Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

Fatwa Violence Against Women: A Bangladesh Perspective, Meher Nigar

meher nigar

No abstract provided.

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

Trouble At Home, Daniel Manne

Daniel Manne

In her Jacob Prize 2009 award-winning book, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy, Harvard Law School Professor Jeannie Suk mounts a sustained argument to the effect that under the guise of protecting women, coercive state power has weaseled its way into the hitherto sacred area of the home. Unfortunately, Professor Suk makes a number of errors in her book, including misreporting cases, misrepresenting statutes, and misunderstanding the law. Because so little is written in the area of domestic violence, it is critical to correct these errors before they have an effect on policy. …

The Glass Mirror: Appearance-Based Discrimination In The Workplace, Enbar Toledano

Enbar Toledano

The benefits of physical attractiveness are considerable and widespread. As early as infancy and throughout their lifetimes, physically attractive individuals are afforded more favorable treatment, are assumed to possess more socially desirable traits, and enjoy better opportunities in virtually every aspect of life. Perhaps most troubling are the professional advantages enjoyed by attractive job candidates and employees. Statistically, these individuals will receive more job offers, better advancement opportunities, and higher salaries than their less attractive peers—despite numerous findings that they are no more intelligent or capable. Given the proven and arguably undeserved disparities in professional treatment between the unattractive and …

Religion / State: Where The Separation Lies, Vincent Samar

Vincent J. Samar

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, …

Women Leaders In The Areas Of Higher Education, The Legal Profession And Corporate Boards: Continued Challenges And Opportunities, Maria Pabon Lopez, Natasha Ann Lacoste

Maria Pabon Lopez

Abstract Many believe the “woman problem” has been solved, since women are now represented in powerful positions in government, academia, business, and the law. It is true that women today occupy more positions of power than ever; however, these numbers are quite small at the top level, especially for women of color. This article begins with an overview of women in the workforce and their presence in education; and then goes on to review the current data on women in three settings—higher education faculty, the law, and corporate boards. Next, it examines the barriers women encounter in reaching the top …

Reproductive Technology Development Of Artificial Wombs And Its Prospective Impact On Employment Law: How Federal Legislation Must Redefine “Birth” After Ectogenesis To Rectify 29 U.S.C.A. § 2612 Of The Family And Medical Leave Act Of 1993, Daniel J. Burns

Daniel J Burns

There are countless issues stemming recent advancements in the field of reproductive technology. This article focuses specifically on redefining “birth” to appropriately reflect how external fetal gestation will inevitably impact the future of both maternity and paternity leave in the United States and provides recommendations on how to rectify the currently ambiguous federal legislation.

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Determining Legal Parenthood By Agreement As A Possible Solution To The Challenges Of The New Era, Yehezkel Margalit

Hezi Margalit

Over the past decades, we witnessed changes in the matrimonial and parenting institutions. Medical innovations have further created ethical-legal dilemmas. It is, therefore, essential to create a theory and framework that will determine ways to deal with the resulting dilemma in a fully developed manner. This paper surveys the current, conflicting shifts in family structure and the definition of legal parenthood. In it, I deal with the importance and various aspects of defining legal parenthood. I will also focus on the singularity of this dilemma as it is increasingly apparent in the various fertility treatments. I present the sociological-legal roots …

The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser

Mark Strasser

Personhood statutes and amendments have been proposed in several states. As a general matter, they establish as a matter of state law that legal personhood begins at conception. Such laws may have implications for state policies concerning abortion and contraception, and will have implications for other areas of law including state policies related to assisted reproductive technologies. Yet, some of the ways in which these different areas of law might be affected are not well understood and thus are explored here.

To Be Or Not To Be (A Parent)? – Not Precisely The Question; The Frozen Embryo Dispute, Yehezkel Margalit

Hezi Margalit

Modern medicine offers a variety of fertility treatments, with the result that in the United States alone, there are more than 400,000 frozen embryos and another 10,000 are frozen every year. Since the rate of divorce in the United States increases exponentially, one can easily imagine how many frozen embryos could become open to litigation. Indeed, the media, the law and the people concerned with the ethical aspects have devoted much attention to this issue. This is because litigation forces the reassessment of many complex issues starting with the appropriate balance between an individual’s legal right to be and not …

Intimate Matters: Discovery Avenues Towards Straight Women's Human Rights, Alice Bullard Ph.D.

Alice Bullard Ph.D.

“Intimate Matters: Discovering Avenues toward Straight Women’s Human Rights” © Alice Bullard, Ph.D., J.D. expected May 2012 email: ab654@law.georgetown.edu Abstract: This paper demonstrates the need, and the legal right under international human rights law to support, for developing and teaching intimate strategies for women’s emancipation. The international human rights agenda largely overlooks heterosexual sex is a facet of women’s subjugation; we argue here to correct that oversight, to integrate an understanding of the potential of heterosexual sex to (re)produce women’s subordination, and to sketch a program to combat this tendency. At issue is not overt sexual violence or sexual acts …

Rape Trauma, The State, And The Art Of Tracey Emin, Yxta M. Murray

Yxta M. Murray

Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as their late reporting, rape denials, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that the syndrome’s profile is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions. In this Article, I respond to feminist critics by studying the …

Rape Trauma, The State, And The Art Of Tracey Emin, Yxta M. Murray

Yxta M. Murray

Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as late reporting, denying their rapes, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that it is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions. In this Article, I respond to feminist critics by studying the work of …

A New Precedent: Health Insurance Coverage For Surrogate Mothers In The State Of Missouri, Anna L. Molitor

Anna L. Molitor

Part I of this Note discusses the current state of traditional and gestational surrogacy in the United States, as well as the Missouri legislature’s silence on the issue. Part II analyzes the MercyCare Insurance Co. v. Wisconsin Commissioner of Insurance decision and the underlying policy considerations that led to the Wisconsin Supreme Court’s ruling. Part III addresses the important precedent MercyCare could set for other states, including Missouri. This Note concludes with the recommendation that Missouri follow Wisconsin’s lead and mandate insurance coverage for infertility treatments, including the use of gestational surrogacy.

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And Bankruptcy Of The “Nature-Nurture” Debate, 21 Tex. J. Women & L. 187 (2012))., Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature: and the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what kind of thing a “nature” …

Too Rough A Justice: The Ethiopia-Eritrea Claims Commission And Civil Liability For Claims For Rape Under International Law, Ryan S. Lincoln

Ryan S. Lincoln

The developments in international law prohibiting rape during armed conflict have grown at a rapid pace in recent decades. Whereas rape had long been considered an inevitable by-product of armed conflict, evolution in international humanitarian law (IHL) has relegated this conception mostly to the past. The work of international criminal tribunals has been at the forefront of this change, developing the specific elements of the international crime of rape, and helping to change the perception of rape in international law. Violations of IHL, however, also give rise to civil liability. Despite the advances with respect to rape made in the …

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie A. Failinger

Marie A. Failinger

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

Congress Protected The Troops: Can The New Cfpb Protect Civilians From Payday Lending?, Creola Johnson

Creola Johnson

In 2007, Congress enacted a law, commonly referred to as the Military Lending Act (MLA), which placed a 36% interest rate cap on several consumer loans, including payday loans, and prohibits lenders from engaging in several practices considered predatory. However, the MLA grants these protections only to active-duty military members and their dependent family members.

In the wake of the mortgage foreclosure crisis, Congress passed and President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd–Frank Act), which creates a new federal agency, the Bureau of Consumer Financial Protection (CFPB), to focus on …

Of Orphans And Adoption, Parents And The Poor, Exploitation And Rescue: A Scriptural And Theological Critique Of The Evangelical Christian Adoption And Orphan Care Movement, David M. Smolin

David M. Smolin

The primary purpose of this essay is to demonstrate that the scriptural and theological analysis undergirding the evangelical adoption and orphan care movement is patently and seriously erroneous. Thus, this essay will demonstrate that, based on the standards, methods, and presuppositions broadly shared by evangelical Christians in analyzing scripture and theology, the evangelical adoption movement’s specific analysis of concepts such as “adoption” and “orphans” has been seriously deficient and has produced conclusions that are demonstrably false. The second purpose of this essay will be to indicate that these errors of scriptural and theological analysis have produced, and are producing, practices …

Feminism In The Global Political Economy: Contradiction And Consensus In Cuba, Deborah M. Weissman

Deborah M. Weissman

Much has been written about transnational feminist networks and their impacts on the local condition of women. Transborder feminist organizing has reshaped discourses and practice from the local to the international. Global feminist endeavors have influenced the development of international legal standards affecting the circumstances of women and contributed to the gender mainstreaming of human rights initiatives. At the same time, feminist transnationalism has often been identified as the source of tension as efforts have at times resulted in support for a neoliberal agenda propounding empowerment and self-esteem issues, which in turn, has raised questions about who is defining the …

The Debate, David M. Smolin, Elizabeth Bartholet

David M. Smolin

This chapter is taken from a forthcoming book on Intercountry Adoption, edited by Judith L. Gibbons and Karen Smith Robati and forthcoming in June of 2012. The chapter constitutes a debate between Professor Elizabeth Bartholet and Professor David Smolin. Each independently was given three questions to answer, and then one opportunity to respond to the other's answers to those three questions, all with strict space limitations. The debate illustrates some of the starkly different perspectives regarding the law, policies, and facts relevant to intercountry adoption.

Convicts, Thieves, Domestics And Wives In Colonial Australia: The Rebellious Lives Of Ellen Murphy And Jane New, Caroline A. Forell

Caroline A Forell

This Article examines the lives of two female convicts who rebelled against the law and the Australian penal system in the early nineteenth century. It follows Ellen Murphy and Jane New from their first arrests through their experiences with and exits from the penal system. As thieves, convicts, domestics, and wives, Ellen and Jane interacted repeatedly with the law. Both the notorious Jane (who was the subject of a habeas corpus action in In re Jane New), and the more representative Ellen, began thieving as young teenagers in the teeming cities of England. The law arrested, tried, and convicted them. …