Law and Gender Commons^™

Our Past Must Be Our Present (To Ourselves): How Transsexuals Can Survive Proposition 8, Katrina C. Rose

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Theory And Practice Of Taxing Difference, Nancy Staudt

Faculty Working Papers

This is a review essay that examines Professor Edward McCaffery's important book, "Taxing Women." It argues that while McCaffery provides a detailed and nuanced analysis of the feminist and economic issues, his work is problematic in several ways. First, it is not clear that the optimal theory of taxation leads to the policy reform he proposes-it may be both underinclusive and overinclusive. Second, even if McCaffery has identified a clear economic rationale for taxing married women at a lower rate than men and single women, feminists may object to this proposed tax structure on a number of grounds. Finally, McCaffery's …

Taxing Housework, Nancy Staudt

Faculty Working Papers

This article examines the tax policy rationale for excluding non-market household labor from the tax base and argues that the conventional rationals no longer withstand scrutiny. The article goes on to argue that it is possible to include non-market household labor into the tax base, while at the same time avoiding the imposition of costs upon the (mostly) women who supply the labor. Moreover, and mort important, tax policy reform along these line would increase householder laborers' access to public retirement benefits and signal the important of the work to society generally.

Private Relationships And Public Problems: Applying Principles Of Relational Contract Theory To Domestic Violence, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

This Article maps out a new theoretical critique of no-drop prosecution policies, the criminal justice system’s predominant approach to domestic violence. No-drop rules compel prosecutors to make decisions about whether to pursue charges against a batterer without regard to the victim’s wishes. When the law mandates this approach, it not only enforces the criminal law, but also effectively terminates the relationship between the victim and her partner. This blunt response to what is often a complex situation indiscriminately dispenses with the many reasons a victim may want or need to preserve her intimate relationship. While numerous scholars have grappled with …

Florence Kelley And The Battle Against Laissez-Faire Constitutionalism, Felice J. Batlan

All Faculty Scholarship

The usual story of the demise of laissez-faire constitutionalism in the 1930’s features heroes such as Louis Brandeis, Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label "legal orthodoxy." In this essay, I seek to demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and State constitutions. Looking at who was drafting and lobbying for path breaking …

The Birth Of Legal Aid: Gender Ideologies, Women, And The Bar In New York City, 1863-1910, Felice J. Batlan

All Faculty Scholarship

No abstract provided.

Race Treason: The Untold Story Of America's Ban On Polygamy, Martha M. Ertman

Faculty Scholarship

Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce a …

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Lovell Banks

Faculty Scholarship

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge.

Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …

Shattering The Equal Pay Act's Glass Ceiling, Deborah Thompson Eisenberg

Faculty Scholarship

This Article provides the first empirical and rhetorical analysis of all reported Equal Pay Act (EPA) federal appellate cases since the Act’s passage. This analysis shows that as women climb the occupational ladder, the manner in which many federal courts interpret the EPA imposes a wage glass ceiling, shutting out women in non-standardized jobs from its protection. This barrier is particularly troubling in light of data that shows that the gender wage gap increases for women as they achieve higher levels of professional status. The Article begins by examining data regarding the greater pay gap for women in upper-level jobs. …

From Eugenics To The "New" Genetics: "The Play's The Thing", Karen H. Rothenberg

Faculty Scholarship

Genetics occupies a place in the public imagination with which few areas of science can compete. It is popularly understood to be the “science of life,” concerned with the essence of humanity: a subject that generates both awe and fear. These divergent emotions are encapsulated in the “promise versus peril” debate: the promise of an end to human disease is countered by the peril embodied in the discriminatory capacity of genetic essentialism. This debate has become ingrained in popular culture, and its dramatic potential has been effectively realized in theatre.

Plays have always been written and performed as expressions of …

Mothers, Domestic Violence And Child Protection: An American Legal Perspective, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Gender, Discourse, And Customary Law In Africa, Johanna E. Bond

Scholarly Articles

Around the world, efforts by states to accommodate cultural pluralism vary in form and vigor. Some multiculturalist states cede to cultural minorities the authority to govern in certain substantive areas, such as family law. Not surprisingly, feminists have raised concerns that a state’s reluctance to govern in areas traditionally seen as “private,” and leaving those areas of law to customary legal systems, leaves women within those minority communities vulnerable to discrimination. Many women value cultural identity, even as they work to eliminate discrimination within their cultural communities. The international human rights community, however, has not always viewed women as committed, …

Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention To Develop, Protect And Support A Breastfeeding Culture In The United States, Heather M. Kolinsky

Scholarly Articles

The author argues that the benefits of breastfeeding are overwhelming and that more needs to be done to ensure that all women have a viable option to continue breastfeeding upon returning to work, particularly the working poor and minorities. Those least likely to breastfeed are more likely to be part of an at risk population in terms of health. Most significantly, the lack of a cohesive policy in the workplace has had a disparate impact on the most vulnerable populations of breastfeeding mothers and their children. The lack of federal protection and a patchwork of protection in the states have …

What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy

Faculty Articles and Other Publications

This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …

London Calling: Does The U.K.'S Experience With Individual Taxation Clash With The U.S.'S Expectations, Stephanie Mcmahon

Faculty Articles and Other Publications

The United States is one of the last countries to tax married couples jointly; most other countries have adopted individual taxation. In 1990, the United Kingdom completed transitioning its tax system from one that treated husbands and wives as a marital unit to one that mandates an individual-based system, and so it has two decades of experience with the new regime. This article provides American policymakers valuable information regarding the consequences of adopting individual taxation by examining the United Kingdom's experience. First, it establishes a matrix of factors that identifies and assesses differences between the two nations that affect the …

California Women: Trying To Use Federal Taxes To Put The 'Community' In Community Property, Stephanie H. Mcmahon

Faculty Articles and Other Publications

Community property is thought to be a more equitable marital property regime than the common law because we assume that providing each spouse with an interest in fifty percent of the family’s income also provides a substantial amount of equality between spouses. Historically, however, as the regime operated in the United States, it was not especially favorable to wives. Although the concept implied a partnership between spouses, in practice wives were denied rights a partner would expect to enjoy. This article examines how women lobbied to enlarge the protection California wives enjoyed under the state’s community property regime in the …

Taxation And Gendered Citizenship, Nancy Staudt

Faculty Working Papers

This essay notes that the feminist tax policy theorists have made numerous important contributions to our understanding of tax policy's affect on women's lives and experiences. It argues that in doing so, the extant literature has also prioritized the idea of citizenship rights but has failed to acknowledge the importance of citizenship obligations and duties.

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Diminishing The Legal Impact Of Negative Social Attitudes Toward Acquaintance Rape Victims, Michelle J. Anderson

Publications and Research

No abstract provided.

Social Justice Feminism, Kristin (Brandser) Kalsem, Verna L. Williams

Faculty Articles and Other Publications

For the past three years, women leaders from national groups, grassroots organizations, academia and beyond have gathered to address dissonance in the women's movement, particularly dissatisfaction with the movement's emphasis on women privileged on account of their race, class, or sexuality. At these meetings of the New Women's Movement Initiative (NWMI), advocates who no longer want to do feminism have articulated a desire for social justice feminism. This article analyzes what such a shift might mean for feminist practice and legal theory.

Drawing on history, specifically the work of the women behind the Brandeis brief in the Muller v. Oregon …