Law and Gender Commons^™

For Terry Sandalow - Challenger And Creator, Christina B. Whitman

Articles

In the popular imagination, legal education is the experience of sitting in a classroom and being pushed to think deeply by a brilliant and demanding teacher. Some law schools are lucky enough to have a faculty member who actually fulfills this expectation - one professor in particular whose courses are the testing ground for the very best and most engaged students. When I was a student at Michigan in the 1970s, and until his retirement last year at the end of the century, that teacher was Terry Sandalow. For many Michigan graduates, taking Federal Courts or Fourteenth Amendment from Professor …

Gender And Intercollegiate Athletics: Data And Myths, Julia Lamber

University of Michigan Journal of Law Reform

This Article explores what nondiscrimination means in the context of intercollegiate athletics. After reviewing the Department of Education's controversial Title IX Policy Interpretation, it critically examines the analytical framework used in Title IX athletic cases and concludes that commonly made analogies to litigation under Title VII of the 1964 Civil Rights Act are inapt. A major part of the Article is an empirical study, looking first at gender equity plans written by institutions of higher education for the National Collegiate Athletic Association and then at data collected from more than 325 institutions pursuant to the Equity in Athletics Disclosure Act. …

An "Olympics" Approach: A More Equitable Approach To Athletics Than Title Ix Offers, Marcia Federbush

University of Michigan Journal of Law Reform

A speech from Marcia Federbush, the writer of the first comprehensive Title IX complaint against a major university - the University of Michigan.

Equally Bad Is Not Good: Allowing Title Ix "Compliance" By The Elimination Of Men's Collegiate Sports, Donald E. Shelton

University of Michigan Journal of Law Reform

Athletic participation is an important part of the educational process, instilling important lessons about discipline and teamwork. Title IX was intended to address the historic lack of opportunities for women and girls to participate in school athletics. Unfortunately, the current administrative interpretation of Title IX permits the elimination of male athletic opportunities as a means of complying with the statute's equality standard. This result undermines the purpose of Title IX and the role of athletics in the educational process for all students.

The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake

University of Michigan Journal of Law Reform

Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. …

Pay Equity For Coaches And Athletic Administrators: An Element Of Title Ix?, Barbara Osborne, Marilyn V. Yarbrough

University of Michigan Journal of Law Reform

In this Article, Professors Osborne and Yarbrough address the issue of gender discrimination in the compensation of coaches and athletic administrators. They discuss the application of the Equal Pay Act of 1963 and Title VII to pay inequity claims and conclude that both have proven to be inadequate as a means of addressing the problem. Professors Osborne and Yarbrough then present Title IX as a way of countering the problem of gender discrimination in the compensation of coaches. They also discuss the prospects for gender equality in compensation by considering several cases addressing the issue. Finally, they offer recommendations both …

The Mixed Messages Of Title Ix, Sherman J. Clark

University of Michigan Journal of Law Reform

Introduction to a University of Michigan Journal of Law Reform Symposium entitled Competing in the 21st Century: Title IX, Gender Equity, and Athletics.

Because We Love You, Rosemary B. Quigley

Michigan Law Review

I remember the impotence I felt on the eve of the Gulf War in January 1991. No one could have known at that moment what a brief conflict it would be. We had every reason to believe that the Middle East would be hurled into turmoil. And if protracted war ensued, a draft would surely follow. I watched my college boyfriend sink into despair, with the help of a Bob Mould CD, at the prospect of being called to give his life for his country. I remained uncharacteristically mute. In the face of this battle, our positions were too unequal …

"Trapped" In Sing Sing: Transgendered Prisoners Caught In The Gender Binarism, Darren Rosenblum

Michigan Journal of Gender & Law

This Article first summarizes gender, transgendered identity, and legal issues facing transgendered people to contextualize the lives of transgendered prisoners. Parts II and III explore respectively the placement and treatment issues that complicate the incarceration of the transgendered. Corrections authorities, through indifference or incompetence, foster a shockingly inhumane daily existence for transgendered prisoners. In Part V, I examine the plight of transgendered prisoners through the metaphor of the miners' canary. Transgendered prisoners signal the grave dangers facing all of us in a wide array of social structures, elucidating the apparently intractable problems of gender. This Article simultaneously explores a human …

On The Road: Images Of Truthtelling In Rural America, Emily A. Spieler

Michigan Journal of Gender & Law

This narrative is a true story. It raises the same central issue as many of the core stories of race and gender that have haunted us over the last decade: the identification of truthtellers. Theoretical analysis of truth and bias abound. This story, like many of these other stories, nevertheless stands on its own, without the need for iterative analysis.

An Emerging Ethical And Medical Dilemma: Should Physicians Perform Sex Assignment Surgery On Infants With Ambiguous Genitalia?, Hazel Glenn Beh, Milton Diamond

Michigan Journal of Gender & Law

This article discusses the development of a surgical approach to treating intersex infants and others with genital anomalies that began in the late 1950s and 1960s and became standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community now is divided. How sex reassignment surgery for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries provide a cautionary tale that is relevant to both medicine and law.

A Matter Of Principle And Consistency: Understanding The Battered Woman And Cultural Defenses, Sharan K. Suri

Michigan Journal of Gender & Law

To adequately explain and argue why feminists, as a matter of legal theory, must take both the BWS and cultural defenses seriously, these defenses need further elaboration. Section I details what these defenses are, how they developed, and how they work in the justice system. Section II enlarges the picture by revealing the similarities between the two defenses which share not only the same theoretical and practical goals, but also the same criticisms and flaws highlighted by scholars. Finally, Section III asserts that cultural evidence and evidence of battering must be admitted to show the absence of mens rea. However, …

Cultural Resistance To Global Governance, Joel Richard Paul

Michigan Journal of International Law

This article maps out the terrain in which state actors and legal scholars make claims premised on a cultural exception to justify derogating from international legal norms. The author’s aim is to understand why some of these claimed cultural practices displace international legal norms, while other practices are dismissed as violating international legal norms. Part II will examine this discourse in relation to the rights of women and sexual minorities. This article will show that the international community generally regards gender norms as cultural and the international legal norm of gender equality usually defers to national cultural practices. Part III …

Dowry Deaths: Proposing A Standard For Implementation Of Domestic Legislation In Accordance With Human Rights Obligations, Namratha S. Ravikant

Michigan Journal of Gender & Law

This article discusses the due diligence standard of governmental responsibility, and measures the adequacy of India's implementation of its national dowry death legislation in accordance with its international human rights obligations. India has enacted legislation designed to combat dowry violence. Although India's laws seem to follow the letter of its international human rights obligations, the country violates the spirit of human rights by lacking an actual commitment to implement this legislation. This Article demonstrates and examines India's breach of its duty of due diligence. Such a breach constitutes government complicity in condoning and perpetuating dowry deaths, which violate women's human …

Linking The Visions, Christina B. Whitman

Other Publications

Professor Christina Whitman talks about her teaching and her work.

Civilizing The Natives: Marriage In Post-Apartheid South Africa, David L. Chambers

Articles

South Africa is a land of many cultures. For several hundred years, British and Afrikaaner whites controlled the country, systematically manipulating black people to the whites' advantage. For the most part, however, whites tolerated the continuation within black communities of traditional marriage practices that white Christians considered uncivilized. In 1994, South Africa changed governments. A black majority Parliament came to power, adopting a consitution dedicated to equality and human dignity. Four years later, Parliament adopted a new marriage law that, though permitting some of the external trappings of the traditional marriage system to continue, eliminated by law much of the …

Women's Rights And The Public Morals Exception Of Gatt Article 20, Liane M. Jarvis

Michigan Journal of International Law

The public morals exception in Article XX of the General Agreement on Tariffs and Trade (GATT) could and should be interpreted in accordance with evolving human rights law on women's rights. This clause provides an exception to the general rule that members of the World Trade Organization (WTO) cannot take measures against other Members that would restrict trade. Under Article XX, WTO members may restrict trade for a variety of social reasons, including protecting the environment, preventing prison labor, and otherwise promoting "public morals.” This Note will argue in particular that a nation should be allowed to invoke the public …

Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker

Articles

The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …

Ending Male Privilege: Beyond The Reasonable Woman, Stephanie M. Wildman

Michigan Law Review

A Law of Her Own: The Reasonable Woman as a Measure of Man by Caroline A. Forell and Donna M. Matthews aspires to provide a solution for an enigmatic jurisprudential problem - the systemic failure of the legal order to recognize and to redress the injuries that women experience. Feminist scholars have agreed that, for women, the legal separation of public and private spheres often insulates from legal review behavior that harms women. But even in the so-called public sphere, women suffer harms that remain invisible and unnamed. The authors identify four legal arenas in which the "spectrum of violence …

What Money Cannot Buy: A Legislative Response To C.Rac.K., Adam B. Wolf

University of Michigan Journal of Law Reform

Children Requiring a Caring Kommunity (C.R.A.C.K.) is an organization that pays current or former drug addicts $200 to be sterilized. While generating great public controversy, C.R.A.C.K. is expanding rapidly throughout the country. Its clients are disproportionately poor women of color, who are coerced by the offer of money into permanently relinquishing their reproductive rights. This Note argues that C.R.A.C.K. is a program of eugenical sterilization that cannot be tolerated. Moreover, C.R.A.C.K. further violates settled national public policy by offensively commodifying the ill-commodifiable, by demeaning women, and by starting down a slippery slope with devastating consequences. This Note proposes legislation that …

United States V. Morrison, Et Al.: Brief Of Law Professors As Amici Curiae In Support Of Petitioners, Evan H. Caminker, Catharine A. Mackinnon, Christina B. Whitman

Appellate Briefs

Interests of the Amici Curiae: This case brings into play two of our basic constitutional commitments: first, to a federal system that both guarantees the States a major role and gives Congress broad responsibility over interstate commerce, and second, to a nationwide guarantee that all persons enjoy the equal protection of the laws. Amici, law professors (identified in an addendum below) who teach and write about constitutional law, the federal courts or jurisprudence, will discuss how the Violence Against Women Act (VAWA) civil rights remedy is an apt response to the combined demands of these constitutional commitments.

In 1994, …

Gender, Risk Taking, And Negotiation Performance, Charles B. Craver, David W. Barnes

Michigan Journal of Gender & Law

This Article will evaluate the impact of the confluence of two factors- gender and the availability of a credit/no-credit grading option- on student performance in Professor Craver's Legal Negotiating course at George Washington University. Our empirical assessment will analyze the results achieved on negotiation exercises and on course papers by the 612 male and female law students who took Professor Craver's course over the past eleven years. Do a greater percentage of female students take the Legal Negotiating course on a credit/no-credit basis, when that option is available, than do their male cohorts? Are the woman students who take the …

Traffic Jam: Recommendations For Civil Penalties To Curb The Recent Trafficking Of Women From Post-Cold War Russia, Christopher M. Pilkerton

Michigan Journal of Gender & Law

This Article will examine the recent criminal trend of trafficking women from post-Cold War Russia into the United States. First, it will examine the Russian mafia and its development. It will also discuss the system of economic corruption that currently exists in Russia, which facilitates government involvement with this criminal activity. It will further investigate the issues surrounding trafficked women and the international anti-trafficking conventions that have been created by the United Nations. Next, it will go into a deeper discussion of the current status of relevant international law and the issues involving the International Criminal Court. Finally, this Article …

Be Careful What You Wish For: An Examination Of Arrest And Prosecution Patterns Of Domestic Violence Cases In Two Cities In Michigan, Andrea D. Lyon

Michigan Journal of Gender & Law

This Article will examine six months of data on arrests for domestic violence in the cities of Ypsilanti and Ann Arbor. In order to be able to interpret what the data means Lyon did some other research. The results were surprising- for example, although women tend to be injured most severely by domestic violence, they use violence in intimate relationships a little more often than men. Part I of this Article traces a brief history of domestic violence and discusses the issue of who commits domestic violence, Part II discusses the "must arrest" and "should arrest" policies and their history, …

The Freedom To Marry For Same-Sex Couples: The Opening Appellate Brief Of Plaintiffs Stan Baker Et Al. In Baker Et Al. V. State Of Vermont, Mary Bonauto, Susan M. Murray, Beth Robinson

Michigan Journal of Gender & Law

As the first state to prohibit slavery by constitution, and one of the few states which, from its inception, extended the vote to male citizens who did not own land, the State of Vermont has long been at the forefront of this nation's march toward full equality for all of its citizens. In July 1997, three same-sex couples challenged Vermont to act as a leader yet again, this time in affording full civil rights to the State's gay and lesbian citizens. Stan Baker and Peter Harrigan, Nina Beck and Stacy Jolles, and Holly Puterbaugh and Lois Farnham were denied marriage …

The Charleston Policy: Substance Or Abuse?, Kimani Paul-Emile

Michigan Journal of Race and Law

In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.

Review Of Caring For Justice, By Robin West, Michael T. Cahill

Michigan Law Review

If the sexes are indeed from different planets, as the title of a recent bestseller informs us, one wonders that those planets were like before their inhabitants made the trek to Earth. Did the citizens of the all-female Venus structure their lives, work, moral commitments, and political systems differently from the males over on Mars? If so, what happened when these cultural worlds collided to form our own? Does our culture represent a synthesis of these two separate systems into a new and better, or perhaps worse, one, or is it the result of one planet's wholesale conquest of the …

The Erotics Of Torts, Carol Sanger

Michigan Law Review

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist . . . that . . . do[es] not respect the line between the intellectual and the sexual" (p. 12)." Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means - and what …

Hooting: Public And Popular Discourse About Sex Discrimination, Kenneth L. Schneyer

University of Michigan Journal of Law Reform

In this Article, Professor Schneyer focuses on the debate surrounding the Hooters restaurant chain. He argues that the debate surrounding Hooters inevitably addresses the nature and importance of gender and sexuality in culture and business. Professor Schneyer uses the lens of constitutive rhetoric to analyze several texts created by both sides during this debate. He concludes that varying participants in the debate use rhetoric for different purposes. Some, like commentator Laura Archer Pulfer, use rhetoric that encourages growth and critical analysis, while others, like Hooters itself, use rhetoric to encourage unquestioning belief Overall, Professor Schneyer observes that Hooters's supporters use …

Reproductive Liberty Under The Threat Of Care: Deputizing Private Agents And Deconstructing State Action, Linda Kelly

Michigan Journal of Gender & Law

This Article uncovers the unsettling parallels between feminism and the recent restrictions on reproductive liberty in order to reveal the threat posed by the feminist ethic of care. By critically reexamining feminism's foundation and direction, the need for greater emphasis on female individuality becomes apparent. Kelly’s contention is that such a perspective, aggressively supported by the state, will ensure feminism's progress and encourage the achievement of gender equality.