Recent Submissions

  • Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office

    Katz, Elizabeth (2022)
    On January 20, 2021, Kamala Harris was sworn in by Justice Sonia Sotomayor as the nation’s first woman Vice President. This occasion, marked by women of color holding two of the most crucial roles in the federal government, would have been unthinkable to many for most of United States history. While the political efforts necessary to reach this moment have been studied in great depth, the legal challenges to women’s officeholding have been overlooked and even denied. Relying on extensive historical research, this Article is the first to examine how women advocated for more than a century for the legal right to hold public office through state-level litigation, constitutional amendments, legislative lobbying, and public commentary. From the 1840s through the 1940s, women in many states were excluded from holding even minor public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to assume posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the fire of the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging officeholding restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. In some states disenfranchised women could assume only a narrow range of offices related to education, children, and charity, while in other locations they could hold a wide array of appointed posts and even elected positions for which they could not vote. After women were enfranchised through either state constitutional provisions or the Nineteenth Amendment, their officeholding eligibility remained contested in jurisdictions that did not expressly authorize it. Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This Article’s account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions for more than a half century prior to the federal suffrage amendment. Second, this Article challenges prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding and suffrage as inevitably paired. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights.
  • Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach

    Powell, Robyn (2022)
    The social uprisings following the police killings of Breonna Taylor, George Floyd, and many other people of color elevated the concept of abolition to the forefront of people’s consciousness. Concurrently, there is a burgeoning body of legal scholarship calling for the abolition of the carceral regime. Some scholars also recognize that abolition efforts must include the child welfare system, more accurately termed the family policing system, noting the interdependent relationship between the family policing system and other parts of the carceral regime. Yet, despite the nascent legal scholarship calling for family policing system abolition, parents with disabilities and their children have been mostly disregarded. This Article responds to that scholarly void. In this Article, I situate the family policing system within the contemporary struggle for the abolition of the carceral regime. My overarching argument is that the family policing system is an unjust social institution for disabled parents and their children. As such, we must work towards abolishing it and replacing it with non-punitive supports and resources for families. First, the Article describes the family policing system and its legal obligations to disabled parents and their children. Drawing on legal scholarship and social science research, it then elucidates the scope of the problem, detailing the injustices and harms that disabled parents and their children experience because of the family policing system. Next, the Article argues that reforms are not sufficient because the family policing system inflicts injustices and harms on disabled parents and their children by design. Thereafter, it limns the tenets of both abolition and disability justice and the ways in which these interconnecting movements, theories, and praxes could advance justice for parents with disabilities through the abolition of the family policing system. Finally, it proposes a novel anti-ableist legal and policy agenda for abolishing the family policing system that is responsive to disabled parents and their children.
  • Sexual Dignity and Rape Law

    High, Anna
    Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity.” Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive.
  • the law of the love letter

    Cronin, M.T.C. (2015-10-28)
    Poem.
  • WICKED WOMEN AND VEILED LADIES: GENDERED NARRATIVES OF THE MCFARLANDRICHARDSON TRAGEDY

    Ganz, Melissa (2015-10-28)
    "[Flor the sake of the noble men and women who have stood by me through all revilings... and for his [sake] who lost his life in my behalf, I wish to tell the whole story of my life," Abby Sage Richardson wrote in the New York Daily Tribune on May 11, 1870. "When I was once advised to do so and hesitated," Abby explained, "a good woman said to me, 'Do not be afraid to tell your story once to all the world. Tell it once exactly as you would tell it to your Maker, and then keep silence forever after.' Abby listened to the woman's advice, penning a statement that spanned more than eight columns in the newspaper, six of which filled the entire front page. Abby's story began with her marriage to Daniel McFarland in 1857. Nearly twice her age, McFarland dazzled her with boasts of a flourishing law practice and brilliant political prospects, only to reveal a few weeks into their honeymoon that he had long given up the practice of law in favor of an unsuccessful career speculating in land. Less than three months after their wedding, McFarland pawned Abby's jewelry to pay their bills and sent Abby to live with her father in New Hampshire.
  • COMMODIFICATION AND WOMEN'S HOUSEHOLD LABOR

    Silbaugh, Katharine (2015-10-28)
    A woman washes a kitchen floor. She puts the mop away and drives to the comer market. She consults a shopping list, and purchases groceries from it, carefully choosing the least expensive options. A four-year-old child is tugging at her leg while she does this, and she tries to entertain him, talking to him about the mopped floor, the grocery items. When she returns from the store, she prepares lunch from what she has brought home with her. She and the child both eat lunch. After lunch, she and the child collect laundry and she runs a load. She takes the garbage out to the curb. Then she reads him a story. They play a game where she comes up with a word, and he tries to name its opposite. Sometimes there is no opposite, and that is particularly funny to both of them. She has done housework. There is no way to tell from this description whether these activities were market or non-market, whether her work is a commodity or not. Would it help to categorize her work if you knew the location? Is this her home? Suppose that she is a paid domestic worker, and this housework is a commodity. She leaves her employer's home. She goes home and does exactly the same thing there, but this time she is preparing dinner. The second child is her own. Whether these activities are viewed as a commodity is contextual, not activity-based.
  • A TALE OF TWO STATES: RACE, GENDER, AND PUBLIC/PRIVATE WELFARE PROVISION IN POSTWAR AMERICA

    Michel, Sonya (2015-10-28)
    The simultaneous expansion of employer-sponsored "fringe benefits" and of government welfare programs in the post-World War II period created what might be termed a "public-private welfare state" in the United States. These developments were continuous with the public-private partnership that had characterized American welfare provision since the nineteenth century. But the increased range and scope of benefits, both public and private, in the postwar period made them an intrinsic part of Americans' way of life and their sense of well-being-that is, of their social citizenship. Feminist political theorists often point out that social citizenship is highly inflected by gender; citizens usually gain entitlements and benefits based on sex or on types of status that are gender-related, such as employment, military service, and motherhood. This paper seeks to explore how differences in social citizenship play out in a public-private welfare state, where benefits are predicated, at least in part, upon private employment. I do this by analyzing the treatment of motherhood (the benefits accruing to women as mothers) in such a dual state during its formative period, using the provision of childcare as a marker of women's status and entitlements within the public and private spheres. In modem industrial societies, childcare is an essential element of social citizenship for women, for it allows them to participate in the labor force on an equal footing with men. (I should note that it is a necessary but not sufficient condition for economic gender equality; equal access to education and training, non-discriminatory hiring and employment conditions, and wage equity are also essential.) Thus this article will examine and compare childcare provisions in the public and private sectors of the postwar American welfare state.
  • BREAST IMPLANTS AS BEAUTY RITUAL: WOMAN'S SCEPTRE AND PRISON

    Spanbauer, Julie (2015-10-28)
    In the past several years, various publications, including medical literature, television reports, newspaper articles, and even a book written by a physician and editor of a prestigious medical journal, have delivered roughly the same message to the public about silicone gel breast implants: they do not cause disease. According to these publications, the issue is all but closed. They claim that the earlier litigation documenting the dangers of silicone and the misdeeds of surgeons, as well as exposing greedy and fraudulent behavior of corporations such as Dow Coming, was apparently either in error or was itself a fraud perpetrated upon the public by greedy, profit-seeking lawyers and physicians, and by the media, hungry for the latest sensational story. Some of this literature paints a picture of breast implant recipients as gullible, unwitting participants in this fraud, while other reports describe implant recipients as extortionists looking to exploit the deep pockets of manufacturers and surgeons.
  • DOUBLE VISION: CALVIN KLEIN AND ARTHUR SULZBERGER

    Dellinger, Anne (2015-10-28)
    I saw the woman's eye first, even before the breast, which is the focal point for many observers. She stands almost squarely to the viewer's gaze in the New York Times Magazine, only partly contained by the page. The top of her tilted head is lost from the frame as well as the body beneath the crotch. Her hands open a dark jacket, revealing the middle half of the chest above a belt with a shining metal buckle - CK in a circle. The right breast bears a round dark mark. The model's left eye has been blackened, probably both by makeup and shadow. While the breast mark is ambiguous, for me it signified a wound. For all these reasons, the ad for Calvin Klein belts first troubled, then offended me. It seemed to suggest that one pleasure of owning the striking belt would be to strike a woman with it. I tore the page out, meaning to object. I rarely notice fashion or advertising, but I believe some boundaries are breached at a society's peril. By seeming to tolerate the battering of women or the sexualization of violence, we damage our culture and countless individuals. I thought the Times, a cultural bastion, had crossed a dangerous line. I might not have written, though, except for a front page story in the Times three days later, describing the aftermath in Togo of Fauziya Kassindja's flight to avoid genital mutilation. The story recounts the exile and homelessness Ms. Kassindja's mother endured as a result of aiding the escape, which led her eventually to apologize to the patriarch who ordered her daughter's marriage and mutilation. The contrast between the Times' treatment of women in its news coverage and advertising was too great to ignore.
  • HYPERCAPITALISM: AFFIRMATIVE PROTECTIONS FOR PEOPLE WITH DISABILITIES, ILLNESS AND PARENTING RESPONSIBILITIES UNDER UNITED STATES LAW

    COLKER, RUTH (2015-10-28)
    The backlash against the Americans with Disabilities Act (ADA) and the Family and Medical Leave Ace (FMLA) has been immediate and strong. Exaggeration and misstatement have been rampant from the leaders of American capitalism.
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    2015-10-28
  • THE GENDER DIMENSION OF U.S. IMMIGRATION POLICY

    Fitzpatrick, Joan (2015-10-28)
    The United States is widely regarded as the premier country of immigration, with current levels of lawful immigration approaching historic peaks. The place of migrants in the national community figures to a surprising degree in public policy debates over crime, employment, social services and even campaign finance reform. Yet, in this swirl of discourse over migration it is often overlooked that lawful immigration to the United States has been predominantly female for much of the past half-century.
  • RITUAL

    Cox, Susan (2015-10-28)
    In 1956 Harry Holt was in Korea tenaciously working to save the lives of Korean children. Children who were abandoned. Orphans. Many of them were of mixed race. One day an orphanage director from In Chon called Mr. Holt. "I have more babies than I have beds. Can you help me?" Mr. Holt replied, "I can take five." He drove to In Chon to bring the five children back with him to Seoul. One of the children Mr. Holt took back with him to his orphanage was a little girl about four years old. That little girl was Hong Soon Keum, she became Susan Gourley, and today I am Susan Cox. When I first arrived at the orphanage I would wake up in the night from bad dreams. It was Mr. Holt who personally came in and comforted me. He rocked me, sang songs to me, and when I wasn't frightened anymore, he took me into the kitchen and made us jelly sandwiches. He was my "grandfather," even before I had a mother and father of my own. I left Korea for my new life on October 9, 1956. I remember little about that trip. I do remember looking out a small round window, sitting next to a woman I could not understand, and feeling very, very scared. I was the 167th child to be adopted from Korea. More than 60,000 Korean children in the last forty years have made the same journey. That trip across the ocean is much more than a journey of several thousand miles. For those of us who have been adopted, it is the birth into our family.
  • SPIRITUAL AND MENIAL HOUSEWORK

    Roberts, Dorothy (2015-10-28)
    Feminists have demonstrated how the ideological dichotomy between home and work has helped to subordinate women. This critique is part of a larger feminist project of shattering the mythical separation of public and private spheres that has justified women's exclusion from the market, sheltered male violence from public scrutiny, and disqualified women's needs from public support. This critique overlooks, however, how work inside the home is itself the subject of an ideological split. Domestic labor is divided into two aspects-the spiritual and the menial. Some work in the home is considered spiritual: it is valued highly because it is thought to be essential to the proper functioning of the household and the moral upbringing of children. Other domestic work is considered menial: it is devalued because it is strenuous and unpleasant and is thought to require little moral or intellectual skill. While the ideological opposition of home and work distinguishes men from women, the ideological distinction between spiritual and menial housework fosters inequality among women. Spiritual housework is associated with privileged white women; menial housework is associated with minority, immigrant, and working class women. Recent welfare reform laws, which require poor women to leave home to assume menial jobs, highlight the importance of identifying and shattering this dichotomy in women's domestic labor.
  • RACE, SEARCH, AND MY BABY-SELF: REFLECTIONS OF A TRANSRACIAL ADOPTEE

    Harris, Susan (2015-10-28)
    In these two works, Susan Harris gives voice to the realities of her experiences as a transracial adoptee and the experiences of other persons of color adopted into white families. "Can You Imagine?" is a narrative of stories pieced together and drawn from the stories of transracial adoptees whom Harris has met, counseled, and known. It unmasks the unique complexities of race and racism, so often ignored, in the lives of transracial adoptees, and challenges adoptive families and adoption professionals to honestly confront the role of race in the adoption process. In "Come Celebrate My First Birthday," Harris discusses the painful and joyous revelations of her search for information regarding the first fourteen months of her life-when her "baby-self' spent this "holding period" in foster care. During this search for her baby-self, Harris discovers that her baby-self was very likely the victim of some of the many types of racial assault depicted in "Can You Imagine?" In her telling of her story, Harris points out the need for increased attention to adoptive searches which target the holding period, an area of exploration crucial to an adoptee's understanding of herself.
  • CHALLENGING BOUNDARIES: INTRODUCTORY REMARKS

    Cott, Nancy (2015-10-28)
    I'd like to begin the conference by making a few remarks on its theme, "Challenging Boundaries." Thematizing boundaries is a way to be both inclusive and critical: this has been an important agenda in much feminist criticism and scholarship for twenty-five years. Why? Most simply, I would say, both the radical and the reformist sensibilities of the women's movement have been aimed at changing the world as we have received it, at removing limits and constraints and oppressions that hamper human possibilities; and one inclusive way of naming such hindrances has been to see them as implicit or explicit boundaries, lines that are not supposed to be crossed. A good part of the burden of early feminist critiques was first to make implicit boundaries visible, and to show the way they operated not only to impose material constraints but also to shape perception of the world so as to engender self-policing.
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    2015-10-28
  • Bridging the Gap Between the Rules of Evidence andJustice for Victims of Domestic Violence

    De Sanctis, Lisa (2015-10-26)
    Approximately two years ago, I began researching the area of the -admissibility of uncharged act evidence in domestic violence prosecutions. I found the state of the law to be less than satisfying. At that time, Federal Rules of Evidence 413-415, dealing with uncharged act evidence in sexual assault and molestation cases, had just been passed by Congress, and were being considered by the Judicial Conference. Excited by the approach taken at the federal level, I set out to make a similar change in domestic violence prosecutions. Living and working in California, I decided to focus on California, in hopes that if I was successful, other states would soon follow suit. I drafted proposed legislation for California that would allow into evidence uncharged acts of domestic violence in domestic violence prosecutions. I modeled my proposal on the approach taken at the federal level with respect to sexual assault and child molestation. I also analyzed the criticisms of the federal approach in order to develop the best proposal possible. In January of 1996, I completed my proposal and began searching for both a California legislator who would author it as a 1996 bill and organizations to support the proposal. I soon joined forces with the California Alliance Against Domestic Violence, a statewide, grassroots coalition representing the interests of battered women and their children. The Alliance was already considering sponsoring a bill, Senate Bill 1876, that proposed to broaden California Evidence Code section 1101 (b).
  • Toward a New Dynamic in Poverty Client Empowerment: The Rhetoric, Politics, and Therapeutics of Opening Statements in Social Security Disability Hearings

    Durston, Linda; Mills, Linda (2015-10-23)
    The Social Security Administration's Hearings, Appeals, and Litigation Law Manual states that its Administrative Law Judges (ALJs) should make opening statements in Social Security disability hearings. While the matter is not formally prescribed one way or another, ALs also typically invite claimant representatives-the advocates and attorneys who assist claimants in presenting their evidence before ALJs-to make opening statements. Despite this incentive to introduce remarks in disability hearings, a study of sixty-seven transcripts from Social Security disability hearings conducted in three major U.S. cities found that Social Security ALJs in 72 % of the cases reviewed either gave no opening statement or gave an incomplete one. A review of these same transcripts shows that claimant representatives almost without exception declined to introduce their arguments and analyses.
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    2015-10-26

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