Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- American University Washington College of Law (5)
- Columbia Law School (5)
- University of Pennsylvania Carey Law School (5)
- Georgetown University Law Center (3)
- Pace University (2)
-
- University of Pittsburgh School of Law (2)
- Boston University School of Law (1)
- Brooklyn Law School (1)
- City University of New York (CUNY) (1)
- Cornell University Law School (1)
- Florida International University College of Law (1)
- New York Law School (1)
- Southern Methodist University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- UIC School of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- University of the District of Columbia School of Law (1)
- Vanderbilt University Law School (1)
- Western New England University School of Law (1)
- Keyword
-
- Civil rights (4)
- Same-sex marriage (4)
- Women (4)
- Feminism (3)
- Gender (3)
-
- Rape (3)
- Columbia Journal of Gender and Law (2)
- Contract law (2)
- Domestic partnership (2)
- Domestic relations (2)
- Gay (2)
- Homosexual (2)
- Human trafficking (2)
- Jurisprudence (2)
- Lesbian (2)
- Marriage (2)
- Sex (2)
- Sexuality (2)
- Sexuality and the Law (2)
- Trafficking in persons (2)
- Transgender (2)
- Women's rights (2)
- Absurdity (1)
- Adolescents (1)
- Adultery (1)
- Affirmative (1)
- Agamben (1)
- American Law Institute (ALI) (1)
- Antidiscrimination (1)
- Authority (1)
- Publication
-
- Faculty Scholarship (9)
- All Faculty Scholarship (5)
- Articles in Law Reviews & Other Academic Journals (5)
- Georgetown Law Faculty Publications and Other Works (3)
- Articles (2)
-
- Elisabeth Haub School of Law Faculty Publications (2)
- Scholarly Works (2)
- Articles & Chapters (1)
- Center for LGBTQ Studies (CLAGS) (1)
- Cornell Law Faculty Publications (1)
- Faculty Journal Articles and Book Chapters (1)
- Faculty Publications (1)
- Journal Articles (1)
- UIC Law Open Access Faculty Scholarship (1)
- Vanderbilt Law School Faculty Publications (1)
Articles 1 - 30 of 36
Full-Text Articles in Law
Beyond Interstate Recognition In The Same-Sex Marriage Debate, Gary J. Simson
Beyond Interstate Recognition In The Same-Sex Marriage Debate, Gary J. Simson
Cornell Law Faculty Publications
The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.
After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York's ban on uncle-niece marriage, the New York high court - one of the most …
Letter From The Executive Director, Paisley Currah
Letter From The Executive Director, Paisley Currah
Center for LGBTQ Studies (CLAGS)
Heterosexuality is under attack--not by the authors of a new "I hate straights" broadsheet, not by vacationers in Provincetown, but by state judges in the US. In August, New York's highest court ruled that the New York State Constitution "does not compel recognition of marriages between members of the same-sex." Their reasoning? In part, the decision declared, because opposite-sex relationships are "often too casual," and thus result in the production of children by "accident or impulse." And so, "unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in …
Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum
Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum
Elisabeth Haub School of Law Faculty Publications
This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …
Gay Marriage, Public Opinion And The Courts, Nathaniel Persily
Gay Marriage, Public Opinion And The Courts, Nathaniel Persily
All Faculty Scholarship
This Article examines trends in public opinion and media coverage on gay marriage to evaluate the claim that the Supreme Court’s decision in Lawrence v. Texas and the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Health catalyzed an anti-gay “backlash.” We find that in the immediate aftermath of Lawrence a larger share of the American public expressed hostile attitudes on questions tapping opinions on gay sex and gay marriage. That backlash continued through the two Goodridge decisions and the 2004 election, but appears to have leveled off and even returned to pre-Lawrence levels by the summer of …
Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper
Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper
Scholarly Works
In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image.
The reason for bipolar black masculinity is that it helps resolve the white mainstream's post-civil rights anxiety. That anxiety results from the conflict between the nation's relatively recent …
Revisiting Anna Moscowitz's Kross's Critique Of New York City's Women's Court: The Continued Problem Of Solving The "Problem" Of Prostitution With Specialized Criminal Courts, Mae C. Quinn
Journal Articles
No abstract provided.
Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer L. Levi
Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer L. Levi
Faculty Scholarship
The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …
Book Review: Legal Tenderness, Martha M. Ertman
Book Review: Legal Tenderness, Martha M. Ertman
Faculty Scholarship
No abstract provided.
Immaculate Deception: The Evolving Right Of Paternal Renunciation, 27 Women's Rts. L. Rep. 139 (2006), Diane S. Kaplan
Immaculate Deception: The Evolving Right Of Paternal Renunciation, 27 Women's Rts. L. Rep. 139 (2006), Diane S. Kaplan
UIC Law Open Access Faculty Scholarship
No abstract provided.
The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin
The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin
Articles & Chapters
This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in …
Sexual Abuse Of Women In United States Prisons: A Modern Corollary Of Slavery, Brenda V. Smith
Sexual Abuse Of Women In United States Prisons: A Modern Corollary Of Slavery, Brenda V. Smith
Articles in Law Reviews & Other Academic Journals
This paper addresses the sexual abuse of women in custody as a more contemporary manifestation of slavery and discusses the congruencies and the differences that exist between the sexual abuse of women in custody and slavery. The paper charts the history of the parallel abolition and prison reform movements and examines their divergent paths arguing that the women's movement abandonment of prison advocacy has harmed the women in prison movement. The article concludes that the embrace of human rights norms has assisted in providing new avenues for redressing the sexual abuse of women in custody.
Analyzing Prison Sex: Reconciling Self Expression With Safety, Brenda V. Smith
Analyzing Prison Sex: Reconciling Self Expression With Safety, Brenda V. Smith
Articles in Law Reviews & Other Academic Journals
This article examines the complexity of prison sex and the challenges that it raises in the context of recently enacted United States legislation, specifically the Prison Rape Elimination Act (PREA). It begins by identifying a range of prisoner interests in enhanced sexual expression. These interests are described below in an attempt to disentangle prisoners' rights in sexual expression from states' legitimate interests in regulating that expression. This article also directs policymakers and decision makers to mine international documents and human rights norms that recognize the necessity of punishment and at the same time outline a standard for the safety of …
The United States As Global Sheriff: Using Unilateral Sanctions To Combat Human Trafficking, Janie Chuang
The United States As Global Sheriff: Using Unilateral Sanctions To Combat Human Trafficking, Janie Chuang
Articles in Law Reviews & Other Academic Journals
In recent years, the issue of human trafficking - the recruitment or movement of persons by means of coercion or deception into exploitative labor or slavery-like practices - has moved from the margins to the mainstream political agenda. The rapid proliferation of international, regional and domestic anti-trafficking laws bespeaks universal condemnation of the practice, but belies deep divisions among States over how to define and approach the problem. It is thus significant that the international community was able to reach consensus and conclude a new international law on trafficking - the Palermo Protocol. But just weeks before the signing of …
Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew
Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew
Articles
Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.
This Article, however, questions the assumption that there should be …
“Hands Off”: Sex, Feminism, Affirmative Consent, And The Law Of Foreplay, Dan Subotnik
“Hands Off”: Sex, Feminism, Affirmative Consent, And The Law Of Foreplay, Dan Subotnik
Scholarly Works
No abstract provided.
Asking The Straight Question: How To Come To Speech In Spite Of Conceptual Liquidation As A Homosexual, Jose M. Gabilondo
Asking The Straight Question: How To Come To Speech In Spite Of Conceptual Liquidation As A Homosexual, Jose M. Gabilondo
Faculty Publications
No abstract provided.
Rethinking Prison Sex: Self Expression And Safety, Brenda V. Smith
Rethinking Prison Sex: Self Expression And Safety, Brenda V. Smith
Articles in Law Reviews & Other Academic Journals
This article analyzes legislation and policies that limit prisoners' sexual expression and autonomy. The article juxtaposes prisoners interest in sexual expression against the interests of the state in regulating sex by and between prisoners. The article concludes that the state has an interest in regulating sex between inmates and staff and in regulating coerced or forced sex between inmates. In other instances prisons could accommodate prisoners' interest in sexual expression and achieve important goals such as better decisionmaking; improved relations with family and partners to aid community reentry; reduction of prison rape; and as inmate management.
Sex Discrimination In The Labor Market, Joni Hersch
Sex Discrimination In The Labor Market, Joni Hersch
Vanderbilt Law School Faculty Publications
This paper examines sources of gender pay disparity and the factors that contribute to this pay gap. Many researchers question the role of discrimination and instead attribute the residual pay gap to gender differences in preferences. The main issue considered in this paper is whether gender differences in choices, especially with respect to the family and household, are indeed responsible for the gender pay gap, or whether discrimination plays a role. On balance, the evidence indicates that sex discrimination remains a possible explanation of the unexplained gender pay gap. This is consistent with the continuing high profile sex discrimination litigation …
The Necessity Of Sex Change: A Struggle For Intersex And Transsex Liberties, Noa Ben-Asher
The Necessity Of Sex Change: A Struggle For Intersex And Transsex Liberties, Noa Ben-Asher
Elisabeth Haub School of Law Faculty Publications
This Article is composed of four Parts. The first Part explores two legal struggles for intersex and transsex goals. The main litigation propositions and structures of the two movements are contrasted, especially the meanings that the two movements offer for the terms “medical necessity,” “cosmetic surgery,” and “medical experimentation.” While Part I takes a critical approach to some of the strategies discussed, the main purpose is to describe the mirroring aspects of the two advocacy movements. The second Part locates these contemporary legal narratives regarding sex change in the broader history of sex change in the twentieth-century United States, emphasizing …
Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain
Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain
Faculty Scholarship
This essay offers some ABCs for a framework for sex education informed by feminist and liberal principles, in contrast to the conservative sexual economy underlying abstinence-only sex education. It embraces affirmative governmental responsibility to foster sexual and reproductive agency and responsibility and stresses the aims of capacity, equality, and responsibility. An adequate program of sex education should also address how gender role expectations and stereotypes may stand in the way of adolescents developing capacities for responsible self-government and acquiring a sense of personal agency with respect to intimacy and sexuality. The Essay then evaluates such a feminist project in light …
A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg
A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg
Faculty Scholarship
History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. According to advocates of "traditional marriage," same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships.
However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can …
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Faculty Scholarship
Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …
Beyond A Snapshot: Preventing Human Trafficking In The Global Economy, Janie Chuang
Beyond A Snapshot: Preventing Human Trafficking In The Global Economy, Janie Chuang
Articles in Law Reviews & Other Academic Journals
Current legal responses to the problem of human trafficking often reflect a deep reluctance to address the socio-economic root causes of the problem. Because they approach trafficking as an act (or series of acts) of violence, most responses focus predominantly on prosecuting traffickers, and to a lesser extent, protecting trafficked persons. While such approaches might account for the consequences of trafficking, they tend to overlook the broader socioeconomic reality that drives trafficking in human beings. Against this backdrop, this article seeks to reframe trafficking as a migratory response to current globalizing socioeconomic trends. It argues that, to be effective, counter-trafficking …
Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti
Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti
Articles
Inspired by Giorgio Agamben's Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben's discussion of Kafka's parable, "Before the Law," this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men should use the …
Race And Gender In The Law Review, Cynthia Grant Bowman, Dorothy E. Roberts, Leonard S. Rubinowitz
Race And Gender In The Law Review, Cynthia Grant Bowman, Dorothy E. Roberts, Leonard S. Rubinowitz
All Faculty Scholarship
No abstract provided.
Unanimously Wrong, Dale Carpenter
Unanimously Wrong, Dale Carpenter
Faculty Journal Articles and Book Chapters
The Supreme Court was unanimously wrong in Rumsfeld v. FAIR. Though rare, it's not the first time the Court has been unanimously wrong. Its most notorious such decisions have come, like FAIR, in cases where the Court conspicuously failed even to appreciate the importance of the constitutional freedoms under attack from legislative majorities. In these cases, the Court's very rhetoric exposed its myopic vision in ways that now seem embarrassing. Does FAIR, so obviously correct to so many people right now, await the same ignominy decades away? FAIR was wrong in tone, a dismissive vox populi, adopted by a Court …
The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri
The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri
All Faculty Scholarship
This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …
Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum
Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum
Georgetown Law Faculty Publications and Other Works
My goal in this piece is to surface some of the commonalities between religious belief liberty and sexual orientation identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. I first want to make transparent the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual and transgender ("LGBT") people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. I believe those who advocate for LGBT equality have downplayed the impact of …
Twenty-First Century Equal Protection: Making Law In An Interregnum, Nan D. Hunter
Twenty-First Century Equal Protection: Making Law In An Interregnum, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
During her remarkable career on the Supreme Court, Justice Sandra Day O'Connor articulated principles, in both concurrence and dissent, which moved to the doctrinal core of multiple areas of jurisprudence. Perhaps, just perhaps, Justice O'Connor has done it again. In Lawrence v. Texas, although the Court's majority decided the case on substantive due process grounds, O'Connor concurred relying solely on the Equal Protection Clause. Because future litigation on sexuality and gender issues is more likely to turn on issues of equality (or expression) than on issues of privacy, her concurrence may ultimately achieve the influence of many of her past …
Desperately Seeking A Moralist, Robin West
Desperately Seeking A Moralist, Robin West
Georgetown Law Faculty Publications and Other Works
In a recent issue of “Unbound”, Janet Halley reviews my book “Caring for Justice”, criticizing it for exhibiting a broad range of the problems she sees in all forms of "identitarian" legal writing, and therefore worthy of detailed critique. Halley begins her review by listing the representative missteps she finds in both my book and in identitarian politics generally, including, although certainly not limited to, an identification of the site of the subordinated group's injuries-for women, reproduction and sexuality with the site of its ethical lives and insights; a tendency to differentiate and present the interests of subordinate and dominant …