Law and Gender Commons^™

Colonizing Queerness, Jeremiah A. Ho

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This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Brief Amici Curiae Legal Scholars Of Sex And Gender In Support Of Plaintiff-Appellant, Kyle Velte, Ezra Young, Jeremiah A. Ho, M. Dru Levasseur, Nancy C. Marcus, Dara E. Purvis, Eliot Tracz, Ann E. Tweedy

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This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offer
expertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women's unit of the El Paso County Jail as a pretrial detainee.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

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This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Hushing Contracts, David A. Hoffman, Erik Lampmann

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The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy …

Shattering The Glass Ceiling In International Adjudication, Nienke Grossman

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The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

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Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger

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The Supreme Court decision in the Hobby Lobby case is in many ways a sequel to the Court's 2012 decision on the constitutionality of the Affordable Care Act (ACA). The majority decision, written by Justice Samuel Alito, is a setback for both the ACA's foundational goal of access to universal health care and for women's health care specifically. The Court's ruling can be viewed as a direct consequence of our fragmented health care system, in which fundamental duties are incrementally delegated and imposed on a range of public and private actors. Our incremental, fragmented, and incomplete health insurance system means …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

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This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

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This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

Originalism And Its Discontents (Plus A Thought Or Two About Abortion), Mitchell N. Berman

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No abstract provided.

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

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This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

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In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

Engaging With The State: The Growing Reliance On Lawyers And Judges To Protect Battered Women, Jane C. Murphy

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The passage of the federal Violence Against Women Act of 2000 (“VAWA II”) marked an important milestone in the evolution of the domestic violence movement. VAWA II created, among other things, a complex system for state and federal funding in all fifty states to provide civil legal assistance to battered women. Its passage completed a process that began in the early 1980s when domestic violence advocates shifted their focus from grass roots efforts to help battered women and their children leave abusive partners to building alliances with government and advocating for legal remedies to assist battered women. This paper looks …

Book Review Of Gregory M. Matoesian, Reproducing Rape, Dorothy E. Roberts

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No abstract provided.

"But Whoever Treasures Freedom...": The Right To Travel And Extraterritorial Abortions, Seth F. Kreimer

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No abstract provided.

Rust V. Sullivan And The Control Of Knowledge, Dorothy E. Roberts

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No abstract provided.

Autonomy's Magic Wand: Abortion And Constitutional Interpretation, Anita L. Allen

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No abstract provided.

Gender Dynamics And Jury Deliberations (Student Note), Nancy S. Marder

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No abstract provided.