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
Ok, we have two days of the writing retreat under our belt. How are we doing?
Sarah Morath says "Having a week dedicated to writing is a treat. Grades are in, the fall seems like the distant future, the kids are still in school. This week is my week to write!" She adds: "The week is further sweetened by lunching with my colleagues each day. (Eating a proper lunch in good company four days in a row! Now, that's as rare as having a week dedicated to writing)."
Me? It's been slower than usual for me. Lots of stops and starts. Both figuratively and literally. I'm thinking its because last year I had a discrete project - a book introduction. This year I am in the middle of chapter 4 of my book project.
But it's a new day...
Thursday, May 15, 2014
Akiva Miller at Hebrew University has uploaded an article, "The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology." The abstract reads:
The State of Israel applies religious law in all matters of marriage and divorce. For the Jewish population of Israel, the law of marriage includes religious prohibitions on certain kinds of marriages, most notably the prohibition against intermarriage and the prohibition against marrying a mamzer. Over the years, Israel’s state-religious authorities have adopted a variety of methods and practices for policing these prohibitions. These include stringent procedures for premarital registration inquiries; use of databases for collecting information on prohibited persons; recording the possibility of mamzer status of newborn children; special Beit Din proceedings for handling cases of possible marriage prohibitions; Beit Din-initiated investigations of possible prohibited persons, including minors; and special “Jewishness investigations” for people of questionable Jewish ancestry. The article surveys the law and practice of these policing methods, as well as the acute social problems and injustices they cause. Lastly, the article discuses ways in which these methods change traditional Jewish marriage.
Tuesday, May 13, 2014
Denver University Law Review Symposium on the Work of Professor Ann Scales, Volume 91 (2013)
Raising Hell, Making Miracles: The Everlovin’ Legal Imagination of Ann Scales
Catharine A. MacKinnon
Taking a Break from Acrimony: The Feminist Method of Ann Scales
Feminists at the Border
Feminism and Gay Liberation: Together in Struggle
“Stuck” on Love
Tamara L. Kuennen
How Masculinities Distribute Power: The Influence of Ann Scales
Ann C. McGinley & Frank Rudy Cooper
On Surviving Legal De-Education: An Allegory for a Renaissance in Legal Education
Robin Walker Sterling
Monday, May 5, 2014
From the Advocate:
A new book, five years in the making, hopes to provide one of the most comprehensive and up-to-date resource on the complex and often misunderstood issues affecting trans individuals.
Due out later this year from Oxford University Press, Trans Bodies, Trans Selves looks to be the most comprehensive trans resource ever published. The book features more than 200 contributors, and covers topics like the gender spectrum, trans history, health, cultural and social topics, and gender theory.
Weighing in at 672-pages, the Associated Press describes the book as, "Encyclopedic in scope, conversational in tone, and candid about complex sexual issues." After nearly five years in the making, the text hopes to impact a much-maligned and misunderstood community at a critical point in its history.
Saturday, May 3, 2014
There's been a bit of a campaign to "read more women" to counter the bias toward male authors and male by-lines in fiction writing and reviews. This author extends that to reading women's research for work in Are You Reading Enough Academic Women.
So Walsh’s campaign prompted me to think about gender inequalities that arise in scholarly publishing and citations. How does gender affect who does what kinds of scholarship? Is there a gender gap in academic publishing? What would a VIDA count of scholarship show us? Luckily, some recent studies and news reports have explored the impact of gender on publishing.
While gender bias in academia is widely discussed, it is not always easily documented. That’s why B.F. Walter, Daniel Maliniak, and Ryan Powers collected data to demonstrate how it plays out in a key metric of academic life: citations. Their study focused on 12 leading journals in international relations, examining 3,000 articles published between 1980 and 2006. The researchers analyzed “citation counts” because, Walter notes, “they are increasingly used as a key measure of a scholar’s performance and impact”—the currency of influence and prestige, as well as factors in hiring and promotion.
After controlling for factors including venue, methodology, subject, the author’s institution, and the significance of the publication, Walter and her colleagues discovered that gender mattered even when all other factors were held constant. In fact, gender was one of the best predictors of whether an article would be cited or not. Walter writes that women authors received “0.7 cites for every 1 cite that a male author would receive.” Untenured women were the least likely to be cited.
examined 1.8 million scholarly articles, from 1665 (!) to 2011. It found that women accounted for just 21.9 percent of authorships and 17 percent of single-authored papers. Those rates jump to 27.2 percent and 26 percent—slightly more respectable numbers, but still nothing to write home about—if you shorten the time frame to 1990 through 2012. Oh, and if an article had multiple authors, less than 20 percent of those listed first were women.
Overall, the results of Eigenfactor’s gender project demonstrated that the percentage of female authors is less than the proportion of women in the full-time ranks of the academy. The study shows that women are making small gains in academic publishing, but the results are far from heartening.
Thursday, April 24, 2014
Is Blogging Scholarship? The short answer is no. But...this article concludes it is incredibly important as the venue of intellectual innovation and creativity, and thus should be valued "as an avenue of scholarship" even if different in kind from the classic tenure-type work.
Much of the interesting innovation in blogging, though, comes from the rank of the untenured, the alt-ac, and the amateur enthusiasts. Discussions of whether blogging is scholarship shouldn’t make it seem like blogging is a scholarly indulgence.
Blogging may be more informal and have different structural demands and pressures to the peer-review model. But it’s providing some of the most interesting historical commentary out there right now, and with the right encouragement, it might start leading to some of the most original research, too.
Wednesday, April 23, 2014
The story in the NYT, now a tad old in blogsphere terms, starts:
Reading a book review in a well-known periodical? Chances are, the byline belongs to a man.
In its annual count of male and female bylines in book reviews, magazines and literary journals, VIDA, a women’s literary organization, revealed that in 2013, the publications still largely favored men over women.
At The New York Review of Books, there were 212 male book reviewers and 52 female; at The Atlantic, there were 14 male book reviewers and three female; at Harper’s, there were 24 male book reviewers and 10 female.
Thursday, April 17, 2014
Matthew David Burris (US Airforce), Thinking Slow About Sexual Assault in the Military, 22 Buff. J. Gender, L., & Soc. Pol’y (forthcoming)
Michael Higdon (Tennessee), Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, Alabama Law Review (forthcoming)
Deborah Tuerkheimer (DePaul), Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice: Introduction, Oxford U. Press (forthcoming)
Corey Rayburn Yung (Kansas), How to Lie with Rape Statistics: American’s Hidden Rape Crisis, 99 Iowa L. Rev. ___ (2014)
Note, Jessica Marsden (Yale), Domestic Violence Asylum after Matter of L-R, 123 Yale L.J. (forthcoming)
Wednesday, April 16, 2014
Robert McGee at Fayetteville State University has uploaded an article on gender and tax evasion. The abstract reads:
This paper examines the views of men and women in 82 countries on the ethics of tax evasion. Other demographic variables such as age, marital status, religion and religiosity are also examined. The study also includes a bibliography providing links to more than 80 other empirical and theoretical studies on the ethics of tax evasion, making it easier for scholars to retrieve data easily for their own research.
For those interested in a law and econ analysis of marriage, Theodore Seto at Loyola LA has uploaded a paper titled "A Coasean Theory of Marriage." The abstract reads:
A theory of the economic aspects of the law of marriage. In The Nature of the Firm (1937), Ronald Coase noted that although contractual exchanges generally maximize social welfare, in complex business environments the transaction costs of contractual relationships may be prohibitively high. Corporate law’s solution is to organize intra-firm transactions on a non-contractual basis. Corporate law is thus a solution to a transaction cost problem. Partners in long-term intimate relationships also engage in significant welfare-enhancing exchanges. Some are long term: "I’ll stay home and take care of the kids; you’ll support me." Some are short term: "I’ll drop off the dry-cleaning; you pick up the kids." Economic theory tells us that such exchanges produce producer and consumer surplus; the ability to engage securely in such exchanges is therefore economically valuable. Contract law might be used to secure the value of such exchanges, but the transaction costs would likely be extremely high. In addition, such exchanges commonly rely on trust; the contracting process itself would tend to undermine trust, making such exchanges less likely regardless of enforceability. The paper’s premise is that the economic part of the law of marriage substitutes non-contractual rules to enforce implicit deals between spouses. Like corporate law, it largely supplants contract law, solves a transaction cost problem, and thereby facilitates significant welfare-enhancing exchanges.
This premise, if correct, has at least four implications. First, it means that marriage, as a legal relationship, is economically valuable. The law of palimony (Marvin v. Marvin) offers distant second-best protections. Second, it means that the economic aspects of the law of marriage should be structured to maximize the legal security of welfare-enhancing exchanges between partners. Third, it means that denying the advantages of marriage to couples based on sexual orientation denies them the benefits of an economically valuable legal regime. In the 2008 Presidential campaign, for example, Sen. John McCain opposed same-sex marriage on ground that same-sex couples could contract into the same position. If my premise is correct, McCain completely missed the point. In Coasian terms, he was in effect saying: "We will not allow gays and lesbians to create business entities. But this does not disadvantage them because they can contract into the same position." Fourth, the paper’s premise provides a principled basis upon which to distinguish between polygamy and same-sex marriage. The implicit deal enforced by the law of marriage assumes a dyadic relationship; it may be completely inapposite to a polygamous unit. For a particular polygamous unit to determine whether the economic aspects of the law of marriage correctly reflect its implicit deal may itself involve high transaction costs. Unlike liberty and dignitary equality justifications for same-sex marriage, therefore, a Coasian justification does not apply equally to polygamous relationships. A Coasian justification may therefore allow courts to require extension of the economic aspects of the law of marriage to same-sex dyads without requiring extension to polygamous units.
Friday, April 4, 2014
Richard Delgado and Jean Stefancic, both at Alabama Law, have uploaded "Pornography and Harm to Women: 'No Empirical Evidence?'". The abstract reads:
Gives a brief history of depiction of women, including pornography, and shows how that depiction takes on different forms and functions, depending on needs of the dominant group at the time. Though many find degrading depictions of women distasteful, they disagree on the need for regulation. Like racial depiction, which is deeply embedded in culture, the harm of pornography is rendered invisible and makes depiction of female subjugation resistant to regulation.
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.
Friday, March 28, 2014
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.