Law Commons^™

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Law & Economics Working Papers

Because Title IX of the Education Amendments of 1972 involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), the administration of that statute by the Department of Education's Office for Civil Rights has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have …

Born Free: Toward An Expansive Definition Of Sex, Laura Palk, Shelly Grunsted

Michigan Journal of Gender & Law

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety …

Pornography As Trafficking, Catharine A. Mackinnon

Michigan Journal of International Law

In material reality, pornography is one way women and children are trafficked for sex. To make visual pornography, the bulk of the industry's products, real women and children, and some men, are rented out for use in commercial sex acts. In the resulting materials, these people are then conveyed and sold for a buyer's sexual use. Obscenity laws, the traditional legal approach to the problem, do not care about these realities at all. The morality of what is said and shown remains their focus and concern. The injuries inflicted on real people to make the materials, or because they are …

Incompletely Reasoned Sex: A Review Of Posner's Somewhat Misleading Guide To The Economic Analysis Of Sex And Family Law, Martin Zelder

Michigan Law Review

A Review of Sex and Reason by Richard A. Posner

The Sexual Innocence Inference Theory As A Basis For The Admissibility Of A Child Molestation Victim's Prior Sexual Conduct, Christopher B. Reid

Michigan Law Review

The sexual innocence inference refers to the thought process a jury follows when it hears a young child testify about sexual acts and matters that reveal an understanding of such acts beyond the capacity likely at his or her age. A jury is likely to assume that because the child is so young, he or she must be innocent of sexual matters. Shocked by the child's display on the witness stand, the jury may then infer that the child could have acquired such knowledge only if the charged offense of child molestation is true. To rebut this inference, a defendant …

Law And Sex, Christina B. Whitman

Reviews

In Feminism Unmodified, a collection of speeches given between 1981 and 1986, Catharine MacKinnon talks of law from the perspective of feminism. MacKinnon does not approach her topic as a lawyer with a uniquely legal perspective on feminism; she brings, instead, a distinctively feminist approach to law. Nor is the feminism from which she speaks grounded in the standard political theories: MacKinnon disclaims and attacks the Marxist approach to feminism, the socialist approach to feminism, and, most emphatically and repeatedly, the liberal approach to feminism that has been embraced by many lawyers in their effort to use law to eliminate …

The Constitutional Status Of Marriage, Kinship, And Sexual Privacy -- Balancing The Individual And Social Interests, Bruce C. Hafen

Michigan Law Review

Today's lopsided competition between the individual and social interests has made the law a party to the contemporary haze that clouds our vision of what a family is or should be. In that sense, recent legal developments have contributed to the crisis Stanley Hauerwas has identified regarding American family life today - our inability to define "what kind of family should exist" and our inability to articulate ''why we should think of [the family] as our most basic moral institution."

In response to those two questions, this Article considers whether, as a constitutional matter, the courts should recognize claims by …

Fornication, Cohabitation, And The Constitution, Michigan Law Review

Michigan Law Review

This Note begins with the indisputable assumption that laws prohibiting fornication and cohabitation are nowhere explioitly forbidden by the Constitution. If a right to engage in consensual adult heterosexual activity exists, it will most convincingly be inferred from the Court's cases establishing a right of "privacy." The Note first seeks to discover an adequate definition of privacy which might lead to a decision whether "privacy" encompasses the right .to fornicate or cohabit (a right which, for brevity's sake, we will somewhat imprecisely call the right to, sexual privacy), but it finds no such definition. The Note therefore proceeds to investigate …

Prohibiting Nonaccess Testimony By Spouses: Does Lord Mansfield's Rule Protect Illegitimates?, Michigan Law Review

Michigan Law Review

Not surprisingly, there has been widespread disagreement concerning the validity of the policies advanced in support of Lord Mansfield's Rule and the efficacy of the rule to promote those policies. This Note assesses the validity of this rule of evidence in order to determine whether it is the most appropriate method of safeguarding the interests affected by the litigation of legitimacy. First, the historical development and justifications for Lord Mansfield's Rule are identified, and, in section II, the extent of the current acceptance of the rule in the United States is delineated. Section III analyzes traditional arguments advanced in support …

Conjugal Visitation Rights And The Appropriate Standard Of Judicial Review For Prison Regulations, Michigan Law Review

Michigan Law Review

Conjugal visitation rights allow prison inmates and spouses to visit privately and have sexual relations. A number of countries, particularly in Latin America, permit conjugal visits. Although in the United States only Mississippi and California currently permit conjugal visitation, the experience of these two states shows that such programs are workable. Conjugal visitation has met with varied reaction in the literature, but persuasive arguments have been made that it would offer potential psychological benefits to the prisoner, reduce prison homosexuality, and allow the inmate to preserve his or her marital ties. Nevertheless, the reaction of penal administrators in this country …

The Constitutionality Of Laws Forbidding Private Homosexual Conduct, Michigan Law Review

Michigan Law Review

The laws of forty-three states and the District of Columbia impose criminal penalties on consenting adults who engage in private homosexual conduct. Most of these laws are sodomy statutes, which also prohibit oral and anal intercourse between heterosexuals and sexual acts with animals. Two states have statutes explicitly limited to homosexual conduct. These statutes also prohibit nonconsensual homosexual activity and homosexual acts involving a minor, but this Note addresses only prohibitions on private consensual adult homosexual conduct.