Author: Solangel Maldonado


Introducing Guest Blogger Jennifer Hendricks

It is my pleasure to introduce Professor Jennifer Hendricks of the University of Tennessee College of Law as a guest blogger.  Professor Hendrick teaches and writes about constitutional family law, gender, and federalism. The main focus of her current work is sex equality in parenting and reproduction. Her article Essentially a Mother, proposing a relationship model for pregnancy, won Honorable Mention in the AALS Scholarly Papers Competition in 2007. Her most recent work in this area, developing the relationship model as a woman-centered basis for a theory of reproductive and parenting rights, appears in the Harvard Civil Rights—Civil Liberties Law Review and in an international collection of feminist constitutional theory forthcoming from Cambridge University Press.  Professor Hendricks has also written about topics ranging from preemption of tort claims to reform of the electoral college.

Professor Hendricks received her J.D. magna cum laude from Harvard; clerked on the Sixth Circuit Court of Appeals; and practiced law in Helena, Montana, where she specialized in constitutional, employment, and discrimination cases. In her practice, she successfully challenged illegal voter-redistricting and vote-counting, helped high school girls win equal sports opportunities, won access to government documents for reporters and private citizens, and defended several newspapers and ESPN against defamation claims. She also represented victims of harassment and discrimination on the basis of sex and sexual orientation. She received her B.A. with honors in mathematics and women’s studies from Swarthmore College.

Her recent publications include:

In Defense of the Substance–Procedure Dichotomy, 89 WASH. U. L. REV. _ (forthcoming 2011) (Selected for the University of Illinois Junior Faculty Federal Courts Workshop).

Teaching Values, Teaching Stereotypes: Sex Ed and Indoctrination in Public Schools (with Dawn Howerton), 13 U. PENN. J. CONST. L. 589 (2011).

Pregnancy, Equality, and the U.S. Constitution, in FEMINIST CONSTITUTIONALISM (Beverly Baines, Daphne Barak-Erez & Tsvi Kahana eds., Cambridge University Press, forthcoming 2011).

Teaching Controversial Topics (with Beth Burkstrand- Reid and June Carbone), 49 FAM. CT. REV. _ (forthcoming 2011).

Converging Trajectories: Interest Convergence, Justice Kennedy, and Jeannie Suk’s “Trajectory of Trauma,” 110 COLUM. L. REV. SIDEBAR 63 (2010), reprinted in WOMEN AND THE LAW (Tracy Thomas, ed., West 2011).

Body and Soul: Pregnancy, Equality, and the Unitary Right to Abortion, 45 HARV. C.R.–C.L. L. REV. 329 (2010).

Contingent Equal Protection: Reaching for Equality After Ricci and PICS, 16 MICH. J. GENDER & L. 397 (2010).

You can find her author page here.


Introducing Guest Blogger Margaret Lewis

I am delighted to welcome my colleague, Professor Margaret Lewis, who will be blogging with us this month.  Professor Lewis’s research focuses on the intersection of Chinese legal studies with criminal procedure, criminal law, and international law. She joined Seton Hall Law School as an Associate Professor in 2009.

Professor Lewis is a Public Intellectuals Program Fellow with the National Committee on U.S.-China Relations and travels frequently to Asia. Her recent publications have appeared in the NYU Journal of International Law and Politics, Columbia Journal of Asian Law, and Virginia Journal of International Law.

Most recently before joining Seton Hall, Professor Lewis served as a Senior Research Fellow at NYU School of Law’s U.S.-Asia Law Institute where she worked on criminal justice reforms in China. Following graduation from law school, she worked as an associate at the law firm of Cleary, Gottlieb, Steen & Hamilton in New York City. She then served as a law clerk for the Honorable M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit in San Diego. After clerking, she returned to NYU School of Law and was awarded a Furman Fellowship.

Professor Lewis received her J.D., magna cum laude, from NYU School of Law, where she was inducted into the Order of the Coif and was a member of Law Review. She received her B.A., summa cum laude, from Columbia University and also studied at the Hopkins-Nanjing Center for Chinese and American Studies in Nanjing, China.

Her recent publications include:

Presuming Innocence, or Corruption, in China, 50 Colum. J. Transnat’l L. __ (forthcoming 2012)

Controlling Abuse to Maintain Control: The Exclusionary Rule in China, 43 N.Y.U. J. Int’l L. & Pol. 629 (2011) (awarded Jerome A. Cohen Prize for International Law and East Asia)

The Tension Between Leniency and Severity in China’s Death Penalty Debate, 24 Colum. J. Asian L. __ (forthcoming 2011) (invited submission)

The Enduring Importance of Police Repression: Laojiao, the Rule of Law and Taiwan’s Alternative Evolution, in The Impact of China’s 1989 Tiananmen Massacre (co-authored with Jerome A. Cohen) (Routledge, 2010)

Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms, 49 Va. J. Int’l L. 651 (2009)

China’s Implementation of the United Nations Convention against Transnational Organized Crime, Asian J. of Criminology, Vol. 2, No. 2 (2007)

You can find Professor Lewis’s SSRN Author page here


Launch of the Feminist Legal Theory Collaborative Research Network

Readers interested in interdisciplinary work in feminist legal theory will be pleased to learn of the launch of the Feminist Legal Theory Collaborative Research Network, a newly-constituted group that seeks to bring together scholars across a range of fields.  The inaugural meeting of the Feminist Legal Theory CRN took place at the Law and Society Association meeting in June 2011.  The next meeting will be held at George Washington University Law School on Wednesday, January 4, 2012, the day before the AALS annual meeting.  Paper proposals on any topic pertaining to legal feminism are being accepted until September 23, 2011. For instructions on registering, submitting a proposal, or participating in this and other activities of the Feminist Legal Theory CRN, please see the detailed information posted here.




Law Schools and the Curve

The New York Times has published yet another article accusing law schools of misleading students, this time of failing to inform admitted students with merit scholarships contingent on maintaining a certain grade point average of the possibility of losing their scholarships. I agree with many of the article’s points and the comments in response.  For example, I completely agree that law schools should inform admitted students of the curve (it varies from a 2.67 at some schools to a 3.4 at others)  and provide them with their grading guidelines.  I found the following information on the websites of four law schools:

Law School 1

A+      1%

A         8%

A-       15%

B+      25%

B         20%

B-       12%

C+      7%

C         4%

C-       4%

F        4%

Law School 2

A or higher No more than 10 percent

A- or higher No more than 25 percent

C+ or lower At least 15 percent

C- or lower At least 6 percent

Law School 3

A+      0-2%

A         7-13%

A-       16-24%

B+      22-30%

B        Remainder

B-       4-11%

C         2-5%

D/F    0-5%

Law School 4

At least 20% of grades are A- or above and at least 20% of grades are C+ or below.


Given that grading guidelines vary from school to school, knowledge of a law school’s grading system may help merit scholarship recipients assess their likelihood of retaining their scholarships.  However, I disagree with the article’s suggestion that the curve is the main reason why many students lose their scholarships. The curve is generally not the reason why a student who never had a grade lower than a B+ in college may earn a B- or C in law school. In my experience, the curve does not lower a student’s grade but instead bumps the grade up or has no effect at all. In other words, in the absence of a curve, many more law students would earn B minuses and Cs in their first semester (or first year). The reason is that few first semester law students write good exams. This is understandable. Law school exams are generally very different from the exams students took in college or other graduate programs, and it takes a while to figure out how to take a law school exam. A student may have memorized the “black letter” law, but lack the skills to apply it to a complex fact pattern with numerous legal issues.  As the article acknowledges, law students, especially those with merit scholarships, assume that because they performed well as undergraduates, they will automatically perform well in law school—even in their first semester.  However, this is not the case.  Many students do not learn how to apply the law to a new fact pattern or how to advise a client of “all the potential claims and defenses” (a common law school exam question) until after their first round of exams when they meet with their professors individually to review the exam. Maybe law schools need to do a better job of providing students with feedback before they take exams and with formative assessments, as the Carnegie Report on Legal Education recommends, that focus “on supporting students in learning rather than ranking, sorting and filtering them.”


Introducing Guest Blogger Courtney Joslin

I am delighted to introduce Courtney Joslin who will be blogging with us this month.  Courtney is an Acting Professor of Law at UC Davis School of Law, where she teaches Family Law; Employment Discrimination; and Sexual Orientation, Gender Identity, and the Law. Courtney’s areas of interest include family and relationship recognition, particularly focusing on same-sex and nonmarital couples.

Prior to joining the faculty at UC Davis, Courtney served as an attorney at the National Center for Lesbian Rights (NCLR), where she litigated cases on behalf of lesbian, gay, bisexual, and transgender people and their families. She received her undergraduate degree from Brown University and her law degree from Harvard Law School.

Her recent publications include:

Searching for Harm: Same-Sex Marriage and the Well-Being of Children, 46 Harv. C.R.-C.L. Law. Rev. 81 (2011)

Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010)

Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, 4 Harv. L. & Pol’y Rev. 31 (2010)

Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond, 70 Ohio St. L.J. 563 (2009)

You can find Courtney’s SSRN Page here.

Welcome, Courtney!


Introducing Guest Blogger Kevin Noble Maillard

I am delighted to welcome Professor Kevin Noble Maillard as a guest blogger this month.  Professor Maillard is an Associate Professor of Law at Syracuse University where he teaches Family Law, Trusts & Estates, Children and the Law, and Adoption.  His research focuses on civil liberties within the family and society. His interests include nontraditional families, racial intermixture, and the role of marriage in America.   He is the author of the forthcoming book, Loving v. Virginia in a Post-Racial World (with Rose Villazor, Cambridge 2010).

Professor Maillard received his B.A. in Public Policy from Duke University, his law degree from Penn Law School, and his Ph.D. in political science from the University of Michigan.  Originally from Oklahoma, he is a member of the Seminole Nation, Mekesukey Band.

His recent publications include:

Rethinking Children as Property, 32 Cardozo L. Rev. 225 (2010) 

The Color of Testamentary Freedom, 62 SMU L. Rev. 101 (2009)

The Multiracial Epiphany, 76 Fordham L. Rev. 2709 (2008)

The Anatomy of Grey: A Theory of Interracial Convergence (with Janis McDonald), 26 Law & Inequality 305 (2008)

The Pocahontas Exception: American Indians and Exceptionalism in Antimiscegenation Law, 12 Mich. J. Race & L. 107 (2007)


Wal-Mart and the Future of Antidiscrimination Law

Today the Supreme Court will hear argument in Wal-Mart Stores v. Dukes, potentially the largest employment class action case in U.S. history.  The plaintiffs allege that Wal-Mart paid male employees more and promoted them over women with more seniority and that it maintained a culture of gender stereotyping where women were called “Janie Q’s,” told to wear make-up and “doll-up,” and meetings were held at Hooters.   They also rely on statistical data to establish discrimination.  They claim that women comprise 80% of hourly supervisors, but only one-third of store managers.  The percentage of women in higher positions is even lower.

Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees.   The issue before the Court is one that civil procedure, specifically class action, junkies should find titillating—whether the six plaintiffs should have been certified to bring a class-action that could potentially include 1.5 million employees in thousands of stores across the country.   Wal-Mart claims that there is no commonality among the plaintiffs’ claims and that the “named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent.”  If the term “class-action certification” is making you yawn, you might be missing the potential impact of this issue for employment discrimination plaintiffs going forward.  If the Supreme Court adopts the view of the dissenters in the Ninth Circuit opinion and requires plaintiffs seeking class certification to show “significant proof that an employer operated under a general policy of discrimination,” plaintiffs (including the EEOC) are also likely to find it much more difficult to prove that the entity should be held liable when the case is heard on its merits.   I didn’t understand these implications until I read Professor Tristin Green’s article exposing the impact of Dukes for the future of systemic disparate treatment law.   She also argues that the current individualistic model of disparate treatment (one bad actor or as one Wal-Mart executive put it, “some bosses may have gone astray”) has made it difficult for scholars to think critically about entity responsibility for systemic disparate treatment in the workplace.  You can read the abstract and article here.


The Old Illegitimacy Part II: Facilitating Societal Discrimination

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

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The Old Illegitimacy: Legal Discrimination Against Nonmarital Children

Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26.  Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union.   Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status.   In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).

For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children.  They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations.  Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.

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Introducing Guest Blogger Maxine Eichner

I am delighted to welcome Professor Maxine Eichner as a guest for the month of March. Maxine is a Professor of Law at the UNC-Chapel Hill School of Law. Her teaching interests include sex equality, family law, employment and employment discrimination law, legal theory and torts. She writes on issues at the intersection of law and political theory, focusing particularly on family relationships, social welfare law and policy; sex equality; and the relationship of the family, the workplace, and market forces. Her new book, The Supportive State: Families, Government, and America’s Political Ideals (2010), has just been released by Oxford University Press. The book considers the role that government should play in dealing with families and the dependency issues that families face.

Professor Eichner attended Yale College and Yale Law School, where she was an articles editor of the Yale Law Journal. She also holds a Ph.D. in political theory from UNC. After law school, she held a Women’s Law and Public Policy Fellowship through Georgetown Law School, clerked for Judge Louis Oberdorfer in the United States District Court for the District of Columbia, and then clerked for Judge Betty Fletcher in the United States Court of Appeals for the Ninth Circuit. She also practiced civil rights, women’s rights, and employment law for several years at the law firm of Patterson, Harkavy, and Lawrence in Raleigh, N.C. before joining the faculty at UNC-Chapel Hill School of Law in 2003.

Professor Eichner is an editor of Family Law: Cases, Text, Problems (2010) (with Ellman, Kurtz, Weithorn, Bix, and Czapanskiy). She is also Reporter for the Uniform Law Commission’s Visitation and Custody Issues Affecting Military Personnel and Their Families Committee.

Her recent publications include:

Families, Human Dignity, and State Support for Caretaking: Why the United States’ Failure to Ameliorate the Work-Family Conflict is a Dereliction of the Government’s Basic Responsibilities, 88 N.C. L. REV. 1593 (2010).

Feminism, Queer Theory, & Sexual Citizenship, in GENDER EQUALITY: DIMENSIONS OF WOMEN’S EQUAL CITIZENSHIP (with J. Grossman and L. McClain) (Cambridge Press 2009).

Marriage and the Elephant: The Liberal Democratic State’s Regulation of Intimate Relationships Between Adults, 30 HARV. J.L. & GENDER 25 (2007).