Law Commons^™

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

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This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Velvet Rope Discrimination, Shaun Ossei-Owusu

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Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming pools, movie theaters, and lunch counters. These sites were also important for the Women’s Rights Movement, which challenged sexist norms that prohibited their service in bars and restaurants if they were unaccompanied by men. Tragically, public accommodation law has fallen off the civil rights race and gender agenda. This inattention exists despite media accounts, case law, and empirical data that demonstrate that discrimination …

Lessons Learned From The Suffrage Movement, Margaret E. Johnson

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No abstract provided.

The Technology Enterprise: Systemic Bias Against Women, Lori Andrews

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No abstract provided.

An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani

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One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Essay offers crucial context by reminding readers …

The Role Of Personal Laws In Creating A “Second Sex”, Rangita De Silva De Alwis, Indira Jaising

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The cultural construction of gender determines the role of women and girls within the family in many societies. Gendered notions of power in the family are often shrouded in religion and custom and find their deepest expression in Personal Laws. This essay examines the international law framework as it relates to personal laws and the commonality of narratives of litigators and plaintiffs in the cases from the three different personal law systems in India.

The "Rabbi's Daughter" And The "Jewish Jane Addams": Jewish Women, Legal Aid, And The Fluidity Of Identity, 1890-1930, Felice Batlan

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No abstract provided.

The "Rabbi's Daughter" And The "Jewish Jane Addams": Jewish Women, Legal Aid, And The Fluidity Of Identity, 1890-1930, Felice Batlan

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This symposium article discusses an unexamined area of legal aid and legal history—the role that late nineteenth and early twentieth century Jewish women played in the delivery of legal aid as social workers, lawyers, and, importantly, as cultural and legal brokers. It presents two such women who represented different types and models of legal aid—Minnie Low of the Chicago Bureau of Personal Service, a Jewish social welfare organization, and Rosalie Loew of the Legal Aid Society of New York. I interrogate how these women negotiated their identities as Jewish professional women, what role being Jewish and female played in shaping …

En-Gendering Economic Inequality, Michele E. Gilman

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We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …

A Home With Dignity: Domestic Violence And Property Rights, Margaret E. Johnson

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This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals-achieving …

The Return Of The Welfare Queen, Michele E. Gilman

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After welfare reform was passed in 1996, there was every reason to hope that the welfare queen was dead. The “welfare queen” was shorthand for a lazy woman of color, with numerous children she cannot support, who is cheating taxpayers by abusing the system to collect government assistance. For years, this long-standing racist and gendered stereotype was used to attack the poor and the cash assistance programs that support them. In 1996, TANF capped welfare receipt to five years and required work as a condition of eligibility, thus stripping the welfare queen of her throne of dependency. Nevertheless, during the …

To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick

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This Essay deepens the discussion Professor Levinson began in his lecture for the Richard J. Childress Memorial Lecture at SLU Law, Who Counts?. Professor Levinson explored the question of who counts as a member of the US community, and who gets to decide who counts. Inevitably, given our history of exclusion on the basis of race and sex, questions about belonging and race and sex form a central part of the current debate. Labeling a person with a race and sex presupposes the questions of what makes a person a certain race or sex? This essay explores what identity …

Pauli Murray And The Twentieth-Century Quest For Legal And Social Equality, Serena Mayeri

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No abstract provided.

Civil Rights Reform And The Body, Tobias Barrington Wolff

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Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom -- who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom -- as the reason to permit discrimination in the workplace, housing, and places of public accommodation. This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

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This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Looking At Regional Trade Agreements Through The Lens Of Gender, Constance Z. Wagner

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This article focuses on an unresolved issue within international trade law and policy, namely whether there is a need to consider gender-differentiated impacts of trade agreements and if so, how such impacts should be addressed. The author argues in favor of a gender aware approach to trade, discussing this topic within the context of regional trade agreements (“RTAs”), which are being used increasingly as a route to economic integration among nations. While there is evidence of gender-differentiated impacts of trade liberalization, there has been little progress made in advancing an agenda to address gender issues at the level of multilateral …

Sex Exceptionalism In Intellectual Property, Jennifer E. Rothman

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The state regulates sexual activity through a combination of criminal and civil sanctions and the award of benefits, such as marriage and First Amendment protections, for acts and speech that conform with the state’s vision of acceptable sex. Although the penalties for non-compliance with the state’s vision of appropriate sex are less severe in intellectual property law than those, for example, in criminal or family law, IP law also signals the state’s views of sex. In this Article written for the Stanford symposium on the Adult Entertainment industry, I extend my consideration of the law’s treatment of sex after Lawrence …

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

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In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the …

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

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This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

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The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Sex In And Out Of Intimacy, Laura Rosenbury, Jennifer Rothman

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The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only …

Not Our Mother's Law School?: A Third-Wave Feminist Study Of Women's Experiences In Law School (With Kelly Hradsky, Kristen Jeschke, Lavonne Meyer & Jill Roberts), Felice J. Batlan, Kelly Hradsky, Kristen Jeschke, Lavonne Meyer, Jill Roberts

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No abstract provided.

Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax

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The theory of Stereotype Threat (ST) predicts that, when widely accepted stereotypes allege a group’s intellectual inferiority, fears of confirming these stereotypes cause individuals in the group to underperform relative to their true ability and knowledge. There are now hundreds of published studies purporting to document an impact for ST on the performance of women and racial minorities in a range of situations. This article reviews the literature on stereotype threat, focusing especially on studies investigating the influence of ST in the context of gender. It concludes that there is currently no justification for concluding that ST explains women’s underperformance …

Women’S Unequal Citizenship At The Border: Lessons From Three Nonfiction Films About The Women Of Juárez, Regina Austin

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There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the …

Casa Of Maryland And The Battle Regarding Human Trafficking And Domestic Worker Rights, Elizabeth Keyes

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At the November 2006 symposium presented by the University of Maryland Law Journal of Race, Religion, Gender and Class, the panelists discussed various issues regarding human trafficking. One entity at the forefront of the fight against human trafficking is CASA of Maryland. This article contains remarks originally made by the author that focused the topic of human trafficking on one particular group of workers: domestic workers. That particular group provides an interesting study because of the many race and gender issues that are wrapped up in the treatment of domestic workers under the law.

The "Duty" To Be A Rational Shareholder, David A. Hoffman

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How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important. As I establish through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, judicial findings of immateriality are remarkably common, and have been stable over time. Materiality's scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a reasonable investor. Thus, materiality …

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

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Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit …

Gender Bias: Continuing Challenges And Opportunities, Rebecca Korzec

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In 1873 the U.S. Supreme Court denied Myra Bradwell the right to practice law, holding "the paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother." Now, just slightly more a century later, two women sit on the Supreme Court, and almost half of all law students and law school faculty are women.

Recognizing Violence Against Women: Gender And The Hate Crimes Statistics Act, Elizabeth Pendo

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This article argues that acts of gender-based violence should be recognized under the Hate Crimes Statistics Act of 1990, and that certain types of violence against women, such as rape, are fundamentally gender-based. Part I examines the existing definition of hate crimes under the HCSA, and the exclusion of the majority of violence against women. Part II suggests gender should be included as a category under the HCSA because of the similar effects of violence directed at women due to gender, and violence directed at members of other groups because of their group identity. Using acquaintance rape as an example, …