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Aborted Emotions: Regret, Relationality, and Regulation
Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.” These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with different lived experiences of abortion. Finally, these portrayals contribute to the silence and stigma surrounding abortion. This Article contends that regret is more suggestive of women’s deep reflection on the abortion decision and respect for the fetal relationship than of flawed decision making—signifying autonomy, not victimization. It explains why we view regret as an outcome of deficient decision making, how this conception misrepresents regret and confuses it with remorse, and why it prompts liberals and conservatives alike to devalue women’s autonomy. This Article charts a course for reconceptualizing and ultimately decentering regret by discussing several common missteps in current constructions: (1) conflating regret with psychopathology, (2) confusing regret with remorse, (3) confining regret to the maternal-fetal relationship and women’s self-commitment, (4) linking regret to deficient decision making, and (5) coupling regret and moral culpability. Finally, this Article discusses how correcting these errors reprioritizes autonomy and profoundly impacts abortion regulation.Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws
Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns that he is not the child’s biological father and who wishes to challenge the validity of the acknowledgment must navigate a difficult process for relief. The very act of signing an acknowledgment may subsequently prevent him from offering any scientific evidence of the absence of a biological connection to the child. As a result, he may be obligated to pay child support for years on the basis of that erroneous paternity acknowledgment, and a parent-child relationship may be imposed even if it is not in the child’s best interests. Using the District of Columbia as a model to highlight the need for procedural reform, this Article examines the federal and D.C. legislation that created voluntary acknowledgments of paternity as well as the process for either rescinding or challenging their validity. The Article then analyzes the practical implications of these processes and discusses why the presumptive weight of the acknowledgment, a conclusive presumption of paternity, is problematic. In particular, the Article questions the need for a conclusive presumption of paternity, a difficult evidentiary burden for a challenger to overcome, and whether the conclusive presumption of paternity runs afoul of constitutional protections. Finally, the Article offers possible solutions to improve the establishment process.Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited
The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem of the “victimless” domestic violence prosecution that would extend beyond the domestic violence context. An approach that views the Confrontation Clause as an accuser’s obligation, and focuses on the values of honor, courage, and respect, while simultaneously taking a gender-conscious approach in defining those values, will produce a body of jurisprudence that can satisfy the courts, academics, and advocates alike.Morning-After Decisions: Legal Mobilization Against Emergency Contraception in Chile
In Chile, the Criminal Code bans all forms of abortion. Furthermore, the Constitution—drafted and enacted by the Military Junta led by General Augusto Pinochet—was inspired by a conservative version of Catholic natural law championed by prominent Chilean constitutional law scholars. This Article traces the emergence, development, and ultimately the defeat of a persistent legal mobilization driven by natural law-inspired litigants, politicians, and scholars against levonorgestrel-based emergency contraception, also known as the morning-after pill. In their decade-long efforts at legal mobilization, these natural law litigants used every tool of the Chilean legal system to challenge the legality and the constitutionality of the morning-after pill. This case of legal mobilization demonstrates both the strengths and the weaknesses of conservative political and religious networks in Latin America, and it demonstrates both the potential and limitations of litigation-led policymaking in civil law countries.An Incomplete Revolution: Feminists and the Legacy of Marital-Property Reform
As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history of the role of women, both feminists and antifeminists, in revolutionizing the law of marital property in the United States. Moreover, as the Article will demonstrate, women's groups became involved and influential in the divorce debate because of, not in spite of, the ERA. In the early 1970s, women's groups like the National Organization for Women (NOW) did not focus on family law issues, be it in the context of the ERA or otherwise. However, between 1970 and 1975, anti-feminist organizations like STOP ERA and the Happiness of Women campaigned against the Amendment by highlighting its effects on divorce reform. By the late 1970s, NOW responded by campaigning for "pro-homemaker" divorce reforms: measures such as those calling for equal or equitable distribution of marital property and laws recognizing the contributions of homemakers in the division of marital property. These reforms themselves represent a revolution in divorce law. Equitable property division, rare in 1970. became the norm in all but ten states by the mid-1980s. Whereas no states had property-division rules recognizing the contributions of homemakers in 1968, 22 states had adopted such a policy by 1983. The Article also offers new perspective on the flaws in current marital-property rules. Since discussion in the 1970s focused so heavily on the value homemakers contributed to marriage, the laws produced in that period did not adequately address the human capital brought to a marriage by the wage-earning husband. The history of marital-property reform makes apparent the need for statutes and judicial decisions that define marital property more expansively. The problem with current rules is not, as scholars have argued, that divorce reforms failed to consider women's needs. Instead, as we shall see, the problem was that women involved in divorce reform did not fully consider how those needs could best be addressed.Baring Inequality: Revisiting the Legalization Debate Through the Lens of Strippers’ Rights
The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if sex work were legalized? When deploying the hypothetical, advocates elide the reality that the commercial sex industry is legal in the United States for a large swathe of workers in the industry: strippers. Stripping, as this Article will describe, is analogous to prostitution in that every interaction between stripper and customer is a performance of intimacy geared toward sexually and emotionally satisfying the customer in exchange for money. During these performances, strippers are often isolated with customers, thereby vulnerable to physical and sexual assault. Applying the argument of legalization advocates, strippers should experience better protection than individuals engaging in prostitution because their work is legal and thus subject to government oversight. But does this argument hold true? This Article examines strippers' experiences as a case study for how the legalization argument for prostitution falls short of its promises. Despite the fact that stripping for money is legal, the stripper's body remains a site of deep controversy in American culture and legal jurisprudence. Her dance is seen both as a threat to social order and an act of expression to be protected. Her work, legally recognized labor, is nonetheless ignored when it is not reviled. Unlike workers whose labor is seen as "legitimate" in the eyes of the law, the stripper operates in a murky zone of legal protection laden with qualifications and contradictions. While legalization has led to heavy regulation, it has failed to protect strippers and has arguably made them more vulnerable by lending a false veneer of legitimacy to strip clubs' labor practices. In the past thirty years, legal doctrine has developed in two distinct substantive areas that exacerbate strippers' poor working conditions: 1) strippers' classification as independent contractors and consequential exclusion from protective labor statutes, and 2) First Amendment jurisprudence that permits regulation of strip clubs, but has not produced meaningful protective regulations for strippers. These doctrinal developments are entangled in underlying social narratives about the worth of sexual labor and the place of the strip club in a morally upright community.“Off with His __”: Analyzing the Sex Disparity in Chemical Castration Sentences
Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of prosecution of the criminals, and the exercise of judicial discretion when selecting the sentence. Therefore, the public, the government, and the criminals themselves have each contributed to the chemical castration sentencing regime's single greatest flaw: the punishment of chemical castration is, in effect, reserved exclusively for use against male offenders. This Note, broken into six parts, discusses the disparate impact of the current chemical castration regime on male offenders and provides insight into why and how the system must change to eliminate or reduce this disparity.Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People
Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital records should be corrected in the case of individuals who change their gender. Specifically, the 1977 MSVSA recommended that corrections to gender markers on birth certificates be granted after applicants change their sex by "surgical procedure" and provide a court order to that effect. Additionally, the MSVSA recommended that the correction be kept private. Over the past three decades, transgender legal rights have advanced and understanding of transgender medicine has evolved. Experts in transgender law and medicine entirely reject the idea that recognition of a person's gender should come only after surgery. This notion has also been significantly eroded in law and policy. Yet, with the exception of new laws and/or policies in three states, birth certificate statutes and policies have yet to be modernized in this respect. This Article explains why and how state, local, and territorial birth certificate laws and regulations ought to be revised based on changes in law and medicine. In addition, the Article discusses public policy factors that governments should consider when modernizing their policies, including the cost of various policies and the policies' legal and practical effects on the lives of transgender people.The Role of Networks, Mentors, and the Law in Overcoming Barriers to Organizational Leadership for Women with Children
The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of senior executive positions at Fortune 500 companies and 40% of managerial positions overall. These figures have persisted unchanged since 2005. Subtle yet entrenched forms of gender discrimination have clearly stalled women's career progress, and more must be done to rectify these disparities. The differences in gender outcome may be a function of demand-side (work-related) and supply-side (worker-related) characteristics. These include personal characteristics, human and social capital, and developmental, interpersonal, and situational factors. Gender overlaps with multiple group memberships based on family status, race, religion, national origin, and disability. These group memberships also influence women's status and power dynamics in the family, the workplace, and in other communities. The interplay of these factors makes gender-based discrimination an interesting phenomenon to explore. Having dependents is an important family status variable in the larger scheme of social differentiators that account for sex differences in careerrelated outcomes. In this study, we are interested in whether men or women benefit more from having access to networks when they have dependents. Prior studies have shown that mentoring and networking are major components of professional development that lead to career advancement. We are also interested in whether the outcome differs for those men and women who report having mentors.Outing the Majority: Gay Rights, Public Debate, and Polarization after Doe v. Reed
In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional roles of the civil rights litigants from earlier cases, like NAACP v. Alabama. In those early cases, publicly persecuted groups sought protection from disclosure laws, but, here, the persecutors themselves are looking for help. Second, the Doe v. Reed opinion, and especially Justice Scalia's concurrence, articulate an age-old conception of republican citizenship, one supported by a number of modern and contemporary political theorists. Last, this conception of citizenship has interesting, and largely positive, implications for political polarization, especially in the context of LGBT rights. It facilitates the realization of the fruits of hard-fought public opinion victories by the LGBT community and their allies. The Reed holding has the potential to help turn the ever-growing support for LGBT rights into concrete policies in the next decade. Marriage rights and employment protections for gays, lesbians, and transgender Americans have been put up for public referenda in a number of states. While the last few months have seen a number of key victories for the LGBT community, most states still have laws preventing gay and lesbian couples from marrying. Increased transparency might be good for LGBT legislative battles for a number of reasons. I argue that the LGBT movement is at a place where embracing Scalia's combative public citizenship is a winning strategy. Justice Scalia has provided the LGBT community with a critical weapon in its fight for marriage equality. By examining political science literature and public opinion polling, I hope to show that making public ballot initiatives transparent will curb the trend of states taking away rights and privileges from their LGBT citizens. I share the concerns of commentators like Cass Sunstein, who fear the phenomenon of insular political communities moving to extremes. I also share the concerns of thinkers ranging from James Madison to Alexis de Tocqueville to modern day political scientists about political majorities targeting unpopular minorities in winner-take-all elections. The "brave citizen" of Scalia's concurrence is a conception of deliberative democracy that serves the LGBT community well. In this Note I look at the likely impact of Doe v. Reed on the politics of the fight for LGBT rights.