Legal History Commons^™

Silencing And Surveillance: The Struggle Of Same-Sex Desire In The Shadow Of The 20th-Century Police State, Ethan Dunn

Honors Theses

This paper investigates the intersection of social perceptions of vice and gender norms in shaping the policing of sexual orientation and sexuality during the turn of the twentieth century. Employing a legal analysis rooted in the law and society movement and critical legal studies, this study examines how social anxieties surrounding vice and vice crimes prompted swift legislative measures at both federal and state levels, resulting in statutes characterized by broad language that granted extensive discretion to law enforcement officials and judges. The emergence of morals and vice police squads further intensified the targeting of individuals who deviated from prevailing …

Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law (June 2019), Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

The First Queer Right, Scott Skinner-Thompson

Publications

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would …

Intersectionality And The Constitution Of Family Status, Serena Mayeri

All Faculty Scholarship

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey

Research Data

These 19 comparative data tables relating to state and local certification standards for batterer intervention programs (BIPs), as of 2015, are electronic Appendices B-T to Carolyn B. Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn. St. L. Rev. 337 (2015), available at http://scholar.law.colorado.edu/articles/56/. Appendix A is not reproduced here because it simply contains citations to the state and local standards, but it is published with the journal article.

South African Marriage In Policy And Practice: A Dynamic Story, Michael W. Yarbrough

Publications and Research

Law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two foundational institutions are still poorly understood. This article attempts to help bridge this gap by applying sociolegal concepts to empirical findings about state law's role in family, and especially in marriage, drawn from across several decades and disciplines of South Africanist scholarly research. I sketch the broad outlines of a nuanced theoretical approach for analysing the law-family relationship, which insists that the relationship entails a contingent and dynamic interplay between relatively powerful regulating institutions and relatively powerless regulated populations. …

Something Old, Something New: Reflections On The Sex Bureaucracy, Melissa Murray, Karen M. Tani

All Faculty Scholarship

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected …

Marriage Equality And Marital Supremacy, Serena Mayeri

All Faculty Scholarship

No abstract provided.

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

All Faculty Scholarship

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey

Publications

Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Hearing Voices: Non-Party Stories In Abortion And Gay Rights Advocacy, Linda H. Edwards

Scholarly Works

During the twelve years after Roe v. Wade, the Supreme Court considered a number of abortion issues, but Thornburgh v. American College of Obstetricians & Gynecologists was the first case to raise a direct call for Roe’s demise. The issues galvanized interests on all sides. Among the welter of amicus briefs was a remarkable brief destined to create a new, controversial, and potentially powerful form of appellate advocacy. Primarily authored by Lynn M. Paltrow, the brief was submitted on behalf of the National Abortion Rights Action League (NARAL). Like a Brandeis Brief, the NARAL brief relies on sources outside …

Intersectionality And Title Vii: A Brief (Pre-)History, Serena Mayeri

All Faculty Scholarship

Title VII was twenty-five years old when Kimberlé Crenshaw published her path-breaking article introducing “intersectionality” to critical legal scholarship. By the time the Civil Rights Act of 1964 reached its thirtieth birthday, the intersectionality critique had come of age, generating a sophisticated subfield and producing many articles that remain classics in the field of anti-discrimination law and beyond. Employment discrimination law was not the only target of intersectionality critics, but Title VII’s failure to capture and ameliorate the particular experiences of women of color loomed large in this early legal literature. Courts proved especially reluctant to recognize multi-dimensional discrimination against …

When Harvard Said No To Eugenics: The J. Ewing Mears Bequest, 1927, Paul A. Lombardo

Faculty Publications By Year

James Ewing Mears (1838-1919) was a founding member of the Philadelphia Academy of Surgery. His 1910 book, The Problem of Race Betterment, laid the groundwork for later authors to explore the uses of surgical sterilization as a eugenic measure. Mears left $60,000 in his will to Harvard University to support the teaching of eugenics. Although numerous eugenic activists were on the Harvard faculty, and who of its Presidents were also associated with the eugenics movement, Harvard refused the Mears gift. The bequest was eventually awarded to Jefferson Medical College in Philadelphia. This article explains why Harvard turned its back …

Save Our Children: Overcoming The Narrative That Gays And Lesbians Are Harmful To Children, 21 Duke J. Gender L. & Pol'y 125 (2013), Anthony Niedwiecki

UIC Law Open Access Faculty Scholarship

This paper focuses on how gay rights activists had no real choice but to use the court system to advance marriage rights for same-sex couples because they were unable to use the political process to effectively rebut the claim that gays and lesbians were harmful to children. Part I begins with an overview of the ways in which the initiative process has been used to limit gay rights and prevent marriage equality. It then details how, in contrast to the political process, courts have been more receptive to advancing marriage rights for same-sex couples. Part II details Walter Fisher's narrative …

Unprotected Sex: The Pregnancy Discrimination Act At 35, Deborah L. Brake, Joanna L. Grossman

Articles

Thirty-five years ago, Congress passed the Pregnancy Discrimination Act to overturn a Supreme Court decision refusing to recognize pregnancy discrimination as a form of discrimination based on sex. Now, three and a half decades later, women whose work lives are impacted by pregnancy are again finding themselves unprotected from discrimination. Lower court rulings have eviscerated the Act’s protections at the same time that an expansion of worker rights under the Americans with Disabilities Act should redound to the benefit of pregnant women by expanding the pool of comparators who receive accommodations. By following trends in discrimination law generally - equating …

Pauli Murray And The Twentieth-Century Quest For Legal And Social Equality, Serena Mayeri

All Faculty Scholarship

No abstract provided.

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

The Third Wave's Break From Feminism, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a "third wave" of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident "second wave" of 1970's feminism. Goodbye frumpy sandals; hello sexy fishnets, according to third-wave feminism. Initially young women themselves (and now writers and scholars) embraced a pervasive wave metaphor to convey the belief that differences within feminism are generational. Youth crashes against (and ultimately overtakes) its elders. But rifts within feminism cannot be so neatly explained. The story is more …

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I …

Critical Tax Theory: An Introduction, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Our book Critical Tax Theory: An Introduction (Cambridge University Press 2009) highlights and explains the major themes and methodologies of a group of scholars who challenge the traditional claim that tax law is neutral and unbiased. The contributors to this volume include pioneers in the field of critical tax theory, as well as key thinkers who have sustained and expanded the investigation into why the tax laws are the way they are and what impact tax laws have on historically disempowered groups. This volume will provide an accessible introduction to this new and growing body of scholarship. It will be …

Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth

Publications

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Tax As Urban Legend, Anthony C. Infanti

Articles

In this essay, I review UC-Berkeley history professor Robin Einhorn's book, American Taxation, American Slavery. In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and colonial taxation, …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …

Race And Gender In The Law Review, Cynthia Grant Bowman, Dorothy E. Roberts, Leonard S. Rubinowitz

All Faculty Scholarship

No abstract provided.

The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri

All Faculty Scholarship

This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …

Screening Historical Sexualities: A Roundtable On Sodomy, South Africa, And Proteus, Noa Ben-Asher, R. Bruce Brasell, Daniel Garrett, John Greyson, Jack Lewis, Susan Newton-King

Faculty Publications

(Excerpt)

Proteus (2003; 100 min., Canada and South Africa) is a low-budget feature film, directed by John Greyson (Toronto) and Jack Lewis (Cape Town), that made the international rounds of “art cinema” and queer festivals in 2003 and 2004, with limited theatrical release in New York, Toronto, and other cities. The film advances Greyson’s and Lewis’s experiments with political essay-narrative forms both in their respective documentary, experimental, and dramatic videos dating back to the early 1980s (including Lewis’s Apostles of Civilized Vice [1999]) and in Greyson’s theatrical feature films beginning with Urinal in 1988. Based on an early-eighteenth-century court record, …