Sexuality and the Law Commons^™

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

Foreword: Loving Lawrence, Pamela S. Karlan

Michigan Law Review

Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Oblivion Of Crime As Crime Of Oblivion, Néstor A. Braunstein

Cardozo Law Review

No abstract provided.

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Stealing The Natural Language: The Fiction Of The Social Contract And Legality In The Light Of Nietzsche's Philosophy, Jiří Přibáň

Cardozo Law Review

No abstract provided.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Digitized Pornography Meets The First Amendment, Eric M. Freedman

Cardozo Law Review

No abstract provided.

Bitch V. Whore: The Current Trend To Define The Requirements Of An Actionable Hostile Environment Claim In Verbal Sexual Harassment Cases, 33 J. Marshall L. Rev. 465 (2000), Jamie Lynn Cook

UIC Law Review

No abstract provided.

The Anatomy In Property Law: "It's Not About Sex," Or Is It?, David S. Caudill

Cardozo Law Review

No abstract provided.

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West

Georgetown Law Faculty Publications and Other Works

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" …

Juno Moneta: On The Erotics Of The Marketplace, Jeanne L. Schroeder

Articles

The article explores how property and the feminine, as legal fictions, facilitate the creation of subjectivity through the lens of Hegelian philosophy and Lacanian psychoanalysis. It critiques the liberal individual as an insufficient concept for subjectivity, arguing that subjectivity is constructed, not natural. The analysis examines how legal frameworks privilege masculine metaphors, such as possession, while repressing feminine ones, and posits that the pursuit of a perfect market represents a destructive ideal that undermines freedom and subjectivity.

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

Freestanding Legal Pragmatism, Thomas C. Grey

Cardozo Law Review

John Rawls has recently presented liberalism as a political philosophy that can stand free of the comprehensive moral and metaphysical views with which it has been associated. You don't have to be a neo-Kantian like Rawls, so he argues, to accept his Kantiansounding theory of justice. Millian utilitarians, Aristotelian perfectionists, and Thomistic theists can also commit to the basic liberal rights: democratic government, freedom of speech and religion, equal opportunity, the rule of law, private property, and a welfare safety net. Rawls believes that there is no need for citizens to resolve their deepest philosophical disagreements in order to be …

Never Jam To-Day: On The Impossibility Of Takings Jurisprudence, Jeanne L. Schroeder

Articles

The article critiques the incoherence of takings jurisprudence under the Fifth and Fourteenth Amendments, arguing that property rights cannot be understood as absolute or natural but must be viewed through the lens of Hegelian dialectics. It contends that property is a socially constructed concept requiring pragmatic reasoning to balance individual rights and communitarian limits. The analysis emphasizes that the determination of when regulation constitutes a taking cannot be resolved through rigid legal frameworks but demands a pragmatic approach, as the balance between individualistic and communitarian interests is inherently empirical and subjective.

The Dynamics Of Constitutional Adjudication, Bernhard Schlink

Cardozo Law Review

Habermas determines the role and legitimacy of constitutional adjudication through three confrontations. First, he confronts both the liberal and the welfare-state paradigms of law, seeing constitutional adjudication move from the former to the latter. Habermas wants this move to arrive at a procedural paradigm of law. Second, he confronts a norm- and a value-oriented understanding of the constitution. Habermas indicates the dangers of the former and the merits of the latter, and attempts to show that principles, understood as norms, should guide constitutional adjudication. Third, he confronts the liberal and the republican views of the political and constitutional process, developing …

Some Realism About Legal Surrealism, Jeanne L. Schroeder

Articles

The article challenges the traditional understanding of possession in property law, arguing that the concept is increasingly inadequate due to its reliance on physical metaphors that fail to account for intangible assets and noncustodial interests. It advocates for a shift toward an abstract, Hegelian approach, emphasizing legal recognition and control over physical custody, particularly in the context of modern commercial transactions governed by the Uniform Commercial Code (UCC).

Virgin Territory: Margaret Radin's Imagery Of Personal Property As The Inviolate Feminine Body, Jeanne L. Schroeder

Articles

Margaret Jane Radin's theory of property for personhood posits that certain personal property is deeply intertwined with individual identity, necessitating legal protections that go beyond traditional property rights. While her approach offers a feminist perspective by emphasizing the body and body-like objects as extensions of selfhood, critics argue that her framework lacks an account of community and intersubjectivity, rendering it incomplete. The article suggests that integrating insights from Hegel and Lacan could provide a more comprehensive understanding of property relations, addressing both personal and communal dimensions.

The Death Penalty: A Solution To The Problem Of Intentional Aids Transmission Through Rape, 26 J. Marshall L. Rev. 941 (1993), Stefanie S. Wepner

UIC Law Review

No abstract provided.

Name-Calling And The Clear Error Rule, Robert F. Nagel

Publications

No abstract provided.

Building Bridges Between Theory And Practice, Activism And Scholarship, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Legitimating The Illegitimate: A Comment On 'Beyond Rape', Robin West

Georgetown Law Faculty Publications and Other Works

Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory.
  
Furthermore, according to Dripps, …

Status, Contract, And History: A Dialectical View, Matthew P. Bergman

Cardozo Law Review

No abstract provided.

The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr.

Michigan Law Review

Earlier in this the first year of the new millennium, Professor Larry Marshall was appointed Chief Justice of the United States. The first important case coming before the Marshall Court involved the government's prosecution of Frankly Amorous under the White Slave Traffic Act of June 25, 1910 (the Mann Act), as amended. Defendant Amorous was a law student in Virginia who paid for the airplane ticket of his female lover to travel from North Carolina to Virginia for the admitted purpose of having extramarital sexual relations. The U.S. Attorney prosecuted Amorous for violating the Mann Act, which criminalizes the knowing …

Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse …

Whose Nature? Practical Reason And Patriarchy, Lynne Henderson

Scholarly Works

No abstract provided.

Freedom And Constraint In The Jewish Judicial Process, Norman Lamm, Aaron Kirschenbaum

Cardozo Law Review

No abstract provided.

The World As Reality, As Resource, And As Pretense, Richard Stith

Law Faculty Publications

No abstract provided.