Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 238

Full-Text Articles in Law

Lawyers For White People?, Jessie Allen Jan 2021

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate ...


On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah Oct 2020

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

Articles

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.


Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos Sep 2020

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency ...


Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman Jul 2020

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the ...


Identity: Obstacles And Openings, Osamudia R. James Jan 2020

Identity: Obstacles And Openings, Osamudia R. James

Articles

Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward "identity politics," the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims.


Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth Jan 2020

Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth

Articles

No abstract provided.


Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff Jan 2020

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

Articles

Even the nation’s most cherished and protected public lands are not spaces apart from the workings of law, politics, and power. This Essay explores that premise in the context of Grand Canyon National Park. On the occasion of the Park’s 100th Anniversary, it examines how law — embedded in a political economy committed to rapid growth and development in the southwestern United States — facilitated the violent displacement of indigenous peoples and entrenched racialized inequalities in the surrounding region. It also explores law’s shortcomings in the context of sexual harassment and discrimination within the Park. The Essay concludes by ...


The Troubling Alliance Between Feminism And Policing, Aya Gruber Jan 2020

The Troubling Alliance Between Feminism And Policing, Aya Gruber

Articles

No abstract provided.


#Metoo And Mass Incarceration, Aya Gruber Jan 2020

#Metoo And Mass Incarceration, Aya Gruber

Articles

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert ...


Crowdfunding Issuers In The United States, Andrew A. Schwartz Jan 2020

Crowdfunding Issuers In The United States, Andrew A. Schwartz

Articles

Startup companies can now legally sell shares of stock, bonds, or other securities to the broad public using equity crowdfunding, a new type of online capital market modeled on Kickstarter and other reward crowdfunding websites. Through equity crowdfunding, entrepreneurs can go directly to the broad public (the “crowd”) for investment, without having to go through the usual (and costly) process of an initial public offering (IPO). Equity crowdfunding thus offers a chance for all entrepreneurs, regardless of their physical location, gender, or anything else, to solicit investors and raise capital.

In 2012, new federal legislation—the Jumpstart Our Business Startups ...


Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton Jan 2020

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Articles

No abstract provided.


The Legal And Medical Necessity Of Abortion Care Amid The Covid-19 Pandemic, Greer Donley, Beatrice Chen, Sonya Borrero Jan 2020

The Legal And Medical Necessity Of Abortion Care Amid The Covid-19 Pandemic, Greer Donley, Beatrice Chen, Sonya Borrero

Articles

In response to the COVID-19 pandemic, states have ordered the cessation of non-essential healthcare. Unfortunately, many conservative states have sought to capitalize on those orders to halt abortion care. In this short paper, we argue that abortion should not fall under any state’s non-essential healthcare order. Major medical organizations recognize that abortion is essential healthcare that must be provided even in a pandemic, and the law recognizes abortion as a time-sensitive constitutional right. Finally, we examine the constitutional arguments as to why enforcing these orders against abortion providers should not stand constitutional scrutiny. We conclude that no public health ...


Reproducing Dignity: Race, Disability, And Reproductive Controls, Mary Crossley Jan 2020

Reproducing Dignity: Race, Disability, And Reproductive Controls, Mary Crossley

Articles

Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage ...


Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman Jan 2020

Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman

Articles

This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement ...


Second Redemption, Third Reconstruction, Richard A. Primus Jan 2019

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of ...


Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan Jan 2019

Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan

Articles

Eight percent—that is the percentage of women who serve on the boards of directors of private high technology companies. Private companies, particularly high technology companies, have transformed citizens’ daily lives, while the unprecedented availability of private capital has allowed those companies to remain private longer. This rise, however, has also obscured some of the weaknesses of private companies, which are not subject to public disclosure and regulatory oversight: rampant sexual harassment, the lack of women leaders in technology companies, the relative absence of female venture capitalists, and the dearth of female board members, to name a few. Yet thus ...


From Governess To Governance: Advancing Gender Equity In Corporate Leadership, Kellye Y. Testy Jan 2019

From Governess To Governance: Advancing Gender Equity In Corporate Leadership, Kellye Y. Testy

Articles

Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists—often at even higher levels— in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decisionmaking and overall corporate welfare have ...


Women In Law: A Statistical Review Of The Status Of Women Attorneys In Idaho, Jessica Gunder Jan 2019

Women In Law: A Statistical Review Of The Status Of Women Attorneys In Idaho, Jessica Gunder

Articles

No abstract provided.


Sex Wars As Proxy Wars, Aya Gruber Jan 2019

Sex Wars As Proxy Wars, Aya Gruber

Articles

The clash between feminists and queer theorists over the meaning of sex—danger versus pleasure—is well- trodden academic territory. Less discussed is what the theories have in common. There is an important presumption uniting many feminist and queer accounts of sexuality: sex, relative to all other human activities, is something of great, or grave, importance. The theories reflect Gayle Rubin’s postulation that "everything pertaining to sex has been a ‘special case’ in our culture.” In the #MeToo era, we can see all too clearly how sex has an outsized influence in public debate. Raging against sexual harm has ...


Sustainable Development: Energy, Justice, And Women, Lakshman Guruswamy Jan 2019

Sustainable Development: Energy, Justice, And Women, Lakshman Guruswamy

Articles

This article will first offer a functional synopsis relevant to its remit, of the concept of sustainable development (SD) embodied in international law and policy that reflects a tension between economic and social claims as contrasted with environmental protection. While the dominant place acquired by the economic and social dimensions of SD will be recognized, it will argue consistent with the predicate of justice discussed in the article, that the protection of the human environment encompasses the plight of the energy poor and their women and children. Second, the article will delineate the contours of one of the great developmental ...


Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Innes, Bridget J. Crawford, Mehrsa Baradaran, Bennett Capers, Osamudia R. James, Keisha Lindsay Jan 2019

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Innes, Bridget J. Crawford, Mehrsa Baradaran, Bennett Capers, Osamudia R. James, Keisha Lindsay

Articles

No abstract provided.


Pregnancy And The First Amendment, Helen Norton Jan 2019

Pregnancy And The First Amendment, Helen Norton

Articles

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.

If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the ...


Regulation Of Encapsulated Placenta, Greer Donley Jan 2019

Regulation Of Encapsulated Placenta, Greer Donley

Articles

The practice of placenta encapsulation is rapidly growing. It typically involves post-partum mothers consuming their placentas as pills in the months after childbirth. The perceived benefits include improved mood and energy, reduced bleeding and pain, and greater milk supply. But these effects are unproven, and consumption comes with health risks. The rise of this trend has sparked a vigorous debate in the recent medical literature, but this Article is the first to consider the legal implications of placenta encapsulation. This Article examines whether FDA should regulate encapsulated placenta, and if so, whether it should be regulated as a drug, supplement ...


Coworker Retaliation In The #Metoo Era, Deborah Brake Jan 2019

Coworker Retaliation In The #Metoo Era, Deborah Brake

Articles

The national firestorm sparked by #MeToo has galvanized feminist legal scholars to reconsider the Title VII framework governing workplace sexual harassment and the potential for #MeToo to transform workplace culture in a way that Title VII, to date, has not. In the analysis of #MeToo’s prospects for change, less attention has been paid to how Title VII’s protection from retaliation intersects with the movement. One particular aspect of retaliation law – coworker retaliation – has thus far escaped the attention of legal scholars. Already underdeveloped as a species of retaliation law, coworker retaliation holds particular resonance for the #MeToo movement ...


Contraceptive Equity: Curing The Sex Discrimination In The Aca's Mandate, Greer Donley Jan 2019

Contraceptive Equity: Curing The Sex Discrimination In The Aca's Mandate, Greer Donley

Articles

Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s contraceptive mandate (Mandate), which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in four ways: it fails to financially support a quarter to a third of women that rely on male birth control to prevent pregnancy; it incentivizes women to endure the risks and side effects of birth control when safer ...


The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford Jan 2019

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

Articles

In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of ...


Dignity Transacted, Lu-In Wang, Zachary W. Brewster Jan 2019

Dignity Transacted, Lu-In Wang, Zachary W. Brewster

Articles

In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers, by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on ...


Arguing With The Building Inspector About Gender-Neutral Bathrooms, Jennifer S. Hendricks Jan 2018

Arguing With The Building Inspector About Gender-Neutral Bathrooms, Jennifer S. Hendricks

Articles

Conventional interpretations of building codes are among the greatest barriers to building the gender-neutral bathrooms of the future. Focusing on the example of schools, this Essay argues for a reinterpretation of the International Building Code in light of its policy goals: safe, private, and equitable access to public bathrooms. Under this reinterpretation, the Code allows all public bathrooms to be gender-neutral.


Equal Protection Under The Carceral State, Aya Gruber Jan 2018

Equal Protection Under The Carceral State, Aya Gruber

Articles

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety ...


Responsible Resource Development: A Strategic Plan To Consider Social And Cultural Impacts Of Tribal Extractive Industry Development, Carla F. Fredericks, Kate Finn, Erica Gajda, Jesse Heibel Jan 2018

Responsible Resource Development: A Strategic Plan To Consider Social And Cultural Impacts Of Tribal Extractive Industry Development, Carla F. Fredericks, Kate Finn, Erica Gajda, Jesse Heibel

Articles

This paper presents a strategic, solution-based plan as a companion to our recent article, Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation, 40 Harv. J.L. Gender 1 (2017). As a second phase of our work to combat the issues of human trafficking and attendant drug abuse on the Mandan, Hidatsa and Arikara Nation (MHA Nation), we developed a strategic plan to better understand the time, scale, and capacity necessary to address the rising social problems accompanying the boom of oil and gas development there. During our process, we discovered ...