Author: Naomi Cahn


Author diversity in legal scholarship

I spent much of Friday at the University of Maryland Law School’s roundtable on Increasing Author Diversity in Legal Scholarship: Individual and Institutional Strategies organized by Prof. Paula Monopoli and the Maryland Law Review.  As might be expected, the roundtable included a diversity of diverse voices, including students as well as faculty.  Participants focused on how faculty members and law journal boards can help increase the chance that an article written by women or people of color will be accepted and how journal leadership can adopt an agenda that results in a more diverse set of authors in its publication.  There were lots of concrete suggestions throughout the day.

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Pregnancy as Disability

When I teach family law, I briefly discuss the Pregnancy Discrimination Act. The basic hypothetical that I use is: Ace Employer makes no accommodations for any disabilities (other than what is required under the Americans with Disabilities Act). Betty Employee, a truck driver who has to lift heavy packages, becomes pregnant and requests an accommodation. Must Ace make an exception to its “no accommodation” policy? In Young v. UPS, the Supreme Court responded to a variation of that basic hypothetical. What happens to Betty (AKA Peggy Young) when Ace Employer (AKA UPS) accommodates some, but not all, “disabilities”? Read more from June Carbone and me here.


Facebook’s new Legacy Contact Option

I’ve now signed up for a Legacy Contact through Facebook, and I’ve designated trusted contacts to have access to my Google accounts through Google’s Inactive Account Manager when I no longer have access.  I think about these issues a lot: for the past few years, I’ve been working with the Uniform Law Commission on making it easier for fiduciaries to access the digital assets of the account holders for whom they are fiduciaries, and for account holders to plan on what will happen to their digital assets when they die.  Delaware has already enacted the legislation, and various states are considering it.  A few other states have non-comprehensive legislation.  So, in the absence of state laws – or even with state laws –  the problem is how to plan for your online life when you can no longer manage it.  Today, Facebook joined Google in prompting people to start making plans.  The options on Facebook are still somewhat limited — your Contact doesn’t have complete control over your page, and may not be able to delete it — but this is   a really positive development.

Setting up a Contact is quite easy from the Facebook Settings page, and more instructions are here.  I’ve also written quite a lot about this issue (as have many others!).



BOOK REVIEW: Linder & Levit, The Good Lawyer: Seeking Quality in the Practice of Law

happylawyer-levitReview of The Good Lawyer: Seeking Quality in the Practice of Law by Douglas O. Linder & Nancy Levit (Oxford University Press 2014)

Linder and Levit have – yet again – confronted some of the most challenging questions faced by lawyers who seek to find satisfaction in our careers. The Good Lawyer: Seeking Quality in the Practice of Law builds on the authors’ first book, The Happy Lawyer: Making a Good Life in the Law. One of the central questions posed in the first book—how do you become a happy lawyer—seems to be answered in part by the second book. Linder and Levit draw on numerous different disciplines that show a strong link between doing good work and being happy, between personal lives and professional roles.

The Good Lawyer emphasizes a set of qualities, skills, and attitudes shared by people the authors identify as “good lawyers.” As they note, lawyers who practice in different fields – intellectual property, securities fraud, employment discrimination – may need to develop distinct, and particularized, skills, but, regardless of their practice area, lawyers are proudest of themselves when they do meaningful work for clients about whom they care. Consequently, all lawyers, whether they work for private firms, the government, or in a public interest setting or as solo practitioners, can appreciate and use the particular attributes that Linder and Levit identify. Those attributes are addressed in nine of the book’s ten chapters, and they range from empathy to moral courage, cognitive skills, willpower, civility, honesty, and open-mindedness. As they explore the good lawyers’ attributes, the authors draw on behavioral economics, Tonglen Buddhism, cognitive psychology, and the law to support and explain their points.

While the book has some endnotes (under 30 pages, actually), it also has humor and even a checklist, although the checklist is primarily enumerated suggestions rather than a protocol. And it has lots of stories, which make the book even more of a joy to read. The stories provide context and drama. Linder and Levit visit courageous lawyers in the Jim Crow South, explore the psychodrama exercises Gerry Spence offers to trial lawyers at Thunderhead Ranch in Wyoming, introduce Lex Machina, a Stanford project to create a database that helps lawyers predict winning strategies, and probe the expert testimony in the trial of Sam Sheppard.

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Book Review: Hartog’s Someday All This Will be Yours

Hendrik Hartog, Someday All This Will be Yours: A History of Inheritance and Old Age (Harvard University Press 2012)

Dirk Hartog’s Someday All This Will Be Yours:  A History of Inheritance and Old Age is a book about story telling in the law, as well as a rich description of work within families, of the complex relationship between labor, money, and love.   It is also a new and critical (in several senses of that word) text for the developing field of elder law.    Elder law as a discipline  that is just now coming into its own, an event that, not coincidentally, is occurring as the baby boomers begin to hit retirement age and as the sandwich generation has become increasingly vocal.  More than half of all law schools now include, in their listed curriculum, a course on elder law.

Hartog, who is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, is also the author of Man and Wife in America (2000), which served as a legal history of marriage in America from the late 18th century through the middle of the 20th century, and was based on studying how ordinary men and women attempted to use the law either to escape their dissatisfying marriages or to seek shelter through the status of marriage. Someday All This Will Be Yours does something similar, also arguably within the context of family law, by studying how, from the mid-nineteenth to mid-twentieth century, ordinary men and women arranged for their own care as they aged, and then how their alleged caretakers attempted to use the law to make good on these arrangements. Aging individuals used the promise (in these cases, the illusion) of inheritance to induce the needed caretaking at a time when there was no default of Social Security and Medicaid and before the widespread development of pensions.  The book analyzes the resulting conflicts about property inheritance, using an extensive database of more than 200 cases from 19th- and 20th-century New Jersey courts as well as more extensive trial transcripts in 60 of those suits.  Hartog closely, carefully, and painstakingly examines these cases for what they show about changing patterns in care for the elderly, parent-child relations, the tensions between family and commodification, and the development of the common law outside of precedent-setting and frequently cited cases.  As he points out, the cases involve two different “shadowy figures within family la as it has ordinarily been conceived:  the adult child and the elderly person.”  (p. 21)

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Book Review: Dowd’s The Man Question

Nancy Dowd, The Man Question: Male Subordination and Privilege (NYU Press 2010).

Nancy Dowd’s interest in masculinities has developed organically from her past scholarship examining the cultural barriers to men becoming more involved fathers.  Much of her research seeks to decenter and challenge masculinity as the norm for measuring both men and women’s behaviours, and thus to deconstruct masculinities.   This book provides a primer on the development of masculinities scholarship, explores the relationship between masculinities theory and feminist analysis, and provides practical analysis of various topics concerning issues of manhood and masculinity for boys and men, ultimately advancing feminist jurisprudence.

 A note on terminology and substance.  In the first section of the book, which is focused on theory (and is almost half of the book),  Professor Dowd writes that masculinities scholarship  has developed out of feminist, gay and lesbian, and queer theory.  While men have, of course, been studied throughout history, it is only recently that men have been studied explicitly and specifically as “gendered subjects.”  The “man question” of the title refers to “how gender functions to subordinate some or all or most men, as well as how men consciously and unconsciously accept privilege with its patriarchal dividend as well as its costs”  (p. 1). (For Kate Bartlett’s 1990 groundbreaking article on Feminist Legal Method, including her discussion of “’the woman question’”, see here.)  Dowd dates use of the term masculinities, as a self-conscious reference to research about men, to the mid-1980s, and the term itself has multiple meanings and objects of study. First, it involves analysis of a set of socially constructed concepts that give men as a group power over women as a group.   These translate into practices that are defined as masculine which are designed to maintain group power.

Second, it examines multiple masculinities with the recognition that, within the male world, there is a hierarchy of privilege. As feminist legal theorists have shown through their analysis of essentialism (all women are not the same, and circumstances, including race and class, affect how femininity is defined and experienced), this same analysis applies to men.  Masculinities theory explores the multiplicity of constructions of manhood and masculinity, showing how varying circumstances affect the experiences of masculinity.  For example, hegemonic masculinity  defines a dominant conception of masculinity for men at the top, with the most power (p. 27). Understanding hegemonic masculinity is critical to seeing how the manifestation of manhood in multiple societal settings reinforces the power that some men maintain over women and other men. That hegemonic masculinities are embedded in multiple sites and practices emphasizes their pervasive influence upon social interaction between groups of men, within familial and communal settings for men, and between men and women.  Beyond hegemonic masculinities, there is a range of both subordinate and subversive masculinities, with race, class, and sexual orientation as critical pieces in constructing these different forms of masculinities.  She ultimately demonstrates how both subordination and privilege are constructed for men and boys through her intertwined analysis of masculinities and feminist theory, and argues that incorporating masculinities theory will greatly benefit feminist jurisprudence.

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Book Review: Banks’s Is Marriage for White People? How African American Marriage Decline Affects Everone

Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education.   Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else.  In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent.  As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans.   While the white   non-marital birth rate for college graduates has stayed at 2%; for African-American  college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report.  National Marriage Project, fig. S.2, p. 56.

Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue.   In Is Marriage for White People?  How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass.  While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women.  Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book.  Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men.  So, too, is his solution.  He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.

While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues.  He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around.  He also does not question the importance of marriage.  Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance.  On this issue, Banks gets a pass.  He does not take on the larger issue of family organization.  Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.

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Book Review: Levit & Linder’s The Happy Lawyer

Nancy Levit & Douglas O. Linder, The Happy Lawyer: Making a Good Life in the Law. Oxford University Press, 2010.   304 pp.

So here’s a book we can all rejoice over: Nancy Levit and Doug Linder’s The Happy Lawyer:  Making a Good Life in the Law. Although it offers the reader lots of research, it’s not really a legal academic book, and may not even mention the Constitution or a court case; although it offers the reader a happiness toolbox, it’s definitely not a self-help book.  Instead, it’s a book that anyone who is – or was – or wants to be –a lawyer (or anyone who knows a lawyer) should read to find out how career choices can maximize our chances of achieving happiness.  It even discusses the meanings of happiness, and why happiness might be an appropriate life goal!  To be sure, the authors also discuss the role of melancholy in our lives.

I’m recommending it to all of my students, and to my friends practicing law, and even to my husband, who prides himself on NOT being a lawyer.  Note that there is very little advice for law professors on how to achieve happiness in our own lives, perhaps in recognition that we’ve achieved happiness already — or that being happy is not our focus.  There is one very long chapter on how students can use their law school years to prepare themselves for job satisfaction.

The book makes it case by using the developing literature on the science of happiness and through interviews of hundreds of lawyers.  Although this may cause many of us to think about those books sold in airports with titles like, “You Too Can Be Happy if Only . . .,” an increasing number of studies focus on the psychology and sociology of happiness, as well as the neuroscience of happy minds.  Levit and Linder walk through the impact of dopamine, oxytocin, and Ecstasy on the brain, suggesting that wading through thousands of depositions may not cause the release of happiness-inducing chemicals.  Instead, the authors point out that six experiences are essential to making a person satisfied with her life, including “security, autonomy, authenticity, relatedness, competence, and self-esteem” (p. 44).

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Indicating Gender — Status

This post is prompted by Jaya Ramji-Nogales’s discussion of the recent OECD Social Institutions and Gender Index. In her very thoughtful post – with which I entirely agree — she discusses the problems of “empirically measuring and ranking intangible phenomena such as social norms,” And she notes that the OECD publication was not entirely successful.But at least it tried.

In conjunction with a recent conference on state security in Norway, I examined six reports on state weakness to determine their approach to the use of gender equality as an indicator of state fragility or failure. These six reports were issued between 2005-2008 by highly influential U.S. foreign policy institutions, including private and public agencies, and one of them was co-authored by Susan Rice (before she became our Ambassador to the UN). While measures of gender equity are included in other assessments, such as the OECD’s index, the UNDP’s Human Development Report , or Freedom House’s evaluation of global freedom, this simply shows the integration of gender into development or civil liberties markers; these assessments are not self-conscious analyses of state security and fragility, unlike the 6 reports I examined. Apart from the USAID report, the other 5 reports did not use gender as an assessment tool.

Indicators and assessment tools can be important components in establishing state policies and practices towards developing countries. Consequently, the components that comprise each of these evaluative efforts are signs of what is considered critical to ensuring state stability. Donor agencies are increasingly using various indicators to help them evaluate country performance in order to ensure that their resources will be used most efficiently and effectively. While indicators are imperfect – they are subject to errors in measurement, and they take thin slices of complex issues — they are useful, within these limitations, for providing broad-brush pictures of a country’s status. But not if they don’t include gender at all. Gender equity provides a useful measurement of state security, as Fionnuala Ni Aolain, Dina Haynes, and I argue in our forthcoming book. Nonetheless, its significance is virtually unrecognized in numerous evaluations of state fragility, thereby leading to the risk that gender will remain unrecognized in efforts to promote state stability.


Colorful Idols

About 100 million of us voted for the newest American Idol (crowned last night on the Fox Broadcasting show).   “We” chose Kris Allen, a college student from Conway, AR, who likes to “pray and stretch” before he performs and whose proudest moment was when he married his wife.  Allen beat Adam Lambert, a musical theater actor from Hollywood, CA, who is obsessed with astrology and whose proudest moment was “falling in love.”

I must confess that I didn’t watch any of this  season — or of any others — but my daughters have been keeping me informed.  My professional interest was piqued by comments about whether Kris Allen’s victory is the “latest red state/blue state battle.”   Allen has served as a church worship leader, and Lambert wore black nail polish on stage.  On Huffington Post, Jim David argues that:  “Allen’s Christianity, church roots and corn-fed wife were exploited, as were Lambert’s musical theatre roots (i.e. his ‘theatre fag’ history); “ Michael Glitz, who supported Allen, takes a longer view of American Idol, suggesting that if you “look at seasons past and where there’s a clear Christian vs secular showdown, the Christians have been winning handily.”   Empiricists will certainly use the “Gokey/third contestant” theory which suggests that, once Danny Gokey (the third of the final three contestants) and a church music director, dropped out, his votes had to go to one of the final two.

I look forward to your vote on whether this is a red/blue issue.