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Articles 1 - 30 of 71
Full-Text Articles in Law and Gender
“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry
“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry
Cleveland State Law Review
On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning …
Methodological Gerrymandering, David Simson
Methodological Gerrymandering, David Simson
Cleveland State Law Review
The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which …
Stories That Kill: Masculinity And Capital Prosecutors' Closing Arguments, Pamela A. Wilkins
Stories That Kill: Masculinity And Capital Prosecutors' Closing Arguments, Pamela A. Wilkins
Cleveland State Law Review
The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite—or perhaps because of—the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern …
Prosecuting Gender Persecution At The Icc: Definitions, Policies, And Practice, Milena Sterio, Yvonne Dutton
Prosecuting Gender Persecution At The Icc: Definitions, Policies, And Practice, Milena Sterio, Yvonne Dutton
Law Faculty Articles and Essays
This Article's primary goal is to highlight the International Criminal Court (ICC)'s Office of the Prosecutor (OTP)'s Gender Persecution Policy, while also demonstrating its place in the trajectory of the ICC's progress in changing the course of human history as relates to the recognition of and prosecution of sexual and gender-based (SGBV) crimes. To that end, some background is necessary to contextualize the ICC's current policy and practice as relates to the crime of gender persecution. Part II discusses the Rome Statute's unique contributions to the development of international criminal law regarding SGBV crimes, including the crime of gender persecution. …
Comments On The International Criminal Court Office Of The Prosecutor's Draft Policy On The Crime Of Gender Persecution Under The Rome Statute, Milena Sterio
Law Faculty Reports and Comments
The Draft Policy promises to be a seminal contribution not only to the Office of the Prosecutor's (OTP) policy and practice and the International Criminal Court's (ICC) jurisprudence on gender persecution, but also to the development of international criminal law generally. Building on its prior work, including the 2014 Policy Paper, the OTP is well placed to develop policies and procedures that protect historically marginalized and oppressed groups, deliver justice that accurately reflects the depth and breadth of the gender persecution suffered, and shed light on a crime that has to date received only limited attention.
As it finalizes the …
A Stitch In Time Saves Nine: How The State Of Ohio Can Save Money And Distress Through Legal Training For Pre-Service Teachers, Karin Mika, Christine Mika
A Stitch In Time Saves Nine: How The State Of Ohio Can Save Money And Distress Through Legal Training For Pre-Service Teachers, Karin Mika, Christine Mika
Law Faculty Articles and Essays
For simplicity, this Note will focus on the educational requirements for high school teachers rather than elementary or middle school teachers. Here, the requirements include core content instruction, literacy instruction, and a 12-week student teaching experience. Additionally, ODHE issues a vague requirement of preparation in six different Ohio school-related standards. Only one of those standards, the Ohio Standards for the Teaching Profession, even mentions correctly applying the law.
There is clearly a need for some form of legal preparation for teachers in Ohio that must take place before an individual becomes a teacher. Not only is there an ethical obligation …
Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh
Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh
Law Faculty Articles and Essays
Fourteenth Amendment substantive due process fundamental rights doctrine is about love. It is, at least, based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case in which the Supreme Court held that same-sex marriage is a fundamental right of individual autonomy and dignity.
Part I of this Article discusses the concept of love. Part II examines Justice Kennedy’s majority opinion in Obergefell and argues that it expresses unconditional love for LGBT people in tone, language, and substance. Part III argues that, in Obergefell, Kennedy’s key reasons for concluding that marriage is …
Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees
Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees
Cleveland State Law Review
Title VII cases alleging sex harassment have become almost completely deferential to employers who have anti-harassment policies. In this Note, I discuss legal and sociological influences on this development and propose using restorative justice focused mediation to avoid rendering Title VII entirely ineffective. Mediation should only be compelled as a remedy—after a court finds that harassment occurred, but that the plaintiff cannot prove her employer knew about the harassment. Instead of dismissing these cases—where judges have already found illegal discrimination—some corrective action should be imposed on the employer for its failure to maintain a harassment-free workplace. Focusing mediation on principles …
Online Sex Trafficking Hysteria: Flawed Policies, Ignored Human Rights, And Censorship, Regina A. Russo
Online Sex Trafficking Hysteria: Flawed Policies, Ignored Human Rights, And Censorship, Regina A. Russo
Cleveland State Law Review
On April 11, 2018, President Donald Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) into law. The law, passed with bipartisan support, created a new federal offense that prohibits the use or operation of websites with the intent to "promote" or "facilitate" prostitution, expanded existing liability for federal sex trafficking offenses, and amended Section 230 of the Communications Decency Act. Touted as the "most important law protecting Internet speech," section 230 provides broad protection for online intermediaries that host or republish speech. It immunizes online intermediaries from liability for the things that third-party users …
Sociolegal Research, The Law School Survey Of Student Engagement, And Studying Diversity In Judicial Clerkships, Shih-Chun Steven Chien, Ajay K. Mehrotra, Xiangnong Wang
Sociolegal Research, The Law School Survey Of Student Engagement, And Studying Diversity In Judicial Clerkships, Shih-Chun Steven Chien, Ajay K. Mehrotra, Xiangnong Wang
Law Faculty Articles and Essays
The Law School Survey of Student Engagement (LSSSE) is an extraordinary asset for examining a vast array of topics related to the educational experiences of law students. By focusing on student-oriented surveys, LSSSE provides law schools and researchers an invaluable opportunity to delve into a wide range of issues dealing with the law student experience, including the career preferences and expectations of students throughout their law school years. In particular, there remains a wealth of opportunity for scholars interested in using LSSSE data to explore issues of diversity, equity, and inclusion in legal education and the profession.
The American Bar …
Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir
Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir
Law Faculty Articles and Essays
In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.
For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …
You Play Ball Like A Girl: Cultural Implications Of The Contact Sports Exemption And Why It Needs To Be Changed, Michelle Margaret Smith
You Play Ball Like A Girl: Cultural Implications Of The Contact Sports Exemption And Why It Needs To Be Changed, Michelle Margaret Smith
Cleveland State Law Review
Women in the United States have historically earned significantly less income per year compared to their male counterparts. In 2014, the pay discrepancy was at its lowest point with women earning seventy-nine cents per every dollar men earned. This discrepancy exists even though women now attain college degrees at a higher rate than men and make up 47% of the labor force. In sports, the pay discrepancy is even greater. At the professional level, women earn as little as 1.2% of what their male counterparts earn. This Note addresses how changing the contact sports exemption in Title IX to allow …
The Heat Of Passion And Blameworthy Reasons To Be Angry, Jonathan Witmer-Rich
The Heat Of Passion And Blameworthy Reasons To Be Angry, Jonathan Witmer-Rich
Law Faculty Articles and Essays
This article seeks to resolve a longstanding conceptual puzzle plaguing the "heat of passion" doctrine--how courts should determine which features, beliefs, or characteristics of a defendant are properly relevant to assessing whether the defendant was sufficiently provoked, and which of those features should be disregarded. This article argues that provocation is not adequate if the reason the defendant became extremely angry is due to some blameworthy belief or attribute of the defendant. A belief is blameworthy if it contradicts the fundamental values of the political community. The blameworthiness principle distinguishes those aspects of the defendant that cannot form a basis …
Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski
Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski
Law Faculty Briefs and Court Documents
Title VII’s plain language bars discharge of “any individual”—whether transgender or not—“because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons—tardiness, failure to perform, disciplinary issues—or for no reason at all. Under those circumstances, such termination—even of a transgender person—would not be “because of such individual’s sex.” But that is not the case here. Here, …
Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.
Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.
Law Faculty Articles and Essays
This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …
A Trilogy Of Essays On Scholarship, David Barnhizer
A Trilogy Of Essays On Scholarship, David Barnhizer
David Barnhizer
At the beginning it is helpful to realize that the five versions of the scholarly ideal produce different forms of intellectual work with distinct goals and motivations. The scholar engaging in such activity can vary dramatically in terms of what the individual is seeking to achieve through his or her research output and actions that might be taken related to the findings reflected in that product. Similarly, there is a diverse set of targets at which the work is directed. These targets include communicating ideas and knowledge to other scholars who are invested in a specific sub-discipline. They also include …
Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.
Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.
Journal of Law and Health
On March 7, 2014, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled “Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy” in response to recent developments in the regulation of women’s reproductive rights. The discussion about women’s reproductive rights has expanded far beyond the morality of abortion and right to privacy, established by the United States Supreme Court in Roe v. Wade, and has been complicated by new technology, statutory developments, and case law discussing the nature of a corporation. The symposium presenters addressed key legal developments in each stage of …
Shifting Our Focus From Retribution To Social Justice: An Alternative Vision For The Treatment Of Pregnant Women Who Harm Their Fetuses, April L. Cherry
Shifting Our Focus From Retribution To Social Justice: An Alternative Vision For The Treatment Of Pregnant Women Who Harm Their Fetuses, April L. Cherry
Journal of Law and Health
The ways in which society responds to pregnant women whose behavior purportedly harms their fetuses can be explored from a variety of legal vantage points. This article argues that the criminal law model currently used is ineffective. The assignment of criminal liability to pregnant women is often rooted in fetal personhood and maternal deviance discourse. Criminal law solutions fail because they fail to take into account the fact that maternal behavior is often the result of a myriad of the social and economic conditions over which pregnant women have little or no control. The criminal law model, therefore, simply punishes …
Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson
Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson
Cultural Encounters, Conflicts, and Resolutions
Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.
This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …
"Because Ladies Lie": Eliminating Vestiges Of The Corroboration And Resistance Requirements From Ohio's Sexual Offenses, Patricia J. Falk
"Because Ladies Lie": Eliminating Vestiges Of The Corroboration And Resistance Requirements From Ohio's Sexual Offenses, Patricia J. Falk
Law Faculty Articles and Essays
In response to alarming statistics about the dearth of rape cases brought to successful fruition, feminist critiques of rape law, and changing attitudes about sexual autonomy, rape and sexual assault statutes in America have undergone enormous revision during the last few decades. The barriers to successful prosecution of rape cases-including the corroboration and resistance requirements-have been slowly eroding in modern statutory law. Despite rampant rape reform, these old-fashioned requirements have been remarkably persistent, and vestiges of them remain in twenty-first-century statutory enactments.
The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker
The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker
Law Faculty Articles and Essays
Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …
Circumcision Or Mutilation - Voluntary Or Forced Excision - Extricating The Ethical And Legal Issues In Female Genital Ritual, Obiajulu Nnamuchi
Circumcision Or Mutilation - Voluntary Or Forced Excision - Extricating The Ethical And Legal Issues In Female Genital Ritual, Obiajulu Nnamuchi
Journal of Law and Health
This Article consists of seven sections. Following the introduction, Part II reconstructs the debate as to whether Female Genital Ritual is a legitimate cultural practice or a human rights violation, and it sets forth the major arguments. Part III delves into, and debunks, the moral relativist argument regarding FGR. Part IV seeks to determine whether FGM is evil. A foray into the theory of evil, the section draws critical distinctions between FC and FGM and explains why the distinctions are of paramount moral importance. Part IV also concludes that FGM is evil, and thus, among the issues related to the …
Reforming The Safe Haven In Ohio: Protecting The Rights Of Mothers Through Anonymity, Brittany Neal
Reforming The Safe Haven In Ohio: Protecting The Rights Of Mothers Through Anonymity, Brittany Neal
Journal of Law and Health
This Note discusses the conflict between the statewide safe haven law and the Ohio juvenile rules regarding procedure. It purports that to protect the rights of new mothers and retain the essential element of anonymity, Ohio’s Juvenile Rule 1(C) needs to be amended to maintain the state’s current safe haven law. Therefore, because of the statewide threat Ohio courts place on Ohio’s safe haven law, Juvenile Rule 1(C) needs to explicitly provide for an additional exception in cases of child relinquishment. Section II of this Note discusses the beginning of state safe haven legislation and what the laws are attempting …
From The Bench To The Screen: The Woman Judge In Film, Laura Krugman Ray
From The Bench To The Screen: The Woman Judge In Film, Laura Krugman Ray
Cleveland State Law Review
Although there has been a dramatic increase in the number of women judges over the past half century, their cinematic counterparts have failed to reflect that change. This Article explores the paradoxical relationship between social reality and its representation on screen to identify a lingering resistance to the idea of women exercising judicial power. The Article first examines the sparse history of women judges as central characters in films of the 1930s, finding the tension in those films between judicial authority and domestic happiness. It then turns to Hollywood’s romantic comedies of the 1940s, which resolved that tension through the …
Personal Insights And Experiences Regarding The Passage Of Title Ix , Birch Bayh
Personal Insights And Experiences Regarding The Passage Of Title Ix , Birch Bayh
Cleveland State Law Review
My purpose here today is to look at some of the legislative history of Title IX, and perhaps some of the details that never made it into the Congressional Record, and also to include my personal involvement in it. I do that with some fear and trepidation because it sounds like one is puffing himself up.It is fair to ask, “How can a kid who grew up on a corn and soybean farm, raising pigs and hogs and cattle and calves, chickens, how in the world could he ever get to be a United States Senator, let alone become involved …
Worth Fighting For: Thirty-Five Years Of Title Ix Advocacy In The Courts, Congress And The Federal Agencies, Marcia D. Greenberger, Neena K. Chaudhry
Worth Fighting For: Thirty-Five Years Of Title Ix Advocacy In The Courts, Congress And The Federal Agencies, Marcia D. Greenberger, Neena K. Chaudhry
Cleveland State Law Review
This article focuses on Title IX and women's continuing struggle to secure equal opportunity on the playing fields. But athletics is not unique. Indeed, the lessons of Title IX in athletics, its importance to women and girls, and how the law has been shaped over the years by advocacy in each branch of government, apply to all the fields of endeavor that still remain only partially available to the young women of this nation. Women and girls continue to lag behind in the STEM (science, technology, engineering and math) fields, remain clustered in “traditionally female” programs such as cosmetology that …
The Detention, Confinement, And Incarceration Of Pregnant Women For The Benefit Of Fetal Health, April L. Cherry
The Detention, Confinement, And Incarceration Of Pregnant Women For The Benefit Of Fetal Health, April L. Cherry
Law Faculty Articles and Essays
Section One of this Article discusses the effect of drug policy on the detention and confinement of pregnant women. This section also outlines three types of "fetal protection measures" that result in the detention, confinement, or incarceration of pregnant women in the name of fetal health and examines the legal rationales behind these mechanisms. Section One then questions whether detention is an effective way to reach the state's articulated goal of better fetal outcomes. Section Two offers a discussion of the constitutional rights at issue. This section addresses the ways in which detention violates two essential components of women's rights: …
Title Ix: How We Got It And What A Difference It Made, Bernice Resnick Sandler
Title Ix: How We Got It And What A Difference It Made, Bernice Resnick Sandler
Cleveland State Law Review
This article is a longer version of two speeches, one given at Women Rock: Title IX Academic and Legal Conference held at Cleveland State University on March 30, 2007 sponsored by McDonald Hopkins LLC, and one given in San Francisco at an Equal Rights Advocates fundraiser on June 8, 2007. In this article, the author takes the reader through her personal journey to reach Women's Equality in a world before Title IX. Through these experiences, she has become an integral part in the creation of Title IX legislation.
Title Ix - Two For One: A Starter Kit Of The Law And A Snapshot Of Title Ix's Impact, Linda Jean Carpenter, R. Vivian Acosta
Title Ix - Two For One: A Starter Kit Of The Law And A Snapshot Of Title Ix's Impact, Linda Jean Carpenter, R. Vivian Acosta
Cleveland State Law Review
This article first examines the creation of Title IX legislation. Then the article argues that " Title IX has had a massive impact on America's sport programs. But the debate continues, and perhaps will always continue, as long as there is inadequate funding to make the achievement of equity easy; as long as powerful members of one sex view exclusive access to sport as their chromosomal birth right; as long as administrators favor one sport over providing the benefits of athletics participation to a broader proportion of the student body; as long as the cake is not cut evenly."
Title Ix As Pragmatic Feminism, Deborah L. Brake
Title Ix As Pragmatic Feminism, Deborah L. Brake
Cleveland State Law Review
This article examines Title IX as an example of a pragmatic approach to theory, and argues that pragmatic feminism is an approach that holds promise for feminists grappling with the complexity of gender oppression. Part II briefly examines pragmatism as an alternative to foundational theory and considers pragmatism's relationship to feminist legal theory. Part III explores the many forms and iterations of gender subordination in sports. Calls for a consistent, unifying theory of Title IX cannot account for the shifting nature and multiplicity of social and institutional practices that subordinate women in sports. These varied forms of subordination necessitate a …