Law Commons^™

Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand

Articles

Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers …

Title Ix As Pragmatic Feminism, Deborah Brake

Articles

This paper uses Title IX as a vehicle for exploring the potential benefits of pragmatism for feminist legal theory. Title IX is unusual in antidiscrimination law for its eclectic approach to theory, drawing from liberal feminism, substantive equality, antisubordination and different voice models of equality at various points in the law's approach to gender equality in sports. This paper argues that Title IX, as a pragmatic approach to theory, provides a promising example of how feminist legal theory can draw from pragmatism to navigate the double-bind and the backlash.

Following an introduction in Part I, Part II of this Article …

Subtly Sexist Language, Pat K. Chew, Lauren K. Kelley-Chew

Articles

Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore …

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …