Law Commons^™

Evaluating The Sex Discrimination Argument For Lesbian And Gay Rights, Edward Stein

Articles

The sex discrimination argument for lesbian and gay rights analyzes laws that discriminate on the basis of sexual orientation in terms of sex discrimination. For example, sodomy laws that prohibit only same-sex sexual activities are analyzed as discriminating on the basis of sex because they prohibit women from doing something men are permitted to do, that is, have sex with women. This argument has been championed by some scholars and litigators, and it has persuaded some judges. Edward Stein shows that there are sociological, theoretical, moral, and practical problems facing the sex discrimination argument. He suggests that there are better …

Business Lawyer, Woman Warrior: An Allegory Of Feminine And Masculine Theories, Barbara Ann White

All Faculty Scholarship

The first part of this essay is a discourse on how two of the last half century’s most influential contributions to legal thinking: Law and Economics Jurisprudence and Feminist Legal Theory, whose adherents are normally adversaries, can function synergistically to create a greater analytic power. Using business law issues as an example - historically law and economics’ terrain but recently explored by feminism - I comment on how each can unravel different knots but each standing alone leave other conundrums unresolved.

Expanding on the feminist concept of “masculine thinking,” I discuss how, just as law and economics’ analytic style (i.e., …

Lifesaving Welfare Safety Net Access For Battered Immigrant Women And Children: Accomplishments And Next Steps, Leslye Orloff

Articles in Law Reviews & Other Academic Journals

The United States is currently experiencing one of the largest waves of immigration in its history. Contrary to common assumptions, more than half of new immigrants are women. Despite this fact, U.S. immigration policy and most agencies serving immigrants have remained blind to gender differences and have treated all immigrants alike.

The Law Of White Spaces: Race, Culture, And Legal Education, Peter Goodrich, Linda G. Mills

Articles

The scene, drawn from memory, is a first-year law school classroom. It is the early 1980s and the class is on civil procedure. The teacher is a white woman. She is nervous, and the class is dominated by students who provide standard right answers to formulaic law school questions. Other points of view, particularly those of a critical or feminist nature, are either passed over quickly or ignored. Questions of color are never mentioned. More than that, the teacher never calls on any African-American students. Students of color are either ignored completely or told, when they have questions, “We are …

Dialectics And Domestic Abuse, Katharine K. Baker

All Faculty Scholarship

No abstract provided.

Identity Crisis: "Intersectionality," "Multidimensionality," And The Development Of An Adequate Theory Of Subordination, Darren L. Hutchinson

Faculty Articles

This Article arises out of the intersectionality and post-intersectionality literature and makes a case against the essentialist considerations that informed HRC's endorsement of D'Amato. Part I discusses the pitfalls that occur when scholars and activists engage in essentialist politics and treat identities and forms of subordination as conflicting forces. Part II examines how essentialism negatively affects legal theory in the equality context. Part III considers the historical motivation for and the efficacy of the "intersectionality" response to the problem of essentialism. Part III also extensively analyzes the "multidimensional" critiques of essentialism offered by the most recent school of thought in …

Domestic Violence And Us Asylum Law: Eliminating The 'Cultural Hook' For Claims Involving Gender-Related Persecution, Anita Sinha

Articles in Law Reviews & Other Academic Journals

In this Note, Anita Sinha examines the treatment of asylum claims involving gender-related persecution. Analyzing the three most recent decisions published by the Board of Immigration Appeals, Sinha illustrates that these cases have turned on whether the gender-related violence can be linked to practices attributable to non-Western,'foreign" cultures. Sinha argues that cases involving gender-related persecution can be given full consideration of asylum law only when their adjudication is based on an understanding of the political and institutional character of violence against women, rather than on" cultural" culpability. In making this argument, Sinha examines recent amendments to the regulations governing asylum …

Reinforcing The Myth Of The Crazed Rapist: A Feminist Critique Of Recent Rape Legislation, Christina E. Wells, Erin Elliott

Faculty Publications

Part I of this article reviews these new legislative provisions, discussing their requirements as well as the general impetus behind their enactment. Part II discusses both the history of rape prosecution and feminist efforts in the 1970s and 1980s to eliminate barriers to successful rape prosecutions. This part also elaborates upon the myth of the crazed rapist and its relationship to feminist reform efforts. Part III explains how the current legislation is rooted in and reinforces that myth by encouraging unsupportable distinctions among rape defendants. Finally, Part IV discusses the feminist response to such laws and argues for a more …

Women At War: An Evolutionary Perspective, Kingsley R. Browne

Law Faculty Research Publications

No abstract provided.

Lena Olive Smith: A Minnesota Civil Rights Pioneer, Ann Juergens

Faculty Scholarship

Lena Olive Smith and the National Association for the Advancement of Colored People (NAACP) created a spirited partnership in the public interest during the 1920s and 1930s. Throughout their long collaboration, this woman lawyer, her clients, and the Minneapolis branch of a national grassroots organization faced similar challenges: to stay solvent, to end segregation and increase equality, and to live with dignity. This article is divided into four sections. The first three roughly correspond with stages in Smith’s life and work. Part II briefly chronicles Smith’s first thirty six years, 1885 to 1921, as a single African-American woman in the …

For Terry Sandalow - Challenger And Creator, Christina B. Whitman

Articles

In the popular imagination, legal education is the experience of sitting in a classroom and being pushed to think deeply by a brilliant and demanding teacher. Some law schools are lucky enough to have a faculty member who actually fulfills this expectation - one professor in particular whose courses are the testing ground for the very best and most engaged students. When I was a student at Michigan in the 1970s, and until his retirement last year at the end of the century, that teacher was Terry Sandalow. For many Michigan graduates, taking Federal Courts or Fourteenth Amendment from Professor …

Exploring Feminism Globally To Achieve Global Feminism, Anna M. Han

Faculty Publications

Edited Speech delivered on October 6, 2000 at the University of San Diego Journal of Contemporary Legal Issues Conference on Intersectionality and Critical Race Feminism.

In writing this article, I kept thinking of the various stories that I heard during the workshops in Beijing and again I was struck by the commonality of the underlying issues facing women from around the world. While there may be dramatic political, cultural, linguistic and economic differences, I posit that there were more similarities than there were differences.

Holding-Up More Than Half The Sky: Marketization And The Status Of Women In China, Anna M. Han

Faculty Publications

The purpose of this article is to examine generally how Chinese women fared under communism and more specifically, delve into how marketization has adversely impacted the status of women in China. It is this author's contention that despite the overall improvements in the standard of living, Chinese women are increasingly being marginalized economically. The long-term effects of subjugating the advancement of women for the immediate benefits of China's experimentation with a market economy hold vast implications for the future of the country. As China progresses economically, politically and socially, it cannot afford to leave half of its population behind as …

Child Care Needs Survey Report

ADVANCE Library Collection

No abstract provided.

Project Summary, Anthony Chen

ADVANCE Library Collection

No abstract provided.

Why Marriage?, Martha Albertson Fineman

Faculty Articles

Reflection on the prospect of varied, individualized possibilities for the meaning of marriage suggests, that in order to answer the question "why marriage?" we must first consider "what marriage?" or more succinctly, "what is marriage?" Questioning what marriage actually is calls attention to the institution's individualized and malleable nature. By contrast, a focus on "why marriage" highlights the societal function and rationale for the institution. I will discuss each question-the "what" as well as the "why" of marriage.

Keeping Feminism In Its Place: Sex Segregation And The Domestication Of Female Academics, Nancy Levit

Faculty Works

The thesis of Keeping Feminism in Its Place is that women are being "domesticated" in the legal academy. This occurs in two ways, one theoretical and one very practical: denigration of feminism on the theoretical level and sex segregation of men and women on the experiential level intertwine to disadvantage women in academia in complex and subtle ways.

The article examines occupational sex segregation and role differentiation between male and female law professors, demonstrating statistically that in legal academia, women are congregated in lower-ranking, lower-paying, lower-prestige positions. It also traces how segregation by sex persists in substantive course teaching assignments. …

Alice In Legal Wonderland: A Cross-Examination Of Gender, Race And Empire In Victorian Law And Literature, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

Lewis Carroll's 1865 scene of a recalcitrant Alice in the courtroom, defying the court's authority as she grows (literally) into a large and threatening presence, dramatizes what was becoming an increasingly common Victorian spectacle: a woman questioning and critiquing the law and claiming a place for herself within its institutions. Women have played a significant (but much overlooked) role in legal history and, in this paper, I argue for the importance of examining various narratives of the past (including literary accounts) that explored women's relationship to the law.

Against the backdrop of several legal cases in which women sought entry …

Taking Globalization Seriously: Towards General Jurisprudence (Book Review Of Globalization And Legal Theory By William Twining), Doron M. Kalir

Law Faculty Articles and Essays

Part II provides an account of the jurisprudence of Globalization and Legal Theory. Due to the novelty of many of the issues discussed in the book, as well as their importance to the understanding of Twining's recommendations, I have provided a longer than usual account of several chapters. Part II touches upon one of the central jurisprudential dichotomies introduced by Twining—the distinction between general and particular jurisprudence. Twining compares different accounts of the distinction using pairs of canonical jurists. In particular, he compares H.L.A Hart's Postscript with Dworkin's Law's Empire. In this part, I juxtapose Twining's record of this …

Nurturing In The Service Of White Culture: Racial Subordination, Gestational Surrogacy, And The Ideology Of Motherhood, April L. Cherry

Law Faculty Articles and Essays

I approach the question of race, motherhood, and gestational surrogacy, by looking at courts' opinions in the case of Johnson v. Calvert and the racialized institution of motherhood. In the next section, I discuss motherhood as a social institution. I contrast some of the radical feminist critiques of motherhood, which recognize motherhood as institutionalized and compulsory, with Black feminist criticism, which understands motherhood as a site of power for African-American women. In Section III, I discuss the current popular understanding of the cultural and legal dictates of institutionalized motherhood from a historical perspective, focusing on the late eighteenth and early …

Using Evidence Of Women's Stories In Sexual Harassment Cases, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Gender And Intercollegiate Athletics: Data And Myths, Julia C. Lamber

Articles by Maurer Faculty

This Article explores what nondiscrimination means in the context of intercollegiate athletics. After reviewing the Department of Education's controversial Title IX Policy Interpretation, it critically examines the analytical framework used in Title IX athletic cases and concludes that commonly made analogies to litigation under Title VII of the 1964 Civil Rights Act are inapt. A major part of the Article is an empirical study, looking first at gender equity plans written by institutions of higher education for the National Collegiate Athletic Association and then at data collected from more than 325 institutions pursuant to the Equity in Athletics Disclosure Act. …

Foreword: Politics, Pragmatism And The Courts, Anthony E. Varona

Articles

No abstract provided.

Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke

Faculty Scholarship

In this Essay, Professor Franke observes that, unlike feminists from other disciplines, feminist legal theorists have neglected to formulate a positive theory of female sexuality. Instead, discussions of female sexuality have been framed as either a matter of dependency or danger. Professor Franke begins her challenge to this scheme by asking why legal feminism has accepted unquestionably the fact that most women reproduce in their lifetimes. Why have not social forces that incentivize motherhood – a dynamic she terms repronormativity – been exposed to as exacting a feminist critique as have heteronormative forces that normalize heterosexuality? Furthermore, she continues by …

Steps Forward And Steps Back: Uneven Progress In The Law Of Social Group And Gender-Based Claims In The United States, Karen Musalo, Stephen Knight

Faculty Scholarship

No abstract provided.

From Difference To Dominance To Domesticity: Care As Work, Gender As Tradition, Joan C. Williams

Faculty Scholarship

No abstract provided.

Poverty, Welfare Reform, And The Meaning Of Disability, Jennifer Pokempner, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

"There's No Crying In Baseball": Sports And The Legal And Social Construction Of Gender, Rhonda Reaves

Journal Publications

This Article analyzes the view that to be taken seriously as an athlete, women must replicate the behaviors prevalent in male-dominated sports. The Article focuses on sports in the educational context as an important opportunity for legal intervention. Because the law involves the allocation of resources and the policing of behavior by the government, this discussion prompts us to ask how resources should be allocated and what kinds of behavior should be encouraged and discouraged in promoting gender equity. In particular, the analysis of sports within educational programs offers an opportunity for a critical examination of current models of athletic …

Staying Alive: Executive Clemency, Equal Protection, And The Politics Of Gender In Women's Capital Cases, Elizabeth Rapaport

Faculty Scholarship

In this Article, I will review the matrix in which executive decisions in women's capital clemency cases are made, a matrix supplied by modern equal protection law, the nature and scope of the clemency power, gender politics, and contemporary death row. I will then conduct two thought experiments. Each invented case tests the relevance of gender in legally and politically acceptable contemporary clemency decisions. The goal is to understand the politics and law of granting or denying that very rare boon-commutation of sentence - to a female death row prisoner. The exercise offers support for two conclusions. In the age …

Learning Through Service In A Clinical Setting: The Effect Of Specialization On Social Justice & Skills Training, Antoinette M. Sedillo Lopez

Faculty Scholarship

Arguing against the trend toward specialization in clinical legal education, this essay addresses potential limitations of specialized legal clinics in furthering the dual mission of clinical legal education: social justice and skills training. It points out that specialized clinics limit access to justice by leaving the myriad needs of clients partially unmet. They limit students' learning about the complex needs of clients and students' ability to discover broad inequities in the legal system. Specialization makes it more difficult to train students to be creative problem solvers, and affects their professional socialization