Law and Gender Commons^™

Lies That Matter: Retheorizing Rape And The Limits Of Consent, Seran Gee

Nevada Law Journal

This Article proposes a novel assent-based framework for understanding rape law, challenging the traditional focus on consent as the sole determinant of rape. It argues that rape occurs when there is an absence of assent, rather than simply a lack of consent. The Article distinguishes between assent, which reflects a feeling of willingness, and consent, which is an exercise of autonomy that waives one’s right to bodily integrity. By incorporating this distinction, the assent model provides a more nuanced approach to rape law, explaining why certain deceptions—such as misrepresenting the nature of a sexual act—constitute rape, while others do not. …

Nothing To Gain: The Disparate Impact Of The Capital Gains Tax Preference On Women And Persons Of Color, Ann M. Murphy

Nevada Law Journal

Tax preference provisions are scattered across the Internal Revenue Code, and the capital gains tax rate offers an enormous advantage for wealthy taxpayers. When first enacted, it was touted as eliminating the “lock-in effect” which caused investors to hold on to their investment property. Today, it is justified as encouraging investment and eliminating gains produced merely by the passage of time. The provision’s unequal benefits are hidden from the picture. Although not overtly dis-criminatory, the preference operates as a tax cut for the wealthy. Women and per-sons of color see little benefit from the lower tax rate. The difficulty of …

Presumed Guilt: Epistemic Closure In Pregnancy Prosecutions, M. Eve Hanan

Scholarly Works

Criminal law and reproductive justice scholars are calling attention to the increase in prosecutions for pregnancy outcomes in the United States. Trace amounts of controlled substances in newborns are prosecuted as child abuse. Miscarriages are prosecuted as illegal abortions or homicides. This area of criminal law existed side-by-side with Roe v. Wade for late-term pregnancy outcomes. The Dobbs decision has further emboldened these prosecutions by removing the protections of the Due Process Clause from the pre-viability phase of the pregnancy.

Using a case study of a woman who was pressured to plead guilty to manslaughter and sentenced to eight years …

The Insufficiency Of Battered Women’S Syndrome Evidence And The Need For Resentencing Legislation For Criminalized Survivors Of Domestic Violence, Alice Samberg

Nevada Law Journal

No abstract provided.

The State Where Sex Is Everywhere, Yet Is Still A Sin On The Books: Why Prostitution Should Be Decriminalized In Nevada, Madison Johnson

UNLV Gaming Law Journal

No abstract provided.

Doing Things With The Language Of Law And Gender: Using Speech Act Theory To Understand The Meaning And Effect Of The Gender Identity Backlash, Susan Etta Keller

Nevada Law Journal

A significant legal backlash against transgender individuals is currently under way. This movement--which includes state legislation, state executive action, and federal cases--seeks to limit access and participation by transgender individuals in school sports, use of bathrooms, access to appropriate care, and even the right to be addressed appropriately in the classroom. Properly understood as a political backlash in response to previous political gains by transgender individuals, this movement is composed of a series of speech acts: language that makes change in the world and alters human relations. This article identifies the features of the backlash and the power dynamics that …

Fighting Institutional Betrayal: Gender Pay Equity Litigation Against University Employers, Nantiya Ruan

Scholarly Works

Universities are workplaces replete with observed gender pay gaps despite the legal protections in place to mitigate against such a reality. This Article analyzes recent university gender pay equity lawsuits to examine their efficacy in four types of litigation: (1) Class and Collection Action; (2) Government Action; (3) Union Action; and (4) Individual Action. From these case studies of different types of litigation, we learn several important lessons about prosecuting equal pay laws and how to best protect against unequal pay.

First, the Article sets forth the gender pay equity landscape, including the national pay gap picture, the legal framework …

Never Equals: Slavery, White Masculinities, And The Legacy Of Law In Today’S Workplace, Ann C. Mcginley

Scholarly Works

This essay discusses two themes of Race Unequals: (1) the role of law in creating and reinforcing gendered, classed, and raced identities on plantations in the Antebellum South; and (2) the existence of slavery's legacy today in workplaces and the law's frequent failure to remedy its damaging tentacles. Part II describes masculinities studies from the social sciences and Multidimensional Masculinities Theory in law and applies the theory to analyze the first theme. Part III considers slavery's legacy in today's workplaces and analyzes employment discrimination law's shortcomings in eliminating racism in workplaces. The essay concludes that White masculinities, established in the …

The “Fool’S Gold” Standard Of Confession Evidence: How Intersecting, Disadvantaged Identities Heighten The Risk Of False Confession, Nicole Weis

Nevada Law Journal

No abstract provided.

Misogyny And Murder, Ann C. Mcginley

Scholarly Works

The Atlanta-area shootings of six Asian women in massage parlors in March 2021 raised awareness about anti-Asian discrimination and violence in the United States. When the perpetrator, Robert Aaron Long, shot the Atlanta-area spa victims, public speculation arose about whether he was motivated by hatred for the Asian victims because of their race. Many wondered whether the shooter would be charged and convicted of hate crimes against the victims. When asked by police about his motives, the perpetrator stated that he had a "sex addiction," meaning that the spas created intolerable sexual temptations that he was unable to resist. Considering …

Sprinting A Marathon: Next Steps For Gender Equity In Criminal Law Employment, Maryam Ahranjani

Scholarly Works

No abstract provided.

Women Of Color In Immigration Enforcement, Kit Johnson

Nevada Law Journal

No abstract provided.

Sovereignty Threat: Loreal Tsingine, Policing, And The Intersectionality Of Indigenous Death, Theresa Rocha Beardall

Nevada Law Journal

No abstract provided.

Anomalous Anatomies: How The Tsa Should Screen For Transgender People, Karissa J. Kang, John M. Kang

Nevada Law Journal

No abstract provided.

An Empirical Analysis Of The Racial/Ethnic And Sex Differences In Nypd Stop-And-Frisk Practices, Henry F. Fradella, Weston J. Morrow, Michael D. White

Nevada Law Journal

No abstract provided.

Hiding Sexual Harassment: Myths And Realities, Pat K. Chew

Nevada Law Journal

No abstract provided.

Intersectionality, Police Excessive Force, And Class, Frank Rudy Cooper

Scholarly Works

Recent uprisings over the failure to hold police officers responsible for killing civilians—from Ferguson, Missouri to nationwide George Floyd protests—show the importance of excessive force as a social problem. Some scholars have launched racial critiques of policing as resulting from explicit or implicit racial bias. This Essay is the first to demonstrate that an intersectional analysis of both race and class helps explain both aggressive policing and the Court’s permissive excessive force doctrine.

This Essay identifies several take-aways from intersectionality theory’s basic insight that unique senses of self-identity and unique stereotypes form at places where categories of identity meet. First, …

Reversing The Decriminalization Of Sexual Violence, Lisa Avalos

Nevada Law Journal

No abstract provided.

Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Scholarly Works

This conversational-style essay is an exchange among fourteen professors-representing thirteen universities across five countries-with experience teaching with feminist judgments.

Feminist judgments are 'shadow' court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases.

This essay begins to explore the vast pedagogical potential …

Bridging Divides In Divisive Times: Revisiting The Massie-Fortescue Affair, Stewart Chang

Scholarly Works

This Article revisits the infamous Massie-Fortescue rape and murder cases that occurred in Hawai'i during the 1930s, in order to challenge the methods by which race scholars have previously analyzed the case by relying on gender hierarchies. Thalia Massie, a white woman, accused five "Hawaiians" of gang raping her, even though they were of various Asian Pacific ethnic identities. The rape case ended in a hung jury, and so her relatives resorted to vigilante murder of one of the defendants. The subsequent murder trial resulted in convictions, but the 10- year prison sentences for the white defendants were commuted to …

#Metoo Backlash Or Simply Common Sense?: It's Complicated, Ann C. Mcginley

Scholarly Works

This Essay focuses on the skittishness that men express about being accused of sexual harassment. Part II explains the prevalence of sexual harassment and the response to this problem, giving both empirical and anecdotal evidence of male professionals' refusals to spend time with female subordinates. Part III discusses the already-present inequalities in the legal profession, particularly in law firms and raises concerns about how lack of mentoring and sponsorship of women by male supervisors could create an even greater disparity. Part IV analyzes the disparate legal, business, and cultural definitions of sexual harassment, and given the disparities in understandings, raises …

Cop Fragility And Blue Lives Matter, Frank Rudy Cooper

Scholarly Works

There is a new police criticism. Numerous high-profile police killings of unarmed blacks between 2012–2016 sparked the movements that came to be known as Black Lives Matter, #SayHerName, and so on. That criticism merges race-based activism with intersectional concerns about violence against women, including trans women.

There is also a new police resistance to criticism. It fits within the tradition of the “Blue Wall of Silence,” but also includes a new pro-police movement known as Blue Lives Matter. The Blue Lives Matter movement makes the dubious claim that there is a war on police and counter attacks by calling for …

“Toughen Up, Buttercup” Versus #Timesup: Initial Findings Of The Aba Women In Criminal Justice Task Force, Maryam Ahranjani

Scholarly Works

"Practicing criminal law as a woman is like playing tackle football in a dress." Andrea George, Executive Director of the Federal Public Defender for Eastern Washington and Idaho, began her testimony to the American Bar Association's Women in Criminal Justice Task Force with that powerful observation. In the wake of the #MeToo movement, the ABA has focused on ways to enhance gender equity in the profession and in the justice system. The Criminal Justice Section of the ABA has invested significant resources in the creation of the Women in Criminal Justice Task Force (WCJ TF), which launched its work in …

What’S Sex Got To Do With It: Questioning Research On Gender & Negotiation, Andrea Kupfer Schneider

Nevada Law Journal

No abstract provided.

Tort Law’S Devaluation Of Stillbirth, Jill Wieber Lens

Nevada Law Journal

No abstract provided.

Venture Bearding, Benjamin P. Edwards, Ann C. Mcginley

Scholarly Works

“Venture bearding,” a term that we coin in this Article, describes processes of obscuring and covering socially stigmatized identities in business environments. This Article introduces distinctive identity performance strategies from the technology, startup, and venture capital context into the legal literature and discusses what their existence explains about business environments and capital formation. Venture bearding, as we use the term, describes behaviors that persons with contextually stigmatized identities adopt to access social status and capital. In some instances, women, who are stigmatized in this context, may employ men as front persons to conceal that the venture is an exclusively women-owned …

Learning From Feminist Judgments: Lessons In Language And Advocacy, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Scholarly Works

Judicial decision-making is not a neutral and logical enterprise that involves applying clear rules to agreed-upon facts. Legal educators can and should help students learn more about how judges actually go about making their decisions. The study of re-imagined judicial decisions, such as the alternative judgments from various Feminist Judgments Projects, can enrich the study of law in multiple ways. First, seeing a written decision that differs from the original can help students think “outside the box” constructed by the original opinion by showing them a concrete example of another perspective written in judicial language. Second, the rewritten judgments show …

The Masculinity Mandate: #Metoo, Brett Kavanaugh, And Christine Blasey Ford, Ann C. Mcginley

Scholarly Works

In fall 2019, the Senate Judiciary Committee held hearings involving Dr. Christine Blasey Ford's testimony about then-Judge Brett Kavanaugh's alleged behavior at a high school party gone awry.

This essay uses identity performance and multidimensional masculinities theories to analyze the hearings, specifically to consider the gender, race, and class performances of the participants, and how partisans and non-partisans interpreted those performances. This examination demonstrates that the judgment concerning masculinity and femininity performances and their appropriateness is, to a certain extent, in the eye of the beholder. By the same token, public interpretations are not arbitrary. Rather, at least in this …

Schools As Training Grounds For Harassment, Ann C. Mcginley

Scholarly Works

This article deals with the schools’ role in permitting and encouraging peer sex- and gender-based harassment of children and the law’s role in failing to hold schools accountable for their negligent and intentional behavior in sanctioning it. Part I discusses the evidence of rampant sex- and gender-based harassment in schools. Part II analyzes the problem through the lens of masculinities theory and explains how cultural notions of masculinity create incentives for boys (and some girls) to engage in peer sex- and gender-based harassment.

Part III analyzes court cases and OCR decisions and explains the serious disconnect between the two; it …

Why Women? Judging Transnational Courts And Tribunals, Kathryn M. Stanchi, Bridget J. Crawford, Linda L. Berger

Scholarly Works

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more …