Law and Gender Commons^™

Lessons Learned From Global Responses To Criminal Abortion Laws, Cynthia Soohoo

Fordham Law Review Online

No abstract provided.

Asking Hospitals To Do Their Share, Kimberly Mutcherson

Fordham Law Review Online

No abstract provided.

Law's Limits: Abortion And The Social Determinants Of Health, Maya Manian

Fordham Law Review Online

No abstract provided.

Abortion, Power And The Future Of Healthcare, Elizabeth Kukura

Fordham Law Review Online

No abstract provided.

Highlighting The Wins: How Movement Resilience Is Making A Difference Post-Dobbs, Greer Donley, Rachel Rebouché

Fordham Law Review Online

No abstract provided.

Continued Resistance And Resilience After Dobbs, David S. Cohen, Carole Joffe

Fordham Law Review Online

No abstract provided.

Lawyers’ Career Aspirations In Canada And The United States, Meghan Dawe, Ronit Dinovitzer

Fordham Law Review

No abstract provided.

Winging It: Convergence, Convivencia, And Belonging Of Latina Lawyers, Verónica C. Gonzales

Fordham Law Review

No abstract provided.

The Equal Pay Act’S Hidden Loophole: Eliminating Prior Compensation As A “Factor Other Than Sex”, Madeleine Bol

Fordham Law Review

The Equal Pay Act of 1963 (EPA or the “Act”) prohibits employers from engaging in sex-based wage discrimination. The Act includes four exceptions that allow an employer to circumvent liability, the last of which allows for pay disparities when the “differential [is] based on any other factor other than sex.” The language of this exceedingly broad exception raises questions among courts on what “other than sex” entails—specifically, whether a court can rely on an employee’s prior compensation to justify a pay disparity between employees of the opposite sex. This Note examines how federal circuit courts have interpreted this catchall exception. …

Recalibrating Risk Under Dobbs, Yvonne Lindgren, Michelle Oberman

Fordham Law Review

In response to mounting evidence of the devastating harms patients have experienced under abortion bans, abortion opponents and the Supreme Court of Texas have argued that the bans are clear but that doctors are willfully refusing to provide care. Instead of reforming the bans, they argue that doctors should be sued in medical malpractice for their failure to meet the standard of care. This Article interrogates that claim, investigating whether the crisis in reproductive healthcare that has resulted from delayed and denied care can be remedied by suing doctors. Specifically, can medical malpractice litigation provide guardrails against the erosion in …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

When Prenatal Care Becomes A Crime, Casey Hunter

Fordham Law Review

For decades, pregnant women have increasingly faced criminalization for their actions and conduct during pregnancy, with Alabama emerging as a focal point due to its aggressive use of section 26-15-3.2: Chemical Endangerment of Exposing a Child to an Environment in Which Controlled Substances Are Produced or Distributed. Originally intended to protect children from the dangers of methamphetamine labs, this law has been reinterpreted to prosecute pregnant women who test positive for controlled substances. Central to these prosecutions are positive drug tests obtained from prenatal health records, causing many women to avoid prenatal care for fear of legal consequences.

This Note …

The Illusion Of Inclusion: The False Promise Of The New Governance Project For Content Moderation, Brenda Dvoskin

Fordham Law Review

Because private companies now control the most prominent communication platforms, the most pressing question in the field of content moderation is how to ensure that the governance of public discourse responds to public values. The prevailing approach, given that the state cannot regulate speech directly, is that state regulation can be substituted with audited self-regulation, broad stakeholder participation, and negotiated rulemaking. In this model, which this Article refers to as the “new governance model for content moderation,” companies include advocates as representatives of the public in their processes to govern online speech. Ideally, they negotiate policy goals and share responsibility …

Title Ix And Athlete Compensation In The Postamateurism Era, Erin Buzuvis

Fordham Law Review

No abstract provided.

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Institutional Liability For Sexual Violence In Prisons Based On Theaided-By-Agency Theory, Tori Klevan

Fordham Law Review

Sexual assault perpetrated by correctional officers in prisons and jails is a pervasive problem in women’s correctional facilities. However, victims who choose to pursue a civil action rarely recover damages for their injuries because our legal system fails to provide adequate options for relief. This failure leaves victims uncompensated and disincentivizes correctional institutions from implementing effective preventative measures. Part of the reason for this failure is that most U.S. courts refuse to hold employers liable for sexual violence committed by their employees. They find that employers cannot be held liable for the tortious conduct of their employees unless the conduct …

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

Deborah L. Rhode In Memoriam: Three Stories And Ten Life Lessons, Benjamin H. Barton

Fordham Law Review

In this Essay, Professor Benjamin H. Barton offers a heartfelt tribute to the late legal scholar, Professor Deborah L. Rhode. Professor Barton reflects on Rhode’s prolific career, which spanned areas including legal ethics, feminism and women in the law, and lawyers as leaders. He also examines Rhode’s later works, which delved into more personal topics such as character, ambition, and legacy. Through personal anecdotes and life lessons, Professor Barton honors Rhode’s legacy as a model academic, mentor, and transformative force in the legal profession.

Law School As Straight Space, Swethaa S. Ballakrishnen

Fordham Law Review

In honoring Professor Deborah L. Rhode’s commitment to making space for the marginal in legal education and clarifying the “no-problem” problems in our midst, Professor Ballakrishnen’s Essay focuses on one strain of nonnormative experience—that of genderqueer persons—to clarify the ways in which law schools reinforce linear hierarchies of identity and performance. Professor Ballakrishnen catalogues ethnographic student interview data to highlight perspectives of genderqueer law students, the result of which suggests that “normal” professional practices in law school reinforce the rigidity of the gender binary. They conclude by suggesting that paying attention to these student subpopulations is crucial to reform legal …

Mentored: On Leaders, Legacies, And Legal Ethics, Renee Knake Jefferson

Fordham Law Review

Professor Renee Knake Jefferson shares insights on mentorship and legal ethics gleaned from her relationship with Professor Deborah Rhode. The Essay, written as part of the Fordham Law Review colloquium in Professor Rhode’s memory, argues that the stories of women and minority lawyers—regardless of whether one had a personal relationship with them—are an unrealized, valuable source of informal mentorship. It lays the groundwork for formalizing mentorship as an ethical obligation of leaders in the legal profession and beyond.

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.

Interpleader As A Vehicle For Challenging The Constitutionality Of Private Citizen Action Statutes, Delia Parker

Fordham Law Review

The rise of vigilante-esque statutes creates obstacles for litigants seeking to challenge a statute’s constitutionality. State legislatures in Texas and California enacted laws regulating constitutionally protected activity (abortion and firearm possession, respectively) through statutes enforced solely by private actors. The state legislatures cleverly crafted Texas S.B. 8, as well as other copycat statutes, as bounty hunter statutes to block litigants’ usual path to pre-enforcement adjudication—filing a claim against the state to enjoin its actors from enforcing the improper provisions.

The Texas and California state legislatures attempted to forbid constitutionally protected conduct by granting enforcement power to an infinite number of …

Small Gestures And Unexpectedconsequences: Textualist Interpretationsof State Antidiscrimination Lawafter Bostock V. Clayton County, Anastasia E. Lacina

Fordham Law Review

The U.S. Supreme Court’s landmark decision in Bostock v. Clayton County expanded Title VII’s coverage of victims of sex discrimination in employment by interpreting the statute to also protect LGBTQ+ employees who were discriminated against because of their sexual orientation and/or gender identity. Although Bostock only applies precedentially to Title VII, the long and interwoven history of state antidiscrimination statutes shows that the ruling may reach beyond federal law. This Note examines state court cases that have considered whether to apply Bostock’s reasoning to the interpretation of state antidiscrimination statutes. Furthermore, this Note argues in favor of a path …

Race, Gender And Nation In An Age Of Shifting Borders: The Unstable Prism Of Motherhood And Masculinity, Catherine Powell

Faculty Scholarship

No abstract provided.

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.

Pregnancy And The First Amendment, Helen Norton

Fordham Law Review

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear. This Essay considers what First Amendment law, as applied to speech to pregnant women, would look like if the Court attended to the First Amendment interests of pregnant women themselves.

When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney

Fordham Law Review

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Income Disparity, Gender Equality, And Free Expression, Sylvia A. Law

Fordham Law Review

In the past half century, our world has experienced a radical change comparable to the Industrial Revolution of the nineteenth century. At least five elements are key: growing disparity of human opportunity, advance of formal human rights and equality, information transformation, economic globalization, and climate change. My focus is on economic disparity and gender equality in the United States. These two issues, huge in and of themselves, interact with the other cataclysmic changes of our time.

Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron

Fordham Law Review

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …