Law Commons^™

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

New Frontiers Of Reprogenetics: Snp Profile Collection And Banking And The Resulting Duties In Medical Malpractice, Issues In Property Rights Of Genetic Materials, And Liabilities In Genetic Privacy., Stephanie Sgambati

Stephanie Sgambati

ABSTRACT

Single nucleotide polymorphisms (SNPs) represent the portions of our genetic makeup where human differ from each other. Mapping an individual’s profile creates a DNA fingerprint entirely unique to that individual. The primary purpose for the creation of SNP profiles has been validation of medical techniques used in reproductive medicine that require researchers to be able to definitively determine which embryo makes which baby- thus matching DNA fingerprints from infants to those from embryos. In spite of this seemingly narrow use, the potential value of the information contained in the SNP profile is enormous.

In this paper, I explore how …

The International Human Right To Safe And Humane Treatment During Pregnancy And A Theory For Its Application In U.S. Courts, Hilary Hammell

Hilary Hammell

Under international human rights law, every woman has the right to safe and humane treatment during pregnancy, labor, and childbirth. This article examines the content of that human right as it exists under international law, and suggests one theory –international customary law – for its application in U.S. court cases challenging the treatment of pregnant women in custody. Using Juana Villegas v. Metropolitan Government of Davidson County as a case study, this article argues that international law should be used as binding law, not just as a tool for Eighth Amendment interpretation, and is especially relevant when non-citizen pregnant women …

Divorce And Polygamy In Tanzania, Rachel Howland, Ashley Koenen

Rachel J Howland

This Article explores the unique legal issues surrounding polygamous marriage and divorce in mainland Tanzania, and submits that the Law of Marriage Act of 1971 (LMA) should be amended to include a provision that governs co-wives’ property interests in the case of divorce. Moreover, it proposes awareness-raising efforts to increase legal literacy and to promote the rights of co-wives. Under Section 10(1) of the Act, a marriage is defined as “the voluntary union of a man and a woman, intended to last for their joint lives,” and may either be monogamous or polygamous (or potentially polygamous). Further, under Section 57, …

"Not That Smart": Sonia Sotomayor And The Construction Of Merit, Guy-Uriel E. Charles Mr., Mitu G. Gulati Mr., Daniel L. Chen Dr.

Guy-Uriel E. Charles Mr.

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

Do We Value Our Cars More Than Our Kids? The Conundrum Of Care For Children, Palma Joy Strand

palma joy strand

Formal child care workers in the United States earn about $21,110 per year. Parking lot attendants, in contrast, make $21,250. These relative wages are telling: The market values the people who look after our cars more than the people who look after our kids. This article delves below the surface of these numbers to explore the systemic disadvantages of those who care for children—and children themselves. The article first illuminates the precarious economic position of children in our society, with a disproportionate number living in poverty. The article then documents both that substantial care for children is provided on an …

Recalcitrant Vessels: In Search Of Justifications For Compelled Medical Care Of Pregnant Women, Carolyn A. Mcconnell

Carolyn A McConnell

With the capacity of doctors to intervene in pregnancy increasing, the likelihood for conflicts between doctors and hospitals and pregnant women is also increasing. Yet our jurisprudence has failed to clarify the bounds of pregnant women’s autonomy. Indeed, this jurisprudence is marked by confusion, leaving courts in the dark as to how to resolve these conflicts.

Therefore, it is useful to carefully enunciate the rights and interests at issue in forced medical care of pregnant women. This includes 1) the distinction between the right to refuse medical care of oneself and the lack of a right to refuse consent to …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And The Bankruptcy Of The “Nature-Nuture” Debate, Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, 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 it is to have a nature …

Standing At The Crossroads: A Review Of The Novel Issues Of Standing At Play In Perry V. Schwarzenegger, Natasha Mennecke

Natasha Mennecke

This piece examines whether the Proponents of Proposition 8 have standing to appeal the district court's decision invalidating the measure. The paper examines the question of federal Article III standing and whether California Law creates a Liberty Interest sufficient for federal standing.

Disposable Victims: How The Tvpa Fails To Protect Victims Of Human Trafficking, Amanda Lindberg-Aganga

Amanda Lindberg-Aganga

The TVPA does not sufficiently protect victims, especially victims caught up in large trafficking schemes. From identification of victims by law enforcement or ICE to the ability of the FBI to actually interview every victim to DHS’ willingness to grant Continued Presence to Victims and DOJ to support their T-visa application, victims are presented with barriers that they must overcome in order to pursue justice, receive restitution, gain protection and try to move forward with their lives. These barriers are unnecessary, and damage the TVPA’s mandate to protect victims and prevent trafficking.

Women On Corporate Boards Of Directors - A Global Snapshot, Douglas M. Branson

douglas m branson

This paper builds on earlier books by the author (No Seat at the Table - How Governance and Law Keep Women Out of the Boardroom (2007) and The Last Male Bastion - Gender and the CEO Suite at America's Public Companies (2010)). The article identifies, describes, and critiques six movements or programs from various parts of the globe, all intended and designed to place additonal women directors on corporate baords of directors and in senior corporate management.

A Rational Approach To California's Proposition 8, Jennifer Sirrine

Jennifer Sirrine

This comment focuses on California's Proposition 8 and the more searching rational basis test, arguing that the more searching rational basis test is distinct from the traditional level of review. It first analyzes the Supreme Court's precedent regarding the more searching rational basis test, then parses out when the test is applied, and the elements of the test itself. It then applies the more searching rational basis test to California's Proposition 8. Due to the fact the Supreme Court's jurisprudence regarding classifications involving homosexuals is convoluted at best, it further argues that the more searching rational basis test should be …

Coerced Debt: An Empirical Examination Of The Role Consumer Credit In Domestic Violence, Angela K. Littwin

Angela K Littwin

When one pictures domestic violence, consumer credit probably does not come to mind. Physical and sexual abuse in intimate relationships has become an acknowledged reality. Structural abuse, which includes tactics such as isolating victims from other relationships and cutting off access to transportation, has also made headway in the public consciousness. Even forms of economic abuse that depress victims’ income have been well-documented. But there is another facet of domestic violence that has not yet been recognized: financial abuse through consumer credit. As consumer lending has permeated American life, violent partners have begun using debt as a means of exercising …

Of Woman Born? Technology, Relationship, And The Right To A Human Mother, Jennifer S. Hendricks

Jennifer S. Hendricks

This article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception. It takes as its touchstone a claim by sociologist Barbara Katz Rothman, who writes, “Every human child has a right to a human mother.”

While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today. …

Toward A Compassionate Solution: The Unhcr Guidance Note And Asylum For Parents Of Female Genital Mutilation Vulnerable Children, Jennifer Mesko

Jennifer Mesko

On August 26, 2009, the United States Court of Appeals for the Fifth Circuit handed down its decision in Kane v. Holder denying a father’s petition for withholding of removal despite the threat of FGM to his minor daughter. As one ground of relief, the father, Kane, advanced a principal claim because he would be subject to persecution: “(1) as a member of a social group of ‘parents of minor daughters of the Fulani Tribe who have not had FGM, and who oppose the practice,’ (2) as a result of his political and religious opposition to FGM, and (3) by …

Title Ix: The Trojan Horse In The Struggle For Female Athletic Coaches To Attain Equal Opportunities In Intercollegiate Sports, Ryan Richman

Ryan Richman

The enactment of Title IX of the Education Amendments Acts of the 1970s has significantly altered the framework of females in coaching athletic teams. The purpose of Title IX is to provide all women with educational opportunities in both the academic and athletic realm. Generally, Title IX is thought to have been an enormous advancement for females participating in athletics, but as my note explores, it has not been effective in all areas, particularly intercollegiate female coaches. In fact, it is quite the opposite, and since the enactment of Title IX, the number of female coaches has been cut almost …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Jody L Madeira

Legal scholarship portrays women as reproductive decision-makers in odd and conflicting ways. The disparity between depictions of infertile women and women considering abortion is particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar characterizations of pregnant women considering abortion, depicting them as confident and competent decision-makers. This Article argues that, compared to portrayals of women seeking abortions, legal scholars’ characterizations of infertile women inexplicably deny women’s ability to …

When The Wise (Latina) Judge Meets A Living Constitution - Why It Is A Matter Of Perception, Laura A. Hernandez

Laura A Hernandez

At the time of Justice Sonia Sotomayor’s confirmation hearings, much was made of a statement she made in a 2001 lecture at the University of California, Berkeley, School of Law concerning a judge’s approach to the cases that come before her. “. . . . I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” The resulting backlash and condemnation caused Justice Sotomayor to apologize for her endorsement of the idea that a wise Latina would, and should, …

Coalition, Cross-Cultural Lawyering, And Intersectionality: Immigrant Identity As A Barrier To Effective Legal Counseling For Domestic Violence Victims, Jessica H. Stein

Jessica Stein

Cultural differences can be the most difficult barrier to overcome and the hardest to define when working with immigrant victims of domestic violence. This issue also seems to be the most puzzling and frustrating to attorneys, with answers that can be uncomfortable and that offend a progressive, liberal sense of lawyering. Drawing on critical race theory, I argue that the problems faced by immigrant victims in seeking help can only be solved by the recognition of the intersectionalities apparent in immigrant domestic violence cases, by the use and encouragement of cross-cultural lawyering, requiring a sincere effort by attorneys to be …

Commercial Surrogacy: Is Regulation Necessary To Manage The Industry?, Cara M. Luckey

Cara M Luckey

This paper discusses legal and ethical issues involved with commercial surrogacy both within the United States and Internationally. Inconsistencies in laws create an increased potential for the exploitation of the parties involved in a surrogacy agreement. The validity of contracts varies between states and certain countries that allow surrogacy do not adequately protect the surrogate mothers. As this field of Assisted Reproductive Technology becomes more prevalent, the need for effective regulation of commercial surrogacy is essential.

Case Note: Nabozny V. Podlesny, William B. Turner

William B Turner

This case note describes and provides context for the 1996 opinion in Nabozny v. Podlesny, in which the Seventh Circuit Court of Appeals reversed a district judge's grant of summary judgment to defendants in a suit by a former student who complained of years of severe bullying and harassment by his peers because of his sexual orientation, which school administrators persistently failed to take steps to stop.

The Wisdom Of Solomon: Why We Can't Split The Pre-Embryo, Bridget M. Fuselier

Bridget M Fuselier

Due to the fact that there are at least 500,000 cryo-preserved pre-embryos and a very small amount of common law or statutes to provide guidance, legislators need to act and take steps to guide the people impacted by these problems.

This article promotes modifications to property concepts that protects the special dignity of the pre-embryo while also recognizing the autonomy of the individual gamete providers. The article proposes a form of ownership that would prevent the pre-embryos from passing through wills and by intestate succession. It would also eliminate the possibility of ending up with a multitude of owners for …

Judge Harold Baer's Quixotic Crusade For Class Counsel Diversity, Michael H. Hurwitz

Michael H Hurwitz

In this comment, the author discusses the recent rulings of U.S. District Court Judge Harold Baer, Jr. directing that proposed class counsel provide evidence of its racial and gender diversity. After summarizing the provisions of Rule 23(g) of the Federal Rules of Civil Procedure that govern the appointment of class counsel, the author analyzes Judge Baer’s rulings in light of Rule 23(g)’s requirements. The author concludes that Judge Baer’s rulings are inconsistent with the Rule’s requirements and, instead, represent the judge’s effort to impose his own policy views over the interests of the class members served by the Rule’s narrow …

Mandated Informed Consent For Medical Procedures: Has Government Gone Too Far, Linda P. Mckenzie

Linda P. McKenzie

In 2003, President George W. Bush signed legislation targeted at preventing what lawmakers said was a single, specific abortion procedure. The bill banned a method that is known outside of the medical community as "partial birth abortion." Lower courts, however, struck down the law as a violation of the Supreme Court's requirement that state limits on abortion must include an exception for the life or health of the pregnant woman. The lower courts were upheld by the three circuit courts who reviewed the Partial Birth Abortion Ban Act of 2003. The U.S. Supreme Court accepted certiorari and recently heard oral …

Federally Mandated Informed Consent: Has Government Gone Too Far?, Linda P. Mckenzie

Linda P. McKenzie

In 2003, President George W. Bush signed legislation targeted at preventing what lawmakers said was a single, specific abortion procedure. The bill banned a method that is known outside of the medical community as "partial birth abortion." Lower courts, however, struck down the law as a violation of the Supreme Court's requirement that state limits on abortion must include an exception for the life or health of the pregnant woman. The lower courts were upheld by the three circuit courts who reviewed the Partial Birth Abortion Ban Act of 2003. The U.S. Supreme Court accepted certiorari and recently heard oral …

Of Marriage And Monarchy: Why John Locke Would Support Same-Sex Marriage, William B. Turner

William B Turner

Arguments about discrimination based on sexual orientation generally rest on interpretations of the equal protection clause of the Fourteenth Amendment or about rights to autonomy rooted in modern substantive due process doctrine. Such theories typically presuppose a government that remains neutral among competing moral claims. This Article, by contrast, develops an account of rights against sexual orientation discrimination—including recognition of same-sex marriage—that does not depend on a thin moral conception of the liberal state. Instead, I situate lesbian/gay rights within a Lockean political theory of consent. John Locke’s theory of government, which was highly influential for the Founders of the …

Effective Implementation Of The Trafficking Of Persons And Involuntary Servitude Articles: Lessons From The Criminal Justice System Response To The Illinois Domestic Violence Act, Alison L. Stankus, Jennifer A. Kuhn

Alison L Stankus

When the Illinois Domestic Violence Act was enacted in 1986, the General Assembly acknowledged that “the legal system has ineffectively dealt with family violence in the past … and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims.” However, despite these stated purposes, the criminal justice system response to the Act in the last twenty years has been slow to correct this failure. Last year, the Trafficking of Persons and Involuntary Servitude Articles were added to the Illinois Criminal Code. …

The Military Abortion Ban: How 10 U.S.C. Section 1093 Violates International Standards Of Reproductive Healthcare, Sabrina E. Dunlap

Sabrina E Dunlap

Under 10 U.S.C. Section 1093, women in the military cannot obtain abortion services in military hospitals even if they use their own funds. Women who are stationed abroad are forced to search for services elsewhere in the foreign country in which they are stationed, facing cultural barriers, language barriers, difficult travel arrangements and high costs. In the last ten years, clear standards of reproductive health emerged at an international level, with women’s health being the center of the International Conference on Population and Development, and the Fourth World Conference on Women, among others. The United States is simultaneously encouraging developing …

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

Nancy J. Knauer

Gender Matters: Making the Case for Trans Inclusion Nancy J. Knauer, Peter J. Liacouras Professor of Law Beasley School of Law, Temple University ABSTRACT 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 …

Child Laundering As Exploitation: Applying Anti-Trafficking Norms To Intercountry Adoption Under The Coming Hague Regime, David M. Smolin

David M. Smolin

Child laundering occurs when children are illicitly obtained by fraud, force, or funds, and then processed through false paperwork into "orphans" and then adoptees. Child laundering thus involves illegally obtaining children by abduction or purchase for purposes of adoption. My prior work has documented and analyzed the widespread existence of child laundering in the intercountry adoption system. This article argues that child laundering is a form of exploitation, and hence qualifies as a form of human trafficking. Once child laundering is understood as an exploitative form of child trafficking, legal and ethical norms currently applied to human trafficking become applicable. …