Open AccessArticle
Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law
Laws 2017, 6(3), 15; doi:10.3390/laws6030015 (registering DOI) -
Abstract
Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is
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Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria’s adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria’s adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia’s obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria’s adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states. Full article
Open AccessArticle
Human Trafficking and Study Abroad
Laws 2017, 6(3), 14; doi:10.3390/laws6030014 -
Abstract
There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals
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There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals belonging to vulnerable populations are often targeted for this method of exploitation. Cultural competency, language barriers, and ignorance as to resources are all factors which contribute to the increased vulnerability of students studying abroad. An institution providing opportunities for international study should develop an effective approach to mitigate the risk of human trafficking through programs designed to enable students to protect themselves and others effectively. This paper comments on best practices for risk management, and explores different avenues and relevant law for increased transparency in study abroad risk. Full article
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Open AccessFeature PaperArticle
IP Things as Boundary Objects: The Case of the Copyright Work
Laws 2017, 6(3), 13; doi:10.3390/laws6030013 (registering DOI) -
Abstract
The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The
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The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The article focuses firstly on the example of copyright work. Relevant challenges are both technological and conceptual, because these things blend the material and the immaterial. Works are neither as clearly defined nor as clearly limited as copyright law often suggests they are. To explain and justify that proposition, the article borrows from information science literature exploring boundary objects, which are stable physical and intangible things that align distinct but overlapping communities of practice in flexible ways, via interpretive openness. The article shows that the meanings of the work in copyright law can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides. This view of the work clarifies the distinct status of relevant communities and practices in copyright but also bridges them in copyright’s construction and governance of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is precisely the governance role illuminated here. Full article
Open AccessArticle
Case Selection in the Russian Constitutional Court: The Role of Legal Assistants
Laws 2017, 6(3), 12; doi:10.3390/laws6030012 -
Abstract
Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of
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Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of the Russian Constitutional Court in the case selection process. The Russian Constitutional Court receives about twenty thousand petitions annually. Nevertheless, only dozens of them are decided on their merits by judges. Through the description of the case movement process we show that the Secretariat does have at least moderate influence on case selection. Using data received from observation and interviews with the Court’s staff and judges, we find that legal assistants’ decision on whether to promote a case to judges is based on different logics of decision making. First, they are bound by legal requirements. However, bureaucratic logic and the logic of appropriateness can also influence the amount of incentives to promote cases to judges. Full article
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Open AccessArticle
Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnership
Laws 2017, 6(3), 11; doi:10.3390/laws6030011 -
Abstract
The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US)
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The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US) (DMCA). Drawing upon the work of Joseph Stiglitz, this paper expresses concerns that the TPP would entrench DMCA measures into the laws of a dozen Pacific Rim countries. This study examines four key jurisdictions—the United States, Canada, Australia, and New Zealand—participating in the TPP. This paper has three main parts. Part 2 focuses upon the takedown-and-notice scheme, safe harbours, and intermediary liability under the TPP. Elements of the safe harbours regime in the DMCA have been embedded into the international agreement. Part 3 examines technological protection measures—especially in light of a constitutional challenge to the DMCA. Part 4 looks briefly at electronic rights management. This paper concludes that the model of the DMCA is unsuitable for a template for copyright protection in the Pacific Rim in international trade agreements. It contends that our future copyright laws need to be responsive to new technological developments in the digital age—such as Big Data, cloud computing, search engines, and social media. There is also a need to resolve the complex interactions between intellectual property, electronic commerce, and investor-state dispute settlement in trade agreements. Full article
Open AccessArticle
Protection for Privacy under the United Nations Convention on the Rights of Persons with Disabilities
Laws 2017, 6(3), 10; doi:10.3390/laws6030010 -
Abstract
Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of
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Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of the article through the deliberations that led up to the final version of the CRPD, which has now been ratified by 173 nations. It analyzes the text of the article and discusses its limited administrative and judicial applications. Finally, it describes the article’s place in current thinking about disability human rights. Full article
Open AccessFeature PaperArticle
Drawing the Line: Disability, Genetic Intervention and Bioethics
Laws 2017, 6(3), 9; doi:10.3390/laws6030009 -
Abstract
Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are
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Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are governed at the international, domestic and individual levels in the future. However, the law cannot easily keep up with the rate of scientific progression. This paper aims to posit a methodology of reform, based on a core value of human dignity, as the optimal course of action to ensure that the interests of persons with disabilities, other possibly marginalised groups, and the scientific community, are balanced fairly. The paper critically analyses the current law and varying bioethical perspectives to ultimately conclude that a clear principled approach toward open discussion and consensus is of paramount importance to have any chance of devising an effective regulatory regime over human gene editing technology. Full article
Open AccessFeature PaperArticle
Victims of Violence: The Forced Sterilisation of Women and Girls with Disabilities in Australia
Laws 2017, 6(3), 8; doi:10.3390/laws6030008 -
Abstract
This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a
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This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a sterilising procedure. It is by no means an exhaustive coverage, but aims to critically analyse the current system and make recommendations for reform of Australian law and policy. This paper ultimately concludes that the practice of forced sterilisation in Australia should be criminalised, save for exceptional circumstances. Full article
Open AccessFeature PaperArticle
Human Rights and Social Justice
Laws 2017, 6(2), 7; doi:10.3390/laws6020007 -
Abstract
This paper addresses the question of the normative domains of human rights and social justice. Today, the dominant view in political philosophy is that they occupy largely distinct spheres, with social justice being a set of stronger egalitarian norms and human rights functioning
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This paper addresses the question of the normative domains of human rights and social justice. Today, the dominant view in political philosophy is that they occupy largely distinct spheres, with social justice being a set of stronger egalitarian norms and human rights functioning as baseline protections against common threats posed by states to the general interests of persons subjected to them. Reflecting on current human rights practice and discourse, this paper develops a reconstructed normative model of social justice and human rights as nested membership norms in political societies. By connecting membership to processes of political legitimacy, human rights are conceptualized as increasingly functioning as the language of contesting and reforming barriers of exclusion to that status. This leads to an understanding of the possible content of human rights that is dynamic and relational, bringing it closer in line with the egalitarianism of social justice. Full article
Open AccessFeature PaperArticle
A New Approach to Abortion Informed Consent Laws: How An Evidence Law Framework Can Clarify Casey’s Truthful, Non-Misleading Standard
Laws 2017, 6(2), 6; doi:10.3390/laws6020006 -
Abstract
United States Supreme Court doctrine has, for a quarter century, permitted regulations designed—through facts or nudges, but not force—to persuade pregnant women to choose childbirth over abortion. States have increasingly exceeded the bounds of this persuasive power by subjecting women to emotive and
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United States Supreme Court doctrine has, for a quarter century, permitted regulations designed—through facts or nudges, but not force—to persuade pregnant women to choose childbirth over abortion. States have increasingly exceeded the bounds of this persuasive power by subjecting women to emotive and potentially distressing ‘information’ like real-time fetal images, heart beat recordings, or state-mandated directives by their doctors that abortion would “terminate the life of a whole, separate, unique, living human being.” This article advances a novel approach to informed consent in abortion that draws on established principles in the U.S. Federal Rules of Evidence (FRE). Evidentiary rules requiring “completeness”, exempting “common knowledge”, and prohibiting evidence that is “more prejudicial than probative” provide a sounder way for courts to determine which informed consent regulations on abortion mislead and demean a woman in ways that violate her constitutional right to make the ultimate decision about whether to continue a pregnancy. This evidence law framework would resolve conflicts between a woman’s right and the state’s interest by forbidding mandatory disclosures of incomplete, unnecessary, and emotionally charged information designed to promote childbirth over abortion. Full article
Open AccessArticle
Prospects for a Sports Ombudsman in Canada
Laws 2017, 6(1), 5; doi:10.3390/laws6010005 -
Abstract
This article examines the potential of using an Ombudsman to resolve sports related disputes, and further researches underway in Canada to incorporate an Ombudsman scheme. The article looks at the various types of Ombudsmen, the existing Ombudsman or Ombudsman-like dispute resolution schemes concerning
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This article examines the potential of using an Ombudsman to resolve sports related disputes, and further researches underway in Canada to incorporate an Ombudsman scheme. The article looks at the various types of Ombudsmen, the existing Ombudsman or Ombudsman-like dispute resolution schemes concerning sport, and provides guidance on the establishment of a nation-wide scheme for Canada. The article finds that the addition of a sports Ombudsman to ADR services already provided by the Sport Dispute Resolution Centre of Canada would be of benefit to athletes and the sports community. Full article
Open AccessFeature PaperArticle
Enfranchised Minors: Women as People in the Middle East after the 2011 Arab Uprisings
Laws 2017, 6(1), 4; doi:10.3390/laws6010004 -
Abstract
The civic status of female citizens in the Middle East and North Africa (MENA) region is conceptualized as “enfranchised minorhood” which reflects the confined position of adult women as legal minors under the trusteeship of male kin in family law, criminal law, and
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The civic status of female citizens in the Middle East and North Africa (MENA) region is conceptualized as “enfranchised minorhood” which reflects the confined position of adult women as legal minors under the trusteeship of male kin in family law, criminal law, and nationality law. During and in the aftermath of the Uprisings that erupted throughout MENA in 2011, female lawyers in Morocco, Lebanon, and Kuwait allied with women’s groups and pressured for reforms in patriarchal state laws. By 2015, reforms were manifest in criminal law; incremental in family law; and absent in nationality law. Theoretical conclusions based on comparative analysis of societal pressures in three states indicate that long historical trajectories are imperative for substantiating the expansion of female citizenship following the 2011 Uprisings. Additionally, the civic status of women in the MENA region is being strengthened under authoritarian monarchical rule in Kuwait and Morocco. A third finding is that pressures for reform have more visible reverberations in legal spheres with a clerical imprint such as family law and criminal law, while strengthened pressures in a secular legal sphere such as nationality law have been opposed more forcefully five years after the Uprisings. Full article
Open AccessFeature PaperArticle
Online Shaming and the Right to Privacy
Laws 2017, 6(1), 3; doi:10.3390/laws6010003 -
Abstract
This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points
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This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points of analytical friction within and between traditional conceptions of privacy. To that end, this paper first explores the narrative and structure of online shaming, identifying broad categories of shaming of vigilantism, bullying, bigotry and gossiping, which are then used throughout the paper to evaluate different angles to the privacy problems raised. Second, this paper examines shaming through three dominant debates concerning privacy—privacy’s link with dignity, the right to privacy in public places and the social dimension of privacy. Certain themes emerged from this analysis. A common feature of online shaming is public humiliation. A challenge is to differentiate between a humbling (rightly knocking someone down a peg for a social transgression) and a humiliation that is an affront to dignity (wrongly knocking someone down a peg). In addition, the privacy concern of shamed individuals is not necessarily about intrusion on seclusion or revelation of embarrassing information, but rather about the disruption in their ability to continue to participate in online spaces free from attack. The privacy interest therefore becomes more about enabling participation in social spaces, enabling connections and relationships to form, and about enabling identity-making. Public humiliation through shaming can disrupt all of these inviting closer scrutiny concerning how law can be used as an enabling rather than secluding tool. Full article
Open AccessArticle
Collegiality, Therapy and Mediation—The Contribution of Experts in Swedish Mental Health Law
Laws 2017, 6(1), 2; doi:10.3390/laws6010002 -
Abstract
Independent experts serve a vital role in how the human rights of patients are protected in mental health law. This article investigates the contribution of court-appointed psychiatrists (APs) in civil commitment court hearings. Analysis is based on 12 court hearings that were audiotaped.
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Independent experts serve a vital role in how the human rights of patients are protected in mental health law. This article investigates the contribution of court-appointed psychiatrists (APs) in civil commitment court hearings. Analysis is based on 12 court hearings that were audiotaped. Supplementary informal interviews with participants were also conducted. Data were analysed through a combination of rhetoric analysis and discourse analysis. Analysis of the hearings reveals that APs do not fulfil their function to critically investigate treating psychiatrists’ (CPs) recommendations that patients meet commitment criteria. They typically do not ask any questions from CPs, and the few questions that are asked do not cast light on the legal issues at stake. To further understand the role of APs, their communication has been analyzed in terms of four interpretative repertoires: collegial, disclosing, therapeutic and mediating. In conclusion, the human rights of patients subjected to involuntary commitment might be at risk when therapeutic concerns are built into the process. The specific Swedish model where APs deliver their own assessment about whether commitment criteria are met may be counterproductive. This argument possibly extends to the role of medical members in mental health tribunals in the United Kingdom, Australia and New Zealand. Full article
Open AccessEditorial
Acknowledgement to Reviewers of Laws in 2016
Laws 2017, 6(1), 1; doi:10.3390/laws6010001 -
Abstract
The editors of Laws would like to express their sincere gratitude to the following reviewers for assessing manuscripts in 2016.[...] Full article
Open AccessFeature PaperArticle
Assessing the UN High-Level Panel on Access to Medicines Report in Light of the Right to Health
Laws 2016, 5(4), 43; doi:10.3390/laws5040043 -
Abstract
Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the
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Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the “policy incoherence” between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel’s recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel’s final report comply with these duties and accordingly with the right to health. Full article
Open AccessFeature PaperArticle
What Has Limited the Impact of UK Disability Equality Law on Social Justice?
Laws 2016, 5(4), 42; doi:10.3390/laws5040042 -
Abstract
The literature indicates that disabled workers in the UK experience more social injustice than UK workers as a whole, including in relation to employment rates and wage levels. Drawing on the author’s 2015 qualitative study of 265 disabled workers, this paper considers how
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The literature indicates that disabled workers in the UK experience more social injustice than UK workers as a whole, including in relation to employment rates and wage levels. Drawing on the author’s 2015 qualitative study of 265 disabled workers, this paper considers how successful the Equality Act 2010 Reasonable Adjustments Duty has been in tackling this social injustice. It finds that in the context of the “flexible” labour force (consisting of insecure jobs), and the “reformed” welfare state, the Reasonable Adjustments Duty is ill-equipped to achieve its original purpose of reducing the substantial disadvantage that disabled workers face. As regards the “flexible” labour force, there appeared, for example, to be a strong reluctance to make reasonable adjustments for workers on zero hours contracts; while, as regards the impact of welfare reform, fear of being dismissed and facing benefit sanctions discouraged zero hours workers from pushing for adjustments which had been refused. The paper goes on to suggest a possible wording for a strengthened Reasonable Adjustments Duty. It concludes, however, that, without changes to unfair dismissal, and other labour laws, to address the wider iniquities of the flexible labour market, a strengthened duty will not be able to prevent a long term increase in social injustice for disabled workers. Full article
Open AccessArticle
Liberal or Conservative? Genetic Rhetoric, Disability, and Human Species Modification
Laws 2016, 5(4), 41; doi:10.3390/laws5040041 -
Abstract
A certain political rhetoric is implicit and sometimes explicit in the advocacy of human genetic modification (indicating here both the enhancement and the prevention of disability). The main claim is that it belongs to a liberal tradition. From a perspective supplied by the
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A certain political rhetoric is implicit and sometimes explicit in the advocacy of human genetic modification (indicating here both the enhancement and the prevention of disability). The main claim is that it belongs to a liberal tradition. From a perspective supplied by the history and philosophy of science rather than by ethics, the content of that claim is examined to see if such a self-description is justified. The techniques are analyzed by which apparently liberal arguments get to be presented as “reasonable” in a juridical sense that draws on theories of law and rhetoric. Full article
Open AccessFeature PaperArticle
Copyright, Culture, and Community in Virtual Worlds
Laws 2016, 5(4), 40; doi:10.3390/laws5040040 -
Abstract
Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized
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Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized uses of the content. Such exclusive rights impose a limiting factor on the development of communities that are situated around the interface content, as the rights, privileges, and exceptions associated with copyright generally tend to disregard the cultural significance of copyrighted content. This limiting effect of copyright is well illustrated by examination of the copying of content by virtual diaspora communities such as that formed around the game Uru: Ages of Myst; thus, the opportunity for on-line communities to legally access the graphical elements on which those communities are built is fraught with potential legal liability. This presents the reciprocal situation from efforts to protect the cultural properties of indigenous communities as traditional knowledge. Reconsideration of current copyright law would be required in order to accommodate the cohesion of on-line communities and related cultural uses of copyrighted content. Full article
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Open AccessFeature PaperArticle
Precedents, Patterns and Puzzles: Feminist Reflections on the First Women Lawyers
Laws 2016, 5(4), 39; doi:10.3390/laws5040039 -
Abstract
This paper initially examines the historical precedents established by some of the first women who entered the “gentleman’s profession” of law in different jurisdictions, as well as the biographical patterns that shaped some women’s ambitions to enter the legal professions. The paper then
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This paper initially examines the historical precedents established by some of the first women who entered the “gentleman’s profession” of law in different jurisdictions, as well as the biographical patterns that shaped some women’s ambitions to enter the legal professions. The paper then uses feminist methods and theories to interpret “puzzles that remain unsolved” about early women lawyers, focusing especially on two issues. One puzzle is the repeated claims on the part of many of these early women lawyers that they were “lawyers”, and not “women lawyers”, even as they experienced exclusionary practices and discrimination on the part of male lawyers and judges—a puzzle that suggests how professional culture required women lawyers to conform to existing patterns in order to succeed. A second puzzle relates to the public voices of early women lawyers, which tended to suppress disappointments, difficulties and discriminatory practices. In this context, feminist theories suggest a need to be attentive to the “silences” in women’s stories, including the stories of the lives of early women lawyers. Moreover, these insights may have continuing relevance for contemporary women lawyers because it is at least arguable that, while there have been changes in women’s experiences, there has been very little transformation in their work status in relation to men. Full article