Rewriting Judicial Opinions and the Feminist Scholarly Project

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O\u27Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most conceptions of the proper role of the judicial system.” More than twenty years later, scholars have a better understanding of what constitutes “feminist judging”; moving beyond the gender of those involved in making judgments, feminist judging is understood to derive from the asking of feminist questions and the application of feminist theories and methods. Current scholars also are taking a closer look at the role of feminist judicial perspectives throughout the judicial system. Through a series of “feminist judgments” projects around the globe, scholars are testing the proposition that feminist judging “fits” within the judicial role, no matter the gender of the judge. In the form of rewritten opinions based on the facts and precedent in effect at the time of the original decision, these projects demonstrate that judges who apply feminist perspectives would make a profound difference, not only in the outcomes and processes in individual cases, but also in the development of the law

The Currency of White Women\u27s Hair in a Down Economy

This short essay is a reflection on the relationship between the economy and women’s hair. I suggest that examining women’s spending on hair care products during uncertain financial conditions provides insight into the gendered aspects of the economy. As the economy has declined, sales of home hair-care products targeted toward white women have increased. Major news outlets report on salon customers trying to stretch out the time between their regular $250 hair salon treatments. Certain women turn to home hair dyes to maintain conforming appearances. In popular culture, to have white skin and gray hair is to be old (unemployable and unattractive) or menopausal (unproductive and unsexual). An attempt to retain their hair color (natural or chosen) is, for certain women, an attempt to retain a currency of employability, utility and desirability. The hair-care spending of African-American women (of all socio-economic classes), in contrast, appears to be less susceptible to economic cycles. African-American legal scholars have given voice to the complex role that hair can play in the personal, professional, social and legal lives of black women. I argue that only in a down economy do some white women grapple with their hair’s complex signaling function, including its link to race and privilege

Less Trust Means More Trusts

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the word, one can discern fault lines in contemporary U.S. political and legal structures. These are made even plainer when examined through the lens of ongoing litigation involving human embryos created by actress Sofia Vergara and her former fiancé. Just as termites can enter homes through foundational cracks or wood brought from the outside, interpersonal, community or structural confidence may erode in the face of hostility, indifference or inequality. Similarly, as termites can slowly damage a home over a period of years before the harm becomes visible, the beneficial form of ownership known as a trust gradually–and then suddenly–has morphed almost beyond recognition over the last twenty-five years. Eaten away are the traditional limitations on trust duration, trust modification and the type of property that can be held in trust. In some states, irrevocable trusts can last forever, be decanted to another trust with entirely different terms, or even hold legal “title” to human embryos. These changes to centuries of trust law reveal changing attitudes about wealth, property ownership, and personal autonomy. If society truly values equal opportunity for all people, then trust–and trusts–need attention

Economic Development through Retention, Expansion & Creation of Local Firms

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Tampon Taxes, Discrimination, and Human Rights

This Article makes two contributions to the study of taxation. First, it argues that the “tampon tax”--an umbrella term to describe sales, VAT, and similar “luxury” taxes imposed on menstrual hygiene products--illustrates how deeply embedded gender is in legal structures such as the tax system that are thought to be neutral. Second, this Article posits that tax reform is an essential tool in achieving both gender equality and human rights. In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the tampon tax. In response to pressure from constituents, five states and Canada have repealed their tampon tax. Active repeal campaigns are underway in Australia, the United Kingdom, and several other countries. Where public pressure has not been an effective technique, those seeking to challenge the tampon tax in the United States have turned to litigation. In four states, class action lawsuits have been filed seeking repeal of the tax and a refund for back taxes paid, alleging equal protection violations. In the international context, human rights law may provide a promising foundation for similar legal challenges to the tampon tax because human rights law takes a capacious approach to gender equality. In the European Court of Human Rights, for example, there are several tax cases that recognize gender-differentiated taxes as a form of impermissible discrimination. This Article explains how the tampon tax is both a form of gender discrimination and a violation of human rights norms. Full realization of gender equality will require revision of tax laws. As a cultural matter, the tampon tax has gone unnoticed because of a history of cultural (and legal) unease about women\u27s bodies in general and menstruation in particular. Women\u27s (involuntary) bleeding is meant to happen “out of sight, out of mind,” whereas men\u27s (voluntary) bleeding in war, for example, is valorized. A new generation of activists, relying heavily on the Internet, is deeply engaged in cultural and legal reform efforts designed to create positive change in the practical realities of women\u27s lives

The Third Wave\u27s Break from Feminism

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a third wave of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident second wave of 1970\u27s feminism. Goodbye frumpy sandals; hello sexy fishnets, according to third-wave feminism. Initially young women themselves (and now writers and scholars) embraced a pervasive wave metaphor to convey the belief that differences within feminism are generational. Youth crashes against (and ultimately overtakes) its elders. But rifts within feminism cannot be so neatly explained. The story is more complicated than third-wave vs. second-wave, young vs. old, fertile vs. menopausal. The wave metaphor obscures a more complicated story of the power of labels. Feminism is such mighty label that third-wave feminists want to remake it and Janet Halley wants to take a break from it. In spite of their different vocabulary, though, third-wave feminists and Janet Halley share similar goals and methods. Feminism has no use as a label - a theory, even - unless it yields to the complex realities of human experience. This essay explores the goals that third-wave feminists and Janet Halley share. They have similar purposes and methodologies, but they differ in the vocabulary they use to describe their goals. Third-wave feminists embrace the feminist label when Halley wants to leave it aside, at least temporarily. The core idea of both third-wave feminism and Janet Halley\u27s Split Decisions is a departure from a certain kind of feminism - a feminism does not account in a meaningful way for some women\u27s desires for sex, subordination and (sometimes) sex that is subordinating. Third-wave feminists and Janet Halley and third-wave feminists share an affection for the interstitial, the spaces between theory and experience. That space remains unexplored and messy - with no neat division between waves or breaks to be made

Foreword: The Supreme Court\u27s Estate Planning Jurisprudence

Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax cases make it all the way to the Supreme Court of the United States. For this reason, the role of the nation\u27s highest court in the development of estate planning jurisprudence may be under-theorized. This issue of the ACTEC Law Journal considers the role of the United States Supreme Court in interpreting income, estate and gift tax laws and how those interpretations have shaped the development of contemporary estate planning practice

Using Feminist Theory to Advance Equal Justice Under Law

This essay provides an overview of the purposes, themes and scholarly methodologies evidenced at the October 2016 conference, The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at the University of Akron School of Law. This essay provides some of the background to the development of the path-breaking book, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016). It also focuses attention on the importance of diversity on the bench, with a particular need for judges who understand or experience the intersecting relationships among race, ethnicity, class, sexual orientation, physical abilities and many other factors. The authors argue that one theoretical foundation of Feminist Judgments Projects in the U.S. and globally is the belief that judges with feminist perspectives – broadly construed – will pay more attention to facts, context and a broad range of authorities, thus advancing equal justice under the law. The essay concludes by identifying further questions about the relationship between feminist perspectives and the judicial role, including how feminism can disrupt default judicial positions that otherwise make it more difficult to realize fully the law’s promise of equalit

Change Is Constant in Estate Planning: Reflections of an ACTEC Law Journal Editor

Change is the only constant in the life of a trusts and estates professional. The law changes; the needs of clients change; the methods for achieving certain results change; technology and modes of communication change. So, too, it can be said that change is the only constant running through more than forty years of our organization\u27s flagship publication