Law Commons^™

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, …

Restructuring The Labor Market To Democratize The Public Forum, Jessica A. Knouse

Jessica A. Knouse

Restructuring the Labor Market to Democratize the Public Forum makes the provocative argument that the identities we construct in the labor market prevent us from creating a democratic public forum. The labor market, where we spend most of our time as adults, wields tremendous influence over our identities, yet its influences are deeply undemocratic. Employers work to create hierarchy and ideological conformity – through many mechanisms, including sex-based pay scales and stereotypes – rather than to promote equality and ideological diversity. When employer-created hierarchies and ideologies are internalized and reproduced within the public forum, they diminish the possibility of democratic …

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, …

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, …

Abortion Post-Glucksberg And Post-Gonzales: Applying An Analysis That Demands Equality For Women Under The Law, Mary Kathryn Nagle

Duke Journal of Gender Law & Policy

Because the government has historically enacted laws criminalizing abortion to preserve traditional stereotypes regarding a woman's domestic and subordinate position in society,22 abortion regulations necessitate an Equal Protection Clause analysis. [...] this article will examine first how Gonzales and Glucksberg forecast Roe's now inevitable demise, and accordingly, why abortion regulations must now be evaluated under an Equal Protection Clause analysis- in place of the crumbling Due Process Clause framework.23 Finally, this article will explain how and why the Partial Birth Abortion Act of 2003 violates the Equal Protection Clause of the Fourteenth Amendment.

What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet

Duke Journal of Gender Law & Policy

[...] the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world.3 At the same time, in contrast to the American-style constitutional commitment to separate church and state,4 the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity.5 So the same Constitution that protects western fundamental rights also elevates Islamic law, a …

All The Difference In The World: Listening And Hearing The Voices Of Women, Phoebe A. Haddon

Phoebe A. Haddon

No abstract provided.

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

Abstract The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate …

Piercing The Veil: Using Microfinance Initiatives To Promote Female Entrepreneurship In Muslim Countries, Patrick F. Madden

Patrick F. Madden

This paper argues that microfinance initiatives are an attractive aid mechanism to promote gender equality in Muslim countries because such initiatives both alleviate poverty and provide women with economic empowerment without violating Muslim customary banking laws. By promoting female entrepreneurship, microfinance initiatives are, perhaps, the most effective means of achieving the Millennium Development goal of gender equality without upsetting the Islamic governments or the prospective borrowers.

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I …

Fulfilling Technology's Promise: Enforcing The Rights Of Women Caught In The Global High-Tech Underclass, Shruti Rana

Shruti Rana

In the early 1980s, Malaysian women working in electronics factories began to experience hallucinations and seizures. Factory bosses manipulated their employees' religious and cultural beliefs, convincing the women that their bodies were inhabited by demons. In this manner, they avoided confronting the more likely causes: the rigid, paternalistic work environment, the intense production pressures placed on the women, and the lengthy shifts and potentially hazardous conditions that the women were forced to endure. This example illustrates the use of gender, religion, and to control and exploit women's labor in the high-tech industry. Unfortunately, this is not an isolated situation. This …

The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.

University of Richmond Law Review

No abstract provided.

The Beginning Of The Second Wave Of The Women's Movement And Where We Are Today: A Personal Account, Sonia Pressman Fuentes

Cornell Law Faculty Working Papers

The second wave of the women’s movement, which started in the early 1960s, revolutionized women’s legal rights in the U.S. and reverberated in the rest of the world. Ms. Fuentes, a founder of NOW (National Organization for Women) and the first woman attorney in the Office of the General Counsel at the EEOC (Equal Employment Opportunity Commission), discusses the beginning of this movement, her role in it, the changes that have occurred since then, and the problems that remain in the US and throughout the world today.

Hollow Promises For Pregnant Students – How The Regulations Governing Title Ix Fail To Protect Them From Discrimination In School, Kendra H. Fershee

Kendra H Fershee

This Article describes the unequal treatment of pregnant students historically in American public school historically and how the regulations implementing Title IX are too weak to ensure that the historical discrimination cease, despite the prohibitions on discriminatory practices. This Article explains the historical reasons for the discrimination, Congress’s attempt to remedy the discrimination through Title IX and its implementing regulations, and the failure of the regulations to meet the regulatory goals of school access, choice, and quality. The Article continues to make concrete suggestions, with specific language recommendations, for changes in the current Title IX regulations with respect to pregnancy. …

Women's Rights: The Possible Impact Of Private Military And Security Companies, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Armed conflict and occupation are by definition necessarily violent for all participants, be they civilians or combatants. However, for women it heralds an exacerbation in existing violence, discrimination and inequalities. While international humanitarian law (IHL) has dedicated or ‘special’ provisions for women, feminist legal scholars have done much to exposed the gendered nature of this branch of international law. In recent decades, the United Nations’ campaign of mainstreaming of women’s issues has impacted significantly on relevant human rights law (HR Law), and the International Committee of the Red Cross (ICRC) has actively sought to investigated and address women’s concerns. However, …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann Mcginley

Ann McGinley

This article analyzes the application of employment discrimination law to sexual minorities – lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws’ treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.While the article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts’ binary view of sex and gender, a view that identifies men …

Gender Equality In Reconciling Work And Childcare In South Korea, Kook Hee Lee

Cornell Law School Inter-University Graduate Student Conference Papers

This paper presents an ideal legislative model for South Korea to realize gender equality in reconciling work and childcare. The comparative study on the U.S. and German system is the basis for the legislative model. This paper selects the U.S. and German systems as a comparison group because they are representing the equal treatment approach and special treatment approach in the feminist legal theory. The current system in South Korea fails to realize gender equality because it provides maternity leave exclusive to women to limit women’s right to work and lacks financial support for parental leave. Maternity leave limits women’s …

Are Gender Stereotypes Bad For Women? Rethinking Antidiscrimination Law And Work-Family Conflict, Julie C. Suk

Julie C Suk

The work-family conflict is a significant barrier to women’s equality in the workplace. As many commentators have noted with envy, the United States stands apart from most European countries in its failure to give women a legal right to paid maternity leaves. This Article argues that the United States’ potential for reconciling the work-family conflict is undermined by the predominance of antidiscrimination law in tackling the problem. To expose this American idiosyncrasy, this Article develops a thorough comparative analysis of successful European models for work-family reconciliation. The unique trajectory of U.S. antidiscrimination law has pushed family and medical leave into …

A Comprehensive Blueprint For A Crucial Service: Florida’S New Supervised Visitation Strategy, Nat S. Stern

Nat S Stern

No abstract provided.

Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Of Authorship And Audacity: An Empirical Study Of Gender Disparity And Privilege In The “Top Ten” Law Reviews, Minna J. Kotkin

Minna J. Kotkin

In today’s law schools, article placement is a significant consideration in hiring, promotion, tenure, and lateral mobility. This article analyzes authorship by gender and home school “privilege” in 15 law reviews (the “top ten”) over a three year period. It compares these data with the gender composition of the professoriate and of the 15 schools’ faculties, using Association of American Law Schools and American Bar Association statistics. The mean percentage of articles authored by one or more women (and no men) is 20.4. Nationally, women comprise 31% of the tenured/tenure-track professoriate and 28.3% at the 15 schools. At the associate …

Cautionary Tales, Penelope J. Pether

Working Paper Series

“This is a review essay of Nan Seuffert’s Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate, 2006), a critical, interdisciplinary study of the construction of national identity of Aotearoa New Zealand, which unearths the raced and gendered constitution of this postcolonial nation state.”

Discriminatory Acquittal, Tania Tetlow

Tania Tetlow

This Article is the first to analyze a pervasive and unexplored constitutional problem: the rights of crime victims against unconstitutional discrimination by juries. From the Emmett Till trial to that of Rodney King, there is a long history of juries acquitting white defendants charged with violence against black victims. Modern empirical evidence continues to show a devaluation of black victims; dramatic disparities exist in death sentence and rape conviction rates according to the race of the victim. Moreover, just as juries have permitted violence against those who allegedly violated the racial order, juries use acquittals to punish female victims of …

Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh Goodmark

Leigh Goodmark

In the 1970s and 80s, feminists led the way in crafting and advocating for policies to address domestic violence in the United States—and those feminists got it wrong. Desperate to find some way to force police to treat assaults against spouses as they would strangers, the battered women’s movement seized on the idea of mandatory arrest—relieving police of discretion and requiring them to make arrests whenever probable cause existed. But mandatory arrest also removed discretion from the women that the policy purported to serve, a trend that has come to characterize domestic violence law and policy. Later policy choices, like …

Barriers To Access: Evaluating The Accessibility Of Judicial Bypasses To Minors In Missouri, Shyamali Choudhury, Barbara Baumgartner

Shyamali Choudhury

Abortion regulation law has a relatively short, but complex history. Several Supreme Court cases join together in defining and setting the precedent for a woman’s right to an abortion. Pregnant minors are similarly protected under the law, but have been subject to a special set of regulations, namely state mandates requiring parental consent for an abortion. Parental consent laws for minors seeking abortions have been found unconstitutional without the inclusion of a judicial bypass option. Judicial bypass allows a minor seeking an abortion to replace parental consent with leave of the juvenile court. Although the state of Missouri has a …

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

Adam H Koblenz

Briefly, this article analyzes the inherent conflicts associated with domestic violence in the Jewish community, and the direct confrontation that currently lies between the ancient teachings of traditional Jewish law known as Halakhah and the development of modern American secular law and its impact on the interpretation of religious doctrinal issues under the United States Constitution. By examining the disparate and/or inferior role of women inherent within traditional Jewish law and analyzing its impact on the secular and religious courts’ treatment of Jewish women in the context of Jewish divorce proceedings, this article will demonstrate that battered Jewish women still …

Married Against Their Will? Toward A Pluralist Regulation Of Spousal Relationships, Shahar Lifshitz

Shahar lifshitz

This article addresses the regulatory regime governing the relationships between unmarried cohabitants. In the article I challenge the conventional divide between conservative and liberal approaches: on one hand, moral condemnation of non-marital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage law to cohabitating partners. On the other hand, drawing on principles of freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break with conventional analysis by offering a novel liberal model that separates between the mutual obligations of cohabitants and …

“I’M His Coach, Not His Father:” A Title Ix Analysis Of Sexual Harassment In College Sports, Caitlin M. Cullitan

Caitlin M. Cullitan

ABSTRACT “I’m His Coach, Not His Father.” A Title IX Analysis of Sexual Harassment in College Sports Caitlin M. Cullitan

Studies have estimated that, while male athletes constitute only a small percentage of the college community, they are responsible for nearly one-third of the sexual abuse crimes. Recent case law demonstrates that college coaches sometimes actively recruit potential student athletes who have been charged with sexual misconduct. Once these student-athletes are admitted, these coaches may fail to inform the student-athletes of the institution’s sexual harassment policies and fail to respond appropriately when new claims of sexual misconduct are made against …

The Potential Legacy Of The Roberts Court: Gonzales V. Carhart And The Birth Of A New Understanding Of Judicial Activism, Elly Laff

Elly Laff

This article looks at the way Presidents from Reagan to G..W. Bush have used their power of appointment to seat Justices on the US Supreme Court who will carry forward the goals of the administration, in particular, overruling Roe v. Wade. This article looks specifically at the most recent US Supreme Court case dealing with abortion, Gonzales v. Carhart, and discusses the history of the presidential appointments of the five Justices who were in the majority of that decision. The article tries to clarify the conventional wisdom that an activist court is defined as one that tries to adjudicate change …