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Volumn 108, Issue 7, 1999, Pages 1805-1843

Clearing the smoke-filled room: Women jurors and the disruption of an old-boys' network in nineteenth-century America

(1)  Rodríguez, Cristina M a  

a NONE

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EID: 8844286021     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797451     Document Type: Article
Times cited : (13)

References (214)
  • 1
    • 8844279476 scopus 로고
    • Women Jurors
    • Nov.
    • See Lelia J. Robinson, Women Jurors, CHI. L. TIMES, Nov. 1886, at 22.
    • (1886) Chi. L. Times , pp. 22
    • Robinson, L.J.1
  • 2
    • 8844285604 scopus 로고    scopus 로고
    • Id. at 23-24
    • Id. at 23-24.
  • 3
    • 8844254322 scopus 로고    scopus 로고
    • Id. at 28
    • Id. at 28.
  • 4
    • 8844233858 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 5
    • 0043049295 scopus 로고
    • Women Lawyers and the Quest for Professional Identity in Late Nineteenth-Century America
    • See Robinson's Case, 131 Mass. 376 (1881), discussed infra Section II.C. Though denied access to the bar by the court in response to her initial petition, Robinson eventually became Massachusetts's first woman lawyer. See Virginia G. Drachman, Women Lawyers and the Quest for Professional Identity in Late Nineteenth-Century America, 88 MICH. L. REV. 2414, 2414 (1990). She eventually was admitted by legislative enactment. See Ellen A. Martin, Admission of Women to the Bar, CHI. L. TIMES, Nov. 1886, at 85.
    • (1990) Mich. L. Rev. , vol.88 , pp. 2414
    • Drachman, V.G.1
  • 6
    • 8844255095 scopus 로고
    • Admission of Women to the Bar
    • Nov.
    • See Robinson's Case, 131 Mass. 376 (1881), discussed infra Section II.C. Though denied access to the bar by the court in response to her initial petition, Robinson eventually became Massachusetts's first woman lawyer. See Virginia G. Drachman, Women Lawyers and the Quest for Professional Identity in Late Nineteenth-Century America, 88 MICH. L. REV. 2414, 2414 (1990). She eventually was admitted by legislative enactment. See Ellen A. Martin, Admission of Women to the Bar, CHI. L. TIMES, Nov. 1886, at 85.
    • (1886) Chi. L. Times , pp. 85
    • Martin, E.A.1
  • 7
    • 0001997213 scopus 로고
    • "One United People": Second-Class Female Citizenship and the American Quest for Community
    • For a discussion of the relationship between gender and citizenship in the 19th century, see Rogers M. Smith, "One United People": Second-Class Female Citizenship and the American Quest for Community, 1 YALE J.L. & HUMAN. 229 (1989).
    • (1989) Yale J.L. & Human , vol.1 , pp. 229
    • Smith, R.M.1
  • 8
    • 84917296787 scopus 로고    scopus 로고
    • Feminist Lawyers
    • See, e.g., Barbara Allen Babcock, Feminist Lawyers, 50 STAN. L. REV. 1689, 1696 (1998) (reviewing VIRGINIA DRACHMAN, SISTERS IN LAW: WOMEN LAWYERS IN MODERN AMERICAN HISTORY (1998)). For a critique of the scholarship in this field, see also infra Section I.A.
    • (1998) Stan. L. Rev. , vol.50 , pp. 1689
    • Babcock, B.A.1
  • 9
    • 0002080862 scopus 로고    scopus 로고
    • See, e.g., Barbara Allen Babcock, Feminist Lawyers, 50 STAN. L. REV. 1689, 1696 (1998) (reviewing VIRGINIA DRACHMAN, SISTERS IN LAW: WOMEN LAWYERS IN MODERN AMERICAN HISTORY (1998)). For a critique of the scholarship in this field, see also infra Section I.A.
    • (1998) Sisters in Law: Women Lawyers in Modern American History
    • Drachman, V.1
  • 10
    • 8844277998 scopus 로고    scopus 로고
    • 100 U.S. 303, 310 (1880)
    • 100 U.S. 303, 310 (1880).
  • 11
    • 85050788465 scopus 로고
    • The Nineteenth Amendment and Women's Equality
    • Note
    • See, e.g., Jennifer K. Brown, Note, The Nineteenth Amendment and Women's Equality, 102 YALE L.J. 2175, 2176-77 (1993) (arguing that Strauder served as important precedent after the passage of the Nineteenth Amendment for establishing that voting and jury service were intertwined for women). Even a brief consideration of the Court's opinion in Strauder reveals that the Court rendered the decision in the highly particularized context of the Reconstruction Amendments. The attempt to generalize jury service as a direct function of voting beyond the emancipation context is therefore not well-supported by Strauder.
    • (1993) Yale L.J. , vol.102 , pp. 2175
    • Brown, J.K.1
  • 12
    • 0039308352 scopus 로고
    • A Place in the Palladium: Women's Rights and Jury Service
    • Barbara Allen Babcock, A Place in the Palladium: Women's Rights and Jury Service, 61 U. CIN. L. REV. 1139, 1165 (1993).
    • (1993) U. Cin. L. Rev. , vol.61 , pp. 1139
    • Babcock, B.A.1
  • 13
    • 8844224493 scopus 로고    scopus 로고
    • See id. at 1166-74
    • See id. at 1166-74.
  • 14
    • 8844249688 scopus 로고    scopus 로고
    • Babcock, supra note 10, at 1166
    • Babcock, supra note 10, at 1166.
  • 15
    • 0002080862 scopus 로고    scopus 로고
    • See id. at 1165-66. In her analysis of the activism of the first women lawyers, Babcock argues that Virginia Drachman mistakenly portrays them as engaged in a separate and self-interested struggle, contending instead that they were "self-conscious feminists" and should therefore be understood as fused with women who battled for suffrage. See Babcock, supra note 7, at 1699-1700. In her most recent work on women lawyers in the 19th century, Drachman acknowledges that women lawyers linked their cause to gain access to the bar to the suffrage struggle. See VIRGINIA DRACHMAN, SISTERS IN LAW: WOMEN LAWYERS IN MODERN AMERICAN HISTORY 2 (1998). Approaching the history of women's rights from this "bundled" perspective is not entirely inconsistent with a history according to which each of the spheres to which women sought access related to the others. The Western experiments reveal, however, that using suffrage as the umbrella cause diminishes the significance of the battle to gain access to the courtroom.
    • (1998) Sisters in Law: Women Lawyers in Modern American History , pp. 2
    • Drachman, V.1
  • 16
    • 0009249718 scopus 로고
    • Images of the Woman Juror
    • See, e.g., Carol Weisbrod, Images of the Woman Juror, 9 HARV. WOMEN'S L.J. 59, 63-67 (1986) (discussing the jury debate in terms of the impact women's service would have on the home); see also Shirley S. Abrahamson, Justice and Juror, 20 GA. L. REV. 257, 262-76 (1986) (characterizing opposition to women jurors in the 19th and 20th centuries as consisting of familiar refrains opposing women's entrance into public life); Babcock, supra note 7, at 1697-98 (treating women voters, lawyers, and jurors as part and parcel of the same cause).
    • (1986) Harv. Women's L.J. , vol.9 , pp. 59
    • Weisbrod, C.1
  • 17
    • 8844279470 scopus 로고
    • Justice and Juror
    • See, e.g., Carol Weisbrod, Images of the Woman Juror, 9 HARV. WOMEN'S L.J. 59, 63-67 (1986) (discussing the jury debate in terms of the impact women's service would have on the home); see also Shirley S. Abrahamson, Justice and Juror, 20 GA. L. REV. 257, 262-76 (1986) (characterizing opposition to women jurors in the 19th and 20th centuries as consisting of familiar refrains opposing women's entrance into public life); Babcock, supra note 7, at 1697-98 (treating women voters, lawyers, and jurors as part and parcel of the same cause).
    • (1986) Ga. L. Rev. , vol.20 , pp. 257
    • Abrahamson, S.S.1
  • 18
    • 8844239544 scopus 로고    scopus 로고
    • See Babcock, supra note 7, at 1697-98
    • See Babcock, supra note 7, at 1697-98.
  • 19
    • 8844281885 scopus 로고    scopus 로고
    • note
    • See, e.g., id. at 1696 (paralleling practicing law with voting by noting that similar rhetorical charges were launched by opponents of both); Babcock, supra note 10, at 1167 (noting that "[w]hether it was the vote, jury service, or entry to the professions that women sought, they met the same contentions about their rightful roles").
  • 20
    • 21844496661 scopus 로고
    • Jury Service as Political Participation Akin to Voting
    • See Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203 (1995).
    • (1995) Cornell L. Rev. , vol.80 , pp. 203
    • Amar, V.D.1
  • 21
    • 8844247519 scopus 로고    scopus 로고
    • See id. at 206
    • See id. at 206.
  • 22
    • 8844225971 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 23
    • 8844282218 scopus 로고    scopus 로고
    • note
    • Put simply, suffrage has been a necessary, though by no means sufficient, condition for jury service.
  • 25
    • 8844268733 scopus 로고    scopus 로고
    • note
    • See infra Section I.C (describing the range of reactions to the experiments).
  • 26
    • 8844235780 scopus 로고
    • The First Woman Jury
    • An Act to Grant to the Women of the Wyoming Territory the Right of Suffrage and to Hold Office, ch. 31, 1869 Wyo. Terr. Laws 371 [hereinafter Wyoming Suffrage Act]. A group of middle-class men and women lobbied the legislature to pass the Act, and to the surprise of many in the legislature, women's suffrage prevailed. See Grace Raymond Hebard, The First Woman Jury, 7 J. AM. HIST. 1293 (1913). In addition to the Suffrage Act, the Wyoming legislature passed a married women's property act, borrowing statutory language from Colorado - the first territory to enact such legislation. The legislature also passed laws forbidding sex discrimination in the hiring of teachers and a resolution allowing women to attend legislative sessions. An amendment to the suffrage law granting "colored women and squaws" the right to vote did not pass. See T.A. LARSON, HISTORY OF WYOMING 78-79 (1978). The Washington Territory engaged in similar mixed jury experiments in the 1880s. See infra Section I.D. In 1898, Utah became the first state to permit women to serve on juries. See Abrahamson, supra note 14, at 264.
    • (1913) J. Am. Hist. , vol.7 , pp. 1293
    • Hebard, G.R.1
  • 27
    • 0040626065 scopus 로고
    • An Act to Grant to the Women of the Wyoming Territory the Right of Suffrage and to Hold Office, ch. 31, 1869 Wyo. Terr. Laws 371 [hereinafter Wyoming Suffrage Act]. A group of middle-class men and women lobbied the legislature to pass the Act, and to the surprise of many in the legislature, women's suffrage prevailed. See Grace Raymond Hebard, The First Woman Jury, 7 J. AM. HIST. 1293 (1913). In addition to the Suffrage Act, the Wyoming legislature passed a married women's property act, borrowing statutory language from Colorado - the first territory to enact such legislation. The legislature also passed laws forbidding sex discrimination in the hiring of teachers and a resolution allowing women to attend legislative sessions. An amendment to the suffrage law granting "colored women and squaws" the right to vote did not pass. See T.A. LARSON, HISTORY OF WYOMING 78-79 (1978). The Washington Territory engaged in similar mixed jury experiments in the 1880s. See infra Section I.D. In 1898, Utah became the first state to permit women to serve on juries. See Abrahamson, supra note 14, at 264.
    • (1978) History of Wyoming , pp. 78-79
    • Larson, T.A.1
  • 28
    • 8844287932 scopus 로고    scopus 로고
    • Wyoming Suffrage Act, 1869 Wyo. Terr. Laws, at 371
    • Wyoming Suffrage Act, 1869 Wyo. Terr. Laws, at 371.
  • 29
    • 8844277285 scopus 로고    scopus 로고
    • Letter from C.G. Coutant to Frank W. Mondell (n.d.), reprinted in LARSON, supra note 23, at 80
    • Letter from C.G. Coutant to Frank W. Mondell (n.d.), reprinted in LARSON, supra note 23, at 80.
  • 30
    • 8844222382 scopus 로고    scopus 로고
    • See LARSON, supra note 23, at 80 n.10
    • See LARSON, supra note 23, at 80 n.10.
  • 33
    • 8844283024 scopus 로고    scopus 로고
    • See LARSON, supra note 23, at 84-85. Mixed grand and petit juries were formed in Cheyenne in 1871 as well. See id. at 85
    • See LARSON, supra note 23, at 84-85. Mixed grand and petit juries were formed in Cheyenne in 1871 as well. See id. at 85.
  • 34
    • 8844241094 scopus 로고    scopus 로고
    • GUICE, supra note 27, at 9
    • GUICE, supra note 27, at 9.
  • 35
    • 8844282221 scopus 로고
    • Constitutional Obligations and Woman's Citizenship
    • See Percy L. Edwards, Constitutional Obligations and Woman's Citizenship, 75 CENT. L.J. 244, 245, 247 (1912) (discussing the relationship between developments in the West and settled custom in the East).
    • (1912) Cent. L.J. , vol.75 , pp. 244
    • Edwards, P.L.1
  • 36
    • 8844241093 scopus 로고
    • Letter from J.H. Howe to S.W. Downey (Mar. 3, 1870), reprinted in 3 HISTORY OF WOMAN SUFFRAGE 732 (Elizabeth Cady Stanton et al. eds., 1886). Court battles over women jurors a decade later would revisit whether a statute granting women suffrage could also give women status as jurors. See infra Subsection I.D.2.
    • (1886) History of Woman Suffrage , vol.3 , pp. 732
    • Stanton, E.C.1
  • 37
    • 8844240321 scopus 로고    scopus 로고
    • supra note 32
    • See Hebard, supra note 23, at 1304; 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 733.
    • History of Woman Suffrage , vol.3 , pp. 733
  • 38
    • 8844240321 scopus 로고    scopus 로고
    • supra note 32
    • 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 733. Though Justice Howe was not an initial advocate of the mixed jury, he approached the execution of the experiments as part of his judicial duty and gradually came to feel satisfaction with and admiration for the work of the women jurors. See Letter from J.H. Howe to Myra Bradwell (Apr. 4, 1870), reprinted in CHI. LEGAL NEWS, Apr. 9, 1870, at 220.
    • History of Woman Suffrage , vol.3 , pp. 733
  • 39
    • 8844238748 scopus 로고    scopus 로고
    • Apr. 9, 1870
    • 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 733. Though Justice Howe was not an initial advocate of the mixed jury, he approached the execution of the experiments as part of his judicial duty and gradually came to feel satisfaction with and admiration for the work of the women jurors. See Letter from J.H. Howe to Myra Bradwell (Apr. 4, 1870), reprinted in CHI. LEGAL NEWS, Apr. 9, 1870, at 220.
    • Chi. Legal News , pp. 220
  • 40
  • 41
    • 85056711499 scopus 로고    scopus 로고
    • Judge Kingman and Woman Jurors
    • Apr. 3, 1870
    • Letter from Judge John W. Kingman to Seth Paine (n.d.), reprinted in Judge Kingman and Woman Jurors, CHI. LEGAL NEWS, Apr. 3, 1870, at 213.
    • Chi. Legal News , pp. 213
  • 42
    • 8844285596 scopus 로고    scopus 로고
    • note
    • See GUICE, supra note 27, at 132. Guice discusses Kingman's role in the movement as an active supporter and excerpts a letter, written on September 22, 1874 by John W. Kingman to Lucy Stone. Kingman wrote: "A woman will not consent to be a butterfly when she can of her own choice become an eagle! Let her enjoy the ambitions of life; let her be able to secure its honors, its riches, its high places, and she will not be its toy or its simple ornament." Id.
  • 43
    • 8844279700 scopus 로고    scopus 로고
    • See Letter from Judge John W. Kingman to Seth Paine, supra note 36, at 213
    • See Letter from Judge John W. Kingman to Seth Paine, supra note 36, at 213.
  • 44
    • 8844274470 scopus 로고    scopus 로고
    • supra note 36
    • Judge Kingman and Woman Jurors, supra note 36, at 213. John D.W. Guice describes the judges of the territory as "thrust into perhaps the wildest political scramble in American history." GUICE, supra note 27, at 48.
    • Judge Kingman and Woman Jurors , pp. 213
  • 45
    • 8844274470 scopus 로고    scopus 로고
    • supra note 36
    • Judge Kingman and Woman Jurors, supra note 36, at 213 (referring to the justices as "firm, honest men").
    • Judge Kingman and Woman Jurors , pp. 213
  • 46
    • 8844238749 scopus 로고
    • Woman Suffrage in Wyoming
    • Woman Suffrage in Wyoming, 7 WOMAN'S J. 36 (1876) (providing an account of Justice Kingman's testimony before the Joint Special Committee of the Massachusetts Legislature on Woman Suffrage). In their account of the Wyoming experiments, the editors of History of Woman Suffrage noted similar changes. The bar seemed to have been on its best behavior, such that "wrangling, abuse, and buncome speeches were not heard. When men moved about they walked quietly, on tip-toe, so as to make no noise, and forebore to whisper or make any demonstrations in or around the court-room." 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 734.
    • (1876) Woman's J. , vol.7 , pp. 36
  • 47
    • 8844251160 scopus 로고    scopus 로고
    • supra note 32
    • Woman Suffrage in Wyoming, 7 WOMAN'S J. 36 (1876) (providing an account of Justice Kingman's testimony before the Joint Special Committee of the Massachusetts Legislature on Woman Suffrage). In their account of the Wyoming experiments, the editors of History of Woman Suffrage noted similar changes. The bar seemed to have been on its best behavior, such that "wrangling, abuse, and buncome speeches were not heard. When men moved about they walked quietly, on tip-toe, so as to make no noise, and forebore to whisper or make any demonstrations in or around the court-room." 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 734.
    • History of Woman Suffrage , vol.3 , pp. 734
  • 48
    • 8844228572 scopus 로고
    • A Lady among the Lawyers
    • Oct. 29, quoted in DRACHMAN, supra note 7, at 87-88
    • A Lady Among the Lawyers, CHI. LEGAL NEWS, Oct. 29, 1870, at 36, quoted in DRACHMAN, supra note 7, at 87-88.
    • (1870) Chi. Legal News , pp. 36
  • 49
    • 8844251847 scopus 로고    scopus 로고
    • See supra notes 1-5 and accompanying text
    • See supra notes 1-5 and accompanying text.
  • 50
    • 8844244378 scopus 로고    scopus 로고
    • supra note 32
    • See Hebard, supra note 23, at 1313; Letter from J.H. Howe to Myra Bradwell (Apr. 14, 1870), reprinted in 3 HISTORY OF WOMAN SUFFRAGE supra note 32, at 736-37.
    • History of Woman Suffrage , vol.3 , pp. 736-737
  • 51
    • 8844252635 scopus 로고
    • Elizabeth Cady Stanton et al. eds.
    • This claim that women would be incapable of administering justice for men as the result of an inability to "relate" dominated the rhetoric of women's rights advocates who agitated for women's jury service, in an inverse form. Their arguments stemmed from the premise that women should be judged by their peers and not their sovereigns. In a speech to a women's rights convention in Syracuse, activist Antoinette Brown offered this sentiment: When woman is tried for crime, her jury, her judges, her advocates, are all men; and yet there may have been temptations and various palliating circumstances connected with her peculiar nature as woman, such as man can not [sic] appreciate. Common justice demands that a part of the law-makers and law executors should be of her own sex. 1 HISTORY OF WOMAN SUFFRAGE 525 (Elizabeth Cady Stanton et al. eds., 1881); see also A Flaw in the Jury System, 24 WOMAN'S J. 188 (1893) (noting that the average woman, as a woman, would be better able to judge other women and that the "nineteenth century would seem to be old enough now to concede that a woman on trial for her life or liberty has the right to have equal sex representation on the jury that is to pass upon her guilt or innocence").
    • (1881) History of Woman Suffrage , vol.1 , pp. 525
  • 52
    • 84903358949 scopus 로고
    • A Flaw in the Jury System
    • This claim that women would be incapable of administering justice for men as the result of an inability to "relate" dominated the rhetoric of women's rights advocates who agitated for women's jury service, in an inverse form. Their arguments stemmed from the premise that women should be judged by their peers and not their sovereigns. In a speech to a women's rights convention in Syracuse, activist Antoinette Brown offered this sentiment: When woman is tried for crime, her jury, her judges, her advocates, are all men; and yet there may have been temptations and various palliating circumstances connected with her peculiar nature as woman, such as man can not [sic] appreciate. Common justice demands that a part of the law-makers and law executors should be of her own sex. 1 HISTORY OF WOMAN SUFFRAGE 525 (Elizabeth Cady Stanton et al. eds., 1881); see also A Flaw in the Jury System, 24 WOMAN'S J. 188 (1893) (noting that the average woman, as a woman, would be better able to judge other women and that the "nineteenth century would seem to be old enough now to concede that a woman on trial for her life or liberty has the right to have equal sex representation on the jury that is to pass upon her guilt or innocence").
    • (1893) Woman's J. , vol.24 , pp. 188
  • 53
    • 8844244378 scopus 로고    scopus 로고
    • supra note 32
    • See 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 736-37.
    • History of Woman Suffrage , vol.3 , pp. 736-737
  • 54
    • 8844242877 scopus 로고    scopus 로고
    • See id. at 736-37
    • See id. at 736-37.
  • 55
    • 8844255087 scopus 로고    scopus 로고
    • Id. at 731
    • Id. at 731.
  • 56
    • 8844247525 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 57
    • 8844255810 scopus 로고    scopus 로고
    • See GUICE, supra note 27, at 132
    • See GUICE, supra note 27, at 132.
  • 58
    • 8844283770 scopus 로고
    • July 30, quoting LAW TIMES (London)
    • CHI. LEGAL NEWS, July 30, 1870, at 351 (quoting LAW TIMES (London)). The London paper advocated jury service by women on the premise that it would allow "busy tradesmen" to send their wives and daughters as substitutes, indicating a conception of jury service as a burden, or as a public function secondary to the plying of one's trade. Id.
    • (1870) Chi. Legal News , pp. 351
  • 59
    • 8844246044 scopus 로고    scopus 로고
    • See Edwards, supra note 31, at 244
    • See Edwards, supra note 31, at 244.
  • 60
    • 8844256941 scopus 로고
    • Females in the Jury Box
    • Mar. 1
    • N.A. Baker, Females in the Jury Box, CHEYENNE DAILY LEADER, Mar. 1, 1870, at 1.
    • (1870) Cheyenne Daily Leader , pp. 1
    • Baker, N.A.1
  • 61
    • 8844277284 scopus 로고
    • Entering the Male Domain: Women Lawyers in the Courtroom in Modern American History
    • See, e.g., DRACHMAN, supra note 7, at 73; Virginia G. Drachman, Entering the Male Domain: Women Lawyers in the Courtroom in Modern American History, 77 MASS. L. REV. 44, 45 & n.5 (1992) (quoting William P. Rogers as expressing doubts about women lawyers' capacities to withstand die "continual contest" of the courtroom and noting that men believed women's purity made them unfit for the sordidness of trial work).
    • (1992) Mass. L. Rev. , vol.77 , Issue.5 , pp. 44
    • Drachman, V.G.1
  • 62
    • 8844224495 scopus 로고    scopus 로고
    • Baker, supra note 53, at 1
    • Baker, supra note 53, at 1.
  • 63
    • 8844279471 scopus 로고    scopus 로고
    • See Drachman, supra note 54, at 45
    • See Drachman, supra note 54, at 45.
  • 64
    • 8844268009 scopus 로고    scopus 로고
    • supra note 32
    • PHILA. PRESS (n.d.), reprinted in 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 735.
    • History of Woman Suffrage , vol.3 , pp. 735
  • 65
    • 8844268009 scopus 로고    scopus 로고
    • supra note 32
    • NEW ORLEANS TIMES (n.d.), reprinted in 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 735.
    • History of Woman Suffrage , vol.3 , pp. 735
  • 66
    • 8844237265 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 67
    • 8844256942 scopus 로고    scopus 로고
    • PHILA. PRESS, supra note 57, at 735. For the Howie verdict, see infra Subsection I.C.2
    • PHILA. PRESS, supra note 57, at 735. For the Howie verdict, see infra Subsection I.C.2.
  • 68
    • 8844283025 scopus 로고    scopus 로고
    • Baker, supra note 53, at 1
    • Baker, supra note 53, at 1.
  • 69
    • 8844272109 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 70
    • 8844275626 scopus 로고
    • Ridiculosity
    • Feb. 15
    • In response to Susan B. Anthony's claim that motherhood could be compatible with political participation by women, a young Wyoming settler wrote, "So it appears that this old maid whom celibacy has dried ... would apply to the human species 'the same laws that govern lower animals.' What does she know about it?" Ridiculosity, CHEYENNE DAILY LEADER, Feb. 15, 1870, at 1.
    • (1870) Cheyenne Daily Leader , pp. 1
  • 71
    • 8844260774 scopus 로고    scopus 로고
    • See DRACHMAN, supra note 7, at 101-06
    • See DRACHMAN, supra note 7, at 101-06.
  • 72
    • 8844238750 scopus 로고    scopus 로고
    • Hebard, supra note 23, at 1313
    • Hebard, supra note 23, at 1313.
  • 73
    • 8844243611 scopus 로고    scopus 로고
    • Id. at 1316
    • Id. at 1316.
  • 74
    • 8844253567 scopus 로고    scopus 로고
    • note
    • It was not until 50 years after the trial that the original breakdown of the jury vote became known: One woman voted for first degree murder, two women voted for second degree murder, three women voted for manslaughter, three men voted for manslaughter, and three men pronounced Howie not guilty. See id. at 1315.
  • 75
    • 8844265671 scopus 로고    scopus 로고
    • Letter from J.H. Howe to Myra Bradwell, supra note 44, at 736
    • Letter from J.H. Howe to Myra Bradwell, supra note 44, at 736.
  • 76
    • 8844285598 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 77
    • 8844274470 scopus 로고    scopus 로고
    • supra note 36, quoting Laramie Daily Sentinel
    • See Judge Kingman and Woman Jurors, supra note 36, at 213 (quoting Laramie Daily Sentinel).
    • Judge Kingman and Woman Jurors , pp. 213
  • 79
    • 8844239548 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 80
    • 8844269823 scopus 로고    scopus 로고
    • Hebard, supra note 23, at 1316
    • Hebard, supra note 23, at 1316.
  • 81
    • 8844225972 scopus 로고    scopus 로고
    • Id. at 1315 (quoting Genesis 9:6)
    • Id. at 1315 (quoting Genesis 9:6).
  • 83
    • 8844241095 scopus 로고    scopus 로고
    • See id. at 1008-09
    • See id. at 1008-09.
  • 84
    • 8844287191 scopus 로고    scopus 로고
    • Hebard, supra note 23, at 1293
    • Hebard, supra note 23, at 1293.
  • 85
    • 8844276390 scopus 로고    scopus 로고
    • Id. at 1341
    • Id. at 1341.
  • 86
    • 8844230668 scopus 로고    scopus 로고
    • supra note 32
    • On the subject of female suffrage in the Western territories, the editors of the History of Woman Suffrage wrote: The prospect was, that it would either remain a dead letter, or be swept away under the ridicule and abuse of the press, and the open attacks of its enemies. But it had withstood all these adverse forces, and from small beginnings has grown to be a permanent power in our politics, a vital institution, satisfactory to all our people. 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 747.
    • History of Woman Suffrage , vol.3 , pp. 747
  • 87
    • 8844274471 scopus 로고    scopus 로고
    • note
    • It was not until 1892, when a criminal defendant sought to have his conviction overturned on the novel grounds that women had been excluded from his jury, that the Wyoming Supreme Court had the opportunity to pass judgment on the issue. See infra Subsection I.D.2.
  • 88
    • 8844259175 scopus 로고    scopus 로고
    • Robinson, supra note 1, at 24
    • Robinson, supra note 1, at 24.
  • 89
    • 8844285597 scopus 로고    scopus 로고
    • note
    • See id. at 28-29. Robinson describes the presence of children in the courtroom vividly and with emotion, suggesting that the courtroom had begun to acquire a more domestic feel: The prisoner also had a little child, just about the age of the little jury-boy: one of the prettiest blue-eyed and flaxen-haired baby-girls that I ever saw, and she was with her mother through the entire trial, running about inside the bar making friends with the lawyers and officers of the court, looking longingly up at the kind-faced judge, but not quite daring to mount the steps of the bench, and then returning to her frightened, black-robed mother, to fall asleep on her breast. Id. at 30.
  • 90
    • 8844249690 scopus 로고    scopus 로고
    • Id. at 29
    • Id. at 29.
  • 91
    • 8844227831 scopus 로고    scopus 로고
    • See id. at 29-30
    • See id. at 29-30.
  • 92
    • 8844277999 scopus 로고    scopus 로고
    • Id. at 30
    • Id. at 30.
  • 93
    • 8844239545 scopus 로고
    • Judge Greene and Women Jurors
    • Oct. 4
    • Judge Greene and Women Jurors, CHI. LEGAL NEWS, Oct. 4, 1884, at 30 (quoting from Justice Greene's charge to the grand jury).
    • (1884) Chi. Legal News , pp. 30
  • 94
    • 8844235329 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 95
    • 8844283027 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 96
    • 8844258422 scopus 로고    scopus 로고
    • note
    • 2 Wash. Terr. 267, 268 (1884). Lelia Robinson, traveling through the Washington Territory at the start of the Rosencrantz litigation, appears to have been asked to provide legal assistance to Mollie Rosencrantz, the brothel proprietor challenging the mixed grand jury. See Robinson, supra note 1, at 31.
  • 97
    • 8844272102 scopus 로고    scopus 로고
    • See Rosencrantz, 2 Wash. Terr, at 275
    • See Rosencrantz, 2 Wash. Terr, at 275.
  • 98
    • 84903115306 scopus 로고
    • Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880
    • See id. at 273. The court concluded that not only were women electors, even married women could be considered householders, given recent changes to the law of coverture. See id. For a discussion of changes in coverture, see Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880,103 YALE L.J. 1073 (1994).
    • (1994) Yale L.J. , vol.103 , pp. 1073
    • Siegel, R.B.1
  • 99
    • 8844228575 scopus 로고    scopus 로고
    • Rosencrantz, 2 Wash. Terr, at 279 (Turner, J., dissenting)
    • Rosencrantz, 2 Wash. Terr, at 279 (Turner, J., dissenting).
  • 100
    • 8844225975 scopus 로고    scopus 로고
    • Id. at 281 (Turner, J., dissenting)
    • Id. at 281 (Turner, J., dissenting).
  • 101
    • 8844244379 scopus 로고    scopus 로고
    • Harland v. Washington, 3 Wash. Terr. 131, 133 (1887)
    • Harland v. Washington, 3 Wash. Terr. 131, 133 (1887).
  • 102
    • 8844228576 scopus 로고    scopus 로고
    • 131 Mass. 376 (1881) (finding also that the legislature did not undertake to reform jury laws when it amended the state's election laws)
    • 131 Mass. 376 (1881) (finding also that the legislature did not undertake to reform jury laws when it amended the state's election laws).
  • 103
    • 8844251962 scopus 로고    scopus 로고
    • 83 U.S. (16 Wall.) 130 (1872) (concluding that a radical revolution in the relations in family government could only be effected by express statutory enactment)
    • 83 U.S. (16 Wall.) 130 (1872) (concluding that a radical revolution in the relations in family government could only be effected by express statutory enactment).
  • 104
    • 8844235330 scopus 로고    scopus 로고
    • See Harland, 3 Wash. Terr, at 134
    • See Harland, 3 Wash. Terr, at 134.
  • 105
    • 8844240324 scopus 로고    scopus 로고
    • See id. at 136
    • See id. at 136.
  • 106
    • 8844246046 scopus 로고    scopus 로고
    • 3 WILLIAM BLACKSTONE, COMMENTARIES *362
    • 3 WILLIAM BLACKSTONE, COMMENTARIES *362.
  • 107
    • 8844222386 scopus 로고    scopus 로고
    • See Norland, 3 Wash. Terr, at 137
    • See Norland, 3 Wash. Terr, at 137.
  • 108
    • 8844236553 scopus 로고    scopus 로고
    • Id. at 138
    • Id. at 138.
  • 109
    • 8844281887 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 110
    • 8844251963 scopus 로고    scopus 로고
    • note
    • Women's jury service came to an end in 1888 with Bloomer v. Todd, 3 Wash. Terr. 599 (1888). In a long discourse on the importance of stable statutory interpretation, the court invalidated the territorial law granting suffrage to women as a violation of the Organic Act - Washington's founding "charter" as a state. See id. at 619. Though the court found that suffrage formed a necessary prerequisite for jury service, the court nevertheless demonstrated that the right to participate in courtroom proceedings had implications for citizen participation in government that extended well beyond the act of voting. See id.
  • 111
    • 8844251162 scopus 로고    scopus 로고
    • 3 Wyo. 719 (1892)
    • 3 Wyo. 719 (1892).
  • 112
    • 8844255091 scopus 로고    scopus 로고
    • Id. at 725 (citing Strauder, 100 U.S. 303, 310 (1879))
    • Id. at 725 (citing Strauder, 100 U.S. 303, 310 (1879)).
  • 113
    • 8844249694 scopus 로고    scopus 로고
    • Id. at 726-27
    • Id. at 726-27.
  • 114
    • 8844247521 scopus 로고    scopus 로고
    • See id. at 724
    • See id. at 724.
  • 115
    • 8844287195 scopus 로고    scopus 로고
    • See id. at 724-25
    • See id. at 724-25.
  • 116
    • 8844222385 scopus 로고    scopus 로고
    • Cf. id. at 726-28 (providing the basis for this interpretation)
    • Cf. id. at 726-28 (providing the basis for this interpretation).
  • 117
    • 0007248549 scopus 로고
    • Women as Workers, Women as Civilizers: True Womanhood in the American West
    • Susan Armitage & Elizabeth Jameson eds.
    • See Elizabeth Jameson, Women as Workers, Women as Civilizers: True Womanhood in the American West, in THE WOMEN'S WEST 145, 145-46 (Susan Armitage & Elizabeth Jameson eds., 1987). Jameson describes the women's work of the frontier as contributing to an "interdependent economic unit," id. at 150, and concedes that, though women did work, labor remained divided along gendered lines. Men plowed and planted, women raised smaller gardens. Women participated in wage labor, but through traditional acts such as cooking and sewing. See id. at 150-51.
    • (1987) The Women's West , pp. 145
    • Jameson, E.1
  • 118
    • 0003512183 scopus 로고
    • Cf. NANCY COTT, THE BONDS OF WOMANHOOD: "WOMAN'S SPHERE" IN NEW ENGLAND, 1780-1835, at 197-206 (1977) (describing how separate spheres ideology could be used by women to serve their own purposes); DUBOIS, supra note 21, at 1-40 (describing separate spheres ideology as a historical phenomenon that shaped women's rights activism and the cultural conditions from which it grew); LINDA K. KERBER, Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History, in TOWARD AN INTELLECTUAL HISTORY OF WOMEN 159, 171 (1997) (explaining that separate spheres constituted at once a culture imposed on women and a culture created by women).
    • (1977) The Bonds of Womanhood: "Woman's Sphere" in New England, 1780-1835 , pp. 197-206
    • Cott, N.1
  • 119
    • 0007126826 scopus 로고    scopus 로고
    • Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History
    • Cf. NANCY COTT, THE BONDS OF WOMANHOOD: "WOMAN'S SPHERE" IN NEW ENGLAND, 1780-1835, at 197-206 (1977) (describing how separate spheres ideology could be used by women to serve their own purposes); DUBOIS, supra note 21, at 1-40 (describing separate spheres ideology as a historical phenomenon that shaped women's rights activism and the cultural conditions from which it grew); LINDA K. KERBER, Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History, in TOWARD AN INTELLECTUAL HISTORY OF WOMEN 159, 171 (1997) (explaining that separate spheres constituted at once a culture imposed on women and a culture created by women).
    • (1997) Toward An Intellectual History of Women , pp. 159
    • Kerber, L.K.1
  • 120
    • 8844273748 scopus 로고    scopus 로고
    • See, e.g., Edwards, supra note 31, at 244
    • See, e.g., Edwards, supra note 31, at 244.
  • 122
    • 8844236554 scopus 로고    scopus 로고
    • note
    • For a detailed discussion of popular reaction, see supra Subsection I.C.I.
  • 123
    • 8844287196 scopus 로고    scopus 로고
    • note
    • Cf. DRACHMAN, supra note 7, at 73-78 (describing the struggles of women lawyers in separate spheres terms).
  • 124
    • 0000297056 scopus 로고
    • The Cult of True Womanhood: 1820-1860
    • For a discussion of womanhood that defined women as morally beyond the law, see Barbara Welter, The Cult of True Womanhood: 1820-1860, 18 AM. Q. 151 (1966). In its presentation of the Wyoming jury experiment, the History of Woman Suffrage reprinted various defenses of the woman juror, each of which predicated its remarks on the proposition that women would dispense a particular kind of justice. See 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 726-48.
    • (1966) Am. Q. , vol.18 , pp. 151
    • Welter, B.1
  • 125
    • 8844271335 scopus 로고    scopus 로고
    • supra note 32
    • For a discussion of womanhood that defined women as morally beyond the law, see Barbara Welter, The Cult of True Womanhood: 1820-1860, 18 AM. Q. 151 (1966). In its presentation of the Wyoming jury experiment, the History of Woman Suffrage reprinted various defenses of the woman juror, each of which predicated its remarks on the proposition that women would dispense a particular kind of justice. See 3 HISTORY OF WOMAN SUFFRAGE, supra note 32, at 726-48.
    • History of Woman Suffrage , vol.3 , pp. 726-748
  • 126
    • 8844282224 scopus 로고    scopus 로고
    • note
    • Some scholars have argued that women were granted suffrage in the West not because they agitated for it, but because it proved consistent with the interests of men on the frontier. Moreover, the grant was a conservative one, predicated on the notion that women represented the domestic sphere. In describing the debates over women's suffrage, other scholars contend that a proto-feminist, reformist spirit existed among women of the frontier, rendering suffrage a more radical political guarantee. See Jameson, supra note 110, at 157.
  • 127
    • 2442586470 scopus 로고
    • Clara Shortridge Foltz: "First Woman,"
    • Barbara Allen Babcock, Clara Shortridge Foltz: "First Woman," 28 VAL. U. L. REV. 1231, 1284 (1994).
    • (1994) Val. U. L. Rev. , vol.28 , pp. 1231
    • Babcock, B.A.1
  • 128
    • 0039843152 scopus 로고
    • Institutionalizing Masculinity: The Law as a Masculine Profession
    • Mark C. Carnes & Clyde Griffen eds.
    • Michael Grossberg, Institutionalizing Masculinity: The Law as a Masculine Profession, in MEANINGS FOR MANHOOD: CONSTRUCTIONS OF MASCULINITY IN VICTORIAN AMERICA 133-36 (Mark C. Carnes & Clyde Griffen eds., 1990).
    • (1990) Meanings For Manhood: Constructions of Masculinity in Victorian America , pp. 133-136
    • Grossberg, M.1
  • 129
    • 8844285600 scopus 로고    scopus 로고
    • Id. at 138
    • Id. at 138.
  • 130
    • 8844229936 scopus 로고    scopus 로고
    • See id. at 148-49
    • See id. at 148-49.
  • 131
    • 8844256944 scopus 로고    scopus 로고
    • note
    • Id at 138. Drachman argues that the legal community was even more masculinized than other male-dominated professions. Unlike the medical profession, in which women could assume roles as caretakers, the law "provided no obvious way for women to claim their place." DRACHMAN, supra note 7, at 11.
  • 132
    • 8844242882 scopus 로고
    • The Woman Lawyer
    • See Charles Moore, The Woman Lawyer, HARTFORD DAILY TIMES (1886), reprinted in 26 Green Bag, 523-31 (1914) (cited in Grossberg, supra note 119, at 133).
    • (1886) Hartford Daily Times
    • Moore, C.1
  • 133
    • 8844236556 scopus 로고
    • cited in Grossberg, supra note 119, at 133
    • See Charles Moore, The Woman Lawyer, HARTFORD DAILY TIMES (1886), reprinted in 26 Green Bag, 523-31 (1914) (cited in Grossberg, supra note 119, at 133).
    • (1914) Green Bag , vol.26 , pp. 523-531
  • 134
    • 8844263381 scopus 로고    scopus 로고
    • See Grossberg, supra note 119, at 29
    • See Grossberg, supra note 119, at 29.
  • 135
    • 8844278001 scopus 로고    scopus 로고
    • See DRACHMAN, supra note 7, at 4-8
    • See DRACHMAN, supra note 7, at 4-8.
  • 136
    • 0003827377 scopus 로고
    • See id. at 44. In 1870, five women lawyers were reportedly practicing in the United States. By the turn of the century, 20 states had allowed women to join the bar, raising the total of female attorneys to just over 1000. See DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 23 (1989).
    • (1989) Justice and Gender: Sex Discrimination and the Law , pp. 23
    • Rhode, D.L.1
  • 138
    • 8844261527 scopus 로고    scopus 로고
    • note
    • See DRACHMAN, supra note 7, at 78-97 (discussing "double consciousness" or the battle between gender and professional identities that plagued women lawyers).
  • 139
    • 8844230670 scopus 로고    scopus 로고
    • Letter from Ellen A. Martin to Miss Pearce (May 25, 1888), reprinted in DRACHMAN, supra note 127, at 113
    • Letter from Ellen A. Martin to Miss Pearce (May 25, 1888), reprinted in DRACHMAN, supra note 127, at 113.
  • 140
    • 8844231407 scopus 로고    scopus 로고
    • Letter from Margaret L. Wilcox to Equity Club (Apr. 20, 1888), reprinted in DRACHMAN, supra note 127, at 140
    • Letter from Margaret L. Wilcox to Equity Club (Apr. 20, 1888), reprinted in DRACHMAN, supra note 127, at 140.
  • 141
    • 8844241869 scopus 로고    scopus 로고
    • See DRACHMAN, supra note 7, at 104-05, 108
    • See DRACHMAN, supra note 7, at 104-05, 108.
  • 142
    • 8844227091 scopus 로고    scopus 로고
    • See Letter from Lelia Robinson to Equity Club (Apr. 7,1888), reprinted in DRACHMAN, supra note 127, at 122
    • See Letter from Lelia Robinson to Equity Club (Apr. 7,1888), reprinted in DRACHMAN, supra note 127, at 122.
  • 143
    • 8844276393 scopus 로고    scopus 로고
    • note
    • See Martin, supra note 5, at 76; see also Grossberg, supra note 119, at 150 (noting that law became "hard" if it dealt with economic relations such as contract and property law and "soft" if it dealt with more problematic social relations like family law).
  • 144
    • 8844222956 scopus 로고    scopus 로고
    • Letter from Lettie L. Burlingame to Equity Club (May 17, 1888), reprinted in DRACHMAN, supra note 127, at 92
    • Letter from Lettie L. Burlingame to Equity Club (May 17, 1888), reprinted in DRACHMAN, supra note 127, at 92.
  • 145
    • 8844245137 scopus 로고    scopus 로고
    • Letter from Ellen Martin to Equity Club (May 25, 1888), reprinted in DRACHMAN, supra note 127, at 114
    • Letter from Ellen Martin to Equity Club (May 25, 1888), reprinted in DRACHMAN, supra note 127, at 114.
  • 146
    • 8844272105 scopus 로고    scopus 로고
    • See DRACHMAN, supra note 127, at 23-24
    • See DRACHMAN, supra note 127, at 23-24.
  • 147
    • 8844286479 scopus 로고    scopus 로고
    • Martin, supra note 5, at 76
    • Martin, supra note 5, at 76.
  • 148
    • 8844267291 scopus 로고    scopus 로고
    • note
    • For example, Belva Lockwood, who was denied admission in 1874 to the U.S. Court of Claims, was admitted in the same year to a U.S. Court for the Western District of Texas. Lavinia Goodell, though admitted to the Circuit Court of Rock County Wisconsin, was refused admission to the Supreme Court of Wisconsin. See id. at 80.
  • 149
    • 8844235785 scopus 로고    scopus 로고
    • note
    • See id. at 81 (describing the case of Carrie Bumham Kilgore; two years after gaining admission to Orphan's Court and the Common Pleas Court, she was finally admitted to the supreme court of the state, which had previously denied her admission).
  • 150
    • 8844242881 scopus 로고    scopus 로고
    • Id. at 78
    • Id. at 78.
  • 151
    • 8844241868 scopus 로고    scopus 로고
    • note
    • The states and other entities that admitted women to their bars included: the District of Columbia, Indiana, Iowa, Michigan, Missouri, Ohio, Pennsylvania, and the Utah Territory. See id.
  • 152
    • 8844266504 scopus 로고    scopus 로고
    • 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring)
    • 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring).
  • 153
    • 8844274473 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 154
    • 8844272981 scopus 로고    scopus 로고
    • Grossberg, supra note 119, at 148
    • Grossberg, supra note 119, at 148.
  • 155
    • 8844262232 scopus 로고    scopus 로고
    • Babcock, supra note 118, at 1284
    • Babcock, supra note 118, at 1284.
  • 156
    • 8844255092 scopus 로고    scopus 로고
    • See, e.g., In re Ricker, 29 A. 559, 559 (N.H. 1890) (holding that the petitioner had not presented the appropriate evidence for a final determination of her ability to enter examination)
    • See, e.g., In re Ricker, 29 A. 559, 559 (N.H. 1890) (holding that the petitioner had not presented the appropriate evidence for a final determination of her ability to enter examination).
  • 157
    • 8844287199 scopus 로고    scopus 로고
    • See id. at 561; see also Bradwell, 83 U.S. (16 Wall.) at 139 (holding that the right to practice a profession does not constitute one of the privileges or immunities of citizenship guaranteed by the Fourteenth Amendment)
    • See id. at 561; see also Bradwell, 83 U.S. (16 Wall.) at 139 (holding that the right to practice a profession does not constitute one of the privileges or immunities of citizenship guaranteed by the Fourteenth Amendment).
  • 158
    • 8844246050 scopus 로고    scopus 로고
    • In re Ricker, 29 A. at 578
    • In re Ricker, 29 A. at 578.
  • 159
    • 8844228579 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 160
    • 8844254326 scopus 로고    scopus 로고
    • For an extended discussion of the parallels between women jurors and women in politics, see infra notes 164-68 and accompanying text
    • For an extended discussion of the parallels between women jurors and women in politics, see infra notes 164-68 and accompanying text.
  • 161
    • 8844243615 scopus 로고    scopus 로고
    • Robinson's Case, 131 Mass. 376, 377 (1881)
    • Robinson's Case, 131 Mass. 376, 377 (1881).
  • 162
    • 8844262233 scopus 로고    scopus 로고
    • note
    • In her article on women lawyers, Ellen Martin describes three types of state statutes that regulated women's admission to the bar: (1) those that allowed the admission of women voters; (2) those that provided for the admission of male citizens; and (3) those that allowed the admission of persons without specification of gender. See Martin, supra note 5, at 87. Martin notes that most states that admitted women did so under the third type of statute. Nevertheless, many of the states with such statutes appealed to the common law to argue that the lack of gender-specific language did not imply that women could be admitted, finding instead that because women at common law could not hold office, and given that the attorney was an officer of the court, women could not serve as attorneys. States used the common-law disabilities of women, which prohibited them from entering into contracts, to deny them admission as well.
  • 163
    • 8844255094 scopus 로고    scopus 로고
    • In re Ricker, 29 A. at 559
    • In re Ricker, 29 A. at 559.
  • 164
    • 8844223735 scopus 로고    scopus 로고
    • See Robinson's Case, 131 Mass, at 380-81; see also In re Goodell, 39 Wis. 232, 244 (1875) (denying the application of Lavinia Goodell to the state bar of Wisconsin)
    • See Robinson's Case, 131 Mass, at 380-81; see also In re Goodell, 39 Wis. 232, 244 (1875) (denying the application of Lavinia Goodell to the state bar of Wisconsin).
  • 165
    • 8844252634 scopus 로고    scopus 로고
    • In re Ricker, 29 A. at 560
    • In re Ricker, 29 A. at 560.
  • 166
    • 8844254327 scopus 로고    scopus 로고
    • In re Goodell, 39 Wis. at 245
    • In re Goodell, 39 Wis. at 245.
  • 167
    • 8844264160 scopus 로고    scopus 로고
    • Id. at 246
    • Id. at 246.
  • 168
    • 84900951921 scopus 로고
    • The Bill of Rights as a Constitution
    • See Akhil Reed Arnar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1185, 1188 (1991) (quoting 1 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 293-94 (Vintage ed. 1945)).
    • (1991) Yale L.J. , vol.100 , pp. 1131
    • Arnar, A.R.1
  • 169
    • 0003984012 scopus 로고
    • quoting 1 Vintage ed.
    • See Akhil Reed Arnar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1185, 1188 (1991) (quoting 1 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 293-94 (Vintage ed. 1945)).
    • (1945) Democracy in America , pp. 293-294
    • De Tocqueville, A.1
  • 170
    • 8844268014 scopus 로고    scopus 로고
    • See id. at 1186-87 (quoting 1 DE TOCQUEVILLE, supra note 158, at 295-96)
    • See id. at 1186-87 (quoting 1 DE TOCQUEVILLE, supra note 158, at 295-96).
  • 172
    • 8844278737 scopus 로고    scopus 로고
    • See Amar, supra note 158, at 1188
    • See Amar, supra note 158, at 1188.
  • 173
    • 8844263385 scopus 로고    scopus 로고
    • See AMAR, supra note 160, at 112
    • See AMAR, supra note 160, at 112.
  • 175
    • 8844283028 scopus 로고    scopus 로고
    • note
    • See DuBOIS, supra note 21, at 105-10 (describing women's rights activists' alienation from Republicans and ultimately unfruitful efforts to integrate their issues into the Democratic Party platform).
  • 176
    • 8844249689 scopus 로고    scopus 로고
    • See id. at 111-25 (describing women's rights activists' efforts to ally their cause with the National Labor Union Party)
    • See id. at 111-25 (describing women's rights activists' efforts to ally their cause with the National Labor Union Party).
  • 177
    • 8844287194 scopus 로고    scopus 로고
    • note
    • SMITH, supra note 28, at 386, 386-90 (describing the numerous women's clubs, suffrage associations, and social reform networks that enhanced women's civic equality but that nevertheless kept that equality circumscribed in gender-specific, separate spheres terms); see also Jameson, supra note 110, at 156-58. Jameson describes recent studies that have challenged the conventional view of Western women as passive participants in the processes that led to female suffrage across the territories. Yet, though women in the West participated in the Grange and the Farmers' Alliance, Jameson notes that these organizations were unusual among male-dominated groups in admitting women. As in the Eastern suffrage campaigns, Western women formed gender-exclusive groups of their own that, while political, differed from the integrated associations inherent injury service and lawyering inside the courtroom.
  • 178
  • 179
    • 8844255811 scopus 로고    scopus 로고
    • Id. at 731
    • Id. at 731.
  • 180
    • 0031533816 scopus 로고    scopus 로고
    • Deliberations and Disclosures: A Study of Post-Verdict Interviews of Jurors
    • See Nancy S. Marder, Deliberations and Disclosures: A Study of Post-Verdict Interviews of Jurors, 82 IOWA L. REV. 465, 472-73 (1997).
    • (1997) Iowa L. Rev. , vol.82 , pp. 465
    • Marder, N.S.1
  • 181
    • 8844238751 scopus 로고    scopus 로고
    • Id. at 472
    • Id. at 472.
  • 182
    • 8844232148 scopus 로고    scopus 로고
    • See id.
    • See id.
  • 184
    • 8844262231 scopus 로고    scopus 로고
    • See id. at 132-33
    • See id. at 132-33.
  • 185
    • 8844237997 scopus 로고    scopus 로고
    • See id. For an example of a construction of the jury as an institution required to receive and follow the law as given by the court, see Sparf v. United States, 156 U.S. 51, 65-80 (1895)
    • See id. For an example of a construction of the jury as an institution required to receive and follow the law as given by the court, see Sparf v. United States, 156 U.S. 51, 65-80 (1895).
  • 186
    • 84879327160 scopus 로고
    • Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right
    • See, e.g., David Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89 (1995) (defending nullification from the standpoint that the jury represents an intermediary between the people and the government); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law To Do Justice, 30 AM. CRIM. L. REV. 239 (1993) (arguing that nullification, because it is used sparingly, generally reflects urgent social needs that cannot be remedied within the context of existing law, which only frustrates those needs). Cf. David N. Dorfman & Chris Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REF. 861, 865 (1995) (arguing that nullification is best understood as a community check on judicial and prosecutorial discretion), and Richard St. John, Note, License To Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2577-89 (1997) (arguing that nullification is undemocratic because juries are minoritarian bodies that thwart the will of the people embodied in legislative enactments when they engage in nullification).
    • (1995) Am. Crim. L. Rev. , vol.33 , pp. 89
    • Brody, D.1
  • 187
    • 21144463612 scopus 로고
    • Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice
    • See, e.g., David Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89 (1995) (defending nullification from the standpoint that the jury represents an intermediary between the people and the government); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law To Do Justice, 30 AM. CRIM. L. REV. 239 (1993) (arguing that nullification, because it is used sparingly, generally reflects urgent social needs that cannot be remedied within the context of existing law, which only frustrates those needs). Cf. David N. Dorfman & Chris Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REF. 861, 865 (1995) (arguing that nullification is best understood as a community check on judicial and prosecutorial discretion), and Richard St. John, Note, License To Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2577-89 (1997) (arguing that nullification is undemocratic because juries are minoritarian bodies that thwart the will of the people embodied in legislative enactments when they engage in nullification).
    • (1993) Am. Crim. L. Rev. , vol.30 , pp. 239
    • Weinstein, J.B.1
  • 188
    • 0346583055 scopus 로고
    • Fictions, Fault, and Forgiveness: Jury Nullification in a New Context
    • See, e.g., David Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89 (1995) (defending nullification from the standpoint that the jury represents an intermediary between the people and the government); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law To Do Justice, 30 AM. CRIM. L. REV. 239 (1993) (arguing that nullification, because it is used sparingly, generally reflects urgent social needs that cannot be remedied within the context of existing law, which only frustrates those needs). Cf. David N. Dorfman & Chris Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REF. 861, 865 (1995) (arguing that nullification is best understood as a community check on judicial and prosecutorial discretion), and Richard St. John, Note, License To Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2577-89 (1997) (arguing that nullification is undemocratic because juries are minoritarian bodies that thwart the will of the people embodied in legislative enactments when they engage in nullification).
    • (1995) U. Mich. J.L. Ref. , vol.28 , pp. 861
    • Dorfman, D.N.1    Iijima, C.2
  • 189
    • 0042578619 scopus 로고    scopus 로고
    • License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking
    • Note
    • See, e.g., David Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89 (1995) (defending nullification from the standpoint that the jury represents an intermediary between the people and the government); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law To Do Justice, 30 AM. CRIM. L. REV. 239 (1993) (arguing that nullification, because it is used sparingly, generally reflects urgent social needs that cannot be remedied within the context of existing law, which only frustrates those needs). Cf. David N. Dorfman & Chris Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REF. 861, 865 (1995) (arguing that nullification is best understood as a community check on judicial and prosecutorial discretion), and Richard St. John, Note, License To Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2577-89 (1997) (arguing that nullification is undemocratic because juries are minoritarian bodies that thwart the will of the people embodied in legislative enactments when they engage in nullification).
    • (1997) Yale L.J. , vol.106 , pp. 2563
    • St. John, R.1
  • 190
    • 8844268010 scopus 로고    scopus 로고
    • See Brody, supra note 175, at 106-07
    • See Brody, supra note 175, at 106-07.
  • 191
    • 8844223734 scopus 로고    scopus 로고
    • See Weinstein, supra note 175, at 247
    • See Weinstein, supra note 175, at 247.
  • 192
    • 84937268475 scopus 로고    scopus 로고
    • Modernity, Subjectivity and Law: Reflections on Marianne Constable's the Law of the Other
    • book review
    • Gretchen Ritter, Modernity, Subjectivity and Law: Reflections on Marianne Constable's The Law of the Other, 22 L. & SOC. INQUIRY 809, 810 (1997) (book review).
    • (1997) L. & Soc. Inquiry , vol.22 , pp. 809
    • Ritter, G.1
  • 193
    • 8844254323 scopus 로고    scopus 로고
    • See Dorfman & Iijima, supra note 175, at 896
    • See Dorfman & Iijima, supra note 175, at 896.
  • 194
    • 70349609478 scopus 로고
    • Racially Based Jury Nullification: Black Power in the Criminal Justice System
    • See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 701 (1995).
    • (1995) Yale L.J. , vol.105 , pp. 677
    • Butler, P.1
  • 195
    • 8844237998 scopus 로고    scopus 로고
    • See id. at 703-05, 715-18
    • See id. at 703-05, 715-18.
  • 196
    • 8844250419 scopus 로고    scopus 로고
    • note
    • For an example of this kind of reorientation, see supra note 136 and accompanying text, discussing the conflicts between charity work and legal work.
  • 197
    • 0003512930 scopus 로고    scopus 로고
    • In the wake of the Nineteenth Amendment, some states enacted statutes that made jury service for women automatic. Not only did the majority of states not take such action, however, but the Supreme Court did not challenge the validity of excluding women jurors until 1946 in Bollard v. United States, 329 U.S. 187. See Abrahamson, supra note 14, at 264-65. Just as lawyers in Wyoming used peremptory challenges to strike women jurors, in the 20th century, lawyers used the peremptory to exclude women, even after their right to serve had been secured. See LINDA K. KERBER, No CONSTITUTIONAL RIGHT TO BE LADIES 215 (1998).
    • (1998) No Constitutional Right to Be Ladies , pp. 215
    • Kerber, L.K.1
  • 198
    • 8844252630 scopus 로고    scopus 로고
    • note
    • Ballard, 329 U.S. at 193-94. Kerber notes that in Bollard, the Court struggled over the way in which gender difference played into the decisions women made as jurors, concluding that women reasoned differently. See Kerber, supra note 183, at 50-51.
  • 199
    • 8844235784 scopus 로고    scopus 로고
    • See Hoyt v. Florida, 368 U.S. 57, 62 (1961)
    • See Hoyt v. Florida, 368 U.S. 57, 62 (1961).
  • 200
    • 8844264156 scopus 로고    scopus 로고
    • See Taylor v. Louisiana, 419 U.S. 522, 537 (1975)
    • See Taylor v. Louisiana, 419 U.S. 522, 537 (1975).
  • 201
    • 8844264915 scopus 로고    scopus 로고
    • 511 U.S. 127 (1994)
    • 511 U.S. 127 (1994).
  • 202
    • 8844235783 scopus 로고    scopus 로고
    • See id. at 146 (citing Powers v. Ohio, 499 U.S. 400, 407 (1991))
    • See id. at 146 (citing Powers v. Ohio, 499 U.S. 400, 407 (1991)).
  • 203
    • 8844268013 scopus 로고    scopus 로고
    • note
    • See, e.g., Babcock, supra note 7, at 1706 (detailing the wide variety of task forces that have been created and academic studies that have been done identifying gender bias in the law).
  • 204
    • 84926077750 scopus 로고
    • The Criminal Jury in Our Time
    • For a discussion of the tension between the "anachronistic" features of the jury and contemporary egalitarian aspirations, see Kate Stith-Cabranes, The Criminal Jury in Our Time, 3 VA. J. SOC. POL'Y & L. 133, 136 (1995). She argues that as the courts have circumscribed the use of the peremptory challenge and as public pressure has built to abolish the unanimity requirement and open the black box of the deliberation room in the name of accountability, much of what is ique about the jury as a legal institution has been lost. See id. at 145.
    • (1995) Va. J. Soc. Pol'y & L. , vol.3 , pp. 133
    • Stith-Cabranes, K.1
  • 205
    • 8844245136 scopus 로고    scopus 로고
    • See J.E.B., 511 U.S. at 131
    • See J.E.B., 511 U.S. at 131.
  • 206
    • 8844236555 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 207
    • 8844264916 scopus 로고    scopus 로고
    • Id. at 145.
    • Id. at 145.
  • 208
    • 8844283772 scopus 로고    scopus 로고
    • note
    • See id. at 133 ("The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables ... a distinct quality is lost if either sex is excluded." (quoting Ballard v. United States, 329 U.S. 187, 193-94 (footnotes omitted))).
  • 209
    • 8844274472 scopus 로고    scopus 로고
    • note
    • In his concurring opinion, Justice Kennedy appeared to be responding to the Court's recognition of the historical role of gender difference in opening the jury to women, characterizing gender difference in contemporary jury deliberations as a form of "prejudice." See id. at 154 (Kennedy, J., concurring in the judgment).
  • 210
    • 8844256943 scopus 로고    scopus 로고
    • See id. at 137
    • See id. at 137.
  • 211
    • 8844221636 scopus 로고    scopus 로고
    • Id. at 147-48 (O'Connor, J., concurring) (quoting Swain v. Alabama, 380 U.S. 202, 220 (1965))
    • Id. at 147-48 (O'Connor, J., concurring) (quoting Swain v. Alabama, 380 U.S. 202, 220 (1965)).
  • 212
    • 8844268740 scopus 로고    scopus 로고
    • Id. at 148
    • Id. at 148.
  • 213
    • 8844254324 scopus 로고    scopus 로고
    • Id. at 157-58 (Scalia, J., dissenting)
    • Id. at 157-58 (Scalia, J., dissenting).
  • 214
    • 8844239547 scopus 로고    scopus 로고
    • Id. at 160-62 (citations omitted)
    • Id. at 160-62 (citations omitted).


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