Law Commons^™

Disclosing Discrimination, Stephanie Bornstein

UF Law Faculty Publications

In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural …

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

Law School News: Bright Anniversaries In Uncertain Times 10/06/2020, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

Law Library Blog (September 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

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 …

The Elastic Meaning(S) Of Human Trafficking, Julie A. Dahlstrom

Faculty Scholarship

What is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts—like domestic violence, sexual assault, labor exploitation, and prostitution—with which it often overlaps? These questions have become increasingly salient after the U.S. Congress defined the crime of human trafficking in the Victims of Trafficking and Violence Protection Act of 2000 (“TVPA”). Since then, all fifty states have passed legislation with varying definitions of the crime. Congress also has re-entered the field with subsequent legislation, expanding the crime to capture new conduct.

As a result of legislative advocacy and judicial interpretation, the legal …

When Is Due Process Due?: The Impact Of Title Ix Sexual Assault Adjudication On The Rights Of University Students, Rachael A. Goldman

Pepperdine Law Review

As a part of the Educational Amendments of 1972, Title IX was created to address sex discrimination in sports programs receiving federal funding. However, its scope has ballooned tremendously over the years to include a variety of conduct occurring on college campuses. Currently, Title IX is the primary legislation governing sexual assault and harassment allegations stemming from universities. This Note explores the use of Title IX in universities and addresses the concerns that arise when a civil rights law becomes the primary mechanism for adjudicating allegations of criminal conduct. Specifically, this Note addresses the due process concerns that arise when …

Data Battles, Platform Shutdowns, And Digital Rights In Surveillance: Labor Politics In The Online Sex Industry, Winifred R. Poster

Saint Louis University Law Journal

Sex workers are often portrayed as groups with little authority over their jobs. But lately they are making much use of online spaces, both large scale public-facing platforms and their own smaller websites. Taking a deeper ethnographic look into their online activities, I recount a story of highly adept, technologically proficient, and expert digital navigation by sex workers online.

The analysis follows the trajectory of platforms in the online sex industry over the last two decades. First it charts the rise of platforms for matching, reviewing, and identity verification, many of which developed roughly around the 2000s, and their impact …

See No Evil: A Look At Florida's Legislative Response To Holding Hotels Civilly Liable For "Turning A Blind Eye" To The Sex Trafficking Monster Hiding Behind Closed Doors, Lori N. Ross

Faculty Scholarship

No abstract provided.

The Politics Of Pregnancy Accommodation, Stephanie Bornstein

UF Law Faculty Publications

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by …

They're Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin

University of Denver Criminal Law Review

No abstract provided.

Law Library Blog (November 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Comments On Steven Smith, Pagans And Christians In The City, Michael P. Moreland

Journal of Catholic Legal Studies

(Excerpt)

One of the most interesting aspects of this generally very interesting book was the discussion of sexual morality in paganism and Christianity. I have thought for a while that much of the contemporary debate about religious freedom is not about religious freedom in a generic sense but instead about religious freedom in a very particular context—sex. But that is a descriptive point—much more challenging is trying to give an account of why sex should have come to be (or as Smith’s argument implies, has long been) the battlefield on which much of the fight over religious freedom takes place. …

Dialoguing With Paganism, Helen M. Alvare

Journal of Catholic Legal Studies

(Excerpt)

Professor Smith’s comparison of ancient and contemporary beliefs in the “immanent sacred” works well. By this I mean that it’s quite plausible, and accounts for quite a few contemporary claims, disputes, and movements in both law and culture.

The book’s implications for law are likely too complicated to allow for anything like its straightforward application in today’s religion clause contests. Still, it might indirectly assist traditional believers to lower the temperature of, or even avoid, such contests. I develop each of these points below.

Augustine's "Two Cities" And Steven Smith's Pagans And Christians, Brian Dunkle, S.J.

Journal of Catholic Legal Studies

(Excerpt)

Although there are many modern voices juxtaposing pagans and Christians, I want to focus on an ancient source, Augustine of Hippo’s City of God (against the Pagans), which is one of the inspirations for Smith’s title. While the bishop of Hippo shows up occasionally in Smith’s account—indeed, his conversion is central to Chapter Five, Looking beyond the World: The Christian Revolution—Augustine’s description of the “two cities,” Babylon and Jerusalem, makes only a brief appearance. So as a scholar of both historical theology and Augustine (and as someone innocent of constitutional legal theory), I suggest that the City …

A Tale Of Two Cities: Religious Freedom In A Secular Age, Anna Su

Journal of Catholic Legal Studies

(Excerpt)

Understanding the terms under which Christianity and paganism could coexist in antiquity thus gives us a semblance of an answer to the question posed early on in the book. In ancient Rome, Pliny asks why Christians were being subjected to legal sanctions, while in our present time, Douglas Laycock asks why people—referring to same-sex couples suing wedding photographers, florists, and bakers who object on religious grounds to their union—would insist on these services they neither need nor want? The paganism of ancient Rome welcomed a plurality of cults and religions but only up to a certain point. When Christians …

Many Cities, One Nation: A Response To Steven Smith's Pagans And Christians In The City, Bruce P. Frohnen

Journal of Catholic Legal Studies

(Excerpt)

In his treatment of contemporary legal issues and, more deeply, his analysis of the manner in which changing religious assumptions and goals shape the culture from which law naturally grows, Smith has provided both a strong critique of contemporary “secular” pieties and an explanation for the culture wars so often derided or minimized by those most determined to deconstruct traditional culture. Still, I would argue that Smith’s wide-ranging, radical rethinking of contemporary social disorder does not go far enough. As Smith’s discussion of contemporary judicial treatment of social structure makes clear, today’s legal elites are at heart totalitarian in …

Christians And Pagans, Abner S. Greene

Journal of Catholic Legal Studies

(Excerpt)

In this response paper, I will offer four thoughts. First, I’m not sure the contemporary picture is best described as pagans vs. Christians. Second, I question the subtle move throughout the book from a generative/creative understanding of God to seeing God as normative, as supervening in human affairs regarding right and wrong conduct. Third, I push back on the notion that theistic belief (or, perhaps, the very existence of God) is necessary to ground meaning and value. Fourth, I discuss some modern-day U.S. constitutional issues that Smith discusses as examples of pagans persecuting Christians: (a) state-sponsored religious symbols, (b) …

Ironies In The City: Reflections On Steven Smith's Pagans And Christians In The City, Perry Dane

Journal of Catholic Legal Studies

(Excerpt)

Nevertheless, some deep ironies and puzzles run through the text of Pagans and Christians. Smith is too careful and subtle to ignore these undercurrents entirely. But it will be worth bringing them to the surface, not only for their own sake but because they might help suggest an alternative to Smith’s most rough-edged claims. My aim in this essay is not merely to nitpick. Any work as magisterial as Smith’s book will generalize and elide along the way. But I do hope by the accumulation of details to suggest a fundamental worry that goes to the most charged …

Brief Of Brian Wolfman, Aderson B. Francois, And Eric Schnapper As Amici Curiae In Support Of Petitioner In Peterson V. Linear Controls Incorporated, No. 18-1401 (U.S. Supreme Court June 6, 2019), Brian Wolfman, Aderson B. François

U.S. Supreme Court Briefs

In Title VII disparate-treatment, employment-discrimination cases, the term “adverse employment action” originally developed as judicial shorthand for the statute’s text, which broadly prohibits any discriminatory conduct by an employer against an employee based on the employee's race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a)(1). But what started simply as shorthand has taken on a life of its own and now improperly limits the statute’s reach. The Fifth Circuit’s version of the adverse-employment-action rule stands out as especially improper: Only an “ultimate employment decision”—a refusal to hire, a firing, a demotion, or the like—constitutes impermissible discrimination.

In this …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

Sex, Culture, And The Biology Of Rape: Toward Explanation And Prevention, Owen D. Jones

Owen Jones

For all that has been written about rape, its multiple causes remain insufficiently understood for law to deter it effectively. This follows, in part, from inadequately interdisciplinary study of rape causation. This Article argues that integrating life science and social science perspectives on sexual aggression can improve law's model of rape behavior, and further our efforts to reduce its incidence.

The Article first explains biobehavioral theories of sexual aggression, and offers a guide to common but avoidable errors in assessing them. It then compares a number of those theories' predictions with existing data and demonstrates how knowledge of the effects …

The 16th Annual Diversity Symposium Dinner, April 4, 2019, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Deepfakes: False Pornography Is Here And The Law Cannot Protect You, Douglas Harris

Duke Law & Technology Review

It is now possible for anyone with rudimentary computer skills to create a pornographic deepfake portraying an individual engaging in a sex act that never actually occurred. These realistic videos, called “deepfakes,” use artificial intelligence software to impose a person’s face onto another person’s body. While pornographic deepfakes were first created to produce videos of celebrities, they are now being generated to feature other nonconsenting individuals—like a friend or a classmate. This Article argues that several tort doctrines and recent non-consensual pornography laws are unable to handle published deepfakes of non-celebrities. Instead, a federal criminal statute prohibiting these publications is …

Following The Fifth Circuit: Title Vii As The Sole Remedy For Employment Discrimination On The Basis Of Sex In Educational Institutions Receiving Federal Funds, Alicia Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Private Lives Of Public Figures, Charlotte Miriam Albert

Senior Projects Fall 2019

Senior Project submitted to The Division of Social Studies of Bard College.

A New #Metoo Result: Rejecting Notions Of Romantic Consent With Executives, Michael Z. Green

Faculty Scholarship

With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say “no.”

Those suggesting that the #MeToo movement has gone too far believe it will result in unintended consequences where totally benign and even positive engagement between …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Law And Norms In The Market Response To Discrimination In The Sharing Economy, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Published by De Gruyter May 11, 2019, https://www.degruyter.com/document/doi/10.1515/lehr-2019-0001/html

Sharing-economy firms have opposed the application of antidiscrimination law to their transactions. At the same time, these firms have heralded their ability to achieve antidiscrimination aims without the force of law, and have adopted various measures to address discrimination. This Article documents and assesses these measures, focusing on the relationship between law and norms. Relying on the sharing economy as a case study, this Article shows how law can play a crucial role in spurring antidiscrimination efforts by firms that it does not regulate, but also how antidiscrimination law might nonetheless be …

The Transformation Of Marriage As A State Institution, John Makdisi, June Mary Zekan Makdisi

Faculty Articles

The first section of this essay explores why the good of children requires the institution of marriage to promote the procreation of children by the act of physical-spiritual love between a man and a woman. The second section explores why the good of children requires the institution of marriage to promote the upbringing of children by the lasting, exclusive, and faithful commitment of the couple. The third section explains why Obergefell's removal of the requirement of a legal union between a man and a woman as an essential aspect of marriage not only destroys the function of the marriage institution …