Law Commons^™

The New Maternity, Courtney Megan Cahill

Scholarly Publications

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers.

Constitutional law's …

The Story Of Parenthood, Courtney Cahill

Scholarly Publications

No abstract provided.

Perfecting Procreation, Courtney Cahill

Scholarly Publications

No abstract provided.

After Sex, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

On Marriage Equality And Transformation Through Preservation, Courtney Cahill

Scholarly Publications

No abstract provided.

Perceiving Orientation: Defining Sexuality After Obergefell, Mary Ziegler

Scholarly Publications

In the aftermath of the Supreme Court’s recent decision in Obergefell v. Hodges, constitutional jurisprudence will have to more clearly define sexual orientation itself. The Obergefell majority describes sexuality as binary and suggests that any sexual orientation is immutable, normal, and constitutive of individual identity. Other scholars have shown how the kind of binary created by Obergefell excludes those with more fluid sexual identities and experiences from legal protection.

This Article illuminates new problems with Obergefell’s approach to sexuality by putting that definition in historical context. While describing sexuality as a matter of orientation may now seem inevitable, …

Obergefell And The "New" Reproduction, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

A Deficiency In Addressing Campus Sexual Assault: The Lack Of Women Law Enforcement Officers, Nat Stern, Karen Oehme

Scholarly Publications

The federal government has taken a range of measures to combat the scourge of sexual assault afflicting college campuses across the nation. Whatever the efficacy of these policies, however, they fail to address a major obstacle to curbing sexual violence on campus: the chronically low rate of reporting of this crime to police. Research on crime data has produced evidence that as female representation among police officers increases, more crimes against women are reported. Yet, most university campus law enforcement agencies-tasked with taking a “central role” in combatting sexual assault-include strikingly few female officers. This Article proposes an increase in …

The (Non-)Right To Sex, Mary Ziegler

Scholarly Publications

What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project—the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, this Article offers a new way into the debate. The marriage equality struggle figures …

Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler

Scholarly Publications

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.

This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid un-wanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

This article uses the legal history of struggle over spousal consent …

Expressive Enforcement, Avlana Eisenberg

Scholarly Publications

Laws send messages, some of which may be heard at the moment of enactment. But much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions in the context of domestic criminal law have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws—the paradigmatic example of expressive legislation—as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message …

The Case For Mandatory Training On Screening For Domestic Violence In The Wake Of The Affordable Care Act, Nat Stern, Karen Oehme

Scholarly Publications

No abstract provided.

Women's Rights On The Right: The History And Stakes Of Modern Pro-Life Feminism, 1968 To The Present, Mary Ziegler

Scholarly Publications

Recently, pro-life advocates have popularized claims that abortion harms rather than helps women. The best known of these arguments are the woman-protective arguments—contentions, such as those endorsed in Gonzales v. Carhart, justifying abortion restrictions on the basis of the physical or psychological harms supposedly produced by the procedure. Woman-protective claims, however, represent only one part of a much larger strategy that this Article calls pro-life feminism. The Article follows pro-life activists’ use of the term “feminist” or “feminism.” As the Article makes clear, activists on competing sides of the abortion issue have contested the meaning of “true” feminism. Taking …

Abortion And Disgust, Courtney Megan Cahill

Scholarly Publications

This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its starting point is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a sufficiently strong association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be …

Unheard Voices Of Domestic Violence Victims: A Call To Remedy Physician Neglect, Nat Stern, Karen Oehme, Ember Urbach

Scholarly Publications

No abstract provided.

An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler

Scholarly Publications

Did the divorce revolution betray the interests of American women? While there has been considerable disagreement about the impact of divorce reform on women’s standard of living, many agree that judicial practices involving the division of marital property and the allocation of alimony have systematically disadvantaged women. Most often, in the courts and the academy, commentators see these practices as evidence of the need for family law reform.

These conclusions rely on a shared account of the history of divorce reform. According to this account, the transformation of divorce law in the 1970s and 1980s was a “silent revolution,” a …

Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler

Scholarly Publications

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by …

Regulating At The Margins: Non-Traditional Kinship And The Legal Regulation Of Intimate And Family Life, Courtney Megan Cahill

Scholarly Publications

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection— same-sex relationships, domestic partnerships, de facto parenthood, and nonsexual procreation—the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that …

The Bonds That Tie: The Politics Of Motherhood And The Future Of Abortion Rights, Mary Ziegler

Scholarly Publications

What is the relationship between women’s still predominant share of caretaking work and the constitutional recognition of a right to choose abortion? Caretaking-based rationales for abortion rights have become increasingly prominent in the Supreme Court's abortion jurisprudence, as well as in abortion-rights litigation. These justifications propose that women tend overwhelmingly to raise their own children. Consequently, as the argument goes, the decision to give birth creates a lifetime commitment for most women, and in some cases, may cost women valuable career or educational opportunities.

When care taking-based rationales first appeared in the early 1970s in debate about rights to both …

(Still) Not Fit To Be Named: Moving Beyond Race To Explain Why 'Separate' Nomenclature For Gay And Straight Relationships Will Never Be 'Equal', Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Celebrating The Differences That Could Make A Difference: United States V. Virginia And A New Vision Of Sexual Equality, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Reinventing Eugenics: Reproductive Choice And Law Reform After World War Ii, Mary Ziegler

Scholarly Publications

No abstract provided.

Note, Eugenic Feminism: Mental Hygiene, The Women's Movement, And The Campaign For Eugenic Legal Reform, 1900-1935, Mary Ziegler

Scholarly Publications

It is well for every woman, however, to think this matter through and to realize that any women’s movement that is correlated with sterility is doomed to fail and annihilation. What shall it profit us eugenically to have women delve in laboratories, or search the heavens, or rule the nations, if the world is to be peopled by scrubwomen and peasants? – Anna M. Blount, Eugenics, in Woman and the Larger Citizenship, 2847, 2904-05 (Shailer Mathews ed., 1913).

Part I of this article examines the evolution of eugenic thought and policy in the United States between 1880 and 1935, …

Rhetorical Atavism And The Narrative Of Progress In The Debate Over Marriage Equality, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

The Genuine Article: A Subversive Economic Perspective On The Law's Procreationist Vision Of Marriage, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Same-Sex Marriage, Slippery Slope Rhetoric, And The Politics Of Disgust: A Critical Perspective On Contemporary Family Discourse And The Incest Taboo, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Targets Missed And Targets Hit: Critical Tax Studies And Effective Tax Reform, Steve R. Johnson

Scholarly Publications

Medieval alchemy is popularly associated with attempts to become rich by transmuting base elements into gold. Such attempts were less than universally successful. Yet, alchemy yielded great benefits in other areas. For instance, alchemy was one of the sources of modern sciences such as pharmacology and metallurgy.' Also, the rich and profound symbology of alchemy has influenced modern psychology.

Something similar may be said of critical tax studies. Such studies have argued that the Internal Revenue Code as a whole, or significant features of it, disadvantage-intentionally or unintentionally-groups historically oppressed or ignored by American society. Some of these arguments have …

Feminism And International Law: A Reply, Fernando R. Tesón

Scholarly Publications

Over the past several years, legal scholars have extended feminist theory to many areas of the law, and legal discourse has been enriched by feminist jurisprudence. Until recently, however, international law had not undergone a sustained feminist critique. This gap is now slowly being filled; a notable contribution to that effort is a recent article by Hilary Charlesworth, Christine Chinkin, and Shelley Wright.

This Essay presents a reply to the Charlesworth-Chinkin-Wright critique. Although much of this reply engages more general issues in feminist theory, it would be impossible, within the scope of this work, to address every important political, cultural, …