Law Commons^™

The Interstate Commerce Of Abortion: A Constitutional Argument For The Federal Invalidation Of Restrictive State Abortion Laws, Kaiya Amelia Lyons

Kaiya Amelia Lyons

No abstract provided.

A 'Velvet Hammer': The Criminalization Of Motherhood And The New Maternalism, Eliza Duggan

Eliza Duggan

In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during pregnancy in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women if they use drugs. This Article suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which enforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from …

In Search Of Women’S Equal Right To Property In India - Recent Judicial Developments, Archana Mishra

Archana Mishra

Women’s economic status influenced by her ownership and control over immovable property is hardly reflected in Indian society even after India having achieved independence more than half a century before. Effective rights to women in property cannot spring from closed and restrictive mindset of the legislature. The recent decisions of Supreme Court of India and various High Courts expanding the scope of much denied property rights to women in India encapsulate the essence and spirit of the Constitution. Some of the recent striking developments in the field of allowing property rights to women e.g., right of tribal women in property, …

The Hidden Psychology Of Constitutional Criminal Procedure, Tonja Jacobi, Jesse-Justin Cuevas

Tonja Jacobi

There is vast empirical evidence of the difference in men and women’s perceptions of and responses to police authority, their speech patterns and conduct. Yet these differences are rarely reflected in constitutional criminal procedure law, despite many of its rules hinging on a person’s manner of expression or subtleties of behavior. Similar evidence exists for the systematic impact of juvenile status and intellectual disability, but only modest and ad hoc consideration has been given to these factors. The result is that the “reasonable person” is actually implicitly a white male, adult and able-minded. His speech and conduct are treated as …

Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra Prof.

Surabhi Chopra Prof.

DEALING WITH DANGEROUS WOMEN: SEXUAL ASSAULT UNDER COVER OF NATIONAL SECURITY LAWS IN INDIA

This article examines violence against women suspected of being security threats in India’s internal conflict zones, one of the very few scholarly works to do so.

I focus on two cases in particular. In 2004, Thangjam Manorama was arrested by paramilitaries on suspicion of belonging to a violent separatist group, and found raped and murdered several hours later. I look at her family’s attempts to hold the armed forces accountable for her death. I also look at the ongoing criminal prosecution of Soni Sori, an indigenous …

The Ncaa's Transgender Student-Athlete Policy: How Attempting To Be More Inclusive Has Led To Gender And Gender Identity Discrimination, Elliot S. Rozenberg

Elliot S Rozenberg

No abstract provided.

Corporate Boardroom Diversity: Why Are We Still Talking About This?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for any organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? My goal is to provide answers to these questions, and to discuss …

In The Name Of The Child: Race, Gender, And Economics In Adoptive Couple V. Baby Girl, Bethany Berger

Bethany Berger

On June 25, 2013, the Supreme Court decided Adoptive Couple v. Baby Girl, holding that the Indian Child Welfare Act did not permit the Cherokee father in that case to object to termination of his parental rights. The case is ostensibly about a dispute between prospective adoptive parents and a biological father. This Article demonstrates that it is about a lot more than that. It is a microcosm of anxieties about Indian-ness, race, and the changing nature of parenthood. While made in the name of the child, moreover, the decision supports practices and policies that do not forward and may …

Self-Determination, Subordination, And Semantics: Rhetorical And Real-World Conflicts Over The Human Rights Of Indigenous Women, Sam Grey

Sam Grey

Indigenous women have long been engaged in unambiguous advocacy for a human rights-based approach to gender injustice in their communities and nations. Indigenous nations, for their part, have repeatedly and passionately posited collective human rights as necessary for the protection of cultural distinction. These projects should be reconcilable – but this reconciliation requires the political will to critically engage with historical and contemporary colonialism, and to address the internalization of patriarchy and sexism in Indigenous societies today. With such a will in place, it becomes possible to operationalize a single Indigenous ‘self-determination’ project grounded in human rights, one that sees …

Head Of The Household: Hegemonic Masculinity And The State, Laura B. Wolf

Laura B. Wolf

In this paper, I will attempt to bridge feminist legal scholarship with masculinities scholarship to lay bare the ways in which our patriarchal structure simultaneously oppresses men while subordinating women. My hope is that this connection between the theories will lead to greater coalition-building between men and women to bring about the end of state-sponsored patriarchy.

Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence, Rachel Simon

Rachel Simon

This article addresses the gender bias presented by the disparate treatment of sex and violence under current obscenity jurisprudence. Under the controlling standard set forth by the Supreme Court in Miller v. California, sexual works may readily be regulated as obscenity, while violent works unequivocally may not. This article posits that this disparate treatment is the product of entrenched stereotypes about the way men and women “should” react to sex and violence, and notes the hypocrisy of failing to apply the same reasoning to assessments of violent versus sexual material.

First, reliance on “community standards” to define what material …

Regulating The Family: The Impact Of Pro-Family Policy Making Assessments On Women And Non-Traditional Families, Robin S. Maril

Robin S. Maril

Beginning in the 1980s, pro-family advocates lobbied the Reagan administration to take a stronger, more direct role in enforcing traditional family norms through agency rulemaking. In 1986 the White House Working Group on the Family published a report entitled, The Family: Preserving America’s Future, detailing what its authors perceived to be the biggest threats to the “American household of persons related by blood, marriage or adoption – the traditional . . . family.” These threats included a lax sexual culture carried over from the 1960s, resulting in rising divorce rates, children born “out of wedlock,” and increased acceptance of “alternative …

A Noble Cause: A Case Study Of Discrimination, Symbols, And Reciprocity, In: Diversity And European Human Rights, Yofi Tirosh

Yofi Tirosh

This chapter is part of a volume dedicated to rewriting human rights cases issued by the European Court of Human Rights. It uses the case of De La Cierva Osorio De Moscoso v. Spain (1999) as a platform to discuss the inherent tension typifying signs such as nobility titles – as merely symbolic or as carrying substantive content. The problem of one’s ownership of signs is especially acute in the case of women. I will argue that the distinction between form and substance collapses in this case, as in many other cases that involve allocation of allegedly merely symbolic signifiers …

The Limits Of Debate Or What We Talk About When We Talk About Gender Imbalance On The Bench, Keith Bybee

Keith J. Bybee

What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

The Intersection Of Women's Olympic Sport And Intersex Athletes: A Long And Winding Road, Daniel Gandert

Daniel J Gandert

After a victorious performance in the women’s 800 meter event at the 12th International Association of Athletic Federations (IAAF) World Championships in Berlin, the 18-year old runner Caster Semenya was under suspicion of not being female. She was required to undergo sex determination testing, also known as gender testing. While Semenya’s rivals likely found her case to be unique, athletes with similar conditions are not new to international competition and less-than-sensitive handling of such cases has regrettably been the norm in the past.

In May of 2011, and perhaps spurred by the Semenya case, the IAAF announced new eligibility rules …

A Right To Sexual Orientation Privacy: Strengthening Protections For Minors Who Are Outed In Schools, Adam J. Kretz

Adam Kretz

This Article examines a unique question in constitutional law and privacy rights – namely, what rights minor students have to control who can and cannot be informed of their sexual orientation. Through an examination of case law and social science data, the Article proposes that students should hold greater power over information regarding their sexual orientation, and hold responsible school officials who “out” students to a family member, parent, or guardian without the student’s consent.

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 …

The Female-Firm Under-Performance Hypothesis And Gender Disparity In The Laws, Mohammad Amin

Mohammad Amin

Using firm-level data on developing countries, the present paper explores and extends the well-known female-firm under-performance hypothesis. Using firm-size as the measure of performance, we contribute to the literature in three important ways. First, in contrast to existing studies that focus on the gender of the owner(s), we focus on the gender of the top manager of the firm. Hence, a new dimension of female vs. male-firms is suggested. Second, we argue that the gender-based difference in firm-size in favor of men need not be uniform across countries. Specifically, we argue that it is likely to be larger in countries …

Security, Gender And Post-Conflict Reconstruction: The Need For A “Woman Question” When Engaging In Reconstruction, Isaac Kfir

Isaac Kfir

In the field of post-conflict reconstruction, gender-related issues are mostly analyzed through a legal or a development paradigm. These conditions, coupled with a general disinclination by the international community—the industrialized, western countries—to challenge cultural norms, whether real or imagined, allows for a security-first and/or a security-development nexus to take precedence regarding post-conflict reconstruction. This paper advances the argument that by viewing gender issues as existential to the security of a state transitioning out of conflict, as opposed to viewing gender as a development or a legal issue, makes it possible to engage in real reconstruction, which means addressing the gender …

Gender Factor In The Insurance Law: Recent Development Of The Ecj In Context With The U.S. Approach, Vadim Mantrov

Vadim Mantrov

This essay discusses recent development of the Court of Justice of the European Union (ECJ) on lawfulness of the use of the gender factor in calculation of insurance premiums and benefits. After summarizing effective regulation of the United States and the European Union, the essay provides not only relevant facts and reasoning of the ECJ but also critical review of this reasoning and reveals differences of approaches between the U.S. Supreme court and the ECJ. Still, it concludes that the ECJ left door open for possible adaptations for lawfulness of the use of gender factor in future.

Flexible Work Schedule, Child Care And Female Employment In Developing Countries: Evidence Using Firm-Level Data, Mohammad Amin

Mohammad Amin

Using newly available data on whether a country gives additional legal rights or not for flexible or part-time work schedule to employees with minor children, we analyze the impact of such provision in the law on female employment. For a representative sample of manufacturing firms in 57 developing countries, we find that the stated provision in the law has a large positive effect on the employment of females. Specifically, on the conservative side, the provision in the law increases the proportion of females in the workforce by 7.7 percentage points, a large effect given that on average females constitute 32 …

Gender Factor In The Insurance Law: Recent Development Of The Ecj In Context With The U.S. Approach, Vadim Mantrov

Vadim Mantrov

This essay discusses recent development of the Court of Justice of the European Union (ECJ) on lawfulness of the use of the gender factor in calculation of insurance premiums and benefits. After summarizing effective regulation of the United States and the European Union, the essay provides not only relevant facts and reasoning of the ECJ but also critical review of this reasoning and reveals differences of approaches between the U.S. Supreme court and the ECJ. Still, it concludes that the ECJ left door open for possible adaptations for lawfulness of the use of gender factor in future.

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 …

Lgbt Taxpayers: A Collision Of "Others", Anthony C. Infanti

Anthony C. Infanti

In this essay prepared for a symposium on the intersection of tax law with gender and sexuality, I explore the violent collision of these two concepts - or, more appropriately, these two “others.” I begin my exploration of this collision of “others” by first explaining how the lesbian, gay, bisexual, and transgender (LGBT) community is a marginalized “other” in American society while, in contrast, tax is a privileged “other” in the realm of American law. Then, I turn to a close examination of a recent case, O’Donnabhain v. Commissioner, to illustrate the collision of the otherness of LGBT individuals with …

Of Coyotes, Cooperation, And Capital: Social Capital And Women’S Migration At The Margins Of The State, Anna O. Oleary

Anna Ochoa OLeary

Examined here are some of the tenets of social capital in the context of the migrants’ crossing the U.S.-Mexico border without official authorization. Using this context helps identify how social capital development is weakened by the structural and gendered dimensions of migration, contributing to the rise in undocumented border crosser deaths since 1993.

Mixed Immigration Status Households In The Context Of Arizona’S Anti-Immigrant Policies, Anna O. Oleary, Azucena Sanchez

Anna Ochoa OLeary

Although the seeds of legislated restrictions for immigrants can be traced to 1986 with California’s unsuccessful Prop 187, more recent trends epitomized by Arizona’s proposed Senate Bill 1070, signed by that state’s governor in April, 2010, have renewed concerns about the effects that such measures will have on the life and livelihood of communities that include immigrants present in the country without official authorization (“undocumented immigrants”). In this paper we use some of the results of a binational study of reproductive health care strategies to show how emerging anti-immigrant policies neglect how such policies impact mixed immigration status households, a …

Imbrication Of Legal And Expert Discourses On Monoparental Adoptive Processes, Raquel Medina Plana

Raquel Medina Plana

Long and complex, international adoption processes can be seen as constituting a set of performative practices which involve strategies of transmission/ incorporation of culture, implying the construction of relational identities or subjectivities. With an “educational” drive, and a strong uniformity aspiration, the relevant institutions would be constructing a unified kind of adoptive parenthood, not just in their public dimension but also on the more intimate identity configuration level: the emotional life, affections, expectations, personal history… (Borrillo and Pitois-Etienne, 2004). When confronted with “non-traditional” family projects (as it is the case with monoparental adoption), adoptive processes perform a strong governmental control …

Feminism In The Global Political Economy: Contradiction And Consensus In Cuba, Deborah M. Weissman

Deborah M. Weissman

Much has been written about transnational feminist networks and their impacts on the local condition of women. Transborder feminist organizing has reshaped discourses and practice from the local to the international. Global feminist endeavors have influenced the development of international legal standards affecting the circumstances of women and contributed to the gender mainstreaming of human rights initiatives. At the same time, feminist transnationalism has often been identified as the source of tension as efforts have at times resulted in support for a neoliberal agenda propounding empowerment and self-esteem issues, which in turn, has raised questions about who is defining the …

The Role Of Women In Mediation And Conflict Resolution: Lessons For Un Security Council Resolution 1325, Roohia S. Klein

Roohia S Klein

The impact of war on women is often disproportionate and distinct from the effect it has on men. Given the second-class status of women in many societies, their skills and contributions are often under-valued and under-utilized. UN Security Council Resolution 1325 (SCR1325) recognizes the importance of increasing the role of women in all aspects of maintaining international peace and security, including encouraging women to take an active role in resolving conflicts (sections 2, 8b and 16 of SCR1325). This last aspect of SCR1325 reflects an increasing recognition of the effect of gender in conflict resolution. This paper draws upon academic …