Law Commons^™

Acting Gay, Acting Straight: Sexual Orientation Stereotyping, Luke Boso

Luke A. Boso

What does it mean to discriminate "because of sexual orientation?" This legal question will arise increasingly as many states and municipalities enact laws that prohibit discrimination because of sexual orientation. Without evidence of animus, plaintiffs will likely resort to evidence of sexual orientation stereotyping. How should courts determine whether evidence is of sexual orientation stereotyping, and therefore evidence of sexual orientation discrimination? This question is important for courts and litigants who will increasingly face the question, as well as for those invested in anti-essentialist antidiscrimination law more broadly. When the law attempts to define identity categories by offering universalizing definitions, …

Minors, Parents, And Minor Parents, Maya Manian

Maya Manian

The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi

Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered …

Not Just Muslim Women Are Exploited By 'Religious' Law, Susan G. Drummond

Susan G. Drummond

No abstract provided.

Sex-Selective Abortion Bans Are Not Associated With Changes In Sex Ratios At Birth Among Asian Populations In Illinois And Pennsylvania, Arindam Nandi, Sital Kalantry, Brian Citro

Sital Kalantry

Legal prohibitions on sex-selective abortions are proliferating in the United States. Eight state legislatures have banned abortions sought on the basis of the sex of the fetus, 21 states have considered such laws since 2009, and a similar bill is pending in U.S. Congress. These laws have been introduced and enacted without any empirical data about their impact or effectiveness. Prior studies of U.S. Census data found sex ratios among foreign-born Chinese, Korean and Indian immigrants were skewed in favor of boys, but only in families where there were already one or two girls. Using the variation in the timing …

Using An “Incidents Of Marriage” Analysis When Considering Interstate Recognition Of Same-Sex Couples’ Marriages, Civil Unions, And Domestic Partnerships, Barbara Cox

Barbara Cox

Despite discussions for over ten years, we still do not have any decisions on interstate or international recognition of marriages by same-sex couples. We do have, however, six cases in the United States on the interstate recognition and validation of Vermont civil unions. In these six cases, same-sex couples from six different states who had entered into Vermont civil unions came to their courts seeking resolution of legal issues that arose in their relationships. The rest of this article now turns to these six decisions and considers how each court dealt with the same-sex couple seeking legal assistance with the …

Law, Literature, And The Legacy Of Virginia Woolf: Stories And Lessons In Feminist Legal Theory, 21 Tex. J. Women & L. 1 (2011), Susan Brody

Susan L. Brody

No abstract provided.

Sex Lex: Creating A Discourse, Gerald Torres

Gerald Torres

No abstract provided.

Real Men, Luke A. Boso

Luke A. Boso

Men experience discrimination every day at work and at school because they fail to look or behave like real men. Most courts now hold that men can prove sex discrimination by presenting evidence that the defendant harassed or bullied the plaintiff because he fails to conform to sex stereotypes. But judges in these cases are reluctant to find that defendants intended to discriminate “because of sex,” which is required to state a valid claim under statutory anti-discrimination law. Instead, judges routinely grant defendants’ motions for summary judgment and to dismiss based on little more than their own ideas about what …

From Multiculturalism To Technique: Feminism, Culture, And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Annelise Riles

The German Chancellor, the French President, and the British Prime Minister have each grabbed world headlines with pronouncements that their states' policies of multiculturalism have failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non- Western countries, revolve around the treatment of women. Yet feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy, and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of "culture." This impasse is detrimental both to women's equality and …

Feminist Legal Theory, Feminist Lawmaking, And The Legal Profession, Cynthia Bowman, Elizabeth Schneider

Cynthia Grant Bowman

No abstract provided.

Legal Limbo Of The Student Intern: The Responsibility Of Colleges And Universities To Protect Student Interns Against Sexual Harassment, Cynthia Bowman, Marybeth Lipp

Cynthia Grant Bowman

No abstract provided.

Victim Gender And The Death Penalty, Caisa Royer, Amelia Hritz, Valerie Hans, Theodore Eisenberg, Martin Wells, John Blume, Sheri Lynn Johnson

John H. Blume

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

The Crisis Of Child Custody: A History Of The Birth Of Family Law In England, Danaya Wright

Danaya C. Wright

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way …

Race, Gender, And Work/Family Policy, Nancy Dowd

Nancy Dowd

Family leave is not an end in itself, but rather is part of a much bigger picture: work/family policy. The goal of work/family policy is to achieve a good society by supporting families. Ideally, families enable children to develop to their fullest capacity and to contribute to their communities and society. Public rhetoric in the United States has always strongly supported families. Our policies, however, have not. In the area of work/family policy, the United States continues to lag behind every other advanced industrialized country, as well as many developing countries, in the degree to which we provide affirmative support …

Unbending Gender: Why Family And Work Conflict And What To Do About It (Panel Two: Who's Minding The Baby?), Nancy Dowd, Adrienne Davis, Marion Crain, Bonnie Dill, Catherine Ross, Joan Williams

Nancy Dowd

A central characteristic of our current gender arrangements is that they pit ideal worker women against marginalized caregiver women in a series of patterned conflicts I call gender wars. One version of these are the mommy wars that we see often covered in the press between employed mothers and mothers at home. Employed mothers at times participate in the belittlement commonly felt by homemakers. Also mothers at home, I think, at times participate in the guilt-tripping that's often felt by mothers who are employed. These gender wars are a central but little understood characteristic of the gender system that grew …

“The Tyranny Of The Majority Is No Myth”: Its Dangers For Legally Married Same-Sex Couples, Barbara Cox

Barbara Cox

This article has three sections. Section 1 explains that sexual minorities, consisting of lesbian, gay, bisexual, transgendered, and queer people (LGBTQ), 15 comprise a small number of people within the U.S. and describes the current laws granting and prohibiting legal rights to married or partnered same-sex couples. Thus, the LGBTQ community is dependent on the non-LGBTQ community to decide its rights when those rights are debated at the ballot box, a bad public policy in and of itself. 16 Section II considers the question posed by this symposium: is the tyranny of the majority a danger to minority communities or …

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh Goodmark

Leigh S. Goodmark

No abstract provided.

Law Is The Answer? Do We Know That For Sure? Questioning The Efficacy Of Legal Interventions For Battered Women, Leigh Goodmark

Leigh S. Goodmark

No abstract provided.

A Troubled Marriage: Domestic Violence And The Legal System, Leigh Goodmark

Leigh S. Goodmark

The development of a legal regime to combat domestic violence in the United States has been lauded as one of the feminist movement’s greatest triumphs. But, Leigh Goodmark argues, the resulting system is deeply flawed in ways that prevent it from assisting many women subjected to abuse. The current legal response to domestic violence is excessively focused on physical violence; this narrow definition of abuse fails to provide protection from behaviors that are profoundly damaging, including psychological, economic, and reproductive abuse. The system uses mandatory policies that deny women subjected to abuse autonomy and agency, substituting the state’s priorities for …

When Is A Battered Woman Not A Battered Woman? When She Fights Back, Leigh Goodmark

Leigh S. Goodmark

No abstract provided.

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret Brinig, Linda Mcclain

Margaret F Brinig

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be …

Symposium: Title Ix: Women, Athletics And The Law - Foreword, Paula Monopoli

Paula A Monopoli

No abstract provided.

The Consequences Of Abortion Restrictions For Women's Healthcare, Maya Manian

Maya Manian

This Essay challenges the false assumption that abortion care can be segregated from women’s medical care and targeted for special restrictions without any effects on women’s health more broadly. As a matter of medical reality, abortion cannot be isolated from the continuum of women’s healthcare. Yet policymakers and the public have failed to understand the interconnectedness of abortion with other aspects of women’s medical care. In fact, existing abortion restrictions harm women’s health even for women not actively seeking abortion care, but these impacts remain obscured. For example, antiabortion laws and policies have spillover effects on miscarriage management, prenatal care, …

Policing Masculinity In Small-Town America, Luke A. Boso

Luke A. Boso

This Article explores masculinity in rural areas, and it addresses bullying and harassment of gay, bisexual, transgender, and otherwise gender non-conforming boys and men. While all men are under constant pressure to perform masculinity correctly and act like a "real" man, rural boys and men experience unique forms and degrees of gender policing and victimization. The confluence of geographic, social, religious, and economic characteristics common in many rural areas results in few available options for exhibiting acceptable masculinity; even benign and seemingly gender neutral traits quickly become proxies for effeminacy. Moreover, the cultural salience of rurality in the construction of …

The Legacy Of Jane Larson: The Politics Of Practicality And Surprise, Martha Ertman

Martha M. Ertman

Jane Larson's work and life enriched my own and others. Her intellectual framework - applying legal economic ideas of consent to feminist theory, backed up by legal history - suggest surprising practical solutions to problems ranging from the injuries of adultery and prostitution to housing in border towns.

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Justice For Girls: Are We Making Progress?, Francine Sherman

Francine T. Sherman

Social expectations that girls behave obediently, modestly, and cautiously result in the detention and incarceration of girls who fight back at home or in intimate relationships and who are victims of sexual exploitation. The structural discrimination that supports detaining and incarcerating girls for violating these norms is both hard to see and hard to challenge. It is often hidden behind outward good will toward girls and legitimate expressions of concern for their vulnerability and possible victimization; and it is facilitated by the many opportunities for multifactored, "best interests" -based discretionary decisions built into the juvenile justice and child welfare systems. …

Know The Law, Francine Sherman

Francine T. Sherman

A series of 11 "Know the Law" legal briefs posted to the National Girls Institute (OJJDP/National Council on Crime and Delinquency) web site.

Sex And Equality (Symposium), Katharine Baker

Katharine K. Baker

This essay, to be published in Boston University Law Review’s symposium on Hanna Rosin’s book, The End of Men, challenges Rosin’s suggestion that contemporary sexual norms on college campuses serve women’s interests well. Unpacking the same data that Rosin uses to defend hook-up culture on women’s behalf, the essay argues that hook-up norms facilitate rape and may help explain the high rate of sexual assault on college campuses. Hook-up norms also perpetuate the sexual double standard, disproportionately hurt lower income women who cannot compete in hook-up status games, and valorize boorish, selfish male sexual behavior. In doing so, hook-up norms …