Law Commons^™

Human Rights Legislation In The Arab World: The Case Of Human Trafficking, Mohamed Y. Mattar

Michigan Journal of International Law

In the Arab World, human rights legislation has not always enhanced human rights. In fact, many national laws have been adopted that restrict human rights. Some countries' laws regulating nongovernmental organizations (NGOs) do not allow NGOs to receive funding from foreign entities. Media laws impose various limitations on the press. Jordan is the only Arab nation to enforce a comprehensive law on combating violence against women. Jordan is also the only country that has a law on access to information. Despite these gaps in human rights legislation, many Arab countries have passed comprehensive laws to combat human trafficking since the …

Prohibiting Sex Purchasing And Ending Trafficking: The Swedish Prostitution Law, Max Waltman

Michigan Journal of International Law

At the symposium on "Successes and Failures in International Human Trafficking Law" at the University of Michigan Law School in February 2011, I addressed the topic of international sex trafficking law, particularly the Swedish law that prohibits the purchase of sex while simultaneously decriminalizing the prostituted person. Being asked to address trafficking, I was surprised by the name given to my panel: "Kidnapped at Home, Sold Abroad: Sex Trafficking in the International Community." This surprise was owing to the fact that in the most current international instrument defining trafficking, the United Nation's so-called Palermo Protocol, nowhere is the term "kidnapping" …

A Short History Of Sex And Citizenship: The Historians' Amicus Brief In Flores-Villar V. United States, Kristin Collins

Faculty Scholarship

The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last …

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Michigan Law Review

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage-equality victories in a few states suggest that the law is …

Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, Cyra Akila Choudhury

Michigan Journal of International Law

In our popular culture and social consciousness, women are no longer the second-class citizens they used to be. Magazines, television advertisements, and billboards featuring women show us how we have achieved independence, wealth, desirability, and our intelligence. We are no longer the supporting role in movies and entertainment but stars in our own right. For this, we can thank both changing society and the unrelenting work of many women who refused to bring the coffee for the boss. The women's movement in the United States has made large gains for women through the use of social activism and legal action. …

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 …

The Failure Of Consent: Re-Conceptualizing Rape As Sexual Abuse Of Power, Michal Buchhandler-Raphael

Michigan Journal of Gender & Law

This Article argues that while rape law reform has accomplished significant changes in the past decades, the reform has since stalled. The contemporary focus on the element of consent might account for this stagnation. This move has both failed to effect instrumental change in the courts as well as in social norms, and is conceptually flawed and normatively misguided. The practical result of these deficiencies is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. While rape law typically criminalizes only the physically violent sexual …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ni Aolain

Michigan Journal of Gender & Law

The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from the devastating consequences of humanitarian emergencies. There is also recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are overrepresented in the refugee and internally displaced communities that typically result from many humanitarian crises. Women bear acute care responsibilities in most societies and also disproportionately bear familial and communal care responsibilities in communities …

Successes And Failures In International Human Trafficking Law, Luis Cdebaca

Michigan Journal of International Law

Professor Carr yesterday remarked that human trafficking is too often discussed only in theoretical or academic ways. I've spent most of my career in the field, where interactions with victims, traffickers, and defense attorneys are anything but theoretical. But as keynote speaker for an academic symposium this morning, I'm going to try to lay out a bit of the conceptual state of play from my current vantage point. The title of this symposium, "Successes and Failures in International Human Trafficking Law," is a bit binary. Perhaps, in the best diplomatic tradition, we can temper that to "Limitations and Opportunities in …

Widening Our Lens: Incorporating Essential Perspectives In The Fight Against Human Trafficking, Jonathan Todres

Michigan Journal of International Law

In 2000, the international community formally launched the modern movement to combat human trafficking with the United Nations' adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol). With the Trafficking Protocol, the international community created a new cornerstone upon which to build a global initiative to combat this modem form of slavery. As the first major international treaty on human trafficking in half a century, the Trafficking Protocol represented a significant step forward. One hundred forty-seven countries are now party to the …

Traveling Concepts: Substantive Equality On The Road, Susanne Baer

Articles

Ideas travel. Even legal concepts migrate on the globe. However, it is a contested issue whether migration is a good idea. We may enjoy traveling ourselves, but many people in the world of law are somewhat worried if we take legal baggage along. Some claim that legal baggage never arrives at its destination and challenge the very possibility of what some call a legal transplant. Others claim that we already live in transnational legal contexts, while still others claim that migration occurs, and that modifies each legal concept on the road in rather significant ways, which may render the project …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Welcoming Women: Recent Changes In U.S. Asylum Law, Jillian Blake

Michigan Law Review First Impressions

The Statue of Liberty, which has been called the "Mother of Exiles," stands as a reminder of one of the foundational ideals of U.S. immigration policy-providing refuge to the vulnerable. Women worldwide have new reason to believe in this promise, because victims of domestic violence may now have a better chance of being granted asylum in a U.S. immigration court.

Setting The Stage: A Quick Glance Back At The Journal's History, Julia L. Ernst

Michigan Journal of Gender & Law

This symposium, organized by the Michigan Journal of Gender & Law, explored several cutting-edge topics related to its over-arching theme, "Rhetoric & Relevance: An Investigation into the Present and Future of Feminist Legal Theory." When the journal editors invited me to provide a few opening remarks, they informed me that: the goal of this symposium is to have a series of discussions about current happenings in the field of feminist legal scholarship, so that we may start to answer the question, "What's next?" These discussions will take place in the form of panels that focus on particular areas of the …

Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald

Michigan Journal of Gender & Law

A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.

Beyond The Binary: What Can Feminists Learn From Intersex Transgender Jurisprudence, Julie Greenberg, Marybeth Herald, Mark Strasser

Michigan Journal of Gender & Law

Our panel will be discussing recent developments in the intersex and transsexual communities. The transsexual community began to organize in the 1970s, but did not fully develop into a vibrant movement until the 1990s. The intersex movement was born in the mid-1990s and has rapidly developed a strong and influential voice. Recently, both movements have undergone profound changes and each has provided new and unique theoretical perspectives that can potentially benefit other social justice groups. The purpose of our dialogue today is to describe these developments and explore how feminists could potentially benefit from the theoretical frameworks that are being …

Defining Sex: On Marriage, Family, And Good Public Policy, Mark Strasser

Michigan Journal of Gender & Law

Transgendered individuals and their families face legal risks that most families do not, at least in part, because state laws are often unclear about whether or under what conditions transgendered individuals are permitted to marry the individuals whom they love. Challenges to the validity of marriages involving the transgendered may arise under a variety of circumstances, ranging from cases in which individuals may have hidden or may not even have known that they were transgendered until after their marriages, to cases in which the individuals had already transitioned and had explained their personal histories to their partners before they were …

Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy

Michigan Journal of Gender & Law

Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis …

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.

Go West Young Woman!: The Mercer Girls And Legal Historiography, Kristin Collins

Faculty Scholarship

This essay is a response to Professor Kerry Abrams’s article The Hidden Dimension of Nineteenth-Century Immigration Law, published in Vanderbilt Law Review. The Hidden Dimension tells the story of Washington Territory’s entrepreneurial Asa Shinn Mercer, who endeavored to bring hundreds of young women from the East Coast to the tiny frontier town of Seattle as prospective brides for white men who had settled there. Abrams locates the story of the Mercer Girls, as they were called, in the history of American immigration law. My response locates The Hidden Dimension in American legal historiography, both that branch of American legal historiography …

Can Equality Survive Exceptions?, Daphne Barak-Erez

Michigan Law Review First Impressions

The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm?

Passions We Like… And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Michigan Journal of Gender & Law

This Article proceeds as follows. In Part II, the author catalogs the history of anti-gay hate crime laws in the United States, describing the rapid spread of state-level laws extending race- and religion-based hate crime laws to LGB people. The Article also provides an overview of federal legislation addressing anti-gay hate crime. In Part III, it examines the policy environment within which anti-gay hate crime laws have been, and continue to be, considered. Specifically, the jurisprudential frameworks that shape, define, and constrain discourses of equality, rights, and social identity are analyzed. The argument is made that the policy environment of …

The Gay Agenda, Libby Adler

Michigan Journal of Gender & Law

This Article is designed to illuminate options that the author believes have been difficult for advocates of gay rights to imagine due to an incessant culture war and the hard work of anti-gay forces that have kept pro-gay advocates under persistent fire. The culture war, this paper argues, while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run.

Men And Women Of The Bar: The Impact Of Gender On Legal Careers, Kenneth G. Dau-Schmidt, Marc S. Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull

Michigan Journal of Gender & Law

In the last three and a half decades, the legal profession has undergone a dramatic transformation in the gender composition of its members. During that time, the number of women applying to law school and entering the profession has gone from a few gallant pioneers to roughly equal representation with that of men. Between 1970 and 2000, the proportion of first-year law students who were female climbed from 8% to 49%. Because the existing bar consisted primarily of male lawyers, the percent of women in the legal profession changed more slowly, but still rose dramatically. Women, as a percent of …

Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris

Michigan Journal of Gender & Law

This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment …

Of Sexual Bondage: The 'Legitimate Penological Interest' In Restricting Sexual Expression In Women's Prisons, Joanna E. Saul

Michigan Journal of Gender & Law

Despite its prevalence, sexual expression among inmates is currently prohibited in United States prisons. Recent scholarship, however, has advocated allowing certain types of sexual expression in women's prisons. The advocates of such a position differentiate between different types of sex within the correctional system: sexual expression that the system has no interest in prohibiting and should not bar, and sex acts that the system does have an interest in prohibiting and should continue to regulate. This position is based on the dual assumptions that, first, women in prison as a collective unit would benefit from some types of sexual expression, …

Student Gladiators And Sexual Assault: A New Analysis Of Liability For Injuries Inflicted By College Athletes, Ann Scales

Michigan Journal of Gender & Law

This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; …

Competences Of The "Union" And Sex Equality: A Comparative Look At The European Union And The United States, Barbara Havelková

Michigan Law Review First Impressions

The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers ("competences" in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.