Thursday, April 3, 2014
Wednesday, April 2, 2014
Bethany Berger, UConn Law, has uploaded "In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl." The article is forthcoming in the Florida Law Review and the abstract reads:
On June 25, 2013, the Supreme Court decided Adoptive Couple v. Baby Girl, holding that the Indian Child Welfare Act did not permit the Cherokee father in that case to object to termination of his parental rights. The case is ostensibly about a dispute between prospective adoptive parents and a biological father. This Article demonstrates that it is about a lot more than that. It is a microcosm of anxieties about Indian-ness, race, and the changing nature of parenthood. While made in the name of the child, moreover, the decision supports practices and policies that do not forward and may even undermine children’s interests.
Drawing on published and unpublished court records and testimony, this Article reveals that the Court’s portrayal of the facts of the case was wrong. Instead of a deadbeat dad acting as a spoiler in the adoption of the daughter he had abandoned, the birth father sought to parent his daughter from the moment he learned his fiancé was pregnant and was initially prevented from learning of the adoption plan by the actions of the parties and their attorneys. The decision distorted the law as well, doing violence to long-accepted interpretations of the statute. Why did the Court mischaracterize the facts and the law? The Article examines the narratives of the interests of the child, racial color-blindness, and even women’s rights that surrounded the case to reveal that the decision in fact rested on racialization and colonialism of Indian people, condemnation of poor single mothers, economic interests of private adoption facilitators, and the class divides in modern paths to parenthood.
A Sydney resident who fought to be legally recognised as being of non-specific sex has hailed a High Court ruling that New South Wales laws do permit the registration of a category of sex other than male or female.
Norrie was born male but had a sex change and now does not identify as specifically male or female.
After a four-year legal battle, Norrie has won the right to be legally recognised as being of non-specific sex.
She used to wear a burqa in public, but now has had her face printed on thousands of ballot pamphlets for the provincial council in Wardak. She campaigns in person in a district, Saydabad, that is thick with Taliban.
The woman in question is 28 year-old Mariam Wardak's mother, who is running for public office in Afghanistan. More:
There is finally the sense here, after years of international aid and effort geared toward improving Afghan’s women’s lives, that women have become a significant part of Afghan political life, if not a powerful one.
On the other hand:
But their celebratory moment is also colored by the worry that those gains could so easily be reversed if extremists come back into power, or if Western aid dwindles. Those concerns have added urgency to this campaign season for women who are fighting to make their leadership more acceptable in a still deeply repressive society.
Tuesday, April 1, 2014
Deseriee Kennedy (Touro) has posted From Collaboration to Consolidation: Developing a More Expansive Model for Responding to Family Violence, 20 Cardozo J. L. & Gender 1 (2013)
The Article finds evidence to suggest that there has not been significant improvement in the incidence or severity of family violence and more radical responses to family violence are needed. It proposes a decisive move from collaboration and communication to a consolidation of domestic violence and child welfare agencies that would fund domestic violence agencies to provide services to families experiencing domestic violence except in families where the harm or threat of harm to the children is severe. This approach would require child welfare agencies to refer all but the most serious cases of family violence to domestic violence agencies, which would be funded to respond to family violence issues holistically.
From NYT, Women Charge Bias and Harassment in Suit Against Sterling Jewelers. Twelve women filed
suit against Sterling Jewelers, parent of 12 chains in the United States, including Jared the Galleria of Jewelry and Kay Jewelers. Sterling, the largest retail jewelry company in the United States by sales, is accused of gender discrimination in its pay and promotion practices since 2003.
And the accusations go further, portraying a workplace where sexual harassment and vulgar behavior left some plaintiffs feeling violated.
If the class is certified, about 44,000 current and former Sterling sales employees, from store managers to sales associates, would be offered the chance to join the plaintiffs’ case, seeking back pay and punitive damages.
While the group would not be as big as the 1997 gender case against Publix Supermarkets, which included more than 100,000 women and was settled for $81.5 million, it would eclipse the 2004 gender case against Boeing, which included 29,000 women.
Even if the women are certified as a class, they must pursue their case against Sterling privately. According to company policies, employees must deal with cases through arbitration, not the courts.
Law teaching conferences on pedagogy often fail to really offer much new, but this conference looks quite promising, Igniting Legal Education. Interesting talks include "Why Law Schools Must Change," flipping the classroom, experiential learning, learning theory, 21st century competencies, simulations, and more.
Monday, March 31, 2014
The five reasons were compiled by Rolling Stone, based on interviews with LGBT advocates. The reasons are not especially surprising, but one--Reason #3--is perhaps worth mentioning because it highlights how business and commerce can be an important partner (or means) in the cause of civil rights:
3. States are realizing that being gay-friendly is good for business.
The Maryland House of Delegates on Thursday approved a bill banning discrimination on the basis of gender identity, positioning the Old Line State on track to join 17 others and the District of Columbia in protecting the rights of transgender individuals.
Senate Bill 212, otherwise known as the Fairness for All Marylanders Act of 2014, made it through the Democratic-controlled House by a vote of 82-57, after more than two hours of floor debate. It passed the state Senate earlier this month, 32-15, and now heads to the desk of Democratic Gov. Martin O’Malley for signature.
It turns out that the research suggesting that teenagers and pornography are a hazardous mix is far from definitive. In fact, many of the most comprehensive reports on this subject come to conclusions that amount to “we can’t say for sure” shrugs.
Based on a recent report commissioned by the British Prime Minister, the results:
...the report found a link between exposure to pornography and engagement in risky behavior, such as unprotected sex or sex at a young age. But little could be said about that link. Most important, “causal relationships” between pornography and risky behavior “could not be established,” the report concluded.
Saturday, March 29, 2014
As part of a statewide program to spotlight the Violence Against Women Act, Duquesne University School of Law is pleased to present a half-day program on the 20-year history of this Act, providing both a domestic and international focus.
The U.S. Supreme Court has heard several cases that directly or indirectly involve victims of gendered violence. Most of these cases have been the result of either legal issues raised under VAWA or increased state involvement as encouraged by VAWA. These cases have had mixed results. On occasion, the Court has recognized state complicity in the perpetration of gendered violence and how the law might impact those in abusive relationships. But more frequently, it has ignored or dismissed victims and has refused to recognize any affirmative state obligations to end gendered violence. These later cases contrast sharply with cases decided in international tribunals that have reframed gendered violence as a human rights issue.
In this continuing legal education course, keynote speaker Professor Cheryl Hanna (Vermont) will review some of the key Supreme Court cases in this area, and will then discuss cases from both the Inter-American Court of Human Rights and the European Court of Human Rights to contrast current American and international approaches of ending violence against women and girls. She hopes to spark discussion and debate as to how advocacy before the U.S. Supreme Court and in international law might evolve to better vindicate the rights of women in spirit in which VAWA was intended.
From Reuters, White House Urges Higher Pay for Tipped Workers
The White House said on Wednesday raising the minimum wage for workers who receive tips would disproportionately benefit low-income women and help close the gender pay gap in which men earn higher pay than women.
The federal minimum wage for workers who receive tips is $2.13 an hour - well below the minimum wage of $7.25 an hour. Even though employers are required to make up any shortfall between the tipped minimum and the standard minimum if gratuities fall short, one in 10 workers earn less than the minimum wage, the White House said.
"This provision is difficult to enforce," the White House Council of Economic Advisers said in a report. The president has asked Congress for an 18 percent, $41 million increase in funding for Department of Labor Wage and Hour division investigators to hold employers to the law.
This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than men to hold these positions and be married.
Women's entry into correctional spaces has had several unintended consequences. First, it has complicated the experiences of other marginalized groups in those institutions. In particular, women's progress in correctional institutions has increased female inmates' exposure to supervision by male staff, which places them at greater risk for sexual victimization. Second, it has diminished privacy of both male and female inmates in custodial settings. Third, it has resulted in female correctional employees' disproportionate involvement in prohibited intimate contact with male inmates and youth in custody. These sexual interactions have resulted variously in termination, resignation, prosecution, procreation, and litigation; complicating feminist theories of power, consent, and equality. Finally, it has complicated key employment law jurisprudence.
Friday, March 28, 2014
A timely article by Toni Massaro has been uploaded. Its titled "Nuts and Seeds: Disclosure of Religious Exemptions" and its abstract reads:
Closely watched cases pending before the United States Supreme Court address whether for-profit businesses may claim a statutory or constitutional right to an exemption from general laws that burden religious expression. These cases are part of a wider trend of expanded constitutional rights for for-profit actors, and of increased judicial and legislative sympathy for exemption requests by religious actors.
This Article offers a first look at steps government might take if the current trend continues, and if more exemption requests for commercial actors are allowed. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions, without unduly burdening the exempted commercial religious actors. It examines in particular an “exemption-subject-to-notice” option, under which exempted commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance. The Article concludes that a notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.
Jessica Feinberg, Mercer Law, has uploaded "The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era: A Proposal." The abstract reads:
Based on recent achievements by the same-sex marriage movement and current societal attitudes, it seems clear that it is only a matter of time before same-sex marriage is recognized by the majority of jurisdictions within the United States. When this occurs, society will be left with an important decision regarding whether the widespread legalization of same-sex marriage marks the beginning or the end of the discussion in this country regarding adult relationship recognition. Hopefully, it will mark the beginning of the discussion. Individuals face incredibly limited options when it comes to legal recognition of their important relationships. The federal government and the majority of states recognize only one relationship status, marriage, leaving couples with the narrow choice of marriage or non-recognition. It is time for the United States to follow the lead of other countries in creating an effective and comprehensive system of adult relationship recognition that does not depend solely upon marriage. There is ample evidence that marriage is in trouble in the United States. Increasing numbers of individuals are eschewing marriage for non-marital cohabitation, those who marry do so later in life, and the divorce rate continues to hover around fifty percent. As marriage rates decrease, increasing numbers of individuals are left in the unfortunate position of having inadequate legal protections for their relationships. Many people likely would benefit from the introduction of a third option; namely, a state-based non-marital relationship status that offered a true alternative to marriage and was recognized by the federal government. This article offers an innovative proposal for a new system of non-marital relationship recognition in the United States.
Matthew David Burris, US Dept. of Justice, has uploaded "Thinking Slow about Sexual Assault in the Military." The abstract reads:
This article examines the current public discourse on sexual assault in the military through the complementary lenses of behavioral economics and the law. The article evaluates the "crisis" narrative central to this discourse and suggests it is not supportable by the best available data. Moreover, the article suggests that in driving potentially counterproductive public policy initiatives, this narrative is harmful to victims of sexual assault. The article recommends several practical steps the Department of Defense might take in the near-term to expose and rebut this harmful narrative and forestall these potentially counterproductive public policy initiatives. These steps include a reappraisal of the rhetoric senior DoD officials employ when speaking publically about the very real problem of sexual assault in the military, as well as advocating for a "whole of government" approach to gathering data on sexual assault and its victims. The article suggests the evidence-based prevention and response solutions impelled by these data hold out the best hope for reducing the incidence of sexual assault in the military.
Thursday, March 27, 2014
From Jeffrey Toobin, Women Justices Rock the Hobby Lobby Argument
There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.
The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?
There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power.
From the Wall St. J., Judge Kopf Causes a Stir with a Blog Post about Female Lawyers
The title of it, “On being a dirty old man and how young women lawyers dress,” captures what follows. In the post, Judge Kopf urges female lawyers to wear less revealing clothes, while confessing his conflicted feelings over his sexual attraction to a young female lawyer in her late 20s who comes to court in skimpy outfits.
Writes the judge:
True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.
“Ewwww!” was the response from an Omaha World-Herald columnist in a scathing piece about the post. “Are you kidding me?” said a Nebraska prosecutor interviewed by the columnist. “This is a federal judge.”
Yesterday, the US Supreme Court decided US v. Castleman, in an opinion by Justice Sotomayor. The Court held that intentionally or knowingly causing bodily injury to a family member “has, as an element, the use . . . of physical force,” 18 U. S. C. § §921(a)(33)(A)(ii), and thus constitutes a “misdemeanor crime of domestic violence,” §922(g)(9). A person convicted of a misdemeanor crime of domestic violence is forbidden from possessing firearms. The defendant here was selling firearms on the black market. For more, see Adam Liptak, NYT, Sweeping Ruling on Domestic Violence; Ms., Supremes Disarm Domestic Abuser
Michael Higdon (Tennesse) has posted Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, Alabama L. Rev. (forthcoming). Higdon explores
“Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy.
Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other.
This argument, though, is based on the assumption that feminists fought coverture by demanding equal parenting rights. Nineteenth-century feminists did challenge coverture and its restrictions on property and contract by demanding formal and substantive equality of rights. But, for parenting rights, these feminists demanded gender-specific rights of sole female control. Challenging the prerogative of forced marital sex, the marital rape exception, involuntary motherhood, and parental custody and guardianship laws, feminists demanded unilateral, woman-only control. Voluntary motherhood, the right to choose when to procreate, the unilateral right to refuse sex, and maternal custody presumptions were the solutions--all gender-specific, unilateral, female-only rights. Why? Because in parenting, the woman was the sole partner who had to bear the pregnancy and care for the child.