Law and Society Commons^™

"Was Blind, But Now I See": White Race Consciousness And The Requirement Of Discriminatory Intent, Barbara J. Flagg

Michigan Law Review

Part I briefly reviews the case law that has established and elaborated the requirement of discriminatory intent. I discuss the theoretical background against which Washington v. Davis was decided, a debate over the possibility and propriety of judicial review of legislative motive. I suggest that the significant institutional difficulties associated with the triumphant discriminatory intent rule, together with the many substantive criticisms leveled against it, might lead one to expect to see relative doctrinal instability here. On the contrary, the requirement of discriminatory intent has been one of the most stable doctrines in modem constitutional law. I conclude with the …

Saving The Self?, Daniel R. Ortiz

Michigan Law Review

In a recent article, Law, Politics, and the Claims of Community, Stephen A. Gardbaum accurately diagnoses one of the greatest problems in contemporary political and legal theory: the "complete confusion" about what communitarianism means.

Gardbaum's basic insight is, I think, both powerful and correct. We have been seeing contradiction and conflict where there often is none at all. As important and salutary as his account is, however, it deserves response. His taxonomy of communitarianism, the heart of his piece, well shows that communitarianism makes fundamentally different types of claims. It does not, however, make as many different kinds of …

Prostitution And Male Supremacy, Andrea Dworkin

Michigan Journal of Gender & Law

The assumptions of academia can barely begin to imagine the reality of life for women in prostitution. Academic life is premised on the notion that there is a tomorrow and a next day and a next day; or that someone can come inside from the cold for time to study; or that there is some kind of discourse of ideas and a year of freedom in which you can have disagreements that will not cost you your life. These are premises that those who are students here or who teach here act on every day. They are antithetical to the …

Pimping And Pornography As Sexual Harassment: Amicus Brief In Support Of Plaintiff-Respondent In Thoreson V. Penthouse Int'l Ltd., Dorchen A. Leidholdt

Michigan Journal of Gender & Law

Several issues were raised on appeal to the New York Court of Appeals. Thoreson AKA DiLorenzo was the Respondent on the issue of sexual harassment and the Appellant on the issue of the amount of damages awarded by the Supreme Court. This portion of the brief addresses only the issue of sexual harassment. Wendy C. Lecker (J.D. 1988, New York University School of Law), authored a section on the issue of compensatory damages.

Strategies Of Connection: Prostitution And Feminist Politics, Margaret A. Baldwin

Michigan Journal of Gender & Law

A feminist political approach to prostitution must begin from these strengths and be tested against the standards set by them. I want to address how taking each of these strengths seriously can create sustained resistance against prostitution.

An Analysis Of Individual, Institutional, And Cultural Pimping, Evelina Giobbe

Michigan Journal of Gender & Law

A pimp is a man .. .who takes all or a part of the earnings of women who sell their bodies for gain. He may have inveigled her into becoming a prostitute or acquired her after she started the business. Invariably he encourages her to continue in prostitution, and he may be either her lover or her husband, but always he is her supposed protector.

Male Sexuality: Why Ownership Is Sexy, John Stoltenberg

Michigan Journal of Gender & Law

What I want to address is what I call the eroticism of owning. We have a lot of circumstantial evidence that this eroticism exists. For instance, based on the testimony of women who are or have been sexually owned in marriage, taken in rape, and/or sexually used for a fee in prostitution, it appears that for many men, possession is a principal part of their sexual behavior. Many men can scarcely discern any erotic feelings that are not associated with owning someone else's body.

Prostitution: Where Racism & Sexism Intersect, Vednita Nelson

Michigan Journal of Gender & Law

Black women find themselves in a unique and extremely difficult position in our society. They are forced to deal with the oppression that arises from being Black in a white-supremacist culture and the oppression that arises from being female in a male-supremacist culture. In order to examine the experience of being Black and female, this paper attempts to describe that very difficult, tight space where Black women attempt to survive-that space where racism and sexism intersect.

Prostitution Is Cruelty And Abuse To Women And Children, Susan Kay Hunter

Michigan Journal of Gender & Law

Each day I rise to take up the truly good fight to stop the harm to women in prostitution. I long for complete liberation of all oppressed peoples. I passionately believe that the work I do to end prostitution is revolutionary. No one deserves to be used and abused, and that is the universal experience of prostituted women and children. It is also revolutionary work because my freedom as a woman is meaningless so long as some of us can be bought and sold. The giant sex industry grinds on, exploiting and enslaving women, while sexual liberals are well-paid by …

State Responses To Task Force Reports On Race And Ethnic Bias In The Courts, Suellyn Scarnecchia

Articles

While several states have embarked on studies of race and ethnic bias in their courts, Minnesota is only the sixth to publish its report to date. As Minnesota joins the ranks of states with published reports, it is worthwhile to assess the impact of the five earlier published reports from other states. Final reports have been published in Michigan (1989), Washington (1990), New York (1991), Florida (1991) and New Jersey (1992). The published reports make findings and provide several specific recommendations for change. This article will review the published findings and recommendations of the task forces and will discuss the …

The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross

Articles

On February 17, 1992, Jeffrey Dahmer was sentenced to 15 consecutive terms of life imprisonment for killing and dismembering 15 young men and boys (Associated Press 1992a). Dahmer had been arrested six months earlier, on July 22, 1991. On January 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on January 30. The jury heard two weeks of testimony about murder, mutilation and necrophilia; they deliberated for 5 hours before finding that Dahmer was sane when he committed these …

Some Natural Confusions About Natural Law, Philip Soper

Michigan Law Review

To describe this renewed interest in natural law as a resurgence does imply, no doubt, that the ideas associated with the concept are too vital to be put permanently to rest; but resurgence also implies that natural law, for whatever reason, has been assigned the role of challenger to the reigning orthodoxy, rather than that of defending champ. By and large, this inference about the role assigned to natural law by the general public is, I think, correct. Natural law seems to evoke a degree of skepticism in our society that forces any theory that goes by the name to …

Community, Constitution, And Culture: The Case Of The Jewish Kehilah, Nomi Maya Stolzenberg, David N. Myers

University of Michigan Journal of Law Reform

Part I describes the historical development of the Jewish kehilah, its subsequent evolution, and eventual dissolution. Part II surveys recent trends in legal scholarship which reflect a growing consciousness of the tension between the demands of self-conscious cultural groups and liberal legal principles.

Minority Cultures And The Cosmopolitan Alternative, Jeremy Waldron

University of Michigan Journal of Law Reform

I have chosen not to talk in this Article about the warning that Rushdie is sounding in his essay In Good Faith, but to discuss more affirmatively the image of the modern self that he conveys. Still, I hope that we do not lose sight of the warning. The communitarianism that can sound cozy and attractive in a book by Robert Bellah or Michael Sandel can be blinding, dangerous, and disruptive in the real world, where communities do not come ready-packaged and where communal allegiances are as much ancient hatreds of one's neighbors as immemorial traditions of culture.

Religion And Child Custody, Carl E. Schneider

University of Michigan Journal of Law Reform

In this Essay, I want to reflect on some problems at the intersection of religion, law, and the family. Specifically, I will explore the ways courts may consider a parent's religiously motivated behavior in making decisions about the custody of children. More precisely still, I will ask two questions. First, may a court refuse to award custody because of a parent's religiously motivated behavior in a dispute between a natural mother and a natural father? Second, when should a court agree to resolve a dispute between divorced parents over the religious upbringing of their children? These are topics of quiet …

Courts And Cultural Distinctiveness, Marie R. Deveney

University of Michigan Journal of Law Reform

The claim that minority ethnic and religious groups are culturally distinct from the dominant society is often, either implicitly or explicitly, a key element of demands these groups make to courts and legislatures for accommodation of their needs. In such cases, the decision maker's understanding of what constitutes "cultural distinctiveness" is crucial, for it can strongly influence the outcome of the accommodation question. In this brief Essay related to Peter Welsh's and Joseph Carens's papers and Dean Suagee's remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists' subtle and sophisticated understandings of cultural distinctiveness with the …

Emblems Of Federalism, Carol Weisbrod

University of Michigan Journal of Law Reform

This Article reviews non-state federalism-more accurately "not only state federalism"- sometimes called pluralism or essential federalism, and contrasts it with conventional political federalism referred to here as "monumental federalism" and presented through a description of a painting by Erastus Field.

Balancing Cultural Integrity Against Individual Liberty: Civil Court Review Of Ecclesiastical Judgments, Michael G. Weisberg

University of Michigan Journal of Law Reform

This Note considers the standard of deference that civil courts should apply in cases where a religious judicatory already has decided an issue which subsequently is submitted for civil court resolution. It proposes a framework designed to protect the rights of religious groups to preserve their cultural integrity while also protecting individuals' personal liberty and the interests of the secular state. The analysis is necessarily framed by the opposing demands of the First Amendment's religion clauses. The Free Exercise Clause prohibits civil courts from intruding into religious societies' internal affairs, and the Establishment Clause limits religious authority over secular issues. …

Murdering The Spirit: Racism, Rights, And Commerce, Robin West

Michigan Law Review

A Review of The Alchemy of Race and Rights: The Diary of a Law Professor by Patricia L. Williams

Talking About Rights, Carl E. Schneider

Reviews

In recent years, a growing recognition of the power of rights talk in American law and life has surfaced in the writing of legal academics, along with a gnawing doubt about that power. In Rights Talk The lmpaverishrnent of Political Discaurse, Mary Ann Glendon, a professor of law at Harvard University, gives those doubts systematic, thoughtful, and lucid expression. Glendon has long been one of our most penetrating students of family law and one of our most enlightening students of comparative law. In this book (as in its predecessor and forebear, Abartion and Divorce in We5tem Law), she brings this …

Rhetorical Slavery, Rhetorical Citizenship, Gerald L. Neuman

Michigan Law Review

A Review of American Citizenship: The Quest for Inclusion by Judith N. Shklar

Do Courts Matter?, Stephen L. Carter

Michigan Law Review

A Review of The Hollow Hope: Ca Courts Bring About Social Change? by Gerald N. Rosenberg

Divorce Reform And The Legacy Of Gender, Milton C. Regan Jr.

Michigan Law Review

A Review of The Illusion of Equality: The Rhetoric and Reality of Divorce Reform by Martha Albertson Fineman

The Realm Of Rights, Richard J. Mooney

Michigan Law Review

A Review of The Realm of Rights by Judith Jarvis Thomson

Speaking Differences: The Rules And Relationships Of Litigants' Discourses, Naomi R. Cahn

Michigan Law Review

A Review of Rules Versus Relationships: The Ethnography of Legal Discourse by John M. Conley and William M. O'Barr

Chutzpah, David A. Nacht

Michigan Law Review

A Review of Chutzpah by Alan M. Dershowitz

The Channelling Function In Family Law, Carl E. Schneider

Articles

On an occasion such as this, we are called to step back from our daily work to seek what Justice Holmes called a "liberal view" of our subject. Today, I propose to do so by exploring a function of family law that I believe is basic, that underlies much of family law, that resonates with the deepest purposes of culture but that is rarely addressed expressly-namely, what I call the "channelling function." As I will soon explain at length, in the channelling function the law recruits, builds, shapes, sustains; and promotes social institutions. My exploration of this topic will have …

Tales Of Two Cities: Aids And The Legal Recognition Of Domestic Partnerships In San Francisco And New York, David L. Chambers

Articles

Here are two stories. They are of the quite different ways that domestic partnerships of lesbian and gay couples have come to be recognized, for some purposes, in San Francisco and New York City. I tell the stories for their own sake, but with a particular focus on the role that AIDS played in the political process in each city.

The Burdens Of Educational Loans: The Impacts Of Debt On Job Choice And Standards Of Living For Students At Nine American Law Schools, David L. Chambers

Articles

American law students are borrowing large sums of money. For graduates at many schools, cumulative debts of $40,000 from college and law school have become the norm, and debts of $50,000, $60,000, and even more are common. The sums students are borrowing are much larger today than they were ten years ago, even after adjusting for increases in the cost of living. They have risen at a considerably faster pace than the starting salaries at small law firms and government agencies. They have even risen at a faster pace than the starting salaries in many large firms. The new pattern …

Translation As A Mode Of Thought, James Boyd White

Articles

I think that Clark Cunningham's article, The Lawyer as Translator, is a wonderful piece of work, full of life and interest and originality. I especially admire: his ability to make vivid to the reader the ways in which languages do truly differ, and differ beyond our efforts to bridge them-as he shows when he imagines an attempt to translate our most common professional terms into Chinese; his recoguition of the kind of force that our languages have over our minds, both as we see the world and as we tell stories about it; his sense that what we think of …