Principles and Persons: Ruth Bader Ginsburg, Raconteuse

Kenneth L. Karst

Volume 63, Issue 5, 1197-1212

Before she was appointed to the judiciary, Ruth Bader Ginsburg was often identified as the nation’s foremost legal advocate for women’s claim to equal citizenship. Eventually, some years after she had become Justice Ginsburg, she was assigned to write the opinion for the Supreme Court’s most sweeping decision validating that claim. Throughout her career as lawyer and judge, she has had a number of occasions to tell the stories of her former clients and other women. This Article considers several themes in those references, in particular her persistent efforts to give credit to other women for their courage and their fortitude.

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Justice Ginsburg and Religious Liberty

John D. Inazu

Volume 63, Issue 5, 1213-1242

Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court’s 2010 decision in Christian Legal Society v. Martinez. This Article examines three strands of Justice Ginsburg’s jurisprudence leading up to that opinion: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination testimony, and her opinions and votes on the Supreme Court. It turns next to her views about government funding of expression. It then examines Justice Ginsburg’s long-standing commitment to principles of equality. Finally, it considers the interplay of these three strands in Martinez and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez skirted the preceding tensions, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

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“The Experience and Good Thinking Foreign Sources May Convey”: Justice Ginsburg and the Use of Foreign Law

Jeremy Waldron

Volume 63, Issue 5, 1243-1266

This Article is an appreciation of Justice Ruth Bader Ginsburg’s defense of the Supreme Court’s use of foreign law, particularly her arguments about what our courts can learn from the work that foreign courts have done. The Article extends and develops Justice Ginsburg’s account, drawing an analogy between courts learning from one another, and scientists learning from one another in a community of inquiry.

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Jumpstarting the Stalled Gender Revolution: Justice Ginsburg and Reconstructive Feminism

Joan C. Williams

Volume 63, Issue 5, 1267-1296

Justice Ruth Bader Ginsburg, since about 1980, has been painted as a feminist committed to “formal equality.” Recent work has contested this depiction. This Article uncovers additional evidence that Ginsburg’s goal was not mere formal equality; her goal was to deconstruct the breadwinner-homemaker system in which men and women were seen as belonging to separate spheres. Ginsburg saw this system as subordinating women, and in that sense is an antisubordination theorist. Yet lumping her together with Catharine MacKinnon, often seen as legal feminism’s foremost antisubordination theorist, proves confusing for a number of reasons. A chief difference is their attitudes towards men. While MacKinnon often paints men as oppressors, Ginsburg saw men, as well as women, oppressed by gender roles. Ginsburg is more accurately seen as a reconstructive feminist, whose chief goal is to deconstruct separate spheres—its breadwinner-homemaker roles and the descriptions of men and women that justify them—and to reconstruct gender along different lines. Today, progress towards her goal has stalled. The key to jumpstarting the stalled gender revolution is to change gender pressures on men. Much of this work involves cultural shift, but in recent years, progress has been made in litigating separate spheres under Title VII, as evidenced by the recent growth of litigation involving family responsibilities discrimination (“FRD”). The Article concludes with a critique of a recent FRD case, EEOC v. Bloomberg L.P.

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The Law of Gender Stereotyping and the Work-Family Conflicts of Men

Stephanie Bornstein

Volume 63, Issue 5, 1297-1344

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg’s litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women’s Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished—not solely the minority status of women. The same sex-based stereotypes that kept women out of the market sphere kept men out of the domestic sphere, and both were unlawful. Through a handful of key cases, Ginsburg challenged sex-based stereotypes that cast men as breadwinner and women as caregiver, succeeding in convincing the Supreme Court to establish a standard of heightened scrutiny for sex-based classifications.In the four decades since, women have made great strides in entering and advancing in the market sphere. Meanwhile, men’s advancement in the domestic sphere, while initially on the rise after the mid-1960s, has stalled since the late 1980s. Today, men have begun to prevail in lawsuits against their employers when they are penalized at work for participating in caregiving responsibilities at home. For the most part, however, their legal claims are not sex discrimination, but claims that courts can more easily recognize as actionable for men—such as violations of family and medical leave or benefits laws. Despite their lack of sex discrimination claims, however, such cases reveal the persistence of entrenched gender stereotypes about men’s and women’s proper roles when it comes to family caregiving. At the same time, Title VII case law now recognizes that penalties for gender nonconformity and stereotyping of mothers may be actionable sex discrimination. By combining these areas of jurisprudence, this Article argues that courts are failing to recognize actionable sex discrimination against men in the work-family context: Even without being covered by family and medical leave or benefits laws, men may prevail in lawsuits to redress penalties at work based on caregiving at home by alleging sex discrimination under a gender stereotyping theory. Following the reasoning first adopted by the Supreme Court in the equal protection cases litigated by Ginsburg in the 1970s, penalizing men at work for acting as caregivers instead of unencumbered breadwinners is sex discrimination under Title VII.

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A Tale of Three Families: Historical Households, Earned Belonging, and Natural Connections

Allison Anna Tait

Volume 63, Issue 5, 1345-1392

Cases targeting family regulation in the 1970s turned, for the first time, on three contrasting and sometimes competing theories of the family: historical households, earned belonging, and natural connections. This Article introduces and defines these three theories and offers a descriptive account of how the theories were used by litigants and the Supreme Court alike to measure discrimination, evaluate the rights of individual family members, and, often, increase household equality. The theory of historical households, developed with great success by Ruth Bader Ginsburg, invoked a Blackstonian family defined by gender hierarchy and the law of coverture, and posited that this model was in need of legal reordering. Earned belonging, offered by Ginsburg as a replacement for historical households, presented a new and more democratic family theory centered on ideas of conduct-based outcomes. The earned belonging theory proposed that an individual could earn her full place in the family through positive conduct and performance. The theory of natural connections, on the contrary, promoted received wisdom about family ordering based on biologic “truths” about sex-based differences. Courts operating according to natural connections theory privileged maternal rights, rejected many paternal claims, and affirmed laws promoting the nuclear, or natural, family. The work of this Article is to present a new and synthetic reading of cases about wives, illegitimate children, and unwed fathers that follows these three logics, revealing how they weave together and why earned belonging provides the strongest support for Ginsburg’s original vision of an equalized household.

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Note – Repercussions of China’s High-Tech Rise: Protection and Enforcement of Intellectual Property Rights in China

Emily Gische

Volume 63, Issue 5, 1393-1416

China’s growing technological prowess and role as a global economic player has vastly increased the number of U.S. and international companies doing business in China. Despite the country’s continued building of a basic intellectual property infrastructure, IP violations remain a common complaint of foreign businesses. This Note analyzes China’s developing IP policy in the context of World Trade Organization Dispute Settlement 362, which the United States initiated against China in 2007. The dispute concerned the protection and enforcement of IP rights and involved both copyright and trademark issues. This Note also examines subsequent national IP strategy pronouncements issued by both China’s State Council and China’s highest court, the Supreme People’s Court, to assess the extent to which they remedy the issues that arose in the WTO dispute. In addition to these materials, this Note analyzes the likelihood that China will be able to implement its IP strategy. This Note concludes that although the Chinese government is shifting to a more proactive IP policy, the lack of effective law enforcement continues to serve as a major obstacle to implementation. Nascent pressure from domestic IP creators, international pressure, and most important, changes in China’s domestic economy all act as counterbalancing forces to offset the enforcement problem.

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Note – Escaping Forced Gang Recruitment: Establishing Eligibility for Asylum After Matter of S-E-G-

Alexandra Grayner

Volume 63, Issue 5, 1417-1442

After the Board of Immigration Appeals denied asylum to three siblings fleeing forced gang recruitment in Matter of S-E-G-, asylum claims based on forced gang recruitment are almost categorically denied. This Note describes how courts interpret and apply Matter of S-E-G- unfairly to preclude viable asylum claims based on membership in a particular social group. Given the chance to establish the facts in their individual records, certain individuals from Central America who have fled forced gang recruitment should be able to establish their eligibility for asylum. Proving that they are members of particular social groups which are both “socially visible” and “sufficiently particular” will be the most difficult hurdles. Nevertheless, a brief from the Department of Homeland Security provides insight on how to accomplish this task so that deserving individuals may be granted asylum.

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