Law and Gender Commons^™

Griswold, Geduldig, And Hobby Lobby: The Sex Gap Continues, Maya Manian

Scholarly Articles in Law Reviews & Journals

In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. …

Boys, Rape And Masculinity: Reclaiming Boys’ Narratives Of Sexual Violence In Custody, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

This article examines a little studied area at the intersections of masculinity, feminist studies, and criminal justice — sexual abuse of boys in custody by female staff. Professor Smith outlines the scope of the problem and discusses competing narratives that attempt to explain the phenomena: (1) female staff as “mother, sister, friend”; (2) adolescent development theory; (3) complex early childhood trauma; and (4) female authority and power. There is a gap in both masculinity and feminist theory in analyzing sexual aggression and power by women over boys. The talk article concludes with policy and practice prescription and recommendations for further …

The Challenges And Perils Of Reframing Trafficking As 'Modern-Day Slavery", Janie Chuang

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Concord With Which Other Families: Marriage Equality, Family Demographics, And Race, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Yes, Virginia, There Are Stupid Questions, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Exploited At The Intersection: A Critical Race Feminist Analysis Of Undocumented Latina Workers And The Role Of The Private Attorney General, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Undocumented Latina workers experience wage theft and other workplace exploitation at alarmingly high rates. The stock stories associated with immigrant workers often involve male day laborers or female domestic workers and fail to capture the experiences of women toiling in the farms, restaurants, factories, and home and business cleaning services that employ hundreds of thousands of immigrant women. The resulting invisibility of undocumented Latina women in the typical narratives parallels the paucity of undocumented Latina workers who make legal claims against their exploitative employers. Their distinct experiences are characterized by multiple intersecting vulnerabilities based upon their ethnicity, gender, and immigration …

The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

Hoop Dreams Deferred: The Wnba, The Nba, And The Long-Standing Gender Inequity At The Game’S Highest Level, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

Introduction: The top three picks in the 2013 Women's National Basketball Association (WNBA) draft were perhaps the most talented top three picks in league history, and they were certainly the most celebrated.' Brittney Griner, Elena Delle Donne, and Skylar Diggins were phenomenal youth players, attracting attention from collegiate coaches shortly after they began playing competitively. Delle Donne received her first major university scholarship offer when she was in the seventh grade, and Diggins received her first in the eighth. Griner did not start playing competitive basketball until her freshman year of high school, but before long, she too was receiving …

The Illusion Of Autonomy In Women's Medical Decision-Making, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy. This article instead considers the …

The Rights Of Lesbian Gay Bisexual And Transgendered Peoples And International Human Rights Law, Claudia Martin, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Consequences Of Abortion Restrictions For Women's Healthcare, Maya Manian

Scholarly Articles in Law Reviews & Journals

This Essay challenges the false assumption that abortion care can be segregated from women’s medical care and targeted for special restrictions without any effects on women’s health more broadly. As a matter of medical reality, abortion cannot be isolated from the continuum of women’s healthcare. Yet policymakers and the public have failed to understand the interconnectedness of abortion with other aspects of women’s medical care. In fact, existing abortion restrictions harm women’s health even for women not actively seeking abortion care, but these impacts remain obscured. For example, antiabortion laws and policies have spillover effects on miscarriage management, prenatal care, …

Distorted And Diminished Tort Claims For Women, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

After Dothard: Female Correctional Workers And The Challenge To Employment Law, Brenda V. Smith, Melissa C. Loomis

Scholarly Articles in Law Reviews & Journals

This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than …

What Marriage Equality Arguments Portend For Domestic Partner Employee Benefits, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

International Law Weekend, American Branch Of The International Law Association Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Sexual and gender-based violence (SGBV) during conflict and periods of repression has been a problem in every region of the globe.' Historically, these crimes were rarely prosecuted, particularly when government leaders were responsible for tolerating, encouraging, or orchestrating these crimes. However, the last two decades have seen an incredible transformation in the treatment of SGBV under international law. Great strides have been made in the investigation and prosecution of sexual and gender-based crimes, particular by the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone This essay examines the way …

Lessons From Personhood's Defeat: Abortion Restrictions And Side Effects On Women's Health, Maya Manian

Scholarly Articles in Law Reviews & Journals

State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far no personhood laws have passed. Why? This Article offers a possible explanation and draws lessons from that explanation for understanding and resisting abortion restrictions more broadly. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion may have led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, …

Enforcing Masculinities At The Borders, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

“American men have no history,” declared pioneering masculinities scholar, Michael Kimmel. Masculinities, the study of how men relate to each other and construct their identities, can be used as a powerful sociological and legal tool to understand institutions, power structures, and human relations. While the history of American immigration law has revealed rich multi-dimensional narratives of class, race, and domestic and international politics, sparse historical work has considered the masculinities dimensions of immigration law.

This Article considers how unpacking the masculinities dimensions of our paradigmatic shifts in immigration policy might offer an additional - even unifying - dimension to previously …

Functional Parenting And Dysfunctional Abortion Policy: Reforming Parental Involvement Legislation, Maya Manian

Scholarly Articles in Law Reviews & Journals

Abortion-related parental involvement mandates raise important family law issues about the scope of parents’ power over their children’s intimate decisions. While there has been extensive scholarly attention paid to the problems with parental involvement laws, relatively little has been said about strategies for reforming these laws. This article suggests using insights from family law relating to functional parenthood and third party caregiving as a basis for crafting more capacious methods of ensuring adult guidance for teenage girls facing an unplanned pregnancy. Recent developments in family law bolster the case for reforming parental involvement legislation to allow teenagers to consult with …

Response: And Baby Makes How Many - Using In Re M.C. To Consider Parentage Of A Child Conceived Through Sexual Intercourse And Born To A Lesbian Couple, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The New Illegitimacy: Winning Backward In The Protection Of The Children Of Lesbian Couples, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Two Parts Of The Landscape Of Family In America: Maintaining Both Spousal And Domestic Partner Employee Benefits For Both Same-Sex And Different-Sex Couples, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Feminist Academic's Challenge To Legal Education: Creating Sites For Change, Ann Shalleck

Scholarly Articles in Law Reviews & Journals

No abstract provided.

From 'Barbarity' To Regularity: A Case Study Of 'Unnecesarean' Malpractice Claims, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This paper is a case study from “barbarity” to “regularity” examining comparatively the first ever “unnecesarean” lawsuit arising out of an 1858 cesarean section malpractice case next to a modern forced cesarean section malpractice suit. It positions the modern “unnecessarean” epidemic, in which 30% of births today are by cesarean section, in a historical medical malpractice context. This case study primarily examines a controversial 1858 lawsuit arising out of the first documented cesarean section performed by the revered Dr. Elias Cooper in California. The surgery left Mary Hodges’s bladder, womb, and intestines permanently fused together and left her permanently disfigured. …

Examining Entrenched Masculinities Within The Republican Government Tradition, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

“May all our citizens be soldiers, and all our soldiers citizens,” Sarah Livingston Jay toasted to revelers celebrating the Revolutionary War in 1789. She expressly conveyed what this article describes as the “foundational fusion” of republican government traditions coupling the military service of citizens-soldiers with male political citizenship. While the core of this fusion is deep, long-standing, and well-documented, this article explores the implicit tensions conveyed in her toast – the dominant masculinity dimensions of this foundational fusion. How do women and black men historically gain full political citizenship and effectuate republican government guarantees given its anchoring in entrenched dominant …

Gender And Invention: Mapping The Connections, Victoria Phillips

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Aryans, Gender, And American Politics, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of legal, political, and cultural transformation. In recent years, the community has moved from common law theories of white sovereignty to more robust forms of racial constitutionalism. The piece is drawn from "America's Forgotten Constitutions: Defiant Visions of Power and Community"

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for "gratuitous" contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.