Law Commons^™

Sex, Drugs, And Rock & Roll: Effectively And Equitably Moderating Vice And Illegal Content Online, Elise N. Blegen

Vanderbilt Law Review

The modern internet is vast, with more than 2.5 quintillion bytes of data created every day. Content is created, uploaded, downloaded, and shared across an increasingly large number of platforms. Most of this content is legal; however, some is illegal, including hate speech, child sexual abuse material, and content that violates intellectual property rights. Section 230 of the Communications Decency Act ("CDA") provides that websites are not liable for content posted to their platform by third parties. Instead, websites determine their own content moderation policies, and the law assumes that they will do just that (given that exposure to graphic …

Deliberately Indifferent: Institutional Liability For Further Harassment In Student-On-Student Title Ix Cases, Jacob R. Goodman

Vanderbilt Law Review

Sexual harassment is an unfortunate problem far too many have experienced. Universities and other educational institutions owe a duty, both legal and moral, to protect students from sexual harassment, and in turn to allow students to receive the full benefits of their education. But a circuit split has limited students' ability to hold educational institutions liable. This circuit split results in the absurd scenario where an individual must experience sexual harassment more than one time to hold their educational institution liable. This Note attempts to fix that by proposing Title IX (the law governing sexual harassment at educational institutions) adopt …

Let's Talk About Gender: Nonbinary Title Vii Plaintiffs Post-Bostock, Meredith R. Severtson

Vanderbilt Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII’s sex-discrimination prohibition applies to discrimination against gay and transgender employees. This decision, surprising from a conservative Court, has engendered a huge amount of commentary on both its substantive holding and its interpretive method. This Note addresses a single question arising from this discourse: After Bostock, how will courts address allegations of sex discrimination by plaintiffs whose gender identities exist outside of traditional sex and gender binaries? As this Note explores, some have argued that Bostock’s textualist logic precludes sex-discrimination claims by nonbinary plaintiffs. While such arguments fail to …

Filling The Gap: Refining Sex Trafficking Legislation To Address The Problem Of Pimping, John Elrod

Vanderbilt Law Review

Nearly twenty-one million men, women, and children worldwide are victims of human trafficking,' earning an estimated $31.6 billion in profits for the perpetrators of these crimes. Human trafficking is the third-largest and the fastest-growing criminal enterprise in the world. Of the nearly twenty-one million trafficking victims, approximately 4.5 million are victims of some form of sex trafficking. Although human trafficking primarily takes place outside of the developed world, the International Labour Organization estimates there are some 1.5 million trafficking victims in developed countries. In particular, as many as 17,500 foreign nationals are trafficked into the United States annually. However, the …

Severe Or Pervasive: An Analysis Of Who, What, And Where Matters When Determining Sexual Harassment, V. Blair Druhan

Vanderbilt Law Review

In the middle of Herman Cain's campaign for the 2012 U.S. Republican Party presidential nomination, multiple women who were once Cain's coworkers came forward with allegations of sexual harassment. Cain immediately deemed the allegations "totally baseless and totally false."' However, after continued questioning about whether his previous actions were inappropriate, Cain responded, "In my opinion no, but as you would imagine, it's in the eye of the person who thinks that maybe I crossed the line." Unfortunately, Cain's vague and evasive response is evocative of current sexual harassment law, which generally lacks clarity and is often dependent on individual perceptions. …

For Their Own Good? Exploring Legislative Responses To The Commercial Sexual Exploitation Of Children And The Illinois Safe Children Act, Angela L. Bergman

Vanderbilt Law Review

Illinois has long struggled to contain what is the perfect storm for exploitation-a large city with consistent conventions, attractions with many tourists, significant amounts of population movement and immigration, access to major airports and interstates, and "entrenched gangs with an entrepreneurial bent." These factors make Chicago in particular an appealing destination for runaways and throwaways across the Midwest. In 2001, a study conservatively estimated that 16,000 to 25,000 women and girls are victims of commercial sexual exploitation in Chicago each year. By 2004, the New York Times had named Chicago a "hub" for sex trafficking. When Illinois was at the …

"Workers Of God": The Holy See's Liability For Clerical Sexual Abuse, Jacob W. Neu

Vanderbilt Law Review

In the 1970s, no Boston priest was more electrifying than Paul Richard Shanley. Ordained in 1960, he sought and received from his bishop, Boston cardinal Humberto Medeiros, a mission to minister to "sexual minorities" in 1970 and became a well-known Boston "street priest."' Wearing jeans and smoking Kool cigarettes, he gathered about him runaway gay teenagers and advocated fiercely for gay rights. Yet one of the boys drawn to him was the same one Shanley would be convicted of sexually abusing in 2005. In a civil suit seeking damages from the Archdiocese of Boston for its role in hiding Shanley's …

Refining The Meaning And Application Of "Dating Relationship" Language In Domestic Violence Statutes, Devon M. Largio

Vanderbilt Law Review

Many young people date in high school, and Lisa Santoro was no exception.' Her father Tom tells her story:

In January, 1994, Lisa started to date a guy [named "Dan"].... In the five months Lisa dated this guy, I never really understood why she was attracted to him.... Around June, when Lisa started to work at the swimming pool, she met another guy who was in charge of the pool .... Shortly after, Lisa [broke] up with Dan. Dan tried to get Lisa to go back to him, but Lisa had her mind made up.... On July 27th, Dan called …

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 …

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 …

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 …

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 …

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. …

Institutional And Post-Institutional Treatment Of The Sex Offender, Thomas P. Wall Jr., Chalmers P. Wylie

Vanderbilt Law Review

The problem of the sex offender is as old as society itself. Today, as in the distant past, man is more concerned, in the first instance, with protecting himself and his loved ones from the corrupting touch of the so-called "sex- fiend" than he is with the punishment; treatment or cure of such persons. This phenomenon of social psychology still prevails in spite of the growing preachments of the doctor, psychologist, criminologist and more recently, of the lawyer prosecutor, the lawyer law-maker and the lawyer practitioner,' to the effect that the primarily desirable end of protecting society can best be …

Institutional And Post-Institutional Treatment Of The Sex Offender, Thomas P. Wall Jr., Chalmers P. Wylie

Vanderbilt Law Review

The problem of the sex offender is as old as society itself. Today, as in the distant past, man is more concerned, in the first instance, with protecting himself and his loved ones from the corrupting touch of the so-called "sex-fiend" than he is with the punishment, treatment or cure of such persons. This phenomenon of social psychology still prevails in spite of the growing preachments of the doctor, psychologist, criminologist and more recently, of the lawyer prosecutor, the lawyer law-maker and the lawyer practitioner,' to the effect that the primarily desirable end of protecting society can best be achieved …