Law Commons^™

Religious Morality And Civil Equality, Sarah L. Jordan

Sarah L Jordan

With the uncertain future of Proposition 8 in California and the backing of DOMA by Speaker of the House John Boehner and other conservative Legislators, it has become clear that the divide between morality and civil rights is weakening. In a country where the government purports to provide equal protection under the law, a minority growing in strength and support is still woefully discriminated against by law, by statute, and by state constitution. Support of Marriage Equality is at an all-time high, but those who fight it hang on to their ideal family unit mainly because of moral proclivities. By …

Defining Parenthood: Evolution Or Pendulum Swing?, Rufina D. Beem

Rufina D. Beem

This paper analyzes the evolution of the legal definition of a parent through the emergence of assisted reproductive technologies, surrogacy arrangements, and same sex marriage, with a particular emphasis on genetic ties and the marital presumption as determinative factors. It argues that the evolution in defining parenthood in recent decades may convert to more of a pendulum swing as societal views towards who can marry continues to change. If a greater portion of the population can benefit from the marital presumption in determining parenthood, then the legal definition will largely revert back to traditional roots. As such, the paper concludes …

A Shot In Arm: Can Chemical Castration Statutes Cure Sex Offenders Legally And Ethically?, Robert Watters

Robert Watters

At least seven states currently have sex offender castration statutes. This article examines the legal and ethical appropriateness of those statutes against the successful and unsuccessful European models.

Pro-Business Or Anti-Gay? Disguising Lgbt Animus As Economic Legislation, James A. Reed

Alex Reed

Several states are considering legislation that would prohibit cities from enacting nondiscrimination ordinances which are more inclusive than state law in terms of their protected classes. Although characterized as economic legislation, the evidence suggests that these bills are being introduced because of—not merely in spite of—their adverse effects upon the LGBT community. This article proposes that the Supreme Court apply heightened scrutiny to classifications based on sexual orientation and gender identity so as to expose the discriminatory motivations underlying these bills and ensure that courts are no longer complicit in denying LGBT Americans the equal protection of the laws.

Identity Crises And Incarceration: Preventing Prison Rape By Channeling Expressions Of Masculinity, Daniel A. Nolan Iv

Daniel A Nolan IV

Prison rape is a well-known and widely publicized problem in the American prison system. Even with this high degree of visibility, the problem persists despite correctional officials’ best efforts. These efforts to combat prison rape have focused almost exclusively on preventing the physical act from occurring. While it might seem like a straightforward or obvious approach, this type of strategy does nothing to address why rape is so common among prison inmates. Solutions that merely prevent rape from occurring, without addressing the underlying cause, do nothing to change a cultural environment that rewards sexual assault.

This Article argues that the …

Notification And Risk Management For Victims Of Domestic Violence, Jaime K. Dahlstedt

Jaime K. Dahlstedt

Technological advances have made possible the real-time enforcement of temporary and contested protection orders issued on behalf of victims of domestic abuse, particularly through global positioning satellite (GPS) monitoring of individuals who have been found to have committed domestic violence offenses and against whom stay away orders have been entered. Notwithstanding this capability, however, courts rarely impose GPS monitoring requirements alongside the safety provisions routinely imposed in domestic abuse cases.

This Article examines and critiques this prevailing practice. This Article argues that the procedural, substantive and logistical objections to GPS monitoring do not sufficiently justify the systemic failure to impose …

Disparate Protections For American Human Trafficking Victims, Amanda J. Peters

Amanda J Peters

The United States enacted the Trafficking Victims Protection Act (TVPA) in 2000. It was the first piece of legislation to address human trafficking. Since that time, the United States has monitored anti-trafficking efforts worldwide. Nations that fail to meet minimum standards set by the United States risk losing non-humanitarian financial aid from the federal government, the International Monetary Fund, and global banks. Yet, these minimum standards are not met by the United States when it comes to protecting American trafficking victims.

According to the TVPA, governments shall attempt to prevent human trafficking, punish traffickers, and protect people who have been …

Act Up, Fight Back, Fight Aids! The Legacy Of Act Up’S Policies And Actions From 1987-1994, Nathan H. Madson

Nathan H Madson

The AIDS Coalition to Unleash Power (ACT UP) was founded in 1987 after a speech by Larry Kramer implored people to address the widespread destruction and deaths caused by HIV/AIDS. Since its founding, ACT UP has worked to improve the public’s awareness of the disease and to push for legislation that not only protected People With AIDS (PWAs), but also improved their access to medications and treatments. The way in which ACT UP achieved these goals, however, has provided a framework for other marginalized groups to make a similar impact. Some of the tools ACT UP used include: zaps, political …

For Better And For Better: The Case For Abolishing Civil Marriage, Anibal Rosario Lebron

Anibal Rosario Lebron

This article examines – on the eve of next term U.S. Supreme Court’s review of same-sex marriage equality cases (The DOMA Cases) – whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or whether it would be better to simply abolish civil marriage in order to achieve such a goal. The piece explores why we still adhere to the unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children, and how we could achieve familial disestablishment (requiring the state to recognize the existence of …

16 And Pregnant: Minors' Consent To Abortion And Adoption, Malinda L. Seymore

Malinda L. Seymore

A minor girl’s decision about the resolution of an unplanned pregnancy is a highly contested issue. Especially contentious is the minor’s ability to consent to an abortion without the assistance of an adult such as her parents or a judge. That issue has received substantial attention from policy makers, scholars, judges and legislators. Almost no attention has been paid, however, to the decision of a minor parent to continue her pregnancy, relinquish her constitutionally-protected parental rights and place a child for adoption. In 37 states, a minor’s abortion decision is regulated differently from the decision of an adult’s, while in …

Rethinking Civil Rights And Gender Violence, Julie Goldscheid

Julie Goldscheid

Advocacy seeking justice for survivors of domestic and sexual violence historically has invoked civil rights laws and rhetoric to advance legal remedies and public policy reform. Even though two widely critiqued United States Supreme Court decisions have limited the reach of those civil rights approaches, neither decision precludes new civil-rights-based remedies for gender violence. Indeed, a civil rights frame has enduring potential to support needed reform by challenging structural inequalities that continue to inform and drive gender violence. Nevertheless, no public outcry has coalesced in the United States demanding a civil rights-based enforcement scheme, either to seek a refashioned remedy …

Ain’T I A Woman, Too?: The Thirteenth Amendment, In Defense Of Incarcerated Women’S Reproductive Rights, Alexandria Gutierrez

Alexandria Gutierrez

In her memoir, Harriet Ann Jacobs highlights the unique impact slavery had on women. The physical dominion imposed upon female slaves included both internal and external bodily control. Beyond sexual exploitation, the bodies of female slaves were used for a type of labor for which their male counterparts were not capable: reproduction. Forced pregnancy in the slavery context was a tragic and violative experience affecting women physically, psychologically, and emotionally. Long after the ratification of the Thirteenth Amendment, slavery-like practices lived on through social, political, and economic mechanisms. In the penological context, peonage laws, penal plantations, and chain gangs were …

Giving Shelter From The Storm: Colombians Fleeing Persecution Based On Sexual Orientation, Luz Estella Nagle

Luz Estella Nagle

Asylum seekers fleeing persecution due to sexual orientation face difficult challenges in proving their claims before United States immigration judges. Homosexuals in Latin America, and especially in Colombia, live under constant fear of harassment and violent attack, despite the fact that laws and constitutional rights are slowly being extended to the Gay and Lesbian population in Latin America. This article examines the conditions for LGBTs in Colombia, as a model for the region, to educate immigration judges about the horrific experiences that compel LGBTs to flee, and why they should be extended every consideration for gaining asylum in the United …

Test-Achats: Why The European Court Of Justice Should Rethink Its Principle Of Equal Treatment Jurisprudence In The Context Of Sex Discrimination, Alexander Goodenough

Alexander Goodenough

The European Court of Justice found in Assoc. belge des Consommateurs Test-Achats ASBL v. Conseil des Ministres that the use of gender by insurance companies to assess statistical risks is unlawful under the Charter of Fundamental Rights of the European Union. This ruling has very important implications for the provision of insurance within the European Union. My article argues that the European Court of Justice’s opinion in Test-Achats is not only damaging to the European insurance industry but also contrary to the European Court of Justice’s own jurisprudence.

What's In A Name? The Case For The Disestablishment Of Marriage, Carolyn A. Mcconnell

Carolyn A McConnell

The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent (and indeed is bringing to the Supreme Court) the question of what the right to marry might be and what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not, and this places marriage in deep tension with liberal ideals. …

Hysteria Over Sexting: A Plea For A Common Sense Approach, John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Parental Leave: Comparison Of International Policies To The United States Policy And A Proposal For Change, Jennifer J. Montalvo

Jennifer J. Montalvo

The United States is far behind many other countries in providing parental leave, with no federal legislation that provides wage-replacement to parents seeking to take leave immediately before and after childbirth. In order to explain the variations of parental leave provided globally, this article discusses federal and state legislation in the United States, international organizations’ conventions and directives, and individual countries’ policies. The article argues that paid parental leave has many benefits—benefits that the United States should take into account when considering reform of its current law. Drawing on international and state-level models, the article proposes federal policy reform in …

In Search Of Federal Remedies For Lgbtq Students Who Are Victims Of Assault And Harassment In School., Jerry R. Foxhoven Mr.

Jerry R. Foxhoven Mr.

This article describes details of the harassment that was inflicted upon the individual LGBTQ students involved in many of the federal reported cases, as well as the lack of response by, and sometimes even the participation of, school personnel in the harassment. The article then goes on to examine the various legal theories that were employed by the victim-students, including constitutional theories (Due Process, Equal Protection, and First Amendment claims) as well as statutory remedies (Title IX and the Equal Access Act).

This article is written in a format that is not only interesting (by providing the details of the …

Act Up, Fight Back, Fight Aids! The Legacy Of Act Up’S Policies And Actions From 1987-1994, Nathan H. Madson

Nathan H Madson

The AIDS Coalition to Unleash Power (ACT UP) was founded in 1987 after a speech by Larry Kramer implored people to address the widespread destruction and deaths caused by HIV/AIDS. Since its founding, ACT UP has worked to improve the public’s awareness of the disease and to push for legislation that not only protected People With AIDS (PWAs), but also improved their access to medications and treatments. The way in which ACT UP achieved these goals, however, has provided a framework for other marginalized groups to make a similar impact. Some of the tools ACT UP used include: zaps, political …

Law, Social Movements, And The Political Economy Of Domestic Violence, Deborah M. Weissman

Deborah M. Weissman

This article uses the occasion of the 2012 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have acted to circumscribe the scope of VAWA and the dominant approach to domestic violence. It seeks to explore the relationship between domestic violence advocacy and feminist theory of the type that has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. It argues for the re-examination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as …

Incessant Discrimination Of Same-Sex Couples: A Case Study Of Varying Interpretations Of “Family,” Second-Parent Adoptions, And The Legal Rights Of Non-Biological Parents, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Equality Qua Equality: A Comparative Critique Of The Tiers Of U.S. Equal Protection Doctrine, Lorenzo Di Silvio

Lorenzo Di Silvio

On February 23, 2011, the Obama Administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. Of great significance in this announcement was the Administration’s position that classifications on the basis of sexual orientation warrant heightened judicial scrutiny. Notwithstanding this announcement, the level of review applied to sexual-orientation classifications—and the manner in which a court determines whether a particular type of classification deserves more searching review—is an open question, the answer to which typically dictates the outcome of challenges to government classifications. Apart from this outcome determinativeness, affording heightened scrutiny to some classifications but …

Aristotle's Internet: Free Speech Values Online, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – it does …

The Supreme Court's Understanding Of The Sex-Gender Distinction, Brett Hammon

Brett Hammon

No abstract provided.

Evidence-Based Prosecution & Strangulation-Specific Training: Obtaining Justice For Victims Of Strangulation In Domestic Violence, Brigitte P. Volochinsky

Brigitte P Volochinsky

Strangulation accounts for 10-percent of violent deaths in the United States, with six female victims to every male victim. A common form of abuse in domestic violence, strangulation may result in many harmful health effects and it often indicates either an ongoing pattern of abuse or it foreshadows escalating violence. Yet, strangulation is often minimized by the criminal justice system, including law enforcement officials, emergency room medical personnel, and prosecutors, who equate strangulation with a slap on the face. The phenomenon of minimizing a violent and life-threatening act occurs for two reasons; first, and most importantly, victims of strangulation often …

The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Kimberly Yuracko

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Multi-National Corporations Closing The Borders For Female Professionals: Should Gender Discrimination Be Allowed For Expatriation Assignments Under Title Vii Law?, Allie C. Tucker

Allie C Tucker

While women currently make up significant proportions of the work force in many occupations, their presence remains lacking in upper management. In today’s globalizing economy international experience has become increasingly important for promotions in multi-national corporations but is simultaneously being denied to women due to speculations about gender discrimination in other nations. Evidence suggests that women are being sent on expatriation assignments far less than men, but Title VII case law has yet to directly address the issue. In the absence of such direction, MNCs should proceed with a fact-dependent analysis that balances the interests of the corporation with gender …

Over My Dead Body: A New Approach To Testamentary Restraints On Marriage, Ruth S. Lee

Ruth S Lee

Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a grant, devise, or bequest, on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage—prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as it is “reasonable.” A restraint is “unreasonable” if a marriage permitted by the restraint …