Law and Gender Commons^™

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Deseriee A. Kennedy

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Religious Victory Over The Affordable Care Act? Possible Recourse For The Employee Of The Religious Employer, Jacqueline Prats

Jacqueline M Prats

In 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act (ACA). Even as the Court deliberated, a number of for-profit employers prepared to challenge the law—not the Act as a whole, but a specific part: the requirement that insurance plans cover contraceptives for women, free of co-pay or other cost-sharing. Although their companies were secular, these business owners claimed that the “contraception mandate” violated not only their religious beliefs, but also those of their companies. They challenged the ACA under both the Free Exercise Clause of the First Amendment and a federal statute called the Religious Freedom …

Women's Exclusion From The Constitutional Canon, Jill Elaine Hasday

Jill Elaine Hasday

This Essay asks why sex equality is outside the constitutional canon. While race discrimination is a canonical concern of constitutional law, the story of America’s struggles over and against sex discrimination is not widely taken to be a central, organizing part of our constitutional tradition — a defining narrative that exemplifies and expresses the nation’s foundational values and commitments. I offer three potential explanations for the exclusion of sex equality from the constitutional canon. First, the Supreme Court’s jurisprudence developed in ways that suggested that sex discrimination was not a core constitutional problem and concern, especially when compared to race …

Mujeres Invisibles, Progresos Incompletos: Reflexiones Sobre El Control Difuso De Constitucionalidad De Normas De Filiación, Beatriz Ramirez

Beatriz Ramirez

El Aborto Y Los Derechos Fundamentales., Beatriz Ramirez, Juan Carlos Diaz

Beatriz Ramirez

El Derecho, como sistema de regulación de conductas, establece cuáles están permitidas, prohibidas u ordenadas. En el caso del aborto, un enfoque conservador se orienta a su prohibición absoluta, lo que equivale a que el sistema legal indica que todos los embarazos deben culminar en nacimientos, proscribiéndose cualquier intervención en ese transcurso. No obstante lo anterior, existe otra tendencia en materia de aborto: aquella orientada a su permisión en determinados supuestos que son más bien excepcionales. En ese contexto, algunos ordenamientos jurídicos otorgan tratamientos diferentes al aborto que se produce en circunstancias en los que las mujeres no han podido …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed

Abraham Z Melamed

No abstract provided.

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Heroínas Forzadas: Reflexiones Sobre Aborto Terapéutico A Propósito De Las Medidas Provisionales De La Corte Interamericana De Derechos Humanos En El Asunto B. Contra El Salvador, Beatriz Ramirez

Beatriz Ramirez

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Fetal Personhood Laws As Limits To Maternal Personhood At Any Stage Of Pregnancy: Balancing Fetal & Maternal Interests At Post-Viability Among Fetal Pain & Fetal Homicide Laws, Bernice M. Bird

Bernice M. Bird

Collectively, fetal pain and homicide laws serve to effectively diminish maternal personhood at any stage of pregnancy. At pre-viability, fetal pain laws unconstitutionally infringe on women’s right to reproduce without state interference, as reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey. In tandem, at post-viability, fetal homicide laws act as undue burdens because the laws lack life or health exceptions to maternal prosecution for the death of the fetus. Ultimately, both types of laws encroach on women's liberty interests to continue or terminate pregnancies at all stages. This paper proposes that state fetal pain and homicide laws should only …

Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence, Rachel Simon

Rachel Simon

This article addresses the gender bias presented by the disparate treatment of sex and violence under current obscenity jurisprudence. Under the controlling standard set forth by the Supreme Court in Miller v. California, sexual works may readily be regulated as obscenity, while violent works unequivocally may not. This article posits that this disparate treatment is the product of entrenched stereotypes about the way men and women “should” react to sex and violence, and notes the hypocrisy of failing to apply the same reasoning to assessments of violent versus sexual material.

First, reliance on “community standards” to define what material …

Which Is Greater: The Right To Parent Or The Rights Of A Parent? The Legal And Ethical Quandaries When A Minor Child Diagnosed With Cancer Wishes To Utilize Oocyte Cryopreservation And Advanced Reproductive Technology For Future Procreation., Jessica M. Hallgren

Jessica M Hallgren

No abstract provided.

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

Clear Depictions Promote Clear Decisions: Drafting Abortion Speech-And-Display Statutes That Pass First And Fourteenth Amendment Muster, Ryan J. Pulkrabek

Ryan J Pulkrabek

Several states have passed legislation requiring physicians to take, display, and describe an ultrasound to their patients who are seeking an abortion. These statutes have been challenged under both the Fourteenth and First Amendments because the statutes place burdens on women who seek abortion and compel physician speech. Courts are divided on these questions and state legislatures need guidance as they consider reform. This Article proposes a model "speech-and-display" statute that is both consistent with the Constitution and good public policy. This model statute is designed to protect the mental health of patients and the life of the unborn by …

India's Archaic Turn On Equality, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Inequality's Frontiers, Melissa Murray

Melissa Murray

No abstract provided.

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Roe V. Wade And The Dred Scott Decision: Justice Scalia's Peculiar Analogy In Planned Parenthood V. Casey, Jamin B. Raskin

Jamin Raskin

No abstract provided.

Conference On The Interventional Protection Of Reproductive Rights: Preface , Lauren Gilbert, Ann Shalleck, Claudio Grossman

Claudio M. Grossman

Reproductive Rights conference

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Implicit Bias In Employment Litigation, Melissa R. Hart

Melissa R Hart

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. …

Back To The Future: Introducing Constructive Feminism For The Twenty-First Century: A New Paradigm For The Family And Medical Leave Act, Arianne Renan Barzilay Dr.

Arianne Renan Barzilay Dr. (J.S.D., New York University School of Law)

Abstract: At least ninety percent (90%) of American parents, mothers and fathers, say they are experiencing an acute shortage of time spent with family and an intense work-family conflict. This article provides a history and a theory that should inform our conceptualization of work-family regulation. It points to the neglected history of working-class social feminism. It shows how working-class social feminists at the beginning of the twentieth century advocated for “constructive feminism”—government support, by way of labor regulation, of what this article terms “multidimensionalism”—a life enriched by meaningful dimensions of work, family, civic participation, and culture. The Article extends this …

Building Democracy In Japan, Mary Alice Haddad

Mary Alice Haddad

How is democracy made real? How does an undemocratic country create new institutions and transform its polity such that democratic values and practices become integral parts of its political culture? These are some of the most pressing questions of our times, and they are the central inquiry of Building Democracy in Japan. Using the Japanese experience as starting point, this book develops a new approach to the study of democratization that examines state-society interactions as a country adjusts its existing political culture to accommodate new democratic values, institutions and practices. With reference to the country's history, the book focuses on …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

R. Michael Cassidy

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Eileen Kaufman

No abstract provided.