Women Legal Academics – A New Research Agenda?

Women academics have been the subject of suprisingly little academic research; this is particularly true of women legal academics. This article argues that it is important that research into women legal academics is carried out, not just to gain empirical evidence about the working lives of these women, but because in exploring these members of the 'academic tribe' of lawyers, important insights may be gained into the university as an institution, the development of law as a discipline, and the nature of law itself.     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

Thinking Sexual Difference Through the Law of Rape

2013 marks 10 years since the Sexual Offences Act 2003 was passed. That Act made significant changes to the law of rape which appear now to have made very little difference to reporting, prosecution or conviction rates. This article argues that the Act has failed against its own measures because it remains enmeshed within a conceptual framework of sexual indifference in which woman continues to be constructed as man’s (defective) other. This construction both constricts the frame in which women’s sexuality can be thought and distorts the harm of rape for women. It also continues woman’s historic alienation from her own nature and denies her entitlement to a becoming in line with her own sexuate identity. Using Luce Irigaray’s critical and constructive frameworks, the article seeks to imagine how law might ‘cognise’ sexual difference and thus take the preliminary steps to a juridical environment in which women can more adequately understand and articulate the harm of rape.     

Law's Allure and the Power of Path-Dependent Legal Ideas

Gordon Silverstein's Law's Allure (2009) advances a two-part thesis on the power of legal ideas. The first is that legal precedents establish the ideological baselines on which legislative and bureaucratic policies are developed. Silverstein amply demonstrates the validity of this thesis. The second is that by establishing ideological baselines, legal precedents contribute to a version of path dependency (or the idea that early choices determine long-term developments) that is significantly more constraining than other forms of institutional entrenchment. Put simply, law shackles creativity in politics. This thesis I do not find persuasive, in part because Silverstein offers little evidence for it and in part because a growing body of literature suggests the contrary: the cross-fertilization of ideas from one field to another—law to politics, for instance—contributes to, rather than retards, creative change. Nonetheless, while its broader ambitions are not satisfied, Law's Allure's narrow thesis—that precedent profoundly shapes policy development—is important and worthy of a major book in itself.     

Neither Here nor There: Of the Female in American Legal Education

In this Critical Review Essay, Professor Obiora brings together work from many traditions to address the issue of how differences among students beyond gender–and, in particular, differences in terms of race–might affect legal education. After situating the question in terms of the literature on legal education generally (including standard critiques), she delves into work on gender–in law generally, in kgal education, in moral development and learning, in language use, and in education generally–to elucidate hypothesized differences between men and women that might affect differential experience in law school. She then moves on to make the picture more complex by drawing on work that indicates cross-cultural and class-based variation around conceptions of gender. Using research by sociolinguists on educational processes and work by historians and feminists of color on the intersection of gender, race, and class, Professor Obiora suggests specific ways in which women of color and working-class women might diverge from middle-class white women in their approach to kgal education. In particular, she notes: (1) different speech patterns and linguistic socialization lend different meaning to “voice,”“silence,” and “interruption” in classroom interactions; (2) the historical distinction between public and private spheres has been much more sharply drawn for upper-middle-class white women than it has been for black and working-class women; (3) the exclusion of black women from male “chivalry” and feminine idealization necessitated the development of agency; black women could not afford to be passive. Given these points of divergence, but also given convergences among the experiences of women, Obiora suggests a complex and contextually sensitive approach to the issue of gender in legal education, one that takes seriously the differences that exist among women. Because of the richness of the literature reviewed here, we include a Bibliography at the end of the article.     

Undermining Gender Equality: Female Attrition from Private Law Practice

The number of women in the legal profession has grown tremendously over the last 40 years, with women now representing about half of all law school graduates. Despite the decades‐long pipeline of women into the profession, women's representation among law firm partnerships remains dismally low. One key reason identified for women's minority presence among law firm partners is the high level of attrition of women associates from law firms. This high rate of female attrition undermines efforts to achieve gender equality in the legal profession. Using a survey of 1,270 law graduates, we employ piecewise constant exponential hazard regression models to explore gendered career paths from private law practice. Our analysis reveals that, for both men and women, the time leading up to partnership decisions sees many lawyers exit private practice, but women continue to leave private practice long after partnership decisions are made. Gender differences in leaving private practice also surface with reference to cohorts, areas of law, billable hours, firm sizes, and career gaps. Notably, working in criminal law augmented women's risk of leaving private practice, but not for men, while taking time away from practice for reasons other than parental leaves, hastens both men's and women's exits from private practice.     

Feminist lawyering,violence against women,and the politics of law reform in India: An interview with Flavia Agnes

The history of the women’s movement’s relationship to law in India cannot be written without acknowledging the pioneering work of activist, advocate, and scholar Flavia Agnes. Her own life’s journey, engagement with the movement, involvement in women’s rights litigation, feminist jurisprudential scholarship, and outreach work through Majlis (the organisation she co-founded) offer key insights into the kind of movement-based legal pedagogy, awareness, and training that the women’s movement has fostered in India. Flavia’s activism and scholarship over the last three decades have opened up sophisticated critiques of rape law and family law reform in India that have become foundational to the field of what can be called Indian feminist jurisprudence. This interview offers insights into the autobiographical, the feminist, and the scholarly convergences in Flavia’s thinking and writing. She speaks with candour and conviction and introduces ways of thinking about feminist lawyering, violence against women, and the politics of law reform in India that are historically and theoretically grounded in an ethics of self-reflexivity and quotidian wisdom that the insulated nature of clinical legal education in India has much to learn from.

     

The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A. V. Dicey. But for all of Dicey's influence, little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey's thinking about the rule of law into view. On Dicey's account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey's preoccupations and ambivalences are in many ways our own.     

A Separate Peace? The Politics of Localized Law in the Post‐Revolutionary Era

Law is often seen as peripheral to Southern life before the Civil War, and the South as an outlier in the American legal history of that era. In The People and Their Peace (2009), Laura Edwards demonstrates the profoundly legal nature of Southern society and takes an important step toward integrating the legal history of the South with that of the nation. Edwards identifies two dueling legal cultures in North and South Carolina between 1787 and 1840—the law of local courts, which she terms localized law, and the state law of professionalized lawyers and reformers. She argues that white women, slaves, and the poor fared better in localized law—which was based on notions of popular sovereignty and the flexible rubric of restoring “the peace”—than in state courts, which were steeped in a national culture of individual rights that led to more restrictive results. This essay questions Edwards's dichotomy between local law and state law and her depiction of the popular content of localized law, while building on Edwards's innovations to suggest a new direction for Southern legal history.     

Litigation in the Fossil Fuel Divestment Movement

The fossil fuel divestment movement has been described as the fastest‐growing disinvestment movement in history, and in recent years it has continued to expand. Despite its growth, however, the movement has made little use of legal action, instead utilizing tactics of public pressure and persuasion, and the future role of litigation in the movement is unclear. To consider litigation's potential role in the movement and the challenges it may face, I examine the first and only case of litigation in the fossil fuel divestment movement thus far: Harvard Climate Justice Coalition et al. v President and Fellows of Harvard College et al. (2015), in which seven Harvard students (including the author) filed suit to compel the university to divest its endowment from fossil fuel companies. I examine motivations for filing the suit in the context of the broader fossil fuel divestment movement, the case's history, and the challenges faced by the suit, including arguments surrounding causation, particularization, representation of future generations, limiting principles, and framing. I then discuss potential opportunities for fossil fuel divestment litigation in the future. As the field of climate change law develops further, litigation over fossil fuel investments could grow in frequency and importance.     

Revisiting the Rule of Thumb

Abstract

Summary. This writing provides a brief overview of the history of wife abuse and its roots in traditions of patriarchy. Historically the wife was without independent legal status and generally outside the protection of the law. This was largely true in regard to wife abuse. Over the centuries a variety of interventions attempted to alleviate the harsher aspects of such abuse, with limited success. Yet, gradual change did occur in attitudes, law, and patriarchy. This history is itself a prologue to the elimination of domestic violence in today's society.     

Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

Religious law is commonly understood as deeply conservative and unfriendly to women, even when it is reform oriented and “this‐worldly.” This essay challenges that understanding. It does so by engaging the practice and lived entailments of Islamic family law and gender pluralism in Malaysia, based on ethnographic fieldwork conducted since the late 1970s. My research reveals that sharia courts are more timely and flexible in responding to women's claims than in decades past, and that these courts are more inclined to punish husbands who transgress sharia family law bearing on women. In addition, women nowadays have far more access to resources for negotiating marriage, its dissolution, and the aftermath. This is not to say that women and men experience marriage, divorce, or the sharia juridical field as social equals; they do not. But this situation is changing in ways that benefit women as long as they embrace increasingly salient and restrictive codes of obedience and heteronormativity. More broadly, the essay problematizes tensions and oppositions between Islamic law and women's rights that are the subject of considerable scholarly debate and contributes to our understanding of the complex entanglements of religion and law.     

The Development of the Implied Terms on Quantity in the Law of Sale of Goods

The history of the development of the implied terms on short delivery is a complex story of judicial and academic ignorance of law and facts. Sir Mackenzie Chalmers' statutory formulation of the right to correct delivery was the same as that provided in Judah Benjamin's 1868 work on sales. However, Benjamin's formulation was flawed, which led to a highly unsatisfactory rule of law. This article considers the history of the case law on short delivery, leading up to the 1893 codification. The operation of the statutory rule further illustrates the depth of confusion which remained following codification. A comparison with the history of short delivery in the United States demonstrates that the confusion within the English system could easily have been avoided.     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

Patient termination of a life-sustaining medical device: Suicide or natural death?

Medical technology has made tremendous strides in extending the lives of patients who have suffered organ failure. Machines can now replace the function of the kidneys, the heart, and other vital organs. Much has been written about a patient's right to refuse or direct the withdrawal of medical treatment, especially at the end of life, under the guise of “death with dignity.” However, little attention has been paid to the situation where a patient elects to deactivate their life-sustaining medical device without a physician's involvement. This raises the challenging question of whether the patient's manner of death should be classified as suicide or natural. Surprisingly, common law, statutes, medical ethics, and public health practice are not in alignment on the answer. This article will explore the ramifications and far-reaching impact that such divergence has on the survivors and the medical community, as well as recommend corrective actions and practical approaches for the medical and legal practitioner.     

Bridging the Gender Gap In Bill Sponsorship

Under what circumstances do men sponsor issues that are traditionally regarded as salient primarily to women? By examining the sponsorship of legislation in the upper and lower chambers of 15 state legislatures in 2001, we explored the conditions under which men are likely to focus attention on policy areas involving women's issues and children's issues. We found little effect of institutional context (such as party control of the legislature or diversity within the legislature) on the sponsorship behavior of either men or women. Personal characteristics such as race, education, age, and family circumstances are associated with sponsorship by men, but not by women. Committee service is also strongly associated with sponsorship behavior, particularly for men. Differences in sponsorship are relatively marked in the sponsorship of legislation that focuses on reproduction or other health issues particularly relevant to women. We conclude that the boundaries of the set of issues traditionally defined as “women's issues” may be changing over time and that it is important to recognize that the influences on the sponsorship of women's issues can be different for men than they are for women.     

Developing Administrative Principles in the EU: A Foundational Model of Legitimacy?

This paper argues that administrative legitimacy has been neglected as having the potential to provide a foundation for the legitimacy of the EU institutions. The development of the administrative law‐type mechanisms within the EU is almost exclusively focused on the activities of the Member States as the main implementers of Union law. This has left an administrative gap at the level of the EU institutions, with little evidence of determinative horizontal administrative principles to be found in either the Treaties or the case‐law of two European courts. Where the courts have acted, they have adopted a sectoral and highly circumscribed approach to the development of administrative norms. The paper examines whether administrative principles can be harnessed as a mechanism for increasing the EU's legitimacy and, if so, how these principles fit with the institutions' approach to the legitimacy question. Post Lisbon, can evidence be found within the Treaties that the administrative route to legitimacy has not been entirely foreclosed? This paper proposes a model of administrative legitimacy for the EU level of administration that provides a foundation for the interconnected concepts of good governance and political legitimacy.     

European human rights law and the United Kingdom—A note

This article asserts that established concerns about access to, and widening participation in higher education, are now reflected in interest around retention. Those law schools with inclusive admissions policies and widening participation practices face a number of challenges around the financial and human costs of poor retention. Most of these law schools fall within the “new university” sector.

This article argues that poor retention among first‐year law students often reflects a lack of engagement. This lack of engagement exists in two key relationships; first that of between students and the teaching and learning structures of their law school and university, and second between first year law students and many of the staff who teach them. It is argued that this lack of engagement reflects a clash of cultures, first between the requirements and structures of the law school and the everyday life experience of our students, and second between ourselves as teachers and our students.

The utilisation of aspects of the Oxbridge tutorial model of higher education together with an appropriate use of new technology is suggested as a response to this cultural clash and as a way of increasing engagement with our students.

In support of these arguments, the article refers extensively to the evidence presented to the House of Commons Education and Employment Committee hearings on retention in higher education, and to the Committee's conclusions.     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.     

The enforcement of china��s anti-monopoly law during the financial crisis: A comparative study

The economic recession throughout the history has always been accompanied by relaxation or abandonment of anti-monopoly laws, but this crisis is not experiencing substantive recession of anti-monopoly law enforcement in major countries and regions. This has mainly resulted from the recognition that anti-monopoly law enforcement could ease adverse effects of economic recovery. Considering China’s short history of anti-monopoly law enforcement and consistent tradition of government intervention in the economy, more strict anti-monopoly law enforcement should be adopted, and more attention should be paid to government-led anti-competitive efforts.