Law and Gender Commons^™

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Hiding Sexual Harassment: Myths And Realities, Pat K. Chew

Articles

Hiding Sexual Harassment: Myths and Realities

Nevada Law Journal, Vol. 21, p. 1223, 2021

Sexual harassment and gender disparities in the workplace continue, but we are not paying enough attention. The heralded me-too movement and the publicized downfalls of Harvey Weinstein, Bill Cosby, and other former luminaries might give the impression that the lid is blown off the indignities of harassment in the workplace and that American society’s collective disdain and abhorrence of harassment has quickly put an end to these incivilities. But these headline cases are just the tip of the sexual harassment iceberg; they may even give us …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Responding Restoratively To Student Misconduct And Professional Regulation – The Case Of Dalhousie Dentistry, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

The 2015 restorative justice process at Dalhousie University’s Faculty of Dentistry is a case study that reveals the connection at conceptual and practical levels between restorative justice and responsive regulation as common expressions of relational theory and practice. Their relationship is clearest when, as in this case, issues are understood in their full contexts and circumstances require a widening of the circle of issues and parties. At this scale the complexity of the situation and the need for responsive interventions capable of supporting and sustaining a just relationship is revealed.

Comparing The Effects Of Judges' Gender And Arbitrators' Gender In Sex Discrimination Cases And Why It Matters, Pat K. Chew

Articles

Empirical research substantiates that the judges’ gender makes a difference in sex discrimination and sexual harassment court cases. The author’s study of arbitration of sex discrimination cases administered by the American Arbitration Association between 2010 and 2014, however, finds that this judges’ “gender effect” does not occur. Namely, there is no significant difference in the decision-making patterns of female and male arbitrators as indicated by case outcomes.

The author proposes that characteristics of arbitrators, the arbitration process, and arbitration cases all combine to help explain the gender effect differences. Further, she suggests that this analysis reveals concerns about the arbitration …

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

Articles

These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

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

Articles in Law Reviews & Other Academic Journals

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 …

Report From The Restorative Justice Process At The Dalhousie University Faculty Of Dentistry, Jennifer Llewellyn, Jacob Mcissac, Melissa Mackay

Reports & Public Policy Documents

In December 2014, female students in Dalhousie University’s Faculty of Dentistry filed complaints under the University’s Sexual Harassment Policy after they became aware some of their male colleagues had posted offensive material about them in a private Facebook group. The select materials revealed from the Facebook group reflected misogynistic, sexist and homophobic attitudes. At the complainants’ request, the University began a restorative justice process to investigate the matter, address the harms it caused and examine the climate and culture within the Faculty that may have influenced the offensive nature of the Facebook group’s content. Twenty-nine students from the class of …

Ethics And Matrimonial Representation Annotated Bibliography, Barbara Glesner Fines, Nancy Levit

Faculty Works

No abstract provided.

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

Articles

This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

Articles

Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which …

The Moonscape Of Tax Equality: Windsor And Behyond, Anthony C. Infanti

Articles

This essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples.

In this essay, I first describe the path that led to the decision …

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, 59 Clev. St. L. Rev. 693 (2011), Julie M. Spanbauer

UIC Law Open Access Faculty Scholarship

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a "madam" sold a house used for prostitution to another "madam." The opinion is the last in a long line of cases which speak specifically to the issue of enforcement of facially legitimate contracts that in some manner involve or are related to prostitution. It is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law of …

Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Kovacic-Fleischer

Articles in Law Reviews & Other Academic Journals

The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for "gratuitous" contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …

Dismembering Families, Anthony C. Infanti

Book Chapters

In this paper, I explore how the deduction for extraordinary medical expenses, codified in I.R.C. section 213, furthers domination in American society. On its face, section 213 probably does not seem a likely candidate for being tagged as furthering domination. After all, this provision aims to alleviate extraordinary financial burdens on taxpayers who already suffer from significant medical problems -- and who, by definition, lack the help of insurance to relieve those burdens. But, as laudable as this goal might be, careful attention to the text and context of section 213 reveals that it does not apply to all taxpayers …

Doma And The Happy Family: A Lesson In Irony, Rhonda Wasserman

Articles

In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.

Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s …

Surveying The Legal Landscape For Pennsylvania Same-Sex Couples, Anthony C. Infanti

Articles

Recent advances in the battle over same-sex marriage in Connecticut, California, Iowa, Maine, New Hampshire, and Vermont led some commentators to describe this as a “watershed” moment. These legal and legislative wins - however tentative - created a sense of momentum in favor of lesbian and gay rights advocates in the battle over same-sex marriage. Yet, it would be a mistake to allow jubilation over these wins to obscure the larger perspective on this battle. We should not lose sight of the fact that, with the exception of Iowa, same-sex couples in each of these jurisdictions could already obtain legal …

The Illusion Of Transformative Conflict Resolution: Mediating Domestic Violence In Nicaragua, Raquel Aldana, Leticia Saucedo

McGeorge School of Law Scholarly Articles

No abstract provided.

Negotiating Divorce: Gender And The Behavioral Economics Of Divorce Bargaining, Tess Wilkinson-Ryan, Deborah Small

All Faculty Scholarship

No abstract provided.

Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun

Publications

No abstract provided.

Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds

Faculty Scholarship

This paper is part of a Symposium that considered the relevance of domestic conflict resolution theories in broader cultural contexts. The Northern Ireland Women's Coalition (Women's Coalition) participated in the negotiations leading up to the 1998 Good Friday/Belfast Agreement. Members of the Woman's Coalition responded to thirty years of sectarian violence with a negotiation process based on accommodation, inclusion, and relationship building, concepts that resonate with American-style problem-solving negotiation. Using the Women's Coalition as a case study, this Article suggests that there are procedural aspects of problem-solving negotiation theory that may work across domains, specifically in multi-party, intractable conflict situations, …

Of False Teeth And Biting Critiques: Jones V. Fisher In Context, Regina Austin

All Faculty Scholarship

No abstract provided.

Choice, Conscience, And Context, Mary Crossley

Articles

Building on Professor Michael H. Shapiro's critique of arguments that some uses of new reproductive technologies devalue and use persons inappropriately (which is part of a Symposium on New Reproductive Technologies), this work considers two specific practices that increasingly are becoming part of the new reproductive landscape: selective reduction of multiple pregnancy and prenatal genetic testing to enable selective abortion. Professor Shapiro does not directly address either practice, but each may raise troubling questions that sound suspiciously like the arguments that Professor Shapiro sought to discredit. The concerns that selective reduction and prenatal genetic screening raise, however, relate not to …

Cross-Cultural Commerce In Shakespeare's The Merchant Of Venice, Anita L. Allen, Michael R. Seidl

All Faculty Scholarship

No abstract provided.

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

Mediation Of Wife Abuse Cases: The Adverse Impact Of Informal Dispute Resolution On Women, Lisa G. Lerman

Scholarly Articles

This Article articulates a law enforcement critique of domestic violence mediation. It will explain the feminist view that mediation in abuse cases is based on misconceptions about the nature of wife abuse, and that mediation not only fails to protect women from subsequent violence, but also perpetuates their continued victimization.

The Article will recommend that other remedies be preferred over mediation. Recognizing that many programs will persist in mediation of wife abuse cases, however, the Article recommends that those programs should adopt procedures which will offer protection to victims of abuse, will make clear to the abuser that stopping the …