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Domestic Violence and the Jewish Community
In Part I of this Article, Guthartz defines the problem of domestic violence as it relates to the Jewish community. Specifically, Jewish texts and history and community understanding and exposure, that contribute to Jewish domestic abuse are examined. In Part II, the author explores Jewish solutions to domestic violence by focusing on religious remedies, community pressure, and the use of civil law. In this Article, it is submitted that it is only through an understanding of the uniqueness of "Jewish" domestic violence by domestic violence and law enforcement organizations, coupled with an understanding about domestic violence within American society by rabbis and Jewish community leaders, that domestic violence in the Jewish community will be eradicated.Restructuring the Marital Bedroom: The Role of the Privacy Doctrine in Advocating the Legalization of Same-Sex Marriage
Part I of this paper examines the reasons underlying queer rights advocates' reluctance to insert privacy arguments into the case for legalizing same-sex marriage. Part II illustrates that, due to such disinclination, advocates transformed notions of privacy into concepts of liberty. Part III argues that, after the Lawrence decision, proponents of same-sex marriage can and should use privacy-based arguments to fortify their claims.Keynote Address: Reproductive Rights Under Siege: Responding to the Anti-Choice Agenda Conference. University of Michigan Law School. March 5, 2004
It is great to be here with a new generation that is advocating for reproductive rights and responding to the extraordinary anti-choice agenda we currently face. I am not going to talk about that agenda directly tonight because I know that you know it. You know about the judicial appointments, you know about the parental consent laws, you know about the denial of funding for low-income women, you know about the global gag rule.The Use of Human Rights Discourse to Secure Women’s Interests: Critical Analysis of the Implications
This article highlights the significant theoretical constraints of universalism, the tendency of human rights advocates to ignore the underlying cause of rights violations, as well as problems associated with the concept of and informal hierarchy between rights. The article suggests that there are certain circumstances in which INGOs that rely primarily on human rights language in their advocacy efforts may wish to supplement their analysis with explicit reference to feminist legal theory in order to more effectively secure women's interests globally. These ideas will be developed with ongoing reference to the recent and successful campaign initiated by Nepali women to have abortion legalized. The campaign was supported by the Center for Reproduction Law and Policy (CRLP) (New York) (now the Center for Reproductive Rights), in partnership with the Forum for Women, Law and Development (FWLD) (Katmandu). CRLP became involved with the domestic campaign to legalize abortion in 2001, largely to draw attention to the massive human rights violations arising out of its continued criminalization. Abortion was legalized by Nepal's legislature in March 2002. The Nepal example will illustrate more concretely the way in which INGOs tend to focus on human rights analysis when advocating for women's rights globally.Sex Determination for Federal Purposes: Is Transsexual Immigration Via Marriage Permissible Under the Defense of Marriage Act?
Part I describes the federal immigration benefits available to spouses of most U.S. citizens and presents the historical and contemporary obstacles that prohibit these benefits from being extended to gays and lesbians. It then addresses DOMA's failure to define "opposite sex," and hence DOMA's failure to indicate whether post-operative transsexuals, or their partners, should be given "spousal status" under current U.S. immigration law. Part II examines traditional and modern notions of sex. It traces state legal approaches to transsexual marriage and ultimately disentangles the formalistic rhetoric that obfuscates the reasoning in those cases. In particular, Part II focuses on a 2002 Kansas case that attempts to make sense of the conflicting positions states have taken with respect to transsexual marriage. That case draws a misleading distinction between sex determination "as a matter of law," and sex determination "as a matter of fact," and hence adds to, rather than detracts from, the confusion. Part II demonstrates that sex determination in the absence of a legislative standard is inherently a mixed question of law and fact." Courts addressing transsexuals must establish sex-determination standards to define as a matter of law what it means to be male or female, and then must determine as a matter of fact whether post-operative transsexuals are male or female under those standards. Part III addresses transsexual immigration via marriage. Looking behind the veil of formalism pierced in Part II. Part III takes a comparative law approach to transsexual sex determination. It examines the positions that federal courts, state courts and legislatures, foreign governments, and the European Court of Human Rights have taken on the underlying determinations that unify the transsexual marriage cases brought forth in Part II.Feminist Voices in the Debate over Single-Sex Schooling: Finding Common Ground
This article examines the deep divide within feminist ranks with an eye toward proposing a constructive and essential role for feminist understandings as single-sex schooling inches its way toward legal acceptability and into the mainstream of educational reform. In doing so, the forces that have shaped competing perspectives on women's equality are examined, especially disagreements over sameness and difference. In the end the article looks to the Court's decision in United States v. Virginia as a road map for feminists to follow in reaching common ground on the approach, despite seemingly profound ideological differences among them.Copyright Infringement, Sex Trafficking, and Defamation in the Fictional Life of a Geisha
Memoirs of a Geisha has sold and made millions for Arthur Golden since 1997. This is his first novel, and it has earned him worldwide acclaim. A feature film version directed by Steven Spielberg is in the works. The book is translated into more than twenty languages. This article uses the book and the legal controversy that ensued after its publication to ask, and hopefully answer, two questions: First, is the geisha tradition as described by Golden in his fictional biography a variant of sex trafficking and sexual slavery which, despite possible cultural justifications, should be abolished by law? Second, did Iwasaki's lawsuit have any merit? To answer these questions, this article will proceed in accordance with structuralist and post-structuralist literary critical traditions by looking first at the text itself and then its context, subtext, and post-text in order to explain the plaintiffs pre-text for suing. The article will analyze the narrative structures and style of the text; the legal and historic context of the novel; the legal issues hidden in the subtext which include sex trafficking, feminist legal theory, and the role of cultural relativism as a justification for the geisha tradition; the post-text which are the merits, if any, of Iwasaki's legal claims; and finally, the pre-text, or why the real geisha sued Arthur Golden and his publishers.Advocacy in Whispers: The Impact of the Unsaid Global Gag Rule Upon Free Speech and Free Association in the Context of Abortion Law Reform in Three East African Countries
In 2001, President George W. Bush restricted the participation in democratic processes for non-governmental organizations (NGOs) abroad by reinstating a policy restricting family planning funding granted by the United States Agency for International Development (USAID). The restriction sharply curtailed the ability to speak and to associate freely for organizations working to preserve women's health and lives. For this reason, I refer to the restriction as the Global Gag Rule (GGR). Organizations in Uganda, Ethiopia, and Kenya had begun to identify the problems associated with their countries' restrictive abortion laws. In these three countries, as elsewhere in the world, illegal abortions are unsafe and a major cause of the high rates of maternal mortality and morbidity. By 2001, efforts toward abortion law reform were underway. In 2002, with the institutional support of the Center for Reproductive Rights, I traveled to east Africa to study the effect of the GGR upon the free speech and free association of advocates of access to safe abortion. Uganda, Ethiopia, and Kenya were selected because, in all three countries, stakeholders in the reproductive health of women were working to bring information to lawmakers about the detrimental impact of a restrictive abortion law. Additionally, prior to my departure, I had access to information about stakeholders in these countries. In Uganda, Ethiopia, and Kenya, the ability of stakeholders to communicate with lawmakers is restricted by the GGR.The Marriage Dower: Essential Guarantor of Women’s Rights in the West Bank and Gaza Strip
This Article evaluates the impact that eliminating or reducing the marriage dower would have on the well-being of Muslim women in the West Bank and Gaza Strip. Although Palestinian women's rights organizations seek to eliminate dower on the grounds that it is a "burdensome custom" that is "inconsistent with the intifada's stated goal of improving women's status," in fact, the interaction between dower and other laws relating to marriage and divorce is such that the majority of women would be materially harmed by its discontinuance. Therefore, while the movement to eliminate dower may benefit the financially secure upper class women at its vanguard, it results in financial insecurity and impoverishment for poor and particularly, rural women. This Article, therefore, recommends that women's movements in Palestine take greater heed of the class-differentiated effects of dower, and protect the right of poor and rural women to their only means of financial security.From Presumed Fathers to Lesbian Mothers: Sex Discrimination and the Legal Construction of Parenthood
In Part I of this article, Dalton briefly reviews the way legal scholars commonly define sex-based discrimination, particularly as it pertains to issues of reproduction. Part II is a brief historical review of legal constructions of parenthood. In Part III, Dalton examines two legal concepts: retroactive legitimation and presumed fatherhood. Both concepts were introduced in 1872 and each independently encouraged judges to think of fatherhood as consisting of two distinct spheres, the biological and the social. She then traces the legal development of these concepts through a series of presumed father, retroactive legitimation, and putative father cases. In Part IV Dalton extends the analysis to include legal constructions of motherhood by introducing lesbian co-mother and female surrogacy cases into the mix. This allows the author to directly compare legal constructions of motherhood to legal constructions of fatherhood. In Part V Dalton discusses gendered aspects of the legal institution of marriage and the complicated role marriage plays in legal constructions of parenthood. In Part VI she delves into several recent lesbian co-mother and surrogacy cases to explore how some judges are attempting to expand legal constructions of motherhood in ways that would bring them more on par with legal constructions of fatherhood. And finally, in Part VII, Dalton offers final remarks and concludes that judges' inability to conceive of a gender neutral subject, at least when considering issues related to human reproduction, creates serious legal disadvantages for virtually all women. As the analysis below makes clear, the resulting discrimination is grounded in gendered constructions of parenthood and not, as many courts conclude, in the biological differences between men and women.