Law Commons^™

Preserving The Seed: Why Parents Should Have A Say In Whether Their Mentally Handicapped Child Should Be Sterelized, Rebecca Lenz Mrs.

Rebecca Lenz Mrs.

This article addresses the history of the eugenics movement, the current status of sterilization laws and the rights of parents to choose to sterilize their mentally handicapped child. Recently, North Carolina lawmakers have been pondering a way to compensate victims of unwanted sterilization that occurred in the early twentieth century. During the eugenics movement, many poor, uneducated women were sterilized against their will after being deemed feebleminded or mentally incompetent. Unfortunately, most of the victims were competent women and girls who were unable to fight for their right to reproduce. As a result, North Carolina lawmakers are trying to rectify …

The Invisible Man: How The Sex Offender Registry Results In Social Death, Elizabeth B. Megale

Elizabeth B. Megale

This Article establishes that overcriminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits …

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 …

Gelding The Lily: How The Bankruptcy Code's Promotion Of Marriage Leaves It Impotent, Tiffany R. Redding

Tiffany R. Redding

This Article challenges benefits in the Code that are reserved for married debtors as limiting the Code's power and ability to achieve its primary objective – providing all honest debtors with a fresh start. As the institution of marriage continues to evolve and marriage rates in America steadily decline, economic laws such as the Bankruptcy Code can no longer rely on marriage as an indicator of financial interdependence. This Article suggests several ways that the Code may be revised to eliminate marriage and restore power to the Code.

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, …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

I Insiders And Outsiders: Is There A Space For The Gay ‘Father’ In The Era Of The Hetero-Normative Lesbian Family?, Julie A. Wallbank Dr

Julie A Wallbank Dr

Abstract Donor insemination is frequently used by lesbians in order to have their own families. Choices have to be made about conception and empirical research tells us that under the previous framework of the Human Fertilisation and Embryology Act 1990 these decisions rest on a number of issues such as the prospective lesbian parents’ views on the perceived interests of the child in knowing their donor as a child, the risks of challenge from the sperm donor to the integrity of the lesbian family and the desire to contest the hetero-normative model of the legally sanctioned two-parent nuclear family and …

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 …

Same-Sex Marriage: European Court Of Human Rights’ Jurisprudence And Conflicts Of Law - Possible Messages For And From The Supreme Court Of England And Wales, Brigitte J. Clark Dr

Brigitte J Clark Dr

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right …

Same-Sex Marriage: European Court Of Human Rights’ Jurisprudence And Conflicts Of Law - Possible Messages For And From The Supreme Court Of England And Wales, Brigitte J. Clark Dr

Brigitte J Clark Dr

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right …

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.

The Fortas Film Festival, Brian L. Frye

Brian L Frye

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other …

Hostile Educational Environments: On The Apparent First Amendment Barrier To Cyberbullying Punishments, Ari E. Waldman

Ari E Waldman

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or offend a member of the school community depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. Except in extraordinary circumstances, the First Amendment should immunize these single-incident attackers from punishment. For students who engage in a pattern of repeated incidents of cyberattacking – what …

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 …

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 …