Law Commons^™

Case Note: Nabozny V. Podlesny, William B. Turner

William B Turner

This case note describes and provides context for the 1996 opinion in Nabozny v. Podlesny, in which the Seventh Circuit Court of Appeals reversed a district judge's grant of summary judgment to defendants in a suit by a former student who complained of years of severe bullying and harassment by his peers because of his sexual orientation, which school administrators persistently failed to take steps to stop.

The Wisdom Of Solomon: Why We Can't Split The Pre-Embryo, Bridget M. Fuselier

Bridget M Fuselier

Due to the fact that there are at least 500,000 cryo-preserved pre-embryos and a very small amount of common law or statutes to provide guidance, legislators need to act and take steps to guide the people impacted by these problems.

This article promotes modifications to property concepts that protects the special dignity of the pre-embryo while also recognizing the autonomy of the individual gamete providers. The article proposes a form of ownership that would prevent the pre-embryos from passing through wills and by intestate succession. It would also eliminate the possibility of ending up with a multitude of owners for …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic of bisexual erasure, …

Escaping Legal Limbo: Can Illinois Residents Who Entered Into A Legally Recognized Same-Sex Marriage Or Civil Union In Another State Dissolve Their Marriage In Illinois?, Michelle R. Green, Allen Wall, Jacob H. Karaca, Melissa Sereda

Michelle R. Green

Legal limbo: when a same-sex couple in a valid, legally performed marriage performed in a jurisdiction that recognizes such marriages wants to dissolve their marriage, but now lives in a jurisdiction that refuses to recognize their marriage as valid. This article explores the options available to such couples in Illinois and provides a practical roadmap for practitioners that we think provides the best chance of success for their clients seeking to dissolve a same-sex union.

While Illinois courts have not yet determined whether such a couple may lawfully dissolve their marriage in Illinois, many lessons can be gleaned from other …

Women And Pornography: The Reasons, The Benefits And The Risks, Guy Kochlani

Guy Kochlani

This Article examines the reasons why women enter the porn industry, the benefits of joining it and its risks. Specifically, this Article concentrates on the five major reasons why women enter the porn industry: 1) physical/sexual/mental abuse (reasons for building self-confidence and feeling important); 2) financial (last resort to earn money in a short time frame or building a business empire); 3) fame (believes that this is a stepping stone into Hollywood); 4) nymphomania (sexual addiction); and 5) human trafficking (forced in becoming a sex slave). In addition, this Article will lay out the benefits of entering such an industry, …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

The Failure Of Consent, Michal Buchhandler-Raphael

michal buchhandler-raphael

What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms. This Article argues that while rape law reform has accomplished significant changes in …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people convicted …

A Final Obstacle: Barriers To Divorce For Immigrant Victims Of Domestic Violence In The United States, Mariela Olivares

Mariela Olivares

Low-income immigrant victims of domestic violence face significant—and understudied—social, legal and political obstacles in obtaining divorces from their abusive spouses. Moreover, funding restrictions on legal service providers often prohibit their representation of victims in divorce proceedings, which further reduces immigrant victims’ ability to obtain meaningful divorce relief. These issues are virtually unexamined in the scholarly literature; the problem of the abused, immigrant wife seeking a divorce has been given short shrift. This Article examines the problems confronting this community then proposes reforms to address its particular needs. Part I explores the unique condition of the immigrant living in the United …

The Failure Of Consent, Michal Buchhandler-Raphael

michal buchhandler-raphael

What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms. This Article argues that while rape law reform has accomplished significant changes in …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines, from a theoretical standpoint, the possibility of expanding the definition of "sexual orientation" in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of "sexual orientation" is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered …

Parental Authority, Circumcision And The Child's Right To An Open Future, Robert Darby

Robert Darby

In April 2010 the American Academy of Pediatrics released a new policy on female circumcision that accepted the right of parents to impose, and recommended that its members perform, mild forms of genital cutting on girls, such as a “ritual nick” to the clitoris. The suggestion caused some astonishment, and was rapidly withdrawn, but its author, Dena Davis, has defended it, arguing that it is not acceptable to criminalise all female genital cutting while tolerating male circumcision; this is to show respect for only those religious and cultural practices with which they are already comfortable. Davis suggests that if physicians …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of “sexual orientation” is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

Equal Protection, Same-Sex Marriage, And Classifying On The Basis Of Sex, Mark Strasser

Mark Strasser

Over the past several years, several plaintiffs have challenged same-sex marriage bans under the respective state constitution’s equal protection guarantees. Some state supreme courts have struck down those laws on that basis, whereas others have not. This lack of uniformity is unsurprising, both because the language in one state constitution might differ from that of another and because, even where the language is the same, the jurisprudence in the respective states fleshing out the depth and breadth of the guarantees might differ. What seems more surprising is that courts cannot even agree about whether same-sex marriage bans employ a sex-based …

How The Global Crime Syndicates Fuel Planet Destruction, Global Alliance

Global Alliance

since 1945 more environmental planet destruction has been fuelled and financed with ever more leveraged debt than in the previous 60 million years - it's applied terrorism against the global life support system under the protection racket of a corrupt law profession

Serious Disagreement: Same-Sex Marriage, Judicial Review, And The Quality Of Debate, Rob Goodman

Rob Goodman

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took …

Strategic Pragmatism Or Radical Idealism?: The Same-Sex Marriage And Civil Rights Movements Juxtaposed, Kathryn L. Marshall

Kathryn L Marshall

Within the debate over the most effective strategy for achieving social change, there remains a significant divide between those who argue in favor of pushing for immediate and full equality and those who favor a more incremental approach. Indeed, this debate is looming large over the current struggle to achieve same-sex marriage rights nationwide. In this Article, I suggest that the unique political and social landscape within which the same-sex marriage movement is unfolding has important implications for the way in which the struggle can most effectively proceed. To illuminate the importance of this individualized approach, I compare the same-sex …

Common Law Same-Sex Marriage, Peter Nicolas

Peter Nicolas

In this manuscript, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that—for the first time in the United States—a same-sex couple may enter into a legally recognized common law marriage.

In the manuscript, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in each of these jurisdictions, and I explain and compare the criteria for entering into common law marriages in each of …

Marriage And Law Reform: Lessons From The Nineteenth Century Michigan Married Women’S Property Acts, Ellen Dannin

Ellen Dannin

If law reform had the neat trajectory of a bullet from a smoking gun, life and law would be neater – but less interesting. This article began as a simple empirical study to test whether Michigan’s 1844 Married Women’s Property Act affected conveyancing.

When the results showed that it had no effect – that married women were included as grantors even before the MWPA made it legal for them to own property – the study expanded into a quest to identify the processes that led to its enactment and explained its operation on the family, a fundamental social institution. In …

Same-Sex Marriage And The Right To Privacy, Mark Strasser

Mark Strasser

Over the past decade, several state appellate courts have analyzed whether their respective state constitutions protect the right to marry a same-sex partner. Those courts addressing the issue have differed both in their analyses and in their ultimate conclusions, although there have been striking similarities among those courts upholding same-sex marriage bans and among those striking them down, differences in wording among the respective state constitutional provisions notwithstanding. This article focuses on the due process analyses offered by the different courts, concluding that all of these decisions help demonstrate why the right to marry a same-sex partner should be found …

Father-Absence, Social Equality, And Social Progress, Helen M. Alvare

helen m alvare

Abstract: Father-Absence, Social Equality and Social Progress

The future of the male half of the U.S. population is less certain than it once was. News outlets now regularly report that women outnumber men in college and in the workforce. These reports rightly grab attention. Men’s growing absence from the lives of their own biological children, however, is too little explored. The 2007 Census update reported that of the nineteen million children living in lone-parent households, sixteen and one-half million lived with their mothers alone. Fewer than 30 percent of these fathers have even weekly contact with their children. Poor and …

Beyond The Sex- Ed Wars: Addressing Disadvantaged Single Mothers’ Search For Community, Helen M. Alvare

helen m alvare

Abstract: Beyond the Sex-Ed Wars

By Helen M. Alvaré

There is bi-partisan alarm over recent reports that our nation’s nonmarital birth rate has reached nearly 40%. Policymakers worry not only about fiscal effects, but also about the welfare of children reared in single-parent households and the fact that marriage and childbearing patterns are beginning to diverge sharply on the basis of race and socioeconomic status. Yet there is little new in recent proposals to address the phenomenon. Supporters of abstinence-only sex education, and of “comprehensive” sex-education, continue to trade accusations. Federal and state agencies promise to work harder but intend …

Beyond The Sex- Ed Wars: Addressing Disadvantaged Single Women’S Search For Community, Helen M. Alvare

helen m alvare

Abstract: Beyond the Sex-Ed Wars

By Helen M. Alvaré

There is bi-partisan alarm over recent reports that our nation’s nonmarital birth rate has reached nearly 40%. Policymakers worry not only about fiscal effects, but also about the welfare of children reared in single-parent households and the fact that marriage and childbearing patterns are beginning to diverge sharply on the basis of race and socioeconomic status. Yet there is little new in recent proposals to address the phenomenon. Supporters of abstinence-only sex education, and of “comprehensive” sex-education, continue to trade accusations. Federal and state agencies promise to work harder but intend …

History, Strategy And True Believers: Combining Rational Choice Theory And Social Movement Theory To Explain The Effectiveness Of Social Movements, Joanne Sweeny

JoAnne Sweeny

Both Rational Choice Theory and Social Movement Theory attempt to explain how public interest groups can influence political actors to enact progressive legislation or case law. Yet neither of these theories present a clear picture of what must be present for a social movement to succeed nor what must be absent for it to fail. For example, the bill of rights movement in the United Kingdom resulted in the Human Rights Act 1998 while the United States’ gay rights movement, which began to gain momentum around the same time, has had much more inconsistent success. This article addresses this problem …

Harvey Milk, Jane Roe, And James Brady: Why Civic Organizing Matters, Palma Joy Strand

palma joy strand

This Article presents a view of the civic underpinnings of law by examining how civic interaction or the lack of such interaction facilitates or inhibits sociolegal change. The Article begins with empirical observations of civic experience and engagement, which ground more general conclusions about the importance of civic relationships and civic networks as well as the way personal stories contribute to the creation of both. The Article then applies these conclusions to three currently contentious and unsettled issues: gay rights, abortion, and guns. As to gay rights, the “coming out” process identified with Harvey Milk has transformed the civic landscape, …