Law Commons^™

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

ExpressO

The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

Imagining The Law-Trained Reader: The Faulty Description Of The Audience In Legal Writing Textbooks., Jessica E. Price

ExpressO

In law schools today, first-year legal writing courses play a crucial role in helping students learn to communicate about the law. Many legal writing teachers approach legal writing education in a practical way, attempting to pass on their own experiences in law practice settings to students. Unfortunately, as other writers have observed, such reliance on personal knowledge about “what lawyers are like” may lead legal writing teachers to oversimplify a complicated matter – the needs and preferences of the audience for legal writing – and may even amount to indoctrination in stereotypes about law practice. This article offers a closer …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

Multistable Figures: Sexual Orientation Visibility And Its Effects On The Experiences Of Sexual Minorities In The Courts, Todd Brower

ExpressO

A multistable figure is a cognitive illusion in which a single drawing contains multiple, competing images. On first viewing a person will see one image, but not the other – it usually requires additional information to trigger the viewer’s awareness of the second image. However, once you know about the disparate figures in the illustration, you cannot erase that knowledge from your mind and see a sole image as you did originally. This inability to ignore information and its effect on subsequent experience has parallels in lesbians’ and gay men’s treatment in the courts.

Courts today are deeply involved in …

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

ExpressO

The article focuses on the challenges for women’s rights activists attempting to provide a better legal regime for victims of domestic violence in Nigeria. It is my desire to provide a resource material on the issue of domestic violence for activists, policy makers, legislators and law reformers who are engaged in providing a better legal framework for the protection and promotion of women’s rights in a developing country like Nigeria. Having worked extensively on this issue, the article documents my experience on law reform advocacy in Nigeria.

The Purpose Of Child Support, Ira M. Ellman

ExpressO

What is the appropriate amount of child support to require in particular cases? How should we take account, if at all, of subsequent events such as either parent’s remarriage? It seems obvious that the answers to such questions ought to turn on our purpose in requiring support payments in the first place. But while fixing the amount of child support can be politically contentious, and has attracted the attention of partisans on both sides of the gender gap, the literature contains no systematic examination of support rules in light of their underlying policy purpose. This article fills that gap. It …

Women Fighting Poverty In Cameroon: A Legal Perspective!, Geraldine Chin C K G Chin

ExpressO

Poverty in Sub Saharan Africa has many causes, which range from the impact of the Structural Adjustment Programs, the huge foreign debt and policies that encourage mismanagement of state resources. This growing poverty and underdevelopment has attracted the attention of the international community to pursue programs aimed at attaining the UN Millennium Development Goals, foreign debt relief and increased development aid. During the introduction of policies that brought about economic hardship, African women were not consulted and their voices were not heard. Yet it is these women who feel most of the impact of these policies. During the period of …

To Catch A Sex Thief: The Burden Of Performance In Rape And Sexual Assault Trials, Corey Rayburn Yung

ExpressO

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence.

This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of …

You’Re So Vain, I’Ll Bet You Think This Song Is About You, Joseph W. Dellapenna

Working Paper Series

Dispelling the Myths of Abortion History covers over 1,000 years of abortion history in England and America, with special emphasis on the nineteenth and twentieth centuries. It presents an accurate and thoroughly fresh look at that history, reaching several unorthodox conclusions without taking sides on the merits of the abortion debate. The true history of abortion in England and America is important because Justice Harry Blackmun, drawing on the work of law professor Cyril Means, structured the argument of the majority in Roe v. Wade around the history of abortion laws. Means’ argument was later buttressed by the work of …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

Legal Archaeology And Feminist Legal Theory: A Case Study Of A Violation Of A Protective Order , Debora L. Threedy

ExpressO

This article explores the intersection between the field of legal archaeology and feminist legal theory through the medium of a case study of the prosecution of the violation of a protective order.

Both legal archaeology and feminist theory employ “bottom up,” or grounded, theorizing; that is, they begin with specific context and move from there to generalization or abstraction, rather than the other way around. And both operate from a critical perspective that consciously challenges what we think we know about how law operates. For example, both are interested in exploring how systemic vulnerabilities, such as conscious or unconscious gender …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Gender Equality, Social Values And Provocation Law In The United States, Canada And Australia, Caroline A. Forell

ExpressO

In this article I examine and compare the partial defense of provocation as it applies to domestic homicide in Australia, Canada, and the United States on both the gendered-male basis of jealous rage and gendered-female basis of fear. I explain why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada and the United States and why Australia is the leader in incorporating substantive equality into its provocation doctrine. I conclude that the main reason why some Australian jurisdictions have abolished provocation and others have female-friendly versions of the doctrine is that, unlike Canada …

Gloria’S Story And Guatemala’S Faith: Adulterous Concubinage, Law, And Religion, M C. Mirow

Faculty Publications

John Wertheimer, the author of “Gloria’s Story,” has produced a complex and absorbing text that skillfully guides the reader through the microhistory of Gloria’s concubinage to an enhanced appreciation of the greater legal, social, and institutional forces at play in mid-twentieth century Guatemala. Using Gloria’s story to shift into more general observations about law and society in Guatemala, Wertheimer states that laws can “affect behavior by establishing incentives and disincentives for different types of action and by reinforcing or undermining different values.”1 Wertheimer reads the legal records involving Gloria and her family to write her story from the dominant critical …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

Nancy J. Knauer

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Gloria’S Story And Guatemala’S Faith: Adulterous Concubinage, Law, And Religion, M. C. Mirow

M. C. Mirow