On November 8th, Professor Martha Chamallas presented at the WLA’s Feminist Perspectives on Tort Law event. The event was the second in the WLA’s Feminist Perspectives Series, which is sponsored by Paul Hastings. Chamallas presented a feminist critique of traditional tort doctrine, but she also discussed two recent instances that may have given students hope about possible change in the future of tort law.

Chamallas discussed critiques of tort law that are analyzed in a book she co-authored with Jennifer Wriggins, The Measure of Injury: Race, Gender and Tort Law. These critiques range from what tort doctrine has traditionally recognized as cognizable claims to the the use of noneconomic damage caps, which fall heavily among those for whom recovery tables forecast will not make very much money. This category includes women, minorities, and the elderly.

Although Chamallas was thorough in her critique of tort doctrine, she concluded her presentation with a discussion of two recent instances, which may show that tort law could be receptive to a social justice critique. First, she discussed the 9/11 compensation fund. She reported that originally Kenneth Feinberg began his analysis on how recovery should be calculated for female victims by looking at female life expectancy. The National Organization for Women (NOW) responded to this, by arguing that this was unfair since it would lead to less compensation for female victims than it would for male victims. When presented with this argument, Feinberg agreed. The second case that Chamallas mentioned that may show a change in the doctrine involved a 2008 Staten Ferry crash. In the accident, an African American man injured his spinal chord, and a party argued that African Americans who had been injured in this way lived fewer years than white victims. Judge Weinstein rejected this argument, stating that the party could not rely on a race-based table because doing so would be unconstitutional.

Although much work still needs to be done in this area, these two events may show that the tides are changing in how individuals are thinking about tort law.

On Friday, October 14, the WLA’s Women’s Issues Committee hosted the first of a series of “Feminist Perspectives” events, which aim to explore the 1L curriculum from non-traditional perspectives.

We were lucky enough to have as moderators two esteemed teachers and experts in the field of criminal law: Professor Carol Steiker and Judge Nancy Gertner. To get the discussion started, Professor Steiker noted that, as a student at HLS, she heard Judge Gertner speak at a WLA event. Now, she said, she found herself coming “full circle” — joining Judge Gertner not as a student or audience member, but as a colleague.

The proceeding discussion was spontaneous and lively, with Professor Steiker and Judge Gertner fielding questions from students and often elaborating on each others’ responses.

When asked which reform in the criminal law most affected women, Professor Steiker mentioned rape law, but then initiated a more in-depth discussion of the law of self-defense. Judge Gertner drew on her experiences as a defense attorney, considering how the law of self-defense has developed to account for the characteristics of a male, but not a female, defendant. Because women are less comfortable with, and less accustomed to, using physical force, Judge Gertner noted, they are more likely to fire multiple gunshots into the body of their aggressor, or stab him numerous times–far more than needed to kill him. Therefore, what some judges might interpret as a sign of murderous intent could instead be understood as a valid, gender-specific response. The moderators also shared reflections on their practices as criminal lawyers, and on the state of women in the legal profession.

Look out for “Feminist Perspectives on Tort Law” with Professor Maria Chamallas on November 8, and more events in the spring semester. The “Feminist Perspectives” series is generously supported by Paul Hastings.

–Amy Chmielewski, Women’s Issues Committee

On Wednesday, October 12, the WLA hosted its first mixer for social justice-oriented 2Ls and 3Ls to get together for drinks, appetizers, and job search strategies. We recruited a fantastic group of helpful 3Ls from a wide variety of backgrounds including non-profit and government internships, domestic and international positions, and full and split summers. Add in the experiences of the 2L attendees, and there was something for everyone!

As the pinot and risotto spoons flowed, so did the advice, networking contacts, and moral support. The mixer also allowed members of the HLS public interest community to forge new friendships with one another; I know I had the chance to chat with some amazing (and fun!) women I might not have met otherwise.

All in all, the event was a great success. For those of us who missed out on firm dinners, the opportunity to bask in the sophistication of Temple Bar was much appreciated and the tuition certificates we were able to give away thanks to a co-sponsorship from BarBri were just icing on the proverbial cake.

 I’m already looking forward to attending this event again next year!

– Maia Levenson, Public Interest Committee Co-Chair

We partnered with a number of HLS organizations today to host a talk by Professor Catharine A. MacKinnon, an expert in sex equality issues under international and constitutional law. If you missed out on the lecture (maybe because the room was so packed!), check out a recap of today’s live blog, cross-posted with the Journal of Law & Gender.

13.14
[Wrapping up discussion now -- a quick reminder that, unless content is in quotes, it is merely paraphrased language from today's discussion. Special thanks to all the co-sponsors of today's event and, of course, to Professor MacKinnon for a fascinating lecture and thoughtful Q&A session.]

13.07
The idea that non-state actors can do major damage is not news to peoplle who have been working to fight gender crimes for years.

13.06
Q: There seems to be some fear that the development of international law that would better recognize women as victims could have a spiraling effect — as women are more recognized, countries (particularly the US) might give less credence to a system that recognizes them.

A: The US isn’t a party to the ICC, and international law developments that continue to take seriously violations against women are still improvements for women around the globe. “The US can participate in important change taking place in the world or it can be left in the dust.”

13.01
Question: What are the costs and benefits of separating out gender among other groups, including refugee and asylum-seekers?

A: It would be an improvement to recognize gender crimes specifically as a foundation for persecution. It could be pulled in as part of a brief that recognizes gendered crimes among others.

12.58
On the criminal procedures that often “re-victimize” those have been victims of gender crimes: Have you seen countries that have addressed these issues well?

A: Not yet — “I’m looking.”

“They need to take consent out … and have sexual assault be something that is sex with force.” Consent has come to have this presumption that has meant unless you stop it physically — and even if you do try to — you can still be considered “consenting.”

Force — physical and hierarchical — should be the focus of the rape definition.

12.50
“If rape really is a gender crime, a coercive circumstance is sex inequality.”

12.49
Question 1: What could the effect of progress in international law have on domestic law?

A: If it’s easier to recognize these crimes when they’re committed far away and by others you don’t personally know, perhaps it could have a major impact. … Possibility of developing a real recognition of these atrocities exists, and it could change the way rape law is defined around the world.

12.45
On “anti-fragmentation”: we’re uncovering this issue that has been addressed by all these rubrics but possibly hasn’t been truly addressed.

12.43
[A very packed room is emptying out some as folks head to class -- relief!]

12.41
Times for questions and discussion!

12.41
Opportunity: ICC and other international institutions could begin to know what women know — there will be no collective security in a world with gender injustice.

12.39
As of yet, there is no “post-conflict of gender crimes,” because the conflict goes on. This is a continuing siege against humanity.

12.38
Men’s clarity about other men’s actions improves with distance because they’re less likely to relate to those other men.

12.37
The international arena opens a particular opportunity — to have women’s issues brought to the forefront, away from “the men at home,” who are “the least likely to do anything about these violations.” Those men are the most likely to do these crimes themselves and to identify with other men who commit these crimes.

12.34
Should rape be a separate international crime? What is at stake in allowing it to be part of other recognized international crimes?

12.32
That’s how the Rome Statute is so unique from previous international law — the Statute attempts to delegitimize these crimes as a means of gaining power.

12.31
Committing gender crimes traditionally has not removed legitimacy from the males who commit those crimes; in fact, it may even have increased their legitimacy among their male peers.

12.30
Women traditionally have obeyed laws more than men have — why? Socialization?

12.29
Answer may be that, as to gender crimes, men may enforce laws in ways that reinforce male power.

12.28
Why have laws against gender crimes not been obeyed domestically OR internationally? Women who have been victims of gender crimes live “on the other side” of the idea that almost all nations follow almost all international law almost all of the time [paraphrasing Louis Henkin].

12.26
Question: What light does the literature on the creation and development of international law shed on these issues of gender crimes? “Virtually none — no light.”

12.24
Many of these crimes have never been taken seriously before — internationally or domestically — and the procedures of “fair trial” and “right to face your accuser” do not correlate to these gender crimes.

12.23
Campaigns of crimes against humanity…are organized along hierarchical lines (of which gender is one), rather than being of “the old world model.” Gender crimes are prominent in ICC prosecutions b/c they are prominent in the contexts being prosecuted.

12.22
Rapes that are crimes against humanity are greater in frequency, if not any more intense than rapes outside of conflict zones.

12.21
“Weaponized rape proves to be a highly flexible tactic for all these criminal strategies.” The use of sexual atrocities is “functional” in so many criminal contexts.

12.19
Most striking quality of the pursuit of these crimes by the ICC has been … how central the gender crimes have been in the prosecution of individuals. [MacKinnon outlining numerous examples of the ICC highlighting gender crimes in numerous prosecutions.]

12.16
Gender crimes in Rome Statute do not include specific protections for gays and lesbians, but of course “they are covered as women and men.” And crimes committed against them are almost always highly gendered.

12.14
In Rome Statute … we see th idea of gender crime being referred to explicitly, both in a description of the crimes and how victims of these particular crimes should be treated.

12.13
Systems began recognizing that sexual assaults are “based on the gender of women and girls” who are attacked.

12.12
International criminal and humanitarian law began paying more attention to rape in conflict than it ever had.

12.11
Gender crimes essentially evolved from women telling women their stories, to an international norm, to an international crime in a few short years.

12.10
“You sometimes get further in [addressing] gender crimes, when neither ‘sex’ nor ‘equality’ are on the page.”

12.09
From the late 1980s to the early 2000s…attention to gender crimes was paid again in the criminal system on the international level, not just the human rights level. Ad hoc tribunals began holding individuals criminally liable for their actions and recognizing responsibility among superiors.

12.07
Many central cases recognizing gender crimes have been in Europe and Latin America, where organized groups of women have had remarkable impacts on the legal system.

12.06
Once crimes such as rape were seen as crimes against a group, the law could respond very differently.

12.05
How was the law re-contextualized to recognize gender crimes? “By women listening to women.” Therefore, while victims of these crimes are often individuals, the violation is seen as one against a particular group.

12.03
Sexual harassment law of 1970s transformed our understanding of gender crimes. “Rape was first legally recognized as being based in gender inequality.” The lesson: sex crimes aren’t just violence or violation of community rules; they are gender-based. They happen because of one’s gender.

12.02
“In one form or another, gender crimes actually are illegal” in virtually every legal system in the world.

12.01
As atrocities have become more visible and more women have come forward with their stories, these crimes have gained increasing recognition.

12.00
Gender crimes have gone from “virtual non-recognition” only a decade ago to “accepted institutionalization” — incredibly quick legal change.

11.59
CM on her accomplishments: All I ever really see is how much more needs to be done.

11.58
Prof. Diane Rosenfeld on Prof. MacKinnon: “[She] has done more to change and improve the lives of women around the world than any other woman today.”

11.57
Introduction from Prof. Mindy Roseman, director of the Human Rights Program.

11.51
Folks are gathering in a packed room. Ready to get started!

Remember that morning of the LSAT? Chewing on the end of your pencil as they passed out score sheets? Bubbling in those logic game answers with one eye on the clock?

Imagine doing all that with milk leaking onto your paper.

• What Happened
• What You Can Do
• Sample Email Template
• HLS Moms Network Chair’s Email to LSAC

What Happened
This past Saturday, one lactating mother took the LSAT without a break to express milk or breastfeed. Despite early and persistent requests from this future law student, MomsRising, the ACLU Womens Rights Project and others, the Law School Admissions Council (LSAC) refused to allow Ashley an extended break time to pump (express milk) in the middle of the LSAT. The test has only one 15 minute break during the test, not nearly long enough to set up a breast pump in a private space, express milk, clean up, and store the milk (not to mention maybe, oh, use the restroom or have a quick snack).

Mothers should not have to choose between breastfeeding and going to law school - the choice the LSAC is effectively leaving Ashley with by hampering her ability to take the LSAT. The LSAC’s refusal to accommodate Ashley harkens back to the Bradwell era, where the Supreme Court denied Myra Bradwell the right to apply for the Illinois bar. Bradwell v. Illinois, 83 U.S. 130 (1873). Ashley’s access to the legal profession, like Myra Bradwell’s, is effectively denied (or at the very least curtailed) if the LSAC leaves her unable to pump during the break this Saturday.

You can read the ACLU Women’s Rights Project blog post about this issue and Ashley’s predicament here.

Please join me in supporting Ashley!

- Kristi Jobson, WLA HLS Moms Network Chair

What you can do:
1. Join the ACLU’s petition in support of Ashley.

2. Send an email to the LSAC Director of Communications, Wendy Margolis and LSAC’s General Counsel, Joan Van Tol and let them know that this is unacceptable and express your support for Ashley and other lactating mothers. A sample email is below, as well as the text of my email to them.

3. Comment publicly on the LSAC facebook page.

Sample Email Template:
Dear Ms. Margolis and Ms. Van Tol:

I am a current Harvard Law School student. I am very upset that LSAC will not accommodate a nursing mother. The policy is wrong because it 1) discourages new mothers from taking the LSAT, a necessary step to attending Law School and 2) only impacts women (the group of people who could possibly be nursing) and thus is a form of gender discrimination.

I urge you to immediately change your policy to accommodate nursing mothers taking the LSAT. The legal profession was long hostile to women, but the hard work of advocates has made progress to turn the profession and legal education around to welcome women. LSAC needs to be part of the effort, not take us backwards.

Thank you and I look forward to receiving a response.

[Name]

Thanks to 2010-2011 WLA President Cari Simon for her help drafting this template!

HLS Moms Network Chair’s Email to LSAC:
Dear Ms. Margolis and Ms. Van Tol:

As a third-year Harvard Law student and nursing mother, I learned with dismay and outrage that you have refused to accommodate a nursing mother’s request for a slightly extended break time during the LSAT to express milk for her infant child. I write to urge you to immediately change this policy, and to contact this mother immediately and apologize for impacting her access to an education and to the legal profession.

The benefits of breastfeeding to mothers, infants, and families are clear and well-documented. Just this past January, the U.S. Surgeon General released “The Surgeon General’s Call to Action to Support Breastfeeding” – you can find the Executive Summary here, which will give you a primer on the benefits of breastfeeding. A myriad of federal agencies, including the U.S. Department of Health and Human Services, have written extensively in support of nursing, and Congress is currently considering the Breastfeeding Promotion Act of 2011. I encourage you to read about these efforts to educate yourselves to better understand why Ashley has chosen to breastfeed her child, and I am certain you will understand why you should support her efforts.

Lactating women must nurse or express milk every few hours. This not only provides valuable nutrition to the infant, but also prevents engorgement, infection to the nipples, mastitis, as well as everyday discomfort and leaking. As a law school student and nursing mother, I feel uncomfortable and distracted when meetings or class sessions run long, concerned for my hungry son at home (and often covered in milk once I start thinking about him). It can be awkward to try to explain why I need to leave, right now, because my breasts are completely full and painful. I cannot imagine how distracted and uncomfortable I’d feel if I was in the midst of the LSAT, the gateway exam to law school and the legal profession. Knowing that my performance that day could determine the rest of my life (quite literally), painful and leaking breasts would tremendous compound a normal case of nerves.

For this reason, Congress amended the Fair Labor Standards Act to require employers to provide “reasonable break time” for wage-earning lactating employees to express milk for the first year of their child’s life. This provision became effective on March 23, 2010 with passage of the Affordable Care Act. You can find FAQs about this law here. Many private employers, including yours, I suspect, provide lactation rooms and flexible break time to pump. While the LSAC is not in an employer-employee relationship with Ashley, I query why you would deny her the reasonable benefit so many women are entitled to under federal law.

A solution is simple here: allow mothers a 30-minute break in the middle of the test. This will be cutting it close with setting up a pump, expressing milk (which typically takes about 15-20 minutes), cleaning up, and returning to the test classroom, but it could be done and will certainly help. As I know that you are required to provide separate testing facilities for a number of students with extenuating circumstances such as learning disabilities, religious obligations, and medical conditions, I feel confident that you have the infrastructure and procedures ready to figure out how to provide a different schedule for lactating mothers like Ashley.

As a board member of the Harvard Law Students for Reproductive Justice and the Harvard Women’s Law Association, and the co-Editor-in-Chief of the Harvard Journal of Law & Gender, I have written members of all organizations and urged them to contact you in support of Ashley and all nursing mothers. I imagine that students across the country are contacting you today, given how incensed many are that you will not grant Ashley an extra fifteen minutes to pump.

I encourage you to listen to the voices of students, and NOT end up on the wrong side of history. I have been doing a lot of research this semester on legal scholarship related to lactation, and mark my words, your refusal to accommodate Ashley will invite a barrage of negative commentary in the short-term and in the long-term be cited along with the infamous Perrigo case as an example of wrong-headed and discriminatory policy.

I look forward to hearing your response soon.

Regards,

Kristi Jobson

Join the Conversation

Learned an outrageous fact? Feeling inspired by a recent article? We want to know! Share what’s on your mind on the WLA Tumblr and check out what other WLAers have to say. On campus and off, this is where you’ll find the must-see news stories everyone will be talking about by lunch.

Click here to check it out.

WLA 1L/LLM Representatives play an integral role in the success of the WLA!

What do 1L/LLM Reps do?
As WLA Board members, 1L/LLM Reps have three responsibilities:

• Plan events of interest to the 1L and LLM community with other WLA reps across sections
• Work with existing WLA committees to plan and execute other WLA events
• Publicize WLA events to their sections and serve as link to the 1L and LLM communities

Why become a 1L/LLM Rep?

• Join a diverse, supportive community of women at HLS and make connections outside of your section
• Plan and execute social, academic and professional events of interest to you and your friends
• Get leadership and management opportunities early in your law school career to market to employers

A very simple application is due Friday, Oct. 7th at midnight. If you have any questions, please contact Caitlin Fitzpatrick, Stephanie Berger, or Lindsay Kosan.

Click here to apply or use this link: tinyurl.com/WLA1L.

And we’re off! WLA has already hosted lots of events this year — and we’re just getting started. In addition to already successful welcome activities for our 1Ls, our committees are kicking off events for the entire HLS community this week. I made it to one such event tonight where I had the chance to get insight from a successful woman legislator, spend quality time with fellow WLAers, and get a free meal. A successful evening, I’d say!

State Representative Ruth Balser was the first guest for WLA’s new event format, Success Day-to-Day. WLA board member Laura Wolf, who organized tonight’s dinner, told the group that the goal of the new format was for members to interact with women leaders in smaller, more intimate settings — ones where we could ask questions about day-to-day work and get details about navigating different career paths. Rep. Balser, who serves the 12th Middlesex District, graciously took time out of her schedule to tell us why she decided to get involved in public service and what the challenges and rewards of her work include. We had lots of questions — about women in politics, social justice issues, and the behind-the-scenes parts of legislating. Fortunately, Rep. Balser had plenty of answers. Having held her current office for 13 years, she has led the way for change regarding mental health issues, protecting the environment, and promoting equal rights. Most rewarding, Rep. Balser said, is knowing that her work in the legislature has allowed her to play a direct role in improving her local community.

Tonight’s event was absolutely worth taking time away from homework to think about one of the many paths possible after law school. I’m already a big fan of the new Success Day-to-Day format, and I can’t wait for the next one.

On a totally unrelated note, WLA is thrilled that our Big Sister/Little Sister mentoring program for 1Ls is taking off this year. But as more 1Ls sign on, we’re on the search for some welcoming 2Ls and 3Ls interested in getting to know the newest women members of the HLS community. Email us at wla@mail.law.harvard.edu to sign up today!

–Emily Wales, New Media Chair

This summer the WLA Alumni Committee hosted events and programs in three different cities: DC, New York, and Chicago. In NY, Esther Lim (’13) organized a mixer in August which was both cozy and fun. Some current students attended along with HLS alumnae living and working in the city. All of women stayed for the entire event, with some remaining past the end, talking about their idiosyncratic classmates, successes, and hurdles in the law profession, as well as the difference in HLS culture then and now. The attendees expressed that Harvard Law community in New York wants and needs more opportunities to connect. Hopefully WLA can start that movement for a better network and closer community!

In Chicago, Laura Wolf (’13) planned a mixer alongside Stacey Austin (’04), the head organizer of the Harvard Law School Women’s Alliance of Chicago. In late July, a group of about ten HLS alumnae sprinkled with a couple of current students met for a post-work cocktail and appetizers at Las Palmas in Wicker Park. The women enjoyed reminiscing about their times at HLS and talking about where their career paths have led them over the years. Many of the women had hailed from big law firm life back in the day, but had moved on to smaller boutique firms or different career paths entirely.
For current students, it was great to see what had influenced their decisions in those moves. It was also wonderful getting to hear how much (and how little) HLS has changed over the years.

The WLA is excited for summer mixers, like the ones in NY and Chicago, to become an annual tradition, where current students can meet alumnae to learn more about the roots of the school, and also to hear about the experiences HLS women have faced in the working world. It has definitely helped all of us realize that there will always be a contingency of HLS women around to support each other as we progress in our careers and lives.

Misty Wright (’13) spent her summer in DC, where she formed the DC Mentorship Program for HLS Women.  With the help of the HLSA Alumnae Network of DC, over 30 HLS students summering in DC were paired with amazing women mentors – partners at law firms, clerks on the Supreme Court, public interest leaders, you name it – based on academic, career, and personal interests.  We are so excited by the success of the program’s inaugural summer and can’t wait to build upon this foundation for next year’s program!

– Laura Wolf, Esther Lim, and Misty Wright, Alumni Outreach Committee Chairs 

Panelists and event organizers gathered for a photo.

This year’s program included a panel discussion that addressed a range of topics, including unexpected turns in career paths, informational interviews, the potential pitfalls of self-promotion, work-life balance, mentors versus sponsors, and the perennial issue of dressing for the workplace. The panelists, several of whom are mothers, encouraged women lawyers to fully explore the costs and benefits of demanding career paths before foreclosing opportunities because of work-life balance concerns. Panelists advised women to build relationships with more senior practitioners who are in a position to serve as advocates, which they noted sometimes means seeking out sponsors who are men rather than women. The group also emphasized that women tend to be excellent advocates for others, but need to focus on advocating for themselves, as well, in pursuing career opportunities.

The moderator, Brande Stellings, an HLS alum, is vice president at Catalyst, Inc., a strategic consulting practice where Brande leads efforts to advance women in the legal profession. The panelists were Jane E. Booth, general counsel of Columbia Law School; Camille Chin-Kee-Fatt, director of Career Services at Brooklyn Law School; Shalini R. Deo, court attorney to the Honorable Rita Mella of the New York City Criminal Court; and Lynn K. Neuner, a partner at Simpson Thatcher & Bartlett LLP. Barbara Berger Opotowsky, executive director of the New York City Bar Association, and Patricia A. Grant, president of the New York Women’s Bar Association, made opening remarks, and Stephanie Adduci, the program co-chair, introduced the program participants. Many thanks to each of these inspiring women for taking the time to share their advice!

- Narissa Lyngen, Rising 2L, International Committee Chair