Sexuality and the Law Commons^™

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Abortion Rights Of Adolescents Should Be Coextensive With Those Of Adults--A Theoretical Framework, Chad M. Gerson

ExpressO

The aim of this article is to argue that the abortion rights of adolescents should be coextensive with those of adults. The first section of the article reviews research in child development which has demonstrated that adolescents are able to make informed, mature decisions on procreative issues. The second section reviews cases which have defined the contours of adult women’s abortion rights, and argues that the reasoning behind those holdings also applies to adolescents.

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

Imagining The Law-Trained Reader: The Faulty Description Of The Audience In Legal Writing Textbooks., Jessica E. Price

ExpressO

In law schools today, first-year legal writing courses play a crucial role in helping students learn to communicate about the law. Many legal writing teachers approach legal writing education in a practical way, attempting to pass on their own experiences in law practice settings to students. Unfortunately, as other writers have observed, such reliance on personal knowledge about “what lawyers are like” may lead legal writing teachers to oversimplify a complicated matter – the needs and preferences of the audience for legal writing – and may even amount to indoctrination in stereotypes about law practice. This article offers a closer …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …

Marriage And The Elephant: The Liberal Democratic State’S Regulation Of Intimate Relationships Between Adults , Maxine Eichner

ExpressO

This essay considers the current debate in legal theory over the stance that the state should adopt toward intimate relationships between adults. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships …

Multistable Figures: Sexual Orientation Visibility And Its Effects On The Experiences Of Sexual Minorities In The Courts, Todd Brower

ExpressO

A multistable figure is a cognitive illusion in which a single drawing contains multiple, competing images. On first viewing a person will see one image, but not the other – it usually requires additional information to trigger the viewer’s awareness of the second image. However, once you know about the disparate figures in the illustration, you cannot erase that knowledge from your mind and see a sole image as you did originally. This inability to ignore information and its effect on subsequent experience has parallels in lesbians’ and gay men’s treatment in the courts.

Courts today are deeply involved in …

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

ExpressO

The article focuses on the challenges for women’s rights activists attempting to provide a better legal regime for victims of domestic violence in Nigeria. It is my desire to provide a resource material on the issue of domestic violence for activists, policy makers, legislators and law reformers who are engaged in providing a better legal framework for the protection and promotion of women’s rights in a developing country like Nigeria. Having worked extensively on this issue, the article documents my experience on law reform advocacy in Nigeria.

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

ExpressO

Lying in Sub Saharan Africa, the epicenter of the HIV/AIDS epidemic, Zimbabwe has grappled since 1985 to prevent and mitigate the impact of HIV/AIDS. Statistics point out to one glaring factor- the disproportionate impact of HIV/AIDS on women and in the case of Zimbabwe married women. Laws, policies and practices in relation to marriage predispose married women to HIV/AIDS infection. The answer to protecting women does not lie entirely in the law but in transformative gender equality.

Zimbabwe has two types of recognized marriages and the third type , the unregistered customary law union is given limited recognition. The thread …

Toward An International Standard Of Abortion Rights: Empirical Data From Africa, Chad M. Gerson

ExpressO

In the Fall of 2005 I published a brief Development in the Chicago Journal of International Law concerning the prospects for establishing the right to obtain an abortion as a fundamental human right. See 5 Chi. J. Int’l L. 753. In that article I argued that the right to choose and access to abortion services would greatly improve the health and status of women and children in the developing world.

In this article, I follow up with empirical data regarding the status of abortion rights in African countries. These data are compared to maternal and infant mortality and contraceptive use. …

The Law Of Unintended Consequences: The Far-Reaching Effects Of Same-Sex Marriage Ban Amendments, C. Susie Lorden

ExpressO

In 2004, thirteen states passed same-sex marriage ban amendments in response to a Massachusetts ruling from the previous year that sanctioned marriage for gay couples. Most of the amendments contained two prongs that defined marriage and also prohibited legal recognition of unmarried relationships in an attempt to avoid marriage substitutes, such as civil unions.

These amendments not only blatantly discriminate against same-sex couples by barring them from marriage, but the amendments also insidiously cause further damage by using undefined and ambiguous language capable of discriminating against gays and lesbians in ways not admitted by the proponents and not intended by …

Finding The Sex In Sexual Harassment: How Title Vii And Tort Schemes Miss The Point Of Same-Sex Hostile Environment Harassment, Yvonne Zylan

University of Michigan Journal of Law Reform

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same …

Conceptualizing Violence Against Pregnant Women, Deborah Tuerkheimer

Indiana Law Journal

No abstract provided.

Legal Archaeology And Feminist Legal Theory: A Case Study Of A Violation Of A Protective Order , Debora L. Threedy

ExpressO

This article explores the intersection between the field of legal archaeology and feminist legal theory through the medium of a case study of the prosecution of the violation of a protective order.

Both legal archaeology and feminist theory employ “bottom up,” or grounded, theorizing; that is, they begin with specific context and move from there to generalization or abstraction, rather than the other way around. And both operate from a critical perspective that consciously challenges what we think we know about how law operates. For example, both are interested in exploring how systemic vulnerabilities, such as conscious or unconscious gender …

Principled Parentage: Abandoning The Gender-Based Underpinnings Of Legal Parentage Analysis As Applied In The Context Of Gestational Surrogacy, Jennifer A. Kimball

ExpressO

While reproductive technology has provided new options for women who want children, our legal understanding of parentage is still informed by the traditional conception model of two parents: one male and one female. A parent who both is a biological parent and has developed a parent-child relationship with a genetic child ought to be considered a legal parent as well. This conclusion ought not to be vulnerable to attack based on the gender of the other parent; rather, each parent’s claims should be evaluated independently. When gender becomes irrelevant and we abandon the gender-based underpinnings of legal parentage analysis as …

Superstition-Based Injustice In Africa And The United States: The Use Of Provocation As A Defense For Killing Witches And Homosexuals, Jennifer Dumin

ExpressO

This Article examines two different instances where strong cultural and religious beliefs suggest that an individual is justified in taking another’s life. Focusing primarily on South Africa and the United States, it argues that the rationale used to defend those who kill suspected witches and those who kill suspected homosexuals is the same – merely because a criminal holds a belief that the victim is evil, the criminal is somehow entitled to a lesser punishment. In the United States, those who readily recognize the absurdity of the witchcraft defense may have some difficulty in recognizing the same level of absurdity …

Divesting From The Apartheid Of The Closet: Toward An Enriched Legal Discourse Of Sexual And Gender Identity, Jennifer M. Protas

McGeorge Law Review

No abstract provided.

If You Love Me Dear, Please Sign Here: Will The "Love Contract" Play A Role In Protecting Employers From Sexual Harassment Liability?, 40 J. Marshall L. Rev. 311 (2006), Jessica Lynn Mok O'Neill

UIC Law Review

No abstract provided.

Rethinking Prison Sex: Self Expression And Safety, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

This article analyzes legislation and policies that limit prisoners' sexual expression and autonomy. The article juxtaposes prisoners interest in sexual expression against the interests of the state in regulating sex by and between prisoners. The article concludes that the state has an interest in regulating sex between inmates and staff and in regulating coerced or forced sex between inmates. In other instances prisons could accommodate prisoners' interest in sexual expression and achieve important goals such as better decisionmaking; improved relations with family and partners to aid community reentry; reduction of prison rape; and as inmate management.

Sexual Abuse Of Women In United States Prisons: A Modern Corollary Of Slavery, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

This paper addresses the sexual abuse of women in custody as a more contemporary manifestation of slavery and discusses the congruencies and the differences that exist between the sexual abuse of women in custody and slavery. The paper charts the history of the parallel abolition and prison reform movements and examines their divergent paths arguing that the women's movement abandonment of prison advocacy has harmed the women in prison movement. The article concludes that the embrace of human rights norms has assisted in providing new avenues for redressing the sexual abuse of women in custody.

Beyond A Snapshot: Preventing Human Trafficking In The Global Economy, Janie Chuang

Scholarly Articles in Law Reviews & Journals

Current legal responses to the problem of human trafficking often reflect a deep reluctance to address the socio-economic root causes of the problem. Because they approach trafficking as an act (or series of acts) of violence, most responses focus predominantly on prosecuting traffickers, and to a lesser extent, protecting trafficked persons. While such approaches might account for the consequences of trafficking, they tend to overlook the broader socioeconomic reality that drives trafficking in human beings. Against this backdrop, this article seeks to reframe trafficking as a migratory response to current globalizing socioeconomic trends. It argues that, to be effective, counter-trafficking …

The United States As Global Sheriff: Using Unilateral Sanctions To Combat Human Trafficking, Janie Chuang

Scholarly Articles in Law Reviews & Journals

In recent years, the issue of human trafficking - the recruitment or movement of persons by means of coercion or deception into exploitative labor or slavery-like practices - has moved from the margins to the mainstream political agenda. The rapid proliferation of international, regional and domestic anti-trafficking laws bespeaks universal condemnation of the practice, but belies deep divisions among States over how to define and approach the problem. It is thus significant that the international community was able to reach consensus and conclude a new international law on trafficking - the Palermo Protocol. But just weeks before the signing of …

Immaculate Deception: The Evolving Right Of Paternal Renunciation, 27 Women's Rts. L. Rep. 139 (2006), Diane S. Kaplan

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Necessity Of Sex Change: A Struggle For Intersex And Transsex Liberties, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article is composed of four Parts. The first Part explores two legal struggles for intersex and transsex goals. The main litigation propositions and structures of the two movements are contrasted, especially the meanings that the two movements offer for the terms “medical necessity,” “cosmetic surgery,” and “medical experimentation.” While Part I takes a critical approach to some of the strategies discussed, the main purpose is to describe the mirroring aspects of the two advocacy movements. The second Part locates these contemporary legal narratives regarding sex change in the broader history of sex change in the twentieth-century United States, emphasizing …

Analyzing Prison Sex: Reconciling Self Expression With Safety, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

This article examines the complexity of prison sex and the challenges that it raises in the context of recently enacted United States legislation, specifically the Prison Rape Elimination Act (PREA). It begins by identifying a range of prisoner interests in enhanced sexual expression. These interests are described below in an attempt to disentangle prisoners' rights in sexual expression from states' legitimate interests in regulating that expression. This article also directs policymakers and decision makers to mine international documents and human rights norms that recognize the necessity of punishment and at the same time outline a standard for the safety of …

Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper

Scholarly Works

In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image.

The reason for bipolar black masculinity is that it helps resolve the white mainstream's post-civil rights anxiety. That anxiety results from the conflict between the nation's relatively recent …

A New Disease Born Every Minute: The Marketing Of Pathology And The Exploitation Of Gender-Based Insecurities And Sexuality To Sell Drugs, Elizabeth Lambdin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin

Articles & Chapters

This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in …