Law Commons^™

A Noble Cause: A Case Study Of Discrimination, Symbols, And Reciprocity, In: Diversity And European Human Rights, Yofi Tirosh

Yofi Tirosh

This chapter is part of a volume dedicated to rewriting human rights cases issued by the European Court of Human Rights. It uses the case of De La Cierva Osorio De Moscoso v. Spain (1999) as a platform to discuss the inherent tension typifying signs such as nobility titles – as merely symbolic or as carrying substantive content. The problem of one’s ownership of signs is especially acute in the case of women. I will argue that the distinction between form and substance collapses in this case, as in many other cases that involve allocation of allegedly merely symbolic signifiers …

The Limits Of Debate Or What We Talk About When We Talk About Gender Imbalance On The Bench, Keith Bybee

Keith J. Bybee

What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And Bankruptcy Of The “Nature-Nurture” Debate, 21 Tex. J. Women & L. 187 (2012))., Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature: and the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what kind of thing a “nature” …

Of Coyotes, Cooperation, And Capital: Social Capital And Women’S Migration At The Margins Of The State, Anna O. Oleary

Anna Ochoa OLeary

Examined here are some of the tenets of social capital in the context of the migrants’ crossing the U.S.-Mexico border without official authorization. Using this context helps identify how social capital development is weakened by the structural and gendered dimensions of migration, contributing to the rise in undocumented border crosser deaths since 1993.

Mixed Immigration Status Households In The Context Of Arizona’S Anti-Immigrant Policies, Anna O. Oleary, Azucena Sanchez

Anna Ochoa OLeary

Although the seeds of legislated restrictions for immigrants can be traced to 1986 with California’s unsuccessful Prop 187, more recent trends epitomized by Arizona’s proposed Senate Bill 1070, signed by that state’s governor in April, 2010, have renewed concerns about the effects that such measures will have on the life and livelihood of communities that include immigrants present in the country without official authorization (“undocumented immigrants”). In this paper we use some of the results of a binational study of reproductive health care strategies to show how emerging anti-immigrant policies neglect how such policies impact mixed immigration status households, a …

Factores Que Determinan La Participación De Las Mujeres Inmigrantes En Actividades Por Cuenta Propia. Una Revisión Bibliográfica, Erika C. Montoya, Blas Valenzuela, Anna O. Oleary

Anna Ochoa OLeary

En este trabajo analizamos perspectivas teóricas que no ayudan a entender la participación de las mujeres inmigrantes en la creación de autoempleo, con el fin de lograr dos objetivos: primero, determinar los factores que llevan a las mujeres inmigrantes indocumentadas a convertirse en trabajadoras por cuenta propia, y Segundo, puntualizar las condiciones específicas de género que coadyuvan a enfocarse en estas actividades.

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie A. Failinger

Marie A. Failinger

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

Mujeres En El Cruce: Entre La Separación Y Reunificación Familiar En Epoca De (In)Seguridad, Anna O. Oleary

Anna Ochoa OLeary

De los problemas que confrontan mujeres emigrantes, el abandono en el desierto es la mas desconocida hasta últimamente. Este problema señala una relación fuerte entre la aplicación de las leyes migratorias y las presiones económicas que mujeres de comunidades los lazos familiares trasnacionales. Las narrativas de mujeres inmigrantes demuestran que al reconciliar las tendencias opuestas de reunificación y separación familiar, el tránsito migratorio se fortalece.

Judging Women, Stephen J. Choi, G. Mitu Gulati, Mirya R. Holman, Eric A. Posner

Mirya R Holman

Judge Sonia Sotomayor’s assertion that female judges might be better than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. For many of our tests, we fail to find significant gender effects on judicial performance. Where we do find significant gender effects for …

Gender And Regime Politics In U.S. Cities, Mirya R. Holman

Mirya R Holman

The scholarship on urban politics often focuses on the political economy provided by regimes, or long-term coalitions between local politicians and private actors like the business community. Notably absent from the regime scholarship is any substantial investigation of the role that urban regimes play in the promotion of the interests of women living in urban areas. A comparison of the priorities of urban regimes with the interests of women in politics suggests substantial conflicts. The implications for women serving in urban governance are explored, as are the consequences for urban politics, women in politics, and democracy.

Evaluating Political And Environmental Behavior In The Face Of A Green Crisis: An Experimental Analysis, Mirya R. Holman, Travis G. Coan

Mirya R Holman

Incidents such as the Japanese Nuclear Meltdowns and the British Petroleum oil spill in the Gulf of Mexico remind us that environmental issues can be central to activating political activity and influencing political opinions. While the literature suggesting a relationship between environmental risk and action is extensive, few scholars directly examine the relationship between perceived environmental threat and political behavior, and even fewer adopt research designs appropriate for making causal inferences. Building on a growing literature in political psychology that examines the effects of crises and emotions on political opinions, we examine the relationship between environmental threat and political behavior …

Gender And Power In American Cities: Investigations Of The Effect Of Mayoral Gender On Deliberation, Representation, And Policymaking In U.S. Cities, Mirya R. Holman

Mirya R Holman

The representation of historically marginalized groups in the democratic policy process serves many purposes, including introducing new and differing perspectives to the policymaking process, opening the policymaking process up to disenfranchised groups, and changing the deliberative process of urban policymaking. In this paper, I investigate the effect of gender on policy priorities and policy outcomes of mayors in U.S. cities. Using a combination of interview data and coded city council minutes, I examine the effect of mayoral gender on the discussion of issues of importance to female constituents, the nature of deliberation in city councils, and the engagement of the …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical Malpractice Claims In Florida, Mirya R. Holman, Neil Vidmar

Mirya R Holman

The public image of medical malpractice cases is one of a courtroom, with an injured plaintiff, lawyers, and a judge. However, the reality of malpractice claims is very different. Approaching the study of alternative dispute resolution methods for medical malpractice claims with an eye towards identifying those contexts by which the claims are resolved, this article focuses on the institutional and informal processes of resolving disputes. These processes include both statutory procedural requirements and informal settlements, many of which occur prior to the filing of a lawsuit. A profile of medical malpractice claims in Florida from 1990 through 2008, indicates …

Mujeres En El Cruce: Remapping Border Security Through Migrant Mobility, Anna O. Oleary

Anna Ochoa OLeary

In this article I discuss some of the findings of my study of the encounter between female migrants and immigration enforcement authorities along the U.S.-Mexico border. An objective of the research was to ascertain a more accurate picture of women temporarily suspended in the “intersection” of diametrically opposed processes, immigration enforcement and transnational mobility. Of the many issues that have emerged from this research, family separation is most palpable. This suggests a deeply entrenched economic relationship between family separation and measures to better secure the U.S.-Mexico border. Indeed, women’s accounts of crossing into the U.S. without authorization, as one of …

The Abcs Of Unauthorized Border Crossing Costs: Assembling, Bajadores, And Coyotes, Anna O. Oleary

Anna Ochoa OLeary

In efforts to avoid detection by border enforcement agents, undocumented migrants from Latin America often risk life and limb to enter the U.S. Most commonly, they walk two to four days through an inhospitable desert in hopes of being picked up and whisked away to their final destination. Cost in human lives not withstanding, the price of this venture correlates to increased border enforcement. Interviews with repatriated migrant women on the border helps uncover this economic “underbelly” of transnational movement in what I dub the ABCs of migration costs: those related to assembling, bajadores (border bandits), and coyotes.

Clitoridectomy And The Economics Of Islamic Marriage And Divorce Law - Ryan M Riegg - 2009, Ryan M. Riegg

Ryan M. Riegg

No abstract provided.

Diabolical Frivolity Of Neoliberal Fundamentalism, Sefik Tatlic

Sefik Tatlic

Today, we cannot talk just about plain control, but we must talk about the nature of the interaction of the one who is being controlled and the one who controls, an interaction where the one that is “controlled” is asking for more control over himself/herself while expecting to be compensated by a surplus of freedom to satisfy trivial needs and wishes. Such a liberty for the fulfillment of trivial needs is being declared as freedom. But this implies as well the freedom to choose not to be engaged in any kind of socially sensible or politically articulated struggle.

Gender Matters: Making The Case For Trans Inclusion, Nancy J. Knauer

Nancy J. Knauer

The transgender communities are producing an important and nuanced critique of our gender system. For community members, the project is self-constitutive and, therefore, has an immediacy that also marks the efforts of other marginalized groups who have attempted to make sense of the world through description, interrogation, and, ultimately, a program for transformation. The transgender project also has universalizing elements because, existing within the gender system, each one of us embodies a particular gender articulation. It is through this articulation that we define ourselves in relation to the gender we were assigned at birth, the gender we choose, the gender …

International Trade In The San Bernardino Region: Transportation, Trends, And Employment, Mirya R. Holman, Travis Coan

Mirya R Holman

International trade presents significant employment, growth, and revenue opportunities for the San Bernardino region, which encompasses San Bernardino County and several cities in Riverside County and is located to the immediate east of Los Angeles County. Proximity to the San Pedro Bay Port complex (which includes the Ports of Los Angeles and Long Beach) and access to a transportation and logistics network expanding out across the U.S., makes the San Bernardino region a prime location for companies participating in international trade activity. The purpose of this report is to quantify trade activity in the region, while also estimating the employment …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

Nancy J. Knauer

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Science, Identity, And The Construction Of The Gay Political Narrative, Nancy J. Knauer

Nancy J. Knauer

This Article contends that the current debate over gay civil rights is, at base, a dispute over the nature of same-sex desire. Pro-gay forces advocate an ethnic or identity model of homosexuality based on the conviction that sexual orientation is an immutable, unchosen, and benign characteristic. The assertion that, in essence, gays are "born that way," has produced a gay political narrative that rests on claims of shared identity (i.e., homosexuals are a blameless minority) and arguments of equivalence (i.e., as a blameless minority, homosexuals deserve equal treatment and protection against discrimination). The pro-family counter-narrative is based on a behavioral …

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …

Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer

Nancy J. Knauer

In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status. This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a …