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Getting To Equal: Resolving The Judicial Impasse On The Weight Of Non-Monetary Contribution In Kenya's Marital Asset Division, Benedeta Prudence Mutiso May 2019

Getting To Equal: Resolving The Judicial Impasse On The Weight Of Non-Monetary Contribution In Kenya's Marital Asset Division, Benedeta Prudence Mutiso

Michigan Journal of Gender & Law

Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon ...


Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard Jan 2019

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Michigan Journal of Gender & Law

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a ...


Centering Women In Prisoners' Rights Litigation, Amber Baylor Dec 2018

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Michigan Journal of Gender & Law

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 ...


Removing Camouflaged Barriers To Equality: Overcoming Systemic Sexual Assault And Harassment At The Military Academies, Rebecca Weiant May 2018

Removing Camouflaged Barriers To Equality: Overcoming Systemic Sexual Assault And Harassment At The Military Academies, Rebecca Weiant

Michigan Journal of Gender & Law

The Education Amendments of 1972 introduced requirements to protect female students from discriminatory policies at post-secondary institutions. A portion of those amendments, commonly known as Title IX, require that no students be subjected to discrimination based on their sex by any educational institution or activity receiving federal financial assistance. An exemption under § 1681(a)(4), however, explicitly prohibits application of Title IX to any educational institution whose primary purpose is to train individuals for military service or the merchant marine. Although those students are still subject to stringent conduct standards, the service academies themselves are tethered to sex discrimination policies ...


Draft Of A Letter Of Recommendation To The Honorable Alex Kozinski, Which I Guess I'M Not Going To Send Now, Yxta Maya Murray Jan 2018

Draft Of A Letter Of Recommendation To The Honorable Alex Kozinski, Which I Guess I'M Not Going To Send Now, Yxta Maya Murray

Michigan Journal of Gender & Law

This legal-literary essay engages the current social and jurisprudential moment, encapsulated by the hashtag #metoo. It focuses on the allegations, made in the first week of December 2017, that Ninth Circuit Court of Appeals Judge Alex Kozinski verbally sexually harassed former law clerks Emily Murphy and Heidi Bond. I wrote the lioness’s share of the piece during December 10–11—that is, in the days before news outlets reported that other women complained of Kozinski touching them on the thigh or breast while propositioning them for sex or discussing recent sexual encounters—and concluded that Kozinski was unlikely to ...


Working Sex Words, Anita Bernstein Dec 2017

Working Sex Words, Anita Bernstein

Michigan Journal of Gender & Law

Imagine yourself tasked to speak for a few minutes about legal controls on sex-selling in the United States, or any other country you choose. You need not have thought about the particulars. As someone willing to read a law review article, you have enough to say because sex-selling overlaps with the subject knowledge you already have. Criminal law, contracts, employment law, immigration law, tort law, zoning, commercial law, and intellectual property, among other legal categories, all intersect with this topic. In your brief remarks on how law attempts to mediate the sale and purchase of sex, you have only one ...


Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin Dec 2017

Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin

Michigan Journal of Gender & Law

This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a ...


Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras Dec 2015

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach ...


Liberating Sexual Harassment Law, Lua Kamál Yuille Jan 2015

Liberating Sexual Harassment Law, Lua Kamál Yuille

Michigan Journal of Gender & Law

Sexual harassment law and the proposed solutions to that paradigm’s deficiencies teach a disheartening and peculiar lesson to women and gender performance minorities: “You may be disadvantaged at work because of your gender or your gender performance nonconformity. Discrimination against you is okay.” This albatross has inexplicably burdened sexual harassment law for the more than thirty-five years since it emerged as a redressable form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. This Article coherently explains the reason for it. It makes a simple claim: Sexual harassment law has failed to eradicate workplace gender ...


How Feminist Theory Became (Criminal) Law: Tracing The Path To Mandatory Criminal Intervention In Domestic Violence Cases, Claire Houston Oct 2014

How Feminist Theory Became (Criminal) Law: Tracing The Path To Mandatory Criminal Intervention In Domestic Violence Cases, Claire Houston

Michigan Journal of Gender & Law

Our popular understanding of domestic violence has shifted significantly over the past forty years, and with it, our legal response. We have moved from an interpretation of domestic violence as a private relationship problem managed through counseling techniques to an approach that configures domestic violence first and foremost as a public crime. Mandatory criminal intervention policies reflect and reinforce this interpretation. How we arrived at this point, and which understanding of domestic violence facilitated this shift, is the focus of this Article. I argue that the move to intense criminalization has been driven by a distinctly feminist interpretation of domestic ...


Title Ix And Social Media: Going Beyond The Law, Emily Suran Oct 2014

Title Ix And Social Media: Going Beyond The Law, Emily Suran

Michigan Journal of Gender & Law

The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a ...


Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy Jan 2010

Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy

Michigan Journal of Gender & Law

Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis ...


Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris Jan 2009

Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris

Michigan Journal of Gender & Law

This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment ...


Vindicating The Matriarch: A Fair Housing Act Challenge To Federal No-Fault Evictions From Public Housing, Melissa A. Cohen Jan 2009

Vindicating The Matriarch: A Fair Housing Act Challenge To Federal No-Fault Evictions From Public Housing, Melissa A. Cohen

Michigan Journal of Gender & Law

Pearlie Rucker, sixty-three years old, had been living in public housing in Oakland, California for thirteen years. Ms. Rucker lived with her mentally disabled adult daughter, Gelinda, as well as two grandchildren and one great-grandchild. Ms. Rucker regularly searched Gelinda's room for signs of drugs, and had warned Gelinda that any drug activity on the premises could result in eviction. Nevertheless, Gelinda was caught with drugs three blocks from the apartment. Despite the fact that Ms. Rucker had no knowledge of Gelinda's drug activity, and in fact had been carefully monitoring what happened in her apartment, the Oakland ...


Student Gladiators And Sexual Assault: A New Analysis Of Liability For Injuries Inflicted By College Athletes, Ann Scales Jan 2009

Student Gladiators And Sexual Assault: A New Analysis Of Liability For Injuries Inflicted By College Athletes, Ann Scales

Michigan Journal of Gender & Law

This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and ...


Of Sexual Bondage: The 'Legitimate Penological Interest' In Restricting Sexual Expression In Women's Prisons, Joanna E. Saul Jan 2009

Of Sexual Bondage: The 'Legitimate Penological Interest' In Restricting Sexual Expression In Women's Prisons, Joanna E. Saul

Michigan Journal of Gender & Law

Despite its prevalence, sexual expression among inmates is currently prohibited in United States prisons. Recent scholarship, however, has advocated allowing certain types of sexual expression in women's prisons. The advocates of such a position differentiate between different types of sex within the correctional system: sexual expression that the system has no interest in prohibiting and should not bar, and sex acts that the system does have an interest in prohibiting and should continue to regulate. This position is based on the dual assumptions that, first, women in prison as a collective unit would benefit from some types of sexual ...


Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman Jan 2009

Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman

Michigan Journal of Gender & Law

In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in ...


The Lactating Angel Or Activist? Public Breatsfeeding As Symbolic Speech, Elizabeth Hildebrand Matherne Jan 2008

The Lactating Angel Or Activist? Public Breatsfeeding As Symbolic Speech, Elizabeth Hildebrand Matherne

Michigan Journal of Gender & Law

The only way to combat this stigma against public breastfeeding is through the act of breastfeeding in public. The author proposes that breastfeeding is a powerful act of symbolic speech vital for discarding one of the lingering shackles of women's inequality that triggers first amendment protection. Breastfeeding in public addresses this stigma by treating two ills at once: 1) greater public exposure to the practice decreases the severity of society's reactions, and 2) the less stares and confrontation that publicly nursing mothers receive, the more likely they will be to breastfeed, whenever or wherever their baby is hungry ...


Unusual Suspects: Recognizing And Responding To Female Staff Perpetrators Of Sexual Misconduct In U.S. Prisons, Lauren A. Teichner Jan 2008

Unusual Suspects: Recognizing And Responding To Female Staff Perpetrators Of Sexual Misconduct In U.S. Prisons, Lauren A. Teichner

Michigan Journal of Gender & Law

Despite the general public's ignorance of this issue of sexual misconduct perpetrated by female prison staff against male inmates, such stories are remarkably familiar to those who study or work in the world of prisons. The Prison Rape Elimination Act ("PREA") of 2003 mandated that the Bureau of Justice Statistics ("the Bureau") undertake new studies of sexual violence in prisons. Accordingly, the Bureau released a report in July 2006 revealing some groundbreaking data. Of the 344 substantiated allegations of staff-on-inmate sexual violence made in federal, state, and private prisons in 2005, 67% of the overall victims were male inmates ...


The Failure Of Breast Cancer Informed Consent Statuses, Rachael Anderson-Watts Jan 2008

The Failure Of Breast Cancer Informed Consent Statuses, Rachael Anderson-Watts

Michigan Journal of Gender & Law

Breast cancer informed consent legislation was introduced in response to breast cancer patient discontent with doctor-patient relationships. Physicians do not always believe that explaining treatment alternatives is important, and in this respect, legislation promoting the discussion of alternative treatment could be positive for breast cancer patients, many of whom do in fact have several viable medical options. Studies have found, however, that these statutes have no lasting impact on patient decision-making. Why aren't these patient-driven statutes affecting patient decision-making? And why is medical advice coming from the law at all? This Article argues that this legislation is a poor ...


Sex-Separation In Public Restrooms: Law, Architecture, And Gender, Terry S. Kogan Jan 2007

Sex-Separation In Public Restrooms: Law, Architecture, And Gender, Terry S. Kogan

Michigan Journal of Gender & Law

This Article challenges the common assumption that legally mandated sex-separation of public restrooms is a benign recognition of natural anatomical differences between men and women. Relying on legal history, gender history, and architectural theory, my central thesis is that, contrary to common intuitions, there was nothing benign or gender neutral about the social and historical origins of the first laws adopted at the end of the nineteenth century that mandated such separation.


Refusal To Dispense Emergency Contraception In Washington State: An Act Of Conscience Or Unlawful Sex Discrimination?, Dana E. Blackman Jan 2007

Refusal To Dispense Emergency Contraception In Washington State: An Act Of Conscience Or Unlawful Sex Discrimination?, Dana E. Blackman

Michigan Journal of Gender & Law

This Article will demonstrate that a pharmacist's refusal to fill a valid prescription for emergency contraception constitutes sex discrimination and violates the WLAD. Part I explains the nature and function of emergency contraceptive pills (ECPs) as well as their role in basic health care for women and the importance of their accessibility. Part II addresses federal civil rights protections and the failure of these protections to provide relief for women facing refusals. Focusing on the WLAD, Part II also explains how state public accommodation statutes protect women from discrimination in places of public accommodation. It further sets forth the ...


Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford Jan 2007

Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford

Michigan Journal of Gender & Law

Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in ...


Roman Rape: An Overview Of Roman Rape Laws From The Republican Period To Justinian's Reign, Nghiem L. Nguyen Jan 2006

Roman Rape: An Overview Of Roman Rape Laws From The Republican Period To Justinian's Reign, Nghiem L. Nguyen

Michigan Journal of Gender & Law

The modern Western crime of rape is commonly defined as "[u]nlawful sexual activity (esp. intercourse) with a person (usu. a female) without consent and usu. by force or threat of injury," and it is often seen as an assault of the person's body and a violation of self-autonomy. However, this differs significantly from the conception of rape in ancient Rome. In fact, "there is no single word in... Latin with the same semantic field as the modern English word 'rape.'” For the Romans, the act of rape was covered under a variety of legal terms, but each of ...


A Sign Of "Weakness"? Disrupting Gender Certainties In The Implementation Of Security Council Resolution 1325, Dianne Otto Jan 2006

A Sign Of "Weakness"? Disrupting Gender Certainties In The Implementation Of Security Council Resolution 1325, Dianne Otto

Michigan Journal of Gender & Law

This Article will examine whether efforts to implement the Resolution suggest new ways to address the old problems: the reliance on stereotyped gender representations to rally women in the cause of peace and the vexed strategic question of how movements for transformative change might influence the mainstream institutions of international law and politics. The first concerns the way that the category of gender is deployed by women's peace activism and by international institutions as they respond to it. The author’s question is whether it is possible to rally women to promote peace, while also challenging the gender dichotomies ...


Reconceptualizing Domestic Violence In India: Economic Abuse And The Need For Broad Statutory Interpretation To Promote Women's Fundamental Rights, Pami Vyas Jan 2006

Reconceptualizing Domestic Violence In India: Economic Abuse And The Need For Broad Statutory Interpretation To Promote Women's Fundamental Rights, Pami Vyas

Michigan Journal of Gender & Law

This Article explores the reconceptualization of domestic violence in India through an analysis of the economic abuse provision of the recently passed Domestic Violence Act. The author argues that although India has taken a significant step towards advancing women's rights by characterizing economic abuse as a form of domestic violence, effective implementation of the law requires a broad interpretation of the economic abuse provision. To be consistent with the purpose of the statute and India's constitutional and international human rights obligations, "economic abuse" must be interpreted broadly to include the deprivation of a woman's control over her ...


Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene Jan 2005

Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene

Michigan Journal of Gender & Law

The disparity between what the Constitution permits of public schools and what Title IX permits of private ones is unquestionably stark. This Article calls this disparity into question. First, it asks under what circumstances, if any, allowance for sex discrimination in athletics may be justified under constitutional standards. Then, it considers the practical relevance of the disparity between how a school may lawfully discriminate under Title IX and how it may do so under the Equal Protection Clause. Finally, it offers a prescription for bringing into balance the gender equity messages sent by Title IX and the Constitution.


Global Sex Trafficking And The Trafficking Victims Protection Act Of 2000: Legislative Responses To The Problem Of Modern Slavery, Rosy Kandathil Jan 2005

Global Sex Trafficking And The Trafficking Victims Protection Act Of 2000: Legislative Responses To The Problem Of Modern Slavery, Rosy Kandathil

Michigan Journal of Gender & Law

Human trafficking is becoming the fastest growing criminal activity in the world. Generally, trafficking is defined as the transportation of persons across international borders for labor purposes, by means of force, fraud, or coercion. Commerce directly related to human slavery yields approximately $7-$10 billion a year, trailing only behind drugs and weapons trade for international profit. According to recent congressional findings, over 700,000 human beings are trafficked across international borders each year, including approximately 50,000 women and children into the United States. Women and girl children are the primary targets for sexual exploitation into prostitution, pornography, sex ...


Cambridge Law School For Women: The Evolution And Legacy Of The Nation's First Graduate Law School Exclusively For Women, Nina A. Kohn Jan 2005

Cambridge Law School For Women: The Evolution And Legacy Of The Nation's First Graduate Law School Exclusively For Women, Nina A. Kohn

Michigan Journal of Gender & Law

Although several scholars have briefly discussed CLSW in conjunction with work on other subjects, this Article presents the first comprehensive history of the school. The Article begins in Section Two by exploring how and why CLSW came into being in 1915 after two young Radcliffe suffragists led an unsuccessful campaign for admission to Harvard Law School. Section Three examines the design, pedagogical foundations, and day-to-day workings of the school during its first two years. Sections Four and Five explore the historical events that led to CLSW's closure in 1917. These sections also document and discuss the school's subsequent ...


"Has The Millennium Yet Dawned?": A History Of Attitudes Toward Pregnant Workers In America, Courtni E. Molnar Jan 2005

"Has The Millennium Yet Dawned?": A History Of Attitudes Toward Pregnant Workers In America, Courtni E. Molnar

Michigan Journal of Gender & Law

This Article will focus on what might be considered the "prehistory" of the PDA in an attempt to shed new light on the equality/difference debate. Beginning as early as the nineteenth century, pregnant workers have been forced into either the equality approach or the difference approach depending mostly on race and class. This Article will show that, at times, both approaches restrained the autonomy of women and even caused harm to individual women and society by contributing to the development of the stereotypes and social attitudes that continue to permit pregnancy discrimination today.