Law Commons^™

The Myth Of Enforcing Border Security Versus The Reality Of Enforcing Dominant Masculinities, Jamie Abrams

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This essay explores the masculinities underpinnings in modern immigration law, policy, and rhetoric. Existing analysis has captured the ways in which Trump-era immigration laws, policies, and rhetoric are explicitly and implicitly packaged in alarming racism and xenophobia. These critical lenses continue a long and deeply worrisome legacy of “othering” and dehumanizing immigrants and, more broadly, marginalizing communities of color in the United States.

Outside of the immigration law lens, separate strands of scholarship and media coverage have highlighted the toxic masculinities of the Trump era. These discussions have generally focused on President Trump’s treatment of women, the gendered campaign dynamics …

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sacouto, Patricia Viseur Sellers

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On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome …

The Peace Vs. Justice Debate And The Syrian Crisis, Paul Williams, Lisa Dicker, C. Danae Paterson

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Peace negotiators often face the difficult decision of whether to pursue peace at the potential cost of achieving justice, or to pursue justice at the potential cost of achieving near term peace. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of torture to the point of death—the peace versus justice debate is a living dilemma with which negotiators are currently grappling. This article strives to examine a timely facet of this multidimensional puzzle: how …

Privatizing Bars On Abortion: Eviscerating Constitutional Rights Through Tort Remedies, Maya Manian

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State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign …

The Global Struggle For Lgbtq Rights: Legal, Political, And Social Dimensions, Macarena Saez

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No abstract provided.

Debunking The Myth Of Universal Male Privilege, Jamie Abrams

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Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military’s statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male …

Boys, Rape And Masculinity: Reclaiming Boys’ Narratives Of Sexual Violence In Custody, Brenda V. Smith

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This article examines a little studied area at the intersections of masculinity, feminist studies, and criminal justice — sexual abuse of boys in custody by female staff. Professor Smith outlines the scope of the problem and discusses competing narratives that attempt to explain the phenomena: (1) female staff as “mother, sister, friend”; (2) adolescent development theory; (3) complex early childhood trauma; and (4) female authority and power. There is a gap in both masculinity and feminist theory in analyzing sexual aggression and power by women over boys. The talk article concludes with policy and practice prescription and recommendations for further …

The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck

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As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

Lgbti Migrants In Immigration Detention: A Global Perspective, Shana Tabak, Rachel Levitan

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No abstract provided.

Enforcing Masculinities At The Borders, Jamie Abrams

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“American men have no history,” declared pioneering masculinities scholar, Michael Kimmel. Masculinities, the study of how men relate to each other and construct their identities, can be used as a powerful sociological and legal tool to understand institutions, power structures, and human relations. While the history of American immigration law has revealed rich multi-dimensional narratives of class, race, and domestic and international politics, sparse historical work has considered the masculinities dimensions of immigration law.

This Article considers how unpacking the masculinities dimensions of our paradigmatic shifts in immigration policy might offer an additional - even unifying - dimension to previously …

Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

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INTRODUCTION: Sexual and gender-based violence (SGBV) during conflict and periods of repression has been a problem in every region of the globe.' Historically, these crimes were rarely prosecuted, particularly when government leaders were responsible for tolerating, encouraging, or orchestrating these crimes. However, the last two decades have seen an incredible transformation in the treatment of SGBV under international law. Great strides have been made in the investigation and prosecution of sexual and gender-based crimes, particular by the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone This essay examines the way …

International Law Weekend, American Branch Of The International Law Association Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

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No abstract provided.

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

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The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Examining Entrenched Masculinities Within The Republican Government Tradition, Jamie Abrams

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“May all our citizens be soldiers, and all our soldiers citizens,” Sarah Livingston Jay toasted to revelers celebrating the Revolutionary War in 1789. She expressly conveyed what this article describes as the “foundational fusion” of republican government traditions coupling the military service of citizens-soldiers with male political citizenship. While the core of this fusion is deep, long-standing, and well-documented, this article explores the implicit tensions conveyed in her toast – the dominant masculinity dimensions of this foundational fusion. How do women and black men historically gain full political citizenship and effectuate republican government guarantees given its anchoring in entrenched dominant …

Aryans, Gender, And American Politics, Robert Tsai

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This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of legal, political, and cultural transformation. In recent years, the community has moved from common law theories of white sovereignty to more robust forms of racial constitutionalism. The piece is drawn from "America's Forgotten Constitutions: Defiant Visions of Power and Community"

The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary

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No abstract provided.

Rethinking Prison Sex: Self Expression And Safety, Brenda V. Smith

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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.

For The Sake Of All Children: Opponents And Supporters Of Same-Sex Marriage Both Miss The Mark, Nancy Polikoff

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No abstract provided.

Conceptions Of Lawyers' Agency In Legal Ethics Scholarship, Susan Carle

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No abstract provided.

Rape In Wartime: Redress In United States Courts Under The Alien Tort Claims Act, Susana Sácouto

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No abstract provided.

United States. V. Virginia New Gender Equal Protection Analysis With Ramifications For Pregnancy, Parenting And Title Vii, Candace Kovacic-Fleischer

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ABSTRACT: In this Article, Professor Kovacic-Fleischer argues that the Supreme Court's recent decision in United States v. Virginia raises gender equal protection analysis to the level of strict scrutiny. Professor Kovacic-Fleischer asserts that the Court's refusal to accept as immutable VMI's single-sex institutional design, and the Court's requirement that VMT make adjustments and alterations that will enable qualified women to undertake VM's curriculum evidences this shift in gender equal protection analysis. Professor Kovacic-Fleischer then turns to the significance of the Court's citation to California Federal Savings & Loan Association v. Guerra. She asserts that this citation indicates that the Court …

Confronting Expectations: Women In The Legal Academy, Christine Haight Farley

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A seemingly insurmountable barrier to women's success in legal academia is the way they are perceived. Numerous studies have shown that women are perceived as less competent than men and that the same work is evaluated more critically when it is thought to have been done by a woman than by a man. This problem exists in all aspects of life, but it is especially acute for women in professional roles, such as academics. Legal academia, however, seems to be particularly resistant to viewing women as equally competent. The article presents original empirical research that shows that student evaluations of …

O'Connor: A Dual Role - An Introduction, Stephen Wermiel

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No abstract provided.