Feminist Judgments in the Classroom

1. Feminist Judgments in the Classroom

2. Overall Teaching Plan • Introduce the relevant case • Consider the case in its historical, social, economic and political context as appropriate • Apply feminist method and study feminist judgment writing • Re-write another case using feminist method

3. Timetable • Class1 . Introduce students to judgment writing/feminist method and historical context. • Divide students into groups for reading Roberts v Hopwood and give set questions. • Class 2 Discuss the questions set on Roberts v Hopwood • Class 3 • Discuss judgment writing and prepare to write judgment. • Class 4 • Ask the students to write a feminist or alternative judgment in Short v Poole Corporation in class or alternatively write at home to be handed in and assessed

4. General Learning Objectives • Understand and experience the process of judgment writing • Develop an understanding of the historical, social and economic context to judgment writing • Understand and apply feminist method

5. Possible Courses • Legal Method • Public Law • Women and Law/ Gender Sexuality and Law • Human Rights/Equalities Law • Legal Theory • Project course/module

6. Two cases studied for this exercise • Roberts v Hopwood [1925] AC 578 (equal pay between the sexes) • Short v Poole Corporation [1924] S. 3445 (policy of dismissing married women) • Any two cases could be used from the same historical periods

7. General Information • Roberts v Hopwood is a landmark/well known case because: • Interventionist court willing to override the discretion exercised by an elected council. • Lord Atkinson’s comments on feminism and socialism. • Developed the concept of the ‘fiduciary duty’ to rate payers that was relied on in the infamous case of Bromley LBC v Greater London Council [1983] 1 A C 768(Fares Fair) Discussed by JAG Griffiths in The Politics of the Judiciary • Developing the principle that public authorities must not take into account irrelevant considerations when exercising discretion.

8. Learning Objectives • Identify the economic, social and or political interests of the litigants to the case • Consider the extent to which the law privileges certain values and or perspectives • Critique law’s claims to impartiality, objectivity and neutrality • Consider what value systems judges use when deciding cases • Understand the relationship between law, politics and economics • Appreciate the importance of the historical context of cases. • Apply feminist methods to the analysis of the case • Understand how judges and lawyers select what facts are relevant.

9. Class 1: Reading Roberts v Hopwood • Students will be given the case after class 1 • Before asking the students to read the case: • Introduce them to feminist method. • Ask them to think about context • Ask them to reflect on how the courts decide what facts are relevant.

10. Class 1: Discuss thinking critically Remind students to think critically: ‘If you think critically you will: • Search for hidden assumptions • Justify assumptions • Judge the rationality of those assumptions • Test the accuracy of those assumptions’ • Hanson, S. Legal Method, Skills and reasoning, Third Edition, Routledge Cavendish, 2010, p.35

11. Class 1: Discuss feminist method • Apply Feminist Method • Asking the woman question. This ‘means looking beneath the surface of law to identify the gender implications of rules and the assumptions underlying them and insisting upon applications of rules that do not perpetuate women’s subordination’. Bartlett, Katherine T. Feminist Legal Methods, (1990) 103:4 Harvard Law Review, 829-888 at p. P.843 • Consciousness raising/drawing on personal experience/Being reflexive • Use feminist practical or contextualised reasoning. Practical reasoning does rely on rules but considers that ‘What must be done and why and how it should be done, are all open questions, considered on the basis of the intricacies of each specific factual context.’ Bartlett, Katherine T. Feminist Legal Methods, (1990) 103:4 Harvard Law Review, 829-888 at p. 830. • Anti-Disadvantage Principle, This principle ‘is predicated on the assumption that the courts have the responsibility to ensure that the legislative process fully protects the needs and interests of disadvantaged groups.’ (Colker, Ruth ‘Section 1, Contextuality and the Anti-Disadvantage Principle’ (1992) 42 University of Toronto Law Journal, p. 77 at p.86.

12. Class 1: Discuss historical context Historical context: Consider whether it is judicial bias or prejudice that lead to a decision rather than the historical context alone directing the outcome. • Internal clues: The case itself might provide clues for this. The fact the litigant is bringing the case at all, the arguments being used by counsel, references to other sources in the case such as other cases, government reports or events. • External clues: Acts of Parliament, Hansard debates, newspapers, general historical knowledge of the period.

13. Class 1: Discuss Historical Context • Critique and Law: Legal Education and Practice by Alan Hunt ‘Historically Grounded Legal Education’ • The great disservice done by medievalist legal history is to have brought about the eradication of history in any form from the typical law curriculum. History must be seen as having a central place in the law curriculum, not as a self-contained strand, but integrated within the teaching of substantive law. This requires a major shift in what is understood by legal history; most immediately, a shift from medievalism to modern legal history. But it also requires a shift from the preoccupation with the internal development of legal doctrine towards a socioeconomic orientation.’ • Critical Lawyers’ Handbook http://www.nclg.org.uk/book1/contents.htm

14. Preparation for Class 2 on Roberts v Hopwood • Teaching Plan/ Advanced Preparation • Divide students into groups of at least three: • Group 1 read the first instance decision • Group 2 read the Court of Appeal decision • Group 3 read the House of Lords decision • All students to read House of Lords/ Lord Atkinson’s decision, feminist judgment and commentary of Roberts v Hopwood.

15. Questions for Discussion in Class 2 / Ask students to read the set materials and come prepared to answer the following questions • What were the facts of the case? • What arguments did both sides make? • What were the legal issues that had to be decided? • Summarise the decision and any dissenting judgment • Evaluate the decision and consider the following: • Were the judges sympathetic/unsympathetic to the litigants? If so how is this sympathy expressed? • How were the parties portrayed? • Were the judges objective in their decision making? • Could the judges have decided the case differently?

16. Class 2 • Come prepared to discuss and present the case. • Classroom discussion • Compare the court’s judgment with the feminist judgment. Go back through the checklist. Highlight the differences between the judgments: use of facts, legal sources, values privileged etc.

17. Class 2 • To give students further assistance (depending on level of students) • Compose a glossary or list words/terms they don’t understand in advance. • Summarise the case before asking them to read it • Explain some of the historical background to the case. • Provide students with a timeline/key statutes on equality/put this on the intranet or ask students to produce a timeline.

18. Class 3:Writing a Feminist judgment • Prepare students to write a feminist judgment either as an in class exercise or as a take home exercise: • Ask the students to write a feminist judgment or an alternative judgment in the case of Short v Poole Corporation [1924] S. 3445 • Spend class 3 preparing with the students

19. Class 3 • Break the task down for the students • Writing the Judgment • Summarise the facts • Summarise the parties arguments • Decide what the possible conclusions are and then explain the reasons for the decision. Be aware of the values you are adopting: Consider issues of gender and the wider context. • Explain why you are rejecting the arguments of the losing side.

20. Class 3 Additional suggestions • Ask class to write the judgment in groups as a wiki • Ask the class to keep a reflective log as a blog when writing the judgment

21. Obstacles to teaching feminist judgments in their historic context • Little knowledge of feminism and its complexities • Students may lack historical knowledge • Students may think the material is irrelevant • Students may think the teacher is ‘biased’ and is trying to ‘brainwash’ them. • Students may feel under confident as they are still learning ‘standard’ legal skills and techniques and this approach may confuse them.

22. Reading • Bartlett, Katherine T. Feminist Legal Methods, (1990) 103:4 Harvard Law Review, 829 • Colker, R. ‘Section 1, Contextuality and the Anti-Disadvantage Principle’ (1992) 42 University of Toronto Law Journal, p. 77 • Griffiths J.A.G. The Politics of the Judiciary, Fontana Press, London, 1997 • Hale. B. and Hunter, R. ‘A conversation with Baroness Hale’ (2008) 16 Feminist Legal Studies, 237.. • Hale, B., ‘The House of Lords and Women’s Rights or Am I really a Law Lord’ (2005) Legal Studies, p.72 • Hanson, S. Legal Method, Skills and reasoning, Third Edition, Routledge Cavendish, 2010 • Hunter, R., McGlynn,C. and Rackley, E., Feminist Judgments: From Theory to Practice, Hart, 2010, chs 1-3 • Minow, M. ‘Justice Engendered’ in Smith, P. (ed.) Feminist Jurisprudence, 1993, Oxford University Press, Oxford pp. 217-243. • Sachs, A. and Hoff-Wilson, J. Sexism and the Law: A Study of Male Beliefs and Judicial Bias, Martin Robertson, Oxford, 1978.