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A Comparative Analysis of the Lack of Contractual Protections in Female Dominated Opportunities: Collegiate Competitive Dancers and Cheerleaders Compared to NCAA Student-Athletes and National Pageant Organization Titleholders Compared to Employees/Independent Contractors
The lack of contractual protections and regulations throughout female-dominated opportunities is abundantly clear in the collegiate competitive dance & cheer and the national pageant organization titleholders. Collegiate competitive dancers and cheerleaders have no standardized contractual requirements regarding their commitment to an academic institution or their engagement in NIL opportunities. Their NCAA recognized student-athlete counterparts, on the other hand, have extensive regulations and protections in place for both categories of contracts. In the pageant industry, pageant titleholders have no protection against the all-too-common procedural and substantive unconscionability of their service agreements, which can be found in confidentiality and arbitration clauses. In the parallel employment context, however, federal regulations and state case law alike protect members of the workforce from contracts with the same, or lower, levels of unconscionability that titleholders face. Action is needed to address this disadvantageous contractual trend. Institutional regulatory action from the individual colleges and universities and the individual pageant organizations is an attainable first step on the road to a solution. Action from governing bodies, such as the NCAA and the Corporation for National and Community Service, is another plausible launching pad for a long-term solution. The collegiate competitive dance and cheer and the national pageant organization titleholder landscapes are just two small facets of the much broader societal issue of the lack of contractual protections in female dominated opportunities, but imminent action is necessary to begin paving a way to resolve a long-standing inequity. Further areas of research include the loose protections professional cheerleaders receive from individual contractor agreements, while performing more synonymously with their player counterparts who are highly protected by the layers of regulations surrounding employee contracts.Gender and Consensus on the Courts
During group deliberation, women tend to be the harbingers of compromise, vying for consensus on even the most contentious topics. However, women cannot succeed in this endeavor if gender bias prevents their voices from being heard. In federal courts, collaboration is essential to reaching the simple majority needed to resolve a case. While the courts already function under norms of collegiality during deliberations, the practice of writing a separate opinion to acknowledge disagreement with a majority opinion remains relatively common. In this Article, I test two competing theories as to the effects of women judges on consensus. On one hand, I posit that women’s tendency toward democratized decision-making should lead to greater consensus. If women who are judges are more likely to compromise with their peers, it seems likely that case deliberation will be more consensual when women are part of the process. Alternatively, the possibility of gender bias might lead to greater levels of dissensus when a panel includes both men and women. If men are skeptical of positions taken by women and/or women perceive their voices as not being heard by men, dissensus may abound when women join panels. Using both empirical and qualitative evidence, I find support for both theories. Specifically, employing a dataset of more than 11,000 federal appellate opinions and 27,000 judge-case pairings, I find that the presence of women judges generally leads to greater dissensus on the courts. However, the data simultaneously indicate that all-woman panels reach the highest levels of consensus. A systematic analysis of the recorded oral histories of 29 federal appellate judges confirms that, while women may be more likely to pursue consensus building, they will sometimes fail, possibly due to perceptions of bias against them. However, this gendered dissensus may also simply be a byproduct of diverse deliberation that leads to more well-reasoned decision-making, a potentially desirable practice for the court.Health Care Civil Rights: Addressing the American Maternal Mortality Disparity Through Health, Law, and Policy
The United States is facing a pressing issue in maternal health, standing out as uniquely dangerous among similarly situated nations, with significant disparities in maternal mortality rates, particularly affecting Black American pregnant people. This paper, “Health Care Civil Rights: Addressing the American Maternal Mortality Disparity Through Health, Law, and Policy,” argues that by addressing the root cause of the Black Maternal Mortality Disparity (BMMD)—structural racism—and implementing rigorous, enforced standards of care, the United States can ensure safer childbirth experiences for Black pregnant people. Utilizing intersectional and anti-racist frameworks, the analysis identifies inferior medical care, particularly in diagnosing and treating preventable causes of death such as preeclampsia, and systemic failures as contributing causes of BMMD. The analysis further identifies legal and policy avenues—including civil rights enforcement under Section 1557, Congressional initiatives, enhanced Maternal Mortality Review Committees, standardized clinical protocols, and hospital accreditation—as pathways to reform, while acknowledging significant obstacles to enforcement and federal action. Evidence from California and other states indicates that robust, accountable implementation can substantially reduce mortality. Expanded support for Black midwives and doulas, patient education, and postpartum care are also identified as vital solutions. The paper concludes that while structural change is complex, immediate progress can be achieved at the state, institutional, and provider levels; coordinated, community-driven action and rigorous enforcement of standards are necessary to end preventable injustices in American maternity care.One Hundred Years of Morales y Benet v. La Junta Local de Inscripciones: The Use of the Insular Cases to Deny Women’s Voting Rights in Puerto Rico
The centenary of Morales y Benet provides an opportunity to reflect on the inequalities women faced under Puerto Rican colonialism in the early 20th century, shaped by the legal imperialism of the United States over the archipelago. This article explores the holding in Morales y Benet v. La Junta Local de Inscripciones and its impact on women’s lives during the last 100 years. The decision in Morales y Benet came at a time when women in the mainland United States had already secured the right to vote, following decades of suffrage activism that culminated in the passage of the Nineteenth Amendment in 1920. However, Puerto Rico’s status as an unincorporated territory under U.S. sovereignty imposed a different legal framework on the island. The Supreme Court of Puerto Rico, drawing on the Insular Cases concluded that the Nineteenth Amendment did not apply to Puerto Rico, leaving women on the island without the same constitutional protections enjoyed by their counterparts in the mainland. As we reflect on the centennial of Morales y Benet, it becomes essential to examine the ways in which colonialism facilitated the exclusion of Puerto Rican women from the democratic process. This case serves as a lens through which we can explore how the intersection of gender and colonial status denied basic rights to U.S. citizens residing in Puerto Rico. By analyzing the legal reasoning behind this decision, we gain a deeper understanding of the broader implications of U.S. colonial rule and its impact on the fight for women’s suffrage in Puerto Rico.Developing a Professional Identity: Lessons For Women, BIPOC, and First-Generation Law Students From the Canaries in the Coalmines
This Article explores the concept of professional identity formation in the law, particularly as it pertains to women and lawyers of color. The topic of professional identity formation is an understudied area in legal education, despite the ABA’s new Standard 303(b)(3), which requires law schools to provide substantial opportunities for the development of professional identity. In the legal field, professional identity is often conflated with professionalism, which leads to confusion about how law schools should best prepare their students for their professional lives, and fails to fully equip students to join the profession. Studies from other professions have shown that professional identity is the development of an identity whereby, the newcomer to the profession is adopted into and successfully incorporates the values of the profession, merging the new professional identity with their existing personal identity. Professional identities are most effectively fostered through joining communities of practice, where newcomers are mentored and welcomed into the professional culture. The Author argues that because the legal profession in private firms is still primarily white and male dominated, women, lawyers of color, and first generation lawyers do not always have access to the kind of mentorship, supportive community, and positive narratives that are necessary to foster a strong professional identity. While efforts have been made to foster diversity and inclusion in law firms, these have still fallen short. Thus, even though women, students of color, and first generation students might have positive experiences in law schools, these experiences are not necessarily replicated in firms. The Article goes on to suggest that this failure to fully incorporate these groups into a supportive community of practice in law firms, and the subsequent failure to foster and promote strong professional identities, may be one reason why women and lawyers of color leave the profession at far higher rates than white men.Comity & Federalism in Extraterritorial Abortion Regulation
On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypersons have focused primarily on its implications for reproductive rights and other fundamental rights—such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions have arisen regarding whether and to what extent states may regulate the out-of-state conduct of pregnant women who seek abortions, those who provide assistance to pregnant women seeking to terminate a pregnancy, and abortion providers. This patchwork has the potential to generate interstate conflict and creates new urgency for thinking about the legal and constitutional principles that constrain state extraterritorial legislative jurisdiction. This Article first outlines each states abortion laws, then explores state legislative jurisdiction, and the various barriers that constrain expansive legislative jurisdiction, and finally identifies why expansive legislative jurisdiction would be detrimental to both the Union and individual liberties. Ultimately, the current doctrine has gaps that create risks for comity among the states, and for individuals and businesses attempting to conform to the law of a given state. These gaps should be closed, and should be closed in a way that preserves horizontal federalism.The Class Counsel Draft Gender Gap: An Analysis of Class Counsel Applicants
This Article accomplishes three important and distinct objectives. First, it provides an updated window into the class counsel gender gap. Second, and most critically, it analyzes a to date unexamined data point—MDL class counsel applications. And third, based on its analysis of the data gathered, it demonstrates: (1) female class counsel application rates are correlated with appointment rates and (2) gender equal class counsel applicants’ success rate, suggesting courts are not discriminating against female class counsel applicants. Instead, the class counsel gender gap appears to be a product of the class counsel draft gender gap. To narrow the gap, more women must apply to represent class members. But female candidates must be qualified and meet Rule 23(g)’s adequacy requirements, and they cannot easily attain the experience and financial resources required under the Rule without the class counsel bar’s investment and endorsement. In the recent past, the bar has been motivated by courts’ vocal efforts to appoint diverse candidates, but with courts’ diversity efforts in Constitutional jeopardy, the bar’s incentives to train, retain, and sponsor female candidates will likely decrease. It is up to the class counsel bar now to recognize, as several courts have, the many benefits gender-diverse representation affords class members and class counsel, whose ultimate financial success is tied to the success of the class.How Viable is Viability? Artificial Womb Technology and the Threat to Abortion Access
The viability standard plays an important role in abortion access around much of the United States. In fact, before the Dobbs decision, the viability standard was the constitutional gatekeeper to abortion access and was uniform across the entire nation. Unfortunately, the Supreme Court has removed the constitutional right to abortion altogether. Nevertheless, I will provide an argument as to why Dobbs does not signal the end of viability-based abortion around the U.S. I will prove the importance of the viability standard even in a post-Dobbs society, highlighting its operation within various state laws, such as Michigan’s Prop. 3, as well as its presence in federal bills aimed at codifying Roe. As an important factor in abortion regulation, it is important to note that viability is fluid and is subject to change depending on the context of medical technology. The artificial womb is a threat to the current understanding of viability, and its arrival is by no means far-fetched. The question this paper will address is how society should deal with viability after artificial womb technology becomes mainstream. The paper will explore potential alternatives to the viability standard, but ultimately conclude that viability ought to be retained where it is already used, and implemented where it is not, due to its inherent ability to fairly balance relevant interests in the abortion decision. This paper will advocate for reform envisaging legislative change to ground artificial wombs firmly within the private surrogacy sector, to distance them as being considered ‘medical apparatus’ capable of expediting viability.Gender Identity and Birth Certificates: The Surrogacy Nexus
This Article confronts and responds to the weaponization of birth certificates in recent controversies around gender identity by drawing parallels between gender identity and intentional parentage. A juxtaposition of gender identity with parentage identity reveals that they share the common underpinning of self-identification, raising the question why birth certificates are permitted to reflect one’s parentage identity but, as has been suggested in numerous controversies involving transgender litigants, not one’s gender identity. This Article argues that, for the same reasons that a surrogacy arrangement permits the parties to it to define for themselves who are the legal parents of the child they plan to create, a gender marker on a birth certificate should also be a matter of self-definition. This Article emphasizes that basing a law of gender determination on inflexible categories defined by outward anatomical differences furthers no defensible public policy and indeed is in direct conflict with evolving understandings of gender and human rights.Rethinking Crime and Punishment: Women Who Kill Their Abusers in South Africa
The battered women’s movement in the United States was galvanized in the 1970s and ushered in a paradigm shift in how we understand domestic violence. For women who kill their abusers, the movement attempted to incorporate their lived experiences of domestic violence into legal doctrine. Decades later, the battered women’s movement has generated criticisms such as stereotyping women, failing to take an intersectional lens, and over-reliance on the carceral system. These lessons from feminists in the United States present cautionary tales for other contexts, especially for unequal societies impacted by domestic violence, crime, and mass incarceration. Prompted by personal experiences inspecting prisons across post-apartheid South Africa, I explore why women in South Africa resort to killing their abusers and why these women end up incarcerated with lengthy sentences. I engage with how the law responds–and ought to respond–to women who kill their abusers. After outlining lessons from the battered women’s movement in the United States, I concentrate on South Africa’s transition from apartheid to democracy, with a particular focus on how the government instituted legal reforms to tackle violence against women. I explore the transitional period, noting that the post-apartheid government retreated from progressive forms of punishment, such as correctional supervision, and relapsed to punitive forms of punishment by establishing the mandatory minimum sentencing regime. I show how South Africa’s over-reliance on the carceral system, inspired by the United States’ tough-on-crime zeitgeist, inadvertently extends to women who kill their abusers. After acknowledging empirical gaps in data and uncovering a social movement, I critically analyze various cases involving women who kill their abusers in anticipation of, or after experiencing, cycles of abuse. I make three key findings: first, there is a lacuna in the criminal law regarding defenses for women who kill their abusers; second, no sentencing norms have been established; third, beyond legal doctrine, practical barriers hinder women’s access to the legal system. I argue that filling defense lacunas, establishing sentencing norms, and rectifying social barriers to access legal assistance are necessary, but not sufficient. I contend that the retributive criminal justice system is not tailored to deal with women who kill their abusers and propose, through a social justice lens, restorative and transformative justice mechanisms to hold women accountable. This paper lays the ground for a constructive dialogue for feminists in post-apartheid South Africa to engage with those in the United States and sets an agenda for further research, reform, and activism.