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Articles 1 - 30 of 31
Full-Text Articles in Law
Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman
Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman
Faculty Scholarship
Title IX protects against sex-based discrimination and harassment in covered education programs and activities. The Biden Administration's recently proposed Title IX regulations do not, however, include discrimination on the basis of menstruation or related conditions as a form of discrimination based on sex. This comment on the proposed regulations explains why the regulations should include conditions related to menstruation and recommends changes for how to do so.
The “Welfare Queen” Goes To The Polls: Race-Based Fractures In Gender Politics And Opportunities For Intersectional Coalitions, Catherine Powell, Camille Gear Rich
The “Welfare Queen” Goes To The Polls: Race-Based Fractures In Gender Politics And Opportunities For Intersectional Coalitions, Catherine Powell, Camille Gear Rich
Faculty Scholarship
No abstract provided.
Race, Gender And Nation In An Age Of Shifting Borders: The Unstable Prism Of Motherhood And Masculinity, Catherine Powell
Race, Gender And Nation In An Age Of Shifting Borders: The Unstable Prism Of Motherhood And Masculinity, Catherine Powell
Faculty Scholarship
No abstract provided.
Introduction, Special Issue: Feminist Legal Theory, Maxine Eichner, Clare Huntington
Introduction, Special Issue: Feminist Legal Theory, Maxine Eichner, Clare Huntington
Faculty Scholarship
No abstract provided.
U.S. Global Aids Funding And Its Discontents: Why The Supreme Court Must Strike Down The Anti-Prostitution Pledge, Chi Adanna Mgbako
U.S. Global Aids Funding And Its Discontents: Why The Supreme Court Must Strike Down The Anti-Prostitution Pledge, Chi Adanna Mgbako
Faculty Scholarship
This op-ed recommends that the U.S. Supreme Court strike down the "anti-prostitution pledge," a Congressional requirement forcing organizations receiving U.S. global AIDS funding to adopt policies "opposing prostitution and sex trafficking."
The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus
The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus
Faculty Scholarship
Activists for sex worker rights in South Africa are leading a sophisticated national campaign to decriminalize sex work. This Article serves as an act of solidarity with these activists’ continued efforts to fight for and realize sex workers’ human rights by examining the negative impact that criminalizing prostitution has on sex workers’ rights and presenting evidence-based arguments to show that South Africa should enact legislation to fully decriminalize sex work. South African sex workers’ real-life experiences with violence, police abuse, and lack of access to health care and the justice system, highlighted through interviews conducted by the authors during fieldwork …
Witchcraft Accusations And Human Rights: Case Studies From Malawi, Chi Adanna Mgbako, Katherine Glenn
Witchcraft Accusations And Human Rights: Case Studies From Malawi, Chi Adanna Mgbako, Katherine Glenn
Faculty Scholarship
This Article explores potential community-based interventions to assist victims of witchcraft accusations, based on forty-five case studies from an experimental mobile legal-aid clinic in Malawi, a country in southeastern Africa where witchcraft accusations are widespread and often irreparably harm those accused. In Malawi, the accused are mainly older women who are often blamed for bewitching young children.
Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins
Faculty Scholarship
In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …
Penetrating The Silence In Sierra Leone: A Blueprint For The Eradication Of Female Genital Mutilation, Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad, Helen Shin
Penetrating The Silence In Sierra Leone: A Blueprint For The Eradication Of Female Genital Mutilation, Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad, Helen Shin
Faculty Scholarship
The African grassroots movement to eradicate female genital mutilation (also known as “female genital cutting” and “female circumcision,” hereinafter “FGM”) is widespread. While many African countries and grassroots organizations have made great strides in their efforts to eliminate FGM, Sierra Leone lags behind. In Sierra Leone, FGM is practiced within the bondo secret society, an ancient, all-female commune located in West Africa and also known as the sande. The bondo society’s traditional role was to direct girls’ rites of passage into adulthood. In order to become a member of the bondo, a girl or woman must undergo various rituals, the …
Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink
Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink
Faculty Scholarship
Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …
Latino Inter-Ethnic Employment Discrimination And The Diversity Defense, Tanya K. Hernandez
Latino Inter-Ethnic Employment Discrimination And The Diversity Defense, Tanya K. Hernandez
Faculty Scholarship
With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists …
Welcome And Opening Remarks Work/Life Conflict In The Legal Profession, Jamie Amir, Sarah Lechner, Stuart L. Deutsch, Tanya Kateri Hernandez
Welcome And Opening Remarks Work/Life Conflict In The Legal Profession, Jamie Amir, Sarah Lechner, Stuart L. Deutsch, Tanya Kateri Hernandez
Faculty Scholarship
At a symposium sponsored by the Women’s Rights Law Reporter, Professor Tanya Hernandez introduces the keynote speaker, Professor Joan Williams, a law professor at the American Law School, Washington College of Law in Washington,D.C. where she teaches Property, Women's Legal History, Feminist Jurist Prudence, and a Jurist Prudence seminar. The topic of the symposium is Work/Life Conflict in the Legal Profession.
Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez
Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez
Faculty Scholarship
In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …
Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds
Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds
Faculty Scholarship
This paper is part of a Symposium that considered the relevance of domestic conflict resolution theories in broader cultural contexts. The Northern Ireland Women's Coalition (Women's Coalition) participated in the negotiations leading up to the 1998 Good Friday/Belfast Agreement. Members of the Woman's Coalition responded to thirty years of sectarian violence with a negotiation process based on accommodation, inclusion, and relationship building, concepts that resonate with American-style problem-solving negotiation. Using the Women's Coalition as a case study, this Article suggests that there are procedural aspects of problem-solving negotiation theory that may work across domains, specifically in multi-party, intractable conflict situations, …
Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins
Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins
Faculty Scholarship
Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to "break[] down old patterns of segregation and hierarchy," the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …
Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez
Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez
Faculty Scholarship
In order to do my homework in discussing both a tribute to women's lawyering and activism and also discuss emerging issues, I am going to focus on sexual harassment.
Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister
Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister
Faculty Scholarship
Most courts hold that, by agreeing to have an illegal abortion, a woman forfeits her right to recover for injuries tortuously inflicted during that abortion. Nevertheless, most courts do permit suits by those injured in the course of committing other crimes, and they usually do so without considering whether plaintiff's criminal conduct should prevent recovery. Part II of this Article explores and discredits the reasons offered for prohibiting recovery in abortion suits. 21 Part III analyzes, on a chronological basis, each state's decisions prohibiting such recovery. Part IV discusses possible explanations for the abortion decisions, noting that these women's claims …
Sexual Harassment And Racial Disparity: The Mutual Construction Of Gender And Race, Tanya K. Hernandez
Sexual Harassment And Racial Disparity: The Mutual Construction Of Gender And Race, Tanya K. Hernandez
Faculty Scholarship
For a number of years, commentators have proffered anecdotal evidence to suggest that women of color figure prominently as sexual harassment plaintiffs. Until recently, a systematic statistical analysis of women's experiences of sexual harassment by race was largely unavailable. For the first time, this Article comprehensively analyzes Equal Employment Opportunity Commission (EEOC) sexual harassment charge statistics, by looking at data from the last seven years along with Lexis-Nexis and Westlaw electronic reports of sexual harassment complaints for the last twenty years. What immediately becomes apparent in this statistical analysis of sexual harassment charges in the United States is the overrepresentation …
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Faculty Scholarship
The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …
Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins
Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins
Faculty Scholarship
The public/private distinction has been a target of thoroughgoing feminist critique for quite some time now. Indeed, attacking the public/private line has been one of the primary concerns (if not the primary concern) of feminist legal theorizing for over two decades. If Carole Pateman is correct, one would think that this particular problem might be assigned to the category of "finished business" by this time. In this Essay, I do argue that the critique is, in certain ways, finished business in that it is no longer particularly useful in its most common forms. More importantly, however, I suggest several ways …
Regarding Rights: An Essay Honoring The Fiftieth Anniversary Of The Universal Declaration Of Human Rights Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights, Tracy E. Higgins
Faculty Scholarship
The half-century since the drafting of the Universal Declaration of Human Rights' has been famously heralded as the "Age of Rights" and the concept of human rights described as "the only political-moral idea that has gained universal acceptance." During the same period, however, both terms defining the subject-human and rights-have become increasingly contested. Informed by the emergence of identity-based political movements, critics have attacked the category human has as bearing the baggage of Western Enlightenment assumptions about personhood and community, inherently racist, sexist, and classist. Theorists across the political spectrum have criticized the concept of rights as indeterminate, destructive of …
Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson
Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson
Faculty Scholarship
In this article, Professor Nicholas J. Johnson explores the parallels between the right of armed self-defense and the woman's right to abortion. Professor Johnson demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right to armed self-defense. Professor Johnson uncovers common ground between the gun and abortion rights - two rights that have come to symbolize society's deepest social and cultural divisions - divisions that prompt many to embrace the abortion right while summarily rejecting the gun right. Unreflective disparagement of the gun right, he argues, threatens the vitality of the abortion …
Why Mandatory Hiv Testing Of Pregnant Women And Newborns Must Fail: A Legal, Historical, And Public Policy Analysis Special Issue: Mandatory Hiv Testing Of Newborns And Their Mothers, Elizabeth B. Cooper
Why Mandatory Hiv Testing Of Pregnant Women And Newborns Must Fail: A Legal, Historical, And Public Policy Analysis Special Issue: Mandatory Hiv Testing Of Newborns And Their Mothers, Elizabeth B. Cooper
Faculty Scholarship
The debate surrounding mandatory HIV testing of newborns and pregnant women requires an understanding of the historical context of women in the epidemic. Although the epidemic first was recognized in gay men in 1981, anecdotal reports reveal that women already were dying from what seems to have been HIV-related symptomatology. Indeed, in Gena Corea's book, The Invisible Epidemic, we learn that, as early as 1981, not insignificant numbers of drug-using and former drug-using women were falling ill and not recovering from conditions that normally are not fatal, including bacterial pneumonia. Yet, because we did not necessarily expect these populations to …
Straying From The Path Of The Law After One Hundred Years, The, Tracy E. Higgins
Straying From The Path Of The Law After One Hundred Years, The, Tracy E. Higgins
Faculty Scholarship
What common ground can be found between modern feminist legal theory and a century-old essay advocating understanding the law from the perspective of the "bad man"? The question admits of no simple answer. Feminists, including myself, might agree with some irony that "[i]f you want to know the law and nothing else, you must look at it as a bad man" but would add that this is precisely the problem. Of course, Holmes does not use the concept of the bad man in a feminist sense to suggest that the law empowers the bad man at the expense of women. …
(Dis)Assembling Rights Of Women Workers Along The Global Assembly Line: Human Rights And The Garment Industry Symposium: Political Lawyering: Conversations On Progressive Social Change, Laura Ho, Catherine Powell, Leti Volpp
(Dis)Assembling Rights Of Women Workers Along The Global Assembly Line: Human Rights And The Garment Industry Symposium: Political Lawyering: Conversations On Progressive Social Change, Laura Ho, Catherine Powell, Leti Volpp
Faculty Scholarship
Some observers would like to explain away sweatshops as immigrants exploiting other immigrants, as "cultural, or as the importation of a form of exploitation that normally does not happen here but occurs elsewhere, in the "Third World." While the public was shocked by the discovery at El Monte, garment workers and garment worker advocates have for years been describing abuses in the garment industry and have ascribed responsibility for such abuses to manufacturers and retailers who control the industry. Sweatshops, like the one in El Monte, are a home-grown problem with peculiarly American roots. Since the inception of the garment …
Anti-Essentialism, Relativism, And Human Rights , Tracy E. Higgins
Anti-Essentialism, Relativism, And Human Rights , Tracy E. Higgins
Faculty Scholarship
Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women's freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness. Yet to forge an alternative path is difficult, …
Democracy And Feminism , Tracy E. Higgins
Democracy And Feminism , Tracy E. Higgins
Faculty Scholarship
Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …
By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins
By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins
Faculty Scholarship
Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in …
Women Judges And Better Justice For All, John D. Feerick
Women Judges And Better Justice For All, John D. Feerick
Faculty Scholarship
According to the most recent report of The New York Judicial Committee on Women in the Courts, published in October 1992, out of a total of 1,129 judges, only 183 are female. It is clear women are under-represented in the judiciary. Decisive action is required in order to increase opportunities for women to become judges. In January 1992, Governor Cuomo's Task Force on Judicial Diversity ("the Task Force") issued its report. The Task Force strongly supported diversity and set forth compelling reasons why a diverse bench is in the public interest. The report reminded us that "diversity is vital because …
Charleston Policy: Substance Or Abuse, The , Kimani Paul-Emile
Charleston Policy: Substance Or Abuse, The , Kimani Paul-Emile
Faculty Scholarship
In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.