Friday, October 17, 2014
Erin Sheley, GW Law, has uploaded "Doubled Jeopardy: The Condemned Woman as Historical Relic." It is forthcoming from Law and Literature and its abstract reads:
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Tuesday, October 14, 2014
Tomorrow, I am presenting as part ofthe University of Akron's Rethinking Gender series." The title of my talk is "Understanding Divorce Law Historically Through the Lens of Gender." It is based on a chapter of my book project, Elizabeth Cady Stanton and the Feminist Foundations of Family Law now nearing completion.
One running theme of the book is appreciating Stanton as a lay lawyer - a person trained by her father, who was a judge and lawyer who apprenticed young lawyers in their home; a person analytically inclined to "think like a lawyer;" who understood the normative function of the law; and who advocated for legislative reform and legal change. This legal understanding, I think, offers insights for us in both understanding her work in the nineteenth-century, and also incorporating its relevance today. See Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Thomas & Boisseau, eds. NYUP 2011).
On divorce, Stanton was a vocal and persistent advocate for no-fault, or "easy divorce." But more importantly from my perspective is that she framed divorce as a woman's issue. Divorce was both a right and a remedy for woman's wrongs. Her life-long commitment to divorce reform attacked the problem of restrictive marriages, which confined women into legal obscurity under coverture, patriarchal social expectations, and sometimes domestic abuse.
Her framework of gender approached the divorce issue from the three classic feminist approaches: equality, difference, and systemic. As to formal equality, Stanton challenged the double moral standard that supported the law of divorce, for example, allowing divorce for the wife's adultery, but requiring "aggravated" adultery of adultery plus some additional fault like cruelty, dessertion, or sodomy by the husband. Her equality theories conceptualized divorce as a individual right, granting women autonomy and psychological freedom to control their own personal relations.
As to difference, Stanton argued that fault grounds for divorce should be expanded to address the different concerns of women. The law was too focused on grounds based on sexual privilege, as in adultery and failure to consummate. Instead, it needed to include grounds most relevant to women, cruelty and desertion. A cruelty divorce mechanism connected to Stanton's work on temperance and against domestic violence, arguing the necessity of releasing and protecting women and children in abusive relationships. Desertion was important for women because they needed a court to restore their legal rights as a single woman to contract, hold property, earn income, and have custody of their children. Men accomplished desertion by practice, simply walking away, often headed West, retaining their legal identity, all property rights, and the ability to earn a livelihood and thus in little need of the courts.
These specific arguments as to divorce grounds though were part of Stanton's much bigger and radical challenge to the system of marriage itself. She conceptualized marriage not as a covenant or status, but as a contract. And as a contract between two fully equal partners. And as a contract like any other employment or commercial contract that could be modified or terminated at the will of the parties. This gave her the legal foundation to justify no-fault divorce, though it didn't mollify the moral critics. Despite opposition from most other feminist reformers, Stanton continued to advocate for free access to divorce, fighting against the backlash and growing conservativism at the end of the century. See Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment, 22 Const. Comment. 137 (2005).
Tuesday, October 7, 2014
Scott Cunningham (Baylor) & Manisha Shah (UCLA, Public Affairs), Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Carmen Gonzalez (Seattle), Women of Color in Legal Education: Challenging the Presumption of Incompetence, The Federal Lawyer (July 2014)
Steven Douglas Smith (San Diego),Die and Let Live? The Asymmetry of Accommodation
Aaron A. Dhir (Osgoode Hall), Homogeneous Corporate Governance Cultures, Chp. 1, Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity (Cambridge University Press. Forthcoming).
Russell K. Robinson (Berkeley), Unequal Protection, 67 Stanford L.Rev. (2015)
Ian P. Farrell & Nancy Leong (Denver), Gender Diversity and Same-Sex Marriage, Columbia Law Review Sidebar (Forthcoming)
Deborah Drake (The Open U), et. al., Sociology of Prison Life, in Wright, J. (ed), Int'l Encyclopedia Social & Behavioural Sciences (Forthcoming)
Ben McJunkin, Deconstructing Rape by Fraud, 28 Columbia J. Gender & Law (2014)
Monday, October 6, 2014
Jelke Boesten, University of Leeds, UK, has recently published Sexual Violence During War and Peace (Palgrave Macmillan). The abstract reads:
The idea that rape is widely used as a weapon of war has taken root in international institutions, influencing how post-conflict justice and transitional justice are perceived and pursued. Despite this global attention, there has been no progress eradicating or even mitigating sexual violence in war or in peace and very little progress prosecuting crimes of sexual violence. With particular reference to post-conflict justice, this book asks what sexual violence means from a socio-political perspective and in what ways contemporary "peacetime" violence is linked to wartime rape. Evidence from Peru and the internal armed conflict of 1980-2000 shows that acts of wartime rape are deeply embedded in existing configurations of gender and power and that sexual violence serves not only wartime terror but also peacetime hierarchies.
Friday, October 3, 2014
Susan Ayres, Texas A & M Law, has uploaded to SSRN "Using Dramatic Narratives to Teach Domestic Violence." The abstract reads:
The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.
Monday, September 29, 2014
Corey Ciocchetti, Denver (Business School), has uploaded to SSRN "Religious Freedom and Closely Held Corporations: The Hobby Lobby Case and Its Ethical Implications." The abstract reads:
Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also brought to light some major ethical dilemmas such as: (1) whether the government has the right to second-guess a person’s religious beliefs, (2) when do religious beliefs become too attenuated from the actions they oppose to truly pose a burden on religion and (3) whether religion can only be experienced by human beings. Though the lawyers will move on to the next legal challenge, Americans in general must continue to grapple with these ethical dilemmas as citizens of a society needing to find the appropriate balance between religious freedom and improving public heath.
This article attempts to answer some of these questions by evaluating the Hobby Lobby case from many different angles. Part II recounts the stories underlying the legal challenge. These stories, often-neglected in law review articles and judicial opinions, when told in depth add context and nuance to the case and help bring to life topics that seem boring if analyzed purely in legalese. For example, the Greens tell a story of a family who consider their work at Hobby Lobby to fulfill their calling from God. They sincerely believe they are expected to practice their religion at work even if it costs the corporation, and themselves personally, a great deal of money. The federal government tells the story of a nation in desperate need of better and less expensive health care options -- particularly for women. The government claims that women need cost-free preventive care (and particularly cost-free contraceptives) in order to improve their health and reduce unwanted pregnancies. Better access to contraceptives will also give women more power to control their reproductive lives and compete more effectively in the workplace. Part II brings these litigants to life and sets the stage for a discussion of the law in Part III and the application of the law to these parties in Part IV.
More specifically, Part III synthesizes the state of the law surrounding religious freedom and preventive health care at the time the Hobby Lobby case hit the Supreme Court. The article recounts the history of religious freedom in America and how this concept worked its way into the first words of the First Amendment and eventually into the very broadly protective Religious Freedom Restoration Act. This part ends with an evaluation of the ACA’s contraceptive mandate and its requirements regarding access to cost free preventive care for women.
Part IV evaluates the court decisions in the Hobby Lobby case. The discussion begins with the District Court’s denial of Hobby Lobby’s request that mandate be stayed and ends with the Supreme Court’s decision issued on the last day of its October 2013 term. All in all, the discussion moves with the case from a federal district court (where Hobby Lobby asked for a preliminary injunction) to the Tenth Circuit Court of appeals (where that decision was affirmed) to the United States Supreme Court (where Hobby Lobby’s appeal was summarily denied) back to the Circuit Court sitting en banc (where the district court was urged to issue the preliminary injunction) back to the district court (where the judge reversed himself and issued the injunction) and finally to the Supreme Court (where Hobby Lobby emerged victorious). This part summarizes the lower court decisions and evaluates the Supreme Court decision in detail, section by section.
Part V, the final substantive part of the article, begins with the statement that the Court reached the correct legal decision in the case considering: (1) the important place religious exercise holds in the fabric of America, today and historically, (2) the broad brush with which Congress painted RFRA and (3) the fact that Hobby Lobby’s employees will still receive all twenty FDA-approved contraceptives at no cost. The discussion then moves to the ethical issues spun off by the Supreme Court decision. The three ethical dilemmas chosen for analysis revolve around the questions of whether corporations can exercise religion, whether it is ethical for religion to trump third party rights and whether governments have any business analyzing the beliefs of a religious adherent in order to better craft public policy.
The article concludes with a call for further research into potential answers to these and other ethical dilemmas keeping in mind that Hobby Lobby is just the first shoe to drop in the fight between religious freedom and parts of the Affordable Care Act.
Thursday, September 25, 2014
Shagufta Omar, International Islamic University, has uploaded to SSRN Marriage in Islam. The abstract reads:
The institution of family occupies a highly important position in Islam. Besides regulating human marital relations it plays a key role in the development and progression of a well-entrenched social order. It considers this relationship a sacrament social contract between two independent and pubescent persons and introduces checks and balances to protect and secure the rights of all stakeholders in this matter - husband, wife, children and the society large. Unlike certain other religions, Islam however does not regard marriage above dissolution and gives this right to both the spouses. According men and women equal social, legal and moral status as human beings, Islam differentiates between their status, roles and responsibilities in the family system, based on equity and justice. However, the true spirit of role differentiation is misunderstood by non Muslims as well as by less informed Muslims as establishing the patriarchal system endorsing gender equality and discrimination against women.
Monday, September 15, 2014
Caitlin Borgmann, CUNY Law, has uploaded on SSRN "Abortion Exceptionalism and Undue Burden Preemption." The abstract:
This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.
Friday, September 12, 2014
David Cruz at USC Law has uploaded "Baker v. Nelson: Flotsam in the Tidal Wave of Windsor's Wake" on SSRN. The abstract reads:
Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the Supreme Court’s ruling in United States v. Windsor (2013) to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court when it returns to the issue. It then at some length shows one particular aspect of Windsor’s wake: the way it has helped lower federal courts unanimously and properly conclude that doctrinal developments after the Supreme Court summarily rejected a same-sex couple’s constitutional claims to a right to marry in Baker v. Nelson (1972) have rendered that decision no longer dispositive. Although Baker would in no event prevent the Supreme Court itself from revisiting the constitutional issues, the ability to declare Baker doctrinally undermined has positive repercussions for the social equality and lived reality of same-sex couples across the country in the mean time. Finally, Part IV of the Article addresses some of the ways in which United States v. Windsor itself developed constitutional doctrine in ways that advance the cause of constitutional justice and same-sex couples’ rights to equal protection and to marry.
Wednesday, September 3, 2014
David Orentlicher, Indiana University, has uploaded to SSRN Abortion and Compelled Physician Speech. The abstract reads:
As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment precludes the government from forcing individuals to voice the government’s views. On the other hand, legislatures and courts can insist that physicians properly explain to patients about their medical conditions and potential treatments so patients can make informed decisions about their health care. When taking care of patients, doctors assume a duty to speak, as well as a duty to speak responsibly.
Ordinarily, the doctrines of free speech and informed consent coexist without much difficulty. But as states have expanded the kinds of information that abortion providers must disclose to pregnant women, First Amendment concerns have become increasingly salient. In this article, I will use several examples of speech mandates for abortion and other health care services to identify principles for distinguishing between legitimate regulation of the informed consent process and illegitimate interference with the freedom of speech.
First, speech mandates should be permissible when they provide material information to patients about their health care decisions. If the state is trying to ensure that patients are fully informed, the mandates should be allowed. As a corollary, the information must be truthful and not be misleading. The goal is to inform not to misinform. Second, speech mandates that pertain to moral considerations should not be permitted. Rather than informing the patient’s decision, these mandates force the physician or other health professional to espouse the state’s ideology.
Courts and legal scholars have proposed other ways to distinguish permissible from impermissible mandates (e.g., whether the government takes sides, manipulates emotions, or uses graphic images). However, these additional distinctions raise their own concerns and should not be needed. If courts strictly apply the requirements that compelled speech pertain to medical facts about abortion and its alternatives rather than abortion ideology and that the compelled speech be truthful and not misleading, then the interests of pregnant women and their physicians should be protected.
Jason Potter Burda, UMass School of Law, has uploaded to the SSRN When Condoms Fail. The abstract reads:
Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known in the media as “PrEP”) has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for use by certain HIV-negative individuals to prevent infection. Despite an effectiveness of up to 92 percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement.
In this article, I address the social, legal, and policy challenges that will shape future implementation of this game-changing HIV prevention modality. I develop a framework for understanding these challenges by dividing them into two dimensions: acceptability and accessibility. I argue that self-imposed, individual, and institutional stigma affects PrEP acceptability among high-risk groups, and among healthcare providers. In addition, I speculate that utilization management for PrEP is likely to increase as a result of PrEP rollout, and that PrEP is vulnerable to benefit denials based on medical necessity exclusions.
One solution to overcoming these challenges is mandating benefits for, and eliminating accessibility hurdles to, PrEP under the Affordable Care Act’s Preventive Services and Essential Health Benefits provisions, as well as mandating PrEP coverage through state action. Health content regulation, although controversial particularly after the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, will be necessary both to ensure that PrEP treatment reaches the populations most at risk of spreading the virus and to overcome antiquated assumptions about HIV prevention.
Tuesday, August 5, 2014
Thursday, July 24, 2014
Maya Manian has uploaded on SSRN "The Consequences of Abortion Restrictions for Women's Healthcare," 75 Wash. & Lee L. Rev. 1317 (2014). The abstract reads:
This Essay challenges the false assumption that abortion care can be segregated from women’s medical care and targeted for special restrictions without any effects on women’s health more broadly. As a matter of medical reality, abortion cannot be isolated from the continuum of women’s healthcare. Yet policymakers and the public have failed to understand the interconnectedness of abortion with other aspects of women’s medical care. In fact, existing abortion restrictions harm women’s health even for women not actively seeking abortion care, but these impacts remain obscured. For example, antiabortion laws and policies have spillover effects on miscarriage management, prenatal care, and the treatment of ectopic pregnancies. Focusing the public’s attention on the broader effects of abortion restrictions on women’s health could help make visible the links between abortion and healthcare. Furthermore, educating the public about the full healthcare consequences of abortion restrictions could be one key means to preserving access to abortion care. Repositioning the law to recognize abortion care as an integral part of the continuum of women’s medical needs is critical to protecting women’s health.
Tuesday, July 15, 2014
Kim Shayo Buchanan has uploaded "When Is HIV a Crime?" on SSRN. The abstract reads:
HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception — including deceptions that may jeopardize the partner’s health — are lawful; rape law expressly accommodates an expectation that men may lie to get sex from women. Neither public health nor retributive considerations adequately justify singling out HIV from other, permitted forms of sexual deception. Moreover, most HIV transmission and nondisclosure takes place between men, but a large majority of prosecutions involve men accused of nondisclosing to women. The inconsistency of HIV laws with their ostensible rationales, their arbitrary inclusions and exclusions, and the striking disparities in HIV prosecutions all tend to raise suspicion that discriminatory impulses may be at work.
Criminal laws and their implementation tend to frame HIV as a crime that matters most when it disrupts expectations that non-drug-injecting heterosexuals should be immune to anxiety about HIV. They situate HIV as fairly benign when contained within stigmatized populations such as gay men, intravenous drug users, Africans and sex workers. When HIV-positive people transgress these boundaries and cause heterosexual men and women to worry about HIV, though, this transgression is often punished as a crime, even when the behavior poses no transmission risk. HIV laws and their implementation raise concern that discriminatory fallacies about race, gender and sexuality may shape perceptions of whether, when and why HIV is a crime.
Sunday, June 29, 2014
Monday, June 23, 2014
I usually don't publicize older articles on SSRN but I saw this interesting piece (recently uploaded) by Syracuse's Keith Bybee, who is always interesting. The abstract reads:
What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically motivated policymaker. These two conceptions provide the only current options for making sense of gender imbalance. Calls for gender equity do not fit easily with the conventional conception of impartial adjudication; as a result, arguments about the importance of increasing the number of female judges tend to be assimilated into the conventional conception of preference-driven policymaking. Thus, given this structure of debate, discussions about the meaning of gender imbalance typically devolve into bickering about politicized courts. I conclude by considering how arguments about gender imbalance might be productively re-cast by moving beyond the basic conceptions that currently structure debate over the courts.
Wednesday, June 18, 2014
Kimberly Joy-Lockely at Mississippi Law has uploaded "How Gender Bias Negatively Affects Soldiers with PTSD." Its abstract reads:
The Veteran’s Administration (VA) is charged with caring for our nation’s veterans, but their procedures allow for a gender bias that is causing countless veterans with post-traumatic stress syndrome (PTSD) to remain without adequate help. Though women have been involved in every military conflict in the United States, women continue to be treated differently than men. Women were not granted official military status until 1949, but they currently make up the fastest growing portion of the veteran population. The impending lift of the ban on women in combat will likely only increase women’s involvement in the military, so their disparate treatment must be dealt with quickly to avoid an increase in an already prevalent problem.
The VA only currently recognizes two types of PTSD: Military Sexual Trauma-related PTSD (MST) and Combat-related PTSD. MST complaints increased 46% from 2012 to 2013. An estimated 26,000 men and women experienced MST in 2011, but only 3,300 of those victims filed reports. Increased numbers of women are seeing combat in Iraq and Afghanistan, and 15% of active duty soldiers are females. Because of the gender bias in the military sexual trauma reporting process and the VA in-processing, the already over-burdened VA system has become even more inefficient and female and male veterans alike are the ones harmed.
Various failures on the VA’s part account for veterans’ difficulties in obtaining earned and promised benefits. For example, the two types of PTSD have different burden of proof structures, and the interviewers who determine whether or not a veteran gets benefits have an extreme gender bias. Even worse, the VA did not offer mental healthcare services to women until 1988, and the VA currently only has four facilities dedicated to women’s care.
Men are expected to be “stronger” than to have psychological or emotional issues and women who are already often perceived as “weaker” do not wish to add to that perception by admitting any struggles. Each sex fears retribution, loss of promotion, loss of opportunity to re-enlist, and loss of the respect of their superiors and/or peers. Though Congress has recently attempted a weak solution, it is quite simply not even close to being enough to close the gender gap. This paper proposes a three-tiered solution focusing on enhancing reporting schemes within the military and the relationship between the military and the VA, restructuring the PTSD intake within the VA, and adopting a common sense approach to VA benefits.
Part I of this paper will discuss the history of women in the military, the history of PTSD, and gender bias’ role in PTSD; part II of this paper will discuss and analyze the military’s, Congress’, and the VA’s failures in consistently and adequately serving soldiers and veterans with PTSD. Part III of this paper will discuss ways in which the military and VA can improve including recent Congressional steps that have attempted to do so.
Friday, June 13, 2014
CALL FOR PROPOSALS TO EDIT SPECIAL ISSUE
Volume 41.2, December 2015
Deadline of September 30th, 2014
The Australian Feminist Law Journal calls for submissions for the positions of Special Editor(s) of a Special Themed Issue of the Journal, namely Volume 41.2 (December 2015). Special Editors work in conjunction with the Editorial Board to create a theme, solicit articles, organize the referee process, make publication decisions and guide author revisions, subject to the oversight of the Board who will ensure consistency with the AFLJ’s focus on critical feminist approaches to law and justice, broadly conceived. As an international Critical Legal Journal we publish research informed by critical theory, cultural and literary theory, jurisprudential, postcolonial and psychoanalytic approaches, amongst other critical research practices. Each journal issue normally comprises 6-8 articles of between 8,000 to 12,000 words, including footnotes. Special Editors are encouraged to plan their Themed Issue around a conference, workshop, or other mode of organizing preparations for the research and publication theme, including a public call for papers.
Monday, June 2, 2014
Volume 26, Number 2 (2014)
Aurora E. Bewicke
The 2012 guilty verdict issued by the International Criminal Court (ICC) in theThomas Lubanga Dyilo case has brought significant attention to the issue of child soldiering. Yet, despite global attempts to criminalize child soldier recruitment, armed groups’ willingness to capitalize on children’s inherent vulnerabilities and the proliferation of small arms have resulted in the continued use of large numbers of both boys and girls in armed conflict today. These youths suffer physical injury and psychological trauma. After the fighting has finished, they face further challenges reintegrating into civilian life. Girl soldiers in particular frequently experience reproductive health problems and gender-specific stigmatization. Yet, until recently, post-conflict justice mechanisms designed to address suffering and help populations transition have systematically failed to address the needs of both women and children, in particular the needs of girl soldiers. Even among programs initiated to reintegrate and rehabilitate child soldiers, very few have focused on girls, and some have even excluded them from the process. This Article will explore one of the main pillars of transitional justice, namely reparations, within this context. Specifically, it will address how to more effectively realize the right to reparations for girl soldiers. December 2011 witnessed the world’s first reparations judgment on the basis of unlawful child soldier recruitment, according to which Colombian paramilitary leader Fredy Rendón Herrera was sentenced and ordered to pay compensation for the illegal recruitment of minors, including girls. Following the March 2012 verdict in the Lubanga case—unless the conviction is overturned on appeal—we will now have the privilege to witness the ICC’s first judicial reparations procedures unfold, even if the implementation of these reparations remains some time away.
This Article examines the intersection of law, religion, and culture in the evolution of polygamy in the Jewish tradition. It traces the development of Jewish thought on polygamy over time by assembling and analyzing relevant discussions, arguments, decisions, and biblical interpretations from the time of the Hebrew Bible passages, when plural marriage was an accepted part of Jewish society, to the early Middle Ages when the practice was formally and conclusively rejected. In doing so, the Article attempts to untangle the various influences—both practical and doctrinal, internal and external—on the evolution of marriage law in Jewish communities. These findings highlight the mutable nature of marriage norms within a religious community, the adaptability of religious doctrine to the practical needs of the community, and the potentially progressive force of religious morality in advancing women’s rights.
Mifepristone Protocol Legislation— The Anti-Choice Movement’s Disingenuous Method of Attack on the Reproductive Rights of Women and How Courts Should Respond
Laurah J. Samuels
In the past decade, five states have passed laws prohibiting the off-label use of the abortion-inducing drug mifepristone. While these laws are ostensibly passed to protect women from misuse of a dangerous drug, in actuality they represent one of the latest steps in the anti-choice movement’s efforts to dismantle the abortion right iterated in Roe v. Wade and controlled by Planned Parenthood of Southeastern Pennsylvania v. Casey. These laws prevent doctors from practicing evidence-based medicine in the manner that they believe best serves their patients, and cost women time and money while potentially exposing them to unnecessary side effects and risks. In addition, these laws force women with pregnancies of forty-nine to sixty-three days of gestation to undergo surgical abortions when medical abortions would be equally appropriate. As with most anti-choice initiatives, the women who are the most affected are those who are most vulnerable. Women without economic or family resources, those in abusive relationships, and teenagers, who often discover their pregnancies later than adult women, are required to undergo unnecessary surgical procedures and spend money and time that they cannot afford because of politically-motivated legislation without a legitimate medical rationale.
Maximizing VA Benefits for Survivors of Military Sexual Trauma: A Practical Guide for Survivors and Their Advocates
Evan R. Seamone and David M. Traskey
Military Sexual Trauma (MST) is an imprecise term that basically relates to “sexual assault or repeated, unsolicited, threatening acts of sexual harassment that occurs during military service.” Despite a variety of definitions for “sexual assault” and “sexual trauma” (e.g., some including verbal harassment), and differences in populations sampled (e.g., active duty members versus treatment-seeking veterans), estimates consistently indicate that that just over 20% of females and 1% of males are sexually assaulted in a physical manner during their service. The numbers rise substantially to 20% of males and 70% of females in studies where verbal trauma is included in the definition. Importantly, the term MST was “created to capture the different forms of sexual maltreatment reported by military personnel.” Thus, MST “is not a syndrome, diagnosis, or construct associated with clear treatment indications.” Instead, it represents a type of stressor that can result in such maladies. Recent and renewed interest in the MST epidemic has resulted in legislative proposals to revamp the entire military justice system to hold perpetrators accountable and encourage survivors to report their abuse, as well as ongoing efforts within the Department of Veterans Affairs (VA) to accommodate MST survivors’ needs for medical treatment and empathic, bias-free benefits adjudication. However, commentators emphasize the likelihood that pervasive systemic oversights within the VA and the Department of Defense (DoD) will result in continued incidences of MST among active duty service members and the erroneous denial of VA benefits to MST survivors who, in many cases, desperately need and rightfully deserve them.
A PDF of the full article can be accessed online here.
Anne E. Silver
Can consent to medical treatment be voluntary when legal rights, benefits, and protections are conditioned on the completion of surgery? This Note will analyze this question by applying the doctrine of informed consent and basic bioethical principles to the “medical model” that has emerged as the dominant method for determining the legal status of transgender and intersex individuals. Under the medical model, reclassification of legal sex—a process that provides access to legal rights, resources, and benefits—is available to trans persons only after the individual has undergone permanent, body-altering surgery. This Note will argue that conditioning legal status on the completion of surgery coerces or manipulates consent in such a manner as to render consent involuntary under the doctrine of informed consent. This Note will suggest alternatives to the medical model that do not violate the doctrine of informed consent and basic bioethical norms.
Thursday, May 29, 2014
Here is the final and revised schedule of the awesome Collaborative Research Network on Feminist Legal Theory at today's Law & Society Conference. Hope to have some live blogging from Jamie Abrams.
WEDNESDAY, MAY 28
Book Discussion: Becoming Sexual by Danielle Egan 7 pm, University of Minnesota, Lindquist & Vennum Conference Room
THURSDAY, MAY 29
Alternatives to Marriage, Chair: June Carbone
Erez Aloni, Beyond Recognition: Redistribution in Family Law
Jessica Feinberg, The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era: A Proposal
Leslie Harris,Drifting Toward Marriage: How and Why Legal Structures for Alternative Family Forms Converge on Marriage
Theodore Seto, A Coasian Theory of Marriage
Discussants: Kerry Abrams, June Carbone
Feminist Perspectives on Health Care, Chair: Kara Loewentheil
Jamie Abrams, Revealing the Illusion of Patient Autonomy and the Ghost of Roe’s Medical Model
Kara Loewentheil, When Free Exercise Is a Burden: Protecting “Third Parties” In Religious Accommodation Law
Seema Mohapatra, Time to Lift the Veil of Inequality in Health Care Coverage: Using Corporate Law to Defend the Affordable Care Act’s Reproductive Health Care Mandate
Discussants: Jessica Waters, Margaux Hall
ART and Parentage, Chair: Wendy Bach
Courtney Joslin, The Biology Myth
Jody Madiera, The Legal Consequences of Infertility Patients’ Self-Identification as Consumer or Patient
Dara Purvis, Fathers, Abortion, and Equal Rights
Kara Swanson, Alternative Insemination and Adoption: Historical Perspectives
Discussants: Johanna Bond, Deborah Dinner, Marie Failinger
Same Sex Marriage and Divorce, Chair: William Kuby
Cynthia Godsoe, Considering Gay Parenthood
Zvi Triger and Ayelet Blecher-Prigat, Same-Sex Divorce and the Right to Divorce
Ann Tweedy, Same-Sex Marriage and Indian Tribes
Deborah Widiss, Federal Marriage Discrimination, Take Two
Discussant: William Kuby
"Just the Facts:” Expertise and Empirical Evidence as Movement Strategies, Chair: Rachel Rebouche
Libby Adler, Facts About Gay People
Aziza Ahmed, Medical Evidence and Expertise in Abortion Jurisprudence
Elizabeth Kukura, Contested Care: The Politics of Research, Evidence and Knowledge in U.S. Childbirth Policies
Discussants: Elizabeth MacDowell, Rachel Rebouche FRIDAY, MAY 30
Roundtable: Feminist Legal Theory Half a Century after the Second Wave
Moderator/Discussant: Clare Huntington
Susan Appleton and Susan Stiritz, Legal Education Gone Wild: Law and Literature and Sex
Naomi Cahn and June Carbone, Unequal Terms
Max Eichner, Second-Wave Feminism and the Market
Jennifer Hendricks, Schrodinger’s Child: Non-Identity, Probability, and Reproductive Decision-Making
The Economics of Intergenerational Care, Chair: Dirk Hartog
Alicia Kelly, Intergenerational Economies
Nina Kohn, Valuing Care
Peggie Smith, Compensating Family Members to Care for Elderly Relatives
Amy Ziettlow, “Money and Stuff:” Gen X Caregivers and Financial Decision-making for Their Baby Boomer Parents
Discussant: Naomi Cahn
Roundtable: Anniversary of Fineman’s Feminism and Legal Theory Project, Chair: Hila Keren
June Carbone, Univ. of Minnesota Law
Martha A. Fineman, Emory Law School
Michele Goodwin, Univ. of Minnesota Law
Fionnuala Ní Aoláin, Univ. of Minnesota Law School
Dorothy Roberts, Univ. of Pennsylvania Law School
Laura Spitz, Cornell Law School
Jessica Dixon Weaver, Southern Methodist Univ. Law School
Discussant: Laura Kessler
Subordination and Power in Families, Chair: Laura Kessler
Samantha Godwin, A Feminist Critique of Parental Rights
Pamela Laufer-Ukeles, The Case Against Separating the Care from the Caregiver: A Relational Perspective on Children’s Rights
Aníbal Rosario Lebrón, Scorned Law: Rethinking Impeachment Rules for Battered Women
Sarah Swan, Third-Party Policing Comes Home: Gender, Control, and Responsibilization in Family Life
Discussants: Wendy Bach, Laura Kessler, Rachel Rebouche
Sexual Violence, Chair: Jessica Clarke
Mary Ann Franks, Men, Women, and Optimal Violence
Ummni Khan, Representing ‘John’: The Legal Reification of Sex Trade Clients and their Potential Status as Constitutional Subjects
Fionnuala Ní Aoláin, Gendered Harms and their Interface with International Criminal Law: Norms, Challenges, and Domestication
Menaka Raguparan, Consent/non Consent: Challenging Sexual Assault Law’s Generative Meaning
Valarie Vojdik, Theorizing Violence Against Men
Discussants: Neha Jain,Deborah Tuerkheimer, Bela August Walker
Families and Family – New Books Exploring the Past and Imagining the Future
Chair: Laurie Kohn
Jill Hasday, Family Law Reimagined
Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships
Angela Onwuachi-Willig, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family
Discussants: Katharine Bartlett,Robin Lenhardt
SATURDAY, MAY 31
Parenting Outside of Marriage: The Legal History of Fathers’ Rights, Illegitimacy, and Child Custody from Blackstone to Reagan(co-sponsor Law and History), Chair/Discussant: Kristin Collins
Sarah Abramowicz, The Construction of Motherhood and the Regulation of Fatherhood in Early 19th-Century English Child Custody Law
Deborah Dinner, Liberated Patriarchs: The Fathers’ Rights Movement, 1960-1980
Serena Mayeri, Unmarried Fathers, Sex Equality, and Marital Supremacy, 1970-1983
Mary Ziegler, Illegitimate Conceptions: Unwed Motherhood and the Remaking of the Abortion Wars