Law Commons^™

Constitutional Memories, Jack M. Balkin

William & Mary Bill of Rights Journal

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions …

First Comes Love. Then Comes Marriage. Then Comes A Baby In A Baby Carriage: An Application Of Protective Surrogacy Laws To The Tarheel State, Justin Lo

Seattle University Law Review

Assisted Reproductive Technology (ART) and determining parentage have a common feature: each is governed by state law or the lack of such laws. This lack of statutory regulations presents significant legal challenges to gay men who wish to start a family. Because same-sex male couples seeking to become fathers through ART and surrogacy are the most likely demographic to be impacted when determining parentage, laws that influence the direction of surrogacy will undeniably facilitate whether both males will be deemed a father. To provide same-sex male couples with a pathway to parenthood, North Carolina should (1) develop robust, protective surrogacy …

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

Because Of Bostock, Noelle N. Wyman

Michigan Law Review Online

On a below-freezing January morning, Jennifer Chavez, an automobile technician, sat in a car that she was repairing to keep warm while waiting for delayed auto parts to arrive. Without intending to, she nodded off. Her employer promptly fired her for sleeping on the job. At least, that is the justification her employer gave. But Chavez had reason to believe that her coming out as transgender motivated the termination. In the months leading up to the January incident, Chavez’s supervisor had told her to “tone things down” when she talked about her gender transition. The repair-shop owner said that the …

A Podcast Of One’S Own, Leah M. Litman, Melissa Murray, Katherine Shaw

Michigan Journal of Gender & Law

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are …

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking …

Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey

Michigan Journal of Gender & Law

This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the …

Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein

Michigan Journal of Gender & Law

The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem …

Defining Fetal Life: An Establishment Clause Analysis Of Religiously Motivated Informed Consent Provisions, Justin R. Olson

Indiana Law Journal

No abstract provided.

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

The Equal Rights Amendment And The Courts, Mary C. Dunlap

Pepperdine Law Review

No abstract provided.

Tyrone Garner's Lawrence V. Texas, Marc Spindelman

Michigan Law Review

Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understanding of Lawrence v. Texas as a great civil rights victory for lesbian and gay rights, this Review offers an alternative perspective on the case. Built from facts about the background of the case that the book supplies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for …

Newport News Shipbuilding & Dry Dock Company V. Eeoc: Expanding The Scope Of Title Vii , Mark D. Klein

Pepperdine Law Review

Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 prohibits sex discrimination on the basis of pregnancy. In Newport News Shipbuilding and Dry Dock Co. v. EEOC, the United States Supreme Court extended the scope of the Act to include not only female employees, but also female dependents of male employees. The author examines the Supreme Court's analysis of and the legislative intent behind the Pregnancy Discrimination Act and explores the future impact of the decision.

Reinforcement Of Middle Level Review Regarding Gender Classifications: Mississippi University For Women V. Hogan , Mary Ellen Shull

Pepperdine Law Review

In Mississippi University for Women v. Hogan, the United States Supreme Court was presented with an equal protection challenge initiated by a male who was denied admission to a state-supported all-female school of nursing. After a review of relevant decisions in this area, the author examines the Supreme Court's intermediate level of scrutiny analysis and argues that application of a higher level of scrutiny to gender-based classifications is a prerequisite to true equality between the sexes.

The Scarlet Letter: The Supreme Court And The Language Of Abortion Stigma, Paula Abrams

Michigan Journal of Gender & Law

Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the …

Baring Inequality: Revisiting The Legalization Debate Through The Lens Of Strippers' Rights, Sheerine Alemzadeh

Michigan Journal of Gender & Law

The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Terry Morehead Dworkin, Aarti Ramaswami, Cindy A. Schipani

Michigan Journal of Gender & Law

The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of …

Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen

Michigan Journal of Gender & Law

In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker

Michigan Journal of Gender & Law

If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …

Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie

Michigan Journal of Gender & Law

From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon

Michigan Journal of Gender & Law

Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …

Past As Prologue: Old And New Feminisms, Martha Chamallas

Michigan Journal of Gender & Law

Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of …

Rethinking Consent In A Big Love Way, Cheryl Hanna

Michigan Journal of Gender & Law

This Article is based on a presentation at the Michigan Journal of Gender and Law as part of their symposium "Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory." In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Finding The Sex In Sexual Harassment: How Title Vii And Tort Schemes Miss The Point Of Same-Sex Hostile Environment Harassment, Yvonne Zylan

University of Michigan Journal of Law Reform

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same …

Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell

Michigan Journal of Gender & Law

This Article analyzes how newspapers described and characterized the civil rights provision over the past decade and shaped the public discourse about the law. The author examines how lower federal courts, and eventually the Supreme Court, categorized the VAWA remedy when deciding whether Congress had acted within its commerce powers. After considering why there may have been resistance in the press and in the courts to VAWA's categorization of violence against women as a civil rights issue, the author concludes by examining the remedies that have been introduced at the state and local level for victims of gender-motivated violence, and …