Law Commons^™

Home Of The Dispossessed, Allison Anna Tait

Law Faculty Publications

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an …

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Law Faculty Publications

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

Appointing Lesbian, Gay, Bisexual, Transgender And Queer Judges In The Trump Administration, Carl W. Tobias

Law Faculty Publications

President Donald Trump incessantly brags that American citizens selected him to “Make the Judiciary Great Again” and constantly reminds the public that the huge number of federal jurists whom Trump has appointed will be deciding cases decades after his tenure is over. Trump has rapidly submitted many circuit and district court candidates, but not one of his 123 nominees has been openly lesbian, gay, bisexual, transgender or queer (LGBTQ). The White House has also instituted endeavors, specifically regarding transgender people, which seem discriminatory. Indeed, a third of the judicial nominees whom the President has appointed have compiled anti-LGBTQ records. Because …

The Criminalization Of Title Ix, Erin R. Collins

Law Faculty Publications

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses …

The Return Of Coverture, Allison Anna Tait

Law Faculty Publications

Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the …

A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016, Jonathan K. Stubbs

Law Faculty Publications

This article briefly surveys the constitutional and statutory foundation for the creation of the federal judiciary. It also furnishes data, by sex and race, of the appointment of federal judges to courts of general jurisdiction during each presidential administration from September 24, 1789, through April 11, 2016. Thus, Part I describes the pace of diversification of the federal judiciary. While data regarding other attributes of judges (such as their socioeconomic status) exist, extensive analysis of such characteristics falls outside the parameters of this preliminary analysis. Nonetheless, the Article notes in passing that, since 1989, during each presidential administration, the majority …

The Evidentiary Rules Of Engagement In The War Against Domestic Violence, Erin R. Collins

Law Faculty Publications

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to "no-drop" prosecution policies, the system's front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This Article reveals that this presumption is …

The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman's Separate Estate, Allison Anna Tait

Law Faculty Publications

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women's property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate's utility and argue that Chancery's separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates guaranteed critical financial …

How (Not) To Talk About Abortion, Meredith J. Harbach

Law Faculty Publications

In this essay, I aim to have a conversation about how we converse- how we talk-about abortion and related issues. In the process, I want to consider how we might come together to discover issues of shared commitment and values and transform the existing abortion debate. I begin with a review of some of the more notable abortion-related rhetoric during the 2012 Virginia General Assembly, and contrast that rhetoric with the discourse in my classroom. I then consider whether and how we might move forward together toward a more meaningful and productive dialogue on these issues.

Women And Children Last: The Prosecution Of Sex Traffickers As Sex Offenders And The Need For A Sex Trafficker Registry, Geneva Brown

Law Faculty Publications

Sex trafficking is a moral and legal tragedy that affects thousands in the United States and abroad. The U.S. State Department estimates that human traffickers bring between 14,500 and 17,500 persons annually into the United States for various avenues of exploitation, including involuntary servitude and forced prostitution. Human traffickers are highly organized into criminal syndicates that reap exponential profits exploiting vulnerable women and children. Individual states struggle to prosecute traffickers and must rely on federal prosecution of trafficking enterprises. International cooperation with local law enforcement is essential in combating trafficking, especially in the sex trade. This Article proposes that an …

Mancession Or Momcession? Good Providers, A Bad Economy, And Gender Discrimination, Allison Anna Tait

Law Faculty Publications

Against this backdrop of precarious and disappearing work, two new elements became important: who was out of work, and how those still employed were navigating bad jobs. These questions laid the foundation for a flood of stories concerning unemployment and bad employment. Unsurprisingly, gender played a leading role in the debates. This article will discuss these two concerns--employment and workplace discrimination-as they intersect with gender and gender stereotypes.

Marriage And Divorce: Legal Foundations, Azizah Y. Al-Hibri

Law Faculty Publications

A six-volume work, this set constitutes a major revision and massive expansion of the 1995 Oxford Encyclopedia of the Modern Islamic World. In addition to covering Islamic societies in the modern world from the eighteenth century to the present, as the earlier four-volume set did, it will add a depth of historical background going back to the pre- Islamic era. The new reference also covers the full geographical extent of Islam by focusing not only on the countries in which Islam is dominant, but also on regions in which Muslims live as minorities, such as Europe and the Americas.

The Red Booklet On Feminist Equality. Instead Of A Manifesto, Dana Neacsu

Law Faculty Publications

If feminist legal theory were to face its legacy today, it would see that its tremendous value rests in its means more than in its ends. True, it has produced palpable results for its promoters domestically. It satisfied many feminists' discrete incremental requests, from Women's History Month to a limited right to bear or beget. While feminism partially satisfied well-identified gendered demands, it has ignored their “base” or frame. I argue that it has ignored basic calls for social justice. As shown here, how gendered demands are satisfied depends on whether basic demands for food and shelter have even been …

Family Model And Mystical Body: Witnessing Gender Through Political Metaphor In The Early Modern Nation-State, Allison Anna Tait

Law Faculty Publications

The preferred political metaphor in the constitutionalist context was the mystical political body, a concept that defined a system in which power was shared and the well-being of the community was linked to the well-being of the individual. Within the mystical political body, the theoretical possibility exists for women not only to occupy a civic space through organic (and organological) association but also to articulate their perspective and its consequences for the political community in a civically approved way. In the mystical body, women approach a citizenship status impossible within the traditional family framework and their witnessing is closely associated …

Strategies For Combating Sexual Harassment: The Role Of Labor Unions, Ann C. Hodges

Law Faculty Publications

This article will discuss the role that unions do play and the role that they can play in eliminating workplace harassment. First, the article will discuss the problem of harassment in the workplace, documenting its frequency and analyzing its forms. Section II will include an examination of harassment in the unionized workplace. Section III will propose a number of reasons that unions should take the lead in addressing workplace harassment, some focused on workers' rights and others on union selfinterest. Finally, in Section IV, the article will recommend several approaches for unions that desire to be in the vanguard of …

An Islamic Perspective On Domestic Violence, Azizah Y. Al-Hibri

Law Faculty Publications

In this Article, the author addresses the traditional Islamic view of domestic violence. To understand the Islamic perspective on domestic violence, the author will explore the Islamic view of gender relations, especially within the family. This view is rooted in the Qur'an, which is examined in this Article.

Islamic Law Vs. Patriarchal Systems: A Woman's Perspective, Azizah Y. Al-Hibri

Law Faculty Publications

It is best to understand Islam through its core concept,· adalah (justice). This is a complex concept that thoroughly permeates the Islamic worldview. It is not reducible to retributive justice, because it is a higher-order concept whose backbone is the Mizaan (balance and harmony).

Muslim Women's Rights In The Global Village: Challenges And Opportunities, Azizah Y. Al-Hibri

Law Faculty Publications

In this age of information technology that shrank our world into a global village, it is fair to ask how this recent development has impacted Muslim women's rights across the world. Having just traveled through nine Muslim countries, ranging from Pakistan and Bangladesh to the Gulf States, Egypt, Syria, and Lebanon, I would answer that it is leading, slowly but surely, to reassessment and change.' Attempts to accelerate the pace of this change, however, without full understanding of its complex topology, and the deep-rooted commitment by most Muslim women to spiritual and cultural authenticity, could halt or even reverse this …

The Imminent Demise Of Interspousal Tort Immunity, Carl W. Tobias

Law Faculty Publications

During the decade of the 1980s, I extensively explored the doctrine of interspousal tort immunity in the United States. I examined the origins and development of the concept; how the notion survived intact in every jurisdiction throughout the nation until 1914; the first successful efforts to abolish immunity during the teens; the slow pace of abrogation in the five decades between 1920 and 1970; and the steady decline of the doctrine thereafter. Indeed, only a small number of states in the country still retain any form of interspousal tort immunity, even though some jurisdictions evince concern about certain issues involving …

Abortion And Women's Legal Personhood In Germany: A Contribution To The Feminist Theory Of The State, D. A. Jeremy Telman

Law Faculty Publications

No abstract provided.

Islam, Law And Custom: Redefining Muslim Women's Rights, Azizah Y. Al-Hibri

Law Faculty Publications

In discussing personal status codes, the article focuses on three specific issues: the right of a woman to contract her own marriage, the duty of the wife to obey her husband, and the right of the wife to initiate divorce. There are several good reasons for focusing on these issues. Foremost among them is the fact that they have been and continue to be of great concern to Muslim women. Another reason is that despite their diverse subject matter, these three issues are based on the same jurisprudential foundation. Hence, our discussion and critical analysis of that foundation will have …

Marriage And Divorce: Legal Foundations, Azizah Y. Al-Hibri

Law Faculty Publications

This unique reference is a comprehensive encyclopedia dedicated to the institutions, religion, politics, and culture in Muslim societies throughout the world. Placing particular emphasis on the nineteenth and twentieth centuries, The Oxford Encyclopedia of the Modern Islamic World contains over 750 articles in four volumes on Muslims in the Arab heartland as well as South and Southeast Asia, Europe, and the Americas.

An invaluable resource, the Encyclopedia offers extensive comparative and systematic analyses of Islamic beliefs, institutions, movements, practices, and peoples on an international scale. The alphabetically arranged articles range from brief 500-word essays to major interpretive and synthetic treatment …

Family Planning And Islamic Jurisprudence, Azizah Y. Al-Hibri

Law Faculty Publications

In this speech, the author provides a brief overview of Islamic jurisprudence on the subject matter and does not recommend any particular position with respect to the debate on family planning. The author, however, wishes to emphasize to the reader the importance of correctly analyzing arguments and factors involved in the particular situation under consideration, in light of all relevant communal as well as individual factors. The author also wishes to emphasize the importance of formulating all such analysis free from all forms of compulsion and coercion, whether conscious or subconscious, individual or organized, including that of targeted advertising campaigns. …

The Case For A Feminist Torts Casebook, Carl W. Tobias

Law Faculty Publications

Professor Leslie Bender's recent essay, An Overview of Feminist Torts Scholarship, contributes substantially to the construction of feminist perspectives on tort law. She carefully and comprehensively surveys burgeoning feminist scholarship in the field of torts. Professor Bender closely examines feminist histories of substantive tort law, the application of feminist theory to tort doctrine, to tort law concepts, and to the teaching of torts, tort issues that are important to women's lives, social science research involving feminism and torts, book reviews that are relevant to feminist tort law, and overviews of material that implicate feminist viewpoints of torts. After Professor Bender …

Montana Fight Over Women's Rights, Carl W. Tobias

Law Faculty Publications

Report of abortion protests that took place in various locations around Montana.

Sounds Of Silence On The Civil Jury, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

The Federal Judiciary Engendered, Carl W. Tobias

Law Faculty Publications

The dearth of women named to cabinet level positions in the George H.W. Bush Administration does not augur well for appointment of women to the federal bench. Equally discouraging was Mr. Bush's campaign response to the question whether there should be special efforts to select more women for the federal judiciary: "[I] remain committed to appointing to the bench the best qualified candidates we can find-regardless of ... gender--and the record shows that we have been successful in fulfilling this commitment. " The record compiled by the Administration in which he served as Vice-President for two terms was deplorable.

To …

Respect For Diversity: The Case Of Feminist Legal Thought, Carl W. Tobias

Law Faculty Publications

Respect for diversity was one quality many faculty members considered significant when searching in 1987 for a new dean of the University of Michigan School of Law. Yet other so-called elite law schools and less prestigious institutions recently have evinced little concern for diversity and even indifference toward the idea. Tenure and appointment disputes at several Ivy League schools have sparked heated controversy and call into question their institutional commitments to diversity. Those disputes have involved the legitimacy of work by women in legal theory and feminist legal thought, although considerable contentious activity also seems to reflect a general lack …

Gender Issues And The Prosser, Wade, And Schwartz Torts Casebook, Carl W. Tobias

Law Faculty Publications

Feminist jurisprudence is burgeoning. During the 1980s, there has been much excellent work in areas such as legal theory and practice, women's legal history, and specific substantive fields of law. Some law faculty also have analyzed gender bias in legal casebooks. Moreover, the eighth edition of William Prosser's renowned Cases and Materials on Torts, the most widely used torts casebook in American law schools, is scheduled for classroom use in the autumn of 1988. All of these developments make this a promising time to consider gender issues and Prosser, Wade, and Schwartz. This paper is meant to begin that discussion …

Sex Discrimination In Pension And Retirement Annuity Plans After Arizona Governing Committee V. Norris: Recognizing And Remedying Employer Non-Compliance, Mary L. Heen

Law Faculty Publications

This article is intended to help employees and practitioners determine whether an employer's pension or annuity plan violates Title VII, and if so, to identify the scope of relief which may be obtained. Part I discusses the Supreme Court's decision in Arizona Governing Committee v. Norris. Part II discusses the various types of pension and retirement plans, and describes how to identify sex discrimination in typical plans. Part ill briefly addresses the more difficult question of how to remedy employer non-compliance, and discusses the relief issues raised by both retirees and present employees (with reagard to benefits based on post-Norris …