Law and Gender Commons^™

Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie

Indiana Law Journal

According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an …

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David J. Herzig

Indiana Law Journal

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex in-dividuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the re-cent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of …

Title Ix, Sexual Assault, And The Issue Of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”?, Lori E. Shaw

Indiana Law Journal

This Article is intended to set the process in motion by providing the DOE and the educational institutions governed by Title IX with a proposed standard for “effective consent.” Part I provides an overview of the realities of campus life in the 2010s, delving into the root causes of sexual assault and other forms of unwanted sexual contact. Sexual hookups and binge drinking, two aspects of campus life inextricably linked to one another and to unwanted sexual contact, are explored in depth.

Part II presents an overview of the traditional role, structures, and processes of the student-conduct system. It then …

Legal Recognition Of Same-Sex Relationships: New Possibilities For Research On The Role Of Marriage Law In Household Labor Allocation, Deborah A. Widiss

Articles by Maurer Faculty

Research comparing the relative significance of economic exchange theories and gender norms on parents’ division of income-producing and domestic responsibilities often fails to consider sufficiently the role that marriage may play. This article shows that, in the United States, numerous aspects of state and federal law relating to marriage encourage spouses to specialize in distinct breadwinning and caretaking roles. Same-sex marriage offers new opportunities to assess the importance of marriage in household labor allocation decisions while controlling for gender. For any data gathered before June 2015, however, it may be distorting to characterize same-sex couples as simply “married” or “un-married”; …

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

The Problems Of Gender Inequality Raised By Unmarried Couples In Liberia, Yah-Yeplah Dolo-Barbu

Maurer Theses and Dissertations

No abstract provided.

Examining Pay Differentials In The Legal Field, Barbara Donn, Christine Cahill, Meghan H. Mihal

Indiana Journal of Law and Social Equality

This study investigates pay discrimination towards women in the legal field. Recent research has shown that a pay gap does exist in the legal field, and we show that this gap widens throughout the lawyers’ early careers. For our analysis, we focus on the pay differentials between associate level men and women at large private law firms in the United States. The data used in this study is provided by the American Bar Association and is a nationally representative data set following lawyers who began their legal career in 2000. We show that women earn less than their male counterparts …

How Opting Out Among Women With Elite Education Contributes To Social Inequality, Joni Hersch

Indiana Journal of Law and Social Equality

This paper, written for the 2013−2014 Symposium of the Indiana Journal of Law and Social Equality, expands on my research showing that women who are graduates of elite institutions have lower labor market activity than their counterparts who are graduates of non-selective institutions. I provide new statistics on the relation between status of undergraduate institution and family background, likelihood of earning a professional or graduate degree, earnings, and trends in opting out. These data show that the gap in labor market activity on the basis of educational status was largely unchanged between 2003 and 2010 and that graduation from an …

Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz

Indiana Journal of Law and Social Equality

Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court as it returns to the issue. Part II then at some …

Dangerous Or Just Pregnant? How Sanism & Biases Infect The Dangerousness Determination In The Civil Commitment Of Pregnant Women, Alyson R. Schwartz

Indiana Journal of Law and Social Equality

Sparked by the story of Alicia Beltran, this Note explores state use of civil commitment statutes to police pregnant women suspected of drug use. Civil commitment determinations are already infiltrated by sanism: an irrational prejudice against those with mental disabilities and illnesses expressed through stereotyping and stigmatization similar to that of other prejudices such as racism and sexism. Yet, deficiencies in civil commitment safeguards for pregnant women cannot be explained simply as an issue of sanism, gender oppression, wealth inequality, or racism. Rather, each of these components must be combined to reveal how the interaction of each erodes the constitutional …

Respecting Intent And Dispelling Stereotypes By Reducing Unintended Pregnancy, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, India Thusi

Articles by Maurer Faculty

In Part I of this Article, I discuss the perception that sex work was a “necessary evil” under the Dutch East India Company. In Part II, I discuss British colonial rule and the influence of the Victorian era on the policing of sex work. In Part III, I discuss the Union of South Africa and the mass hysteria following the rise of the “black peril.” Part IV discusses the apartheid era and the impact of the Immorality Act on the policing of sex workers. Part V focuses on the new democratic era and the introduction of the human rights framework. …

The Seductive Power Of Patriarchal Stories, Aviva A. Orenstein

Articles by Maurer Faculty

This essay develops a theme introduced in Rape and Culture of the Courtroom written by Andrew Taslitz. It examines the cases in which judges allow evidence of the victim’s sexual history and proclivities because, in their estimation, excluding such evidence would violate the constitution (an exception to rape shield in Fed. R. Evid 412). The review of these cases demonstrates the persistent power of patriarchal stories and documents how the constitutional exception sometimes indicates a resistance to the entire enterprise of rape shield. In particular, it focus on Gagne v. Booker, an en banc decision from the Sixth Circuit, …

State Court Protection Of Reproductive Rights: The Past, The Perils, And The Promise, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Abortion And The “Woman Question”: Forty Years Of Debate, Reva B. Siegel

Indiana Law Journal

This paper was presented as the Addison C. Harris Lecture at the Indiana University Maurer School of Law, Bloomington, Indiana, September 27, 2012.

A Survey Of State Fetal Homicide Laws And Their Potential Applicability To Pregnant Women Who Harm Their Own Fetuses, Andrew S. Murphy

Indiana Law Journal

A discussion of the recent case in which a pregnant Indiana woman named Bei Bei Shuai was prosecuted for fetal homicide following a failed suicide attempt and later miscarriage. The Comment uses this case as a comparison point for different cases and statutes in all fifty states and suggests possible principles for a more unified doctrine and approach.

Aborted Emotions: Regret, Relationality, And Regulation, Jody L. Madeira

Articles by Maurer Faculty

Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.”These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with different …

Selling Art: An Empirical Assessment Of Advertising On Fertility Clinics' Websites, Jim Hawkins

Indiana Law Journal

Scholarship on assisted reproductive technologies (ART) has emphasized the commercial nature of the interaction between fertility patients and their physicians, but little attention has been paid to precisely how clinics persuade patients to choose their clinics over their competitors’. This Article offers evidence about how clinics sell ART based on clinics’ advertising on their websites. To assess clinics’ marketing efforts, I coded advertising information on 372 fertility clinics’ websites. The results from the study confirm some suspicions of prior ART scholarship while contradicting others. For instance, in line with scholars who are concerned that racial minorities face barriers to accessing …

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Hierarchies Of Discrimination In Baby Making: A Response To Professor Carroll, Radhika Rao

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Selling Art Or Selling Out?: A Response To Selling Art: An Empirical Assessment Of Advertising On Fertility Clinics' Websites, Jody L. Madeira

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

How Parents Are Made: A Response To Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Kimberly M. Mutcherson

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

New Thinking On Commercial Surrogacy, Richard F. Storrow

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Mothering For Money: Regulating Commercial Intimacy, Surrogacy, Adoption,, Pamela Laufer-Ukeles

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Reproducing Hierarchy In Commercial Intimacy, Michele Goodwin

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Introduction: Effects Of Global Developments On Gender And The Legal Practice, Gabriele Plickert

Indiana Journal of Global Legal Studies

Women in Legal Practice: Global and Local Perspectives, Symposium, June 5-8, 2012. Annual Meeting of the Law and Society Association.

Women In The Legal Profession, 1970-2010: A Study Of The Global Supply Of Lawyers, Ethan Michelson

Indiana Journal of Global Legal Studies

This article represents the first effort to measure the changing global supply and composition of lawyers over a period of several decades. In it I assemble data on lawyer populations and gender compositions from eighty-six countries and use them to calculate estimates for the rest of the world in order to paint a truly global picture of the changing supply of lawyers in general and of female lawyers in particular. Most of the data supporting my analyses come from a unique and hitherto untapped source: individual-level census data. Results reveal a clear sequence in the global process of lawyer feminization. …

Gender And Global Lawyering: Where Are The Women?, Steven A. Boutcher, Carole Silver

Indiana Journal of Global Legal Studies

The dual forces of globalization and support for diversity in the legal profession are responsible for significant growth among U.S. law firms. Both women lawyers and those educated outside of the U.S. have been important elements facilitating the global trajectories of U.S. firms, but the interaction between the two has not been the subject of substantial research. We address this gap by drawing on an original dataset of lawyer biographies, and consider whether career strategies that involve the international mobility of lawyers are equally powerful for women and men. Our research suggests that globalization of large firm practice has not …

The Impact Of The Economic Downturn On Women Lawyers In The United States, Cynthia Fuchs Epstein, Abigail Kolker

Indiana Journal of Global Legal Studies

Although women have made considerable inroads in the legal profession over the past four decades, a review of their distribution in various types of practice in the United States shows that, compared to their male colleagues, they have been affected disproportionately by the recent economic downturn, although not in every sphere of the profession. This study reviews research, articles in the legal press, and online blogs that report women's access to equity partnerships has been stalled, their representation in part-time employment has increased, and they are disproportionately recruited or diverted to positions as staff or contract attorneys. Women's access to …

Parenthood Status And Compensation In Law Practice, Nancy Reichman, Joyce Sterling

Indiana Journal of Global Legal Studies

This article asks how cultural frameworks of status influence the evaluation of performance including compensation and advancement of lawyers who were seven years into their practice. We borrow from the work on status expectations that goes beyond gender distinctions and assesses whether the concept of motherhood has a negative impact on assessment of female lawyers. Status expectations theory hypothesizes that mothers are valued less because they are less committed to the workplace and thus receive a motherhood penalty while men receive a fatherhood bonus in compensation decisions. Employing data from the After The JD study, we test the impact of …