Law Commons^™

Preserving The Seed: Why Parents Should Have A Say In Whether Their Mentally Handicapped Child Should Be Sterelized, Rebecca Lenz Mrs.

Rebecca Lenz Mrs.

This article addresses the history of the eugenics movement, the current status of sterilization laws and the rights of parents to choose to sterilize their mentally handicapped child. Recently, North Carolina lawmakers have been pondering a way to compensate victims of unwanted sterilization that occurred in the early twentieth century. During the eugenics movement, many poor, uneducated women were sterilized against their will after being deemed feebleminded or mentally incompetent. Unfortunately, most of the victims were competent women and girls who were unable to fight for their right to reproduce. As a result, North Carolina lawmakers are trying to rectify …

The Role Of Women In Mediation And Conflict Resolution: Lessons For Un Security Council Resolution 1325, Roohia S. Klein

Roohia S Klein

The impact of war on women is often disproportionate and distinct from the effect it has on men. Given the second-class status of women in many societies, their skills and contributions are often under-valued and under-utilized. UN Security Council Resolution 1325 (SCR1325) recognizes the importance of increasing the role of women in all aspects of maintaining international peace and security, including encouraging women to take an active role in resolving conflicts (sections 2, 8b and 16 of SCR1325). This last aspect of SCR1325 reflects an increasing recognition of the effect of gender in conflict resolution. This paper draws upon academic …

The Invisible Man: How The Sex Offender Registry Results In Social Death, Elizabeth B. Megale

Elizabeth B. Megale

This Article establishes that overcriminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits …

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

New Frontiers Of Reprogenetics: Snp Profile Collection And Banking And The Resulting Duties In Medical Malpractice, Issues In Property Rights Of Genetic Materials, And Liabilities In Genetic Privacy., Stephanie Sgambati

Stephanie Sgambati

ABSTRACT

Single nucleotide polymorphisms (SNPs) represent the portions of our genetic makeup where human differ from each other. Mapping an individual’s profile creates a DNA fingerprint entirely unique to that individual. The primary purpose for the creation of SNP profiles has been validation of medical techniques used in reproductive medicine that require researchers to be able to definitively determine which embryo makes which baby- thus matching DNA fingerprints from infants to those from embryos. In spite of this seemingly narrow use, the potential value of the information contained in the SNP profile is enormous.

In this paper, I explore how …

Gelding The Lily: How The Bankruptcy Code's Promotion Of Marriage Leaves It Impotent, Tiffany R. Redding

Tiffany R. Redding

This Article challenges benefits in the Code that are reserved for married debtors as limiting the Code's power and ability to achieve its primary objective – providing all honest debtors with a fresh start. As the institution of marriage continues to evolve and marriage rates in America steadily decline, economic laws such as the Bankruptcy Code can no longer rely on marriage as an indicator of financial interdependence. This Article suggests several ways that the Code may be revised to eliminate marriage and restore power to the Code.

Divorce And Polygamy In Tanzania, Rachel Howland, Ashley Koenen

Rachel J Howland

This Article explores the unique legal issues surrounding polygamous marriage and divorce in mainland Tanzania, and submits that the Law of Marriage Act of 1971 (LMA) should be amended to include a provision that governs co-wives’ property interests in the case of divorce. Moreover, it proposes awareness-raising efforts to increase legal literacy and to promote the rights of co-wives. Under Section 10(1) of the Act, a marriage is defined as “the voluntary union of a man and a woman, intended to last for their joint lives,” and may either be monogamous or polygamous (or potentially polygamous). Further, under Section 57, …

The Feud Between The Queen And The Diva: How A Property Dispute Underscores The Relevance Of A South Beach Gay Bar, Justin Karr

Justin Karr

The article recounts how the gay community was instrumental in the economic and cultural revival of South Beach as its known today. But, with the area currently experiencing a decline in gay tourism, the article suggests why the city is keen to observe the cultural and social benefit provided by a robust gay population. The article details the bar’s lobby of the local government for an expansion of its outdoor drag entertainment, despite the protests of the neighboring boutique hotel, which the bar asserts is homophobic intolerance of the shows’ gay theme.

The article discusses the importance that the modern …

The Geography Of Sexuality, Yishai Blank, Issi Rosen-Zvi

Yishai Blank

Who regulates sexuality in America? Given the high salience of federal laws and policies such as the Defense of Marriage Act (DOMA) and the military’s “Don’t Ask Don’t Tell” policy, and states’ legal activism regarding same-sex marriage, it would seem that sexuality is mostly a federal and a state matter, and that cities play a secondary, if not insignificant role. This Article argues that in fact the opposite is true: the regulation of sexuality has been decentralized, with cities being the main locus where the most important issues pertaining to the lives of gays and lesbians are decided. This “localization …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

The Greatest Measure Of Deterrence: A Conviction For Jean-Pierre Bemba Gombo, Houston Goodell

Houston Goodell

The landscape of modern warfare has changed dramatically over the past 100 years since World War I. While the weapons systems have all changed dramatically, many of the crimes perpetrated in warfare have remained the same. Although almost all of these crimes have been punished by various national and international courts, one crime – rape – has escaped prosecution until very recently. The International Criminal Court (ICC) is currently hearing the case of former Democratic Republic of the Congo (DRC) Vice-President Jean-Pierre Bemba Gombo. What makes Bemba Gombo’s case so unique is that, unlike the Serbians who were tried and …

I Insiders And Outsiders: Is There A Space For The Gay ‘Father’ In The Era Of The Hetero-Normative Lesbian Family?, Julie A. Wallbank Dr

Julie A Wallbank Dr

Abstract Donor insemination is frequently used by lesbians in order to have their own families. Choices have to be made about conception and empirical research tells us that under the previous framework of the Human Fertilisation and Embryology Act 1990 these decisions rest on a number of issues such as the prospective lesbian parents’ views on the perceived interests of the child in knowing their donor as a child, the risks of challenge from the sperm donor to the integrity of the lesbian family and the desire to contest the hetero-normative model of the legally sanctioned two-parent nuclear family and …

Rape In Conflict: Battling The Impunity That Stifles Its Recognition As A Jus Cogens Human Right, Michelle Marie Seyler

Michelle Marie Seyler

Jus cogens is defined as “peremptory norms of general international law from which no derogation is permissible.” Among the human rights issues that fall into this category, such as slavery and genocide, there is one that has yet to be elevated to this level of importance that unequivocally should be: rape in conflict areas.

This paper first overviews the history of rape in conflict, the reasons for its prevalence, and the affects it has on women and communities. Second, it discusses the legal tools currently available in the international legal field. Third, it establishes genocide as a jus cogens human …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And The Bankruptcy Of The “Nature-Nuture” Debate, Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, 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 it is to have a nature …

Doma’S Bankruptcy, Mark Strasser

Mark Strasser

Over the past few years, several federal courts have suggested or held that section three of the Defense of Marriage Act (DOMA) violates constitutional guarantees. The courts have differed, however, both with respect to the appropriate standard of review and with respect to the particular constitutional guarantees that the section allegedly violates. Ironically, the resolution of these debates may ultimately have less import for the constitutionality of the section at issue than for the constitutionality of DOMA’s full faith and credit section and for the constitutionality of state same-sex marriage bans. This article addresses the constitutionality of section three of …

Reorienting Feminist Strategies Relating To Adult Transactional Sex, Suzanne Bouclin

suzanne bouclin

Feminist-informed policies around transactional sex continue to highlight and reinforce the ontological, epistemological and aesthetic disagreements between abolitionists and sex workers’ rights advocates. In this paper, I examine the Canadian context to provide some geographic and social specificity to such debates occurring through the global West. I review the anchoring concepts of feminist perspectives on the sale of sexual services by adults. I then suggest an intersectional understanding of sex work and deploy it to provide guidelines for addressing feminist concerns around commercial sex that avoid checkmated arguments and binary distinctions that do little to reduce the conditions of oppression …

“Until Death (Or Sex Change) Do Us Part:” Advocating For Adoption Of The European Legal Approach To Validating Marriages Involving Post-Operative Transsexuals, Erin D. Bender

Erin D Bender

The Supreme Court has held that marriage is a fundamental right; however, post-operative transsexuals in America often still find themselves precluded from exercising this right. The majority of states to consider the issue have determined that post-operative transsexuals are only free to marry individuals of the opposite gender of their birth sex, yet in many states, such a marriage would be invalid because it would outwardly resemble a marriage between two individuals of the same sex. Recently, the European Court of Human Rights concluded that states party to the European Convention for the Protection of Human Rights and Fundamental Freedoms …

Same-Sex Marriage: European Court Of Human Rights’ Jurisprudence And Conflicts Of Law - Possible Messages For And From The Supreme Court Of England And Wales, Brigitte J. Clark Dr

Brigitte J Clark Dr

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right …

Same-Sex Marriage: European Court Of Human Rights’ Jurisprudence And Conflicts Of Law - Possible Messages For And From The Supreme Court Of England And Wales, Brigitte J. Clark Dr

Brigitte J Clark Dr

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right …

Standing At The Crossroads: A Review Of The Novel Issues Of Standing At Play In Perry V. Schwarzenegger, Natasha Mennecke

Natasha Mennecke

This piece examines whether the Proponents of Proposition 8 have standing to appeal the district court's decision invalidating the measure. The paper examines the question of federal Article III standing and whether California Law creates a Liberty Interest sufficient for federal standing.

Sometimes It Gets Worse: Bullying Of Lgbtq Individuals In The Workplace, Alexandra Tracy-Ramirez

Alexandra Tracy-Ramirez

In response to several publicized cases of bullying against lesbian, gay, bisexual, transgender, and queer (LGBTQ) teens, famous U.S. personalities from Ellen DeGeneres to President Obama are compiling messages of hope, proclaiming the campaign’s message: “It gets better.” The sad reality is that for many LGBTQ individuals, while bullying in school may end, it may pick up with a new fierceness once those individuals enter the workplace. One glaring gap in the federal U.S. civil rights scheme is its inability or unwillingness to account for the fluid, dynamic, complex nature of identity, particularly sexual and gender identity. While Title VII …

All Your Eggs In One Basket: Why Contract Law Proves Unreliable In Frozen Embryo Adoption Cases, Austin R. Caster

Austin R Caster

This article will show why infertile couples cannot unequivocally rely on good faith, consensual contracts in cases of assisted reproductive technology because the law is so unsettled. Each section will show why, because of alleged public policy implications, contract doctrines or clauses such as (1) the termination of parental rights, (2) the doctrine of waste, and (3) liquidated damages still remain almost completely unreliable in a matter regarding assisted reproductive technology. Though this uncertainty affects infertile couples trying to complete their families through various methods including adoption, surrogacy, in vitro fertilization, and artificial insemination, this article will focus on cases …

“Charitable” Discrimination: Why Taxpayers Should Not Have To Fund 501(C)(3) Organizations That Discriminate Against Lgbt Employees, Austin R. Caster

Austin R Caster

Until now, the first amendment protection of religious liberty has allowed—and even publicly funded—discrimination against LGBT employees, but this article argues that Christian Legal Society v. Martinez changes that analysis. According to Bob Jones University v. United States, organizations that base admissions decisions on racial discrimination violate public policy and cannot receive taxpayer funding. Similarly, Christian Legal Society v. Martinez shows us that universities do not have to fund student organizations that discriminate on the basis of sexual orientation. Therefore, because discrimination based on an immutable minority trait bars taxpayer funding in one instance, this article argues it should also …

Globalization Versus Normative Policy: A Case Study On The Failure Of The Barbie Doll In The Indian Market, Priti Nemani

Priti Nemani

The Barbie doll leads in the world of young females, with her vast wardrobe, her extensive life experiences, and her many diverse friends. Barbie’s maker- Mattel, Inc. – has sold the doll around the world by making superficial ethnic and racial modifications to the doll; however, the international marketing of Barbie has not been wholly triumphant. Mattel no longer promotes the Barbie in India; rather, the global company now mainly markets gender neutral products, like board games, to the Indian market. Why did the Indian family reject Barbie as the appropriate toy for their daughters?

This article argues that, despite …

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of 7% of the population identifying as non-heterosexual, 40% of the men and a large majority of the women surveyed identified as bisexual. …

Making Law Accessible: Gay Rights, Abortion, And Gun Control Through A Civic Organizing Lens, Palma Joy Strand

palma joy strand

In this article, I offer a civic view of social change. This view emphasizes the role of citizens and describes the connection between civic bonds and the emergence of new, sustainable legal doctrine. I use three current sociolegal movements—gay rights, abortion rights, and gun control—as illustrations, and I focus on non-lawyer individuals and civic organizing within those movements.

The Fortas Film Festival, Brian L. Frye

Brian L Frye

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other …