Law Commons^™

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner

Brendan M. Conner

Salvaging ‘Safe Spaces’: Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner

Brendan M. Conner

A New Law To "Save" Youth From Survival Sex Will Force Them Into State Custody, Brendan M. Conner Esq.

Brendan M. Conner

It’s not novel that minors in the US can, in very rare cases, be sentenced to reform programs or secure confinement for actions that wouldn’t be illegal if adults did them. But the system used to punish youth for the likes of skipping school or drinking has never been used systematically to address cases where minors engage in survival sex – meaning, youths who exchange sex for money, shelter, food, drugs or other needs.

That is about to change, even though treating juveniles charged with prostitution like truants will increase arrests and extend court-involvement and institutionalization of victims.

On 29 …

Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman

Laura A. Rosenbury

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 …

Locked In: Interactions With The Criminal Justice And Child Welfare Systems For Lgbtq Youth, Ymsm, And Ywsw Who Engage In Survival Sex, Brendan M. Conner Esq.

Brendan M. Conner

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins

Kayla Higgins

On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …

Facing The Unborn, Richard Stith

Richard Stith

Modern science tells us of the identity of each individual human being from conception to adulthood, but our imagination does not fully cooperate. It is difficult to look at a photograph of a zygote and see a fellow human being. There are, however, two strong ways to better align our knowledge and our intuition. One is to look backward in the developmental process. It is easy to grasp that our fellow human beings all used to be zygotes. A second method is now becoming available. DNA can be used to reveal the future face and even the eyes of each …

"You Miss 100% Of The Shots You Never Take": Virginia High School League's Policy Violates Title Ix By Preventing Transgender Student Athletes From Taking A Shot At Participating In Athletics, Sarah M. Jacques

Sarah M Jacques

No abstract provided.

Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, Yehezkel Margalit

Hezi Margalit

The dilemma of scarce medical resources is deeply rooted in the ancient mankind history, but it has been accelerated in the modern era with the appearance of the bio-medical innovations. This acute dilemma is relevant to all the western developed states, include Israel. Nevertheless, in one field there is the notion that Israel has unlimited medical resources – the fulfillment of its citizen's procreation and parenthood rights. Thus, for sociological, demographical, religious and security reasons the State of Israel invests a vast amount of money to develop and use the various fertility treatments. Israel, today, has the highest per capita …

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

Twenty-First Century Regression: The Disparate Impact Of Hiv Transmission Laws On Gays, Siobhan E. Murillo

Siobhan E Murillo

No abstract provided.

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Equitable Tolling Denied: Uniform Standard Breaks Abuser’S Control Within Domestic Violence, Laura E. Petkovich

Laura E Petkovich

No abstract provided.

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter

Megan M Carpenter

This project is an empirical analysis of trademarks that have received rejections based on the judgment that they are “scandalous." It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act generally, this piece is the first scholarly project that engages an empirical analysis of 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. We study which marks are being rejected, what evidence is …

Once We’Re Done Honeymooning: Marriage Equality, Incrementalism, And Advances For Sexual Orientation Antidiscrimination, Jeremiah A. Ho

Jeremiah A Ho

Once We’re Done Honeymooning: Marriage Equality, Incrementalism, and Advances for Sexual Orientation Antidiscrimination

Abstract

Following the Supreme Court’s decision in U.S. v. Windsor, each recent victory in the federal courts has evidenced that the legal recognition of same-sex marriages in the U.S. is becoming increasingly secure. Yet, can marriage equality be the last stop in the pro-LGBT movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality can somehow leverage broader protections of LGBT individuals beyond their marital relationships?

This article begins from the perspective that …

Old Habits Die Hard: Past And Current Issues With Eugenics And Forcible Sterilizations In California, Stephanie Lauren Borrowdale

Stephanie Lauren Borrowdale

While other states have been able to successfully move past their history with eugenics by acknowledging and redressing the harm caused, the issue of forcible sterilizations lingers in California. As the California legislature dealt with a new breed of eugenic policies that emerged in the state penal system, is enough being done to address California’s reliance on forcible sterilizations? This Comment addresses California’s history with forcible sterilization practices and the current issues with sterilization procedures in the California penal system, as well as what measures California has taken to remedy these issues.

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

Artificial Insemination From Donor (Aid) – From Status To Contract And Back Again?, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the institutions of family and parenthood and an abandonment of the historical emphasis on their bionormative structures. These changes are the result of societal shifts with respect to public openness and technological innovations that segregate marital relations from sexuality and fertility. The resultant parenthood structures, which depart from traditional spousal and parental models, intensify the ability and need to determine legal parenthood in numerous unprecedented contexts. Sir Henry Maine famously stated that mankind is pacing from status toward contract. This theme has had particular resonance during the past half century in …

Religious Exemptions, Marriage Equality, And The Establishment Of Religion, Nancy J. Knauer

Nancy J. Knauer

The advent of nationwide marriage equality has sparked a robust debate over the extent of religious liberties and the limits of civil rights protections. As public opinion regarding LGBT individuals and the families they form has evolved, religious beliefs that once served as the basis for law and policy have been increasing marginalized. Various efforts have been made to protect religious objectors who continue to believe that marriage is only between one man and one woman. For example, all of the states that had enacted marriage equality legislation included exceptions for clergy and religious organizations to ensure that they would …

The Law's Duty To Promote The Kinship System: Implications For Assisted Reproductive Techniques And For Proposed Redefinitions Of Familial Relations, Scott T. Fitzgibbon

Scott T. FitzGibbon

Kinship relations, in our society and in most, are organized systematically. That is to say, each kinship connection is constructed, conducted, and considered, not in isolation but by reference to the others. Your uncle is your father’s brother, in just about the same way as your own sibling is your brother and your children are one another’s brothers and sisters. Your spouse is the mother or father of your children, in just about the same way as your mother and father are your parents and the parents of your siblings. One’s beliefs and expectations about what each kinship relationship entails …

Construction Vs. Development: Polarizing Models Of Human Gestation, Richard Stith

Richard Stith

No abstract provided.

Querying Lawrence, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

In 2003, the Supreme Court in the landmark decision Lawrence v. Texas found a Texas law, banning homosexual, but not heterosexual, sodomy to be unconstitutional. Thus, Lawrence ended the Bowers era in which morality was deemed to be a justification for discrimination against gays and lesbians. While the decision did bring to United States Constitutional analysis the radical idea that gays and lesbians are people too, it stopped short of addressing the real problem the case presents--the existence of a second-class citizenry. This Article examines the Lawrence decision in light of both the international, regional, and foreign jurisprudence and the …

Sex And Globalization, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

For some time now, I have focused on a mission to bring together the separate discourses of the human rights and trade fields -- certainly not to blend them, but to raise awareness of their myriad interconnections. Indeed, human rights and trade are interlocking pieces of the puzzle we call international law and cannot possibly remain sequestered in the "splendid isolation" in which they have existed since their inception as disciplines. In any study of globalization, especially if one endeavors to pursue its benefits for all persons, not just the elite around the world, one must be aware of and …

The "F" Factor: Fineman As Method And Substance, Nancy Dowd

Nancy Dowd

In this book review, Professor Dowd reviews Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, edited by Martha Albertson Fineman, Jack E. Johnson, and Adam P. Romero (2009). Professor Dowd exposes the particular impact of the “F” factor by first describing the contributions of this volume and then exploring the methodological and substantive aspects of the “F” factor.

The Gendered Aspects Of Social Justice Work And Occupational Segregation In The Legal Academy: A Review Of 2003, Barbara Cox

Barbara Cox

My service as chair of the Section on Women in Legal Education ("Section") was rather unusual. I started serving on the Executive Committee in 1999 and became Chair-Elect in 2001. Veryl Miles (Catholic) was Chair for 2001 but became Deputy Director of the Association of American Law Schools (AALS) in August that year, so I served out her term as Interim Chair from August 1 to December 31, 2001. Then I became Chair-Elect again in 2002 (because I was on sabbatical that year and could not serve as Chair) and Vernellia Randall agreed to step in as Chair. I served …