Law Commons^™

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

UF Law Faculty Publications

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …

Race, Gender, And Work/Family Policy, Nancy E. Dowd

UF Law Faculty Publications

Family leave is not an end in itself, but rather is part of a much bigger picture: work/family policy. The goal of work/family policy is to achieve a good society by supporting families. Ideally, families enable children to develop to their fullest capacity and to contribute to their communities and society. Public rhetoric in the United States has always strongly supported families. Our policies, however, have not. In the area of work/family policy, the United States continues to lag behind every other advanced industrialized country, as well as many developing countries, in the degree to which we provide affirmative support …

Piercing The Prison Uniform Of Invisibility For Black Female Inmates, Michelle S. Jacobs

UF Law Faculty Publications

In Inner Lives: Voices of African American Women In Prison, Professor Paula Johnson has written about the most invisible of incarcerated women — incarcerated African American women. The number of women incarcerated in the United States increased by seventy-five percent between 1986 and 1991. Of these women, a disproportionate number are black women. The percentages vary by region and by the nature of institution (county jail, state prison or federal facility), but the bottom line remains the same. In every instance, black women are incarcerated at rates disproportionate to their percentage in the general population. In Inner Lives, …

Familias Sin Fronteras: Mujeres Unidas Por Su Historia, Berta E. Hernández-Truyol

UF Law Faculty Publications

Does there exist a Cuban society that is culturally cohesive? Is Cubanidad dependent on territorial borders and political ideology? Can there be a singular narrative on Cubanidad that transcends geography and politics? This article asks those questions and posits that, while political and economic differences might result in very different lifestyles and ideologies, social and cultural tropes might provide some similarities and cultural cohesion. This thesis is tested through the study of available, albeit sparse, information on the role of Cubanas in society. First the role of women in Cuban society throughout history is examined. Next, changes in the laws …

Glocalizing Law And Culture: Towards A Cross-Constitutive Paradigm, Berta E. Hernández-Truyol

UF Law Faculty Publications

This lecture addresses the relationship between law and culture in three general parts. The first part consists of a brief review of the theories addressing the relationship of law and culture, mainly the mirror theory. But I will suggest that there is more to the relationship of law and culture than one being an inert reflection of the other; hence my proposal for what I call, as a working concept, a cross-constitutive paradigm of law and culture. The second part reviews the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW''), a law that seeks to effect …

Feminist Legal Scholarship: Charting Topics And Authors, 1978-2002, Laura A. Rosenbury

UF Law Faculty Publications

In their call for papers, the organizers of the Columbia Journal of Gender and Law’s Spring 2003 symposium “Why a Feminist Law Journal?” posed several questions, including: "Are feminist law journals a victim of their own success? Have they outlived their usefulness?" and "What is the state of feminist legal scholarship today? What constitutes feminist scholarship?" As a new member of the legal academy, my answers to their questions depend on answers to two more basic questions: What has been published in feminist law journals? And, how do those articles relate to feminist articles published in non-specialty, or flagship, law …

Building Bridges V—Cubans Without Borders: Mujeres Unidas Por Su Historia, Berta E. Hernández-Truyol

UF Law Faculty Publications

Part I of this Essay traces the role of women in Cuban society throughout history. It includes a review of the development of Cuban laws concerning women, and women's role in developing them. This Part also addresses laws pertaining to women that were adopted by the present revolutionary regime. Part II sets out laws, beyond the laws of Cuba, that address the issue of gender/sex equality. It focuses on international norms that protect sex equality pertinent to women in Cuba as well as to Cuban women outside of Cuba. It also reviews U.S. laws on equality as they affect Cuban …

Out Of The Shadows: Traversing The Imaginary Of Sameness, Difference, And Relationalism - A Human Rights Proposal, Berta E. Hernández-Truyol

UF Law Faculty Publications

This work seeks to develop a methodology that serves a women's anti-subordination project. To achieve this goal, Part II sets out the theoretical background of feminist theory (II.A) and three waves of feminism (II.B). Part II.C articulates the feminist revelations about law these analytical frameworks have engendered.

This project sets out to craft a methodology that can assist the goal of full personhood for women. Women's full personhood is a substantive concept that, as detailed in Part III, I ground on international human rights notions of fundamental rights - rights that we have, or ought to have, because we are …

The Crisis Of Child Custody: A History Of The Birth Of Family Law In England, Danaya C. Wright

UF Law Faculty Publications

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way …

Crossing Borderlands Of Inequality With International Legal Methodologies - The Promise Of Multiple Feminisms, Berta E. Hernández-Truyol

UF Law Faculty Publications

This work provides insights into the gendered developments of international law. It explores the roles played by the gendered rule of law and by the conflation of economic, social, political, religious, cultural, and historic realities in the marginalization of women in the international, regional, and domestic spheres worldwide. The first section presents the myriad locations of women's persistent inequality. The next sets forth feminist theory that has been the basis of both the celebration of women's progress and the denunciation of women's subordination. The last part makes suggestions for the articulation of a methodology that follows the complex paths of …

Latinas, Culture And Human Rights: A Model For Making Change, Saving Soul, Berta E. Hernández-Truyol

UF Law Faculty Publications

This essay provides an overview of progresses achieved for women in the Americas by virtue of the use of the human rights model to further women's rights and attain betterment of their lives. Specifically, this work reviews the location of Latinas both within and outside the United States fronteras. As women of color within larger U.S. society and as women within their comunidad Latina, Latinas experience different multifaceted subordinations. A human rights model that recognizes the multidimensional nature of gendered racial discrimination and of racialized gender discrimination can serve to improve the lives of Latinas as well as non-Latina women …

Unbending Gender: Why Family And Work Conflict And What To Do About It (Panel Two: Who's Minding The Baby?), Nancy E. Dowd, Adrienne Davis, Marion Crain, Bonnie Dill, Catherine Ross, Joan Williams

UF Law Faculty Publications

A central characteristic of our current gender arrangements is that they pit ideal worker women against marginalized caregiver women in a series of patterned conflicts I call gender wars. One version of these are the mommy wars that we see often covered in the press between employed mothers and mothers at home. Employed mothers at times participate in the belittlement commonly felt by homemakers. Also mothers at home, I think, at times participate in the guilt-tripping that's often felt by mothers who are employed. These gender wars are a central but little understood characteristic of the gender system that grew …

Gender Politics In Global Governance, Berta E. Hernández-Truyol

UF Law Faculty Publications

Prof. Hernández-Truyol reviews the book Gender Politics in Global Governance from editors Mary K. Meyer and Elisabeth Prügl. Given the emergence of multilateral institutions in this century, the mobilization of women against "male supremacy" has taken an internationalist turn; it seeks to shape "the agendas of international organizations and the normative practices of global governance." In an effort to understand and analyze this movement and its impact, the editors have compiled a volume drawing new research together exploring gender politics in global governance that is also "attentive to historical and contemporary modes of women's organizing from the local to the …

The Undue Burden: Parental Notification Requirements For Publicly Funded Contraception, Stephanie Bornstein

UF Law Faculty Publications

This article analyzes the legal impact of legislative proposals in 1998 and 1999 to require parental notification for minors seeking publicly funded contraception. Part I explores the history of Title X and some of its amendments, the HHS interpretive “squeal rule,” and the federal courts' rejection of the HHS rule based on the congressional intent behind Title X. Part II focuses on the Parental Notification Act of 1998 and its likelihood for success against a constitutional challenge, based on an analysis of precedent on parental consent requirements for contraception and abortion. Part III discusses the change in the legislative and …

The Reasonable Woman And The "Warrior Code", Lyrissa Barnett Lidsky

UF Law Faculty Publications

In the provocative book A Law of Her Own: The Reasonable Woman as a Measure of Man, Caroline Forell and Donna Matthews argue that existing law systematically undervalues women's experiences of sexual harassment and sexual violence. In essence, the authors contend that law is a "warrior code" that is unduly forgiving of sexual aggression and violence, and they support this contention by showing how "male-centered values" permeate the law of sexual harassment, stalking, domestic violence, and rape. This critique alone would make this work worthy of serious consideration by anyone concerned with the law's treatment of women.

The Latindia And Mestizajes*: Of Cultures, Conquests, And Latcritical Feminism, Berta E. Hernández-Truyol

UF Law Faculty Publications

In writing this essay I will begin what I am certain will be a long, complex process of answering the question of who is my mother. I will develop the work in three parts, corresponding to critical parts of the rediscovery process. In Part II, this essay probes cultural links that are formative and transformative of our personhood, which define and determine how we interact with the various and varied communities through which we take daily voyages. I use narrative to locate myself in the context of knowing and discovering the myriad cultures in which I define my mothers. This …

Latina Multidimensionality And Latcrit Possibilities: Culture, Gender, And Sex©, Berta E. Hernández-Truyol

UF Law Faculty Publications

This essay explores the multiple margins that Latinas inhabit both within majority society and their comunidad Latina because of their compounded outsider status in all their possible communities. Exploring the concept and theme of "Between/Beyond Colors: Outsiders Within Latina/o Communities" elucidates both the challenges and the possibilities the young LatCrit movement presents for Latinas.

From its inception, LatCrit has broadened and sought to reconstruct the race discourse beyond the normalized binary black/white paradigm -- an underinclusive model that effects the erasure of the Latina/o, Native, and Asian experiences as well as the realities of other racial and ethnic groups in …

Las Olvidadas -- Gendered In Justice/Gendered Injustice: Latinas, Fronteras And The Law, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Article will study Latinas in the United States and develop a framework that aims to eradicate injustices Latinas experience by importing the voices of las olvidadas into the heart of rights-talk, thus placing Latinas in justice. First, the piece will identify who the olvidadas are-unseen, unheard, and virtually non-existent in the world of law as well as in the myriad other worlds they inhabit. Parts III and IV consider structural roadblocks-first external and then internal-that conspire to perpetuate Latina invisibility and disempowerment, keeping Latinas from justice. Part V presents the locations and positions of Latinas who suffer intimate violence …

Borders (En)Gendered: Normativities, Latinas, And A Latcrit Paradigm, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Essay, developed in a prologue and three parts, adopts Latinas'/os' world traveling as a metaphor for Latina/o multidimensionality and as a springboard for LatCrit theorizing. The Prologue is a brief diary entry of unfin de semana viajando mundos - a weekend of actual traveling between New York and Miami; law and familia; profesora and learner; colleague and hija; español and English; norte y sur; normativa and other; indigenous and alien. This abbreviated record of a Latina's life reveals, exposes, and unveils Latinas'/os' daily crossdressing simply by virtue of their latinidad. This Prologue thus serves as a concrete backdrop for …

Sex, Culture, And Rights: A Re/Conceptualization Of Violence For The Twenty-First Century, Berta E. Hernández-Truyol

UF Law Faculty Publications

The central theme of this Article, "Sex, Culture, and Rights: A Re/conceptualization of Violence," is that a re/vision of acts that constitute violence against women is necessary for gender equality -- both domestically and internationally -- to become a reality. This reconceptualization must address not only the normative concept of violence, i.e., the use of physical force, but it must also transform and reposition the idea of violence within a broader framework that includes, considers and aims to eradicate (1) psychological, social and political subordination of women; (2) male dominant (and female subservient) cultural and traditional practices; as well as …

Women's Rights As Human Rights - Rules, Realities And The Role Of Culture: A Formula For Reform, Berta E. Hernández-Truyol

UF Law Faculty Publications

Beijing, China. Tuesday, September 5, 1995. Beijing International Conference Center (BICC). The afternoon plenary of the United Nations Fourth World Conference on Women: Equality, Peace, Development is about to start in a hall too small to seat everyone who wants to be there. Other than places for some of the delegates from each attending State, space is limited and in high demand. A lucky few lined up for hours to get a ticket; many ended up negotiating prime space in front of one of several TV screens strategically located throughout the building. A hushed silence fell in the hall and …

Concluding Remarks - Making Women Visible: Setting An Agenda For The Twenty-First Century, Berta E. Hernández-Truyol

UF Law Faculty Publications

The Women's Rights as International Human Rights Symposium (Symposium), sponsored by the International Women's Human Rights Project of the Center for Law and Public Policy at St. John's University, focused on the roles played by rules of law and by the conflation of economic, social, political, religious, cultural, and historic forces in the marginalization of women in the public and private sectors in both the international and domestic systems. The traditional exclusion of women from the articulation, development, implementation, and enforcement of rights has rendered gender issues invisible and thereby shielded gender-based abuses from much needed scrutiny. The flawed public/private …

Report Of The Conference Rapporteur, Berta E. Hernández-Truyol

UF Law Faculty Publications

This summary constitutes my Final Report to the Conference on the International Protection of Reproductive Rights (the "Conference") jointly sponsored by the Women & International Law Program at the Washington College of Law of the American University and the Women in the Law Project of the International Human Rights Law Group. The Conference focused on issues that affect the role of women in society and the role played by rules of law in defining and marginalizing women's existence in society. The Conference goals included the reformulation of the international human rights construct to advance and implement women's rights, particularly women's …

To Bear Or Not To Bear: Reproductive Freedom As An International Human Right, Berta E. Hernández-Truyol

UF Law Faculty Publications

The right to reproductive freedom is recognized and protected in virtually every corner of this world. Domestic and international tribunals have increasingly found that the right to privacy includes such a right. Using the various "sources" of international law as an analytical framework, this Article posits, based on an internationalist's perspective, that reproductive freedom -- as part of the penumbral zone of enumerated and existing human rights or as a particular right in se -- is now included in the body of protected international human rights. Consequently, any government interference with the individual's exercise of such freedom constitutes an impermissible …

Prenatal Caretaking: Limits Of State Intervention With And Without Roe, Sharon E. Rush

UF Law Faculty Publications

With or without Roe, difficult questions regarding the state's role in prenatal caretaking remain. Unless the Supreme Court addresses the assumptions underlying the abortion controversy, overruling Roe would not resolve the problem of allocating decisionmaking responsibility between the woman and the state during the woman's pregnancy. Fundamental constitutional questions about life and death, parental authority over the fetus, and the scope of the woman's right of privacy outside of abortion have not been answered by the Supreme Court.