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A Sign of “Weakness”? Disrupting Gender Certainties in the Implementation of Security Council Resolution 1325
This Article will examine whether efforts to implement the Resolution suggest new ways to address the old problems: the reliance on stereotyped gender representations to rally women in the cause of peace and the vexed strategic question of how movements for transformative change might influence the mainstream institutions of international law and politics. The first concerns the way that the category of gender is deployed by women's peace activism and by international institutions as they respond to it. The author’s question is whether it is possible to rally women to promote peace, while also challenging the gender dichotomies that underpin the notion of a distinct women's contribution to peace; whether there are "disruptive" gender identities that can form an emancipatory basis for solidarity between women and men in the cause of peace. The second problem is whether the pacifist and equality goals of women's peace movements can best be pursued from outside or within mainstream institutions, systems of location which carry their own gendered dichotomies. The long experience of women's peace activism suggests that the most that can be achieved is a position that is partially inside. Rather than treating partial entry as a failed attempt at full inclusion, the suggestion is that this position might provide a foothold for resistive activity; that it may be possible to use this "in-between" space to remain accountable to anti-militarist "outside" movements while also working from the "inside" to transform military practices and ideologies. This suggestion has important implications for the ongoing struggles for a non-militarized peace and women's equality, and for future feminist efforts to influence and shape international institutions and their practices in law and politics.Victimizing the Abused?: Is Termination the Solution When Domestic Violence Comes to Work?
Part I of this article will discuss domestic violence, explaining the dynamics of domestic violence in an effort to shed light on why it is so difficult for a battered woman to leave the abusive relationship. This understanding is necessary for a sensitive and informed decision-making process. This Part will also discuss the magnitude of the effect that domestic violence has on the workplace. Part II will discuss a company's potential legal liability for: (a) wrongfully terminating the employee-victim and (b) failing to protect other employees (including, perhaps, the employee-victim herself) if the company does not terminate the employee-victim and violence ensues. This part will explore the many possible causes of action that the terminated employee may or may not bring, and will also explore an employer's obligation to protect its employees against workplace violence. Part III will explore the decision from a normative perspective, and will seek to answer such questions as: Can an employer justify its decision to punish the victim of domestic violence? Should it matter if the female employee was unwilling to help herself or take help from the employer? Are there other less severe alternatives an employer could take? Finally, perhaps the most important question: whose rights should trump? In other words, is it the right decision to sacrifice one woman's employment in order to protect the rest of the workforce against the potential risk of harm? If so, how significant should the harm be before such a decision is made? Finally, Part IV will offer this author's solutions to dealing with these very difficult issues. Even though there are circumstances where termination is justified (a conclusion that will be supported below), in this hypothetical, termination was unwarranted. My conclusions draw analogies to the law of the Americans with Disabilities Act to support my proposal that employers should use a direct threat analysis as well as concepts such as reasonable accommodation and undue burden to analyze the conflict between a company's interest in having a safe workplace and the spillover of domestic violence into the workplace. Because, as I conclude, there was not a significant threat of harm to the workplace in the hypothetical, termination cannot be justified.Reconceptualizing Domestic Violence in India: Economic Abuse and the Need for Broad Statutory Interpretation to Promote Women’s Fundamental Rights
This Article explores the reconceptualization of domestic violence in India through an analysis of the economic abuse provision of the recently passed Domestic Violence Act. The author argues that although India has taken a significant step towards advancing women's rights by characterizing economic abuse as a form of domestic violence, effective implementation of the law requires a broad interpretation of the economic abuse provision. To be consistent with the purpose of the statute and India's constitutional and international human rights obligations, "economic abuse" must be interpreted broadly to include the deprivation of a woman's control over her economic resources. Economic abuse would therefore include situations in which a woman is deprived the right to employment outside of the home or forced to turn over all of her earnings to her husband or in-laws. This broad interpretation is essential to ensure that women of all socio-economic levels have economic rights consistent with India's legal obligations.Introducing the Construct of the Jury into Family Violence Proceedings and Family Court Jurisprudence
This Article draws upon both the theory of and research on procedural justice holding that litigants often focus on the appearance of fairness rather than on the actual outcome. Thus, when litigants are able to choose the modality of fact-finding, they may be more accepting of the legal process, even if the outcome is not favorable to them. Allowing the option of a jury, even if not exercised, may dramatically improve the perceptions of litigants and may affect the legitimacy and longevity of case outcomes.More than Mere Semantics: The Case for an Expansive Definition of Persecution in Sexual Minority Asylum Claims
This Article asserts that the requirement in U.S. asylum law that requires an asylee to make a showing of persecutory intent is overly and especially restrictive in claims made by sexual minorities. This Article proposes that the U.S. adopt the asylum standards of New Zealand and Canada, where the focus is on the failure of government protection as opposed to a focus on persecutory intent. Such standards are consistent with both the realities of persecution that sexual minorities encounter and the original impetus behind the Refugee Convention. Part I examines the different forms of persecution against sexual minorities. Part II outlines the history of the Refugee Convention, including various political influences that suggest a liberal interpretation of Convention standards. Part III discusses the current split among the circuit courts regarding whether punitive intent is required to show persecution, and argues that requiring such a showing is especially detrimental to sexual minority asylum claims. Part IV proposes an alternative standard based on New Zealand and Canadian law and argues that this standard more closely coincides with the original meaning of international refugee law.The Congressional Caucus for Women’s Issues: An Inside Perspective on Lawmaking by and for Women
This Article is written to inform constituencies who seek to advance the status of women through the federal legislative process- including lawmakers, Congressional staff, women's organizations, and interested individuals of the general public-about the inner workings of the Congressional Caucus for Women's Issues during the 108th Congress, particularly in the second session. Historians and academics studying women and the law may also find this Article useful. Commonly known as the Women's Caucus, this bipartisan group consists of women Representatives who work together to advance women's issues through raising awareness of and taking action on federal legislation and policy particularly affecting women.Roman Rape: An Overview of Roman Rape Laws from the Republican Period to Justinian’s Reign
The modern Western crime of rape is commonly defined as "[u]nlawful sexual activity (esp. intercourse) with a person (usu. a female) without consent and usu. by force or threat of injury," and it is often seen as an assault of the person's body and a violation of self-autonomy. However, this differs significantly from the conception of rape in ancient Rome. In fact, "there is no single word in... Latin with the same semantic field as the modern English word 'rape.'” For the Romans, the act of rape was covered under a variety of legal terms, but each of those words possessed wider definition fields than the modern word "rape." Thus while charges of seduction, attempted seduction, adultery, abduction, or ravishment all covered rape, there was no legal charge consisting solely of rape itself. Similarly, determination of whether rape occurred greatly differs from Roman times to modern times. While in modern times, attention focuses mostly on the actions of the rapist and sometimes the victim, for the Romans, the occurrence of rape, the possibility of a legal charge, and also the punishment thereof, depended on the victim's status. That is, what actually occurred did not have legal consequences unless the victim fit in a particular social category. Indeed, socio-political factors played a very important role as legislation on sexual activity underwent changes throughout the course of Roman history, and accordingly, the development and refinement of rape-relevant laws strongly reflected this influence.Cambridge Law School for Women: The Evolution and Legacy of the Nation’s First Graduate Law School Exclusively for Women
Although several scholars have briefly discussed CLSW in conjunction with work on other subjects, this Article presents the first comprehensive history of the school. The Article begins in Section Two by exploring how and why CLSW came into being in 1915 after two young Radcliffe suffragists led an unsuccessful campaign for admission to Harvard Law School. Section Three examines the design, pedagogical foundations, and day-to-day workings of the school during its first two years. Sections Four and Five explore the historical events that led to CLSW's closure in 1917. These sections also document and discuss the school's subsequent, and previously undocumented, reopening in 1921. In Section Six, the Article traces the careers of eight of the students who attended CLSW. Finally, it concludes with a discussion of the school's legacy and what its history reveals about American legal education in the early part of the twentieth century. In doing so, it debunks the gender-influenced myths that have arisen about the school. Throughout, the Article explores how the idea and desire for CLSW grew out of the women's suffrage movement and its accompanying emphasis on professional roles for women, while the school's form was largely dictated by the increasing emphasis on the elite model of legal education championed by Harvard Law School.The Passage of Community Property Laws, 1939-1947: Was “More Than Money” Involved?
Part I of this article reviews the legal landscape that provided the backdrop against which Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania later adopted community property laws. It also examines the tax consequences of the two Supreme Court cases, Lucas v. Earl and Poe v. Seaborn, that resulted in the disparate tax treatment of married couples in common law and community property law states. Part II briefly reviews the subsequent passage of community property laws by Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania; the passage of a federal tax reduction bill that provided for equal treatment of community property law and common law jurisdictions; and the subsequent history of those laws in each of the five states. The immediate repeal by Michigan, Nebraska, Oklahoma, and Oregon of their community property laws following passage of the Revenue Act of 1948 suggests that the passage of the community property laws was simply a tax saving measure. This is the belief of some reputable scholars. This article does not refute that such laws were passed, in part, to achieve tax savings; however, it does suggest that other social forces were at work, as well. Part III of this article suggests that legislatures were able to pass community property laws, in part, because they gave little in the way of rights to wives, but went far, symbolically, in building married women's confidence that their household responsibilities were worth a portion of their husbands' salaries. Such confidence was necessary if the pre-war social order, with women primarily in the home rather than the workforce, was going to be successfully reinstated after the war. This Part examines the social and cultural context in which a few states passed community property laws together with the legislative debate in Pennsylvania--the only state for which a substantive legislative history is available--over the passage of its community property law. Part IV concludes that although states passed community property laws, in part, for the tax benefits, more than money was involved.Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that is More Inclusive of Transgender People
In Part I, the article first describes the many different ways in which one can be transgender. Many transgender women and men defy gender stereotypes. Part I next suggests a non-linear view of gender. Often, when we get past the binary gender system, the notion that there are only two genders, female and male, we do so by seeing gender as a spectrum or line running from female to male. In Part II, the article argues that the sex-gender distinction is not part of the new conceptualization of gender, the gender galaxy. In Part III, after a brief overview of transgender law, the article shows how much of current law and policy is, at best, inclusive and protective of only a portion of the transgender communities.