• A Bedroom of One's Own: Morality and Sexual Privacy after Lawrence v. Texas

      Herald, Marybeth (2015-11-06)
      If Justice Scalia's dire prediction in Lawrence v. Texas comes true, Texas, Georgia, Mississippi, Alabama, Louisiana, Kansas, and Colorado may no longer be able to forbid the sale of vibrators, dildos, and other "sex toys" within their borders. These states have enacted legislation to inhibit activity in the sex toys market. Under the now discredited Bowers v. Hardwick, which upheld criminalizing same-sex sodomy, the government was free to label the sale of sex toys as a "crime" by prosecuting it under the banner of morality. As Justice Scalia laments, however, Lawrence's overruling of Bowers may change all that by restricting the scope of permissible government intrusion in the bedroom.
    • A Break in the Silence: Including Women's Issues in a Torts Course

      Finley, Lucinda (2015-10-13)
      I teach torts, a mainstay of the first year law curriculum. Judging from the way most casebooks present this subject, one would think that notions about gender roles and gender stereotypes are irrelevant to the past development or current understanding of tort law. Economic theory, on the other hand, is presented as obviously relevant to the subject. So what possible insights could feminist theory offer to tort law? After all, the torts course is not just about women. But neither is feminist theory. I also teach a course which is commonly misunderstood as marginal: a course on feminist theory and the law. Yet I am struck by the extent to which this course grapples with all the fundamental issues of human experience: birth, death, love, hate, marriage, divorce, caring, violence, employment, unemployment, economic security, poverty, power, and powerlessness. Far from being marginal, feminist theory is concerned with the entire realm of law.
    • A Critical Race Feminist Perspective on Prostitution & Sex Trafficking in America

      Butler, Cheryl Nelson (2016-02-20)
      This Article is one of the first to apply critical race feminism (CRF) to explore prostitution and sex trafficking in the United States. Several scholars have applied critical race feminism to explore several forms of sexual exploitation, including sexual harassment, domestic violence, and rape, but have yet to extend this discourse into the debate on prostitution and sex trafficking. Legal scholars have addressed prostitution and sex trafficking as gender oppression, while others have acknowledged the role of race in prostitution and trafficking in America. But few have considered prostitution from a critical race perspective, i.e., one that considers how race and gender intersect with other systems of oppression together to marginalize people of color in America.
    • A Grudging Defense of Wal-Mart v. Dukes

      Weiss, Deborah (2016-02-12)
      The Supreme Court's denial of class certification in Wal-Mart v. Dukes has been viewed by many as a wholesale rejection of the use of discrimination law for social change. In this Article, I argue that the Supreme Court would have been open to certification had the plaintiffs given more careful attention to the difficult doctrinal and normative issues raised by their case. The plaintiffs' evidence suggested significant problems with the treatment of women at Wal-Mart, but these facts were never tied in any systematic way to a plausible theory of liability under Title VII of the Civil Rights Act of 1964.
    • A Logical Step Forward: Extending Voluntary Acknowledgements of Parentage to Female Same-Sex Couples

      Feinberg, Jessica (2019-03-09)
      Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has extremely harmful consequences for these couples and their children, and legal reform to address the unfair treatment of same-sex parents is long overdue.
    • A Rape Law Pedagogy

      Bloch, Kate (2015-10-23)
      Teaching rape law can be a little like the descent from the Castle at Chich6n Itzi. The angle of descent is so steep and the steps so narrow that, from the edge of the platform, you can barely see the stair onto which you will next descend. For some, the descent is a challenge: a test of will, balance, and belief. For others, each step of the descent embodies a small, heartstopping leap of faith. Fortunately, at Chich6n Itzdi, some kind stairway reconstructionist has installed a metal-linked chain secured directly to the steps.3 This metal guide enables one, if one is willing to proceed in a somewhat awkward pose, to descend from the platform to the ground with a sense of substantially enhanced security. Not only does the chain make for a more comfortable passage, but I suspect that knowledge of its existence would encourage some otherwise hesitant souls to undertake the ascent.
    • A Reproductive Rights Agenda for the 1990's

      Kolbert, Kathryn (2015-10-13)
      With the Supreme Court currently reconsidering Roe v. Wade, and the renewed activism that has resulted, it is an opportune time for the prochoice movement to articulate our vision of the future and to grapple with the many hard questions that surround sexuality, childbearing, and parenting. True reproductive freedom, which must be our ultimate goal, includes much more than the legal right to choose abortion. It includes the right to decide whether, when, with whom, and under what conditions women will have children, and envisions a world in which women will have both the economic means and the social conditions to effectuate whatever moral choices they make. Only with the freedom to control their fertility, are women free to participate fully and equally in our society: to learn and to grow, to better themselves, to establish a home and family, to follow their dreams or to express themselves and contribute as mothers, workers, artists, scientists, or in whatever roles they may choose.
    • 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.
    • Abortion in the Time of COVID-19: Telemedicine Restrictions and the Undue Burden Test

      Fang, Katherine; Perler, Rachel (2021-04-18)
      During the COVID-19 pandemic, even while many traditional restrictions on telemedicine have been relaxed, few states have suspended existing regulatory restrictions on the remote provision of medication abortions (teleabortions). Simultaneously, an overlapping subset of states have cited the public health emergency as a reason to curtail access to surgical abortion. This Comment suggests that under the Fourteenth Amendment and Supreme Court precedent, these two actions, taken together, have the effect of posing an undue burden to abortion access, especially for women from disadvantaged backgrounds. It first describes the politicized regulatory landscape surrounding teleabortions and argues that expanded teleabortion is a safe alternative when states restrict access to surgical abortions due to a public health emergency. In light of the unique burdens of the pandemic, a failure to provide access to either constitutes an undue burden. Last, the results of select states’ experimentation with teleabortion during the pandemic could provide additional data points in favor of integrating teleabortion into reproductive healthcare, even after the COVID-19 pandemic lapses.
    • Abortion Law: "Unique Problem for Women" Or Sex Discrimination?

      Butler, Twiss (2015-10-16)
      The campaign for the Equal Rights Amendment to the United States Constitution employed a political strategy that excluded women's access to abortion, along with other basic equality issues, from the orthodox analysis of why the Equal Rights Amendment was needed and what it was expected to do. As part of this costly strategy, women's pregnancy rights were located in a sex-neutral right of privacy. The privacy right has subsequently been used as a "gotcha" against women's right not only to privacy, but to equality as well.
    • Abortion of Narrative: A Reading of the Judgment of Solomon

      Ashe, Marie (2015-10-16)
      Among the earliest judicial "speech-acts" recorded in Western law is the first judgment of Solomon, of which the well-known account is given in The First Book of Kings. I suggest that examination of Solomon's judgment may be instructive in illuminating in a highly general way the processes that operate in contemporary judicial determinations relating to women as mothers and as non-mothers-i.e., determinations covering the full range of issues often designated as relating to "reproduction"-which include the female act of gestation; the process of giving birth; the totality of physical intimacies implicated in the care extended to dependent infants and children; the issue of abortion; and the riddles raised by reproductive technology.
    • 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.
    • Achieving Peace of Mind: The Benefits of Neurobiological Evidence for Battered Women Defendants

      Meszaros, Jozsef (2016-02-12)
      Despite its potential to diminish the culpability of battered women accused of crimes, neurobiological evidence has yet to be meaningfully deployed in the interest of these defendants. This Article describes how neurobiological evidence can provide insights into the effects of battering, at both an individual and ecological level. Domestic violence prevention advocates and medical professionals are becoming increasingly conscious of the neurobiological consequences of battering, producing a wellspring of evidence with potential relevance to the battered woman's case. By distilling this evidence into tangible assertions admissible in myriad legal settings, this Article lays a foundation for the integration of neurobiological evidence into the defense of battered women.
    • Adding Complexity to Confusion and Seeing the Light: Feminist Legal Insights and the Jurisprudence of the Religion Clauses

      Jacobs, Leslie (2015-10-21)
      What is religious freedom and how does the government guarantee it? These are the questions with which the United States Supreme Court has struggled throughout its history of attempting to interpret the two religion clauses of the First Amendment. No one seems happy with the results. To be fair to the Court, the words of the religion clauses are "at best opaque." The two clauses alternately prohibit the government from making a "law respecting an establishment of religion" and require that it not "prohibit[ ] the free exercise thereof." These two guarantees create an inevitable tension. Often, what one clause appears to require, the other prohibits. Without a clear and justifiable definition of religious freedom to guide interpretation, the Court's efforts to ensure the "preeminent goal of the First Amendment," government neutrality toward religion, will remain muddled.
    • Adjudicating Appearance: From Identity to Personhood

      Tirosh, Yofi (2016-01-14)
      Cases involving attire, hairstyles, names, or manners of speaking have increasingly attracted the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's self-presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that a legal inquiry focusing on whether a plaintiffs appearance accurately and stably reflects his or her identity is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry, the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or nonfigurative language. My approach can transform the legal discourse from considering "identity" in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.
    • Against Blanket Interstate Nonrecognition of Same-Sex Marriage

      Koppelman, Andrew (2016-01-07)
      Americans are profoundly divided over same-sex marriage. The regional divide was strikingly evident in the 2004 elections, where voters in twelve states approved referenda banning such unions, while in Vermont and Massachusetts, two states in which same-sex unions are recognized, the prorecognition factions increased their numbers. (Same-sex unions that are legally equivalent to marriage are also recognized in California and Connecticut.) Each side is now striving for total victory. Proponents of same-sex marriage want a judicial declaration, preferably by the United States Supreme Court, that same-sex marriage is constitutionally required. Opponents want a constitutional amendment banning any state from recognizing such marriage. Neither side is going to get its way any time in the foreseeable future. As the recent election results show, Americans bring radically differing values to this question in different parts of the country. We are going to be divided on this issue for a long time. What we need is a way to live together.
    • Agency and Partnership: A Study of Breach of Promise Plaintiffs

      Coombs, Mary (2015-10-15)
      Miss Hanson was a servant at a boarding house when she met Mr. Johnson in 1895. After a few months' acquaintance, they became engaged and began to sleep together. She vainly waited thirteen years for him to marry her, meanwhile bearing his child. Finally she sued and recovered $8000. Miss Hanson was not the first to respond to seduction and abandonment with a lawsuit. Miss Giese, another plaintiff, persuaded the jury in the Ripon municipal court that the defendant, Mr. Schultz, with the aid of a promise to marry her, "and his persuasions thereunder, seduced, debauched and carnally knew the plaintiff, and got her with child."2 The pregnancy miscarried, the defendant refused to keep his promise, and Miss Giese sued. The Wisconsin Supreme Court twice reversed verdicts in her favor, holding that the jury could compensate her for the loss of virtue and reputation and for mental suffering caused by seduction, but not for the miscarriage and its physical effects.
    • Ain't I a Feminist?

      Romany, Celina (2015-10-16)
      I want to recover my faith in feminism during the 1990's. The feminism that gave me the strength to understand the story of a woman born and raised in a colony who migrates to the metropolis, feminism as a liberation project. The feminism which launches a multi-faceted attack on legal institutions that perpetuate substantial inequities. The current state of feminist legal theory makes me wonder if I am still a feminist. The feminism I see myself associated with has a capital F. That which aims at eradicating the various forms of oppression that affect all women, a project overlooked by "small-town" feminism. I am willing to risk being outside current postmodern theoretical trends by supporting capital letters. My capital letters connote expansion, breadth and inclusion. Far from claiming privileged access to truth with a capital T, feminism with a capital F thrives in a room with a great view of narratives about intersections.
    • All I Really Need to Know I Learned in Kindergarten (Playing Soccer): A Feminist Parable of Legal Academia

      Bell, Christine (2015-10-21)
      My friend's nine-year-old daughter Mgabh came home from school the other day and said to her: "You know, Mummy, when it comes to picking the teams for football in the breaks, the boys are always picked first and then the girls. There's one girl who's really good and she gets picked before some boys. But then they pick the rest of the boys, and then me and the other girls, even though we're better than some of the boys who get picked before us. And the boys who tease us the worst about girls not being good at football are always the boys who are the worst players themselves. "
    • American Husbandry: Legal Norms Impacting the Production of (Re)Productivity

      Nelson, Camille (2016-01-14)
      During the last quarter of the seventeenth century, African slaves were "imported" into the Americas in unprecedented numbers. This enlargement of the slave population represented a deep commitment to, and investment in, slavery. Slavery was to become commonplace and thus demanded moral, religious, and legal justifications. Systematic colonization used European legal systems, which rationalized the existence of slavery by providing normative legitimacy. Throughout the duration of slavery, jurisprudence was a sword employed against enslaved Africans and not a shield, as it is traditionally envisioned. This contradiction of legal imperatives operated not only along racial lines, but also along sexual and gender lines. Female slaves were impacted differently and disparately. They were exploited not only because of their race; their sex could be used as a means of accumulating both wealth and property, which rendered them particularly vulnerable to the external manipulation and co-opting of their sexual and reproductive agency. This Article explores how the American legal system's endorsement of racially b(i)ased proprietary interests in female slaves, as "breeders" of property, created powerful norms of social control over the bodies of black women. These norms exacted a premium on enslaved women by facilitating dominion over their agency. If, as MacKinnon suggests, "[g]ender socialization is the process through which women come to identify themselves as sexual beings, as beings that exist for men," then the exacting of black "female sexual submission" not only reifies patriarchy, but also institutionalizes white supremacy. Therefore, while "sexuality is the linchpin of gender inequality," it is also the lynch-pin of racial injustice for black women. The systemic imperatives of reproduction reveal the centrality of American husbandry-that "[c]ontrol of black fertility became a particularly effective and degrading tool of white domination."