Law Commons^™

Negative Liberty Meets Positive Social Change, Anita Bernstein

Faculty Scholarship

No abstract provided.

'‘Male Chauvinism’ Is Under Attack From All Sides At Present': Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Faculty Scholarship

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force …

The Future Of Disability Rights Protections For Transgender People, Kevin M. Barry, Jennifer Levi

Faculty Scholarship

The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if the disability is one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article describes the origins of transgender exclusion and discusses why a growing number of federal courts find this exclusion does not apply to gender dysphoria, a new and distinct medical diagnosis. Further, the Authors define the future of disability rights protections for transgender people.

It’S Still Me: Safeguarding Vulnerable Transgender Elders, Sarah Steadman

Faculty Scholarship

Transgender individuals have many reasons to be concerned about their welfare in the current political and legislative climate. Transgender elders are especially vulnerable. They are more likely to be disabled than the general elder population. Moreover, transgender elders profoundly fear a future when they must rely on others to maintain and protect their gender identity and dignity. This fear is alarmingly realistic because if a transgender elder becomes incapacitated or requires institutional care, they are likely to face discrimination and other harms by their caretakers. In addition, transgender elders who are incapacitated are particularly at-risk if a non-affirming guardian is …

Attorney General V. Miaa At Forty Years: A Critical Examination Of Gender Segregation In High School Athletics In Massachusetts, Erin E. Buzuvis

Faculty Scholarship

Forty years ago, the highest court in Massachusetts ruled in Attorney General v. Massachusetts Interscholastic Athletic Association that the state constitution's newly-added equal rights amendment prohibited the blanket exclusion of boys from girls' athletic teams. The state’s constitutional law departed from Title IX, as well as that of other states, in providing a legal foundation for a wider selection of gender-integrated high school sports. However, most sports remain segregated by sex.

The Author opines that sport organizers in Massachusetts have missed an opportunity to provide students a more balanced menu of athletic opportunities that incorporate both sex-segregated and gender-free sports …

Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …

The Constitutional Development Of The Nineteenth Amendment In The Decade Following Ratification, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Evaluating Judicial Standards Of Conduct In The Current Political And Social Climate: The Need To Strengthen Impropriety Standards And Removal Remedies To Include Procedural Justice And Community Harm, Joshua E. Kastenberg

Faculty Scholarship

Chief Justice Warren Burger warned that when “people who have long been exploited . . . come to believe that courts cannot vindicate their legal rights from fraud,” an “incalculable damage [is done] to society.”

Part I of this Article presents an examination of the current common frameworks shared by the states for addressing judicial conduct appealing to popular social and political influences. Included in this section is an analysis of the interrelationship between implicit bias and impropriety, as well as on community harm and procedural justice.

Part II provides both a historical and contemporary analysis of “populism,” including the …

Book Review: Aisling Swaine, Conflict-Related Violence Against Women: Transforming Transition (2018), Jennifer Moore

Faculty Scholarship

Acknowledging that rape is sometimes utilized as a “weapon of war” represents an important development in humanitarian action and scholarly inquiry. However, Aisling Swaine instructs this is but one important facet of the range of harms women experience in time of war, not to mention in peacetime. Swaine articulates two powerful themes: the variant nature of violence against women in times of war, and the other concerns its ambulant nature over time.

Swaine’s treatment of “conflict-related violence against women” represents an important contribution to the canon of feminist scholarship on gender-based violence. Her insights emerge from qualitative research she conducted …

Don't Call Me Sweetheart: Why The Aba's New Rule Addressing Harrassment And Discrimination Is So Important For Women Working In The Legal Profession Today, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Semenya And Asa V Iaaf: Affirming The Lawfulness Of A Sex-Based Eligibility Rule For The Women’S Category In Elite Sport, Doriane Lambelet Coleman

Faculty Scholarship

No abstract provided.

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler

Faculty Scholarship

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …