Law Commons^™

People As Crops, Evelyn L. Wilson

Evelyn L. Wilson

In 1807, Congress passed a law prohibiting the importation of slaves. The South began to feel the effect of labor shortages and prices escalated. To meet this demand, farmers in the upper south states, especially Virginia, began the systematic breeding of slaves for sale to the southwest. Through the use of statements from Virginia statesmen and from some of Virginia’s former slaves, my paper discusses slave breeding, first as a consequence of slavery, as an added benefit to the labor obtained from the slave.

My father was born in Virginia, as was his father, as was his father, as was …

Passions We Like...And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Yvonne Zylan

This article examines an oft noted, but largely unexplored, aspect of law’s functioning: its ability to constitute social reality. Specifically, I investigate the ways in which law helps define and delimit sexuality as a set of practices, experiences, and identifications. I do so by analyzing the discursive dimensions of anti-gay hate crime laws, demonstrating that such laws produce discrete discursive objects (doctrine and argument) within a specific set of institutional practices (the juridical field), and that these objects and practices in turn legitimate certain limiting narratives, instantiating them as social knowledge and as the ground of sexed and gendered performances. …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the social phenomena of making use of what I call “ring evidence” to determine an individual’s marital status or sexual orientation. More specifically, I note the common practice of identifying people as married based on the presence of a ring on the ring finger of the left hand, as gay and in a committed relationship based on the presence of a ring on the ring finger of the right hand, and as single based on the absence of a ring.

Next, I identify two problems with making use of ring evidence to draw conclusions about …

Prenatal Drug Exposure: The Impetus For Overreaction By The Legal Community Or A Serious Problem Needing A Serious Solution, Janet W. Steverson

Janet W. Steverson

In 1994 this author argued for the adoption of a legislative scheme that addressed the problems of children exposed prenatally to drugs and alcohol. Under that scheme fetal abuse became a crime. However, the sentence for the crime was probation with drug treatment and no-pregnancy conditions, rather than incarceration. Although no state has enacted the proposed legislative scheme in total, a number of states have enacted bits and pieces of the scheme. No state has, however, made fetal abuse a crime.

In addition to the legislation that has been enacted since 1994, a number of other changes have occurred that …

Domestic Violence, The Rucker Decision Interpretation Of 42 U.S.C. 1437d (1) (6), Sexual Harassment In Public Housing, And Municipal Violations Of The Eighth Amendment: Making Women Homeless And Keeping Them Homeless, Shirley D. Howell

Shirley D. Howell

I spent this past summer researching explanations for the rapidly increasing phenomenon of female homelessness in America. While personal deficiencies such as alcoholism, mental illness and previous incarceration account for some female homelessness, I concluded that domestic violence, a flawed interpretation of 42 U.S.C. 1437d(1)(6), sexual harassment in public housing, and municipal violations of the Eighth Amendment are pervasive, but less frequently recognized, causes of female homelessness.

This article examines the great poverty that has befallen so many women in America and its causes. Section I discusses homelessness statistically. Section II examines domestic violence, flawed judicial interpretations, and sexual harassment …

The New Boys: Women With Disabilities And The Legal Profession, Carrie G. Basas

Carrie G Basas

This essay fuses the fields of law, feminist theory, and cultural studies to examine the status of women attorneys with disabilities. It is the first study of its kind in the United States. The author conducted an empirical, qualitative, and ethnographic study of women attorneys with disabilities in the United States. Thirty-eight attorneys participated and their narratives form the basis for critical analysis of disability animus and discrimination in the legal profession. The results show an alarming trend toward disabled women attorneys self-accommodating in the workplace, rather than enforcing their employment rights under the Americans with Disabilities Act. Relying on …

Recognizing Marriage, William J. Rich

William Rich

Recognizing Marriage Abstract Two adults living in the United States already have the right to form enduring relationships, to cohabit, and to identify themselves as married. The path towards full social and legal recognition of marriage for individuals of the same sex, however, must still be developed and will involve multiple steps requiring careful navigation. That path begins with broadening social acceptance, including extension of employment benefits, acceptance within progressive social and religious organizations, and support for children living with same sex couples. Legal acceptance will inevitably follow these changes in society, but in a majority of states, significant road …

Crime And Moral Condemnation, John H. Bogart

John H Bogart

“Crime and Moral Condemnation” considers the relationship between enforcement of criminal law and moral condemnation of conduct by examining the enforcement of California’s feticide statute over a 50 year period in Sacramento. The article focuses in particular on the trial of Dr. T. Wah Hing, one of only three persons prosecuted during the period, and for whom a full trial transcript exists. The article suggests that abortion was not the object of widespread moral condemnation for reasons in addition to the paucity of prosecution, and that enforcement of the feticide statute was more the result of action by the California …

Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun

Susan W Tiefenbrun

Abstract:Gendercide and the Cultural Context of Sex Trafficking in China

By Susan Tiefenbrun and Christie Edwards

Women in China are bought and sold, murdered and made to disappear in order to comply with a strict government One Child Policy that coincides with the cultural tradition of male-child preference and discrimination against women. Everyday “500 female suicides” occur in China because of “violence against women and girls, discrimination [against women] in education and employment, the traditional preference for male children, the country’s birth limitation policies, and other societal factors…” As a result of a widespread and arguably systematic disappearance and death …

Some Penetrating Observations On The Fifth Anniversary Of Lawrence V. Texas: Privacy, Dominance, And Substantive Equality Theory, Shannon Gilreath

Shannon Gilreath

This article, “Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory,” asks the reader to look at the equality claims of minority groups at a new conceptual level. With the Lawrence decision as its critical paradigm, the essay proceeds through several observations on the failure of privacy/substantive due process grounded opinions to deliver rights to minorities. This discussion feeds an ultimate criticism of the equality analysis (or lack thereof) of many of the Court’s principal minority rights opinions. Particularly, I am critical of the longstanding notion that equal protection of the laws …

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of “Best Interest Of The Child” And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Harvey L. Fiser

In order to consider the plausibility of contracts regarding AI, this article will first review various options and legal ramifications for choices regarding AI and then focus on the effect of inconsistent application of the Uniform Parentage Act among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will then consider how the current standard of “best interest of the child” is being used in the absence of the UPA …

Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed

Terry L Turnipseed

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION? Terry L. Turnipseed Associate Professor of Law Syracuse University College of Law in•cest (ĭn'sěst') Sexual relations between family members or close relatives, including children related by adoption. There is a growing trend in this country – startling to many – of adopting one’s adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with his or …

The National Masturbators Task Force, William B. Turner

William B Turner

This article explores why all legislative classifications on the basis of sexual orientation deserve close judicial scrutiny as invidious. Although we typically think of political powerlessness as the logical claim to make in seeking protection from the judiciary under the equal protection clause, this article explains why the active political participation of lesbians and gay men justifies judicial scrutiny of sexual orientation classifications. Full political participation is one of the Republic's highest goals, and lesbians and gay men demonstrate their capacity for full citizenship with their robust, effective political participation.

Chasing Queers: The Radicalism Of Conservative Legal Attacks On Lesbians And Gay Men, William B. Turner

William B Turner

This article explores efforts by conservative activists to use preposterous legal arguments as the basis for their on-going efforts to attack the legal rights of lesbians and gay men. Individually, these cases are easy to overlook, partly because most of them are state cases. Also, one does not usually think of the legal issues involved -- standing, intervention, full faith and credit -- as civil rights issues. This article draws attention to these cases in order to illuminate the similarities among them in terms of conservative attacks on lesbians and gay men.

Framing The Loving Analogy: Same-Sex Marriage, Gender Classifications And Heightened Scrutiny Under The Equal Protection Clause, Luiz Antonio Salazar Arroyo

Luiz A Arroyo

In the attached article, I argue that laws requiring marriage to be between a man and a woman make a facial gender classification triggering intermediate scrutiny. The constitutionality of laws banning same-sex marriage is one of the most important and hotly contested constitutional topics of the 21st century with the California Supreme Court releasing a decision on the subject this summer, and gay marriage cases pending in the High Courts of Connecticut and Iowa.

Ever since the Supreme Court decided Loving v. Virginia and declared that laws banning interracial marriage were unconstitutional, same-sex marriage advocates have claimed that laws restricting …

Beware The "One-Flesh Union": Conservatives Coalesce In Opposition To Same-Sex Marriage, William B. Turner

William B Turner

This article explores the notion of "one-flesh union" as the definitional basis for marriage according to Christian conservatives, and as an indication of the ways in which various types of Christian conservatives are overcoming their historical animosity to unite in opposition to same-sex marriage. The phrase, "one-flesh union," comes directly from the Biblical book of Genesis.

Chasing Queers: The Radicalism Of Conservative Legal Attacks On Lesbians And Gay Men, William B. Turner

William B Turner

This paper describes seven cases, mostly from state courts, that are unremarkable except that they reveal a pattern of attack by conservative activists, including law firms, on the rights of lesbians and gay men. In attacking the rights of lesbians and gay men, these conservatives also frequently assert special rights for themselves. Five of these cases involve standing or intervention, with conservatives asserting patently insupportable (except in one case) claims to standing for the purpose of depriving lesbians and gay men of benefits. Two involve full faith and credit. With one exception, these are all state cases that would otherwise …

The National Masturbators Task Force, William B. Turner

William B Turner

This paper describes political participation by lesbian, gay, bisexual, and transgender (LGBT) persons as an indication of why all legislative classifications involving sexual orientation and/or gender identity should receive careful attention from the courts. We usually think of the courts as using equal protection analysis to protect powerless minorities, but the Court in Cleburne v. Cleburne Living Center noted how most legislators showed great solicitude for the mentally retarded even as it struck down the municipal ordinance that imposed extra burdens on them. Indeed, the courts should reward active participation in the political process by minority groups by ensuring that …

King Solomon’S Solution To The Disposition Of Embryos: Recognizing A Property Interest And Using Equitable Division, Kansas R. Gooden

Kansas R Gooden

In your family law class, your professors have probably not lectured on the area of embryo disposition in divorce proceedings. Were you aware that courts across the country have ruled that the right not to procreate trumps the right to procreate in these situations? When divorce and IVF combine, it results in a complex legal battle. When a couple that used IVF divorces, who should get the remaining embryos? This article asserts that embryos should be considered property. The elements of ownership, possession, use, and exclusion, otherwise known as the bundle of sticks, are present. American law has taken an …

Transcending Gender: How The Absence Of A Consistent Legal Definition Of Gender Creates A Legal Limbo For Transgendered Individuals In The Context Of Marriage, Shawn C. Ellison

Shawn C Ellison

In cases in which the validity of a marriage is in dispute, will courts accept the new gender of a post-operative transsexual? Does a person’s sense of sexual identity have any legal bearing on his or her legal gender? Courts have split on these questions. Many courts seek guidance from a 1970 English case, Corbett v. Corbett, in which the court, relying on its own three-prong congruency standard, ruled against the transsexual. This paper examines Corbett and its legacy. The paper also addresses the issue of how such rulings affect people with physical intersex conditions.

Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson

Jay Michaelson

What is the meaning of gay rights in contemporary religious-political discourse? Though some explain homosexuality's disproportionate prominence in terms of homophobia, "church and state," or traditional values versus progressive ones, this article suggests that the legal regulation of sexuality has a far deeper, and more specific, religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by religious values; they are arguments about the nature of religion itself. The article begins by providing …

A Woman's Right To Be Spanked: Testing The Limits Of Tolerance Of S/M In The Socio-Legal Imaginary, Ummni Khan

Ummni Khan

What conditions must be in place for s/m sexuality to be tolerated in law and culture? In this article, I consider the film Secretary as a lens to explore the imaginative limits of our socio-legal culture regarding sadomasochism. In Part One, I compare Secretary to the film 9 ½ weeks. I deconstruct the narrative and aesthetic components of the two films that uphold their contrasting normative visions, arguing that Secretary did indeed chart new ground for the sadomasochist sexual subject. Yet, a close discursive analysis reveals that the narrative relied upon other hegemonies to make the s/m couple acceptable and …

Privacy, Authenticity, & Equality: The Moral And Legal Case For The Right To Homosexual Marriage, Jeffery L. Johnson

Jeffery L Johnson

Deeply and widely held political and moral values, as well as contemporary constitutional principles, demand that we look more thoroughly at our commitment to equality, liberty, and the pursuit of happiness. Such an examination, I argue, makes it close to self-evident that homosexual couples should have the right to full legal marriage.

Law And Biology, Morris B. Hoffman

Morris B. Hoffman

Survey of the impacts of emerging evolutionary and neuroscientific insights into the foundations of law.

Restricting Access To Infertility Services: What Is A Justified Limitation On Reproductive Freedom, Crystal K. Liu

Crystal K Liu

The realm of reproductive freedoms has been one that has been heavily restricted in the history of our country. For purposes of this particular article, reproductive freedom refers not only to the ability to procreate but to the ability to be a parent as well. Throughout the history of the United States, these limitations have been epitomized in a variety of forms. These include state sponsored sterilization during the eugenics movement, child protection laws, as well as adoption laws. By exploring limitations that have been enacted, some of which have been repealed and others that continue to be in place, …

Hyperbole And The Laws Of Evidence: Why Chicken Is Generally Wrong, A Ten Year Retrospective On Fre 413-415, Thomas A. Vogele

Thomas A Vogele

The Federal Rules of Evidence 413 through 415 were hailed by their proponents as a critical tool in combating the scourge of rape and child sexual assault. The new rules' critics claimed that passage of such radical changes would be the death knell for due process, civil liberties, and the presumption of innocence.

As with so many hotly debated issues in our hyper-polarized society, the truth lay somewhere in between. This paper examines the rules, the hype in favor and against them, the objective statistics, and why the passage of the new rules was not so much a radical departure …

If You Choose To Go Outside Without An Umbrella While It Is Raining, Expect To Get Wet: Why Insurance Indemnification Of The Tortious Transmission Of Sexually Transmitted Diseases Is Contrary To Public Policy, Megan L. Johnson

Megan L Johnson

As last reported by the Centers for Disease Control and Prevention in 2005, at least nineteen million people will contract a sexually transmitted disease (STD) annually, costing the United States $1.4 billion a year. Many victims will contract a disease from someone who knew or should have known that he or she was a disease-carrier, and thus the transmission could have been avoided with proper notification and protection or abstinence.

The STD epidemic has led to an increase in litigation over STD transmission and insurance indemnification of the damages. Insured tortfeasors who transmit STDs turn to their insurance policies for …

The Effectiveness Of Internet Content Filters, Philip B. Stark

Philip B Stark

Abstract. As part of its defense of the Child Online Protection Act, which seeks to prevent minors from viewing commercially published harmful-to-minors material on the World Wide Web, the U.S. Department of Justice commissioned a study of the prevalence of “adult” materials and the effectiveness of Internet content filters in blocking them. As of 2005–2006, about 1.1% of webpages indexed by Google and MSN were adult—hundreds of millions of pages. About 6% of a set of 1.3 billion searches executed on AOL, MSN and Yahoo! in summer 2005 retrieved at least one adult webpage among the first ten results, and …