Law Commons^™

Diverse Originalism, Christina Mulligan

Faculty Scholarship

No abstract provided.

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Faculty Scholarship

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising …

High Crimes And Misdemeanors: A View From The #Metoo Era, Elizabeth Rapaport

Faculty Scholarship

A look at President Bill Clinton, sexual misconduct, feminism and politics within the lens of the #MeToo movement. This article builds off the authors 2001 article, "Sex and Politics at the Close of the Twentieth Century: A Feminist Looks Back at the Clinton Impeachment and the Thomas Confirmation Hearings," in Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle.

The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose

Faculty Scholarship

Four women have served as Associate Justices on the United States Supreme Court. Since the Court’s inception in 1789, 162 individuals have been nominated to serve as Supreme Court Justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court Justices than women. Thirteen U.S. Presidents have nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently more Catholics serving on the Supreme Court than the number of women appointed in …

What About #Ustoo?: The Invisibility Of Race In The #Metoo Movement, Angela Onwuachi-Willig

Faculty Scholarship

Women involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Taming Title Ix Tensions, Naomi M. Mann

Faculty Scholarship

The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through …

Preparing Law Students In The Wake Of #Metoo, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Sexual Privacy, Danielle Keats Citron

Faculty Scholarship

Those who wish to control and expose the identities of women and people from marginalized communities routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms, and “up their skirts.” They are coerced into sharing nude photographs and filming sex acts under the threat of public disclosure of their nude images. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep fake” sex videos that swap people’s faces into pornography.

At the heart of these abuses is an invasion of sexual privacy—the behaviors and expectations that manage …

Changing The First Lady's Mystique: Defining The First Lady's Legal Role And Upending Gender Norms, Ashlee A. Paxton-Turner

Faculty Scholarship

This Article explores the lack of formal guidelines governing the First Lady by first considering the history of the role and how the three branches of government have typically dealt with the role. Attention is also given to the possible intersection with the anti-nepotism statute when and if the First Lady acts as an advisor to the President. This Article then goes on to suggest that this lack of formality has allowed gender norms to govern the role. In an era where women’s rights have resurfaced as a central theme in political discourse, this Article concludes by suggesting some possible …

Deporting Undesirable Women, Pooja R. Dadhania

Faculty Scholarship

Immigration law has long labeled certain categories of immigrants "undesirable." One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of …

Radical Feminist Harms On Sex Workers, I. India Thusi

Faculty Scholarship

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects-money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of "human trafficking" and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International's support for decriminalization, and is the premise of several movies and documentaries about "sex slavery." Radical feminists aim …

Gender Sidelining And The Problem Of Unactionable Discrimination, Jessica K. Fink

Faculty Scholarship

Gender dynamics suffuse virtually every workplace. Indeed, the way that employees interact with one another turns not only on their individual backgrounds, skills and personalities, but also frequently on their gender. While many employees embrace gender diversity at work and appreciate the benefits of incorporating both male and female perspectives into workplace programs and projects, this ideal does not translate into every work environment. In many workplaces, female workers continue to experience unfair (and often unlawful) treatment based upon their gender. The law has done much to outlaw overt gender discrimination at work, providing a legal framework within which female …

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

The Rise Of Self Sidelining, Leslie Culver

Faculty Scholarship

This Article coins the term "self sidelining" as an experience emanating from two theories: impostor phenomenon and gender sidelining. The impostor phenomenon is a well-established psychological construct that describes the inability of some high-achieving women and men to internalize success. Gender sidelining, recently popularized in legal scholarship, describes the undermining of women's achievements, as compared to men, that are unactionable as legal discrimination. In view of these theories, this Article contends that when internal fraudulent feelings (imposter phenomenon) are perceived to be externally validated by male gender preference (gender sidelining), women consciously or subconsciously discipline themselves to forgo their professional …

Sex Harassment Training Must Change: The Case For Legal Incentives For Transformative Education And Prevention, Susan Bisom-Rapp

Faculty Scholarship

In the wake of the #MeToo moment, employers, legislators, and human resources professionals have defaulted to a familiar solution to what seems like an epidemic of workplace harassment: mandatory sex harassment training. The chosen antidote, however, begs an important question that this author posed over 15 years ago: Does sex harassment training actually prevent harassment? My review of the social science research in 2001 revealed no convincing evidence that sex harassment training curbs harassment. In fact, the scant research available indicated that training, as typically conducted in American workplaces, may backfire, triggering stereotypes about women and people of color, and …

Women’S Human Rights And Migration: Sex Selective Abortion Laws In The United States And India, Aziza Ahmed

Faculty Scholarship

In her compelling new book, Women's Human Rights and Migration, Sital Kalantry challenges the idea that a women's human rights framework offers a consistent and universal way to address complicated gender issues across countries. She is primarily concerned with the lives of migrant women in countries that respond to their social and cultural practices with harsh regulations designed to bring them in line with dominant ideas about gender equality. Kalantry focuses in on two issues in particular: sex-selective abortion and the veil as worn by Muslim women. Kalantry insightfully identifies a primary problem with these types of laws and …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth." This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor

Faculty Scholarship

Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.

This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her film, …

The Body Politic: Federalism As Feminism In Health Reform, Elizabeth Mccuskey

Faculty Scholarship

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act's federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting-from a feminist perspective-scholars' arguments that equity in health insurance is essential for human …

Formative Projects, Formative Influences: Of Martha Albertson Fineman And Feminist, Liberal, And Vulnerable Subjects, Linda C. Mcclain

Faculty Scholarship

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In …