and their actions in pumping milk are protected by pregnancy-discrimination laws.

The woman was fired after taking unscheduled breaks from work to pump milk. She fed her five-month-old baby before reporting to work for her 6 a.m. shift, but found waiting until her scheduled 11 a.m. break to pump milk was too difficult. She asked her bosses either to let her take an extended break at 10 a.m., or to extend a brief 10-minute break she was allowed at 8 a.m., but neither request was granted. The woman began taking an unscheduled restroom break around 10 a.m. every day to use her breast pump. A supervisor told her she was violating work rules by not waiting until her 11 a.m. break, and she was later fired.

Her employer contends that her firing wasn’t related to her need to pump milk, but to the simple fact that she failed to follow directions and violated workplace rules by taking unauthorized breaks during her work shift. The court did not reach whether this action violated pregnancy-discrimination laws.

The objecting blogs point out that the Ohio Supreme Court didn't exactly dodge the question, as it basically said that the woman's admittance of insubordination shows the firing was not discriminatory--even though that insubordination was caused by a pregnancy-related reason.

Dancing with the (Troubled) Stars

2009-09-08T11:16:00.004-05:00

Although I don't often find a lot of relevant legal fodder from my Entertainment Weekly (hey, we all de-stress in our own ways), I had to laugh at this blurb:

Seven of the new Dancing with the Stars contestants have rap sheets. Live audience will consist solely of lawyers, parole officers, and Sonia Sotomayor.

On a (slightly) more serious note, more information about the many charges brought against the new round of celebrities can be found here. Pictured above is Tom DeLay, the former Republican Majority Leader who was indicted by a Texas grand jury on criminal charges that he had conspired to violate campaign finance laws. DeLay pleaded not guilty, but Republicans Conference rules forced him to resign from his position as Majority Leader in the U.S. House of Representatives.

Perhaps DeLay's troubled past was actually fate--now he can realize his lifelong dream of winning a televised ballroom dance competition.

'Equal' turns to sexual harassment

2009-09-04T11:17:00.000-05:00

PART FOUR
HARASSMENT (1974-1986)

14. No Law

Mechelle Vinson had risen quickly at Capital City Federal Bank in the District of Columbia and had received outstanding reviews.Her manager, Sidney Taylor, had risen from janitor to first assistant vice president. But Taylor was behaving sexually toward Mechelle's co-worker, Christina. Christina eventually got fired and Taylor, according to Vinson, turned his attentions toward her. Taylor has denied most of it. According to Vinson, Taylor forced her to have sex many times in the bank, even locked in a vault, frequently remarking, “I give you a paycheck.”

Many other women were giving similar accounts in court, only to find that they were completely unprotected by the law.

15. Naming Sexual Harassment

It wasn't until 1975 that the term sexual harassment was coined in a letter from the Human Affairs Program of Cornell University. In a “Dear Sisters” letter, sent to lawyers around the country, a group of women referred to “sexual harassment” as a pervasive problem in the workplace and asked for information to assist them in organizing. One of the recipients was Ruth Bader Ginsburg and another was Catharine MacKinnon.

MacKinnon was the daughter of a Minnesota state legislator and congressman who would be named to the D.C. Circuit Court of Appeals by Richard Nixon, with whom he passed the Taft-Hartley Act and investigated Alger Hiss. Her applications to Yale Law School received short shrift but she was eventually admitted after six years of trying. Her 1987 doctoral dissertation in political science for Yale and her 1989 book for Harvard University Press would be titled “Toward a Feminist Theory of the State.”

Another Lady Justice?

2009-09-02T11:24:00.002-05:00

The blawg-o-sphere is ripe with speculation over whether U.S. Supreme Court Justice John Paul Stevens is contemplating retirement next year.

According to Law.com, Justice Stevens has only hired one law clerk for the term that begins in October 2010. He is among those justices who typically have hired all four clerks for the following year by now, according to legal blogs.

Admittedly, this is far from an official announcement. Perhaps Justice Stevens is just assuming that the down economy will leave him plenty of applicants no matter when he decides to hire. Or maybe the one clerk he's hired is a real go-getter that can take care of everything.

But if it is a sign that President Obama will get to pick another Supreme Court justice soon, we can hope (and perhaps begin to lobby) that we will witness a record-setting three women on the Supreme Court.

Bad to the Bone?

2009-09-01T10:52:00.002-05:00

The ABA Journal recently started its "Legal Rebels" project. Noting that the recession has forced many lawyers to change the way they practice law, the ABA Journal will profile 50 legal mavericks who are altering the face of the legal industry. It will tell their stories in the ABA Journal and on their website.

The first of these profiles appeared on August 25. Several will be added weekly through the end of November. So far there have been 9 people profiled--only 2 of whom are women.

The ABA Journal is still taking nominations--so start brainstorming woman lawyers from Minnesota who are remaking their corner of the legal profession. Nominations can be done here.

You can also sign the manifesto, promising to work for innovation and committing to being a rebel.

Deadline for applying for federal judge extended

2009-08-31T15:22:00.001-05:00

Sen. Amy Klobuchar has extended the deadline for applying for the vacancy on the U.S. District Court to Friday, Sept. 18. All other information about the application process is the same and is available here.

The final chapters of part three of Equal

2009-08-31T09:54:00.001-05:00

12. Time to Settle

The case settled in the spring of 1977. The press coverage said that Sullivan & Cromwell had been “brought to its knees.” The firm agreed to supervision by Rabb of its recruiting, interviewing, payment and treatment of women. The firm also paid $30,000 in legal fees, $2,000 of which went to Blank for her own work. A case against Rogers & Wells settled for $40,000 in fees and a hiring quota.

Blank and her classmates had brought 10 complaints to the NYC Commission on Human Rights, and five led to settlements.

Seven years later the issue of whether law firms were bound by discrimination laws in partnership decisions would reach the Supreme Court. At that time, Sullivan & Cromwell would have 75 partners and one woman.

13. The Chief Justice's Second Draft

The issue of law firm discrimination in partnership opportunities was back before the Supreme Court in the 1980s against King & Spaulding of Atlanta, Georgia. One of its senior attorneys was Griffin Bell, a former federal judge and former attorney general of the U.S.

Betsy Hirshon was only the second woman ever hired by the firm. The first woman was hired in 1944 and never made partner. King passed Hirshon over for partner and forced her to leave after 7 years.

The firm argued not only that Title VII did not cover partnerships but the First Amendment granted law partners freedom of association and expression. The firm prevailed in District Court and before a three-judge panel in the court of appeals. It was supported by the U.S. Attorney general.

But then came the bathing suit contest, with the prize to a summer intern with “the body we'd like to see more of.” The Wall Street Journal picked up the story.

The justices voted in conference unanimously against the law firm and Chief Justice Warren Burger took the opinion for himself. (In 1971 he had delivered a letter of resignation to the White House over the issue of appointing a woman to the Supreme Court.)

Burger angered the court by circulating an opinion suggesting that partners might not be employees and thus exempt from Title VII. He suggested that Hirshon's rights would be limited to those available by contract.

The rest of the court rose up. Justice Brennan circulated a draft opinion attacking the “novel theory” that petitioners must prove a common-law contract to receive the rights afforded by federal law.

Burger capitulated. He discussed contract rights but conceded in a footnote they did not apply. But he did overrule the lower courts. George Will wrote in the Washington Post that the opinion said to King & Spaulding, “give me a break.”

Minnesota Lynx Event

2009-08-27T14:37:00.005-05:00

The Professional Development committee and the Public Policy committee of Minnesota Women Lawyers are hosting an event at the Minnesota Lynx game on Wednesday, September 9.

The event is not limited to women who are lawyers--anyone is welcome. The game starts at 7 pm and is being played at the Target Center. The cost is $35 per person, and a portion of the proceeds will go to Civil Society's Human Trafficking Program. MWL is also hosting girls from the YWCA at the game.

Registration can be done here. Check out the Lynx's Wikipedia Site for more background on the team. They play the Detroit Shock that night--perhaps an apt name for when they are Detroit Shocked by what is sure to be the Lynx's awesome playing.

Chapter 11 of 'Equal'

2009-08-26T08:21:00.001-05:00

11.A Young Woman Takes an Old Wall Street Firm to Court

Harriet Rabb represented Diane Blank and other women against Sullivan & Cromwell. By chance, the case was assigned to Constance Baker Motley, a civil rights lawyer and the only woman judge in the Southern District of New York, and a descendant of slaves. The defense pressured Motley to recuse.

Blank's deposition revealed a weakness in her case: She could not identify a male law student hired at Sullivan & Cromwell whose qualifications she could match. She did not seem to recognize the problem.

The next issue was class certification. Motley called a conference at which she decided to reverse her earlier decision giving the defense five more weeks to argue against class certification. She certified the class, which then required the defendants to respond to discovery. The defendants wanted to avoid class certification by arguing that the law firm's discrimination, if any, was not ongoing and that Blank's EEOC action was untimely.

The defense, whose litigation tactics struck Motley as unseemly, responded by not only asking Motley to remove herself but also going directly to the Court of Appeals asking for a reversal on the class certification. Motley did not hide from her background as a lawyer for the NAACP but refused to recuse, and was upheld by the appellate court.

Blank ultimately was unable to persuade Motley to order the defense to disclose data about its partnership practices. The firm argued that the constitutional guarantees of freedom of association and due process trumped Title VII and protected partnerships. Upon rehearing, the EEOC stepped in on Blank's side. Motley then decided that she did not have to decide whether the firm had a constitutional right to discriminate in its partnership practices, but could be required to provide information tending to show an illegal pattern in the hiring of associates. “Here was precisely the ruling that Sullivan & Cromwell had been dreading.” Settlement talks ensued.

On-line magazine for women litigators

2009-08-24T11:55:00.002-05:00

I've just run across an on-line magazine called "Sue Magazine: For Women in Litigation." I don't have a subscription, but maybe I should. One of the articles this month is titled, "How to Get a Reporter to Pay Attention to You." Free advice: return phone calls promptly. Here's the link.

Local Sotomayor Celebration

2009-08-24T07:19:00.004-05:00

The Minnesota Hispanic Bar Association is hosting a celebratory reception for the confirmation of Justice Sonia Sotomayor to the U.S. Supreme Court.

The event will be held on Thursday, August 27 beginning at 5pm at the Landmark Center in St Paul. Confirmed speakers include U.S. Senator Amy Klobuchar, U.S. District Court Judge Michael Davis and State Senator Patrcia Torres Ray. U.S Senator Al Franken and Governor Tim Pawlenty have also been invited.

The event is free of charge but space is limited. Individuals may RSVP to MNSotomayorevent@gmail.com.

An invitation to the event can be found here.

Out of work? Have a baby

2009-08-20T13:47:00.002-05:00

This is a weird but apparently serious posting from Above the Law:

"In these tough economic times, people are (1) having trouble finding jobs as they come out of law school, (2) recently laid-off, or (3) miserable in the jobs they still have, given how low morale is and how many hours they're expected to work now (given the 'be grateful for your job' mentality).

"People in such situations are often unable to make a change, given how few jobs there are out there and how much competition there is for them. But they're scared to just up and quit, because very few employers would actually buy that they had resigned and not been fired.

"What's a girl to do? Make babies. That's what."

Comments to the post seem to say that "a lot" of women lawyers (whatever that means) are taking this path.

Ellen Luger, Tom Sullivan to head Klobuchar judicial advisory committee

2009-08-20T13:16:00.002-05:00

U.S. Senator Amy Klobuchar has announced the formation of a Judicial Selection Committee to assist her in making a recommendation to the president to fill the vacancy on Minnesota’s Federal District Court that was created by Judge James Rosenbaum’s decision to assume senior status.

The Committee is co-chaired by Tom Sullivan, Provost for the University of Minnesota and former Dean of the University of Minnesota School of Law, and Ellen Luger, an attorney and the Executive Director of the General Mills Foundation. Other Committee members include Russell Anderson, former Chief Justice of the Minnesota Supreme Court; Leo Brisbois, the President of the Minnesota State Bar Association; R. Ann Huntrods, an attorney with an extensive federal practice; Tom Johnson, former president of the Council on Crime and Justice and Hennepin County Attorney; former Minnesota District Court Judge Carol Person; and Chief Judge Edward Toussaint Jr. of the Minnesota Court of Appeals.

In announcing the Judicial Selection Committee, Klobuchar said:

“I look forward to the advice and counsel of these distinguished members of Minnesota's legal community.

“Federal judges are appointed for life, which makes it all the more critical that these individuals be fair-minded, have impeccable integrity, and take seriously their obligation to apply the law fairly. I am looking for someone with a deep knowledge of the law, a wide breadth of professional experience, and an excellent judicial temperament.

“Judge Rosenbaum has served Minnesota well for more than two decades, and we are lucky that we will still have the benefit of his service when he takes senior status this fall. I have no doubt that, with this Committee’s help, we will find an outstanding replacement that will carry on the fine work that Judge Rosenbaum has done for many years.”

Those wishing to be considered for the position of Judge, U.S. District Court for the District of Minnesota should submit a letter of interest and resume by Friday, Sept. 4, 2009 to: Co-Chairs Tom Sullivan and Ellen Luger, Judicial Selection Committee, Office of Senator Amy Klobuchar, 1200 Washington Avenue South, Suite 250, Minneapolis, MN 55415. Materials may also be e-mailed to Sullivan and Luger at provost@umn.edu. References will be requested at a later date during the interview process. All other inquiries should be directed to Paige Herwig at (202) 224-3244.

PART THREE OF 'EQUAL': LAWYERING

2009-08-19T08:00:00.002-05:00

PART THREE
LAWYERING (1968-1984)

9.A Problem in the Profession

NYU law students Diane Blank and Mary Kelly found at their summers at Cadwalader, Wickersham & Taft that the lawyers expected them to be secretaries. Women at NYU also found that Shearman & Sterling had passed over many women for interviews. Women who did manage to get hired at Shearman were relegated to trusts and estates because they would work well with widows and orphans, would not be allowed to travel and would not join the men at a Long Island country club.

This was not new, but Title VII had deemed it illegal to refuse to hire women. NYU's Women's Rights Committee conducted a study of 700 women practicing law in New York. Seventy seven answered and 26 of those heard some variation of “we don't like to hire [too many] women." They made less money, were excluded from firm events and treated in a humiliating fashion.

Attorney Eleanor Holmes Norton would soon play a crucial role in the effort to open New York law firms to women.

10.Taking Action

In April 1970 women from 17 law schools gathered at NYU and agreed on a set of resolutions, one of which was to participate in a Title VII action through the EEOC against New York law firms.”These aspiring lawyers planned to charge a handful of the nation's most powerful law firms with sex discrimination.” Norton met with the group.

Meanwhile, the Association of American Law Schools created a special committee on women in legal education and surveyed law schools. Of the 76 that responded, more than one-third reported complaints of discriminatory conduct that revealed discrimination in law firms nationwide (including Minnesota).

The NYU women surprised a meeting of the Association of the Bar of the City of New York when Gloria Steinem, who had been invited to speak, allowed them to speak about discrimination in New York law firms. After they got cut off, Betty Friedan and Norton stepped to the podium.

Three weeks earlier, the U.S. Supreme Court had decided in Griggs v. Duke Power that the effects of employment practices, rather than their intent, would determine whether an employer was practicing illegal discrimination. Consequently, attorney Harriet Rabb began to lead an Employment Rights Project at Columbia Law, funded by the EEOC.

Women law students then discovered that they would be separated from their male classmates during the bar exam and that their group would be assigned ID numbers in a narrow range, allowing graders to guess at their sex. Also within that group would be men who had previously failed the exam and whose scores could be expected to be lower. The women did not want to be graded against each other, rather than the men, because statistically women performed better on the exam than men. The bar examiners caved, and although the test remained segregated, it was for the last time and grading safeguards were put in place.

The law students' complaints proceeded and Margaret Kohn, who had complained about Royall, Koegel & Wells, and Diane Blank, who had butted up against Sullivan & Cromwell, got EEOC right to sue letters.

Sotomayor casts first anti-execution vote

2009-08-18T16:49:00.000-05:00

Jason Getsy died this morning after receiving a lethal injection in an Ohio prison. His was the first death penalty matter addressed by Supreme Court Justice Sonia Sotomayor, who dissented from the denial of stay that allowed the execution to proceed. She was joined by Justices Ruth Bader Ginsberg, John Paul Stevens and Stephen Breyer.

What's in a Name?

2009-08-18T10:19:00.002-05:00

The Feminist Law Professors blog has an entry today on a new article in the American Law and Economics Review titled Do Masculine Names Help Female Lawyers Become Judges? Evidence from South Carolina.

Examining the correlation between a lawyer’s advancement to a judgeship and his/her name’s masculinity, the study found that nominally masculine names appear to be favored over nominally feminine names, in comparing the judiciary to the entire population of South Carolina. The paper's intro sums up what was found:

This paper provides the first empirical test of the Portia Hypothesis: Females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual’s advancement to a judgeship and his/her name’s masculinity, which we construct from the joint empirical distribution of names and gender in the state’s entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.

The authors determined the masculinity of a name depending on the number of males that shared the name. Some of the most masculine names included Bobby, Francis, Chris, and Carroll.

Although several reasons are probably at the root of the findings, the positive correlation between judges and masculine names does evoke many questions, and also reminds us about the unconscious and inconspicuous elements that may be determining women's legal careers.

The dangers of flextime?

2009-08-13T09:40:00.000-05:00

The three Minneapolis firms recently recognized as Best for Women were hailed in part because of their alternative work options. But Forbes.com recently featured an article that asks: Will flextime set you up to be laid off?

The article notes that the recession has altered the relationship between employers and employees. A top priority used to be to retain top talent by allowing flexible working time and spaces. But are employees using these flexible options putting a target on themselves if lay offs are necessary?

There's no evidence that flextime schedules are bad for business--in fact, some proponents say that it is better for business. In the legal field, flexibility could also mean a changed business model for large law firms, with less hours in exchange for less salary, that could save money and therefore jobs. Further, alternative work options can help people that also need to prioritize family obligations--which has been noted is disproportionately women.

However, the stigma that is attached to different work practices makes people even more reluctant to take advantage of flextime opportunities in a time where job retention is a top concern. The article gives tips about how to keep yourself in employers' minds when you are out of sight, but there is also a bigger question--how should employers present and sustain alternative work arrangements so that they can be used--and effective--in any economy?

Chapter 8 of 'Equal' -- The Pregnancy Discrimination Act

2009-08-12T08:23:00.000-05:00

8.The Final Pregnancy Battle: Beyond the Supreme Court

The plaintiff's lawyers heard the court say that responsibility to end pregnancy discrimination rested with Congress, and they moved ahead. The EEOC had already determined that a loss at the Supreme Court would lead them to lobby for congressional action. The Pregnancy Discrimination Act of 1978 was passed and signed less than two years after the GE case. Pregnancy discrimination was now sex discrimination.

Misogyny and guns: 'a toxic mix of the most tragic proportions'

2009-08-11T16:47:00.002-05:00

Check out this great column by Bob Herbert in the New York Times a few days ago. Cheryl Thomas, director of the women's program at The Advocates for Human Rights, says, "It is an eloquent indictment of the complacency in our communities towards violence against women and a powerful response to those who argue that violence against women is not a gender issue."

3 Minneapolis Firms are "Best for Women"

2009-08-11T11:04:00.003-05:00

Working Mother magazine and Flex-Time Lawyers LLC, a consulting group for law firms and corporations the retention and promotion of women, have released their 2009 List of Best Law Firms for Women.

Three Minneapolis Firms made the list: Dorsey & Whitney; Gray Plant Mooty; and Lindquist & Vennum. This is what the judges had to say about each firm:

Dorsey & Whitney

Efforts to retain talented attorneys start as soon as a new associate comes on board. Last year, this Minneapolis-based firm, which has 13 offices nationwide, initiated a procedure that charges diversity partners, department heads and office heads with monitoring and reviewing female and multicultural associates’ work assignments. The Diversity Advisor program helps women advance by pairing senior female associates with partners from another practice area, who can give a different perspective on the firm.

Gray Plant Mooty

When it comes to being family-friendly, this Twin Cities firm knows that formal policies must offer support but that office culture is important, too. Lawyer parents are encouraged to display their children’s artwork, and practice groups hold baby showers for expectant colleagues. (It doesn’t hurt, either, that the firm has one of the lowest billable-hour requirements in the region.) For inspiration, lawyer moms here need only turn to Tamara Hjelle Olsen, its first female managing officer (partner) in 140 years.

Lindquist & Vennum

It’s not only up-and coming lawyers who embrace reduced hours at this corporate law firm, which has offices in Minneapolis and Denver. From 2004 to 2008, 28 lawyers worked a reduced-hours schedule as they phased into retirement, signaling that flexibility is a benefit that’s relevant to everyone. The firm’s Millennia Leaders program provides women lawyers with intensive leadership training and the chance to forge new professional relationships. (Last year, female attorneys accounted for 40% of those in management training.

Sotomayor confirmed!

2009-08-07T13:38:00.002-05:00

Judge Sotomayor was confirmed by the Senate on Thursday to be the nation’s first Hispanic Supreme Court justice. The vote was largely done along party lines, with 68 voting in favor of her confirmation and 31 voting against it.

Chief Justice John Roberts is expected to swear the new justice in at a private ceremony at the Court tomorrow morning.

Minnesota Women Lawyers and the Infinity Project have released a joint statement:

Minnesota Women Lawyers and the Infinity Project congratulate Second Circuit Court of Appeals Judge Sonia Sotomayor on the confirmation of her appointment to the U.S. Supreme Court. As President Obama observed, "Judge Sotomayor has the intellect, the temperament, the history, the integrity and the independence of mind to ably serve on our nation's highest court." We look forward in the future to the appointment of similarly highly qualified women to seats on the Federal bench, and in particular, to the Eighth Circuit Court of Appeals and the U.S. District Court for the District of Minnesota.

'Equal' Continues: General Electric

2009-08-06T07:34:00.003-05:00

7.The Second Pregnancy Case: General Electric

Ruth Weyand, the attorney on General Electric, was one of the most successful women lawyers in the history of Supreme Court litigation. She had never lost at the Supreme Court. After first being denied admission she graduated from the University of Chicago Law School in 1932 at the age of twenty, but could not find a job. She eventually found a job as “R. Weyand.”

In 1949 she married Leslie S. Perry, a black man, and they kept their marriage secret. When it became known, she was fired from the National Labor Relations Board, where she had worked since 1938. She continued to practice labor law and was instrumental in introducing the concept of pay equity or comparable worth. As a union lawyer, she negotiated with General Electric.

In 1971, The EEOC issued a ruling that it was illegal for a company to refuse to cover disabilities related to pregnancy. Title VII of the Civil Rights Act of 1964 had made inroads on employment discrimination, building on the Equal Pay Act of 1963. The addition of sex to Title VII was controversial and Rep. Howard Smith of Virginia, who had added the language, reportedly said he meant it as a joke. Nevertheless, the EEOC was born—-underweight, but alive. It did not want to be a “sex commission” and did not always help women.

It had no power to initiate litigation but Weyand sued GE in District Court in the Eastern District of Virginia, where Judge Robert R. Merhige Jr. had previously ruled that a pregnant schoolteacher could not be forced to leave her job in her fifth month of gestation. That case, Cohen v Chesterfield County School Board, was affirmed by a three-judge panel but overruled by an en banc court, which was then reversed by the Supreme Court.

GE was tried before Judge Merhige while Cohen was pending and he did not rule until after it was decided at the Supreme Court. He ruled that pregnancy discrimination was sex discrimination because males receive full disability coverage and females do not—disparate treatment.

Two months later the Supreme Court issued Aiello, which upheld discrimination between pregnant women and nonpregnant persons.

While the case was pending at the appellate court, the Supreme Court granted cert in case involving Liberty Mutual that also excluded pregnant women from disability insurance. Because both sides in GE wanted their case to make the law in pregnancy discrimination under Title VII, as opposed to the Liberty Mutual case the lawyers filed a joint petition asking for immediate review at the Supreme Court. This was unavailing, but the Court of Appeals affirmed 2-1. Liberty Mutual and GE would go to the Supreme Court together.

The case was argued in January 1976. Liberty Mutual was dismissed as being appealed prematurely, and the court then ordered GE reargued in October, 1976. Justice Blackmun, who had recused in the first case because of ties to Liberty Mutual, participated knowing that the rest of the justices were evenly divided. Blackmun eventually sided with GE, and joined with the majority in a 6-3 decision that Geduldig controlled. Justices Marshall, Brennan and Stevens dissented.

The Great Debate

2009-08-05T07:59:00.000-05:00

Yesterday marked the beginning of the U.S. Senate debate on Judge Sotomayor's confirmation to be a justice on the United States Supreme Court.

The real news about it is that there really is no news. Her confirmation is almost certain, as at least six Republican senators have said they will vote for her.

A few items of passing interest have been mentioned. Sotomayor's confirmation is the first one on which the NRA has chimed in, asking all the senators to vote "no." But reportedly at least 8 out of 36 senators who have been endorsed by the NRA have said they will vote to confirm her.

Some speculation has also questioned the Republican senators strategy in blocking Sotomayor's confirmation. They are in a tough spot: a conservative party base insists on a vote against her. But the more moderate voters could be disappointed with a vote against a highly-qualified, history-making judge.

A vote could come as early as tomorrow.

Taking Stress Seriously

2009-08-03T10:57:00.003-05:00

Last week, the London Times reported a tragic story about a successful woman lawyer committing suicide.

Catherine Bailey became a partner at SJ Berwin in London in 2003. She was married to a consultant kidney specialist, and had returned to work just before Christmas after the birth of her third daughter six months earlier. The couple also had a five- and four-year-old daughters. Bailey texted her husband to tell him that she was sorry and loved her family about 30 minutes before she was found in the River Thames.

Postnatal depression has been mentioned as a possible contributor to her decision, but people can't help but speculate that the stress of being a female lawyer also had to be part of the equation. Such a tragedy begs so many questions--are women facing greater pressure to produce once they return from maternity leave to make up for the time they were gone? How damaging is the guilt about being pulled in so many directions to one's emotional state? How does the perfectionist aspect of lawyers' personality magnify all these feelings?

One thing is clear: stress and depression of any kind must be taken seriously, and services such as Lawyers Concerned for Lawyers exist exactly for when things start to feel like too much. Listen to yourself, and to others, to help yourself or others before problems get too extreme.

Gender Fairness. We're Done, Right?

2009-07-30T16:33:00.002-05:00

Hmmm....no, 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'

2009-07-30T08:15:00.002-05:00

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.

The Erin Andrews Tale: Lessons to Women Lawyers

2009-07-27T08:36:00.001-05:00

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.

Laura H. is on base

2009-07-23T14:47:00.002-05:00

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.

Part Two of 'Equal' -- Pregnancy

2009-07-22T20:46:00.001-05:00

PART TWO
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

2009-07-22T07:53:00.000-05:00

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.

Welch's comments still resounding

2009-07-21T08:43:00.001-05:00

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.

MPR story on women of color in law firms

2009-07-17T11:56:00.003-05:00

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"

2009-07-17T08:31:00.005-05:00

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?

A break from Sotomayor: Chapter 4 of 'Equal'

2009-07-16T07:44:00.002-05:00

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...

2009-07-16T07:01:00.000-05:00

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.

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

2009-07-14T15:41:00.001-05:00

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.