On Fashion, Sexism and the United States Federal Judiciary

Illustration by Stephen Crowe
Illustration by Stephen Crowe

THE US FEDERAL JUDICIARY has frequently displayed a dismissive attitude toward ‘fashion,’ while simultaneously recognising the great economic importance of ‘clothing.’ As ‘fashion’ was, from the creation of the united States until, arguably, the late 1960s, associated primarily with the female sex, while judges during this time period were almost exclusively male, one naturally wonders whether the power dynamics of gender shaped the development of the law pertaining to fashion. There is good reason to believe that this has indeed been the case.

Fashion has been ‘a female thing’ for a very long time in the west; not since the eighteenth century has any significant number of western men dressed more elaborately than their female counterparts.1 The current expectation that men – and, nowadays, women who wish to appear ‘serious’ – will trivialise and denigrate fashion is so entrenched in our collective consciousness2 that we are hardly aware of the cultural relativism of it all. Indeed, even by the mid-nineteenth century (in a country that had never had a ‘court culture’ where fashion was de rigueur for both men and women), one US federal judge saw fit to instruct a jury deciding a patent case:

New inventions in regard to some trifling article of dress, such as hoops, or crinolines, or, in the language of Judge Story, ‘a new invention to poison people,’ are not patentable. The one is frivolous, the other mischievous.3

Yet during this same period, judges on the federal bench waxed poetic about the incredible technological advancements in the production of clothing, made possible by innovations like Eli Whitney’s cotton gin:

There are circumstances within the knowledge of all mankind, which prove the originality of this invention more satisfactorily to the mind than the direct testimony of a host of witnesses. […] The machine of which Mr. Whitney claims the invention, so facilitates the preparation of [cotton] for use, that the cultivation of it has suddenly become an object of infinitely greater importance than that of the other species ever can be. Is it then to be imagined that if this machine had been before discovered, the use of it would ever have been lost or could have been confined to any tract of country left unexplored by commercial enterprise?4

This contrast can be observed in other disputes. For example, in one 1861 decision, a federal judge lamented the time and money expended on litigation between two women over the alleged copyright infringement of a work entitled ‘The ladies’ chart for cutting dresses and basques for ladies, and coats, jackets, etc., for boys.’ The court wrote: ‘It is to be regretted that under the impulse of their heated passions and intemperate zeal, these excited females have put themselves to unnecessary trouble and expense in taking depositions […]’5

Yet in a different, more ‘manly’ dispute in 1851, another judge deemed it a worthwhile use of the judiciary’s and the parties’ resources to order second trial – an enormously burdensome undertaking – in a case where the lower-court judge had not clearly conveyed to the first jury that the defendants (who had allegedly misrepresented themselves as valets for a hotel in order to make a living transporting luggage) ‘must not dress themselves in colours, and adopt and wear symbols, which belong to others.’6 These decisions suggest that nineteenth century american judges saw fit to intervene in apparel-related disputes where the subject matter was sufficiently ‘utilitarian’ to fall within the realm of ‘men’s work.’ Where merely aesthetic – i.e. ‘female’ – aspects of fashion were at issue, courts’ reactions ranged from mere expressions of condescension7 to outright refusals to exercise their power to intervene. The use of fashion for less visibly utilitarian ends, like personal expression,8 was either imperceptible to, or ignored by, judges – and this has remained true well into the twentieth century.

In the 1918 case of International News Service v. Associated Press,9 the US Supreme Court bypassed the strictures of copyright law in order to enjoin one news organisation from free-riding on the information collection and dissemination efforts of another. Yet just one decade later, in Cheney Bros. v. Doris Silk Corp.,10 an appellate court refused to extend the Supreme Court’s reasoning to protect ‘a manufacturer of silks, which puts out each season many new patterns, designed to attract purchasers by their novelty and beauty’ in its suit against a competitor who had made a business out of knocking off the plaintiff’s popular designs. The plaintiff quite reasonably attempted to invoke the Supreme Court’s reasoning in INS v. AP, but the appellate court did not bite:

The plaintiff asks for protection only during the season, and needs no more, for the designs are all ephemeral. It seeks in this way to disguise the extent of the proposed innovation, and to persuade us that, if we interfere only a little, the solecism, if there be one, may be pardonable. [But that] is not the law. In the absence of some recognised right at common law, or under the statutes […] a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.11

The analogy from the news case to the fashion case was and continues to be obvious, yet the federal courts were willing to provide relief for the plaintiff only in the former. While alternative explanations for the divergent results are possible,12 it is also possible that the men wielding the power of the federal judiciary simply saw the collection and distribution of news as a more valuable-cum-respectable- cum-manly endeavour than the design and manufacture of silk patterns for ‘ladies’ dresses. (The Cheney Bros. decision served as a catalyst for lobbying efforts directed at Congress to obtain copyright protection for fashion designs – an endeavour whose multi-decade failure raises its own questions about gender-power dynamics.)

Even after the Sexual Revolution in the US in the late 1960s, when the importance of apparel – and even fashion – went ‘mainstream,’ some judges continued to treat clothing-related cases as unworthy of their time. For example, in the 1974 case of Rappaport v. Katz, plaintiff Doreen Rappaport challenged on constitutional grounds guidelines of the New York City Clerk prescribing required dress for couples getting married.13 The plaintiff ‘wished to wear pants to her wedding but was told [by the City Clerk] to present herself in a skirt’, prompting her to bring suit because, in her words, ‘I find dressing in pants […] protects me from much of the sex-role stereotyping to which women continue to be subjected both professionally and socially.’14 The male judge assigned to the case would have nothing to do with it, writing that ‘federal judges have too much to do to become involved in this type of dispute’15  The court did not acknowledge the tension between this dismissive passage and other portions of the opinion, like the following paragraph:

The City Clerk draws attention to the word ‘solemnise’ repeated in the statute from which he infers a duty to conduct a solemn, not a frivolous occasion. […] He asserts that the City of New York has spent hundreds of thousands of dollars in decorating and maintaining appropriately, separate chapels for such solemnisations in each of the five boroughs of the City, in keeping with the solemnity attached to the nature of the marriage obligations publicly assumed by every couple in said chapels. During the last six decades, he says, couples who sought the solemnisation service of the City Clerk invariably appeared in appropriate clothes for this single most important event in their lives.16

Put differently, while the attire to be worn at a wedding ceremony was indeed a ‘solemn’ matter, Ms. Rappaport’s desire to select her own attire for the occasion, although motivated by ideological and political concerns, was nevertheless ‘frivolous.’

More recently, an appellate court characterised the Rappaport case as posing the question, ‘Does a bride have a right founded in the constitutional notion of liberty to wear slacks to her city-hall marriage?’17 The court, comparing Rappaport to another case in which a plaintiff had sued for constitutional violations over a public employer’s broken promise ‘to give its employees fresh Danish pastry during their coffee breaks,’ described Rappaport as belonging to a class of cases ‘not [where] the harms […] are small but [where, even so,] there is no actionable wrong.’18 It is quite remarkable for a court to state that even where it perceives a wrong that should be redressed, it will not intervene – not because of procedural flaws or other legal obstacles, but just because.

Of course, in the new millennium, fashion can no longer be credibly characterised as a mere hobby for aristocratic women with little else to do; fashion is now a multi-billion-dollar industry with countless stakeholders. But even where the economic stakes in fashion-related cases are too great for a court to simply ‘opt out,’ as many of the above-mentioned judges did, federal judges presiding over such cases still make their distaste for the subject matter clear (even, and maybe especially, female judges). Consider Gucci America, Inc. v. Guess?, Inc.,19 a recent lawsuit over Guess’s alleged conspiracy to ‘gucci-fy’ its products in order to boost business by free-riding on the luxury brand’s consumer goodwill.20 Judge Shira Sheindlin’s lengthy 2012 decision disposing of the case, partly in Gucci’s favour, concluded with this withering passage:

Over the past three years, the parties have put in countless hours and spent untold sums of money, all in the service of fashion – what Oscar Wilde aptly called ‘a form of ugliness so intolerable that we have to alter it every six months.’ With the instant disputes now resolved, and with Gucci’s entitlement to the relief noted above, it is my hope that this ugliness will be limited to the runway and shopping floor, rather than spilling over into the courts.21

The message, of course, was that fashion – whose immense economic and social importance no reasonable person could now ignore or dispute – continues to be somehow unworthy of the federal courts’ time. It is true that federal judges, who must manage a docket consisting of both criminal and civil cases, tend to give priority to the former, with only rare exceptions. Yet even limiting our examination to federal civil cases, one does not often see passages like Judge Scheindlin’s excoriation in decisions outside the realm of fashion, especially in disputes complex enough to warrant a one hundred plus-page opinion.

In short, it seems that fashion’s inferior status as ‘a female thing’ continues to haunt its treatment in litigation, with inevitable, if unquantifiable, effects on the outcome of disputes of great consequence for the parties – and, by extension, for the evolution of US law more generally. While conclusions must be guarded pending further study of this phenomenon, it is clear that the gender-power dynamics we often try to relegate to another era are alive and well, at least in the cases described. Litigants – and advocates of social equality – beware!

Charles Colman is a specialist in the emerging field of ‘fashion law’ and an Assistant Professor of Law at the William S. Richardson School of Law, University of Hawai’i-Mānoa.

This article was originally published in Vestoj: On Power.

  1. See P McNeil and V Karaminas, (eds.), The Men’s Fashion Reader, Berg, Oxford 2009, pp.147-48. ‘In The Empire of Fashion, [Gilles] Lipovetsky writes that from the fourteenth to the eighteenth century, both sexes were equally extravagant in fashion and ornamentation. Even up until the seventeenth century men’s fashion was more playful than women’s; it was not until the “great renunciation” of the late eighteenth century that the masculine mode was eclipsed by the feminine.’ Citing G Lipovetsky, Empire of Fashion: Dressing Modern Democracy, Princeton university Press, Princeton, 1994, pp.26-27. See also Ibid, p.148 ‘Simply put, it has been claimed that after the decline in court societies, men dressed for comfort and function rather than fashionability and style.’ Citing J Craik, The Face of Fashion: Cultural Studies in Fashion, Routledge, London, 1994. 

  2. See A Hollander, Sex and Suits, Knopf, New York, p.48. ‘Public attention has [long] been riveted on the feminine scheme of varying the same idea in different ways through time. This has been what is meant by “Fashion” when it is despised as woman’s business.’ 

  3. Page v. Ferry, 18 F. Cas. 979, 982. C.C.E.D. Mich. 1857. Wilkins, J. 

  4. Motte v. Bennett, 17 F. Cas. 909, 916-17. C.C.D.S.C. 1849. This passage first appeared in an 1807 judicial opinion in the case of Whitney v. Fort, now lost, but verified (and expounded upon) by a judge in Whitney v. Carter, 29 F. Cas. 1070, 1071-72. C.C.D. ga. 1810. 

  5. Drury v. Ewing, 7 F. Cas. 1113, 1117. C.C.S.D. Oh. 1862. 

  6. Marsh v. Billings, 61 Mass. 322, 332 (1851). Note that this was actually a state-court case; it was not until decades later that trademark and ‘trade dress’ litigation could be brought in the federal courts. 

  7. See, e.g., Good Form Mfg. Co. v. White, 160 F. 661, 662. 2d Cir. 1908. Patented device for keeping necktie in place with standing collar described by court as an ‘invention . . . of minor importance, having for its object the improvement in appearance and fit of an article of wearing apparel.’ 

  8. P McNeil and V Karaminas, eds., The Men’s Fashion Reader, Berg, Oxford, 2009, p.9. ‘Feminist theory can be used to understand the meaning of style politics – using “rituals of consumption in dress, cosmetics, hairstyle and gesture to bend the norms ordained by the market and to flout family and other authority.”’ Quoting V de Grazia, ‘Introduction,’ in The Sex of Things: Gender and Consumption in Historical Perspective, ed. V de Grazia and E Furlough, University of California Press, Berkeley, 1966, p.7.  

  9. 248 U.S. 215. 1918 

  10. 35 F.2d 279. 2d Cir. 1929 

  11. Ibid. pp.279-80 

  12. Several passages from the Second Circuit panel’s decision in Cheney Bros. suggest that it might have decided INS v. AP differently, if it had adjudicated the earlier case. Further, this time period is associated with the emerging recognition of the limitations of courts to create ‘federal common law’ – a notion formalised by the Supreme Court eight years later, in Erie Railroad Co. v. Tompkins, 304 U.S. 64. 1938 

  13. 380 F. Supp. 808. S.D.N.Y. 1974. 

  14. Ibid. p.809 

  15. Ibid. p.812. It should be noted that the judge did attempt to bolster his ruling with federalism arguments. 

  16. Ibid. pp.810-11 

  17. Hessel v. O’Hearn, 977 F.2d 299, 304. 7th Cir. 1992  

  18. Ibid. 

  19. 9 Civ. 4373 (SAS), 2012 U.S. Dist. LEXIS 84232. S.D.N.Y. Jun. 18, 2012. J Scheindlin. 

  20. See discussion in C Colman, ‘Handbags at Dawn,’ Intellectual Property Magazine, Jul. 13, 2012, http://lawoffashion.com/blog/story/07/13/2012/145. 

  21. Gucci America, 2012. U.S. Dist. LEXIS 84232, p.117