Law Commons^™

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

Women, Leadership & Equality

No abstract provided.

Democracy, Gender, And Governance: Introduction, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Since at least the mid 1990s and the Fourth World Conference for Women in Beijing, gender as an analytic category and as a programmatic concern has become a mainstream part of international law. While feminists have traditionally understood their relation to international law in critical terms and from their position as outsiders, this turn toward gender equality places at least some feminists and some of their projects within the governance structure of international law itself. This crucial shift from exclusion to partial inclusion merits examination.

Transphobia And The Relational Production Of Gender, Elaine Craig

Articles, Book Chapters, & Popular Press

Knowing one's place in the social order, whether that place is one of relative privilege or not, serves two psychologically ameliorative functions. It relieves one from the “anxiety of [gender] identity interrogation” and it helps to inform one as to the socially agreed upon, acceptable conduct for interpersonal exchanges--the episteme of social interaction. This Paper will demonstrate that gender identity is produced through relational, contextually influenced, interpretative processes. Because gender is constructed in societies which strongly embrace static, binary conceptions of gender, and in which social, familial, occupational, and sexual *139 interactions are heavily influenced by gendered social scripts, gender …

Transphobia And The Relational Production Of Gender, Elaine Craig

Articles, Book Chapters, & Popular Press

Knowing one's place in the social order, whether that place is one of relative privilege or not, serves two psychologically ameliorative functions. It relieves one from the “anxiety of [gender] identity interrogation” and it helps to inform one as to the socially agreed upon, acceptable conduct for interpersonal exchanges--the episteme of social interaction. This Paper will demonstrate that gender identity is produced through relational, contextually influenced, interpretative processes. Because gender is constructed in societies which strongly embrace static, binary conceptions of gender, and in which social, familial, occupational, and sexual *139 interactions are heavily influenced by gendered social scripts, gender …

Red Families V. Blue Families, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

The "culture wars," as they play out in high profile Supreme Court decisions and legislative fights over abortion and same-sex marriage, are first and foremost about family values. Central to these differences - and the focus of the article - is the fact that different families in different parts of the country are leading different lives. The one clear, organizing principle that distinguishes the two systems: age of family formation. The defining characteristic of what we term the "new middle class morality" is delay in family formation until the late twenties or early thirties. This new morality, which correlates more …

Income And Career Satisfaction In The Legal Profession: Survey Data From Indiana Law School Graduates, Jeffrey E. Stake, Kenneth G. Dau-Schmidt, Kaushik Mukhopadhaya

Articles by Maurer Faculty

This article presents data on graduates of a law school located at a large, midwestern public university. It presents responses to survey questions relating to various personal and job characteristics, including income from the practice of law and career satisfaction. It compares the responses across various demographic groups, including type of practice, gender, race, and ethnicity. We find that lawyers in large private law firms make more money than lawyers in small private practices, who, in turn, make more than those in government or public interest positions. Career satisfaction is greatest for lawyers in corporate counsel, public interest, and government …

Behavioral Biology, The Rational Actor Model, And The New Feminist Agenda, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this paper, we will incorporate gender consciousness into critiques of the rational actor model by revisiting Carol Gilligan's account of moral development. Economics itself, led by the insights that have come from game theory, is reexamining trust, altruism, reciprocity and empathy. Behavioral economics, defined as "the combination of psychology and economics that investigates what happens in markets in which some of the agents display human limitations and complications," further explores the implications of a more robust conception of human motivation. We argue that the most likely source for a comprehensive theory will come from the integration of behavioral economics …

The Many Faces Of Darlene Jespersen, Michael Selmi

GW Law Faculty Publications & Other Works

This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact …

Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams

UF Law Faculty Publications

This article analyzes how the growing trend of litigation alleging employment discrimination based on workers' family caregiving responsibilities applies to law firms and other legal employers. Our research has found at least thirty-three cases since 1990 in which employees of law firms or other legal employers--both attorneys and support staff--have sued their employers for family responsibilities discrimination (“FRD”). FRD is discrimination against employees based on their family caregiving responsibilities for newborns, young children, elderly parents, or ill spouses or partners. Here we analyze these cases, including the employee experiences that have prompted litigation and the legal theories on which the …

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …

Same-Sex Marriage In New York, Lewis A. Silverman

Scholarly Works

No abstract provided.

Litigating Salvation: Race, Religion And Innocence In The Karla Faye Tucker And Gary Graham Cases, Melynda J. Price

Law Faculty Scholarly Articles

The cases of Karla Faye Tucker and Gary Graham represent two examples of the renewed public debate about the death penalty in the State of Texas, and how religion and race affect that debate. This article explores how the Tucker and Graham cases represent opposing possibilities for understanding contemporary narratives of the death penalty. Though the juxtaposition of these two cases is not completely symmetrical, if viewed as a kaleidoscope—a complex set of factors filtered through the shifting identities of the person who is at the center of the immediate case—the hidden operations of race and religion can be examined. …

Elizabeth Cady Stanton On The Federal Marriage Amendment: A Letter To The President, Tracy A. Thomas

Akron Law Faculty Publications

This essay written from a historical, first-person perspective explores the parallels between the current movement for a Federal Marriage Amendment and that of the nineteenth century through the lens of feminist Elizabeth Cady Stanton. Using the archival sources of Stanton’s articles and speeches from 1880 to 1902, the paper identifies her key arguments opposing a constitutional standard of marriage. The paper then juxtaposes Stanton’s arguments against the 2004 Federal Marriage Amendment to reveal the continued relevance and import of her insights.

Stanton’s analytical platform attacked the core pretexts of federalism and gender that fueled the proposed marriage amendment in her …

Still, At The Margins, Emily Houh

Faculty Articles and Other Publications

An anthology by Austin Sarat is reviewed from a critical race perspective. The book's agenda is to show how the law seeks to work in the world, particularly when, why, and how legal decisions respond to social characteristics of those making them as well as those who are subject to them. Also emphasized are the complex relations among the law's various parts (e.g., judges and jurors, police and prosecutors, appellate and trial courts). The book is organized around the law's paradoxes, purposes of the law which can be somewhat mutually exclusive. Many of the leading voices in the law and …

Gender And Constitutional Design, Paula A. Monopoli

Faculty Scholarship

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical …

To Err Is Human: Art Mix-Ups - A Labor-Based, Relational Proposal, Leslie Bender

College of Law - Faculty Scholarship

No abstract provided.

Rethinking Prison Sex: Self Expression And Safety, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

This article analyzes legislation and policies that limit prisoners' sexual expression and autonomy. The article juxtaposes prisoners interest in sexual expression against the interests of the state in regulating sex by and between prisoners. The article concludes that the state has an interest in regulating sex between inmates and staff and in regulating coerced or forced sex between inmates. In other instances prisons could accommodate prisoners' interest in sexual expression and achieve important goals such as better decisionmaking; improved relations with family and partners to aid community reentry; reduction of prison rape; and as inmate management.

Confronting Conventional Thinking: The Heuristics Problem In Feminist Legal Theory, Nancy Levit

Faculty Works

The thesis of The Heuristics Problem is that the societal problems about which identity theorists are most concerned often spring from and are reinforced by thinking riddled with heuristic errors. This article first investigates the ways heuristic errors influence popular perceptions of feminist issues. Feminists and critical race theorists have explored the cognitive bias of stereotyping, but have not examined the ways probabilistic errors can have gendered consequences. Second, The Heuristics Problem traces some of the ways cognitive errors have influenced the development of laws relating to gender issues. It explores instances in judicial decisions in which courts commit heuristic …

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Law Faculty Scholarship

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Sex Discrimination In The Labor Market, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper examines sources of gender pay disparity and the factors that contribute to this pay gap. Many researchers question the role of discrimination and instead attribute the residual pay gap to gender differences in preferences. The main issue considered in this paper is whether gender differences in choices, especially with respect to the family and household, are indeed responsible for the gender pay gap, or whether discrimination plays a role. On balance, the evidence indicates that sex discrimination remains a possible explanation of the unexplained gender pay gap. This is consistent with the continuing high profile sex discrimination litigation …

Gendering The Gentrification Of Public Housing: Hope Vi's Disparate Impact On Lowest-Income African American Women, Danielle Pelfrey Duryea

Faculty Scholarship

HOPE VI must have seemed so promising. When, in 1992, the Department of Housing and Urban Development (HUD) introduced the program later dubbed "HOPE VI," replacing the country's worst public housing projects with mixed-income, mixed-use, low-density new developments while providing targeted social services to low-income residents must have seemed like a worthy pursuit indeed. America's most run-down, crime-ridden, and poverty-plagued residential properties could be transformed into "human-scale" New Urbanist streetscapes, aesthetically continuous with surrounding areas, that would inspire pride and community in their residents. Perhaps most importantly, HOPE VI's required social service component might have seemed, at last, to recognize …

Against "Academic Deference": How Recent Developments In Employment Discrimination Law Undercut An Already Dubious Doctrine, Scott A. Moss

Publications

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an "academic deference" argument. Citing the importance of their "academic freedom," defendants and sympathetic courts have asserted that federal courts should decline to "invade" higher education with "federal court supervision." Whether or not courts cite the "academic deference" doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that …

Women In Post-Conflict Reconstruction: Dilemmas And Directions, Naomi R. Cahn

GW Law Faculty Publications & Other Works

A critical issue for post conflict reconstruction is moving beyond criminal prosecutions that ensure accountability of perpetrators toward a system that also serves the needs of victims. When reconstruction includes disarmament, demobilization, and reintegration (DDR) and development services, these programs cannot be separated from perpetrator responsibility. The traditional criminal justice is perpetrator-centric. Alternative forms of justice have broadened this focus, recognizing that the legal system must respond to both victims and perpetrators. Transitional justice, which focuses on responding to past human rights violations, is critical to holding violators accountable for their acts.

In addition to criminal and civil accountability (rights-based …

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

All Faculty Scholarship

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 Principles On Agreements: "Fairness" And International Human Rights Law, Barbara J. Stark

Hofstra Law Faculty Scholarship

Family law is again in turmoil, and the ALI Principles are an ambitious and sometimes inspired effort to increase clarity and fairness. This turmoil can be attributed to two major factors. First, family law is ground zero in the gender wars. Second, family law is reeling from the upheavals of globalization. These factors provide the backdrop against which the dilemmas addressed in Chapter 7, Agreements, play out.

Chapter 7 focuses on a particularly intriguing tension, between commercial contracts and premarital agreements. This tension is grounded in the broader tension between American views on freedom of contract and autonomy in general, …

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Scholarly Works

No abstract provided.

The Feminist Pervasion: How Gender-Based Scholarship Informs Law And Law Teaching, Joan Macleod Heminway, Ann Bartow, F. Carolyn Graglia, Deseriee A. Kennedy

Scholarly Works

This is an edited, annotated transcript of a conference panel discussion on feminism, sex, and gender in law, legal education, and legal scholarship. The transcript reflects widely divergent views of the place of feminism, sex, and gender in the law and legal scholarship. Moreover, the panelists differ as to the role feminism has played in the lives of women as law students and practicing attorneys. In the latter part of the transcript, the panelists' remarks focus in on hotly debated issues surrounding possible gender (or sex) and racial bias in LSAT testing and the innate abilities of women and men …

Why Are There Fewer Women In Engineering?, Sue Ellen Haupt

ADVANCE Library Collection

This paper attempts to explain the paucity of women in engineering. While the percentage of women entering engineering and science careers has been increasing, the number at higher ranks has not increased as quickly, after considering the appropriate time lag. The differences in tenure rate due to gender alone were statistically insignificant. Instead, these were attributed to the fact that women who are married or have children are less successful than are men with matching characteristics. One solution proposed is to recognize that priorities might be different at differing stages of family life. It is also important to encourage more …

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

All Faculty Scholarship

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 …

Some Dumb Girl Syndrome: Challenging And Subverting Destructive Stereotypes Of Female Attorneys, Ann Bartow

Law Faculty Scholarship

This Essay considers ways in which female attorneys confront sexism and stereotyping in the legal profession and in life, and strongly endorses embracing feminism, and wearing comfortable shoes.