Monday, August 3, 2015
Three former members of the Phi Kappa Psi fraternity at the University of Virginia filed a lawsuit against Rolling Stone on Wednesday for defamation and infliction of emotional distress, saying the magazine’s discredited article on a campus gang rape had a “devastating effect” on their reputations.
The article, written by Sabrina Rubin Erdely and published last fall, set off a national discussion with its vivid account of a student’s assault, but it was retracted in April after it fell apart under scrutiny by journalists and law enforcement officials. A report by the Columbia Graduate School of Journalism uncovered an assortment of journalistic lapses, including a lack of skepticism and a failure to interview those accused of the assault.
On July 11, 2015, NY passed a yes-means-yes law for sexual intimacy on college campuses. Here's the story:
SYRACUSE, N.Y. -- What if you had to ask if it was okay
to put your hand on the other person's butt during foreplay? What if you had to
ask again before touching her breast? What if there was a law that said you had
to do this?
In New York, there is now on all college campuses. A bill signed into law July 7 requires both parties to obtain consent for sex and each nibble and caress that sometimes paves the way. The law applies only on college campuses. At its heart is a simple concept: instead of "No Means No," it's "Yes Means Yes."
It switches the dynamic of consent in what could be an empowering way. The hope is that by changing the power structure of the hook-up and making it law, college sexual assaults will decrease. The legislation, proposed by Gov. Andrew Cuomo and called "Enough is Enough," was passed unanimously by the state Legislature.
There have been critics, including this one:
"You look at the legal system we're building and it's incredible risky to hook up with someone you're not married to," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida.
"It changes the rules of the game. It gives the game rules," Lake said.
Perhaps Prof. Lake said more in the interview, stuff that wasn't included in the article. But what he does say makes no sense to me. There's no explanation for why the consent requirement would make things "incredibly risky." Nor do I see what is presumptively problematic about "chang[ing] the rules of the game" or giving the "game rules." (Is anyone else unsettled by the description of sexual intimacy as a "game"?) Sexual intimacy already has rules; it is already governed by norms for what is acceptable intimacy and what is rape. A proposal to change said rules--or, rather, make them more explicit--is not in and of itself objectionable.
An automatic legal pardon should be given to all men convicted under historical homosexuality laws without the need for families or individuals to apply to the government, the Labour leadership contender Andy Burnham has proposed. His pledge, following consultation with Sir Keir Starmer, the former director of public prosecutions and current Labour MP, means it would be possible to quash up to 50,000 convictions for acts that would be not be illegal today.
Burnham, who currently shares roughly the same number of constituency nominations as Jeremy Corbyn, said he will press prime minister David Cameron to make a relatively simple change to the law, but if he does not do so, it would form part of the first legislative programme of a Burnham-led government. The move comes two years after the royal pardon granted to second world war codebreaker Alan Turing.
Were there any women convicted the referenced law?
Sunday, August 2, 2015
Martha Chamallas (Ohio State), Theorizing Damage Through Reproductive Torts, Jotwell.
Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of “damage” (sometimes referred to as “injury” or “harm”) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, i.e., those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the U.S., controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm “can do more work than it is presently being made to do,” inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage.
This ambitious article by British tort theorist Nicky Priaulx aims to fill the void by theorizing about the normative dimensions of the concept of damage. Although she doesn’t use the f-word (feminism) until the end of the piece when she discusses just whose injuries tend to be addressed by tort law, her approach is clearly informed by feminist scholarship, as is evident by her starting point that the concept of damage is “imbued with ideals of social justice and equality [and] directed towards treating like cases alike.” (P. 2.) But Priaulx’s legal feminism is of a newer stripe: it is as much about harm to men as it is about harm to women and is interwoven into a universal theory about how to shape tort law to fit the social experience of injury.
Marital rape is a serious and frequently occurring form of domestic violence. Marital rape strikes at the heart of the marriage covenant, taking the promise, as in some Christian marriage ceremonies, to "cherish" the body of the spouse and turning into to a horror.
For most of human history, however, the marriage contract has meant the wife has "consented to sex" and thus sexual relations at any time are an entitlement by the husband. This is an extension of the idea that wives are the property of their husbands, as Diana Russell wrote in her 1990 landmark book Rape in Marriage.
Today, marital rape is now illegal in all 50 states and has been since July 5, 1993. Donald Trump's lawyer, Michael Cohen, has apparently just learned this.
Cohen exploded in response to an article in The Daily Beast that cited a 22 year-old allegation that Trump raped his former wife, Ivana. Ivana Trump's assertion of "rape" came in a deposition that was part of the Trumps early '90s divorce case, and revealed in the 1993 book Lost Tycoon: The Many Lives of Donald J. Trump.
Cohen said, "You cannot rape your spouse."
Actually, of course, you can. The legal definition of marital rape varies within the United States, but it is generally defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent (Russell, 1990).
Jill Hasday (Minnesota), Wash Post, Donald Trump's Lawyer was Right: In Some Places, Raping Your Wife is Still Treated Like a Minor Offense
This week, Donald Trump’s lawyer Michael Cohen reportedly said: “You cannot rape your spouse. And there’s very clear case law.” The comment ricocheted around the Internet and was denounced by scores of critics, who accused Cohen of misstating the law. He’s since apologized.
Unfortunately, Cohen’s broad declaration was less wrong than we’d like to think. All states prosecute some forms of marital rape in theory. But in reality, statutes criminalizing marital rape are often inadequate. They also remain dramatically and disproportionately under-enforced.
This injustice has deep historical roots. For centuries, husbands were absolutely exempt from criminal prosecution for raping their wives. In the eyes of the law, marital rape was a legal impossibility.
A lawsuit brought by a pregnant Alabama inmate seeking access to an abortion was dismissed by a federal judge on Friday after the woman said she had changed her mind and would carry the child.
The action essentially ended a legal clash that had seen the woman go to federal court to assert her right to an abortion, and the county’s district attorney go to an Alabama court to strip the woman of her parental rights over the fetus to block the abortion.
But Alabama has brought efforts to restrict abortion to a whole new level, as the state tried this week to stop a woman from getting an abortion by terminating her parental rights... to her fetus.
District attorney Chris Connolly filed a petition to terminate an incarcerated woman’s parental rights for the sole purpose of stopping her from ending her pregnancy. The woman, known as Jane Doe, had filed a lawsuit in order to be granted a furlough to obtain the procedure. Connolly told a local paper, “Our position, if the termination for parental rights is granted, is that [she] would not have standing to obtain the abortion.” He’s arguing that Doe’s parental rights should be rescinded because she is facing charges of chemical endangerment of a child.
Friday, July 31, 2015
Young men today have aspirations of being hands-on fathers as well as breadwinners — supportive husbands who also do dishes.
But as they enter that more responsibility-filled stage of life, something changes: Their roles often become much more traditional.
Millennial men — ages 18 to early 30s — have much more egalitarian attitudes about family, career and gender roles inside marriage than generations before them, according to a variety of research by social scientists. Yet they struggle to achieve their goals once they start families, researchers say. Some researchers think that’s because workplace policies have not caught up to changing expectations at home.
New research by the Law Society of Scotland shows a 42 per cent gender pay gap among its members, the lawyers’ body has revealed.
The figure was reached by comparing average full-time and full-time equivalent (for part time/flexible hours employees) salaries for women and men at all career stages.
Janet Hood, convenor of the Law Society’s equality and diversity committee said the gap “reflects very badly on what is otherwise a modern and forward-thinking profession”.
She added: “There are many and nuanced reasons why the gender pay gap exists, and the legal profession is certainly not alone – figures from November 2014 show that the overall UK gap was 9.4 percent.
“However we have seen little change in the past decade compared to other professions such as accountancy or dentistry and it is a major concern that such a substantial gap persists 45 years after the UK Equal Pay Act and 10 years of Law Society equality research and promoting good practice within the legal profession.”
Ms Hood said the issue could not be ignored “for either ethical or business reasons” and there should be “no limit” set on the talent and ambition of women in the sector.
The referenced report by the Law Society of Scotland is available here.
Wednesday, July 29, 2015
Unfortunate that I had missed this story earlier this month:
A U.S. law that treats mothers and fathers differently in determining whether their foreign-born children may claim U.S. citizenship is unconstitutional, a federal appeals court ruled on Wednesday, four years after the U.S. Supreme Court split 4-4 on the issue.
The 2nd U.S. Circuit Court of Appeals in New York said the statute applied "impermissible stereotyping" in imposing a tougher burden on fathers.
The law requires unwed fathers who are U.S. citizens to spend at least five years living in the United States - a 2012 amendment reduced it from 10 years - before they can confer citizenship onto a child born abroad, out of wedlock and to a partner who is not a U.S. citizen. For unwed U.S. mothers in the same situation, the requirement is only one year.
Wednesday's ruling is likely to have a limited effect in terms of the number of people it applies to, but the decision addresses important principles regarding laws that explicitly treat the sexes differently, legal advocates said.
**the story continues here.
So reads the headline from an Atlantic article. The contents thereof read:
Gay Americans can now get married in the morning and then, in the afternoon, just for being gay, their employers can fire them. Is doing so legal? Up until last week, the answer was yes for Americans living in the 28 states without explicit bans on workplace sexual-orientation discrimination. But an important rulingfrom the Equal Employment Opportunity Commission (EEOC) means that courts in those states are now more likely to say that such discrimination is illegal, and that gay Americans are already protected from such discrimination under existing law.
Related articles include:
Tuesday, July 28, 2015
National Jurist, Year of the Female Dean
Call it the year of the women dean. Eleven of the nation’s 28 new deans this summer are female, an unprecedented number. It brings the total number of female deans at the nation’s ABA-accredited law schools to 59, or about 30 percent, which is an increase of 21 percent from 2008.
While the number still pales in comparison to the number of female J.D. students, which is 47 percent, the dean numbers are inching closer to the percent of female full-time law faculty, which is 34 percent.
The day is still etched in the Afghan judge’s mind more than a decade later — when she was in Washington, when she met with Supreme Court justices Sandra Day O’Connor and Ruth Bader Ginsburg. She recalls feeling awed and barely present, her thoughts instead flittering back to her country.
“I was asking myself whether we would ever have a similar situation in Afghanistan,“ said Anisa Rasooli, “where a woman judge would become a member of the Supreme Court.”
Last month, Rasooli came close — only to be let down by other women.
Afghanistan’s U.S.-educated president, Ashraf Ghani, had nominated Rasooli to become the country’s first female Supreme Court justice, carrying out an election promise. It was a landmark choice in a country where only 14 years ago, the Taliban Islamist regime bannedwomen from work, education and other parts of public life. They were forbidden from even leaving their homeswithout a male relative and a head-to-toe burqa.
Activists here and abroad were ecstatic. A woman on the bench of the country’s highest court could be an antidote to a growing concern: the erosion of gains in women’s rights as the Western military and aid footprint shrinks.
But then Afghanistan’s conservative establishment asserted itself. Influential Islamic clerics, as well as some male lawmakers, declared that a woman was not fit to try serious criminal cases. Their protests illustrated a continuing struggle pitting age-old traditions and customs against efforts to shape Afghanistan into a modern society.
Still, there were 69 female members in the Afghan parliament, which had to ratify Rasooli’s appointment, providing good odds for her to make history. But when the body met to vote this month, 23 female lawmakers were absent. Of 184 lawmakers present, 88 voted for her in the secret ballot — nine too few.
In case you needed a reminder about the power of law to individuals' lives, here's the story of my colleague after Obergefell.
Nancy Reeves acknowledged there aren’t many “tangible benefits” to adoption at this point, but it’s not any less meaningful.
“We have always been a family. We have always known it, and everyone who matters to us on a personal level has always treated us as a family,” she said.
“That said, when society tells you that you’re not a real family, when ‘family values’ expressly devalues your family, it is almost indescribable to finally have our 34-year marriage, and Lynn’s 25-year relationship with Emma legally recognized. It is as if a weight I didn’t even know I was carrying has been lifted off my shoulders,” Reeves said.
Monday, July 27, 2015
President Obama is presently traveling through Africa. Recently, he gave a speech in Kenya condemning the nation's refusal to protect the rights of its gay citizens. From the NYT:
NAIROBI, Kenya—Widespread celebration of President Barack Obama’s visit to a country teeming with national pride over an American leader considered a local son was briefly overshadowed Saturday by a public disagreement with his Kenyan counterpart over gay rights.
In an awkward moment of tension, Mr. Obama condemned Kenya’s treatment of gays and lesbians as “wrong—full stop” while standing alongside Kenyan President Uhuru Kenyatta during a joint news conference.
The president, whose personal story has deep resonance in Kenya, even used himself as an example of why discrimination on the basis of gender, race or sexual orientation should be illegal.
“As an African American in the United States I am painfully aware of what happens when people are treated differently under the law,” said Mr. Obama, whose father was born and raised in Kenya.
To no avail......
But none of it swayed Mr. Kenyatta, who responded by saying his country does not share the U.S. president’s view.
“For Kenyans today the issue of gay rights is really a non-issue,” Mr. Kenyatta said, stressing matter-of-factly that economic and security concerns are of higher concern.
Gavin Grimm sat quietly in the audience last November as dozens of parents at a school board meeting in Gloucester County, Va., demanded that he be barred from using the boys’ restrooms at school. They discussed the transgender boy’s genitals, expressed concern that he might expose himself and cautioned that being in a men’s room would make the teenager vulnerable to rape. One person called him a “freak.”
When Gavin, 16, got his turn at the podium, he was remarkably composed. “I didn’t ask to be this way,” Gavin said. “All I want to do is be a normal child and use the restroom in peace.”
On Monday, Judge Robert Doumar of Federal District Court in Virginia is scheduled to consider whether the school board’s decision to prohibit Gavin from using the male restroom is unlawful discrimination. The case addresses one of the main unresolved battles in the fight for transgender equality.
A favorable decision for the student would be the first time a federal court has ruled that refusing transgender students access to proper restrooms is discriminatory. Any other outcome would reinforce cruel policies that deny dignity to some of the most vulnerable students and subject them to more bullying and stigmatization.
The headline is from a New Republic article, whose contents read in part:
Young women have no illusions about how hard it is to be a working mother in America. The New York Times highlights recent evidence that millenial women are less likely than prior generations to expect careers equal to their husbands.
The rest of the world continues to treat mothers better: India’s high court ruled that mothers who use surrogates are entitled to maternity leave. Meanwhile, Ireland’s government is considering extending its paid parental leave policy from six months to one year, which can be shared by both parents.
IBM introduces Uber for breast milk: Nursing mothers who work for IBM will now be able to use an app to ship their breast milk back home while travelling for business.
Day care can now cost more than college tuition. Working parents can expect to pay an average of $11,000 a year for a spot at an infant day care center ($16,549 if you’re unlucky enough to live in Massachusetts), more than average tuition at a four-year public college.
The art of inequality: An art gallery in New York is exhibiting a mural-sized infographic by Portugese painter Rigo 23 depicting the last eight countries on earth without mandated paid maternity leave—the U.S. is right in between Tonga and Nauru.
Saturday, July 25, 2015
Suffragette - on the British women's suffrage movement starring Meryl Streep, Carey Mulligan, and Helena Bonham Carter
She's Beautiful When She's Angry - on the second-wave US feminist movement
Something extraordinary happened Thursday to advance fairness and equality in the United States. Members of Congress introduced legislation to amend the landmark Civil Rights Act of 1964 to embrace a more robust vision of equality.
The bill -- aptly named the Equality Act -- would amend existing law to explicitly prohibit discrimination based on sexual orientation and gender identity and expand protections against discrimination for women. The bill would also extend the reach of protections against discrimination by businesses and stop the use of religion to discriminate. It's historic -- and it may also be a surprise because many people think such discrimination is already illegal
Friday, July 24, 2015
A recent study at the U of Washington confirms what every guy knows: men exaggerate about how great they are. All men do this, I suspect, to varying degree.
If a man feels like his masculinity is being questioned he is more likely to lie about his physical and mental traits.
Researchers have found that men will overcompensate by lying about their height, how athletic or they are and how many relationships they have had in order live up to the male stereotype.
In contrast, men who don’t feel threatened are more honest when quizzed about their physical appearance or past.
Male students at Stanford University were told they were participating in research on how exertion impacts decision-making and were asked to squeeze a handheld device with each hand.
Researchers marked their scores on sheets that showed fake results, representing 'typical' male and female results.
Participants were scored either in the middle of the female or the male curve, suggesting that their grip was either weak or average.
They were then asked to fill out a questionnaire asking about their height, number of previous relationships, various personality traits and their interest in products that skewed male or female, along with 'distracter questions' about things such as their college major.
Associate Professor Cheryan said the consistent exaggeration about height among the group who thought they scored lower was particularly surprising.
'Height is something you think would be fixed, but how tall you say you are is malleable, at least for men,' she said.
The findings, researchers said, underscore the pressure men feel to live up to gender stereotypes and the ways in which they might reinstate a threatened masculinity.