In Print
Filter
Post List
Liberating Sexual Harassment Law
Sexual harassment law and the proposed solutions to that paradigm’s deficiencies teach a disheartening and peculiar lesson to women and gender performance minorities: “You may be disadvantaged at work because of your gender or your gender performance nonconformity. Discrimination against you is okay.” This albatross has inexplicably burdened sexual harassment law for the more than thirty-five years since it emerged as a redressable form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. This Article coherently explains the reason for it. It makes a simple claim: Sexual harassment law has failed to eradicate workplace gender discrimination, not because that goal is beyond its capacity, as is frequently claimed, but because it is beyond its scope. Sexual harassment law might have changed workplace relations (for the better), but it has not made sexual harassment an anomaly because it was not meant to do so. To accomplish its task, the Article reframes the intractability of problems within the sexual harassment paradigm by viewing the law as an educative process structured by a clear curriculum. Drawing together educational literature and sexual harassment discourse, it (1) maps how sexual harassment law conforms to the essential elements of the dominant curriculum model; (2) shows how existing critiques function within that model; and (3) proposes an alternative critique of sexual harassment law that pinpoints the main deficiency of sexual harassment in its conformity to a educational model that serves to maintain the status quo and inhibit, rather than promote, liberatory social change. On this foundation, the Article argues that the challenge is to create a “dialogical” method for law in which the beneficiaries of sexual harassment law are empowered to determine what behaviors serve to entrench their marginalization and, thereby, define their world and the change they want to see in it. Through its reframing of sexual harassment law, this Article liberates sexual harassment law from its reified limitations, creating space for a legal revolution that will liberate workers.DeBoer v. Snyder: A Case Study In Litigation and Social Reform
On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.Title IX and Social Media: Going Beyond the Law
The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it has prompted an unprecedented shift in the cultural landscape. In this Note, I will examine the evolution of Title IX as a means to combat sexual harassment and sexual assault on college campuses.A Joyful Heart Is Good Medicine: Sexuality Conversion Bans in the Courts
Led by California and New Jersey, states have begun to ban Sexual Orientation Change Efforts (SOCE) for minors. States have targeted SOCE, also called ‘gay conversion therapy,’ by regulating state licensure requirements for mental health professionals. Conservative legal groups have challenged these bans in federal court, alleging a variety of constitutional violations sounding in the First and Fourteenth Amendments. More specifically, these legal groups propose theories claiming that the bans infringe upon individuals’ freedom of speech, free exercise, and parental rights. In this Note, I survey the history of these bans, as well as court decisions that have rejected constitutional challenges to the laws. This Note then proposes and rejects another potential theory challenging the bans under the Due Process Clause’s right to privacy. Finally, this Note proposes that this new wave of state legislation reflects a wider shift in the LGBT community’s priorities, tactics, and messages.How Feminist Theory Became (Criminal) Law: Tracing the Path to Mandatory Criminal Intervention in Domestic Violence Cases
Our popular understanding of domestic violence has shifted significantly over the past forty years, and with it, our legal response. We have moved from an interpretation of domestic violence as a private relationship problem managed through counseling techniques to an approach that configures domestic violence first and foremost as a public crime. Mandatory criminal intervention policies reflect and reinforce this interpretation. How we arrived at this point, and which understanding of domestic violence facilitated this shift, is the focus of this Article. I argue that the move to intense criminalization has been driven by a distinctly feminist interpretation of domestic violence, what I call the feminist understanding of domestic violence as patriarchal force. I demonstrate how this understanding grew out of a feminist rejection of alternative theories of domestic violence, specifically psychological and “family violence” theories, and was informed by earlier radical feminist theorizing on rape. I offer this account as a contribution to the ongoing feminist debate over mandatory policies, suggesting that for feminists looking to reform the current system, a different interpretation of domestic violence may be a necessary starting pointAborted Emotions: Regret, Relationality, and Regulation
Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.” These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with different lived experiences of abortion. Finally, these portrayals contribute to the silence and stigma surrounding abortion. This Article contends that regret is more suggestive of women’s deep reflection on the abortion decision and respect for the fetal relationship than of flawed decision making—signifying autonomy, not victimization. It explains why we view regret as an outcome of deficient decision making, how this conception misrepresents regret and confuses it with remorse, and why it prompts liberals and conservatives alike to devalue women’s autonomy. This Article charts a course for reconceptualizing and ultimately decentering regret by discussing several common missteps in current constructions: (1) conflating regret with psychopathology, (2) confusing regret with remorse, (3) confining regret to the maternal-fetal relationship and women’s self-commitment, (4) linking regret to deficient decision making, and (5) coupling regret and moral culpability. Finally, this Article discusses how correcting these errors reprioritizes autonomy and profoundly impacts abortion regulation.Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws
Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns that he is not the child’s biological father and who wishes to challenge the validity of the acknowledgment must navigate a difficult process for relief. The very act of signing an acknowledgment may subsequently prevent him from offering any scientific evidence of the absence of a biological connection to the child. As a result, he may be obligated to pay child support for years on the basis of that erroneous paternity acknowledgment, and a parent-child relationship may be imposed even if it is not in the child’s best interests. Using the District of Columbia as a model to highlight the need for procedural reform, this Article examines the federal and D.C. legislation that created voluntary acknowledgments of paternity as well as the process for either rescinding or challenging their validity. The Article then analyzes the practical implications of these processes and discusses why the presumptive weight of the acknowledgment, a conclusive presumption of paternity, is problematic. In particular, the Article questions the need for a conclusive presumption of paternity, a difficult evidentiary burden for a challenger to overcome, and whether the conclusive presumption of paternity runs afoul of constitutional protections. Finally, the Article offers possible solutions to improve the establishment process.Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited
The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem of the “victimless” domestic violence prosecution that would extend beyond the domestic violence context. An approach that views the Confrontation Clause as an accuser’s obligation, and focuses on the values of honor, courage, and respect, while simultaneously taking a gender-conscious approach in defining those values, will produce a body of jurisprudence that can satisfy the courts, academics, and advocates alike.Morning-After Decisions: Legal Mobilization Against Emergency Contraception in Chile
In Chile, the Criminal Code bans all forms of abortion. Furthermore, the Constitution—drafted and enacted by the Military Junta led by General Augusto Pinochet—was inspired by a conservative version of Catholic natural law championed by prominent Chilean constitutional law scholars. This Article traces the emergence, development, and ultimately the defeat of a persistent legal mobilization driven by natural law-inspired litigants, politicians, and scholars against levonorgestrel-based emergency contraception, also known as the morning-after pill. In their decade-long efforts at legal mobilization, these natural law litigants used every tool of the Chilean legal system to challenge the legality and the constitutionality of the morning-after pill. This case of legal mobilization demonstrates both the strengths and the weaknesses of conservative political and religious networks in Latin America, and it demonstrates both the potential and limitations of litigation-led policymaking in civil law countries.An Incomplete Revolution: Feminists and the Legacy of Marital-Property Reform
As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history of the role of women, both feminists and antifeminists, in revolutionizing the law of marital property in the United States. Moreover, as the Article will demonstrate, women's groups became involved and influential in the divorce debate because of, not in spite of, the ERA. In the early 1970s, women's groups like the National Organization for Women (NOW) did not focus on family law issues, be it in the context of the ERA or otherwise. However, between 1970 and 1975, anti-feminist organizations like STOP ERA and the Happiness of Women campaigned against the Amendment by highlighting its effects on divorce reform. By the late 1970s, NOW responded by campaigning for "pro-homemaker" divorce reforms: measures such as those calling for equal or equitable distribution of marital property and laws recognizing the contributions of homemakers in the division of marital property. These reforms themselves represent a revolution in divorce law. Equitable property division, rare in 1970. became the norm in all but ten states by the mid-1980s. Whereas no states had property-division rules recognizing the contributions of homemakers in 1968, 22 states had adopted such a policy by 1983. The Article also offers new perspective on the flaws in current marital-property rules. Since discussion in the 1970s focused so heavily on the value homemakers contributed to marriage, the laws produced in that period did not adequately address the human capital brought to a marriage by the wage-earning husband. The history of marital-property reform makes apparent the need for statutes and judicial decisions that define marital property more expansively. The problem with current rules is not, as scholars have argued, that divorce reforms failed to consider women's needs. Instead, as we shall see, the problem was that women involved in divorce reform did not fully consider how those needs could best be addressed.