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Taking Safety Seriously: Using Liberalism to Fight Pornography
Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, the author proposes to illuminate what appears to be the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, the author argues that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.The Failure of Breast Cancer Informed Consent Statuses
Breast cancer informed consent legislation was introduced in response to breast cancer patient discontent with doctor-patient relationships. Physicians do not always believe that explaining treatment alternatives is important, and in this respect, legislation promoting the discussion of alternative treatment could be positive for breast cancer patients, many of whom do in fact have several viable medical options. Studies have found, however, that these statutes have no lasting impact on patient decision-making. Why aren't these patient-driven statutes affecting patient decision-making? And why is medical advice coming from the law at all? This Article argues that this legislation is a poor tool for creating positive change in the physician-patient realm of breast cancer treatment. Ideally, informed consent for breast cancer patients would be an individualistic process. It would be shaped by the specific context of the patient's life, as well as the gender inequities that still pervade medicine. The right kind of laws would see a "good" decision as one in which the patient is left physically and emotionally satisfied. To the contrary, these statutes imply that what women need is more naked information on treatment options, an idea divorced from what is known about patient decision-making.The Evolution of Same-Sex Marriage in Canada: Lessons the U.S. Can Learn from Their Northern Neighbor Regarding Same-Sex Marriage Rights
The broad differences between the United States and Canadian cases raise important questions about the social, political and legal factors that have promoted the extension of marriage rights in Canada while retarding similar efforts in the U.S. This article will compare the recent history of same-sex marriage laws in the United States and Canada. We argue that proponents of same-sex marriage as well as lawmakers could learn important lessons from the recent legalization of same-sex marriage in Canada. Section II develops a framework for comparing the U.S. and Canadian experience with same-sex marriage law. The next section traces Canada's recent history of marriage law amendments. Section IV provides a parallel legal history of same-sex marriage rights in the U.S., including the recent introduction of the Marriage Protection Act (MPA). Section V systematically compares the two cases to illuminate those factors that have supported the extension of same-sex marriage rights in Canada and hindered the extension of equivalent rights in the United States. The article concludes that the Canadian experience presents several important lessons the U.S. could learn in order to extend marriage rights to same-sex couples and therefore uphold the Constitutional right to equal protection.Refusal to Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination?
This Article will demonstrate that a pharmacist's refusal to fill a valid prescription for emergency contraception constitutes sex discrimination and violates the WLAD. Part I explains the nature and function of emergency contraceptive pills (ECPs) as well as their role in basic health care for women and the importance of their accessibility. Part II addresses federal civil rights protections and the failure of these protections to provide relief for women facing refusals. Focusing on the WLAD, Part II also explains how state public accommodation statutes protect women from discrimination in places of public accommodation. It further sets forth the prima facie case of such a claim where a woman is refused access to emergency contraception. Part III presents arguments likely to be submitted by a pharmacist facing litigation under the WLAD. Finally, Part IV illustrates how Washington public policy supports women and the protection of reproductive freedom. The Article concludes with suggestions for judicial interpretation.Toward a Third-Wave Feminist Legal Theory: Young Women, Pornography and the Praxis of Pleasure
Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in women's historical advancement, they do not articulate a meaningful role for the law in achieving gender equality now or in the future. Their methods instead are (1) personal story-telling; (2) coalition building; and (3) harnessing and interpreting media.Rape and the Querela in Italy: False Protection of Victim Agency
This Essay describes the history of the querela in Italy and explores the controversy surrounding the decision to maintain this institution. In addition, this Essay questions the degree to which the querela can protect victim agency when the attitudes of judges and lawyers in the Italian criminal justice system reflect persistent rape myths.Sex-Separation in Public Restrooms: Law, Architecture, and Gender
This Article challenges the common assumption that legally mandated sex-separation of public restrooms is a benign recognition of natural anatomical differences between men and women. Relying on legal history, gender history, and architectural theory, my central thesis is that, contrary to common intuitions, there was nothing benign or gender neutral about the social and historical origins of the first laws adopted at the end of the nineteenth century that mandated such separation.The Use of Drug Testing to Police Sex and Gender in the Olympic Games
Part I of this Article discusses the history and development of sex testing and drug testing and argues that the two are both historically and ideologically linked. Part II examines the current Code in detail and argues that the Code's focus on hormone-based controls acts to police sex and gender in Olympic athletes, thereby extending historical sex testing practices to a new era. This Article ultimately concludes that without recognizing and addressing the need for further research into the role of "sex" hormones in the body and the interplay of social context and biological circumstances, the IOC cannot maintain an anti-doping plan that serves its fairness and equality goals.Preserving the Seeds of Gender Fluidity: Tribal Courts and the Berdache Tradition
This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts' re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements.The Rights of Putative Fathers to Their Infant Children in Contested Adoptions: Strengthening State Laws that Currently Deny Adequate Protection
This paper argues that states need to strengthen protection of putative fathers' rights to their infant children when the mother wishes for the child to be adopted. Part I frames the discussion around established parental rights through constitutional case law. To do this, the paper addresses both the Supreme Court's parental rights doctrine and its biology-plus doctrine, which requires unwed fathers to show that in addition to being the biological father they also have taken responsibility for their children. Part II describes common state statutes that affect putative fathers, including putative father registries, safe haven laws, and laws granting custody of an infant child to preadoptive parents instead of the father when he contests an adoption petition. Part II also discusses these statutes' inherent flaws, which violate an unwed father's parental and due process rights, and suggests ways states can strengthen these statutes to provide greater protection for fathers. Part III addresses how state practices implicate poor policy decisions. Specifically, states promote adoption for illegitimate children even when unnecessary and psychologically harmful, and when federal child welfare policy promotes family preservation. Part IV adds two more recommendations for how states can strengthen their protection for unwed fathers: greater compulsion of mothers' cooperation in identifying the father of their child and better recognition of the child's interest in being raised by a biological parent.