The Banker Removal Power

The Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. Although major U.S. banks have admitted to repeated and flagrant lawbreaking in recent years, the Fed has never removed a senior executive from one of these institutions.

This Article offers the first comprehensive account of the banker removal power. It makes four contributions. First, drawing on a range of primary sources, it recovers the power’s statutory foundations, showing that Congress created the authority to better align the interests of senior bankers and the public. Second, using a novel dataset obtained through Freedom of Information Act requests, it maps the actual practice of banker removal—who is removed, how often removal occurs, and for what reasons. It reveals that the Fed now uses the removal power mostly to prevent already-terminated, low-level employees from working at other banks, even though Congress never intended for the power to be used primarily in this way. Third, harnessing corporate law theory, the Article defends the legislative design. It argues that removal of senior bank executives for unsound management practices is a critical component of effective bank supervision, filling gaps left by regulatory rules and traditional corporate governance measures. Finally, the Article concludes by assessing obstacles to the use of the removal power against bank leadership and suggesting policy responses.

Introduction

Many observers have wondered why the Department of Justice (“DOJ”) did not prosecute more high-level executives following the 2008 financial crisis.1.See, e.g., Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives xvi–xvii, at xxi (2017); Jed S. Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?, N.Y. Rev. Books, Jan. 2014, at 4–8; William D. Cohan, How the Bankers Stayed Out of Jail, Atlantic, Sept. 2015, at 20; Dorothy S. Lund & Natasha Sarin, The Cost of Doing Business: Corporate Crime and Punishment Post-Crisis (unpublished manuscript) (on file with authors); see also John C. Coffee, Jr., Corporate Crime and Punishment: The Crisis of Underenforcement, at ix–x, 2–6, 13–14 (2020); Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations 5, 18 (2014).Show More Some argue that the paucity of indictments was the product of soft corruption or the government’s fear of challenging deep-pocketed defendants.2.See Rakoff, supra note 1, at 4, 6 (critiquing the Justice Department’s rationales for not prosecuting bank executives); Eisinger, supra note 1, at xx, 228, 233 (citing revolving door practices at the Justice Department and the risk aversion of prosecutors). For other commentary on prosecutors’ failure to charge executives in connection with the 2008 crisis, see Coffee, supra note 1, at 13 (arguing that the lack of prosecution “results chiefly from the logistical mismatch between the government’s limited enforcement resources and the nearly limitless capacity of the large corporation to resist and delay”); Garrett, supra note 1, at 6, 45–80 (showing how public corporations were able to escape criminal prosecution through the use of deferred prosecution agreements).Show More Others attribute it to the absence of executive-level criminal offenses: to them 2008 “was a bubble, not a fraud.”3.Coffee, supra note 1, at 4 (collecting sources).Show More Missing has been any discussion of why the Board of Governors of the Federal Reserve System (“the Fed”)—the country’s leading bank supervisor—failed to remove even a single top bank executive in connection with the crisis. This civil remedy—the “banker removal power”—allows the Fed to fire bank officers, directors, and employees for “unsafe or unsound practices” and to prohibit them from working in banking.4.12 U.S.C. § 1818(e). A brief definitional point: current law authorizes the Fed to remove sitting bankers as well as to temporarily suspend them or permanently prohibit them from working in banking (even if they have already been terminated). This Article uses the terms “removal power” and “removal action” broadly to encompass all three sanctions.Show More It was a core part of Franklin D. Roosevelt’s financial reform agenda.5.See infra Section I.A.Show More And it was designed precisely to allow the Fed to prevent an economic collapse of the sort experienced in 2008.

The mystery deepens when one considers the remarkable breadth of wrongdoing that has surfaced since the 2008 crisis. In the past twenty years, America’s largest banks have settled hundreds of major lawsuits and paid an unprecedented $195 billion in fines and penalties.6.See, e.g., Laura Noonan, US Banks Rack Up $200bn in Fines and Penalties over 20 Years, Fin. Times (Dec. 24, 2020), https://www.ft.com/content/989035f3-767a-43c2-b12e-2f6c0be0aa6b [https://perma.cc/R29R-AQT6].Show More They have admitted to fraud, bribery, money laundering, price fixing, bid rigging, illegal kickbacks, discriminatory lending, and a host of other consumer protection violations.7.See Better Markets, Wall Street’s Crime Spree 1998–2020: 395 Major Legal Actions and $195+ Billion in Fines and Settlements over the Last 20 Years, at 2 (Jan. 13, 2021).Show More In 2019, the DOJ labeled one trading desk at JPMorgan Chase a “criminal enterprise.”8.Tom Schoenberg & David Voreacos, JPMorgan’s Metals Desk Was a Criminal Enterprise, U.S. Says, Bloomberg (Sept. 16, 2019), https://www.bloomberg.com/news/articles/2019-09-16/jpmorgan-s-metals-desk-was-a-criminal-enterprise-u-s-says [https://perma.cc/FW3C-QC99].Show More Yet during this period, the Fed did not remove a single senior executive of Chase or any other major U.S. bank.

Instead, the Fed used its removal power mostly to exclude rogue low-level employees from the banking business for isolated instances of misconduct. For example, in the early 2000s, SunTrust Bank fired Roslyn Terry for stealing $21,200 while working as a teller.9.Prohibition Ord., Roslyn Y. Terry, Bd. of Governors of the Fed. Rsrv. Sys. No. 08-016-E-I (Aug. 29, 2008).Show More Following her termination, the Fed banned Terry from working at a bank ever again.10 10.Id.Show More The Fed’s ban had no impact on SunTrust, its management, or its practices, nor was it intended to. Primarily, it signaled Terry’s lack of fitness to other banks and potential employers.

Terry’s case—and the lack of executive removals in recent years—was not always the norm. In the early 1990s, the Fed used its removal power primarily against bank leadership. Between 1989 and 1993—the first five years for which enforcement data is publicly available—over 75% of domestic removal orders issued by the Fed targeted presidents, chief executive officers, board chairmen, and board directors. But as the banking industry consolidated in the subsequent decade, the Fed’s enforcement focus shifted toward rank-and-file workers, especially those who had already been fired by their employers and no longer worked at a bank. Over the five years ending in 2019, 72% of domestic removal actions by the Fed barred low- and mid-level employees who had already been terminated.11 11.See Compiled Data on Removal Orders Completed by the Bd. of Governors of the Fed. Rsrv. Sys. (on file with authors) [hereinafter Removal Orders].Show More

Scholars and policymakers have failed to notice this change or appreciate its significance.12 12.There is little scholarship on the removal power, and the scholarship that does exist is dated. See Joseph M. Korff, Banking, 8 B.C. Indus. & Com. L. Rev. 599, 600 (1967) (describing the effect of the Financial Institutions Supervisory Act of 1966 on the removal power); Robert J. Basil, Suspension and Removal of Bank Officials Under the Financial Institutions Reform Recovery and Enforcement Act of 1989 (“FIRREA”), 18 J. Legis. 1, 2 (1991) (discussing the effect of recent amendments on removal actions from the perspective of the private bar). One exception is work by Professor Heidi Schooner who considers removal in the context of disparate enforcement policies for large and small banks. See Heidi Mandanis Schooner, Big Bank Boards: The Case for Heightened Administrative Enforcement, 68 Ala. L. Rev. 1011, 1013, 1024–27 (2017).Show More There has been little effort to date to explain why the Fed has a removal power or to consider how the Fed should use it.13 13.The power is similarly neglected by corporate governance scholars and unknown to the voluminous administrative law literature focused on the President’s power to remove independent agency heads. See, e.g., Cass R. Sunstein & Adrian Vermeule, Presidential Review: The President’s Statutory Authority over Independent Agencies, 109 Geo. L.J. 637 (2021); Ganesh Sitaraman, The Political Economy of the Removal Power, 134 Harv. L. Rev. 352, 354 (2020); Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L.J. 1836, 1880–81 (2015); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772 (2013); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 110 (1994).Show More The absence of the power in the literature is particularly surprising given the salience and frequency of lawbreaking by banks and the ensuing public outrage toward bank executives.14 14.See, e.g., Letter from Elizabeth Warren, Ranking Member, Senate Subcomm. on Fin. Inst. & Consumer Prot., to Janet Yellen, Chair, Fed. Rsrv. Bd. of Governors (June 19, 2017) [hereinafter Letter from Elizabeth Warren].Show More

This Article seeks to give the banker removal power a seat back at the table. It makes four contributions. The first is historical. Through original research, Part I reconstructs the statutory development of the banker removal power. It highlights the power’s animating conception of bank executives as public fiduciaries and reveals that banker removal is not just another remedial tool in the Fed’s toolkit. Removal is the legal foundation for modern bank supervision, a distinctive form of government oversight that proceeds through continuous, confidential engagement between bankers and government officials. Policymakers first proposed the power in the late nineteenth century as a way to enhance the government’s supervisory control of banks. And Congress granted the Fed the power in 1933 in an effort to preserve an institutional arrangement for expanding the money supply that relies on deposit money issued by privately run banks.15 15.See Lev Menand, Why Supervise Banks? The Foundations of the American Monetary Settlement, 74 Vand. L. Rev. 951, 958, 1004 (2021).Show More Congress hoped that if the Fed had the power to remove untrustworthy bank leaders, banks would heed informal supervisory directives and better serve public as well as private interests.16 16.Bank supervision has been the subject of a surge of recent scholarly attention. See, e.g., id.; Daniel K. Tarullo, Bank Supervision and Administrative Law, Colum. Bus. L. Rev. (forthcoming) (unpublished manuscript) (on file with authors), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3743404 [https://perma.cc/ZY2P-3EXR]; see also Julie Andersen Hill, Bank Supervision: A Legal Scholarship Review (forthcoming) (U. Ala. Legal Stud., Research Paper No. 2627472), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3777580 [https://perma.cc/5752-7XHC]; Event Overview Bank Supervision: Past, Present, and Future, Fed. Rsrv. Bd. of Governors, Wharton Sch. & Harv. L. Sch. (Dec. 11, 2020), https://events.stlouisfed.org/event/67aec69c-628d-459d-8366-466979e3f8af/summary; Lev Menand, Too Big to Supervise: The Rise of Financial Conglomerates and the Decline of Discretionary Oversight in Banking, 103 Cornell L. Rev. 1527 (2018); Julie Andersen Hill, When Bank Examiners Get It Wrong: Financial Institution Appeals of Material Supervisory Determinations, 92 Wash. U. L. Rev. 1101, 1105 (2015). This growth is due in part to an active debate inside and outside the government over supervision’s legitimacy as a mode of administrative governance. See Jeremy Kress, Notice & Comment, The War on Bank Supervision, Yale J. Regul. (Dec. 18, 2020); Peter Conti-Brown & Nicholas R. Parrillo, Supervision, Stress Tests, and the Administrative Procedure Act (unpublished manuscript) (on file with authors); Randal Quarles, Vice Chair, Bd. of Governors of the Fed. Rsrv. Sys., Remarks at the “Law and Macroeconomics” Conference at Georgetown University Law Center: Law and Macroeconomics: The Global Evolution of Macroprudential Regulation 12 (Sept. 27, 2019). Part I of this Article introduces removal law to the supervision literature and adds to the debate by recovering a portion of supervision’s legal foundations. It reveals, among other things, that removal law treats banks as public franchises, complicating contemporary efforts by critics of bank supervision to characterize banks as purely private enterprises.Show More

In 1966, Congress gave the banking agencies a further tool to strengthen supervision—the cease-and-desist order—and rolled back removal, limiting it to situations involving “dishonesty.”17 17.See infra Section II.B.Show More In 1978, concerned by evidence of increasing executive malfeasance, Congress reversed course, allowing for removal even in cases not involving dishonesty.18 18.See Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. No. 101-73, 103 Stat. 183, § 904 (codified as amended at 12 U.S.C. § 1818).Show More Removals accelerated, and in the wake of hundreds of costly bank failures in the late 1980s, Congress further expanded the removal power in 1989. Today, the power exists at its broadest scope. Any institution-affiliated party is subject to sanction; a removal may result in a lifetime prohibition from banking; and willful or continuing “unsafe or unsound” conduct, even in the absence of fraud, suffices to justify enforcement.

This Article’s second contribution is analytic, picking up the story after 1989 and bringing it to the present. Part II introduces a novel dataset on the Fed’s removal actions between 1989 and 2019 using public information as well as orders obtained through Freedom of Information Act (“FOIA”) requests.19 19.The Fed is not the only bank regulator with the power to remove bank employees and affiliates. Little is currently known about how the Office of the Comptroller of the Currency (“OCC”) and the Federal Deposit Insurance Corporation (“FDIC”) use their parallel power—whom they remove and for what conduct. Given the breadth of their supervisory jurisdictions, their practices are worthy of future study.Show More Details about the individuals sanctioned and their wrongdoing were hand collected from case files and contemporaneous news accounts and matched with bank characteristics.

The data reveal that the Fed uses its removal power sparingly, averaging 7.2 actions per year over the past 31 years. Even less common are Fed removals of sitting bank employees; 91% of Fed removal orders ban people who are no longer working at banks, blocking them from returning in the future. More notably, since the late 1990s, the Fed has deployed its power, now codified at 12 U.S.C. § 1818(e), primarily against rank-and-file workers for activities already subject to criminal penalties. For example, the most common reason for removal during this period was embezzlement or misuse of funds. In only three instances has the Fed used its removal power to address poor oversight and reckless management, and two of these instances involved employees of the same bank who jointly supervised a rogue trader. The Fed’s other 187 removal actions all targeted individuals who directly participated in unlawful activities.20 20.These results align with qualitative accounts of the Fed’s supervisory rollback in the late 1990s and early 2000s. See, e.g., Menand, supra note 16, at 1541, 1574. They also provide empirical evidence for concerns about the government’s enforcement posture toward senior corporate executives. See, e.g., Coffee, supra note 1, at 2.Show More

The Article’s third contribution is theoretical. Part III argues that a credible threat of removal against senior bank executives for unsound management practices is an indispensable component of contemporary bank supervision. Traditional corporate governance measures, which focus on enhancing the accountability of senior bankers to shareholders, will not eliminate incentives for banks to engage in socially harmful risk taking. Shareholders have strong incentives to exploit banks’ government backstopping and extract wealth from the public by encouraging investment in risky assets. No matter how carefully constructed, regulatory rules and statutory provisions that directly restrict the menu of choices available to banks are backward looking, crude, and inevitably incomplete.21 21.We use Dan Tarullo’s term “regulatory rules” to describe strictures promulgated through notice-and-comment in order to differentiate them from “regulation,” which we use to refer to all manner of government oversight. See Tarullo, supra note 16.Show More

This Article therefore joins a growing body of scholarship in recognizing that corporate governance reforms and prudential regulatory rules have limited capacity to curb unsafe bank behavior.22 22.See infra Sections III.A–B; see also Jonathan R. Macey & Maureen O’Hara, The Corporate Governance of Banks, 9 Fed. Rsrv. Bank N.Y. Econ. Pol’y Rev. 91, 97–99 (2003) (observing that banks have “special corporate governance problems” that “weaken the case for making shareholders the exclusive beneficiaries of fiduciary duties”); Lucian A. Bebchuk & Holger Spamann, Regulating Bankers’ Pay, 98 Geo. L.J. 247, 255–61 (2010) (observing the same problem and detailing how features of modern banking organizations heightened the basic moral hazard problems); Steven L. Schwarcz, Misalignment: Corporate Risk-Taking and Public Duty, 92 Notre Dame L. Rev. 1, 4 (2016) (describing the “misalignment” between shareholders’ interests and the public’s interest in systemically important firms); John C. Coffee, Jr., Systemic Risk After Dodd-Frank: Contingent Capital and the Need for Regulatory Strategies Beyond Oversight, 111 Colum. L. Rev. 795, 807 (2011) (noting that “the more ‘shareholder friendly’ the firm’s corporate governance system, the less attention is likely to be paid to externalities, and the greater the exposure to volatility and systemic risk”). See generally Dan Awrey & Kathryn Judge, Why Financial Regulation Keeps Falling Short, 61 B.C. L. Rev. 2295, 2299–300 (2020) (summarizing the literature on “why financial regulation so often falls short” and contributing additional explanations).Show More But contrary to the emerging view, we do not conclude from this diagnosis that entirely new regulatory methods are needed.23 23.For examples of this emerging view, see Schwarcz, supra note 22, at 23–44 (arguing that “managers should have a public governance duty not to engage their firms in excessive risk-taking that leads to [systemic] externalities”); Macey & O’Hara, supra note 22, at 92 (contending that “directors and officers of banks should be charged with a heightened duty to ensure the safety and soundness of these enterprises[, which] . . . should not run exclusively to shareholders”); Coffee, supra note 22, at 834–35 (proposing a contingent capital mechanism that would, in part, serve the function of giving creditors’ voting powers once the bank is in the “vicinity of insolvency”); John Armour & Jeffrey N. Gordon, Systemic Harms and Shareholder Value, 6 J. Legal Analysis 35, 67–70 (2014) (arguing that Caremark liability for oversight failure should be “applied in wider circumstances and to a higher standard” in banks and other systemically important financial firms); Saule T. Omarova, Bank Governance and Systemic Stability: The “Golden Share” Approach, 68 Ala. L. Rev. 1029, 1032, 1043–51 (2017) (arguing for a “golden share” regime that would “giv[e] the federal government a seat on the board of each systemically important banking organization”); Saule T. Omarova, Bankers, Bureaucrats, and Guardians: Toward Tripartism in Financial Services Regulation, 37 J. Corp. L. 621, 658–69 (2012) [hereinafter Omarova, Bankers, Bureaucrats, and Guardians] (proposing the creation of a Public Interest Council that would function to “represent the public interest in preserving financial stability and minimizing systemic risk”); Ross Levine, The Governance of Financial Regulation: Reform Lessons from the Recent Crisis, 12 Int’l Rev. Fin. 39, 41–42 (2012) (proposing a new regulatory entity “to act as the public’s sentry over financial policies and to help compel financial regulators to act in the public interest, regardless of their private interests”); see also Daniel K. Tarullo, Member, Bd. of Governors of the Fed. Rsrv. Sys., Remarks at the Association of American Law Schools Midyear Meeting: Corporate Governance and Prudential Regulation 11–17 (June 9, 2014), https://www.federalreserve.gov/newsevents/‌speech/tarullo20140609a.htm [https://perma.cc/9QMX-A32B] (proposing mechanisms to align corporate governance at banks with public objectives, including: changing the incentives of decision makers; restricting dividends under certain circumstances; reforming the institutions and processes of corporate decision making; and amending the fiduciary duties of bank boards).Show More Instead, we argue that regulators already have a tool that would allow them to reorient bank managers’ incentives toward the public interest. Section 1818(e) can serve this role. A credible threat of removal permits the Fed to keep senior executives and directors in line by prioritizing its judgment over that of private shareholders in order to improve the safety of the banking system as a whole. It also bolsters ongoing government supervision of banks by ensuring that Fed officials do not need to continue to rely on bank managers whom they no longer trust.

The Article’s final contribution is prescriptive. The removal power has failed to achieve its full potential to improve bank governance because the Fed rarely removes senior bankers. Part IV examines how the current statutory design enables this trend and recommends changes. In particular, it shows that the removal power was last updated before the emergence of large financial conglomerates and thus is out of sync with the reality of modern banking. Bank executives now serve in oversight, rather than operational, roles. Because the removal power relies on a single culpability standard that applies in blanket fashion to all bankers along the corporate hierarchy, regardless of their varied roles and responsibilities, it substantially raises the difficulty of removing bank leadership relative to lower-level subordinates. Accordingly, Part IV argues that Congress should expressly recognize oversight failure as a removal ground. In addition, the Fed should revise its practice of imposing uniform removal terms for all cases, instead varying the scope and duration of removal according to the type of wrongdoing at issue.

Banker removal can be a powerful tool for strengthening bank governance. It can even work silently, with few if any formal actions. But the law only works if bankers believe they will be removed for breaking the law or jeopardizing the public’s interest in a safe and sound banking system. The evidence suggests that, at the most senior levels of the banking industry, removal has ceased to fulfill this function. By providing a comprehensive account of the removal power in theory and practice, this Article takes a first step toward its renewal.

  1. See, e.g., Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives xvi–xvii, at xxi (2017); Jed S. Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?, N.Y. Rev. Books, Jan. 2014, at 4–8; William D. Cohan, How the Bankers Stayed Out of Jail, Atlantic, Sept. 2015, at 20; Dorothy S. Lund & Natasha Sarin, The Cost of Doing Business: Corporate Crime and Punishment Post-Crisis (unpublished manuscript) (on file with authors); see also John C. Coffee, Jr., Corporate Crime and Punishment: The Crisis of Underenforcement, at ix–x, 2–6, 13–14 (2020); Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations 5, 18 (2014).
  2. See Rakoff, supra note 1, at 4, 6 (critiquing the Justice Department’s rationales for not prosecuting bank executives); Eisinger, supra note 1, at xx, 228, 233 (citing revolving door practices at the Justice Department and the risk aversion of prosecutors). For other commentary on prosecutors’ failure to charge executives in connection with the 2008 crisis, see Coffee, supra note 1, at 13 (arguing that the lack of prosecution “results chiefly from the logistical mismatch between the government’s limited enforcement resources and the nearly limitless capacity of the large corporation to resist and delay”); Garrett, supra note 1, at 6, 45–80 (showing how public corporations were able to escape criminal prosecution through the use of deferred prosecution agreements).
  3. Coffee, supra note 1, at 4 (collecting sources).
  4. 12 U.S.C. § 1818(e). A brief definitional point: current law authorizes the Fed to remove sitting bankers as well as to temporarily suspend them or permanently prohibit them from working in banking (even if they have already been terminated). This Article uses the terms “removal power” and “removal action” broadly to encompass all three sanctions.
  5. See infra Section I.A.
  6. See, e.g., Laura Noonan, US Banks Rack Up $200bn in Fines and Penalties over 20 Years, Fin. Times (Dec. 24, 2020), https://www.ft.com/content/989035f3-767a-43c2-b12e-2f6c0be0aa6b [https://perma.cc/R29R-AQT6].
  7. See Better Markets, Wall Street’s Crime Spree 1998–2020: 395 Major Legal Actions and $195+ Billion in Fines and Settlements over the Last 20 Years, at 2 (Jan. 13, 2021).
  8. Tom Schoenberg & David Voreacos, JPMorgan’s Metals Desk Was a Criminal Enterprise, U.S. Says, Bloomberg (Sept. 16, 2019), https://www.bloomberg.com/news/articles/2019-09-16/jpmorgan-s-metals-desk-was-a-criminal-enterprise-u-s-says [https://perma.cc/FW3C-QC99].
  9. Prohibition Ord., Roslyn Y. Terry, Bd. of Governors of the Fed. Rsrv. Sys. No. 08-016-E-I (Aug. 29, 2008).
  10. Id.
  11. See Compiled Data on Removal Orders Completed by the Bd. of Governors of the Fed. Rsrv. Sys. (on file with authors) [hereinafter Removal Orders].
  12. There is little scholarship on the removal power, and the scholarship that does exist is dated. See Joseph M. Korff, Banking, 8 B.C. Indus. & Com. L. Rev. 599, 600 (1967) (describing the effect of the Financial Institutions Supervisory Act of 1966 on the removal power); Robert J. Basil, Suspension and Removal of Bank Officials Under the Financial Institutions Reform Recovery and Enforcement Act of 1989 (“FIRREA”), 18 J. Legis. 1, 2 (1991) (discussing the effect of recent amendments on removal actions from the perspective of the private bar). One exception is work by Professor Heidi Schooner who considers removal in the context of disparate enforcement policies for large and small banks. See Heidi Mandanis Schooner, Big Bank Boards: The Case for Heightened Administrative Enforcement, 68 Ala. L. Rev. 1011, 1013, 1024–27 (2017).
  13. The power is similarly neglected by corporate governance scholars and unknown to the voluminous administrative law literature focused on the President’s power to remove independent agency heads. See, e.g., Cass R. Sunstein & Adrian Vermeule, Presidential Review: The President’s Statutory Authority over Independent Agencies, 109 Geo. L.J. 637 (2021); Ganesh Sitaraman, The Political Economy of the Removal Power, 134 Harv. L. Rev. 352, 354 (2020); Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L.J. 1836, 1880–81 (2015); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772 (2013); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 110 (1994).
  14. See, e.g., Letter from Elizabeth Warren, Ranking Member, Senate Subcomm. on Fin. Inst. & Consumer Prot., to Janet Yellen, Chair, Fed. Rsrv. Bd. of Governors (June 19, 2017) [hereinafter Letter from Elizabeth Warren].
  15. See Lev Menand, Why Supervise Banks? The Foundations of the American Monetary Settlement, 74 Vand. L. Rev. 951, 958, 1004 (2021).
  16. Bank supervision has been the subject of a surge of recent scholarly attention. See, e.g., id.; Daniel K. Tarullo, Bank Supervision and Administrative Law, Colum. Bus. L. Rev. (forthcoming) (unpublished manuscript) (on file with authors), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3743404 [https://perma.cc/ZY2P-3EXR]; see also Julie Andersen Hill, Bank Supervision: A Legal Scholarship Review (forthcoming) (U. Ala. Legal Stud., Research Paper No. 2627472), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3777580 [https://perma.cc/5752-7XHC]; Event Overview Bank Supervision: Past, Present, and Future, Fed. Rsrv. Bd. of Governors, Wharton Sch. & Harv. L. Sch. (Dec. 11, 2020), https://events.stlouisfed.org/event/67aec69c-628d-459d-8366-466979e3f8af/summary; Lev Menand, Too Big to Supervise: The Rise of Financial Conglomerates and the Decline of Discretionary Oversight in Banking, 103 Cornell L. Rev. 1527 (2018); Julie Andersen Hill, When Bank Examiners Get It Wrong: Financial Institution Appeals of Material Supervisory Determinations, 92 Wash. U. L. Rev. 1101, 1105 (2015). This growth is due in part to an active debate inside and outside the government over supervision’s legitimacy as a mode of administrative governance. See Jeremy Kress, Notice & Comment, The War on Bank Supervision, Yale J. Regul. (Dec. 18, 2020); Peter Conti-Brown & Nicholas R. Parrillo, Supervision, Stress Tests, and the Administrative Procedure Act (unpublished manuscript) (on file with authors); Randal Quarles, Vice Chair, Bd. of Governors of the Fed. Rsrv. Sys., Remarks at the “Law and Macroeconomics” Conference at Georgetown University Law Center: Law and Macroeconomics: The Global Evolution of Macroprudential Regulation 12 (Sept. 27, 2019). Part I of this Article introduces removal law to the supervision literature and adds to the debate by recovering a portion of supervision’s legal foundations. It reveals, among other things, that removal law treats banks as public franchises, complicating contemporary efforts by critics of bank supervision to characterize banks as purely private enterprises.
  17. See infra Section II.B.
  18. See Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. No. 101-73, 103 Stat. 183, § 904 (codified as amended at 12 U.S.C. § 1818).
  19. The Fed is not the only bank regulator with the power to remove bank employees and affiliates. Little is currently known about how the Office of the Comptroller of the Currency (“OCC”) and the Federal Deposit Insurance Corporation (“FDIC”) use their parallel power—whom they remove and for what conduct. Given the breadth of their supervisory jurisdictions, their practices are worthy of future study.
  20. These results align with qualitative accounts of the Fed’s supervisory rollback in the late 1990s and early 2000s. See, e.g., Menand, supra note 16, at 1541, 1574. They also provide empirical evidence for concerns about the government’s enforcement posture toward senior corporate executives. See, e.g., Coffee, supra note 1, at 2.
  21. We use Dan Tarullo’s term “regulatory rules” to describe strictures promulgated through notice-and-comment in order to differentiate them from “regulation,” which we use to refer to all manner of government oversight. See Tarullo, supra note 16.
  22. See infra Sections III.A–B; see also Jonathan R. Macey & Maureen O’Hara, The Corporate Governance of Banks, 9 Fed. Rsrv. Bank N.Y. Econ. Pol’y Rev. 91, 97–99 (2003) (observing that banks have “special corporate governance problems” that “weaken the case for making shareholders the exclusive beneficiaries of fiduciary duties”); Lucian A. Bebchuk & Holger Spamann, Regulating Bankers’ Pay, 98 Geo. L.J. 247, 255–61 (2010) (observing the same problem and detailing how features of modern banking organizations heightened the basic moral hazard problems); Steven L. Schwarcz, Misalignment: Corporate Risk-Taking and Public Duty, 92 Notre Dame L. Rev. 1, 4 (2016) (describing the “misalignment” between shareholders’ interests and the public’s interest in systemically important firms); John C. Coffee, Jr., Systemic Risk After Dodd-Frank: Contingent Capital and the Need for Regulatory Strategies Beyond Oversight, 111 Colum. L. Rev. 795, 807 (2011) (noting that “the more ‘shareholder friendly’ the firm’s corporate governance system, the less attention is likely to be paid to externalities, and the greater the exposure to volatility and systemic risk”). See generally Dan Awrey & Kathryn Judge, Why Financial Regulation Keeps Falling Short, 61 B.C. L. Rev. 2295, 2299–300 (2020) (summarizing the literature on “why financial regulation so often falls short” and contributing additional explanations).
  23. For examples of this emerging view, see Schwarcz, supra note 22, at 23–44 (arguing that “managers should have a public governance duty not to engage their firms in excessive risk-taking that leads to [systemic] externalities”); Macey & O’Hara, supra note 22, at 92 (contending that “directors and officers of banks should be charged with a heightened duty to ensure the safety and soundness of these enterprises[, which] . . . should not run exclusively to shareholders”); Coffee, supra note 22, at 834–35 (proposing a contingent capital mechanism that would, in part, serve the function of giving creditors’ voting powers once the bank is in the “vicinity of insolvency”); John Armour & Jeffrey N. Gordon, Systemic Harms and Shareholder Value, 6 J. Legal Analysis 35, 67–70 (2014) (arguing that Caremark liability for oversight failure should be “applied in wider circumstances and to a higher standard” in banks and other systemically important financial firms); Saule T. Omarova, Bank Governance and Systemic Stability: The “Golden Share” Approach, 68 Ala. L. Rev. 1029, 1032, 1043–51 (2017) (arguing for a “golden share” regime that would “giv[e] the federal government a seat on the board of each systemically important banking organization”); Saule T. Omarova, Bankers, Bureaucrats, and Guardians: Toward Tripartism in Financial Services Regulation, 37 J. Corp. L. 621, 658–69 (2012) [hereinafter Omarova, Bankers, Bureaucrats, and Guardians] (proposing the creation of a Public Interest Council that would function to “represent the public interest in preserving financial stability and minimizing systemic risk”); Ross Levine, The Governance of Financial Regulation: Reform Lessons from the Recent Crisis, 12 Int’l Rev. Fin. 39, 41–42 (2012) (proposing a new regulatory entity “to act as the public’s sentry over financial policies and to help compel financial regulators to act in the public interest, regardless of their private interests”); see also Daniel K. Tarullo, Member, Bd. of Governors of the Fed. Rsrv. Sys., Remarks at the Association of American Law Schools Midyear Meeting: Corporate Governance and Prudential Regulation 11–17 (June 9, 2014), https://www.federalreserve.gov/newsevents/‌speech/tarullo20140609a.htm [https://perma.cc/9QMX-A32B] (proposing mechanisms to align corporate governance at banks with public objectives, including: changing the incentives of decision makers; restricting dividends under certain circumstances; reforming the institutions and processes of corporate decision making; and amending the fiduciary duties of bank boards).

Gender Differences in Law School Classroom Participation: The Key Role of Social Context

Introduction

Even though women make up roughly half of the students enrolled in law school today, they do not take up roughly half of the speaking time in law school classes. “Speak Up” and similar studies1.While these studies carry different names (including “Speak Up” and “Speak Now”), we call them Speak Up studies throughout this paper.Show More that have been conducted at several law schools (including Harvard,2.Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 561–62 (2005) (“The study results show systemic differences between female and male students’ experiences at Harvard Law School in areas ranging from classroom participation and self-confidence to grades and employment.”).Show More Yale,3.Yale L. Women, Yale Law School Faculty and Students: Speak Up about Gender: Ten Years Later 13–14(2012).Show More Stanford,4.Daniel E. Ho & Mark G. Kelman, Does Class Size Affect the Gender Gap? A Natural Experiment in Law, 43 J. Legal Stud. 291, 293 (2014).Show More the University of Chicago,5.Mallika Balachandran, Roisin Duffy-Gideon & Hannah Gelbort, Speak Now: Results of a One-Year Study of Women’s Experiences at the University of Chicago Law School, 2019 U. Chi. Legal F. 647, 647–48 (2019).Show More and the University of Pennsylvania6.Lani Guinier, Michelle Fine & Jane Balin, Becoming Gentlemen: Women, Law School, and Institutional Change 1–2 (1997).Show More) have demonstrated that women are less likely to speak in the law school classroom than are men. Why do women speak less than men? Is that effect fixed, or does it change if circumstances change? And if so, what, if anything, should be changed in the classroom?

To answer these questions, we undertook three studies to examine when and why women at an elite law school, the University of Virginia, speak in class. We found that both social and academic contexts affect women’s participation. In Study 1, we transcribed and coded recordings from 107 class sessions of required first-year law school courses taught during a single academic year. Replicating previous Speak Up studies, we found that female students speak less than male students. That gap closes, however, when professors call on students systematically and when class size is smaller. In Study 2, we surveyed four different graduating classes at four different points during their law school experiences—at orientation, after their first semester, before their second year, and shortly before graduation. We found that women report speaking less than men, but that gap appears during the first year and disappears by the end of the third year. Interestingly, we found that women and men at orientation report similar expectations about how much they will speak in class and that women near graduation report speaking at the same levels that men report speaking. In other words, gender gaps in speaking are not fixed, but dynamic. And, as we will explain, they are a function of context, such as social concerns and dislike of particular pedagogies. Finally, in Study 3, we surveyed students from the Class of 2021 specifically about the social costs of speaking in class. We found that women, more than men, report backlash for speaking in class, and this difference affects their willingness to participate in the law school classroom.

This Article is organized as follows. Part I summarizes previous studies that have been done in this field and introduces the framework of the project. Part II describes the methodology of the study and reports the results. Part III interprets the results. We conclude that gender differences in speaking are best understood as a function of social and academic context. Achieving gender parity in speaking requires reimagining the context of the classroom, not “fixing women.”

I. Previous Studies and Project Framework

We began our collaboration because of questions raised by two law students on our team: Why did it seem that their female classmates—highly accomplished and competent women—were less likely to speak in class than male students? To address this question, we first survey the existing literature in the field.

A. Prior Literature: Women May Speak Less, Depending on Context

Social scientists have documented that women are less likely to speak up in historically male-dominated spaces. For example, at academic conferences, female scholars are less likely to speak than male scholars, and when they do speak, they speak for shorter amounts of time.7.See, e.g.,Julia Schroeder et al., Fewer Invited Talks by Women in Evolutionary Biology Symposia, 26 J. Evolutionary Biology 2063, 2068 (2013) (finding that female scholars were more likely to decline invitations to a major biology conference); Lynda R. Wiest et al., Researcher Study Thyself: AERA Participants’ Speaking Times and Turns by Gender, 39 Equity & Excellence in Educ. 313, 319 (2006) (finding that when women do speak, they speak for less time than their male counterparts).Show More Female Supreme Court advocates speak less than their male counterparts.8.Dana Patton & Joseph L. Smith, Lawyer, Interrupted: Gender Bias in Oral Arguments at the US Supreme Court, 5 J.L. & Courts 337, 352 (2017).Show More A 2017 New York State Bar Association report found that women attorneys are less likely to have speaking roles “at every level and in every type of court: upstate and downstate, federal and state, trial and appellate, criminal and civil, ex parte applications and multi-party matters.”9.Debra Cassens Weiss, Only 25 percent of lead counsel roles in New York courts are held by women, study finds, ABA (Aug. 7, 2017, 7:00 AM), https://www.abajournal.com/‌news/article/only_25_percent_of_lead_counsel_roles_in_new_york_courts_are_held_by_women. [https://perma.cc/9N7N-DPN2].Show More

Just as social scientists have found that women speak less in male-dominated spaces, researchers have found that women speak less in the law school classroom. One of the earliest studies to investigate how gender affects the law school classroom documented the experiences of twenty women in the Yale Law Class of 1987, based on the premise that “men and women experience law school differently.”10 10.Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 Stan. L. Rev. 1299, 1300 (1988).Show More Soon thereafter, Professor Lani Guinier and her colleagues at the University of Pennsylvania published a groundbreaking book called Becoming Gentlemen. They found that women were much less likely to participate in classes that use the Socratic Method.11 11.Guinier et al., supra note 6, at 13–14.Show More Women also performed less well academically than did their male counterparts, despite entering law school with similar entry-level test scores.12 12.Id. at 8.Show More

More recently, law students have undertaken their own investigations of women’s experiences in law school in a series of reports known as Speak Up studies. The first of these was published in 2005 by Adam Neufeld, then a student at Harvard Law School, finding that women were less likely than men to speak in class.13 13.Neufeld, supranote 2, at 531. These results seem to have held over time. In 2013, The Harvard Crimson reported:Among the top students in their graduating classes, men and women entering Harvard Law School earn similar undergraduate grades and LSAT scores. But as soon as students step into Wasserstein Hall, a dramatic gender disparity emerges. Indicators suggest that female students participate less and perform worse than their male counterparts over the course of their three years at the Law School.Dev A. Patel, In HLS Classes, Women Fall Behind,Harv. Crimson (May 8, 2013), https://www.thecrimson.com/article/2013/5/8/law-school-gender-classroom/. [https://perma.cc/4UUJ-9DPV].Show More Similarly, in 2012, Yale Law Women, studying the experience of female law students at Yale, found that “[p]articipation by women students continues to lag behind their men colleagues,” and are likely to experience “feelings of isolation and alienation.”14 14.Yale L. Women, supra note 3, at 3, 13–14.Show More Similar investigations at other elite law schools show similar results.15 15.See, e.g.,Ho & Kelman, supranote 4, at 293; Balachandran et al., supra note 5, at 663, 680.Show More

While popular culture suggests that women speak less than men because they lack confidence,16 16.See, e.g., Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead 8 (2013); Katty Kay & Claire Shipman, The Confidence Code: The Science and Art of Self-Assurance—What Women Should Know xviii (2014).Show More we believe that gender differences are best understood as a function of social context, not inherent gender differences. Sometimes, women behave differently than men because social norms constrain their freedom to participate.

Numerous studies have shown that, in some contexts, women pay a heavy price for speaking up. For example, female CEOs who speak for disproportionately longer amounts of time than other participants in meetings are rated as significantly less competent and less suitable for leadership than male CEOs who speak for the same amount of time.17 17.Victoria L. Brescoll, Who Takes the Floor and Why: Gender, Power and Volubility in Organizations, 56 Admin. Sci. Q. 622, 636 (2011).Show More In studies focused on negotiations, assertive, self-advocating women are shown to suffer social backlash because participants see them as socially unskilled and unlikeable. In contrast, male negotiators, exhibiting identical behaviors, face no negative consequences.18 18.Emily Amanatullah & Catherine Tinsley, Punishing Female Negotiators for Asserting Too Much…Or Not Enough: Exploring Why Advocacy Moderates Backlash Against Assertive Female Negotiators, 120 Org. Behav. & Hum. Decision Processes 110, 119 (2013).Show More

When social costs are eliminated, however, female behavior can change. For example, a different study assigned female negotiators the task of negotiating on behalf of another person, positing that negotiation on behalf of others is socially acceptable for women and does not carry the same threat of backlash. As predicted, the study found that “[w]hen these social costs are eliminated . . . women exhibit the same assertive behaviors and successful outcomes as men.”19 19.Emily Amanatullah & Michael Morris, Negotiating Gender Roles: Gender Differences in Assertive Negotiating Are Mediated by Women’s Fear of Backlash and Attenuated When Negotiating on Behalf of Others, 98 J. Personality & Soc. Psych. 256, 263 (2010).Show More We hypothesize that law school creates a particular context in which some women may not want to speak up and that this behavior can change if the context changes.

B. Understanding the Specific Context of the Law School Classroom

Many students’ law school experiences are affected by the signature pedagogy of legal education—the Socratic Method. While not every law school professor in the United States uses the Socratic Method, many do, particularly in required first-year courses. During this time, students are making sense of what it means to be a law student and learning how to behave in and out of a law school classroom.

The Socratic Method is a form of discussion meant to stimulate critical thinking by teaching students to answer (and ask) questions. It typically involves the professor asking questions that in theory help students discover better answers by systematically identifying and eliminating those that lead to contradictions. The goal is to teach students to “think like a lawyer” by being able to see all sides of an argument.

The Socratic Method can feel adversarial. Often, professors challenge students’ points of view to force them to justify their answer and to show how a rule that generates a just outcome in one situation may produce a problematic result in different circumstances. Professors also operate on a spectrum of predictability when using the Socratic Method, ranging from calling on students with no notice to providing advance notice that a student will be on call. Professors also vary in tone and in whether they will permit a student to decline to answer.

The Socratic Method is also inherently public, exposing students to the judgment of their peers. For many students of any gender, the experience can provoke intense feelings of anxiety.20 20.Cf. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 2 (2007).Show More Some students find themselves the topic of after-class discussion because of their answers during class. The studies described above conducted at Harvard, Yale, and the University of Pennsylvania specifically identify the Socratic Method as an important cause of gender differences in law students’ experiences.21 21.Neufeld, supra note 2, at 538, 562 (finding that the Socratic method “may amplify the effect of differences in confidence levels,” but also finding that the “combative” nature of this method did not alone cause gender differences); Yale L. Women, supra note 3, at 14; Guinier et al., supra note 6, at 15.Show More

For purposes of this paper, we define “Socratic” or “cold call” to mean any non-volunteered answer by a student to a professor’s question.22 22.We realize that students might experience a question for which they have advance notice or which is offered with a friendly tone (sometimes called a “warm call”) differently than a hostile question asked with no advance notice (a “cold call”). We intend to explore these effects in a subsequent paper. For purposes of this paper, we are focusing on the difference between voluntary and professor-controlled participation, and therefore use ‘cold call’ to include both warm and cold calls.Show More We hypothesize that gendered expectations in the classroom exacerbate the stress of the Socratic Method for women. Female law students must simultaneously exhibit the confidence and analytic competence the professor demands while also navigating the tricky gender norm of remaining likeable. We also hypothesize, however, that when a professor calls on students systematically, the practice can operate as an equalizing mechanism that reduces gender disparity in classroom participation.

C. Our Project Design

Our work builds in many ways on the Speak Up studies, which are important research efforts led by law students showing that women participate in class less than their male counterparts. As we designed our investigation, we sought to extend and deepen the work of the Speak Up studies.

In a typical Speak Up study, students observe law school classes in real time to document professor and student interactions. They attend a class to observe who is speaking and for how long. However, the presence of an observer may affect classroom participation, and coding in real time limits the amount of data that can be gathered.

The first part of our research (Study 1) also involved coding classes, but we obtained and transcribed archival audio recordings. Working from recordings and transcripts eliminated the risk that the researchers’ presence in the classroom could affect students’ and professors’ behavior. It also enabled us to code every utterance in more detail. For example, we were able to obtain information about whether a students’ answer was ‘on point’ or a digression and whether an answer projected confidence as indicated by a lack of verbal fillers. We also limited our sample to required first-year courses. For these courses, law school administrators assign students and professors to sections. Thus, we avoided any selection bias that might result from the freedom students have in elective courses to choose their professors and their classmates. Study 1 allowed us to document gender gaps and begin exploring the influence of context.

Prior studies have also relied on surveys in which students self-report their experiences. Because the surveys were typically not repeated, however, their results captured a moment in time and cannot provide insight into whether participants’ responses change over time. Speak Up student investigators graduate and move on, making it difficult for them to follow student participants throughout their entire law school experience. Also, many of the Speak Up studies frame survey questions that make their focus on gender explicit, thus potentially skewing the results.

Keeping these challenges in mind, in the second part of our project (Study 2), we conducted a longitudinal study in which students provided information about their law school experiences. This study followed four different graduating classes (including anyone in the class willing to participate), checking in with them at four significant points during their law school experiences—on the first day of orientation, after their first semester, before their second year, and shortly before graduation. We collected data from 928 law students, representing, on average, 75% of the students in each cohort. While a typical Speak Up study surveys students once, Study 2 followed four cohorts throughout their law school careers. This study design allowed us to examine whether and how gender gaps in speaking change across time. We also took care not to reveal to participants that gender was a focus of the research. Instead, we told them that the study sought their insights about the student experience at the University of Virginia School of Law.

The third part of our project (Study 3) asked third-year students in the class of 2021 more directly than we did in Study 2 about the social costs of speaking in class. These students began their law school careers with normal in-person classes. But the global COVID-19 pandemic forced them to pivot to entirely online classes midway through their second year. For their third year, they could choose between classes that took place entirely online or classes that included students participating both in person and online. Based on our observations in Study 2, we expected that we would see no gender difference among these students because they were at the end of their third years, but we wondered if the pandemic would change the context in ways that might reintroduce gender gaps. We framed this survey as an inquiry into how students’ experiences during the pandemic compared to their experiences in classes taken before the pandemic—again not signaling that gender was a focus of the project. Most importantly, this survey allowed us to examine specifically whether gender gaps in speaking are related to students’ social experiences, including potential social backlash for speaking.

We made the following predictions: Women would speak less, but this gender difference would be moderated by social context. As the context changes, women’s participation would also change. To characterize social context, we explored the Socratic Method and student attitudes toward the Socratic Method, class size, and student concerns about and experiences of social backlash. We also examined timing and considered whether gender differences in speaking are fixed or dynamic across time. All materials and data can be found at the OSF data repository.23 23.On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, OSF (last updated Jan. 5, 2022, 9:45 AM), https://osf.io/xat7p/?view_only=33dd7c17ade5437cbaf2a86d0f11752b. [https://perma.cc/78DM-GZ6P].Show More

II. Study Methodology and Results: Women and Men Have Different Experiences in Law School

In this Part, we describe the three studies we undertook to investigate women’s experiences in the law school classroom. Additional details about our study design, methodology, and results are reported in a more technical social science journal article reporting on our work.24 24.Sophie Trawalter, Molly Shadel & J.H. Verkerke, On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, 2(on file with authors at https://osf.io/937cg/?view_only=33dd7c17ade5437cbaf2a86d0f11752b). [https://perma.cc/2VXX-HDN3].Show More In Part III, we discuss the implications of our findings for law students and teachers.

Study 1: Archival Study

In Study 1, we documented students’ speaking in law school classrooms. We predicted that, as in previous studies, women would speak less than men. In addition, we explored whether women were more uncertain and nervous when speaking.

We obtained permission to transcribe and code audio recordings of 107 class sessions of required first-year courses from a single academic year. Of these, 74% were taught by male faculty and 90% were taught by white faculty. Notably, 86% of the classes included some version of the Socratic Method. Many of these classes also allowed students to volunteer comments. Classes were transcribed by at least one research assistant,25 25.Id. at 11 n.1. Hereinafter abbreviated as “RA.” Five classes were transcribed by five RAs, to train RAs on transcription, and one class was inadvertently transcribed twice. All other classes were transcribed by one RA.Show More and each utterance in each class was coded by at least two RAs, a primary coder and a secondary coder.26 26.Id. at 11 n.2. “Five classes were coded by five RAs, to train RAs on coding, and one class was inadvertently coded by only one RA.”Show More The resulting dataset included 14,403 distinct utterances (8,402 from faculty and 6,001 from students) across 107 classes.

RAs coded the transcripts on various dimensions including: (1) whether each utterance was by the professor or a student, (2) whether the utterance was made by a man or woman, (3) whether the utterance was an interruption, (4) whether the utterance was qualified, (5) whether the utterance was “on point,” (6) and the nature of the utterance. Inter-rater agreement was quite high across all categories.27 27.Id. at 12.Show More

Our analytic approach was as follows: first, we ran class-level analyses to document gaps in speaking and the role of context on speaking. On average, the cohorts included 45% women and 55% men.28 28.See id. at 44. The Law School website published this enrollment information and did not report any students identifying as gender non-binary. In Studies 2 and 3, students were able to identify as gender non-binary, though no study participants selected that option.Show More Men spoke disproportionally more often than women (62% men to 38% women).

Next, we examined speaking length. We found, again, that women spoke less often than men. On average, male students who talked in class talked for 302 seconds whereas female students who talked in class talked for only 194 seconds. Taken together, these findings replicate the results of previous work, including several Speak Up studies.

Because we have data at the utterance level, we also examined additional characteristics of student utterances. RAs coded whether students were “on point” (exhibiting a correct understanding of the material) when they spoke. RAs also coded two additional behaviors: verbal fillers and qualifiers. Fillers are utterances like “um,” “uh,” and “er.” People use fillers when they need more time to think, when they are unsure about what to say, and often, when they are nervous about speaking.29 29.See Herbert H. Clark & Jean E. Fox Tree, Using Uh and Um in Spontaneous Speaking, 84 Cognition 73, 90–91 (2002).Show More Qualifiers are expressions of uncertainty (“I think the author means…” “perhaps the case reveals”). They weaken the judgment or statement made, often without adding information (“Their position is kind of strong”). People use qualifiers to convey tentativeness and often use qualifiers when anxious.30 30.See Mansur Lalljee, & Mark Cook, Anxiety and Ritualized Speech, 66 Brit. J. Psych. 299, 300 (1975).Show More Students’ use of verbal fillers and qualifiers offers a window into whether they were uncertain and nervous about speaking. Interestingly, we found that by these metrics, female and male students sound quite similar. We found no gender differences for qualified utterances, verbal fillers, or utterances that were on point.

Next, we considered the role of context in shaping gender gaps in classroom participation. Specifically, we considered whether utterances were in response to a cold call or volunteered. For volunteered answers, we observed a large and significant gender difference with men volunteering disproportionately more than women. In Figure 1 below, the distribution of men’s participation reveals a strong central tendency for men to volunteer more often than women.

Figure 1: Proportion of Volunteered Answers from Men

For cold calls, we observed a radically different pattern. Men also answered disproportionately more cold calls, but this difference was not statistically significant. The distribution of men’s participation in Figure 2 shows why. Unlike the distribution of volunteered answers, the distribution of answers to cold calls had three peaks. In some classes, men answered all the cold calls, and in others, women answered all the cold calls. This is likely because these professors called on few students in each class session. In other classes, both men and women spoke, but cold calling disrupted the central tendency we saw in volunteered answers. This practice changed the context by creating more variance in speaking opportunities. Thus, it appears that a systematic plan for calling on students can increase gender parity in speaking turns by decreasing opportunities for men to volunteer.

Figure 2: Proportion of Cold Calls Answered by Men

Next, we examined how women (vs. men) experience cold calls (vs. volunteering). Specifically, we examined the number of fillers students used, whether they used qualifiers, and whether their utterance was “on point.” Regardless of gender, students answering a cold call (vs. volunteering) used more fillers and qualifiers, suggesting they felt less confident about their answers to a cold call. Results also revealed that students were more likely to be on point in response to a cold call (vs. volunteering), and again this effect was not qualified by gender.

Considering class size, we found gender differences in the tendency to speak in smaller and larger classes. Women speak more often in small classes relative to larger classes, and men speak more often in larger classes relative to small classes.31 31.See Trawalter, Shadel & Verkerke, supra note 24, at 15 n.4. We define small classes as those containing roughly 30 students, medium classes as those containing roughly 60 students, and large classes as those containing roughly 90 students.Show More We observe gender parity in the proportion of utterances in small classes, while men speak more than expected in medium-sized and larger classes.32 32.For a similar finding at Stanford Law School, see Ho & Kelman, supra note 4, at 310 (documenting the impact class size can have on GPA across genders).Show More (See Figure 3.)

Figure 3: Utterances by Student Gender and Class Size

Study 2: Longitudinal Study

In Study 2, instead of inferring student experiences from their classroom behavior, we asked students directly about their attitudes towards speaking in class and the Socratic Method. We predicted that women would report speaking less in class than men. We also explored how speaking is related to students’ experience with the Socratic Method and with the social context of classrooms. We hypothesized that professors’ and peers’ judgments would influence students’ decisions about speaking in class.

We collected survey data from 928 law students across four graduating classes representing, on average, 75% of the students in each cohort. Students were invited to take our survey at four time points: at orientation (Time 1), after their first semester (Time 2), before their second year (Time 3), and shortly before graduating (Time 4).33 33.See Trawalter, Shadel & Verkerke, supra note 24, at 38 for descriptive statistics at each time point and attrition checks.Show More

Participants answered closed-ended questions, including questions about speaking in class and the Socratic Method. They also answered open-ended questions about their classroom experience and law school more generally. Open-ended questions were analyzed using text analysis software and human coding.

We examined speaking in class, reasons for not speaking in class, impressions of the Socratic Method, and sense of belonging. Students’ answers to the open-ended questions were hand-coded for mentions of liking or disliking the Socratic Method, seminars, small classes, large classes, experiential/clinical/practical skills classes, lectures, and cold calls. The responses were also coded for mentions of particular issues that appeared frequently across responses, including not having a job, the single-exam grading system, the forced curve, reading load, the cost of law school, and various issues related to the culture of the school.

Results revealed that, on average, women reported speaking less than did men. This result replicates the findings of previous studies at other institutions. Importantly, however, these gender differences varied across time. Our analyses showed that, at Time 1, during orientation, women anticipated speaking just as much as men. And at Time 4, when they neared graduation, they reported speaking up as much as men. But, at Times 2 and 3 (after the first and second semesters respectively of students’ first year), women reported speaking less than did men.

Figure 4: Self-Reported Speaking in Class by Gender anxd Time

Notably, male and female students reported different reasons for not speaking. Compared with women, men were more likely to report a lack of “interest in the subject matter under discussion” as their reason for not speaking. In contrast, women were more likely to report concerns about “classmates’ responses to your statements,” concerns “about how classmates will judge you,” “classroom size,” and “personality of the professor (e.g. supportive vs. challenging).”

We also created an index to measure students’ perceptions of the Socratic Method. Compared with men, women’s perceptions were less positive at all time points. (See Figure 5.) We observed that students’ feelings toward the Socratic Method predicted speaking in class. Students who disliked the Socratic Method more spoke less in class.

Figure 5: Feelings Toward the Socratic Method by Gender and Time

For sense of belonging, we observed a similar pattern. Women and men reported comparable levels of belonging at Time 1. At Time 2, men reported marginally greater belonging, and at Time 3, significantly greater belonging. But by Time 4, that gender gap disappeared; women and men again reported comparable levels of belonging. (See Figure 6.) Moreover, students who reported greater belonging also reported more speaking in class.

Figure 6: Sense of Belonging by Gender and Time

Textual analyses of students’ responses to open-ended survey questions using Linguistic Inquiry and Word Count (“LIWC”) revealed that, on average, women’s statements revealed more anxiety than men’s responses. In addition, women were more likely to mention the Socratic Method and cold calls. They were also more likely to mention disliking the single exam system and experiencing a negative student culture. Mentions of these classroom conditions were correlated with anxious language in students’ open-ended comments. Although these are comparatively small correlations, it is notable that our open-ended questions did not ask about the Socratic Method or gender. And these patterns also mirror results from the closed-ended data analyses.

Students’ writing also revealed what kind of learning environment they prefer. Male students mentioned liking the Socratic Method more than they mentioned liking small classes or experiential classes/seminars. In contrast, female students mentioned liking seminars more than they mentioned liking the Socratic Method.

Study 3: Survey Study

As we wrote up the results of Studies 1 and 2, the global pandemic of 2020 began, dramatically altering the classroom experience for all law students. During the 2020-2021 school year, some UVA students attended class online, while others participated in-person, masked, and physically distanced. This was a time of intense isolation for many students.

In Study 3, we asked third-year students from the class of 2021 about their classroom experiences in the context of the pandemic. We also asked explicitly about the social costs of speaking in class (which we had not asked directly during Study 2). We surveyed the class of 2021 only once, during the final month of their third year of law school. We framed this final study as an inquiry about students’ experiences during the pandemic, again not signaling that gender differences were a focus of the project.

We collected survey data from 164 third-year law students from the class of 2021, which represents 51% of the class. Of these participants, 54% were female, 77% white, with an average age of 26.4. This sample, unlike our Study 2 sample, was majority female.

The timing of this study corresponds to Time 4 of Study 2—surveying third-year students near the end of their time in law school. The pandemic disproportionally affected women in many contexts,34 34.See Emily Lim, Covid-19 Brief: Impact on Women and Girls, U.S. Global Leadership Coalition, (last updated Aug. 30, 2021), https://www.usglc.org/coronavirus/women-and-girls/. [https://perma.cc/2MGQ-LLB6].Show More leading us to wonder whether it also might make it more difficult to participate in class. But our data indicate that, consistent with Study 2, men and women reported speaking in equal measures during their third year, even in the midst of a pandemic. Interestingly, men reported speaking slightly more pre‑pandemic; in other words, participation by men fell during the pandemic. (See Figure 7.)

Figure 7: Speaking by Gender and Time

We also inquired about students’ perceptions of the Socratic Method. Replicating Study 2, women reported disliking the Socratic Method significantly more than did men. Also replicating Study 2, perceptions of the Socratic Method predicted speaking pre-pandemic, such that those who reported disliking the Socratic Method more reported speaking less.

This relationship, however, did not hold during the pandemic. Attitudes towards the Socratic Method predicted gender differences in speaking pre‑pandemic but not during the pandemic. These findings suggest yet another way context appears to shape students’ experiences. Here, we find that the pandemic context—likely due to features of the online environment—changed students’ relationship with the Socratic Method and reduced its gendered impacts. We suspect that professors were less able to use traditional Socratic questioning during the pandemic. Some upper-level classes shifted to recorded lectures and an asynchronous teaching mode, and many adopted a gentler version of asking and answering questions.

Our primary goal in Study 3, however, was to investigate the potential social backlash associated with speaking in class. Women and men reported similar levels of backlash35 35.See Trawalter, Shadel & Verkerke, supra note 24, at 29–30. We did not define backlash in our survey instrument. Based on open-ended responses in both Studies 2 and 3, students conceive of backlash as a kind of social penalty, including unkind comments or loss of social status.Show More against students who talk in class. Women reported more backlash against women than men, and men reported marginally more backlash against men than women. Notably, women reported more backlash against women than men reported against men. In other words, consistent with predictions, the highest levels of backlash were reported by women and against women.

Figure 8: Self-Reported Backlash for Speaking in Class by Gender

III. General Discussion

Just as the “Speak Up” studies found, we too observe that women speak less than men in the law school classroom. However, this effect is not fixed, but dynamic. Based on our data, we conclude the following.

In general, men speak more than women in law school classes. Women spoke less than men in the classes included in Study 1. Men made up 55% of the cohort but were speaking 62% of the time, while women spoke 38% of the time. Men spoke on average for 302 seconds, while women spoke for 194 seconds. These results closely mirror previous Speak Up studies.

Gender gaps in participation are not inevitable. It is significant that in Study 2, observing students at four different points during their legal education, men and women look largely identical at orientation (Time 1). During the orientation survey, in all four cohorts, men and women report equal levels of belonging and are equally optimistic about how much they will be willing to speak in class. Similarly, just before graduation (Time 4), women and men report speaking in class to the same extent and report equal levels of belonging. The gaps in both participation and belonging appear at Times 2 and 3, during the first year of law school. While these differences are self-reported, they mirror the gaps in participation we document in Study 1.

Gender gaps in participation are more likely to appear when students volunteer or when classes are large. A systematic plan for calling on students or recognizing volunteers can increase gender parity, as can smaller class size. We found in Study 1 that men speak more than women, but this effect was driven largely by volunteered answers, not cold calls. In fact, in our data, a systematic plan for participation seems to close gender gaps by preventing volunteering students from dominating class discussion. We also find that women speak less than men in large classes, but not in smaller classes. When answering cold calls or when speaking in smaller classes, women speak just as much as men. In other words, gender gaps in speaking are dynamic, not fixed. They are not inherent to gender but responsive to context.

Social context drives women’s willingness to speak. Our data point to the social context—specifically the social costs of speaking—as the principal explanation for why women speak less under some conditions but not others. In Study 2, at Times 2 and 3 (after the first and second semesters of law school), women report less willingness to speak in class than their male counterparts. They are more likely to report concerns about backlash (“concern about how classmates will judge you” and “classmates’ responses to your statements”) as reasons for not speaking. (In contrast, men were more likely to report a lack of “interest in the subject matter under discussion” as the reason for not speaking.) When considering whether to volunteer an answer, women are weighing how what they say might be perceived, and what it means to have taken up class time with their thoughts. In Study 3, when we explicitly asked about social backlash, both women and men reported that students who speak in class experience backlash. Notably, the highest levels of backlash were reported by women and against women. Students who report backlash against women were also less likely to speak in class.

Women’s responses to open-ended questions in Study 2 also reveal more anxiety than men’s. They are more likely to mention the Socratic Method, cold calls, the single exam system, and a negative culture as reasons for anxiety around speaking. Women also mention liking seminars more than liking the Socratic Method.

The Socratic Method closes gender gaps but is disliked more by women than by men. Study 1 results suggest the systematic cold calling of the Socratic Method can promote gender parity in speaking. But Study 2 data suggest that women do not like the Socratic Method and like it significantly less than men do, across all time points. We think this may be because the Socratic Method triggers greater perceived costs for women. Our data suggest that negative feelings toward the Socratic Method are tied to social backlash and specifically to backlash against women. Students who reported disliking the Socratic Method were also more likely to report that students who speak in class are subject to backlash, and women reported more negative feelings and more backlash, on average.

Social context can be changed. We believe it is significant that, as they approach graduation (Time 4), the women in both Studies 2 and 3 are just as likely as the men to report that they speak in class. They continue to report anxiety about the social and academic context (as evidenced by how they describe the culture and their experiences of the Socratic Method). But they are just as likely as the men to report that they speak in class, despite these negative responses.

Women and men are equally capable of answering questions in law school. In Study 1, in which we analyzed audio recordings of class sessions, we observe similar performance by men and women. Both men and women in these recordings seem to respond adeptly to the Socratic Method. Their answers are equally on point. Both men and women are more likely to use verbal fillers and qualify their answers when answering a Socratic question than when they volunteer. These findings suggest that women and men perform equally well in response to Socratic questioning. They suggest that men and women experience cold calls similarly, at least in terms of their ability to perform—they are equally anxious, and equally on point. As such, our data are not consistent with the notion that women do not speak up because they are less capable, or even less confident. When asked to speak, they appear to be as confident and on point as their male peers.

Implications for Theory. The present findings contribute to the existing literature on gender and confidence, and the so-called confidence gap.36 36.See, e.g.,Kay & Shipman, supra note 16, at xviii; Sandberg, supra note 16, at 8.Show More Many believe that women do not speak up because they are less confident than men. Our data add to a growing literature suggesting otherwise.37 37.See, e.g., Amanatullah, supranote 19, at 256; Hannah Riley Bowles, Linda Babcock & Lei Lai, Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes it Does Hurt to Ask, 103 Org. Behav. & Hum. Decision Processes 84, 84 (2007); Andreas Leibbrandt & John A. List, Do Women Avoid Salary Negotiations? Evidence from a Large-Scale Natural Field Experiment, 61 Mgmt Sci. 2016, 2016 (2015).Show More Our findings suggest gender gaps in participation in the law school classroom are a function of context: the use of the Socratic Method, classroom size, and concerns about peer evaluation and social backlash.

Implications for Practice. Law schools can help to shift the context to promote gender equity in class participation.38 38.See Sullivan, supranote 20, at 2 (discussing the anxiety fostered by the Socratic method). As we discussed supra note 11 and supra note 15, these kinds of anxiety-inducing environments can have the effect of favoring men in large classroom discussions. We offer these suggestions tentatively, as we have not designed a study to measure their effects in the classroom. However, we believe they are suggested by our results. We plan to further develop these suggestions in future work.Show More For example, our data show that systematic cold calling can close participation gaps. This system need not involve the Socratic method. For example, students could be asked to lead class discussion, make presentations, and provide feedback to other students according to a preassigned schedule.

Our results also show that, left unchecked, volunteering may produce participation gaps. Faculty can help close this gap by being mindful of whom they call on when students volunteer answers. A professor might consider declaring equal participation among all students a goal of the class so that the class is not dominated by a handful of voices. A professor could limit how often students are allowed to volunteer or place a panel of students “on call” for the week, only allowing those students to volunteer during that time period. Previous work suggests that eliminating social costs changes the behavior of women.39 39.See Amanatullah, supra note 19, at 256.Show More Consequently, we hypothesize that telling students that it is “their job” to volunteer in class during a particular week might result in greater participation by those women. This practice would also shut down opportunities for those not on call to dominate discussion.

Our survey responses also show that many students, both women and men, are made anxious by the Socratic Method. Professors can alleviate this anxiety by giving students advance notice of when they will be speaking and by approaching the colloquy with kindness. They might give students the opportunity to practice their answers by discussing a topic in small groups before sharing those ideas with the class. For discussions of sensitive topics—such as rape or racial discrimination—professors may offer students the option to listen without speaking. Or they might eschew the Socratic Method altogether.

Students improve their ability to articulate their ideas aloud the more practice they have doing so. Calling on a student only once (or twice) during a semester-long class does not offer that student an opportunity to improve and bears very little resemblance to any task the student will encounter as a practicing lawyer. Very infrequent cold calls also raise the stakes and increase the distress students experience when they believe they have not performed well. Law professors who offer students the opportunity to speak more frequently give those students an opportunity to practice and ultimately to succeed. When each student speaks more often, a single “bad” answer becomes simply one of many experiences along the road to mastery. Our data also suggest that smaller classes promote gender parity in participation. Thus, law schools that offer smaller classes will enable more voices to be heard.

Finally, professors who are mindful that students are concerned about social backlash can help lessen that burden. They can alter the social context by stating that all students are practicing the art of listening, articulating their ideas aloud, and responding professionally to one another.40 40.See, e.g., Yale L. Women, supranote 3, at 21; see also Guinier, supra note 6, at 4.Show More A professor might invite students to think of each class as a collaboration, in which they are working together to master the essential skills of thinking and speaking like a lawyer. The classroom offers an important opportunity to practice the respectful professional relationships they hope to have in the future.

Conclusion

Despite the gains women have made in the field of law, for a variety of reasons they continue to be underrepresented in leadership positions in the profession.41 41.For example, in 2017, only 19% of equity partners at law firms were women. See Marc Brodherson, Laura McGee, & Mariana Pires dos Reis, Women in Law Firms, McKinsey & Co.,3 (Oct. 2017), https://www.mckinsey.com/~/media/mckinsey /featured%20‌insights/gender%20equality/women%20in%20law%20firms/women-in-law-firms-final-103017.pdf. [https://perma.cc/737K-Y8BP].Show More Gender differences persist throughout the legal world, including on the judicial bench,42 42.Only about 1/3 of federal judges are female. See U.S. Courts, Women’s History Month, (Jan. 20, 2022), https://www.uscourts.gov/about-federal-courts/educational-resources/annual-observances/womens-history-month. [https://perma.cc/UV4L-RLUS].Show More in legal academia,43 43.Roughly 25% of tenured law school faculty are female. See Am. Bar Found., After Tenure: Post-Tenure Law Professors in the United States, 15, http://www.americanbar foundation.org/uploads/cms/documents/after_tenure_report-_final-_abf_4.1.pdf.Show More and even in the amount of time that women speak in court.44 44.Patton & Smith, supra note 8, at 337.Show More We believe that speaking differences we observe in the law school classroom may contribute to later disparities. Thus, law schools are uniquely positioned to counter these inequities.

The underrepresentation of women in the legal profession is not just an issue of fairness or equity. Lawyers in America play an influential part in government, politics, business, and society. The laws that we make, the populations that we serve, the way that we think about the law, and the way that we use the law are indelibly shaped by the lawyers themselves. Making sure that all students that graduate from law school—women and men—are armed with the experiences that they need to succeed makes it more likely that our female graduates will reach for leadership roles. But our data and the Speak Up studies reveal a systemic problem—men are dominating the conversation. This difference can have consequences for these women, both for their learning and for their willingness to speak up in the future. It also has consequences for other students in the classroom, who miss out on the benefit of hearing diverse voices, and for society at large, if these female voices are unheard in the legal profession. Our work shows how women may be affected by a context that impedes their willingness to speak in class. These effects in turn may hamper their ability to practice raising their voices and collaborating. We hope that our investigation contributes to the ongoing conversation about how law schools and faculty might respond to create a more equitable classroom.

  1. * Molly Bishop Shadel is a Professor Law, General Faculty, at the University of Virginia School of Law. Sophie Trawalter is an Associate Professor of Public Policy and Psychology at the Frank Batten School of Leadership and Public Policy at the University of Virginia. J.H. Verkerke is the T. Munford Boyd Professor of Law at the University of Virginia School of Law. We are grateful to an incredible team of research assistants for their work on the archival study, including Katrina Moberg and Danit Carrier Tal, whose perceptive questions triggered this investigation; Sedi Asem, Pete Chattrabhuti, Patrick Greco, Jonathan Guest, Hyunji Lee, and Halima Nguyen, who worked tirelessly during law school on this project; and undergraduates Derek Zeigler, Clair Jones, Danika Brackett, Katharine Friel, Nikki Kaul, Anthony K. Onuoha, and Chul (Caden) Park. We also thank Jonathan Ashley, Alexander Jakubow, and the UVA Legal Datalab for helping with our data analysis, and Barbara Spellman, John Monahan, Kimberly Robinson, Kim Forde-Mazrui, Naomi Cahn, Anne Coughlin, Kimberly Krawiec, Mitu Gulati, and participants at a UVA Law School faculty workshop for helpful conversations and feedback.
  2. While these studies carry different names (including “Speak Up” and “Speak Now”), we call them Speak Up studies throughout this paper.
  3. Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 561–62 (2005) (“The study results show systemic differences between female and male students’ experiences at Harvard Law School in areas ranging from classroom participation and self-confidence to grades and employment.”).
  4. Yale L. Women, Yale Law School Faculty and Students: Speak Up about Gender: Ten Years Later 13–14 (2012).
  5. Daniel E. Ho & Mark G. Kelman, Does Class Size Affect the Gender Gap? A Natural Experiment in Law, 43 J. Legal Stud. 291, 293 (2014).
  6. Mallika Balachandran, Roisin Duffy-Gideon & Hannah Gelbort, Speak Now: Results of a One-Year Study of Women’s Experiences at the University of Chicago Law School, 2019 U. Chi. Legal F. 647, 647–48 (2019).
  7. Lani Guinier, Michelle Fine & Jane Balin, Becoming Gentlemen: Women, Law School, and Institutional Change 1–2 (1997).
  8. See, e.g., Julia Schroeder et al., Fewer Invited Talks by Women in Evolutionary Biology Symposia, 26 J. Evolutionary Biology 2063, 2068 (2013) (finding that female scholars were more likely to decline invitations to a major biology conference); Lynda R. Wiest et al., Researcher Study Thyself: AERA Participants’ Speaking Times and Turns by Gender, 39 Equity & Excellence in Educ. 313, 319 (2006) (finding that when women do speak, they speak for less time than their male counterparts).
  9. Dana Patton & Joseph L. Smith, Lawyer, Interrupted: Gender Bias in Oral Arguments at the US Supreme Court, 5 J.L. & Courts 337, 352 (2017).
  10. Debra Cassens Weiss, Only 25 percent of lead counsel roles in New York courts are held by women, study finds, ABA (Aug. 7, 2017, 7:00 AM), https://www.abajournal.com/‌news/article/only_25_percent_of_lead_counsel_roles_in_new_york_courts_are_held_by_women. [https://perma.cc/9N7N-DPN2].
  11. Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 Stan. L. Rev
    .

    1299, 1300 (1988).

  12. Guinier et al., supra note 6, at 13–14.
  13. Id. at 8.
  14. Neufeld, supra note 2, at 531. These results seem to have held over time. In 2013, The Harvard Crimson reported:Among the top students in their graduating classes, men and women entering Harvard Law School earn similar undergraduate grades and LSAT scores. But as soon as students step into Wasserstein Hall, a dramatic gender disparity emerges. Indicators suggest that female students participate less and perform worse than their male counterparts over the course of their three years at the Law School.

    Dev A. Patel, In HLS Classes, Women Fall Behind, Harv. Crimson (May 8, 2013), https://www.thecrimson.com/article/2013/5/8/law-school-gender-classroom/. [https://perma.cc/4UUJ-9DPV].

  15. Yale L. Women, supra note 3, at 3, 13–14.
  16. See, e.g., Ho & Kelman, supra note 4, at 293; Balachandran et al., supra note 5, at 663, 680.
  17. See, e.g., Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead 8 (2013); Katty Kay & Claire Shipman, The Confidence Code: The Science and Art of Self-Assurance—What Women Should Know xviii (2014).
  18. Victoria L. Brescoll, Who Takes the Floor and Why: Gender, Power and Volubility in Organizations, 56 Admin. Sci. Q. 622, 636 (2011).
  19. Emily Amanatullah & Catherine Tinsley, Punishing Female Negotiators for Asserting Too Much…Or Not Enough: Exploring Why Advocacy Moderates Backlash Against Assertive Female Negotiators, 120 Org. Behav. & Hum. Decision Processes 110, 119 (2013).
  20. Emily Amanatullah & Michael Morris, Negotiating Gender Roles: Gender Differences in Assertive Negotiating Are Mediated by Women’s Fear of Backlash and Attenuated When Negotiating on Behalf of Others, 98 J. Personality & Soc. Psych. 256, 263 (2010).
  21. Cf. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 2 (2007).

  22. Neufeld, supra note 2, at 538, 562 (finding that the Socratic method “may amplify the effect of differences in confidence levels,” but also finding that the “combative” nature of this method did not alone cause gender differences); Yale L. Women, supra note 3, at 14; Guinier et al., supra note 6, at 15.
  23. We realize that students might experience a question for which they have advance notice or which is offered with a friendly tone (sometimes called a “warm call”) differently than a hostile question asked with no advance notice (a “cold call”). We intend to explore these effects in a subsequent paper. For purposes of this paper, we are focusing on the difference between voluntary and professor-controlled participation, and therefore use ‘cold call’ to include both warm and cold calls.
  24. On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, OSF (last updated Jan. 5, 2022, 9:45 AM), https://osf.io/xat7p/?view_only=33dd7c17ade5437cbaf2a86d0f11752b. [https://perma.cc/78DM-GZ6P].
  25. Sophie Trawalter, Molly Shadel & J.H. Verkerke, On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, 2 (on file with authors at https://osf.io/937cg/?view_only=33dd7c17ade5437cbaf2a86d0f11752b). [https://perma.cc/2VXX-HDN3].
  26. Id. at 11 n.1. Hereinafter abbreviated as “RA.” Five classes were transcribed by five RAs, to train RAs on transcription, and one class was inadvertently transcribed twice. All other classes were transcribed by one RA.
  27. Id. at 11 n.2. “Five classes were coded by five RAs, to train RAs on coding, and one class was inadvertently coded by only one RA.”
  28. Id. at 12.
  29. See id. at 44. The Law School website published this enrollment information and did not report any students identifying as gender non-binary. In Studies 2 and 3, students were able to identify as gender non-binary, though no study participants selected that option.
  30. See Herbert H. Clark & Jean E. Fox Tree, Using Uh and Um in Spontaneous Speaking, 84 Cognition 73, 90–91 (2002).
  31. See Mansur Lalljee, & Mark Cook, Anxiety and Ritualized Speech, 66 Brit. J. Psych. 299, 300 (1975).
  32. See Trawalter, Shadel & Verkerke, supra note 24, at 15 n.4. We define small classes as those containing roughly 30 students, medium classes as those containing roughly 60 students, and large classes as those containing roughly 90 students.
  33. For a similar finding at Stanford Law School, see Ho & Kelman, supra note 4, at 310 (documenting the impact class size can have on GPA across genders).
  34. See Trawalter, Shadel & Verkerke, supra note 24, at 38 for descriptive statistics at each time point and attrition checks.
  35. See Emily Lim, Covid-19 Brief: Impact on Women and Girls, U.S. Global Leadership Coalition, (last updated Aug. 30, 2021), https://www.usglc.org/coronavirus/women-and-girls/. [https://perma.cc/2MGQ-LLB6].
  36. See Trawalter, Shadel & Verkerke, supra note 24, at 29–30. We did not define backlash in our survey instrument. Based on open-ended responses in both Studies 2 and 3, students conceive of backlash as a kind of social penalty, including unkind comments or loss of social status.
  37. See, e.g., Kay & Shipman, supra note 16, at xviii; Sandberg, supra note 16, at 8.
  38. See, e.g., Amanatullah, supra note 19, at 256; Hannah Riley Bowles, Linda Babcock & Lei Lai, Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes it Does Hurt to Ask, 103 Org. Behav. & Hum. Decision Processes 84, 84 (2007); Andreas Leibbrandt & John A. List, Do Women Avoid Salary Negotiations? Evidence from a Large-Scale Natural Field Experiment, 61 Mgmt Sci. 2016, 2016 (2015).
  39. See Sullivan, supra note 20, at 2 (discussing the anxiety fostered by the Socratic method). As we discussed supra note 11 and supra note 15, these kinds of anxiety-inducing environments can have the effect of favoring men in large classroom discussions. We offer these suggestions tentatively, as we have not designed a study to measure their effects in the classroom. However, we believe they are suggested by our results. We plan to further develop these suggestions in future work.
  40. See Amanatullah, supra note 19, at 256.
  41. See, e.g., Yale L. Women, supra note 3, at 21; see also Guinier, supra note 6, at 4.
  42. For example, in 2017, only 19% of equity partners at law firms were women. See Marc Brodherson, Laura McGee, & Mariana Pires dos Reis, Women in Law Firms, McKinsey & Co., 3 (Oct. 2017), https://www.mckinsey.com/~/media/mckinsey /featured%20‌insights/gender%20equality/women%20in%20law%20firms/women-in-law-firms-final-103017.pdf. [https://perma.cc/737K-Y8BP].
  43. Only about 1/3 of federal judges are female. See U.S. Courts, Women’s History Month, (Jan. 20, 2022), https://www.uscourts.gov/about-federal-courts/educational-resources/annual-observances/womens-history-month. [https://perma.cc/UV4L-RLUS].
  44. Roughly 25% of tenured law school faculty are female. See Am. Bar Found., After Tenure: Post-Tenure Law Professors in the United States, 15, http://www.americanbar foundation.org/uploads/cms/documents/after_tenure_report-_final-_abf_4.1.pdf.
  45. Patton & Smith, supra note 8, at 337.

Feminist Legal History and Legal Pedagogy

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications of feminist legal theory. It offers several examples to illustrate how centering women and correcting their erasure from our constitutional memory is essential to educating future judges and advocates.

Introduction

On August 25, 1980, almost sixty years to the day after the Nineteenth Amendment became part of the United States Constitution, I walked through the doors of the University of Virginia School of Law.1.The Nineteenth Amendment was certified by U.S. Secretary of State Bainbridge Colby on August 26, 1920. Paula A. Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment 1 (2020) [hereinafter Monopoli, Constitutional Orphan].Show More It was my twenty-second birthday and the beginning of a forty-year career in law, including thirty years in legal academia. But during the following three years of a traditional law school curriculum, I was not exposed to the idea that the Nineteenth Amendment was one of the most significant democratizing events in American legal history.2.See Akhil Reed Amar, America’s Constitution: A Biography 419 (2005); see also J. Kevin Corder & Christina Wolbrecht, Counting Women’s Ballots: Female Voters from Suffrage Through the New Deal 3 (2016) (explaining how the Nineteenth Amendment created the largest expansion of voting rights in U.S. history). Although it should be noted that the Nineteenth Amendment did not confer the vote on any woman or protect all women from disenfranchisement. Native American women were not permitted to become citizens until federal legislation was enacted in 1924. See Monopoli, Constitutional Orphan, supranote 1, at 155 n.5. Asian American immigrant women were not allowed to become naturalized U.S. citizens until federal legislation was enacted in the 1940s and 1950s. Id. at 156 n.5. Black and Latina women were de facto disenfranchised using literacy tests, poll taxes, physical intimidation, and other devices for another forty-five years until the Voting Rights Act of 1965. Id. at 43–67, 156 n.6.Show More Nor did I learn about the seventy-two-year struggle by women to overturn the legal regime of coverture that denied them control over their bodies, their income, and their children. No professor mentioned that women’s advocacy had yielded the vote in fifteen states prior to 1920, or that women had testified before Congress as part of the struggle to achieve a federal voting amendment. That silence taught me and other law students that women3.I use “women” in this Essay in an inclusive way to include all those who identify as women.Show More were not constitution-makers, but merely marginal figures in Constitutional Law—the course that sits atop the curricular hierarchy.4.See, e.g., Deborah Jones Merritt & Barbara F. Reskin, Sex, Race, and Credentials: The Truth About Affirmative Action in Law Faculty Hiring, 97 Colum. L. Rev. 199, 216–17 (1997) (noting that Constitutional Law is widely considered the most prestigious field to teach in and that teaching it also carries many practical benefits).Show More

Forty years later, this erasure of women’s legal history is still pervasive in the American law school curriculum. Most of my students still do not understand the link between the woman suffrage movement5.See Ellen DuBois, Woman Suffrage: The View from the Pacific, 69 Pac. Hist. Rev. 539 n. 1 (2000) (“‘Woman suffrage,’ ‘women’s suffrage,’ ‘woman’s suffrage’—different national movements and traditions used slightly different terms. . . . ‘Woman suffrage’ was the term used in the United States, the singular ‘woman’ stressing the essential womanhood of which all women were understood to partake.”).Show More and the Fourteenth and Fifteenth Amendments.6.See infra Section II.0.Show More Nor do many of them seem to know that, as recently as 1982, this country failed to ratify a federal equal rights amendment.7.See Adam Clymer, Time Runs Out for Proposed Rights Amendment, N.Y. Times, July 1, 1982, at A12.Show More While a number of Constitutional Law casebooks now include some coverage of the Nineteenth Amendment, few delve deeply into women’s long struggle for legal and political rights preceding its ratification.8.See, e.g., Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, Constitutional Law 638, 652, 677–78 (8th ed. 2018) (covering, briefly, the Nineteenth Amendment and history of the Equal Rights Amendment); Daniel A. Farber, William N. Eskridge, Jr., Phillip P. Frickey & Jane S. Schacter, Cases and Materials on Constitutional Law: Themes for the Constitution’s Third Century 34, 54, 200–01 (6th ed. 2019) (mentioning the Nineteenth Amendment twice and briefly covering the Equal Rights Amendment’s history); Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 588 (17th ed. 2010) (noting that “[o]nly the Nineteenth Amendment addresses expressly any aspect of women’s equality” and briefly referencing the early history of the ERA and its failed ratification). Each of these books does include a comprehensive section on sex discrimination in the context of the Fourteenth Amendment’s equal protection doctrine. Of course, even if a casebook includes more extensive history, that history will have little impact on the intellectual development of law students if law professors do not assign or discuss those sections of the book. For a casebook that is organized historically and includes more historical context, see 2 Howard Gillman, Mark A. Graber & Keith E. Whittington, American Constitutionalism: Rights and Liberties (2d ed. 2016) (which also includes the Senate debates on women’s suffrage, id. at 265; a map of the United States demonstrating that women had full or partialized voting rights in some states prior to 1920, id. at 286; and coverage of the ERA as “The Blanket Amendment,” id. at 355). See also Michael Stokes Paulsen, Steven Gow Calabresi, Michael W. McConnell, Samuel L. Bray & William Baude, The Constitution of the United States (3d ed. 2017) (referencing the Nineteenth Amendment five times, giving a comprehensive account of the woman suffrage movement that pre-dated its ratification, the link between ratification of the Nineteenth and the early history of the ERA, and the ERA’s failed ratification in 1982).Show More And most do not characterize that struggle as having yielded one of the most significant shifts in power between the states and the federal government in American constitutional history. Many give only cursory coverage to the early debates among suffragists after the federal equal rights amendment was introduced into Congress in 1923.9.The recent television series “Mrs. America” has helped raise awareness of the struggle for an equal rights amendment in the 1970s and 1980s. Mrs. America (FX Networks 2020), https://www.fxnetworks.com/shows/mrs-america [https://perma.cc/CA4S-U7NW]. But law schools should do better in this regard, and not rely on popular culture for this kind of knowledge of feminist legal history. For example, students could be assigned Julie C. Suk’s book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment (2020), as their summer reading prior to coming to law school and/or in their first-year constitutional law course. This would introduce them to the idea that women have also played an important part in American constitutional development. They have been constitution-makers too, albeit in less formal governance roles than the men with whom most law students are already familiar.Show More This expansive social movement for women’s rights continues to be largely absent from the core law school curriculum.10 10.It should be noted that history, in general, gets short shrift in the law school curriculum. This could be ameliorated if there were more courses built around casebooks like Richard Chused & Wendy Williams, Gendered Law in American History (2016).Show More Feminist legal scholars remain marginalized, with little of their scholarship actually changing how mainstream scholars teach law. And women continue to be subordinated in American society, remaining less than full citizens.

Reva Siegel has observed that the Supreme Court’s development of Fourteenth Amendment sex discrimination doctrine “seems to have proceeded from the understanding that there is no constitutional history that would support a constitutional commitment to equal citizenship for women—that such a commitment is to be derived, to the extent it can be derived at all, by analogizing race and sex discrimination.”11 11.Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 1022 (2002) [hereinafter Siegel, She the People].Show More In terms of correcting that erasure, this paper’s primary argument is that law schools are an important locus of change. We generate legal scholarship. And we produce the future judges who will interpret constitutional provisions and the future lawyers who will advocate before them.

In this Essay, I suggest that the failure of feminist legal scholarship to gain much traction among non-feminist scholars and to have more of an impact on how law is taught is connected to the failure to teach feminist legal history in law schools. And this erasure of women from the canon results in law school graduates who, when they become judges and advocates, are blind to the ways that law reifies the socio-economic subordination of women in terms of the gender pay gap, the disproportionate burdens of caregiving, and the structural barriers they face in advancing in the workplace. Law is central to the process of ensuring equality in a democratic society. But if women only exist, if at all, at the margins of the canon used to educate young lawyers, inequality and subordination will persist. What we have seen in the two years of a global pandemic—more than two million women pushed out of a labor market that is grounded in their free caregiving labor, and attacks on women’s constitutional reproductive rights12 12.See Katie Rogers, 2.5 Million Women Left the Work Force During the Pandemic. Harris Sees a ‘National Emergency’, N.Y. Times (Feb. 18, 2021), https://www.nytimes.com/‌2021/02/18/us/politics/women-pandemic-harris.html [https://perma.cc/5XRU-AX7M]; Adam Liptak, Supreme Court Seems Poised to Uphold Mississippi’s Abortion Law, N.Y. Times (Dec. 1, 2021), https://www.nytimes.com/2021/‌12/01/us/politics/supreme-court-mississippi-abortion-law.html [https://perma.cc/4BV7-6LX4] (noting the expectation that the Supreme Court will curtail or eliminate the right to an abortion with their pending decision in Jackson Womens Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted in part, 141 S. Ct. 2619 (2021)).Show More—will continue if we do not rethink how the actors within our legal institutions are prepared to enter the profession. If they continue to leave law school with the understanding that women and law exist only in a siloed course of the same name, law will not respond to critical feminist theory because judges and advocates are unaware of feminist legal history.

Part I of this Essay describes the advent of feminist legal theory, its lack of traction in terms of affecting mainstream legal scholarship and pedagogy, and the absence of feminist legal history in the law school curriculum, in particular in Constitutional Law, the “pinnacle” course in terms of prestige. Part II offers several examples of how I teach my students in a way that changes their existing understanding about women as constitution-makers. Part III suggests that reading constitutional law in the context of feminist legal history is a pedagogical intervention that can have an impact on mainstream understandings of cases as well as the role of women in American constitutional development. It also suggests breaking down the hierarchy of courses within the curriculum and the hierarchy of faculty status as critical steps in this process. Finally, this Essay concludes that feminist legal theory alone, without feminist legal history, is not sufficient to produce judges and advocates who see a substantive equality for women in statutes and the U.S. Constitution.

I. Feminist Legal Theory in Legal Pedagogy

When I was a law student at UVA from 1980 to 1983, I had no female professors in my core curricular classes.13 13.Professor Lillian R. BeVier was the only female tenured member of the faculty in 1980. See A Note on ‘Making Room for Women’, UVA Lawyer, Fall 2021, at 3 (noting that BeVier was the first female professor to earn tenure at UVA Law). See infra Section 0.B on the significance of this lack of descriptive representation among the faculty.Show More I did have a female adjunct professor for a seminar on women and law.14 14.I was also a member of the student organization, Virginia Law Women, which had been founded in 1971. See Eric Williamson, Making Room for Women, UVA Lawyer, Spring 2021, at 46–50, https://www.law.virginia.edu/uvalawyer/article/making-room-women [https://perma.cc/LQR5-5U8H] (noting that the first course in women and law was offered at UVA Law in Spring 1972, and was taught by men).Show More That seminar introduced us to the then fairly recent cases that law professor Ruth Bader Ginsburg had brought as test cases before the U.S. Supreme Court in the 1970s. Those cases expanded the scope of the Fourteenth Amendment’s Equal Protection Clause to laws that treated men and women differently. I recall that the course also included statutory developments, like Title VII and Title IX of the Civil Rights Act of 1964, which addressed sex-based discrimination. We may have discussed the failed efforts to ratify the Equal Rights Amendment, which had been given a three-year extension by Congress and was expiring in 198215 15.See Clymer, supra note 7, at A12.Show More—the very year I took the course. I do not remember it covering the history of women advocating to abolish the legal regime of coverture or their efforts to achieve “political freedom.”16 16.See Monopoli, Constitutional Orphan, supra note 1, at 159–60 n.7 (quoting Telegram from Bertha W. Fowler to Alice Paul (Aug. 27, 1920) (on file with the Library of Congress, Manuscript Division, The Records of the National Woman’s Party, Group II Box 6) (characterizing what the Nineteenth Amendment’s ratification achieved as “political freedom”)).Show More So my impression of the statutory developments in the 1970s and the fight for a constitutional amendment in 1982 was that they were isolated historical developments.17 17.We also did not have the context to understand that the passage of Title IX was a significant reason that one-third of our first-year class was female. See Bernice Resnick Sandler, Title IX: How We Got It and What a Difference It Made, 55 Clev. St. L. Rev. 473, 486, 488 (2007) (noting that the passage of Title IX resulted in the abolition of quotas in professional schools, like medical and law schools, and an increase in the number of women admitted).Show More I certainly did not have any sense that women were significant constitution-makers. Nonetheless, the course was very welcome, but so few students took it that its impact was limited.

On the other hand, everyone took Constitutional Law. The only reference in our casebook to the Nineteenth Amendment was in a footnote.18 18.Gerald Gunther, Cases and Materials on Constitutional Law 1691 n.3 (10th ed. 1980). Several of the then-recent Fourteenth Amendment sex-equality cases, including Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973), were included in that 1980 edition of the casebook. See id. at 678, 791–92, 864–69, 880, 883. That was the most significant mention of sex equality in our core courses. Note that more recent editions of that casebook now mention the Nineteenth Amendment in the text itself. See Sullivan & Gunther, supra note 8, at 588.Show More I have no memory of a discussion about the legal history of the women’s rights movement that preceded ratification of the Nineteenth Amendment. Nor do I remember any discussion of the subsequent cases interpreting the amendment.19 19.See, e.g., Breedlove v. Suttles, 302 U.S. 277 (1937) (invoking gender stereotypes and implicitly relying on the remnants of coverture to justify its decision upholding an exemption from the poll tax for women but not for men, reasoning that “[t]he laws of Georgia declare the husband to be the head of the family and the wife to be subject to him. To subject her to the levy would be to add to his burden” (citation omitted)), overruled by Harper v. Va. State Bd. Of Elections, 383 U.S. 663 (1966). While Harper later overruled the Fourteenth Amendment holding in Breedlove, Breedlove’s Nineteenth Amendment holding stands to this day.Show More

Feminist legal theory was just beginning to emerge as a distinct field. It was being taught at some law schools, although not perhaps by that name.20 20.Martha Chamallas, Introduction to Feminist Legal Theory 17 (2d ed. 2003). Some feminist legal historians have challenged the conventional idea that feminist legal theory began “in the second wave feminist movement of the sixties and seventies. . . nurtured by the intellectual leadership of women newly entering legal academia. Yet legal feminism has a much longer history, conceptualized more than a century earlier.” Tracy A. Thomas, The Long History of Feminist Legal Theory, in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Challamas & Verna L. Williams eds., forthcoming Oxford Univ. Press) (manuscript at 1).Show More In her book, Introduction to Feminist Legal Theory, Martha Chamallas notes that “[p]articularly for lawyers who graduated from law school before the mid-1980s, the very idea of feminist legal theory may be both intriguing and perplexing.”21 21.Id. at xxi.Show More She defines feminist legal theory as “the exploration of women’s subordination through the law.”22 22.Id. at xx.Show More Chamallas goes on to note that as an intellectual field, feminist legal theory examines “how gender has mattered in the development of the law and how men and women are differently affected by the power in law.”23 23.Id. at xix.Show More And she quotes from Clare Dalton’s 1988 Berkeley Women’s Law Journal article, Where We Stand: Observations on the Situation of Feminist Legal Thought:

Feminism is . . . the range of committed inquiry and activity dedicated first, to describing women’s subordination—exploring its nature and extent; dedicated second, to asking both how—through what mechanisms, and why—for what complex and interwoven reasons—women continue to occupy that position; and dedicated third, to change.24 24.Id. at 2 (quoting Clare Dalton, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 Berkeley Women’s L.J. 1, 2 (1987)).Show More

At UVA Law in the early eighties, I do not remember any professor invoking feminist legal theory as an explanation for how and why the law had developed in any area. We did have extensive exposure to law and economics as a theory in a number of our first-year courses, but I have no memory of that methodology being used to explain women’s continuing subordination. Law was presented as gender-neutral, with little, if any, attention paid to the underlying social structures that were anything but neutral. But law operates on the ground. To divorce it from historical conditions and social realities renders it at best ineffective, and at worst harmful to its subjects. In my work as a legal academic, I have sought to bring that insight to my students. The next section describes three examples of how I integrate feminist legal history into my teaching in a way that seeks to change my students’ mainstream understandings of canonical cases and alter their perception about where women stood as constitution-makers.

II. Integrating Feminist Legal History

A. Bradwell v. Illinois and the Slaughter-House Cases

My first example is teaching students the historical context in which the U.S. Supreme Court decided Bradwell v. Illinois.25 25.Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).Show More In Bradwell, the Court rejected Myra Bradwell’s efforts to characterize her right to practice law as a privilege or immunity of national citizenship under Section 1 of the Fourteenth Amendment.26 26.Id. at 139.Show More Bradwell is typically given short shrift in constitutional law casebooks, which usually cite Justice Bradley’s concurrence about how women were not fit to be lawyers.27 27.For example, the tenth edition of Gunther included a reference to Bradwell and Justice Bradley’s concurrence in a footnote. Gunther, supra note 18, at 868 n.1. More recent editions mention Bradwell in the text itself. See Sullivan & Gunther, supra note 8, at 588; see also Gillman, Graber & Whittington, supra note 8, at 268 (commenting on the case, including noting Justice Bradley’s dissent in Slaughter-House and his concurrence in Bradwell).Show More But Gretchen Ritter has suggested in The Constitution as Social Design that the “severity” of the Supreme Court’s narrow interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases28 28.83 U.S. (16 Wall.) 36 (1873).Show More was influenced by the Court’s concern about “the New Departure.”29 29.Gretchen Ritter, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order 25 (2006).Show More The New Departure was the woman suffrage movement’s more aggressive campaign for the vote, following the inclusion of the word “male” in the U.S. Constitution for the very first time in Section 2 of the Fourteenth Amendment and the failed campaign by women activists to include women in the Fifteenth Amendment.30 30.Id. at 16–27 (explaining that “[t]he New Departure campaign lasted from 1869–75, ending with . . . Minor v. Happersett, 88 U.S. 162 (1874)”) During this time, suffragists used publicity, legislative action, direct action, and judicial action to secure the vote. The direct action included efforts to register to vote and to actually vote. Id. at 19. See also Siegel, She the People, supra note 11, at 973 (describing how Susan B. Anthony was prosecuted for voting unlawfully as a result of such direct action); Barbara Allen Babcock, Ann E. Freedman, Eleanor Holmes Norton & Susan C. Ross, Sex Discrimination and the Law: Causes and Remedies 9 (1st ed. 1975) (“(a.) The Trial of Susan B. Anthony”).Show More Ritter makes clear her claim is a modest one, and she does not offer it as a complete explanation of why some Lincoln appointees to the Supreme Court, like Justice Miller, would embrace a narrow view of the Privileges or Immunities Clause.31 31.Ritter, supra note 29, at 25.Show More

After reading Ritter several years ago, I began to have my seminar students read Justice Bradley’s dissent in Slaughter-House together with his concurrence in Bradwell. And I ask them: How can the same justice have written both, in terms of their disparate views on the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment? My students grapple with various ways of understanding the seeming inconsistency of Bradley arguing that the right to one’s profession was a privilege or immunity of national citizenship when it came to the butchers in Slaughter-House,32 32.83 U.S. (16 Wall.) at 113–14 (Bradley, J., dissenting).Show More but declaring that the clause could not be read the same way when it came to Myra Bradwell’s right to practice law.33 33.Bradwell, 83 U.S. (16 Wall.) at 139–42 (Bradley, J., concurring).Show More Without having been taught the context of the nineteenth-century women’s rights movement and the New Departure, it would never occur to my students that the majority in Slaughter-House might have been afraid of the implications of an expansive interpretation of the Privileges or Immunities Clause because of its possible extension to women’s equality. Nor would it occur to them that these men were acutely aware that women’s rights activists had made the argument that the right to a profession and the right to vote came within the ambit of that constitutional clause.34 34.See Siegel, She the People, supra note 11, at 973–74 (citing Babcock, Freedman, Norton & Ross, supra note 30, at 8) (“Given the contemporary visibility of the woman suffrage cause, it is plain that the Supreme Court was already anticipating the claim that the Fourteenth Amendment enfranchised women when the Court narrowly interpreted the Privileges or Immunities Clause in its 1873 decisions in the Slaughter-House Cases and Bradwell v. Illinois.”). That argument vis-à-vis voting was subsequently rejected in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874).Show More Without understanding that those activists had waged a very public battle, especially in Washington, D.C., to be included in the Fourteenth and the Fifteenth Amendments, students are unlikely to see the link between the two cases.

This failure to understand the important role women activists played in constitutional development leaves these future judges and advocates ill-equipped to recognize a substantive equality in law that would advance women’s social, legal, economic, and political status as citizens. It also highlights an issue for law school faculty, many of whom are also unaware of this history, in teaching Constitutional Law without it. If they do not understand women activists’ centrality to discussions around the Fourteenth and Fifteenth Amendments as a historical matter, such faculty are far less likely to entertain a theory like Ritter’s about why the Justices in Slaughter-House may have taken the narrow view of the Privileges or Immunities Clause that they did. It also helps explain why feminist legal theory continues to be unlikely to change mainstream legal pedagogy. If one of the goals of feminist legal scholarship is to have an impact on how non-feminist legal scholars think about canonical cases, it is unlikely to do so if those non-feminist scholars themselves have little or no grounding in feminist legal history. And their students are less likely to be exposed to these alternative explanations of how law developed as it did.

B. The Nineteenth Amendment

My second example is teaching students about the historical context surrounding the passage of the Nineteenth Amendment, including the centrality of race in its ratification.35 35.See supra note 2, regarding who was not able to vote even after ratification of the Nineteenth Amendment.Show More My law school classmates and I never learned the unique history around the Nineteenth Amendment’s ratification and constitutional development, and the consequent thin understanding of the Nineteenth Amendment by the courts.36 36.Seegenerally Siegel, She the People, supra note 11 (arguing that the historical context of the woman suffrage movement should inform how we interpret the Nineteenth and Fourteenth Amendments and that the Nineteenth Amendment repudiated women’s “subordination in or through the family”); Monopoli, Constitutional Orphan, supra note 1 (covering the Nineteenth Amendment’s interpretation by courts in the decade after its ratification, and arguing that while the amendment initially carried the “promise of significant change,” the prevailing interpretation that emerged was instead a “thin” conception of its meaning and scope); Richard L. Hasen & Leah M. Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It, 108 Geo. L.J. 27 (2020) (contrasting “thin” and potential “thick” interpretations of the Nineteenth Amendment, and arguing that a “thick” interpretation allowing constitutional claims against restrictive voting laws that burden women’s voting ability would be consistent with the Nineteenth Amendment’s text and history).Show More If we had any impression about the amendment, it was that it “only” concerned voting. But we were never taught that “voting was the central question” for nineteenth-century Americans and that they “knew what woman suffrage signified, even if its full significance to them is no longer legible to us today.”37 37.Siegel, She the People, supra note 11, at 1045.Show More

So today, feminist legal scholars are reconstructing that history so that courts can evaluate the context within which the text was developed, enacted, ratified, and subsequently construed.38 38.Feminist legal scholars have contributed much to feminist legal history around the centennial of the Nineteenth Amendment. See, e.g., Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020) [hereinafter Siegel, Democratization of the Family]; Tracy A. Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stan. J. C.R. & C.L. 349 (2020); Tracy Thomas, Reclaiming the Long History of the “Irrelevant” Nineteenth Amendment for Gender Equality, 105 Minn. L. Rev. 2623 (2021) [hereinafter Thomas, Reclaiming the Long History]; Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, 108 Geo. L.J. 73 (2020); Nan D. Hunter, In Search of Equality for Women: From Suffrage to Civil Rights, 59 Duq. L. Rev. 125 (2021) [hereinafter Nan D. Hunter, In Search of Equality for Women]; Taunya Lovell Banks, Commemorating the Forgotten Intersection of the Fifteenth and Nineteenth Amendments,94St. John’s L. Rev. 899 (2020); Danielle M. Conway, Black Women’s Suffrage, the 19th Amendment, and the Duality of a Movement, 13 Ala. C.R. & C.L. L. Rev. (forthcoming 2022); Serena Mayeri, After Suffrage: The Unfinished Business of Feminist Legal Advocacy, 129 Yale L.J.F. 512 (2020); Julie C. Suk, A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power, 107 Va. L. Rev. Online 3 (2021); Elizabeth D. Katz, Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office, 34 Yale J. L. & Feminism (forthcoming 2022).Show More We teach our students much more about those women who advocated around ratification of the Nineteenth Amendment. The goal is to lead our students, as future advocates and judges, to pay close attention to those who were instrumental in developing the amendment but who were generally excluded from formal participation in the political process.39 39.I say “generally excluded” because it is little understood that by 1920 there were fifteen states in which women had full suffrage and twelve where they had partial suffrage. Monopoli, Constitutional Orphan, supra note 1, at 160 n.13.Show More In 1920, women were not entitled to full voting rights in most states, and there was only one female member of Congress at the time an initial vote was taken on the Nineteenth Amendment.40 40.See James J. Lopach & Jean A. Luckowski, Jeannette Rankin: A Political Woman 144–46 (2005); Rankin, Jeannette, U.S. House of Reps. Hist., Art & Archives, https://history.house.gov/People/Listing/R/RANKIN,-Jeannette-(R000055)/ [https://perma.cc/T4D9-YDFK] (last visited Feb. 8, 2022).Show More I suggest to my students that the voices of the disenfranchised should be read back into the interpretive process and given significant weight by courts.41 41.See Siegel, She the People, supra note 11 at 1040–41 n. 47 (asking “[i]f groups are formally excluded from voting on an Article V amendment, or are otherwise politically inaudible in the process, whose voices should we attend to in interpreting the ratified amendment?”); Reva B. Siegel, The Nineteenth Amendment and the Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y (forthcoming 2022) (manuscript at 40–41), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4007656 [https://perma.cc/82RK-CAX8] [hereinafter Siegel, The Nineteenth Amendment and the Politics of Constitutional Memory]; Paula A. Monopoli, Gender, Voting Rights, and the Nineteenth Amendment, 20 Geo. J.L. & Pub. Pol’y (forthcoming 2022) (manuscript at 24).Show More As the institutional actors in civil society most instrumental in the Nineteenth Amendment’s enactment, many suffragists spoke in terms of its securing their political freedom.42 42.See supra note 16.Show More Others thought it meant even broader emancipation.43 43.Suffragists like socialist Crystal Eastman, for example, asked, “What . . . do we mean by a feminist organization? It does not mean mere women juries, congressmen, etc., but it means to raise the status of women, making them self-respecting persons.” Vivien Hart, Bound by Our Constitution: Women, Workers, and the Minimum Wage 116 (1994). See also Melissa Murray, The Equal Rights Amendment: A Century in the Making Symposium Forward, 43 N.Y.U. Rev. L. & Soc. Change, The Harbinger 91, 91 (2019) (“The question of women’s freedom, Eastman conceded, yielded no easy answers. ‘Freedom,’ she wryly observed, ‘is a large word.’ Freedom, as Eastman imagined it, included a broad range of topics and concerns related to women’s citizenship—women’s economic position, their exclusion from the workplace, the liminal position of childcare and housework, voluntary motherhood, and stereotypes that delineated the home and its work as the province of women, and not men.”).Show More Anti-suffragists opposed the fundamental shift that the Nineteenth Amendment would create, allowing women to move from the private into the public sphere. This shift threatened to disrupt the social order and weaken patriarchal institutions, including the family.44 44.See Siegel, Democratization of the Family, supra note 38, at 458.Show More

It is very important to teach my students that white suffragists excluded Black suffragists over the course of the suffrage movement and that the rhetoric around the enactment and ratification process of the Nineteenth Amendment was racist and nativist. Nonetheless, Black suffragists advocated for its passage.45 45.See generally Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850–1920 (1998) (explaining why Black women “supported the ‘votes for women’ campaign, and . . . the obstacles they met along the way to enfranchisement”).Show More Mary Church Terrell argued that:

Even if I believed that women should be denied the right of suffrage, wild horses could not drag such an admission from my pen or my lips, for this reason: precisely the same arguments used to prove that the ballot be withheld from women are advanced to prove that colored men should not be allowed to vote.46 46.Mary Church Terrell, Woman Suffrage and the 15th Amendment, The Crisis, Aug. 1915, at 191.Show More

Native American and Asian American immigrant suffragists, who could not become citizens,47 47.See Monopoli, Constitutional Orphan, supra note 1, at 155–56 n.5.Show More also argued that women should be enfranchised. Mabel Ping-Hua Lee was a suffragist who contrasted the status of women in the United States with that of women in the new Chinese nation, which had enfranchised women in 1912.48 48.Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement 25–26 (2020).Show More Lee “spoke eloquently on the topic [of woman suffrage], concluding with a plea for equality and a condemnation of the racism that limited Chinese women in the United States.”49 49.Id. at 32 (citing Suffrage Notes, Dobbs Ferry (N.Y.) Register, Apr. 17, 1912; Chinese Women to Parade for Woman Suffrage, N.Y. Times, Apr. 14, 1912; and other contemporaneous sources).Show More Native American suffragist Gertrude Simmons Bonnin (Zitkala-Ša) also advocated for woman suffrage, while identifying the intersection of race, sex and citizenship.50 50.Id. at 20; Nat’l Park Serv., Zitkala-Ša (Red Bird / Gertrude Simmons Bonnin), https://www.nps.gov/people/zitkala-sa.htm [https://perma.cc/CU6P-FN7Q] (last visited Feb. 8, 2022).Show More Future judges and advocates should hear their voices too, as we as law professors shape what Reva Siegel has called “constitutional memory.”51 51.Siegel, The Nineteenth Amendment and the Politics of Constitutional Memory, supra note 41.Show More

C. Pauli Murray and Equal Protection

My third example is teaching students about the Black legal theorist and activist, Pauli Murray. I had been a feminist legal scholar for more than twenty years before I learned about Murray.52 52.See Univ. of Md. Francis King Carey School of Law, “Toward the Goal of Human Wholeness: Pauli Murray’s Journey” – Professor Serena Mayeri, YouTube (May 3, 2013), https://www.youtube.com/watch?v=xRvAsQ3oPfo&list=PLYBWgedwTFEbtwPt0CKw_X_0ihLUU3-2i [https://perma.cc/5RVZ-X5JW] (recording of keynote at Switch Point Stories: Tales of Sex, Race and Sexuality, Women Leadership & Equality Program).Show More Today, Murray is more widely known, with institutions like Yale recognizing her historic significance by naming one of its new residential colleges after her.53 53.Yale Retains Calhoun College’s Name, Selects Names for Two New Residential Colleges, and Changes Title of ‘Master’ in the Residential Colleges, Yale News (Apr. 27, 2016), https://news.yale.edu/2016/04/27/yale-retains-calhoun-college-s-name-selects-names-two-new-residential-colleges-and-change [https://perma.cc/KAQ8-XQ2S]. See also Pauli Murray College, Yale College, https://paulimurray.yalecollege.yale.edu/ [https://perma.cc/‌Y63C-5C8N] (last visited Feb. 8, 2022). Scholars have noted Pauli Murray’s intersectional identity. Florence Wagman Roisman, Lessons for Advocacy from the Life and Legacy of the Reverend Doctor Pauli Murray, 20 U. Md. L.J. Race, Religion, Gender & Class 1, 2 (2020) (“Some of these women were lesbians; some, probably including Pauli Murray, were transgender.”).Show More And there is a new documentary, built on Murray’s extensive papers in Radcliffe College’s Schlesinger Library collection, which is bringing Murray’s work to the fore.54 54.Jason Dick, ‘My Name is Pauli Murray’–Portrait of an Activist as a Major Influence, Roll Call (Sept. 23, 2021), https://rollcall.com/2021/09/23/my-name-is-pauli-murray-documentary [https://perma.cc/2332-JJK6].Show More More feminist legal scholars are now teaching about Murray’s foundational role in extending the Equal Protection Clause of the Fourteenth Amendment to encompass laws that treated men and women differently. I point out to my students that Ruth Bader Ginsburg acknowledged that intellectual debt when she added Murray’s name on the brief in Reed v. Reed,55 55.404 U.S. 71, 71 (1971).Show More the first case to recognize that the Fourteenth Amendment’s equal protection clause applied to women as a class.56 56.Neil S. Siegel, Why the Nineteenth Amendment Matters Today: A Guide for the Centennial, 27 Duke J. Gender L. & Pol’y 235, 263 (2020).Show More I discuss the significance of Murray’s scholarship analogizing race and sex, a connection she termed “Jane Crow.”57 57.Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. Wash. L. Rev. 232, 233 (1965).Show More And I connect her central insight to the work of subsequent scholars, like Kimberlé Crenshaw’s theory of intersectionality.58 58.See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 139–40 (1989).Show More

I also teach my students about the important role Murray played in the story of how “sex” was added to Title VII of the Civil Rights Act of 1964. Serena Mayeri notes that “when the bill reached the Senate, African American lawyer Pauli Murray . . . wrote an influential memorandum designed to persuade civil rights supporters that the sex amendment was integral, rather than antithetical, to Title VII’s goals.”59 59.Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 718 (2015).Show More Murray argued that if there were:

[N]o ‘sex’ amendment . . . both Negro and white women will share a common fate of discrimination, since it is exceedingly difficult for a Negro woman to determine whether or not she is being discriminated against because of race or sex. These two types of discrimination are so closely entertwined [sic] and so similar that Negro women are uniquely qualified to affirm their interrelatedness.60 60.Id. at 719 (quoting Pauli Murray, Memorandum in Support of Retaining the Amendment to H.R. 7152, Title VII (Equal Employment Opportunity) to Prohibit Discrimination in Employment Because of Sex, at 20 (Apr. 14, 1964) (Pauli Murray Papers, MC 412, Box 85, Folder 1485) (on file with the Schlesinger Library, Radcliffe Institute, Harvard University)).Show More

Pauli Murray died in 1985. One of the architects of a foundational legal theory was still alive when I was in law school, yet we knew nothing about her work. Clearly, other law students also were not taught about the role that Murray played in the passage of Title VII. In his opinion in Bostock v. Clayton County, Justice Gorsuch repeated the partial origin story about Title VII—suggesting that its passage had simply been the result of a “poison pill” attempt by a white southern congressman to sabotage the Civil Rights Act.61 61.140 S. Ct. 1731, 1752 (2020) (“[The congressman] may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill.”). See also Rebecca Onion, The Real Story Behind “Because of Sex”,Slate (June 16, 2020), https://slate.com/news-and-politics/2020/06/title-vii-because-of-sex-howard-smith-history.html [https://perma.cc/6PTE-JFET] (recounting the story of how a white southern congressman included “because of sex” in the text of Title VII, but adding more context to show that women rights activists intentionally laid the foundation for that inclusion). Note that while I agree with the outcome in Bostock, I have concerns about the implications of Justice Gorsuch’s textualist methodology. See generally Guha Krishnamurthi, Essay, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1 (2022) (expressing support for the result in Bostock but concern that “the simple but-for text can be used as a sword to cut down policies that have made our workplaces safer and less discriminatory”).Show More I ask my students to consider Pauli Murray’s erasure from constitutional history: If a current justice of the Supreme Court misunderstands the history of an important statutory provision in such a fundamental way, what does that do to his ability to render a correct interpretation of that provision?

III. Changing Law Schools

A. Reading Constitutional Law in Feminist Context

The U.S. Constitution is gendered in its very design. The Founders drew on masculine conceptions of authority—drawn from philosophical ideas about male heads of households—when deciding on a consolidated executive model that combined the head of state, head of government, and commander-in-chief functions in one person. They shied away from design choices, like a multi-member council, that would have evoked collaboration and consensus, traits more closely associated with the feminine.62 62.Seegenerally Paula A. Monopoli, Gender and Constitutional Design, 115 Yale L.J. 2643 (2006) (arguing that these gendered design choices have normative “implications for how successful women will be in ascending to executive positions”).Show More We should expose students to that idea, and the idea that a feminist constitutionalism would prioritize the consideration of social and economic realities, as well as the goal of remedying subordination as a polestar of decision making.63 63.Catharine A. MacKinnon, Foreword, in Feminist Constitutionalism: Global Perspectives, at x (Beverley Baines, Daphne Barak-Erez & Tsvi Kahana eds., 2012) (“A feminist constitutionalism would . . . require a substantive equality of women both as an overarching theme in the document and as an underlying reality in the social order . . . .”).Show More They should understand that a feminist constitutionalism, as applied to the realm of constitutional interpretation, requires one to “ask[] the woman question.”64 64.Daphne Barak-Erez, Her-meneutics: Feminism and Interpretation, in Feminist Constitutionalism, supra note 63, at 85, 95 (internal quotation marks omitted). Such a method “avoid[s] interpretive choices that disproportionately burden women and . . . prefer[s], where possible, interpretive alternatives that promote the just allocation of social burdens.” Id.Show More An understanding of feminist legal history would ground future judges in how law shaped those social and economic realities, and how those realities should shape law. For example, all law students should understand that the definition of equality that emerged in 1920 following ratification of the Nineteenth Amendment was highly contested. They should know that the Equal Rights Amendment was introduced as early as 1923, with former suffragists split between those who supported formal equality in the form of legal neutrality between the sexes, and those who advocated for a more substantive equality in the form of special, protective legislation for women.65 65.Monopoli, Constitutional Orphan, supra note 1, at 127–44.Show More They should understand that subordinating legal regimes around political rights like jury service and public office-holding; economic rights like access to equal pay and credit; and civil rights like freedom from domestic violence, persisted throughout the twentieth and into the twenty-first century.66 66.See generally Nan D. Hunter, In Search of Equality for Women, supra note 38 (recognizing the “matrix of oppressive institutions” that women continued to face after the Nineteenth Amendment and analyzing three distinct movements organized around gender between the Nineteenth Amendment and the 1964 Civil Rights Act (“the Equal Rights Amendment campaign, the campaign for women workers’ rights, and the birth control campaign”)). See also Deborah L. Forman, What Difference Does it Make? Gender and Jury Selection, 2 UCLA Women’s L.J. 35, 38–40 (1992) (jury service); Katz, supra note 38 (public officeholding); Margaret J. Gates, Credit Discrimination Against Women: Causes and Solutions, 27 Vand. L. Rev. 409 (1974) (access to credit); Siegel, She the People, supra note 11, at 1024–30 and accompanying notes (violence against women).Show More They should understand that it took generations for the Supreme Court to finally extend the Fourteenth Amendment to sex-based differential treatment, with heightened scrutiny.67 67.Thomas, Reclaiming the Long History, supra note 38, at 2654.Show More And they should be aware that we still have no sex-based equal rights amendment in the U.S. Constitution. Feminist legal history gives students insight into how formal legal equality is necessary but not sufficient to achieve sex-equality in democratic governance today.68 68.See generally Paula A. Monopoli, Women, Democracy, and the Nineteenth Amendment, 100 B.U. L. Rev. 1727 (2020) (demonstrating that even with formal legal equality, women’s participation in democratic governance lags behind that of men).Show More

Women are half the population. Their relationship to the state and its Constitution are central to our representative democracy. If we were to teach more about the women’s rights movement in the nineteenth and twentieth centuries in the required Constitutional Law course, students could better understand the significance of the Nineteenth Amendment today. Integrating feminist legal history into the curriculum can create a pervasive understanding among law students that there is a constitutional amendment—engineered by women—that expresses a clear commitment to sex equality in citizenship. I offer a seminar which incorporates that feminist legal history, in addition to empirical research that documents women’s continuing subordination in the legal profession and the structural barriers they face in advancing in law.69 69.The seminar is titled “Gender in the Legal Profession.” It covers the feminist legal history around Bradwell v. Illinois, as well as the role of women lawyers in Congressional enactment of the Nineteenth Amendment, Title VII, Title IX, and the Equal Rights Amendment, in addition to empirical research documenting the structural barriers to women advancing in the profession today.Show More Symposia and panels are also important in this regard. For example, I co-moderated a panel at the Virginia Law Review Online’s Symposium, From the Equal Rights Amendment to Black Lives Matter: Reflecting on Intersectional Struggles for Equality, in January 2021.70 70.Symposium, From the Equal Rights Amendment to Black Lives Matter: Reflecting on Intersectional Struggles for Equality, Virginia Law Review Online (Jan. 15, 2021), https://www.law.virginia.edu/node/916986 [https://perma.cc/JP2X-NAFJ] (honoring and featuring a keynote by Elaine Jones ’70, the first Black woman to graduate from UVA Law, and first director-counsel and president of the NAACP Legal Defense and Educational Fund).Show More These are all ways to bring feminist legal history to the attention of law students. But these efforts must also include integration into the core curriculum, especially into Constitutional Law, given its vaunted status.

B. Eliminating Gender Hierarchies in Law Schools

In addition to integrating feminist legal history into the curriculum, law schools must address the hierarchy of prestige not only in curriculum but in the faculty.71 71.There has been significant scholarship on the issue of women faculty in law schools, e.g., Marina Angel, Women in Legal Education: What It’s Like to be Part of a Perpetual First Wave or the Case of the Disappearing Women, 61 Temp. L. Rev. 799 (1988); Kathryn M. Stanchi, Who Next, the Janitors?: A Socio-Feminist Critique of the Status Hierarchy of Law Professors, 73 UMKC L. Rev. 467 (2004); Ann C. McGinley, Reproducing Gender on Law School Faculties, 2009 BYU L. Rev. 99 (2009); and most recently Dara E. Purvis, Legal Education as Hegemonic Masculinity, 65 Vill. L. Rev. 1145 (2020).Show More There is a signaling function to the way the faculty is constructed and an expressive dimension to who is allowed on the tenure-track. And women are less likely to be asked to teach the more prestigious courses, like Constitutional Law.72 72.See Merritt & Reskin, supra note 4 at 258–59 (“Men (both white and minority) were significantly more likely than women to teach constitutional law, while women (both white and minority) were significantly more likely to teach trusts and estates or skills courses.”); see also Paula A. Monopoli, Gender and the Crisis in Legal Education: Remaking the Academy in Our Image, 2012 Mich. St. L. Rev. 1745, 1768 (2012) (citing McGinley, supra note 71, at 102–03) (“There is also a clearly gendered pattern of course assignments in law schools with women being assigned to less prestigious areas of the curriculum.”).Show More Law students are sensitive to the messages sent by these hierarchies.73 73.Fifty years after the passage of Title IX, we have a rich literature on the experience of women law students. See, e.g., Taunya Lovell Banks, Gender Bias in the Classroom, 38 J. Legal Educ. 137 (1988); Lani Guinier, Michelle Fine & Jane Balin, Becoming Gentlemen: Women, Law School, and Institutional Change (1997); Felice Batlan, Kelly Hradsky, Kristen Jeschke, LaVonne Meyer & Jill Roberts, Not Our Mother’s Law School?: A Third-Wave Feminist Study of Women’s Experiences in Law School, 39 U. Balt. L.F. 124 (2009); Nat’l Ass’n for L. Placement Found. & Ctr. for Women in Law, Women of Color: A Study of Law School Experiences (2020), https://utexas.app.box.com/‌s/kvn7dezec99khii6ely9‌cve368‌q4gj9o [https://perma.cc/BLJ2-P4KD].Show More Legal writing and clinical faculty—disproportionately women and people of color in the legal academy—are afforded less prestige than tenure-track, doctrinal faculty.74 74.See Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 14–15, 19–20 (2019). And the impact of implicit bias on women of color in academia is extensively documented in Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012) and Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia (Yolanda Flores Niemann, Gabriella Gutiérrez y Muhs & Carmen G. González eds., 2020).Show More And a feminist history of the exclusion of women from law school faculties generally, and from the tenure-track specifically, illuminates this inequality and helps us chart a course for change. Furthermore, gender scholarship itself is marginalized.75 75.Martha T. McCluskey, How Money for Legal Scholarship Disadvantages Feminism, 9 Issues Legal Scholarship, art. 9, at 1 (2011) (“In the last several decades, feminist legal theory has flourished as one of a number of schools of thought reexamining law’s basic principles, methods, and social functions. Courses, scholarship, journals, and advocacy focused on feminism have become an established part of the legal landscape. Despite these accomplishments, however, feminism’s place within theory, practice, and teaching remains largely marginal and subordinate.”). Note the remarkable departure of five women faculty from the Florida State University School of Law more than twenty years ago, in part, protesting the devaluation of their scholarship. See Robin Wilson, Women Quit Florida State U. Law Faculty, Fault Male Colleagues’ Elitism, Chron. Higher Educ. (May 11, 1999), https://www.chronicle.com/article/women-quit-florida-state-u-law-faculty-fault-male-colleagues-elitism/ [https://perma.cc/EG3X-E5UM].Show More Understanding feminist history, especially in the academy, helps understand why it has been slow to change mainstream understandings of constitutional development in light of continuing gender subordination. It would help us move feminist legal scholarship out of its silo and into the mainstream canon.

Since I graduated in 1983, my alma mater has done much better. From a single tenured faculty member in 1980 to noted legal historian Risa Golubuff as Dean of UVA Law and a substantial number of tenured women faculty forty years later is a significant leap. Descriptive representation has an important signaling function.76 76.See generally Amanda L. Griffith, Faculty Gender in the College Classroom: Does It Matter for Achievement and Major Choice?, 81 S. Econ. J. 211 (2014) (studying the impact of the gender of faculty members on male and female students); Tina R. Opie, Beth Livingston, Danna N. Greenberg & Wendy M. Murphy, Building Gender Inclusivity: Disentangling the Influence of Classroom Demography on Classroom Participation, 77 Higher Educ. 37 (2019) (finding that increased female representation in business schools may create inclusive learning environments in addition to other exogenous factors); Kenneth Gehrt, Therese A. Louie & Asbjorn Osland, Student and Professor Similarity: Exploring the Effects of Gender and Relative Age, 90 J. Educ. Bus. 1 (2015) (studying female and male students’ evaluations of professors’ gender and age and finding female students rated female faculty more highly than male faculty, perhaps in part because there were fewer female than male faculty at the university and thus female faculty “might have been especially salient to the students sharing the same gendered trait”).Show More And women now make up more than half of the first-year class.77 77.Mike Fox, Class of 2024 Sets Records in Academic Strength, Diversity, UVA Lawyer, Fall 2021, at 10 (noting that, of the 300 students in the Class of 2024, 51% are women, 49% are men, and 36% identify themselves as people of color). At the University of Maryland Carey School of Law, 67% of the Class of 2024 is women. See ABA Law School Data: JD Total First Year Class Enrollment Data, Fall 2021, ABA (Dec. 15, 2021), https://www.americanbar.org/groups/legal_education/resources/statistics/ [https://perma.cc/EG3X-E5UM].Show More But we need to continue to pursue change in legal academia, like adopting a unified tenure-track that elevates the disproportionate number of women and people of color in legal writing and some clinical positions to equal status.78 78.See, e.g., Kathryn M. Stanchi & Jan M. Levine, Gender and Legal Writing: Law Schools’ Dirty Little Secrets, 16 Berkeley Women’s L.J. 3, 4–6 (2001); Ruth Anne Robbins, Kristen K. Tiscione & Melissa H. Weresh, Persistent Structural Barriers to Gender Equity in the Legal Academy and the Efforts of Two Legal Writing Organizations to Break Them Down, 65 Vill. L. Rev. 1155, 1178–84 (2020).Show More We also need to elevate the prestige of feminist legal scholarship, and prevent its marginalization.79 79.See McCluskey, supra note 75, at 1.Show More This is an opportune moment to focus on these reforms and the integration of critical legal theory, given the American Bar Association’s recent amendments to the standards for law school accreditation, approved on February 14, 2022.80 80.Memorandum from The Standards Committee to the ABA Council of the Section of Legal Education and Admissions to the Bar, Final Recommendations: Standards 205, 303, 507 & 508 (Aug. 16, 2021), https://taxprof.typepad.com/files/aba-council.pdf [https://perma.cc/‌7Z89-CXLJ]; Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule, Reuters (Feb. 14, 2022), https://www.reuters.com/legal/legalindustry/us-law-students-receive-anti-bias-training-after-aba-passes-new-rule-2022-02-14/ [https://perma.cc/DFD2-M46E].Show More Those standards require law schools to integrate coverage of bias and racism.81 81.Amended Standard 303(c) requires that a “law school shall provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.” Id. at 3.Show More A broad integration of critical legal theories, including critical race theory, feminist legal theory, critical race feminism, and masculinities theory could follow from these new standards.82 82.See Purvis, supra note 71, at 1145–46 (offering masculinities theory as a frame to better understand how legal pedagogy fails women and why reform would help all students).Show More

Conclusion

Reflecting on my forty years in law—including thirty as a legal academic—yields the conclusion that the law has yet to recognize the significance of women in its development. I began my career in law just as feminist legal theory was taking root in law schools. It has yet to have the influence it should have in interpreting law, especially constitutional law. That is disappointing, but not surprising given the sticky nature of women’s social, legal, and economic subordination across societies and across millennia. I begin my seminar with Sophocles’ play, Antigone.83 83.Sophocles, Antigone 3 (Dover Thrift ed. 1993) (Ismene declares: “We too shall perish, if despite of law we traverse the behest or power of kings. We must remember we are women born, unapt to cope with men. And, being ruled by mightier than ourselves, we have to hear these things—and worse.”).Show More Antigone defies her uncle’s order not to bury her brother, Polynices. Sophocles makes clear the unique anger that Creon, ruler of Thebes, displays when defied by a woman. The point for my students is that in bringing a feminist perspective to bear on law and women’s relationship to the state and to power, we are fighting thousands of years of deeply entrenched views about gender and its proper spheres.

Each of us can only do so much.84 84.Jessie Kratz, The Movement as a Mosaic: Alice Paul and Woman Suffrage, Nat’l Archives Pieces of Hist. Blog (May 10, 2019), https://prologue.blogs.archives.gov/2019/05/10/the-movement-as-a-mosaic-alice-paul-and-woman-suffrage/ [https://perma.cc/QKZ4-5L2V] (quoting Alice Paul) (“I always feel the movement is a sort of mosaic. Each of us puts in one little stone, and then you get a great mosaic at the end.”).Show More My contribution has been to join other legal scholars in bringing to light the history and significance of women in our constitutional development. If someone had told me on that first day of law school forty years ago that would be my legacy, I would have been surprised and pleased to know I would become a law professor who helped produce judges and advocates well-equipped to recognize a substantive equality of citizenship in law.

  1. * Sol & Carlyn Hubert Professor of Law, University of Maryland Carey School of Law. B.A., Yale College 1980; J.D., University of Virginia School of Law 1983. The Author thanks Susan G. McCarty for her editorial assistance. She also thanks her spouse and fellow law professor, Marin Scordato, UVA Law ’83, for more than forty years of sharing ideas about legal theory and pedagogy.
  2. The Nineteenth Amendment was certified by U.S. Secretary of State Bainbridge Colby on August 26, 1920. Paula A. Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment 1 (2020) [hereinafter Monopoli, Constitutional Orphan].
  3. See Akhil Reed Amar, America’s Constitution: A Biography 419 (2005); see also J. Kevin Corder & Christina Wolbrecht, Counting Women’s Ballots: Female Voters from Suffrage Through the New Deal 3 (2016) (explaining how the Nineteenth Amendment created the largest expansion of voting rights in U.S. history). Although it should be noted that the Nineteenth Amendment did not confer the vote on any woman or protect all women from disenfranchisement. Native American women were not permitted to become citizens until federal legislation was enacted in 1924. See Monopoli
    ,

    Constitutional Orphan, supra note 1, at 155 n.5. Asian American immigrant women were not allowed to become naturalized U.S. citizens until federal legislation was enacted in the 1940s and 1950s. Id. at 156 n.5. Black and Latina women were de facto disenfranchised using literacy tests, poll taxes, physical intimidation, and other devices for another forty-five years until the Voting Rights Act of 1965. Id. at 43–67, 156 n.6.

  4. I use “women” in this Essay in an inclusive way to include all those who identify as women.
  5. See, e.g., Deborah Jones Merritt & Barbara F. Reskin, Sex, Race, and Credentials: The Truth About Affirmative Action in Law Faculty Hiring, 97 Colum. L. Rev. 199, 216–17 (1997) (noting that Constitutional Law is widely considered the most prestigious field to teach in and that teaching it also carries many practical benefits).
  6. See Ellen DuBois, Woman Suffrage: The View from the Pacific, 69 Pac. Hist. Rev. 539 n. 1 (2000) (“‘Woman suffrage,’ ‘women’s suffrage,’ ‘woman’s suffrage’—different national movements and traditions used slightly different terms. . . . ‘Woman suffrage’ was the term used in the United States, the singular ‘woman’ stressing the essential womanhood of which all women were understood to partake.”).
  7. See infra Section II.0.
  8. See Adam Clymer, Time Runs Out for Proposed Rights Amendment, N.Y. Times, July 1, 1982, at A12.
  9. See, e.g., Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, Constitutional Law 638, 652, 677–78 (8th ed. 2018) (covering, briefly, the Nineteenth Amendment and history of the Equal Rights Amendment); Daniel A. Farber, William N. Eskridge, Jr., Phillip P. Frickey & Jane S. Schacter, Cases and Materials on Constitutional Law: Themes for the Constitution’s Third Century 34, 54, 200–01 (6th ed. 2019) (mentioning the Nineteenth Amendment twice and briefly covering the Equal Rights Amendment’s history); Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 588 (17th ed. 2010) (noting that “[o]nly the Nineteenth Amendment addresses expressly any aspect of women’s equality” and briefly referencing the early history of the ERA and its failed ratification). Each of these books does include a comprehensive section on sex discrimination in the context of the Fourteenth Amendment’s equal protection doctrine. Of course, even if a casebook includes more extensive history, that history will have little impact on the intellectual development of law students if law professors do not assign or discuss those sections of the book. For a casebook that is organized historically and includes more historical context, see 2 Howard Gillman, Mark A. Graber & Keith E. Whittington, American Constitutionalism: Rights and Liberties (2d ed. 2016) (which also includes the Senate debates on women’s suffrage, id. at 265; a map of the United States demonstrating that women had full or partialized voting rights in some states prior to 1920, id. at 286; and coverage of the ERA as “The Blanket Amendment,” id. at 355). See also Michael Stokes Paulsen, Steven Gow Calabresi, Michael W. McConnell, Samuel L. Bray & William Baude, The Constitution of the United States (3d ed. 2017) (referencing the Nineteenth Amendment five times, giving a comprehensive account of the woman suffrage movement that pre-dated its ratification, the link between ratification of the Nineteenth and the early history of the ERA, and the ERA’s failed ratification in 1982).
  10. The recent television series “Mrs. America” has helped raise awareness of the struggle for an equal rights amendment in the 1970s and 1980s. Mrs. America (FX Networks 2020), https://www.fxnetworks.com/shows/mrs-america [https://perma.cc/CA4S-U7NW]. But law schools should do better in this regard, and not rely on popular culture for this kind of knowledge of feminist legal history. For example, students could be assigned Julie C. Suk’s book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment (2020), as their summer reading prior to coming to law school and/or in their first-year constitutional law course. This would introduce them to the idea that women have also played an important part in American constitutional development. They have been constitution-makers too, albeit in less formal governance roles than the men with whom most law students are already familiar.
  11. It should be noted that history, in general, gets short shrift in the law school curriculum. This could be ameliorated if there were more courses built around casebooks like Richard Chused & Wendy Williams, Gendered Law in American History (2016).
  12. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 1022 (2002) [hereinafter Siegel, She the People].
  13. See Katie Rogers, 2.5 Million Women Left the Work Force During the Pandemic. Harris Sees a ‘National Emergency’, N.Y. Times (Feb. 18, 2021), https://www.nytimes.com/‌2021/02/18/us/politics/women-pandemic-harris.html [https://perma.cc/5XRU-AX7M]; Adam Liptak, Supreme Court Seems Poised to Uphold Mississippi’s Abortion Law, N.Y. Times (Dec. 1, 2021), https://www.nytimes.com/2021/‌12/01/us/politics/supreme-court-mississippi-abortion-law.html [https://perma.cc/4BV7-6LX4] (noting the expectation that the Supreme Court will curtail or eliminate the right to an abortion with their pending decision in Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted in part, 141 S. Ct. 2619 (2021)).
  14. Professor Lillian R. BeVier was the only female tenured member of the faculty in 1980. See A Note on ‘Making Room for Women’, UVA Lawyer, Fall 2021, at 3 (noting that BeVier was the first female professor to earn tenure at UVA Law). See infra Section 0.B on the significance of this lack of descriptive representation among the faculty.
  15. I was also a member of the student organization, Virginia Law Women, which had been founded in 1971. See Eric Williamson, Making Room for Women, UVA Lawyer, Spring 2021, at 46–50, https://www.law.virginia.edu/uvalawyer/article/making-room-women [https://perma.cc/LQR5-5U8H] (noting that the first course in women and law was offered at UVA Law in Spring 1972, and was taught by men).
  16. See Clymer, supra note 7, at A12.
  17. See Monopoli, Constitutional Orphan, supra note 1, at 159–60 n.7 (quoting Telegram from Bertha W. Fowler to Alice Paul (Aug. 27, 1920) (on file with the Library of Congress, Manuscript Division, The Records of the National Woman’s Party, Group II Box 6) (characterizing what the Nineteenth Amendment’s ratification achieved as “political freedom”)).
  18. We also did not have the context to understand that the passage of Title IX was a significant reason that one-third of our first-year class was female. See Bernice Resnick Sandler, Title IX: How We Got It and What a Difference It Made, 55 Clev. St. L. Rev. 473, 486, 488 (2007) (noting that the passage of Title IX resulted in the abolition of quotas in professional schools, like medical and law schools, and an increase in the number of women admitted).
  19. Gerald Gunther, Cases and Materials on Constitutional Law 1691 n.3 (10th ed. 1980). Several of the then-recent Fourteenth Amendment sex-equality cases, including Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973), were included in that 1980 edition of the casebook. See id. at 678, 791–92, 864–69, 880, 883. That was the most significant mention of sex equality in our core courses. Note that more recent editions of that casebook now mention the Nineteenth Amendment in the text itself. See Sullivan & Gunther, supra note 8, at 588.
  20. See, e.g., Breedlove v. Suttles, 302 U.S. 277 (1937) (invoking gender stereotypes and implicitly relying on the remnants of coverture to justify its decision upholding an exemption from the poll tax for women but not for men, reasoning that “[t]he laws of Georgia declare the husband to be the head of the family and the wife to be subject to him. To subject her to the levy would be to add to his burden” (citation omitted)), overruled by Harper v. Va. State Bd. Of Elections, 383 U.S. 663 (1966). While Harper later overruled the Fourteenth Amendment holding in Breedlove, Breedlove’s Nineteenth Amendment holding stands to this day.
  21. Martha Chamallas, Introduction to Feminist Legal Theory 17 (2d ed. 2003). Some feminist legal historians have challenged the conventional idea that feminist legal theory began “in the second wave feminist movement of the sixties and seventies. . . nurtured by the intellectual leadership of women newly entering legal academia. Yet legal feminism has a much longer history, conceptualized more than a century earlier.” Tracy A. Thomas, The Long History of Feminist Legal Theory, in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Challamas & Verna L. Williams eds., forthcoming Oxford Univ. Press) (manuscript at 1).
  22. Id. at xxi.
  23. Id. at xx.
  24. Id. at xix.
  25. Id. at 2 (quoting Clare Dalton, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 Berkeley Women’s L.J. 1, 2 (1987)).
  26. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).
  27. Id. at 139.
  28. For example, the tenth edition of Gunther included a reference to Bradwell and Justice Bradley’s concurrence in a footnote. Gunther, supra note 18, at 868 n.1. More recent editions mention Bradwell in the text itself. See Sullivan & Gunther, supra note 8, at 588; see also Gillman, Graber & Whittington, supra note 8, at 268 (commenting on the case, including noting Justice Bradley’s dissent in Slaughter-House and his concurrence in Bradwell).
  29. 83 U.S. (16 Wall.) 36 (1873).
  30. Gretchen Ritter, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order 25 (2006).
  31. Id. at 16–27 (explaining that “[t]he New Departure campaign lasted from 1869–75, ending with . . . Minor v. Happersett, 88 U.S. 162 (1874)”) During this time, suffragists used publicity, legislative action, direct action, and judicial action to secure the vote. The direct action included efforts to register to vote and to actually vote. Id. at 19. See also Siegel, She the People, supra note 11, at 973 (describing how Susan B. Anthony was prosecuted for voting unlawfully as a result of such direct action); Barbara Allen Babcock, Ann E. Freedman, Eleanor Holmes Norton & Susan C. Ross, Sex Discrimination and the Law: Causes and Remedies 9 (1st ed. 1975) (“(a.) The Trial of Susan B. Anthony”).
  32. Ritter, supra note 29, at 25.
  33. 83 U.S. (16 Wall.) at 113–14 (Bradley, J., dissenting).
  34. Bradwell, 83 U.S. (16 Wall.) at 139–42 (Bradley, J., concurring).
  35. See Siegel, She the People, supra note 11, at 973–74 (citing Babcock, Freedman, Norton & Ross, supra note 30, at 8) (“Given the contemporary visibility of the woman suffrage cause, it is plain that the Supreme Court was already anticipating the claim that the Fourteenth Amendment enfranchised women when the Court narrowly interpreted the Privileges or Immunities Clause in its 1873 decisions in the Slaughter-House Cases and Bradwell v. Illinois.”). That argument vis-à-vis voting was subsequently rejected in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874).
  36. See supra note 2, regarding who was not able to vote even after ratification of the Nineteenth Amendment.
  37. See generally Siegel, She the People, supra note 11 (arguing that the historical context of the woman suffrage movement should inform how we interpret the Nineteenth and Fourteenth Amendments and that the Nineteenth Amendment repudiated women’s “subordination in or through the family”); Monopoli, Constitutional Orphan, supra note 1 (covering the Nineteenth Amendment’s interpretation by courts in the decade after its ratification, and arguing that while the amendment initially carried the “promise of significant change,” the prevailing interpretation that emerged was instead a “thin” conception of its meaning and scope); Richard L. Hasen & Leah M. Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It, 108 Geo. L.J. 27 (2020) (contrasting “thin” and potential “thick” interpretations of the Nineteenth Amendment, and arguing that a “thick” interpretation allowing constitutional claims against restrictive voting laws that burden women’s voting ability would be consistent with the Nineteenth Amendment’s text and history).
  38. Siegel, She the People, supra note 11, at 1045.
  39. Feminist legal scholars have contributed much to feminist legal history around the centennial of the Nineteenth Amendment. See, e.g., Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020) [hereinafter Siegel, Democratization of the Family]; Tracy A. Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stan. J. C.R. & C.L. 349 (2020); Tracy Thomas, Reclaiming the Long History of the “Irrelevant” Nineteenth Amendment for Gender Equality, 105 Minn. L. Rev. 2623 (2021) [hereinafter Thomas, Reclaiming the Long History]; Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, 108 Geo. L.J. 73 (2020); Nan D. Hunter, In Search of Equality for Women: From Suffrage to Civil Rights, 59 Duq. L. Rev. 125 (2021) [hereinafter Nan D. Hunter, In Search of Equality for Women]; Taunya Lovell Banks, Commemorating the Forgotten Intersection of the Fifteenth and Nineteenth Amendments, 94 St. John’s L. Rev.
    899

    (2020); Danielle M. Conway, Black Women’s Suffrage, the 19th Amendment, and the Duality of a Movement, 13 Ala. C.R. & C.L. L. Rev. (forthcoming 2022); Serena Mayeri, After Suffrage: The Unfinished Business of Feminist Legal Advocacy, 129 Yale L.J.F. 512 (2020); Julie C. Suk, A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power, 107 Va. L. Rev. Online 3 (2021); Elizabeth D. Katz, Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office, 34 Yale J. L. & Feminism (forthcoming 2022).

  40. I say “generally excluded” because it is little understood that by 1920 there were fifteen states in which women had full suffrage and twelve where they had partial suffrage. Monopoli, Constitutional Orphan, supra note 1, at 160 n.13.
  41. See James J. Lopach & Jean A. Luckowski, Jeannette Rankin: A Political Woman 144–46 (2005); Rankin, Jeannette, U.S. House of Reps. Hist., Art & Archives, https://history.house.gov/People/Listing/R/RANKIN,-Jeannette-(R000055)/ [https://perma.cc/T4D9-YDFK] (last visited Feb. 8, 2022).
  42. See Siegel, She the People, supra note 11 at 1040–41 n. 47 (asking “[i]f groups are formally excluded from voting on an Article V amendment, or are otherwise politically inaudible in the process, whose voices should we attend to in interpreting the ratified amendment?”); Reva B. Siegel, The Nineteenth Amendment and the Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y (forthcoming 2022) (manuscript at 40–41), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4007656 [https://perma.cc/82RK-CAX8] [hereinafter Siegel, The Nineteenth Amendment and the Politics of Constitutional Memory]; Paula A. Monopoli, Gender, Voting Rights, and the Nineteenth Amendment, 20 Geo. J.L. & Pub. Pol’y (forthcoming 2022) (manuscript at 24).
  43. See supra note 16.
  44. Suffragists like socialist Crystal Eastman, for example, asked, “What . . . do we mean by a feminist organization? It does not mean mere women juries, congressmen, etc., but it means to raise the status of women, making them self-respecting persons.” Vivien Hart, Bound by Our Constitution: Women, Workers, and the Minimum Wage 116 (1994). See also Melissa Murray, The Equal Rights Amendment: A Century in the Making Symposium Forward, 43 N.Y.U. Rev. L. & Soc. Change, The Harbinger 91, 91 (2019) (“The question of women’s freedom, Eastman conceded, yielded no easy answers. ‘Freedom,’ she wryly observed, ‘is a large word.’ Freedom, as Eastman imagined it, included a broad range of topics and concerns related to women’s citizenship—women’s economic position, their exclusion from the workplace, the liminal position of childcare and housework, voluntary motherhood, and stereotypes that delineated the home and its work as the province of women, and not men.”).
  45. See Siegel, Democratization of the Family, supra note 38, at 458.
  46. See generally Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote
    , 1850–1920

    (1998) (explaining why Black women “supported the ‘votes for women’ campaign, and . . . the obstacles they met along the way to enfranchisement”).

  47. Mary Church Terrell, Woman Suffrage and the 15th Amendment, The Crisis, Aug. 1915, at 191.
  48. See Monopoli
    ,

    Constitutional Orphan, supra note 1, at 155–56 n.5.

  49. Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement 25–26 (2020).
  50. Id. at 32 (citing Suffrage Notes, Dobbs Ferry (N.Y.) Register, Apr. 17, 1912; Chinese Women to Parade for Woman Suffrage, N.Y. Times, Apr. 14, 1912; and other contemporaneous sources).
  51. Id. at 20; Nat’l Park Serv., Zitkala-Ša (Red Bird / Gertrude Simmons Bonnin), https://www.nps.gov/people/zitkala-sa.htm [https://perma.cc/CU6P-FN7Q] (last visited Feb. 8, 2022).
  52. Siegel, The Nineteenth Amendment and the Politics of Constitutional Memory, supra note 41.
  53. See Univ. of Md. Francis King Carey School of Law, “Toward the Goal of Human Wholeness: Pauli Murray’s Journey” – Professor Serena Mayeri, YouTube (May 3, 2013), https://www.youtube.com/watch?v=xRvAsQ3oPfo&list=PLYBWgedwTFEbtwPt0CKw_X_0ihLUU3-2i [https://perma.cc/5RVZ-X5JW] (recording of keynote at Switch Point Stories: Tales of Sex, Race and Sexuality, Women Leadership & Equality Program).
  54. Yale Retains Calhoun College’s Name, Selects Names for Two New Residential Colleges, and Changes Title of ‘Master’ in the Residential Colleges, Yale News (Apr. 27, 2016), https://news.yale.edu/2016/04/27/yale-retains-calhoun-college-s-name-selects-names-two-new-residential-colleges-and-change [https://perma.cc/KAQ8-XQ2S]. See also Pauli Murray College, Yale College, https://paulimurray.yalecollege.yale.edu/ [https://perma.cc/‌Y63C-5C8N] (last visited Feb. 8, 2022). Scholars have noted Pauli Murray’s intersectional identity. Florence Wagman Roisman, Lessons for Advocacy from the Life and Legacy of the Reverend Doctor Pauli Murray, 20 U. Md. L.J. Race, Religion, Gender & Class 1, 2 (2020) (“Some of these women were lesbians; some, probably including Pauli Murray, were transgender.”).
  55. Jason Dick, ‘My Name is Pauli Murray’–Portrait of an Activist as a Major Influence, Roll Call (Sept. 23, 2021), https://rollcall.com/2021/09/23/my-name-is-pauli-murray-documentary [https://perma.cc/2332-JJK6].
  56. 404 U.S. 71, 71 (1971).
  57. Neil S. Siegel, Why the Nineteenth Amendment Matters Today: A Guide for the Centennial, 27 Duke J. Gender L. & Pol’y 235, 263 (2020).
  58. Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. Wash. L. Rev. 232, 233 (1965).
  59. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 139–40 (1989).
  60. Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 718 (2015).
  61. Id. at 719 (quoting Pauli Murray, Memorandum in Support of Retaining the Amendment to H.R. 7152, Title VII (Equal Employment Opportunity) to Prohibit Discrimination in Employment Because of Sex, at 20 (Apr. 14, 1964) (Pauli Murray Papers, MC 412, Box 85, Folder 1485) (on file with the Schlesinger Library, Radcliffe Institute, Harvard University)).
  62. 140 S. Ct. 1731, 1752 (2020) (“[The congressman] may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill.”). See also Rebecca Onion, The Real Story Behind “Because of Sex”,

    Slate (June 16, 2020), https://slate.com/news-and-politics/2020/06/title-vii-because-of-sex-howard-smith-history.html [https://perma.cc/6PTE-JFET] (recounting the story of how a white southern congressman included “because of sex” in the text of Title VII, but adding more context to show that women rights activists intentionally laid the foundation for that inclusion). Note that while I agree with the outcome in Bostock, I have concerns about the implications of Justice Gorsuch’s textualist methodology. See generally Guha Krishnamurthi, Essay, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1 (2022) (expressing support for the result in Bostock but concern that “the simple but-for text can be used as a sword to cut down policies that have made our workplaces safer and less discriminatory”).

  63. See generally Paula A. Monopoli, Gender and Constitutional Design, 115 Yale L.J. 2643 (2006) (arguing that these gendered design choices have normative “implications for how successful women will be in ascending to executive positions”).
  64. Catharine A. MacKinnon, Foreword, in Feminist Constitutionalism: Global Perspectives, at x (Beverley Baines, Daphne Barak-Erez & Tsvi Kahana eds., 2012) (“A feminist constitutionalism would . . . require a substantive equality of women both as an overarching theme in the document and as an underlying reality in the social order . . . .”).
  65. Daphne Barak-Erez, Her-meneutics: Feminism and Interpretation, in Feminist Constitutionalism, supra note 63, at 85, 95 (internal quotation marks omitted). Such a method “avoid[s] interpretive choices that disproportionately burden women and . . . prefer[s], where possible, interpretive alternatives that promote the just allocation of social burdens.” Id.
  66. Monopoli, Constitutional Orphan, supra note 1, at 127–44.
  67. See generally Nan D. Hunter, In Search of Equality for Women, supra note 38 (recognizing the “matrix of oppressive institutions” that women continued to face after the Nineteenth Amendment and analyzing three distinct movements organized around gender between the Nineteenth Amendment and the 1964 Civil Rights Act (“the Equal Rights Amendment campaign, the campaign for women workers’ rights, and the birth control campaign”)). See also Deborah L. Forman, What Difference Does it Make? Gender and Jury Selection, 2 UCLA Women’s L.J. 35, 38–40 (1992) (jury service); Katz, supra note 38 (public officeholding); Margaret J. Gates, Credit Discrimination Against Women: Causes and Solutions, 27 Vand. L. Rev. 409 (1974) (access to credit); Siegel, She the People, supra note 11, at 1024–30 and accompanying notes (violence against women).
  68. Thomas, Reclaiming the Long History, supra note 38, at 2654.
  69. See generally Paula A. Monopoli, Women, Democracy, and the Nineteenth Amendment, 100 B.U. L. Rev. 1727 (2020) (demonstrating that even with formal legal equality, women’s participation in democratic governance lags behind that of men).
  70. The seminar is titled “Gender in the Legal Profession.” It covers the feminist legal history around Bradwell v. Illinois, as well as the role of women lawyers in Congressional enactment of the Nineteenth Amendment, Title VII, Title IX, and the Equal Rights Amendment, in addition to empirical research documenting the structural barriers to women advancing in the profession today.
  71. Symposium, From the Equal Rights Amendment to Black Lives Matter: Reflecting on Intersectional Struggles for Equality, Virginia Law Review Online (Jan. 15, 2021), https://www.law.virginia.edu/node/916986 [https://perma.cc/JP2X-NAFJ] (honoring and featuring a keynote by Elaine Jones ’70, the first Black woman to graduate from UVA Law, and first director-counsel and president of the NAACP Legal Defense and Educational Fund).
  72. There has been significant scholarship on the issue of women faculty in law schools, e.g., Marina Angel, Women in Legal Education: What It’s Like to be Part of a Perpetual First Wave or the Case of the Disappearing Women, 61 Temp. L. Rev. 799 (1988); Kathryn M. Stanchi, Who Next, the Janitors?: A Socio-Feminist Critique of the Status Hierarchy of Law Professors, 73 UMKC L. Rev. 467 (2004); Ann C. McGinley, Reproducing Gender on Law School Faculties, 2009 BYU L. Rev. 99 (2009); and most recently Dara E. Purvis, Legal Education as Hegemonic Masculinity, 65 Vill. L. Rev. 1145 (2020).
  73. See Merritt & Reskin, supra note 4 at 258–59 (“Men (both white and minority) were significantly more likely than women to teach constitutional law, while women (both white and minority) were significantly more likely to teach trusts and estates or skills courses.”); see also Paula A. Monopoli, Gender and the Crisis in Legal Education: Remaking the Academy in Our Image, 2012 Mich. St. L. Rev. 1745, 1768 (2012) (citing McGinley, supra note 71, at 102–03) (“There is also a clearly gendered pattern of course assignments in law schools with women being assigned to less prestigious areas of the curriculum.”).
  74. Fifty years after the passage of Title IX, we have a rich literature on the experience of women law students. See, e.g., Taunya Lovell Banks, Gender Bias in the Classroom, 38 J. Legal Educ. 137 (1988); Lani Guinier, Michelle Fine & Jane Balin, Becoming Gentlemen: Women, Law School, and Institutional Change (1997); Felice Batlan, Kelly Hradsky, Kristen Jeschke, LaVonne Meyer & Jill Roberts, Not Our Mother’s Law School?: A Third-Wave Feminist Study of Women’s Experiences in Law School, 39 U. Balt. L.F. 124 (2009); Nat’l Ass’n for L. Placement Found. & Ctr. for Women in Law, Women of Color: A Study of Law School Experiences (2020), https://utexas.app.box.com/‌s/kvn7dezec99khii6ely9‌cve368‌q4gj9o [https://perma.cc/BLJ2-P4KD].
  75. See Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 14–15, 19–20 (2019). And the impact of implicit bias on women of color in academia is extensively documented in Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012) and Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia (Yolanda Flores Niemann, Gabriella Gutiérrez y Muhs & Carmen G. González eds., 2020).
  76. Martha T. McCluskey, How Money for Legal Scholarship Disadvantages Feminism, 9 Issues Legal Scholarship, art. 9, at 1 (2011) (“In the last several decades, feminist legal theory has flourished as one of a number of schools of thought reexamining law’s basic principles, methods, and social functions. Courses, scholarship, journals, and advocacy focused on feminism have become an established part of the legal landscape. Despite these accomplishments, however, feminism’s place within theory, practice, and teaching remains largely marginal and subordinate.”). Note the remarkable departure of five women faculty from the Florida State University School of Law more than twenty years ago, in part, protesting the devaluation of their scholarship. See Robin Wilson, Women Quit Florida State U. Law Faculty, Fault Male Colleagues’ Elitism, Chron. Higher Educ. (May 11, 1999), https://www.chronicle.com/article/women-quit-florida-state-u-law-faculty-fault-male-colleagues-elitism/ [https://perma.cc/EG3X-E5UM].
  77. See generally Amanda L. Griffith, Faculty Gender in the College Classroom: Does It Matter for Achievement and Major Choice?, 81 S. Econ. J. 211 (2014) (studying the impact of the gender of faculty members on male and female students); Tina R. Opie, Beth Livingston, Danna N. Greenberg & Wendy M. Murphy, Building Gender Inclusivity: Disentangling the Influence of Classroom Demography on Classroom Participation, 77 Higher Educ. 37 (2019) (finding that increased female representation in business schools may create inclusive learning environments in addition to other exogenous factors); Kenneth Gehrt, Therese A. Louie & Asbjorn Osland, Student and Professor Similarity: Exploring the Effects of Gender and Relative Age, 90 J. Educ. Bus. 1 (2015) (studying female and male students’ evaluations of professors’ gender and age and finding female students rated female faculty more highly than male faculty, perhaps in part because there were fewer female than male faculty at the university and thus female faculty “might have been especially salient to the students sharing the same gendered trait”).
  78. Mike Fox, Class of 2024 Sets Records in Academic Strength, Diversity, UVA Lawyer, Fall 2021, at 10 (noting that, of the 300 students in the Class of 2024, 51% are women, 49% are men, and 36% identify themselves as people of color). At the University of Maryland Carey School of Law, 67% of the Class of 2024 is women. See ABA Law School Data: JD Total First Year Class Enrollment Data, Fall 2021, ABA (Dec. 15, 2021), https://www.americanbar.org/groups/legal_education/resources/statistics/ [https://perma.cc/EG3X-E5UM].
  79. See, e.g., Kathryn M. Stanchi & Jan M. Levine, Gender and Legal Writing: Law Schools’ Dirty Little Secrets, 16 Berkeley Women’s L.J. 3, 4–6 (2001); Ruth Anne Robbins, Kristen K. Tiscione & Melissa H. Weresh, Persistent Structural Barriers to Gender Equity in the Legal Academy and the Efforts of Two Legal Writing Organizations to Break Them Down, 65 Vill. L. Rev. 1155, 1178–84 (2020).
  80. See McCluskey, supra note 75, at 1.
  81. Memorandum from The Standards Committee to the ABA Council of the Section of Legal Education and Admissions to the Bar, Final Recommendations: Standards 205, 303, 507 & 508 (Aug. 16, 2021), https://taxprof.typepad.com/files/aba-council.pdf [https://perma.cc/‌7Z89-CXLJ]; Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule, Reuters (Feb. 14, 2022), https://www.reuters.com/legal/legalindustry/us-law-students-receive-anti-bias-training-after-aba-passes-new-rule-2022-02-14/ [https://perma.cc/DFD2-M46E].
  82. Amended Standard 303(c) requires that a “law school shall provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.” Id. at 3.
  83. See Purvis, supra note 71, at 1145–46 (offering masculinities theory as a frame to better understand how legal pedagogy fails women and why reform would help all students).
  84. Sophocles, Antigone 3 (Dover Thrift ed. 1993) (Ismene declares: “We too shall perish, if despite of law we traverse the behest or power of kings. We must remember we are women born, unapt to cope with men. And, being ruled by mightier than ourselves, we have to hear these things—and worse.”).
  85. Jessie Kratz, The Movement as a Mosaic: Alice Paul and Woman Suffrage, Nat’l Archives Pieces of Hist. Blog (May 10, 2019), https://prologue.blogs.archives.gov/2019/05/10/the-movement-as-a-mosaic-alice-paul-and-woman-suffrage/ [https://perma.cc/QKZ4-5L2V] (quoting Alice Paul) (“I always feel the movement is a sort of mosaic. Each of us puts in one little stone, and then you get a great mosaic at the end.”).