Judging the Best Interests of the Child: Judges' Accounts of the Tender Years Doctrine

With dramatic changes in family life over the last several decades, child custody law has shifted from a maternal preference to a more egalitarian standard, the best interests of the child. Despite this change in the law, scholars have debated whether gender continues to play a role in the resolution of custody disputes. Drawing on feminist legal scholarship and sociolegal research on judges, I assess the current debates over gender and custody by examining the accounts of judges who frequently adjudicate custody cases. I conduct in-depth, face-to-face interviews with twenty-five trial court judges in Indiana and investigate judges' accounts about whether they continue to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender-neutral. Then, I assess several competing explanations of the variation across judges' accounts, including the judges' gender role attitudes, gender, age, and political party affiliation. In exploratory analyses, I also examine the contested custody rulings of a subset of nine judges to assess whether judges' accounts are congruent with their actual custody decisions. I discuss the implications of these findings in light of feminist legal scholarship as well as empirical research on child custody adjudication.     

Writing las dissertations,part one: the rationale for an experimential research project

This article describes the impetus for a research project conducted during 2002–2003 into our law students' experiences of undertaking a dissertation module. It also discusses the rationale for the particular methodology and approach we have used to conduct this research, and presents the results. A driving force behind this research project was not only the desire to obtain knowledge for its own sake but also the need to identify and enhance positive aspects of students' experience of this module. We decided to adopt a student led and experiential method of carrying out our research that focuses directly upon the students' lived-experience of engaging in dissertation writing. The rationale for this decision was our acknowledgement that, within the last decade, students are increasingly defining themselves as consumers of educational services and have a legitimate and indeed pivotal role in quality assurance strategies. We also recognised that adopting an experiential method of inquiry, informed by a phenomenological approach, should, in principle, help to empower students by acknowledging their autonomy and encouraging them to engage in critical reflection. Finally, applying this methodology would provide us with precisely the subjectively rich type of research data derived from the students' lived-experience that we sought. This revised version was published online in July 2006 with corrections to the Cover Date.     

Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes'restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.     

Prior Experiences as Temporal Frames of Reference in Social Justice: The Influence of Previous Fairness Experiences on Reactions to New and Old Supervisors

This paper focuses on the psychology of social change and social justice. Specifically, we focus on subordinates’ reactions to new and old supervisors, and we argue that in evaluating these different types of supervisors, subordinates may rely on prior fair or unfair experiences as temporal frames of reference. We further propose that a result of these frames of reference may be that previous fairness experiences have a bigger impact on subordinates’ reactions to subsequent neutral communications when an old rather than when a new supervisor is the source of that communication. Findings of two empirical studies indeed show that subordinates who had had fair experiences with a particular supervisor reacted more positively toward subsequent neutral messages when the communication was coming from the old supervisor rather than from the new supervisor. Subordinates who had had unfair experiences, however, reacted more negatively toward the communication when the source was the old rather than the new supervisor. Some evidence was also found for contrast effects such that people who react to a new supervisor may react more positively with the neutral demand from this authority figure when they have earlier experienced unfair as opposed to fair treatment by a different supervisory agent. These findings were obtained on subordinates’ satisfaction with the supervisors’ communication and their acceptance of the supervisor. Finally, we discuss the implications for the psychology of social change and social justice.     

A Purposive Approach to Employment Protection or a Missed Opportunity?

This note discusses how far the Supreme Court judgment in Autoclenz Ltd v Belcher and others provides grounds for a purposive interpretation of the contract of employment for employment protection purposes, or whether its scope is limited to the specific issue of considering the validity of boilerplate contractual terms. The author reflects on the approach taken by the Supreme Court and how far issues of inequality and substantive fairness within employment relationships have been addressed. The note concludes that whilst the judgment has extended the context of facts to be considered to include a consideration of relative bargaining power, this in itself does not extend to a consideration of substantive fairness nor does it clarify the standards that should apply to a fair employment relationship.     

An Empirical Study of Patent Grant Rates as a Function of Race and Gender

In this article we examine the rate at which patent applications are granted as a function of the inventor's race and gender. Empirical analysis of more than 3.9 million U.S. applications finds minority and women applicants are significantly less likely to secure a patent relative to the balance of inventors. Further analysis indicates that a portion of this bias is introduced during prosecution at the Patent Office, independent of the quality of the application. Mechanisms underlying these disparities are explored. The article concludes with a discussion of our results and their interaction with patent law, innovation policy, and employment trends.