Law Commons^™

Privileged But Equal? A Comparison Of U.S. And Israeli Notions Of Sex Equality In Employment Law, Leora F. Eisenstadt

Vanderbilt Journal of Transnational Law

Ever-expanding media coverage, scholarship, and popular publications discussing the difficulty of combining work and family suggest that this issue is now the essential locus for gender debate in the United States. The essence of the debate is the meaning of equality: whether it carries the same meaning for women and men, whether biological and sociological differences should impact the understanding of equality, and whether law and social policy should reflect or encourage these differences. Privileged but Equal details the theory of sex equality that is embodied in Israeli employment law and contrasts it with the U.S. approach. The Article suggests …

Sheldon Kennedy And A Canadian Tragedy Revisited, M. B. Preston

Vanderbilt Journal of Transnational Law

National Hockey League player Sheldon Kennedy's 1997 revelation that his award-winning junior hockey coach had molested him for years created a national outcry in Canada. It resulted in the appointment of a special commission and declarations from the United States and Canada that this must never happen again. However, Kennedy was not alone; child sexual exploitation occurs at the hands of youth coaches across geographic and class boundaries and across individual and team sports.

Youth sports organizations, including schools, have approached the human and legal issues presented by child sexual exploitation in numerous ways. This Note analyzes the differences between--and …

Sex Discrimination In The Labor Market, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper examines sources of gender pay disparity and the factors that contribute to this pay gap. Many researchers question the role of discrimination and instead attribute the residual pay gap to gender differences in preferences. The main issue considered in this paper is whether gender differences in choices, especially with respect to the family and household, are indeed responsible for the gender pay gap, or whether discrimination plays a role. On balance, the evidence indicates that sex discrimination remains a possible explanation of the unexplained gender pay gap. This is consistent with the continuing high profile sex discrimination litigation …

Porn In Their Words: Female Leaders In The Adult Entertainment Industry Address Free Speech, Censorship, Feminism, Culture And The Mainstreaming Of Adult Content, Clay Calvert, Robert D. Richards

Vanderbilt Journal of Entertainment & Technology Law

Part I provides brief biographical information about each of the five women interviewed for this article. Part II then describes the interview and editing processes used by the authors, including details about when and where the interviews took place and the transcription process of the tapes used to record them. Next, Part III--the heart of the article--sets forth the views, opinions and comments of each of the five women, divided into three theme-based sections: 1) free speech and censorship of sexual content; 2) feminism and victimization; and 3) mainstreaming of adult entertainment and shifts of cultural mores. Finally, Part IV …

From No Means No To Only Yes Means Yes: The Rational Results Of An Affirmative Consent Standard In Rape Law, Nicholas J. Little

Vanderbilt Law Review

2003 saw the arrest of the star basketball player Kobe Bryant on charges of forcing a woman to have sex with him, charges that were dropped in 2004. This arrest is perhaps the most prominent in what has become a sordid procession of public shame: the charging of professional athletes with crimes of sexual assault. As is common in rape charges, neither party denies that the sex took place. Instead the argument is based on whether the woman consented to it. In the apology Bryant issued that led to the dismissal of the charges, he admits that "[a]lthough I truly …

Towards An Establishment Theory Of Gay Personhood, Jeffrey A. Kershaw

Vanderbilt Law Review

Homosexuality refers to relations between men or between women who experience an exclusive or predominant sexual attraction toward persons of the same sex. It has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that "homosexual acts are intrinsically disordered." They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can …

Examining South Africa's National Rape Crisis And Its Legislative Attempt To Protect Its Most Vulnerable Citizens, Ashley J. Moore

Vanderbilt Journal of Transnational Law

With the demise of apartheid, South Africans eagerly anticipated the freedom from bondage that liberation brings. More than ten years later, however, remnants of the inhumane system still remain throughout South Africa, with the epidemic rape crisis that currently grips the African nation providing dramatic evidence of the continued hold of apartheid. Scores of South Africa's women and young children must contend with the pervasive sexual violence that permeates the country. These would-be victims live in constant fear of physical attack, while advocates await the South African government's response to this national crisis. Unfortunately, legislation that would dramatically change South …

Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that …

Reacting To Ashcroft V. Free Speech Coalition And The Burial Of The Cppa: An Argument To Regulate Digital Child Pornography Because It Incites Imminent Lawless Action, Justin Leach

Vanderbilt Journal of Entertainment & Technology Law

Part I discusses the nature and origin of digital child pornography and how child pornography has traditionally fit into First Amendment analysis. Part II discusses Congress' reaction to digital innovations in child pornography by passing the Child Pornography Prevention Act and, Part II further explains the federal appellate courts' treatment of the CPPA. Part III discusses the history and arguments made for each side in Ashcroft v. Free Speech Coalition. Part IV discusses the legal and constitutional analysis of the Supreme Court in striking down the regulations that banned digital child pornography. Finally, Part V makes an additional constitutional argument, …

Planning For The Future: Using Child Support Trusts To Prepare Both Father And Child For Life After Professional Sports, Thomas C. Quinlen

Vanderbilt Journal of Entertainment & Technology Law

The issue of professional athletes siring children out of wedlock was first thrust into the national conscience in an article in Sports Illustrated in May 1998. The SI piece was followed by several newspaper articles in various cities around the country, but like most hot news topics, it was quickly forgotten as the nation moved on to more pressing issues. This Note aims to revisit this issue with an eye towards practical and legal resolution of this pervasive problem, suggesting ways that lawyers and agents can establish child support trusts to represent their clients' interests and provide the best result …

Democracy, Kulturkampf, And The Apartheid Of The Closet, William N. Eskridge, Jr.

Vanderbilt Law Review

In the generation after World War 2 (1945-69), homosexual intimacy was a serious crime in Colorado and other states, as was any kind of "lewdness" or homosexual solicitation; people suspected of being homosexual were routinely dismissed from federal, state, and private employment.' In the generation after Stonewall (1969-97), Colorado's legislature repealed the state's consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation. The cities of Aspen, Boulder, and Denver enacted ordinances prohibiting private sexual orientation discrimination in housing, employment, education, public accommodations, and health and welfare services. In 1992, the …

The Economics Of Home Production, Joni Hersch

Vanderbilt Law School Faculty Publications

The composition of the labor force has changed dramatically since 1960. In 1960, only one-third of the labor force participants were female. However, since the 1960s, the labor force rates of men have declined, from 83.3% to 75% as of 1995, while the participation rate for women has surged, from 37.7% in 1960 to 58.9% in 1995.1 The combination of rising labor force participation rates for women and falling rates for men has resulted in a work force that is approaching equal representation of each gender. However, the picture at home indicates a far greater gender stratification of work than …

Sex In The Sunlight: The Effectiveness, Efficiency, Constitutionality, And Advisability Of Publishing Names And Pictures Of Prostitutes' Patrons, Courtney G. Persons

Vanderbilt Law Review

An interstate billboard warns visitors to La Mesa, California: "Attention johns: We take pictures." In 1994, to widespread political accolades, the city initiated a policy of publishing names and pictures of prostitutes' patrons in local newspapers. La Mesa is not alone. If nightmares about the revelation of the contents of Heidi Fleiss's little black book sent shivers down the spines of Hollywood's rich and fa- mous, the tremors have traveled through La Mesa and sent similar shudders across the nation. The anonymous sex once so sought-after for its secrecy has been slapped up on billboards as communities, desperate to disinfect …

Rape, Race, And Representation: The Power Of Discourse, Discourses Of Power, And The Reconstruction Of Heterosexuality, Elizabeth M. Iglesias

Vanderbilt Law Review

This Article explores some of the difficulties involved in designing genuinely effective and broadly inclusive legal strategies for eliminating women's sexual oppression. Part II.A begins the analysis by using Gary LaFree's empirical studies of rape enforcement practices to develop some observations about the kinds of legal strategies most likely to foster women's sexual autonomy.' LaFree's studies illustrate how the institutional structures and decision making procedures of the criminal justice system create the opportunity for rape processing practices to reproduce relations of race and gender subordination. Each discretionary decision point in the system creates a social space in which legal agents …

Is Democracy Like Sex?, Glenn H. Reynolds

Vanderbilt Law Review

Despite the end of the Cold War, democracy seems to be in bad shape these days. In fact, there has been a modest boom in books and commentary proclaiming either the inadequacy of democracy or its imminent demise. According to at least one commentator, we face the possibility that American democracy will turn out to be a failure. Much has also been made of the gloomy assessments of American democracy contained in recent books by Christopher Lasch and Jean Bethke Elshtain. Such gloom seems a natural follow-on to the generally negative evaluations of democracy as a decision-making device provided by …

Introduction: Current Issues In Sexual Harassment Law, Kenneth L. Pollack

Vanderbilt Law Review

In the two decades since the first federal court' recognized sexual harassment as a form of sex discrimination under Title VII,2 sexual harassment has become an oft-discussed and increasingly litigated issue. The cause of action for sexual harassment arose as a result of the feminist revolution that brought women into the work- force in unprecedented numbers. Women began to hold positions previously occupied by men and to demand equal treatment, respect, and dignity. Some believe that women have already achieved equality in the workplace. The issue of sexual harassment, however, continues to spawn much debate as the role of women …

Proving Welcomeness: The Admissibility Of Evidence Of Sexual History In Sexual Harassment Claims Under The 1994 Amendments To Federal Rule Of Evidence 412, Paul N. Monnin

Vanderbilt Law Review

In contemporary sexual harassment litigation, this statement reflects a prevailing defense tactic. To establish a prima facie case of sexual harassment, plaintiffs must affirmatively demonstrate that they were subject to "unwelcome" sexual advances. Defense lawyers utilize this standard to discover and admit evidence of the victim's prior sexual behavior to show invitation to or provocation of the alleged misconduct. While such practices may seem repugnant, their purpose is readily discernible. By disclosing the intimate details of plaintiffs' sex lives, defense lawyers, with the sanction of sexual harassment law, force claimants to think twice about continuing their claims. Potential plaintiffs might …

Using Agency Principles For Guidance In Finding Employer Liability For A Supervisor's Hostile Work Environment Sexual Harassment, Glen A. Staszewski

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964, as amended 'Title VII," prohibits sexual harassment in the workplace.' The courts have created two categories of sexual harassment. The first, quid pro quo sexual harassment, occurs when a supervisor requires sexual consideration from an employee in exchange for job benefits. The second, hostile work environment sexual harassment, occurs when an employee is subjected to unwelcome sexual harassment that affects a term, condition, or privilege of employment. The victim must prove that the harassment is sufficiently severe or pervasive to alter the conditions of hers employment and create an abusive working …

A Framework For Post-Sentence Sex Offender Legislation: Perspectives On Prevention, Registration, And The Public's "Right" To Know, Michelle P. Jerusalem

Vanderbilt Law Review

During a weekend in late July, 1994, Megan Kanka, a seven-year-old girl, was raped and murdered in Hamilton Township, New Jersey.' When neighbors dis- covered that the perpetrator was a man who lived across the street from the little girl, and that this man was a twice-convicted felon who had served six years for sexual assault, their sadness turned to anger. Why, they asked, had they not been told?

The question of what, if anything, to do with sex offenders after they have served their sentences is one of which few are without opinion. It is a complicated and contentious …

A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly

Vanderbilt Law Review

The emerging law of sexual harassment has focused discussion on the political, sociological, and legal issues surrounding sexual conduct. Some commentators have argued that the developing law insufficiently addresses an underlying political imbalance between men and women. Although these commentators eschew sexual harassment law as a plausible means of achieving an egalitarian, sex-blind society, they offer few concrete suggestions for reaching their goal. A few scholars have taken a position at the other extreme, that sexual harassment is more or less a chimera, and that the injury women claim to experience is simply part of the vicissitudes of life, or, …

Tempering Title Vii's Straight Arrow Approach: Recognizing And Protecting Gay Victims Of Employment Discrimination, Marie E. Peluso

Vanderbilt Law Review

Consider the following scenario: Jerry, an outstanding graduate of Superior University's business school, has worked for Moneytree & Cashdollar, a prestigious investment banking firm, for three years. In that period, Jerry's hard work and keen instincts helped increase Moneytree's revenues by several million dollars. In addition, Jerry received two awards for landing important new clients. The firm's managing partners have discussed promoting Jerry to junior vice president, an executive position typically reserved for qualified fifth year employees. Jerry's supervisors and peers enthusiastically commend his dedication and skill. Two weeks before the vote on his promotion, Jerry lured a particularly valuable …

Franklin V. Gwinnett County "Public Schools": The Supreme Court Implies A Damages Remedy For Title Ix Sex Discrimination, Susan L. Wright

Vanderbilt Law Review

Congress enacted Title IX of the Education Amendments of 1972 (Title IX)' to address the widespread existence of sex discrimination in educational institutions.' Twenty years later, in Franklin v. Gwinnett County Public Schools, a unanimous Supreme Court put teeth into the statute by finding that Title IX relief includes compensatory damages. he Supreme Court's decision resolved a split of authority between the Third Circuit and the Seventh and Eleventh Circuits. The Court agreed with the Third Circuit, which had recently become the first court of appeals to find a right to compensatory relief under Title IX.

Congress had two main …

Sex Selection: Regulating Technology Enabling The Predetermination Of A Child's Gender, Owen D. Jones

Vanderbilt Law School Faculty Publications

The debate over the prohibition of sex (or gender) selection (also known as "preselection" or "predetermination"), has focused almost exclusively on the context of aborting a "wrong-sex" fetus after a fetal gender-identification procedure. Despite the fact that sex selection abortions represent only a small subset of sex selection procedures, attitudes toward the former are driving general policy approaches to the latter. However, the issues are analytically distinct, and only during the former infancy of the pre-conceptive (and non-abortive post-conceptive) technology for sex selection were members on both sides of the debate afforded the economy of using one logic to support …

Regulating Violent Pornography, Deana Pollard

Vanderbilt Law Review

In recent years the regulation of pornography has received much attention. Traditionally, conservatives have scorned pornography of all types on the basis that pornography is immoral. More recently, some feminists have attacked pornography from a civil rights perspective,claiming that pornography is the sexually explicit subordination of women that leads to discrimination against women in all aspects of life. Nonetheless, the first amendment currently protects all forms of pornography from regulation unless the material is deemed "obscene.

"Researchers, however, have shown that certain types of pornography, such as violent, sexually explicit materials, specifically harm women. The proven relationship between violent pornography …

The Confrontation Clause Applied To Minor Victims Of Sexual Abuse, Eleanor L. Owen

Vanderbilt Law Review

Dramatic increases in reports of child abuse and an even more alarming rise in reports of sexual abuse of children have contributed to growing media attention and public awareness of these problems. Concern for effective prosecution of the abusers, as well as for protection of the minor victims from further psychological trauma, has prompted a growing number of states to develop statutory measures that provide special protection from trauma for children during testimony at trial.The minor victim reportedly has the most difficulty facing his or her family and the defendant during testimony. Creative solutions' to this problem have been developed …

Equal Pay Acts: A Survey Of Experience Under The British And American Statutes, Robert N. Covington

Vanderbilt Journal of Transnational Law

The United States Congress passed the Equal Pay Act in 1963 as an amendment to the Fair Labor Standards Act. Its British parallel, the Equal Pay Act 19702, took effect at the very end of 1975 and was much amended by the Sex Discrimination Act 1975. The five year delay between enactment and enforcement provided time for employers and labor unions to adjust to the new requirements. The drafters of the British statute were aware of the United States statute, and United States cases interpreting that act were relied on quite early in United Kingdom litigation. Now that the British …

American And British Employment Discrimination Law: An Introductory Comparative Survey, Robert N. Covington

Vanderbilt Journal of Transnational Law

Age, alienage, ethnicity, race, religion, and sex lead to differential treatment of individuals the world over. Employment discrimination is felt most acutely in those industrialized nations where one's income level is the major determinant of so many other things: where one lives, what one wears, how one's children are educated. Concern over the social and economic consequences of employment discrimination has led to the development of new legal techniques on both sides of the Atlantic. The recent enactment in Britain of the Sex Discrimination Act, 1975, and the Race Relations Act, 1976, invites a comparison of those statutes and related …

Preferential Economic Treatment For Women: Some Constitutional And Practical Implications Of Kahn V. Shevin, Margaret E. Clark

Vanderbilt Law Review

The apparent willingness on the part of three members of the Supreme Court to sustain legislation granting economic benefits to a selected subgroup of women, while failing to deal with the similar racially suspect classification issue in Defunis, is simultaneously puzzling and disturbing. The key to the result reached in Kahn may be the size of the benefit involved, or the fact that a state tax statute was involved;"' yet the underlying principles in the two cases are logically indistinguishable and the differing approaches taken by certain members of the Court in the two cases are difficult to reconcile...

Thus, …

Psychosexuality And The Criminal Law, Ralph Slovenko, Cyril Phillips

Vanderbilt Law Review

It is common knowledge that sexual mores vary in every culture. Sexual ethic and social structure are interrelated. Sexual morality is not the same in an industrially advanced society as it is in a primitive agriculture regime (the industrial revolution's influence upon sexual morals will so attest) Sexual mores vary in different parts of the same country (Puritan Massachusetts and pioneer Wyoming could not be expected to develop the same set of rules), and indeed between different social strata in the same one locality. Every society imposes regulations and codes upon sexual relations, and quite rightly. However, the striking fact …

Books Received, Law Review Staff

Vanderbilt Law Review

BOOKS RECEIVED

BUSINESS ORGANIZATION By Alfred F. Conard Brooklyn: The Foundation Press, Inc., 1950. Pp. vii, 661. $7.00.

CASES ON FEDERAL COURTS By Charles T. McCormick and James H. Chadburn Brooklyn: The Foundation Press, Inc., 1950. Pp. 921. $8.00.

CASES AND MATERIALS ON WORLD LAW By Louis B. Sohn Brooklyn: The Foundation Press, Inc., 1950. Pp. 1363. $8.00.

FEDERAL ESTATE AND GIFT TAXATION: CASES AND MATERIALS By William C. Warren and Stanley S. Surrey Brooklyn: The Foundation Press, Inc.,1950. Pp. vii, 518. $7.00.

HATCH ACT DECISIONS By James W. Irwin Washington. United States Government Printing Office, 1949. Pp. v, 304. …