Jeannie Suk Gersen

John H. Watson, Jr. Professor of Law

Biography

Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School, where she has taught criminal law and procedure, family law, and the law of art, fashion, and the performing arts. Before joining the faculty in 2006, she served as a law clerk to Justice David Souter on the United States Supreme Court, and to Judge Harry Edwards on the U.S. Court of Appeals for the D.C. Circuit. She was educated at Yale (B.A. 1995), and at Oxford (D.Phil 1999) where she was a Marshall Scholar, and is a graduate of Harvard Law School (J.D. 2002). She has written three books and many articles in scholarly journals and general media. Her book, At Home in the Law, was awarded the Law and Society Association's Herbert Jacob Prize for the best law and society book of the year. She has been a Guggenheim Fellow, a fellow of the MacDowell Colony, and a recipient of Harvard Law School's Sacks-Freund Award for Teaching Excellence. She is a Contributing Writer for NewYorker.com.

Areas of Interest

Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 104 Calif. L. Rev. 881 (2016).
Categories:
Government & Politics
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Education Law
,
Administrative Law & Agencies
Type: Article
Abstract
We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.
Jeannie C. Suk, Laws of Trauma, in Knowing the Suffering of Others: Legal Perspectives on Pain and Its Meaning 212 (Austin Sarat ed., Univ. Alabama Press 2014).
Categories:
Government & Politics
Sub-Categories:
Military & Veterans Law
,
Military, War, & Peace
Type: Book
C. Scott Hemphill & Jeannie C. Suk, The Fashion Originators' Guild of America: Self-Help at the Edge of IP and Antitrust, in Intellectual Property at the Edge: The Contested Contours of IP 159 (Rochelle Cooper Dreyfuss & Jane C. Ginsburg eds., Cambridge Univ. Press, 2014).
Categories:
Corporate Law & Securities
,
Property Law
Sub-Categories:
Antitrust & Competition Law
,
Intellectual Property - Copyright
Type: Book
Abstract
Intellectual Property at the Edge addresses both newly formed intellectual property rights and those which have lurked on the fringes, unadmitted to the established IP canon.
Jacob Gersen & Jeannie Suk Gersen, Regulating Sex Bureaucratically, in Governance Feminism: A Handbook (Janet E. Halley, Prabha Kotiswaran, Rachel Rebouche & Hila Shamir eds., forthcoming 2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Administrative Law & Agencies
Type: Book
Jacob Gersen & Jeannie Suk Gersen, The College Sex Bureaucracy, Chron. Higher Educ., Jan. 13, 2017, Chron. Rev., at 1.
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Education Law
Type: Article
Jacob E. Gersen & Jeannie Suk, Timing of Consent, in The Timing of Lawmaking (Frank Fagan & Saul Levmore eds., forthcoming 2017).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
Type: Book
Jeannie Suk Gersen, Gavin Grimm's Transgender Rights Case and the Problem with Informal Executive Action, NewYorker.com (Dec. 6, 2016).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Discrimination
,
Civil Rights
,
Executive Office
Type: Article
Brief of Professors Jeannie Suk Gersen and C. Scott Hemphill as Amici Curiae In Support of Respondents, Star Athletica v. Varsity, No. 15-866 (U.S. Sept. 21, 2016).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Other
Abstract
What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?
Jeannie Suk Gersen, The Case Against Fox News, NewYorker.com (Aug. 26, 2016).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Gender & Sexuality
,
Employment Discrimination
Type: Article
Jeannie Suk Gersen, College Students Go to Court Over Sexual Assault, NewYorker.com (Aug. 5, 2016).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Education Law
Type: Other
Jeannie Suk Gersen, The Unintended Consequences of the Stanford Rape-Case Recall, NewYorker.com (June 17, 2016).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Courts
Type: Article
Jeannie Suk Gersen, The Transgender Bathroom Debate and the Looming Title IX Crisis, NewYorker.com (May 24, 2016).
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Public Accommodations Law
,
Civil Rights
Type: Article
Jeannie Suk Gersen, What’s Wrong with the Redskins?, NewYorker.com (May 15, 2016).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Jeannie C. Suk, Who's Afraid of Gender-Neutral Bathrooms?, NewYorker.com (Jan. 25, 2016).
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Civil Rights
,
Gender & Sexuality
Type: Other
Jacob Gersen & Jeannie Suk Gersen, Administering Sex, 42 Admin. & Reg. L. News, no. 1, Fall 2016, at 18.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Administrative Law & Agencies
Type: Article
Abstract
Sex and administrative law are not words that are traditionally uttered in the saine breath. Yet, recently, administrative law scholars and courts have increasingly focused on precisely this relationship. The past decade has seen a transformation of the way sex discrimination, sexual violence, sexual harassment, and just plain sex is legally regulated in the United States. Increasingly, adininistrative agencies are defining what sex is permissible, requiring educational institutions to adopt particular policies on sex, and specifying how sex that deviates from those norms is investigated and adjudicated. Today, sex is a domain of the federal bureaucracy. The question is what role traditional administrative law principles will play in the administration of sex.
Jeannie C. Suk, The Trouble With Teaching Rape Law, NewYorker.com (Dec. 15, 2014).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Jeannie Suk, "The Look in His Eyes": The Story of Rusk and Rape Reform, in Criminal Law Stories (Robert Weisberg & Donna Coker eds., Foundation Press 2012).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Jury Trials
,
Gender & Sexuality
,
Feminist Legal Theory
Type: Book
Abstract
This chapter for Criminal Law Stories (Robert Weisberg & Donna Coker eds., 2013), tells the story of State v. Rusk through the lens of rape law reform. Beginning in the 1970s, under the influence of feminism, some prevailing attitudes and expectations about sex between men and women started to change. Edward Rusk, like many guys, didn’t think he just had to stop because a girl who seemed interested said she didn’t want to have sex. He was convicted of rape at the cusp of legal transformation, when sexual behavior that had been socially commonplace was rapidly in the midst of being recast as criminal. Drawing on many interviews with lawyers, judges, and other people involved in the case, I tell the story of when and how a set of social norms of sex and dating became unacceptable. This is a story of the legal role and consequences of that social change.
Jeannie Suk, Redistributing Rape, 48 Am. Crim. L. Rev. 111 (2011) (reviewing Sharon Dolovich, Strategic Segregation in the Modern Prison (2011)).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Prison Law & Prisoners' Rights
,
Civil Rights
Type: Article
Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110 Colum. L. Rev. 1193 (2010).
Categories:
Family Law
,
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Reproduction
,
Psychology & Psychiatry
Type: Article
Abstract
What is the legal import of emotional pain following a traumatic event? The idea of women traumatized by abortion has recently acquired a constitutional foothold. The present Article is about this new frontier of trauma. I argue that the legal discourse of abortion trauma grows out of ideas about psychological trauma that have become pervasively familiar in the law through the rise of feminism. The Supreme Court’s statement in Gonzales v. Carhart, that some women who have abortions feel “regret” resulting in “severe depression and loss of esteem,” has provoked searing criticism because talk of protecting women from psychological harm caused by their own decisions seems to recapitulate paternalistic stereotypes inconsistent with modern egalitarian ideals. I argue that a significant context for the newly prominent discourse of abortion regret is the legal reception of psychological trauma that has continually gained momentum through feminist legal thought and reform since the 1970s. Rather than representing a stark and unmotivated departure, the notion of abortion trauma continues a legal discourse that grew up in precisely that period: a feminist discourse of trauma around women’s bodies and sexuality. This intellectual context gives meaning to the present discourse of women’s psychological pain in our legal system. The ideas informing abortion regret are utterly familiar once contextualized in modern legal understandings of women that have developed in the period since Roe.
C. Scott Hemphill & Jeannie Suk, Reply: Remix and Cultural Production, 61 Stan. L. Rev. 1227 (2010).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Cooperation, Peer-Production & Sharing
,
Digital Property
,
Intellectual Property Law
Type: Article
C. Scott Hemphill & Jeannie Suk, The Law, Culture and Economics of Fashion, 61 Stan. L. Rev. 1147 (2009).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Economics
,
Intellectual Property - Copyright
Type: Article
Abstract
Fashion is one of the world's most important creative industries. As the most immediate visible marker of self-presentation, fashion creates vocabularies for self-expression that relate individuals to society. Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.
Jeannie Suk, Is Privacy a Woman?, 97 Georgetown L.J. 485 (2009).
Categories:
Criminal Law & Procedure
,
Family Law
,
Technology & Law
,
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Civil Rights
,
Feminist Legal Theory
,
Domestic Relations
,
Information Privacy & Security
Type: Article
Abstract
This essay is about the representation of privacy. Focusing on several of the Supreme Court's Fourth Amendment cases regarding the police and the home, I explore judicial articulations of the meaning of private space. Several striking figures of women appear in the Justices' opinions in Kyllo v. United States, and Georgia v. Randolph, for example, and represent different conceptions of privacy that are in dialogue and conflict. To theorize privacy in the home is to imagine a woman, and the way she is imagined is bound up with the idea of the home and stakes of privacy articulated. From the lady of the house in the bath, to the lady at home receiving callers, to the battered woman, distinctive figures of women reveal peculiar fault lines in the modern meaning of privacy in an era of judicial commitment to gender equality. Even long after the gradual demise of the particular marital privacy associated with the common law of coverture, the idea of protecting women from men remains central and appears today in new and different guises that evince both change and continuity in the legal meaning of the home.
Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (Yale Univ. Press 2009).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Domestic Relations
,
Information Privacy & Security
Type: Book
Jeannie Suk, Taking the Home, 20 Law & Literature 291 (2008).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Property Law
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Domestic Relations
,
Supreme Court of the United States
,
Eminent Domain
Type: Article
Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006).
Categories:
Criminal Law & Procedure
,
Family Law
Sub-Categories:
Criminal Prosecution
,
Domestic Relations
Type: Article

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