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Developing a Professional Identity: Lessons For Women, BIPOC, and First-Generation Law Students From the Canaries in the Coalmines
This Article explores the concept of professional identity formation in the law, particularly as it pertains to women and lawyers of color. The topic of professional identity formation is an understudied area in legal education, despite the ABA’s new Standard 303(b)(3), which requires law schools to provide substantial opportunities for the development of professional identity. In the legal field, professional identity is often conflated with professionalism, which leads to confusion about how law schools should best prepare their students for their professional lives, and fails to fully equip students to join the profession. Studies from other professions have shown that professional identity is the development of an identity whereby, the newcomer to the profession is adopted into and successfully incorporates the values of the profession, merging the new professional identity with their existing personal identity. Professional identities are most effectively fostered through joining communities of practice, where newcomers are mentored and welcomed into the professional culture. The Author argues that because the legal profession in private firms is still primarily white and male dominated, women, lawyers of color, and first generation lawyers do not always have access to the kind of mentorship, supportive community, and positive narratives that are necessary to foster a strong professional identity. While efforts have been made to foster diversity and inclusion in law firms, these have still fallen short. Thus, even though women, students of color, and first generation students might have positive experiences in law schools, these experiences are not necessarily replicated in firms. The Article goes on to suggest that this failure to fully incorporate these groups into a supportive community of practice in law firms, and the subsequent failure to foster and promote strong professional identities, may be one reason why women and lawyers of color leave the profession at far higher rates than white men.Comity & Federalism in Extraterritorial Abortion Regulation
On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypersons have focused primarily on its implications for reproductive rights and other fundamental rights—such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions have arisen regarding whether and to what extent states may regulate the out-of-state conduct of pregnant women who seek abortions, those who provide assistance to pregnant women seeking to terminate a pregnancy, and abortion providers. This patchwork has the potential to generate interstate conflict and creates new urgency for thinking about the legal and constitutional principles that constrain state extraterritorial legislative jurisdiction. This Article first outlines each states abortion laws, then explores state legislative jurisdiction, and the various barriers that constrain expansive legislative jurisdiction, and finally identifies why expansive legislative jurisdiction would be detrimental to both the Union and individual liberties. Ultimately, the current doctrine has gaps that create risks for comity among the states, and for individuals and businesses attempting to conform to the law of a given state. These gaps should be closed, and should be closed in a way that preserves horizontal federalism.The Class Counsel Draft Gender Gap: An Analysis of Class Counsel Applicants
This Article accomplishes three important and distinct objectives. First, it provides an updated window into the class counsel gender gap. Second, and most critically, it analyzes a to date unexamined data point—MDL class counsel applications. And third, based on its analysis of the data gathered, it demonstrates: (1) female class counsel application rates are correlated with appointment rates and (2) gender equal class counsel applicants’ success rate, suggesting courts are not discriminating against female class counsel applicants. Instead, the class counsel gender gap appears to be a product of the class counsel draft gender gap. To narrow the gap, more women must apply to represent class members. But female candidates must be qualified and meet Rule 23(g)’s adequacy requirements, and they cannot easily attain the experience and financial resources required under the Rule without the class counsel bar’s investment and endorsement. In the recent past, the bar has been motivated by courts’ vocal efforts to appoint diverse candidates, but with courts’ diversity efforts in Constitutional jeopardy, the bar’s incentives to train, retain, and sponsor female candidates will likely decrease. It is up to the class counsel bar now to recognize, as several courts have, the many benefits gender-diverse representation affords class members and class counsel, whose ultimate financial success is tied to the success of the class.How Viable is Viability? Artificial Womb Technology and the Threat to Abortion Access
The viability standard plays an important role in abortion access around much of the United States. In fact, before the Dobbs decision, the viability standard was the constitutional gatekeeper to abortion access and was uniform across the entire nation. Unfortunately, the Supreme Court has removed the constitutional right to abortion altogether. Nevertheless, I will provide an argument as to why Dobbs does not signal the end of viability-based abortion around the U.S. I will prove the importance of the viability standard even in a post-Dobbs society, highlighting its operation within various state laws, such as Michigan’s Prop. 3, as well as its presence in federal bills aimed at codifying Roe. As an important factor in abortion regulation, it is important to note that viability is fluid and is subject to change depending on the context of medical technology. The artificial womb is a threat to the current understanding of viability, and its arrival is by no means far-fetched. The question this paper will address is how society should deal with viability after artificial womb technology becomes mainstream. The paper will explore potential alternatives to the viability standard, but ultimately conclude that viability ought to be retained where it is already used, and implemented where it is not, due to its inherent ability to fairly balance relevant interests in the abortion decision. This paper will advocate for reform envisaging legislative change to ground artificial wombs firmly within the private surrogacy sector, to distance them as being considered ‘medical apparatus’ capable of expediting viability.Gender Identity and Birth Certificates: The Surrogacy Nexus
This Article confronts and responds to the weaponization of birth certificates in recent controversies around gender identity by drawing parallels between gender identity and intentional parentage. A juxtaposition of gender identity with parentage identity reveals that they share the common underpinning of self-identification, raising the question why birth certificates are permitted to reflect one’s parentage identity but, as has been suggested in numerous controversies involving transgender litigants, not one’s gender identity. This Article argues that, for the same reasons that a surrogacy arrangement permits the parties to it to define for themselves who are the legal parents of the child they plan to create, a gender marker on a birth certificate should also be a matter of self-definition. This Article emphasizes that basing a law of gender determination on inflexible categories defined by outward anatomical differences furthers no defensible public policy and indeed is in direct conflict with evolving understandings of gender and human rights.Rethinking Crime and Punishment: Women Who Kill Their Abusers in South Africa
The battered women’s movement in the United States was galvanized in the 1970s and ushered in a paradigm shift in how we understand domestic violence. For women who kill their abusers, the movement attempted to incorporate their lived experiences of domestic violence into legal doctrine. Decades later, the battered women’s movement has generated criticisms such as stereotyping women, failing to take an intersectional lens, and over-reliance on the carceral system. These lessons from feminists in the United States present cautionary tales for other contexts, especially for unequal societies impacted by domestic violence, crime, and mass incarceration. Prompted by personal experiences inspecting prisons across post-apartheid South Africa, I explore why women in South Africa resort to killing their abusers and why these women end up incarcerated with lengthy sentences. I engage with how the law responds–and ought to respond–to women who kill their abusers. After outlining lessons from the battered women’s movement in the United States, I concentrate on South Africa’s transition from apartheid to democracy, with a particular focus on how the government instituted legal reforms to tackle violence against women. I explore the transitional period, noting that the post-apartheid government retreated from progressive forms of punishment, such as correctional supervision, and relapsed to punitive forms of punishment by establishing the mandatory minimum sentencing regime. I show how South Africa’s over-reliance on the carceral system, inspired by the United States’ tough-on-crime zeitgeist, inadvertently extends to women who kill their abusers. After acknowledging empirical gaps in data and uncovering a social movement, I critically analyze various cases involving women who kill their abusers in anticipation of, or after experiencing, cycles of abuse. I make three key findings: first, there is a lacuna in the criminal law regarding defenses for women who kill their abusers; second, no sentencing norms have been established; third, beyond legal doctrine, practical barriers hinder women’s access to the legal system. I argue that filling defense lacunas, establishing sentencing norms, and rectifying social barriers to access legal assistance are necessary, but not sufficient. I contend that the retributive criminal justice system is not tailored to deal with women who kill their abusers and propose, through a social justice lens, restorative and transformative justice mechanisms to hold women accountable. This paper lays the ground for a constructive dialogue for feminists in post-apartheid South Africa to engage with those in the United States and sets an agenda for further research, reform, and activism.Missed Connections in the U.N. Agenda: Applying the Women, Peace and Security Framework to the Feminization of Poverty
Women, Peace and Security, a multifaceted agenda intended to address the particular ways in which conflict affects women, has been on the United Nations agenda since the landmark Security Council Resolution 1325 passed in 2000. The unequal burden of poverty on women, a phenomenon that has been coined “the feminization of poverty,” has been on the United Nations agenda for even longer, since the 1995 Beijing Conference on Women. Yet, despite the fact that poverty and inequality both cause and result in conflict in a violent cycle, the problem of the feminization of poverty has not been integrated into the United Nation’s Women, Peace and Security agenda at large. This Note argues that the eradication of the gendered impact of poverty must be a central goal of the Women, Peace and Security agenda: first, to ensure the full enjoyment of women’s human rights, and second, because an agenda for peace can only be achieved by increasing gender equality and women’s political participation. This point is demonstrated through an analysis of the current system of international peacebuilding, which relies heavily on international financial institutions and perpetuates a neoliberal economy, to the detriment of both peace and women’s rights. This Note concludes that applying the framework of the four pillars of Women, Peace and Security (participation, protection, prevention, and post-conflict relief and recovery) can disrupt the cycles that perpetuate conflict and deny women equality, opportunity, and adequate living conditions.The Preservation of the Separate Spheres Doctrine in Congress and the Federal Courts
In Bradwell v. State, an 1872 decision upholding an Illinois law prohibiting women from practicing law, the United States Supreme Court reasoned that the law was justified because women belonged in the “domestic sphere.” While today’s sex-based workplace exclusions are not as explicit as they once were, women still face barriers to remaining in the workforce and advancing in the workplace despite the existence of major federal legislation in the areas of pregnancy discrimination and family leave policy. Congress passed the Pregnancy Discrimination Act (PDA) in 1978 to stop pregnancy discrimination, but the PDA has not come close to eliminating pregnancy discrimination. Similarly, despite Congress’s passing of the Family and Medical Leave Act (FMLA) in 1993, ineffective family leave policy continues to hinder women’s ability to balance work and their disproportionate family caregiving obligations. After tracing the development of sex-based workplace exclusions from the 1870s through the 1970s, this Note argues that the PDA and FMLA prohibited explicit sex-based workplace exclusions while preserving other forms of sex-based workplace exclusions. This Note then analyzes proposed work-family legislation and argues that policies aimed at eliminating sex-based workplace exclusions must account for the specific experiences of women while promoting anti-stereotyping principles.Right to Informed Consent, Right to a Doula: An Evidence-Based Solution to the Black Maternal Mortality Crisis in the United States
This Note seeks to build on existing research about how to improve childbirth in the United States for women, particularly for Black women, given the United States’ extremely high maternal mortality rate. Through examining the history and characteristics of American and Western childbirth, it seeks to explore how the current birth framework contributes to maternal mortality. To fight this ongoing harm, I suggest increasing access to doulas— nonmedical support workers who provide “continuous support” to the birthing person. Through this Note I seek to build on the research of others by identifying the ways medicalized birth practices fail women, particularly Black women, and possible solutions to this crisis. To that end, I examine the pathologization of childbirth, paternalism in medicine, and how the history of early gynecologists’ experimentation on enslaved Black women reverberates in the context of birth today, as both a cause of ongoing medical racism and paternalism, and as a symptom of misogyny, misogynoir, and racism. Furthermore, this Note builds on existing work in this field by suggesting a solution that has become more popular in recent years: the use of doulas to improve labor and childbirth. I identify why doulas are such an excellent tool to combat the current issues that plague women’s pregnancy and births in this country, specifically against a backdrop of how medical paternalism, racism, and the law have hamstrung women’s ability to safely birth. Finally, I suggest a workable solution to increase the usage of doulas by women who most need support: adding doulas to the “maternity and newborn care” essential health benefit, one of ten essential health benefits private insurers are required to cover under the ACA.Title IX and “Menstruation or Related Conditions”
Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there is explicit Title IX coverage, menstruation will continue to cause some students to miss instruction. Other students may be denied access to a menstrual product or a restroom as needed and face health consequences. They also may be teased and bullied after menstrual blood visibly leaks onto their clothes. Employees, who are also covered by Title IX, may be fired for damaging school property as a result of such leaks.1 People in perimenopause may be denied reasonable modifications like bathroom access, water, or temperature control. Collectively, this creates an educational system that prevents students, faculty, or employees from fully participating in educational institutions and causes harm.