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The Stability Paradox: The Two-Parent Paradigm and the Perpetuation of Violence Against Women in Termination of Parental Rights and Custody Cases
Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable. This Article explores the legal system’s glorification of the nuclear family, its resistance to shifting away from the two-parent paradigm, and how this resistance creates a stability paradox and perpetuates violence against women and children. The harmful impact that the nuclear family paradigm has on families is further explored by an examination of the statutory constructs and judicial interpretations of termination of parental rights (TPR) and custody statutes in cases where a child is conceived as a result of rape or exposed to ongoing IPV. Cases are utilized to examine how courts have interpreted parental rights statutes where a child is conceived as a result of rape. Additionally, a hypothetical case is discussed to explore arguments that may be advanced in TPR cases where children are exposed to ongoing IPV. The Article finds that although there are inherent problems in enacting statutes to terminate parental rights in cases involving rape or IPV, legislation is also a necessary tool for survivors. Model legislation is proposed for termination of parental rights in cases where a child is conceived as a result of a sexual offense or when a child is exposed to ongoing IPV.A Feminist Economic Perspective on Contract Law: Promissory Estoppel as an Example
Economic analysis is a highly influential theoretical approach to contract law. At the same time, feminist analysis of contract law offers an important critical approach to the field. However, feminist economics, a prominent alternative approach to mainstream neo-classical economics drawing from both economic theory and feminist theory, has only been applied scarcely and sporadically to contract law. This Article seeks to bridge this gap and to apply the key features of feminist economics to an analysis of the doctrine of promissory estoppel. This Article uses promissory estoppel as an example to demonstrate a feminist economic analysis of contract law.“Champion Man-Hater of All Time”: Feminism, Insanity, and Property Rights in 1940s America
Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist. This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy.Reasonableness in Hostile Work Environment Cases After #MeToo
The #MeToo movement, a global social response to sexual harassment in the workplace, has turned the traditional approach to sexual harassment on its head. Instead of shielding perpetrators and discrediting survivors, employers, the media, and the public have begun to shift from presuming the credibility of the perpetrator to presuming the credibility of the survivor. But this upending of the status quo has occurred almost entirely in the social sphere—and the legal system, where survivors of workplace sexual harassment can seek remedies for the abuse they have suffered, is proving much slower to adapt. While our social presumptions are flipping to center the behavior of the accused instead of the accuser, the legal standard for workplace sexual harassment still focuses squarely on the victim’s reasonableness. In order to bring a legally actionable claim of sexual harassment, a victim must demonstrate that she was objectively and subjectively reasonable in believing that she was subjected to sexual harassment. Even if she succeeds in demonstrating this, if her employer had mechanisms in place to address sexual harassment, she must also demonstrate that her response to her harassment— such as reporting or not reporting the harassment through an employer’s complaint process—was reasonable. This Comment analyzes the effects of the #MeToo movement on federal courts’ definitions of sexual harassment under the existing legal standard. Since reasonableness is a socially-defined term, courts have plenty of room to incorporate shifting conceptions of sexual harassment into their jurisprudence—but many are remarkably slow to do so. While it is too soon to state definitively what effect #MeToo will have on sexual harassment law in the long run, this Comment should leave practitioners and scholars with a clearer picture of the direction circuit courts have taken since #MeToo began. LA Podcast of One’s Own
In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.Valuing All Identities Beyond the Schoolhouse Gate: The Case for Inclusivity as a Civic Virtue in K-12
Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance—for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school—an institution conceived primarily for the purpose of inculcating civic virtues thought necessary to foster solidarity in a pluralistic society—the intolerance has contributed to increased bias-based bullying, particularly toward transgender and gender diverse students. The devastating impacts of intolerance and exclusion on transgender and gender-diverse students include disproportionate rates of psychological distress, physical ailments, increased risk of homelessness, and other negative outcomes. As schools ponder how best to meet their needs and create safe and supportive learning environments, some parents have attempted to assert exclusive authority in this domain, challenging practices such as the adoption of gender-complex and LGBTQ-inclusive curricula as well as gender-affirming policies and practices. Parents allege that attempts by schools to accommodate transgender and gender diverse students infringe on their parental rights and the privacy rights of their cisgender children. While some schools have yielded to parental objections, others have resisted. This Article presents a compelling approach for schools both to address the challenges posed by objecting parents and to carry out their original mission of inculcating an appreciation for democratic norms—namely, civility, tolerance, and equality— through the adoption of gender complex and LGBTQ-inclusive curricula. Relying on both long-standing limitations on parents’ ability to exercise curricular control and research on the benefits of inclusive and comprehensive curricula, this Article makes the case that the educational purposes served by gender complex and LGBTQ-inclusive curricula more than justify any alleged burden on parents’ free exercise of religion as protected by the First Amendment or any alleged infringement upon parents’ substantive due process rights as protected by the Fourteenth Amendment. It posits that although both parents and the state share responsibility for shaping our youngest citizens, parental interests should be subordinate to the interests of the state in promoting proteophilic competence—an appreciation for diversity—through public education. This critical educational mission holds the promise of reaching beyond the scope of gender to include the inculcation of civic virtues essential to the health of an increasingly demographically diverse nation: Respect for “other-ness” and the development of skills needed for effective democratic self-governance.Symbolism Over Substance: The Role of Adversarial Cross-Examination in Campus Sexual Assault Adjudications and the Legality of the Proposed Rulemaking on Title IX
Traditionally, it has been understood that campus sexual assault adjudications need not take on the formalities of the justice system. Since the consequences faced in campus adjudications are considerably less than punishments faced in the justice system, less process is owed under the Due Process Clause. However, in September 2018, the Sixth Circuit reconceived what constitutes due process in campus sexual assault adjudications in the case of Doe v. Baum. The court found that in cases involving conflicting narratives at public universities, the accused or his agent must have the ability to cross-examine his accuser in the presence of a neutral factfinder. On November 29, 2018, the Department of Education took Baum several steps further in a proposed rulemaking on Title IX, mandating cross-examination in all campus sexual assault cases at both public and private universities. In this Comment, I argue that the proposed rulemaking on Title IX goes too far, misinterpreting the case law and the dictates of due process, while neglecting empirical evidence and foreseen adverse consequences. I argue that the proposed rulemaking misinterprets case law—most notably the recent Baum decision— by failing to appreciate important limits to the scope of compulsory cross-examination. I also unpack the vast negative implications of the proposed rulemaking, including drops in reporting rates and considerable institutional costs. As a result of these legal shortcomings and practical implications, I argue that the proposed rulemaking fails to pass the Mathews balancing test. As universities, the federal government, and courts determine how best to adjudicate campus sexual assault allegations, all efforts must be taken to minimize trauma to the victim, safeguard the rights of the accused, and protect the financial viability of educational institutions.The Sexual Misconduct of Donald J. Trump: Toward a Misogyny Report
The numerous allegations of sexual misconduct—unwanted, unwelcome, often aggressive sexual behavior—levied against Donald Trump merit attention and redress. Despite obstacles to civil remedies, there has been some litigation, but it has mostly been unsatisfactory. The many allegations reported in the media have not been amenable to judicial, legislative, executive, or political resolution. Women, including women who allege Trump committed sexual misconduct against them when they were minors, have generally not been afforded the remedies to which they are entitled. Because litigation and media accounts have proven inadequate to the task of addressing Trump’s sexual misconduct, there should be a government inquiry and resulting Report. Such a Report—a Misogyny Report focused on Donald Trump—would assist the nation in assessing and contextualizing the troubling and persistent allegations of his sexual misconduct. An inquiry and Report could provide a forum for considering each individual woman affected and as part of a pattern of Trump’s conduct. Further, an inquiry and Report could ameliorate the silencing of women—through isolation, threats, and nondisclosure agreements— and propose remedies to empower these women as well as other women. A Misogyny Report could also suggest specific correctives to obstacles in the path of bringing and completing litigation that could address the alleged sexual misconduct of Trump and ultimately of others. A government Misogyny Report initiated by Congress or some other governmental body could provide a much-needed reckoning.Putting the Fetus First — Legal Regulation, Motherhood, and Pregnancy
The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where the fetus has been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article will conclude that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.The Ground on Which We All Stand: A Conversation About Menstrual Equity Law and Activism
This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist, or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis. This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal changes. The authors then turn to conceptual issues about the relationship between menstrual equity and gender justice, as well as the difference between equity and equality. The essay concludes with consideration of the future of menstrual equity and menstrual justice work. The authors envision an expanded, inclusive group of individuals working for greater gender justice.