Paid Family Leave in American Law Schools: Findings and Open Questions

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law schools and receiving a paid family leave. Third, although many law schools provide paid family leave, most leaves are granted on a case-by-case basis. This study stands to benefit a number of constituencies within the legal academy, including individual faculty members, faculties developing leave policies, appointments committees, and job candidates. In addition to presenting survey findings for a representative sample of approximately 35 law schools, this study raises a number of open empirical and theoretical questions for future research

Family Law by the Numbers: The Story That Casebooks Tell

This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field.The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages dedicated to child custody and child support have increased, more than doubling their relative share. At the same time, the boundaries of family law appear to remain quite stubborn. Notwithstanding sustained efforts by family law scholars and educators to restructure the field of family law so that it considers additional domains of law affecting families (such as tax, business, employment, health, immigration, and government benefits), the core of the academic field of family law has remained relatively static in the past 60 years. Marriage, divorce, child custody, and child support continue to dominate the topics presented in family law casebooks, representing 55% to 75% of their content since the 1960s

Keeping Discrimination Theory Front and Center in the Discourse Over Work and Family Conflict

This essay is a contribution to a symposium on balancing career and family. It frames the problem of work/family conflict as a form of sex discrimination. It demonstrates that many of the constructs commonly used to illustrate an absence of employment discrimination - such as the accident, opt-out, time-lag theories - actually fit quite comfortably within various discrimination frameworks. It also contextualizes the problem of work/family conflict within the larger issue of gender bias in the workplace, demonstrating how each contributes to and works together to produce workplace inequality for women. This approach contrasts with the traditional bifurcation of gender bias and work/family conflict into distinct categories of employment discrimination

Employment Discrimination and the Domino Effect

Employment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered in isolation. Second, Title VII’s major theories of liability are premised on the assumption that employee characteristics, such as motivation and work performance, are independent of discrimination. Yet common sense and a significant body of social science research suggest that discrimination has significant effects on employees’ work-related decisions and behaviors, such as the decision to apply for a job or promotion, as well as worker motivation and job performance. Applying the insights of sociology and social psychology, this Article examines the fundamental flaws of these assumptions that lie at the heart of Title VII. Race, sex, and other forms of group-based worker inequality result from a dynamic interaction among biased evaluations and decisions, structural features of the workplace, and employees’ responses to these forms of discrimination. I label these workplace dynamics the “domino effect.” Like an elaborately arranged set of falling dominoes, worker inequality often results from a series of discriminatory conditions or triggers that combine and interact in ways that, over time, may lead to large differences in employee status and pay due to their cumulative and mutually reinforcing nature. I propose and evaluate a set of legal interventions that would help courts and policymakers better address the domino-like dynamics that result in inequality for workers protected by Title VII

Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law

How might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context that has generated a rich (if imperfect) set of compromises among its religious, secular, and ethnic populations in the realm of family law. These solutions have emerged despite—or perhaps because of—Israel’s lack of a written constitution guaranteeing its citizens a basic right to equality. As such, Israel serves as a potentially generative case study to examine the possibility of developing pluralistic legal responses to family regulation in contexts without robust, universal, constitutional protections for women and LGBTQ citizens, a circumstance that the United States is increasingly approaching. This chapter begins with an explanation of Israel’s personal status system and the Jewish and Sharī‘a laws on divorce. It then examines recent examples of self-reform undertaken by religious authorities and courts in Israel to address some of the injustices of religious divorce law. Specifically, the chapter examines the decision by some rabbinical courts to permit annulment when a husband refuses to grant a wife a divorce and a recent decision by Israel’s Sharī‘a court permitting the appointment of female qadis. The chapter concludes with a broader consideration of the implications of these developments for family law in the United States. In particular, this chapter suggests that the Israeli experience helps to illuminate conditions that may incentivize cooperation between religious and queer/feminist/secular communities around issues of family diversity absent strong constitutional protections for family equality. Drawing on the Israeli experience, it also explores how American reformers might facilitate greater legal pluralism to address queer families’ legal needs through private dispute resolution or other mechanisms that are less dependent on the state for their validity and enforcement than constitutional rights litigation

Feminism for Everyone

Every idea has its time. Joan Williams’s idea is that we need to reframe debates about work and family by paying attention to how our gender system of domesticity harms everyone: women, men, privileged Americans, and working-class people. Williams defines domesticity as the gender system that organizes market work and family work around traditional gender roles through a set of entrenched narratives and institutional arrangements. Her basic argument is that to achieve more family-friendly public policy in the United States, feminists and advocates need to pay attention to the impact of domesticity on men and working-class people as well as privileged women. In Williams’s view, we also need to be more sophisticated about politics. Like her formidable body of work on the subject, Williams’s new book, Reshaping the Work-Family Debate: Why Men and Class Matter, has a lot to say about the harms of domesticity for women. Yet her latest contribution to the subject signals a reorientation of priorities. The cover makes her point clearly: we see an image of a sweatshirt-clad, unshaven white man looking into the eyes of a young white boy, presumably a father and son. Is this a working-class man saying goodbye to his son before leaving for a blue-collar job? Or is it a laid-off Wall Street investment banker newly discovering the joys of fatherhood? The point is this: it does not matter, for the financial crisis of 2008 increasingly leveled the playing field between the two. Joan Williams’s timely book seeks to harness this potential alignment of working-class and elite interests to further advance her lifelong project of disrupting separate-spheres ideology and creating more family-friendly workplaces in America. In this Essay, I offer an assessment of Williams’s apparent reorientation in strategy: her decision to focus on masculinity and class in framing the problem of work and family conflict. Part I describes the book, reviewing its main theoretical and strategic innovations. Part II teases out the intellectual underpinnings of Williams’s book, including Marxist-socialist inspired feminism and philosophical pragmatism. Part II also explores the reasons why this is the perfect moment for Williams’s ideas and arguments, both in legal feminism and in national policy debates about work and family issues. Part III suggests that attention to the structural, macroeconomic issues contributing to work and family conflict might take Williams’s analysis even further

Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States. The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with job-protected, unpaid leave for personal or family illness. The Americans with Disabilities Act of 1990 mandates both nondiscrimination and reasonable accommodations for employees with disabilities. The Occupational Safety and Health Act of 1970 is supposed to ensure that American workplaces are free of recognized hazards that may cause serious physical harm to workers. However, as this Article demonstrates, none of these laws clearly addresses the experience of miscarriage. Moreover, courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage. Many scholars have examined the limitations of employment law with regard to pregnancy. This Article is the first to comprehensively examine this problem as it specifically relates to miscarriage. In addition to bringing attention to this important issue, which silently affects so many workers, this Article provides an opportunity to challenge the artificial conceptual separation of employment and health law, as well as to consider the problem of pregnancy discrimination through the broader lens of reproductive justice

Community Parenting

I have two aims: First, I seek to understand why, at a time of increasing recognition of non-traditional families, the “more-than-two” parent family is so widely agreed to be undesirable, even while so many people practice alternatives to the two-parent nuclear family norm. Second, I seek to move away from derivative, child-focused justifications for expanding the existing legal definition of parent. Instead, I argue for an explicit examination of gender politics. Such an analysis can provide an enriched understanding of functional parenthood. Identity and ideology are already present in contemporary conversations about how best to define parenthood and parental rights. The current singular focus on children’s best interests merely serves to obscure these important subtexts

Reynolds v. United States, Rewritten

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a defense to a criminal charge absent evidence of harm to others or disruption of the public order. It further demonstrates that the common law crime of polygamy was intended to penalize fraud and deception rather than consensual conduct. Finally, the opinion addresses head-on the implicit religious freedom claims of the wives of the defendant. It finds that polygamy is no better and no worse for women than monogamous marriage under coverture and that overturning the defendant’s conviction would further the religious freedom and equality of the defendant’s wives and the female citizens in the Territory of Utah. The aims of the dissent are to make visible the women erased by the Court\u27s opinion and to create a more free and egalitarian law of marriage for all women in the United States in the late 19th century