Claiming a Space in the Law School Curriculum: A Casebook on Sex-Based Discrimination

INTRODUCTION We are gathered here today to celebrate the 40th anniversary of Justice Ginsburg's appointment in 1972 as Columbia's first woman law professor. That auspicious date also marks the beginning of my collaboration with her on a law school casebook published in 1974 on the newly-created subject of sex-based discrimination. (1) Linda Kerber traced the general history of this and other casebooks that appeared about the same time (2) in her wonderfully insightful historical essay, Writing Our Own Rare Books, presented at a symposium held at Yale Law School in April 2000. (3) In recalling those heady times today, I will offer a more detailed account of how our first edition came into being, as well as a comparison of how its coverage--and the subject itself--has changed over the ensuing thirty-eight years. I. How the RBG-KMD-HHK Collaboration Came About and Why It Was Published as the KMD-RBG-HHK Casebook The demand for law school courses on "Women and the Law" followed closely after the rapid increase of women law students beginning in the late 1960s, (4) who did notfind the legal issues that affected them covered in the traditional curriculum. All three of us responded individually to requests from our students to create such courses. In 1971, Kenneth M. Davidson was an Associate Professor at SUNY Buffalo, where he was teaching a course on Women and the Law, primarily focused on sex discrimination in employment, to law students and undergraduates, and using his own mimeographed materials. A year earlier, Ruth Bader Ginsburg had launched a course on Women's Rights: Sex Discrimination and the Law, at Rutgers, Newark. She thus explained: Around 1970, women students whose conscience had awakened at least as much as mine, women encouraged by a vibrant movement for racial equality, asked for a seminar on Women and the Law. I repaired to the Library. There, in the space of a month, I read every federal decision ever published involving women's legal status, and every law review article. That was no grand feat. There were not many decisions and not much in the way of commentary. Probably less altogether than today accumulates in six months time. (5) Berkeley women students brought a similar request to me at about the same time: in 1970, I helped them persuade a practitioner, Colquit Meacham Walker, to offer a Women and the Law Seminar by promising to attend all of the class sessions. No casebooks existed for such a course. Ken wanted to turn his materials into a casebook, but he also wanted to recruit co-authors to join the project and add materials on other areas where sex discrimination was beginning to make itself felt. He sent his materials to me. I read them and was immediately struck by how well a chapter on Family Law would work with Ken's employment materials: the connections between the stereotypes ingrained in the roles of "wife" and "office wife" (which were just beginning to be explored) were even then too clear to overlook. Ken welcomed my participation, and we both agreed that the projected casebook would need the collaboration of an expert on Constitutional Law. Both of us thought of Ruth Bader Ginsburg, who as the Director of the ACLU's Women's Rights Project was already litigating the path-breaking Equal Protection cases before the United States Supreme Court that would ultimately write women into the Constitution for the first time in its history. Neither of us knew her personally, so we arranged to meet her at the AALS-sponsored Conference on The Law School Curriculum and the Legal Rights of Women that she had helped to organize which was to take place at NYU Law School on October 20-21, 1972. (6) A major topic of discussion at the Conference was whether the subject of Women and the Law should remain a stand-alone course, or whether coverage of the subject should be distributed more broadly across the curriculum. …