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Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya’s Marital Asset Division
Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, it provides that monetary contribution and non-monetary contribution are the only factors for dividing marital property on divorce. The Kenyan courts have issued contradictory decisions on the weight of nonmonetary contribution in long-term and short-term marriages. Without guidance on the weight of non-monetary contribution during divorce proceedings, the courts have left potential litigants, especially women, to navigate the unsettled waters of marital disputes in the legal system. Kenya’s Parliament should take steps to clarify the legislation, develop regulations on the weight of non-monetary contribution, and provide statutory factors for consideration during division of marital property. This will ensure that courts meet the overriding objective of achieving a fair outcome in marital property disputes. Because of the constitutional guarantee of equality, the courts must begin analysis of property division by assuming each spouse is entitled to half of the marital property.Born Free: Toward an Expansive Definition of Sex
The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety of contexts. However, several obstacles have emerged to jeopardize true equality for the LGBTQIA community, including (1) inconsistent judicial opinions regarding the meaning of “sex,” (2) the increased ability of employers to utilize religion or “any other factor” as a defense to discrimination claims, (3) regressive executive policies regarding the definition of “sex,” and (4) uncertainty about the extent to which transgender individuals may remain in the military. Although each of these issues warrants thorough analysis and has sparked scholarly debate, in this Article we focus on another critical inequality: wage disparity. Specifically, we are concerned with the problem posed for DSD and transgender individuals, given the Equal Pay Act’s requirement that plaintiffs demonstrate they are paid differently from the “opposite sex” for a wage disparity claim. The Equal Pay Act (EPA) is outdated and discriminatory in its application, and it unnecessarily subjects an entire segment of the workforce—LGBTQIA individuals—to continued discrimination. The EPA requires that plaintiffs prove their cases through reference to an opposite sex comparator, but then defers to the employer’s subjective definition of who “the opposite sex” is. This makes LGBTQIA plaintiffs’ cases essentially unwinnable. Uncertainty for the LGBTQIA community is further compounded by the expansion of the employer’s right, under both the Equal Pay Act and Title VII, to invoke religion, conscience, or “any other factor” as an affirmative defense to discrimination claims. In this Article, we discuss the interplay between a plaintiff’s sex-specific protections (against sex-based employment discrimination under Title VII and against wage disparity under the Equal Pay Act) and an employer’s affirmative defenses (under Title VII, the EPA, and current interpretations of the Religious Freedom Restoration Act). Our discussion concludes with recommendations for an expansive definition of the word “sex” and the adoption of the recently proposed Equality Act to help alleviate all forms of sex-based discrimination in the employment context.Removing Camouflaged Barriers to Equality: Overcoming Systemic Sexual Assault and Harassment at the Military Academies
The Education Amendments of 1972 introduced requirements to protect female students from discriminatory policies at post-secondary institutions. A portion of those amendments, commonly known as Title IX, require that no students be subjected to discrimination based on their sex by any educational institution or activity receiving federal financial assistance. An exemption under § 1681(a)(4), however, explicitly prohibits application of Title IX to any educational institution whose primary purpose is to train individuals for military service or the merchant marine. Although those students are still subject to stringent conduct standards, the service academies themselves are tethered to sex discrimination policies only by their goodwill, reputation, and the boundaries of the Constitution. Answering only to the Department of Defense (or Transportation, in the case of the United States Merchant Marine Academy) does not hold these institutions accountable to their students or to the American public. The academies’ attempts at combatting this widespread problem have been ineffective, and they continue to perpetuate a culture of sexual violence. This Note proposes the removal of exemption language from Title IX, or, alternatively, insists that the academies comply with mandatory reporting requirements under the Clery Act.Draft of a Letter of Recommendation to the Honorable Alex Kozinski, Which I Guess I’m Not Going to Send Now
This legal-literary essay engages the current social and jurisprudential moment, encapsulated by the hashtag #metoo. It focuses on the allegations, made in the first week of December 2017, that Ninth Circuit Court of Appeals Judge Alex Kozinski verbally sexually harassed former law clerks Emily Murphy and Heidi Bond. I wrote the lioness’s share of the piece during December 10–11—that is, in the days before news outlets reported that other women complained of Kozinski touching them on the thigh or breast while propositioning them for sex or discussing recent sexual encounters—and concluded that Kozinski was unlikely to face impeachment or meaningful judicial censure, but that he should nevertheless resign because his maintenance of his judicial position was untenable. What occurred next proved a shocking installation in the annals of American judicial history: After hiring feminist icon Susan Estrich as counsel and asserting that the claims against him were “not true,” Judge Kozinski did retire on December 18, 2017, explaining that he could not “be an effective judge and simultaneously fight this battle. . . . Nor would such a battle be good for [his] beloved federal judiciary.” Beyond qualifying me, for the first time in my life, more as a baffled Hildegard von Bingen than as a grouchy Cassandra, the most notable aspect of my essay is its form. It is auto-fiction, composed in the style of a letter of recommendation that an unnamed U.S. law professor attempts to write for a student who seeks a clerkship with Judge Kozinski during those frenzied and confusing first weeks of December. The “letter” also contains editorial comment flags, written by an unidentified colleague. The “foul papers” style of this letter permits an expression of the intense emotion catalyzed by the allegations against Judge Kozinski, and also allows us to consider the double bind that law professors and law students find themselves in with regard to clerkship applications tendered within a legal culture shaped by male dominance and white supremacy. Further, the document’s footnotes denote the copious subtext that can lie beneath the surface of oppressed people’s sometimes strangled speech. The employment of the comment flags allows for a certain amount of “cross talk” to this outpouring, critiques that mainly express the position of the hegemonic power structure (except for some gadfly citations to Janet Halley, Jacob Gersen, and Jeannie Suk). In these comment flags, we can see how even the most basic aspects of legal discourse (Bluebook conventions; formatting;professionalism) encourage denial of the emotional disorganization and rage that flow from sexual harassment and other kinds of oppression. We also can discern how legal discourse’s obsession with “relevance” stymies the engagement of racial, class, and queer intersectionalities. Additionally, it is worth noting that some of these comment flags ask hard and valuable questions. Together, this contest of voices and perspectives interrogates why calls for Kozinski’s resignation were “off the wall” on December 8—that is, that they were so unthinkable that he could gleefully brush them off during that first week of the month—but legitimate on December 18. N.B.: The piece is written as if it is still December 11, just after the allegations of verbal harassment were reported, but before the complaints about physical touching came out in national news. That is, it is “written” in the moments before Judge Kozinski’s reputation suffered irreparable blows, and his remained a sought-after clerkship despite longstanding rumors and complaints of his misogyny. In my efforts to harness the legal-literary style to uncover the effects and constructions of oppression, I take inspiration from Derrick Bell's Faces at the Bottom of the Well: The Permanence of Racism (1993), Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Michigan Law Review 2411 (1989), and Patricia Williams' the Alchemy of Race and Rights (1992). I also build upon Kathryn Abrams and Hila Keren’s Who’s Afraid of Law and the Emotions? 94 MINN. L. REV. 1997 (1998).The Strange Pairing: Building Alliances Between Queer Activists and Conservative Groups to Recognize New Families
This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.” The central claim of this Article is thus that new families should build alliances with conservative fringe groups and capitalize on their common interest in creating legal alternatives to marriage. Section I of the Article will provide a primer on the legal remedies available to non-normative relationships. Section II will engage in a comparative analysis of conservative reforms in the United States and Canada that ended up extending eligibility requirements to new families, or that, although currently restricted to conjugal couples, could constitute a viable model for protecting all new families, if their eligibility requirements were amended. Section III tries to operationalize legal recognition by analyzing the potential paths to gain it. I will first anticipate and respond to criticism surrounding recognition of new families, and then will lay the foundation for rethinking queer activists’ political action. I will then offer some recommendations (a) on the best model for implementation and (b) on forming alliances with conservative groups.Centering Women in Prisoners’ Rights Litigation
This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being. This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an aesthetic project.” Using oral histories in this way—requesting, offering, and receiving narrative—is important for two reasons. First, it is crucial for developing a shared understanding of the context surrounding the event, such as the position, setting, and social order. First-person narratives reveal the human experience behind legal rules. Secondly, the methodology is significant to dignity rights scholarship since it respects and augments the idea of a right to dignity by recognizing that the people who are primarily affected by an event are the people best informed about the dynamics of the harm they have endured. The precise influences that lead an individual to articulate her rights cannot be conveyed through court records or opinions. That process occurs before, beside, and in the aftermath of litigation. Traditional forms of scholarship—those based on highly bureaucratic processes such as court decisions and filings—may even be considered dignity-violative. For women of color or poor women, those indignities are often rendered invisible by supposed “neutral” applications of law and summarization of harms in court decisions. In this way, marginalizing individual narratives can be dignity-corrosive. To examine the role of women in the development of prisoners’ rights litigation, I conducted oral history interviews with three individuals involved in the lawsuits from Bedford Hills Correctional Facility in the 1970s.Customer Domination at Work: A New Paradigm for the Sexual Harassment of Employees by Customers
This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a true understanding of the problem of third-party harassment that recognizes the power of customers within an employer- employee-customer triangular relationship, seeing the customer as integral to the organization of work. Within the triangular relationship, customer domination at work is created, consisting of three aspects: masculinity, authority, and service market power. Customer domination is shaped and reinforced by employers, and is exploited by customers in these cases of harassment. This should lead, I claim, to placing stricter legal liability on employers, incentivizing them to change workplace practices that provide customers with such power, and to customers bearing legal responsibility that parallels employer liability.Running from the Gender Police: Reconceptualizing Gender to Ensure Protection for Non-Binary People
Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how friendly the Court is to queer rights issues. I argue that a fundamental right to selfidentification would require courts to give the same wide degree of deference to a plaintiff’s self-identification of their gender as they do to a plaintiff’s self-identification of their religious beliefs. This legal framework would prohibit courts from policing the gender of the parties before them and allow them only to assess whether the plaintiff’s gender-related beliefs are sincerely held. Such a legal framework would allow non-binary plaintiffs to bring claims under federal anti-discrimination law without worrying that the Court will refuse to recognize their gender as valid.Working Sex Words
Imagine yourself tasked to speak for a few minutes about legal controls on sex-selling in the United States, or any other country you choose. You need not have thought about the particulars. As someone willing to read a law review article, you have enough to say because sex-selling overlaps with the subject knowledge you already have. Criminal law, contracts, employment law, immigration law, tort law, zoning, commercial law, and intellectual property, among other legal categories, all intersect with this topic. In your brief remarks on how law attempts to mediate the sale and purchase of sex, you have only one modest constraint: Omit a short list of nouns. Describe paid-for sex as a regulated activity without using the words “prostitute” (including “prostitution”), “sex work” (or “sex worker”), “legalization,” “decriminalization,” “john,” “pimp,” “madam,” “trafficking,” and “Nordic model” or “Swedish model.” The premise of the exercise may be familiar from a game marketed under two names, Taboo and Catchphrase. When competing, a member of a team is told a word or phrase and then has to convey its meaning to teammates from whom the word has been hidden. Rules constrain players: The clue-giver is allowed to make any physical gesture and give almost any verbal clue to get his/her team to say the word. But you may NOT: • Say a word that RHYMES with the word. • Give the FIRST LETTER of the word. • Say A PART OF THE WORD in the clue (i.e., shoe for shoe horn). But why, you may reasonably wonder, would anyone discuss an issue in American legal regulation by copying a game that demands dodging? Evasion is anathema to regulation, an endeavor that references an activity and then tries to give intelligible guidance about what participants in the regulated sector must, must not, and may do. Playing Taboo/Catchphrase about the law of sex-selling and -buying seems unproductive, to say the least.Prenatal Abandonment: ‘Horton Hatches the Egg’ In the Supreme Court and Thirty-Four States
This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; the high non-marital birth rate; the commonality of casual sexual relationships; the likelihood that non-marital children will live in poverty; and poverty’s deleterious effects upon children. The 2013 United States Supreme Court’s decision in Adoptive Couple v. Baby Girl endorsed prenatal abandonment theory and elevated the rights of pregnant women and fetuses while tying an unwed father’s rights to the responsibilities he assumes from the moment of conception. This Article analyzes relevant socio-demographics and comprehensively reviews existing case law to conclude with recommendations for the structure of prenatal abandonment theory as it now exists in various forms in thirty-four states.