Securing Posterity: The Right to Postmortem Grandparenthood and the Problem for Law

Published Jun 14, 2019

The purpose of this article is to begin conceptualizing the interests and motivations of bereaved parents, or would-be grandparents, who wish to produce a grandchild following the death of an adult son. It argues that two characteristics of this reproductive practice— the experience of loss that precedes it and the familial relationship that lies between… Read more

Religious Liberty, Immigration Sanctuary, and Unintended Consequences for Reproductive and LGBTQ Rights

Published Jun 14, 2019

This Note considers the idea that potential religious liberty claims could be made by faith-based communities to provide sanctuary for undocumented immigrants and pays particular attention to potential unintended consequences those claims could have in the areas of reproductive and LGBTQ rights. Arguments to justify religious liberty in the name of sanctuary could be used… Read more

Biopolitical and Necropolitical Constructions of the Incarcerated Trans Body

Published Jun 14, 2019

This Article posits that the issue of gender-affirming genital surgery conjures competing constructions of the incarcerated trans body that reflect different conceptions of its relationship to state power. It offers a reading of this conflict as a clash between a biopolitical and a necropolitical conception of the incarcerated trans body. Biopolitics is a theory of… Read more

Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law

Published Nov 20, 2018

In 2010, Kenya ratified a Constitution that formalized its traditional dispute resolution mechanisms (“TDRMs”). In 2016, the legislature extended TDRM formalization to community land through the Community Land Act. While these mechanisms give greater voice to communities, they are implemented through local leaders, usually limited to male elders, and do not adequately represent marginalized groups. During a typical land dispute, it is the elders that resolve the matter because they have the respect of the community, and the best memory for the boundaries of the land. They will call a “baraza” or gathering in which community members will have a chance to voice their opinions and furnish relevant evidence before the elders make a decision. In practice, this means that the new laws run the risk of formalizing not only TDRMs, but also unequal participation in these important mechanisms. While this Note focuses on the gendered impact of TDRMs, disparate access to TDRMs has a particular impact on unmarried women, youth, and other marginalized groups. The formalization of TDRMs is important because land is crucial to Kenyans: it is “not merely a factor of production; it is first and foremost, the medium which defines and binds together social and spiritual relations within and across generations.”

Intersectionality Squared: Intrastate Minimum Wage Preemption & Schuette’s Second-Class Citizens

Published Nov 20, 2018

Between 2012 and 2017, more than twenty municipalities passed ordinances providing for extended labor protections for their residents like paid sick leave and higher minimum wages. Often these municipalities and their governing bodies have been more liberal and racially diverse than their respective legislatures. In some of the states where municipalities have succeeded in passing this legislation, the state legislature has very quickly preempted those measures with a state law dictating that no city can set a minimum wage higher than the federal standard of $7.25 an hour. These state laws banning cities from raising the working wage constitute intrastate minimum wage preemption. The lawmakers preempting these local reform efforts proffer to justifications for the bills rooted in economics and federalism. However, these preemptive measures raise consequential questions related to the due process of lawmaking and equal protection jurisprudence more generally. This Note applies an intersectional analysis to the ongoing conservative strategy of intrastate minimum wage preemption6 to reveal one example of how such preemptive measures limit progressive change, and especially burden Black women and women of color. Ultimately, this Note identifies two significant phenomena—or “intersections”— that, together, amount to what this Note will call Intersectionality Squared.

Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory

Published Nov 20, 2018

English surname usage prior to the 17th century was quite variable, bearing little resemblance to the typical practices seen in modern-day England and the United States. Women at one time held individualized surnames reflecting their specific traits, occupations, or family relations; they often retained their names after marriage and passed them on to their husbands, children, and grandchildren. But these diverse surname practices eventually disappeared. The modern gendered practices became so entrenched and political that not only social forces but also legal ones sprang up to enforce them, with justifications referencing a naturally-ordered “tradition” so fundamental and absolute that it merited legal compulsion despite nearly a millennium of common law and empirical evidence to the contrary. The history of women’s surnames was entirely discarded and replaced with an alternate false tradition in the service of cultural and political ends that rooted itself so deeply it still remains one of the most commonly accepted gender-specific practices of modern times.

“Like a Withered Tree, Stripped of Its Foliage”: What the Roe Court Missed and Why it Matters

Published Apr 9, 2018

 While it would certainly be too much to argue that a fuller exposition of the multi-dimensional origins of the nation’s criminal abortion laws by the Roe Court would have somehow prevented the emergence of the “pro-woman” antiabortion position, I nonetheless contend that if the Roe Court had exposed the gendered origins of our criminal abortion laws, the… Read more

About Abortion: Reflection & Response

Published Sep 27, 2017

Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First Century America (2017) The Abortion Closet (with a Note on Rules and Standards) Reflection by David E. Pozen Closets, Standards, Abortion: A Reply to Professor PozenResponse by Carol Sanger

Broad Strokes and Bright Lines: A Reconsideration of Shari’a Based Reservations

Published Sep 27, 2017

One of the most politically charged as well as legally technical problems occupying the field of international women’s rights revolves around the reservations made to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). An opposition among states became heated as several Muslim-majority states entered reservations to CEDAW invoking norms of… Read more

Undue Delegation: Private Delegation and Other Strategies to Challenge Admitting-Privileges Laws

Published Apr 20, 2016

  Introduction In November 2015, the Supreme Court granted certiorari to Whole Woman’s Health v. Cole,1 the first reproductive rights case to reach the court since Gonzales v. Carhart2 eight years before. In the intervening time, states have passed an astonishing number of laws and regulations that encroach on women’s access to abortion. Many such… Read more

Strange Bedfellows: The Destigmatization of Anti-Abortion Reform

Published Apr 19, 2016

  Introduction As the United States abortion debate continues into its fifth decade since Roe v. Wade,1 pro-life groups are increasingly aiming to align themselves and their messages with classically “feminist” or “liberal” interests. Pro-life groups now heavily focus on women’s rights as a platform for advancing their ideological arguments and achieving legislative measures that ultimately… Read more

Disabling Consent, or Reconstructing Sexual Autonomy

Published Apr 19, 2016

  Abstract Does a right to sexual autonomy criminalize the embellished pick-up line? Or does a right to sexual autonomy permit each and every consensual sex act, however life- threatening, or even life-ending? This Article defends (by reconstructing) sexual autonomy as the governing principle of modern rape law. Powerful criticisms of sexual autonomy otherwise normatively… Read more

The Freedom to Choose to Marry

Published Apr 19, 2016

  Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other –Obergefell v. Hodges1 Marriage is the batterer ‘s gateway to establishing… Read more

Using Title IX and the Model of Public Housing to Prevent Housing Discrimination Against Survivors of Sexual Assaults on College Campuses

Published Apr 19, 2016

  Introduction—A Big Break That No One Was Watching At the time of its passage, the vast scope of Title IX of the Education Amendments of 1972 was virtually unknown.1 Bernice Sandler, a women’s rights activist who helped draft Title IX, noted that Oregon congresswoman Edith Green, one of the bill’s sponsors, shunned the idea… Read more

PrEP and Our Youth: Implications in Law and Policy

Published Apr 19, 2016

  Introduction Truvada®, an antiretroviral medication originally approved to treat human immuno-deficiency virus (HIV), is the first drug to receive FDA approval for use by HIV-negative individuals to actually prevent infection. The prophylactic use of an antiretroviral such as Truvada is a pharmacological prevention method called “HIV pre-exposure prophylaxis” (or “PrEP’). With an efficacy of… Read more

The Landscape of State Anti-Abortion Legislation

Published Jan 24, 2016

Abstract Rachel Sussman: Thanks, everybody, for having me. I’m thrilled to be here. I spend most of my time reading bills that intend to restrict access to reproductive healthcare, and taking a break from that, stepping back and hearing from others in this environment, is really important. So I’m thrilled to be hete, thank you…. Read more

Brief of 172 Members of the U.S. House of Representatives and 40 U.S. Senators as Amici Curiae in Support of Respondent Edith Schlain Windsor, Urging Affirmance on the Merits

Published Jan 24, 2016

Abstract Amici are 172 Members of the U.S. House of Representatives and 40 U.S. Senators.1 Some of us voted against the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996); others voted for it; still others were not yet in Congress when it was enacted. But we all agree that… Read more

The Role of Congress in Advancing Civil Rights: Lessons from Two Movements

Published Jan 24, 2016

Abstract It’s wonderful to be here today. This is an exciting time in the marriage equality movement. Just yesterday a Texas judge struck down that state’s ban on marriage between same-sex couples. This comes on the heels of Virginia’s and Oregon’s Attorneys General announcing that they will not defend their state’s anti-marriage laws.

Tactics, Strategy, and Marriage Equality

Published Jan 24, 2016

Abstract Thank you for having me. I’m going to focus my remarks today on being tactical. As law students, hopefully you will all go into the social justice field and go on and do great things for everyone, but frankly a lot of what I’m going to talk about in these couple of minutes will… Read more

Bold, Brave, and Proactive: Advocacy and Organizing at the Intersection of Reproductive Justice and LGBTQ Liberation

Published Jan 24, 2016

Abstract The National Latina Institute for Reproductive Health (NLIRH) is the only national reproductive justice organization dedicated to building Latina power to advance health, dignity, and justice for 25 million Latinas, our families, and communities in the United States. We do this through leadership development, community mobilization, policy advocacy, and strategic communications.

Litigating Abortion Access Cases in the Post-Windsor World

Published Jan 24, 2016

Abstract Exploring how to apply lessons learned from the successful challenge to the federal Defense of Marriage Act (DOMA), not only to ongoing marriage equality work but also reproductive rights work, is a productive and important endeavor, given the similarities between the two. An overarching similarity is that the two movements are grounded in many… Read more

The Hobby Lobby Amicus Effort

Published Jan 24, 2016

Abstract I’m going to talk a little bit about the cases pending before the Supreme Court that will be heard on March 25. These are two cases brought by for-profit corporations that are challenging part of the Affordable Care Act that requires employers to cover contraception as part of a comprehensive health package. And so I’ll… Read more

State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise

Published Jan 24, 2016

Abstract In the United States constitutional system, the protection of individual rights depends upon the federal and state judiciaries. The role of the federal courts in protecting reproductive rights provides a particularly well known, if controversial, example. Roe v. Wade is among the most widely recognized of all judicial decisions.’ The U.S. Senate, for example,… Read more

Multidimensional Advocacy as Applied: Marriage Equality and Reproductive Rights

Published Jan 24, 2016

Abstract Talking about marriage equality and reproductive rights advocacy’ together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a… Read more


Published Jan 24, 2016

Abstract June 26, 2013 was an impossibly long day. At the time, I was living and interning in Kathmandu, Nepal, which is ten hours and forty-five minutes ahead of Washington, D.C. and the Supreme Court. I awoke to reports of Wendy Davis’s ongoing filibuster in Texas and ran two miles, through monsoon puddles, wearing my… Read more

Parity by Comparison: The Case for Comparing Pregnant and Disabled Workers

Published Jul 14, 2015

In 2008 Congress enacted amendments to the Americans With Disabilities Act (ADA) that expanded the ADA’s definition of “disability,” requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that the expansion of the protections of the ADA effectively expanded the protections of the Pregnancy Discrimination Act (PDA), too. As the Supreme Court recently clarified in Young v. United Parcel Service, the PDA generally requires employers to treat pregnant workers “the same as” non-pregnant workers who are similar in their ability or inability to work. Therefore, to the extent that pregnancy-related impairments mirror impairments that are accommodated by the expanded ADA, pregnant workers, too, should be entitled to reasonable accommodations.

Although some scholars and courts have suggested that ADA-covered employees cannot be proper comparators for PDA plaintiffs, I make the case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers the same as other impaired workers, as well as the legislative history of the PDA compel this comparison. Second, I draw on two theoretical approaches—intersectionality theory and “disruption” theory—to demonstrate that denying ADA comparators to PDA plaintiffs ignores the unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that the Supreme Court itself has signaled that courts should take a more expansive view of the types of evidence that can support a PDA claim, which should include a broader approach to the comparator question.

Over-the-Counter Access to Oral Contraception: Reproductive Autonomy on Pharmacy Shelves or a Political Trojan Horse?

Published Jul 14, 2015

During the fall of 2014, in what seemed like a change of heart, Republican congressional candidates began calling for a policy that reproductive rights advocates have supported for years. Over-the-counter (“OTC”) oral contraception (“OC”) became these candidates’ way to connect with the women alienated by the Republican Party in recent elections. They emphasized how OTC access would allow women themselves, not employers or the government, to have control over contraceptive decisions. Liberals responded that this new effort was just a Trojan horse—legalizing OTC access would not only increase the actual price tag on OC, but it would also remove OC from the Patient Protection and Affordable Care Act’s extended insurance coverage of contraception. Additionally, reproductive rights advocates noted that it is the FDA, not Congress, that legalizes OTC drugs, and the FDA has not received any applications from drug manufacturers who want to sell OC OTC. In reality, both sides have something of a valid argument. OTC OC would be an important step toward reproductive autonomy for American women. It is also correct, however, that an immediate liberalization of OTC presents several issues, economically, politically, and culturally. Despite these valid critiques, OTC access for OC is a change that is worth the time and effort to move past politics and get it right, for many reasons. Requiring insurance companies and Medicaid to reimburse women for OTC OC purchases is a step toward establishing an accessible market and ensuring corresponding reproductive autonomy for women in the United States, which should accompany legalization of OTC OC.

Transparent: When Legal Fictions and Judicial Imagination Make Facts Disappear, They Enforce Transphobic Discrimination

Published Jul 14, 2015

Kim is a transgender parent who was ordered to pay more in child support than she earned. When she could not pay, a court found her in contempt and put her in jail. In jail, she was dressed in a woman’s uniform, paraded through every part of the men’s population, and then held in solitary confinement in the wing for violent male offenders. Her story provides an example of how courts sometimes view legal fictions as more real than the facts of a person’s life.

Legal fictions include presumptions, which are defined as “legal inference[s] or assumption[s] that a fact exists because of the known or proven existence of some other fact or group of facts.” When used appropriately, legal fictions can facilitate the law’s legitimate purposes. However, when facts contradict legal fictions, facts should be considered, in order to temper the potential for resulting irrationality and injustice. Legal fictions impact specific groups disproportionately. This is particularly true for those whose experiences are outside judges’ experiences.

This Article gives an example of this disproportionate impact and recommends that courts consider discrimination in hiring as relevant to whether a parent is voluntarily unemployed for the purposes of imputing income for child support determinations. Part I demonstrates how multiple judicial officers’ distraction, imagination, and misguided reliance on legal fictions, rather than on the facts of the individual’s life, made injustice real in Kim’s life. It attempts to understand judges’ unarticulated reasoning through a re-created conversation. Part II discusses legal treatment of transgender people in general. Part III suggests legal recommendations to promote clearer thinking and more rational decisions within the courts regarding the distracting and emotionally charged issues surrounding transgender individuals. Specifically, I suggest that the legal fiction that permits courts to impute income to unemployed parents should change to explicitly recognize discrimination in hiring. Courts should adopt an evidentiary rule accepting self-reports of gender identity. To facilitate legal thinking that transcends simplistic binary models of human experience, judges should make an effort to understand more about trans people. Judges should also adopt a simple schema for understanding the distinct categories of sex, gender identity, gender expression, and sexual orientation. Judges should be evaluated according to their ability to prioritize facts (here, discrimination against transgender people in hiring, which leads to unemployment) over legal fictions (here, a parent able to work but not working is voluntarily unemployed, rather than the target of discrimination in hiring). Finally, judges should be evaluated for their ability to prioritize facts over their own fears.

Intersections at the Border: Immigration Enforcement, Reproductive Oppression, and the Policing of Latina Bodies in the Rio Grande Valley

Published Jul 14, 2015

A series of events in 2014 brought significant attention to the United States-Mexico border. Over the summer, reports of an influx of undocumented Central American immigrants began circulating.[2] Though most coverage mentioned only children crossing the border, many of these young migrants traveled alongside their mothers. Reports of this influx raised public awareness about the increased level of immigration enforcement at the border and the rise of federal family detention centers in south Texas. That same year, a series of lawsuits against the State of Texas’s House Bill 2, which implemented significant restrictions on reproductive health clinics and abortion services in the state, shone a light on the health crisis facing women in the Rio Grande Valley.

Part I of this paper lays out the constituent systems of immigration enforcement and anti-abortion policies in recent Texas history and situates these systems within larger national trends. Part II addresses the way the systems work together, using a framework of “intersectional subordination” to highlight the particular violence they work upon undocumented immigrant Latina women and Latino/a communities more broadly. Part III gives a brief historical perspective on the intersectional failure of the Chicano/a rights and reproductive rights movements. It argues that the marginalization of Latina women, generally, and activism against Latina reproductive oppression specifically, has contributed to the development of an abortion jurisprudence that fails to remedy the expansive negative outcomes of anti-abortion policies. Finally, Part IV concludes by arguing that the undue burden standard fails to protect marginalized women from violations of their reproductive and bodily rights and argues for reworking abortion jurisprudence and reproductive justice advocacy to better encompass the full intersectional experience and racialized outcomes of anti-abortion policies.

The Inaccessible Road to Motherhood — The Tragic Consequence of not having Reproductive Policies for Israelis with Disabilities

Published Jul 14, 2015

The desire of an individual to become a parent can be very strong, especially in ‘child-centric’ societies, where the idea of having children and raising a family is highly valued. In those societies, the prominent pro-natal nature translates into policies and laws regulating reproduction. The Jewish-Israeli society is a prime example of such a society where the use of state-funded Assisted Reproduction Technologies (ART) is the highest in the world—eight times higher than the international average. However, the road to becoming a parent is not as smooth to all members of Israeli society. A recent case that went all the way to the Israeli Supreme Court proved how the current Israeli reproductive policies, particularly surrounding third-party reproduction methods i.e., adoption or surrogacy, are inaccessible to people with disabilities (among other minority groups) who share the same great desire to become parents.

The Ora Mor Yosef case revolves around a Jewish-Israeli woman with muscular dystrophy who could not bear a child because of her impairment. Her dream of becoming a mother was so powerful that after exhausting all of her other options, she used a surrogate, sperm donation, and egg donation to bring a baby into the world. However, the lack of genetic-biological connection to the baby led the courts to decide not to recognize Ora as the mother, meaning that she never had the chance to even see the baby.

This Paper will examine the exceptional case of Ora Mor Yosef in a broad context and from a “disability legal studies” perspective. It will compare Israeli socio-legal treatment of what I refer to as the right to become a parent with the United States legal system and will show how Israeli law makes it more difficult for women with disabilities to have children. It will continue with a discussion on the concept of disabled motherhood from a comparative Israeli-American perspective. This discussion will illuminate that there are still universal struggles and hardships for people with disabilities, specifically women, as they endeavor to become mothers and in raising their children. By using a Disability Legal Studies framework and a socio-legal analysis, this interdisciplinary paper will bring to the foreground issues and ramifications that were not found in the original reasoning of the Israeli courts’ rulings on the Ora Mor Yosef case, and will demonstrate the crucial role legal institutions play in the social construction of disability and its treatment by society. It is my hope that this paper will therefore help bring more attention to the issue of disabled parents and prevent tragic instances like the one standing in the heart of this paper from recurring.

Medical Transgressions in America’s Prisons: Defending Transgender Prisoners’ Access to Transition-Related Care

Published Jul 14, 2015

With Chelsea Manning’s case making headlines, and hit television show Orange Is the New Black highlighting the struggles of a trans woman in prison, the public is slowly becoming aware of the complex issues facing transgender prisoners. Although it is difficult to determine the precise number of this population, a 2009 study by Brown and McDuffie estimates that approximately 750 prisoners in the United States identify as transgender. This is a relatively small portion of the U.S. prison population, but it represents a sizable portion of America’s transgender population. Nearly one in six transgender Americans—and almost half of the African American transgender population—has been incarcerated in a state or federal prison. Although the issues and concerns of this population have gained more attention in legal scholarship, academia, public policy, and social discourse in recent years, many issues are still largely unresolved for transgender inmates, including their access to medical care.

Part I of this Note will provide a background on gender dysphoria and will introduce the concept of prison as a uniquely and problematically gendered space. Part II will introduce the standard of “serious medical need” that is used in Eighth Amendment jurisprudence, with particular focus on how courts have applied this standard to mental health concerns, a category within which gender dysphoria falls. Part III will introduce the central argument that, while increasingly more courts have found gender dysphoria or gender identity disorder to be a serious medical need, they have done so predominantly—and thus problematically—in cases in which the plaintiff has taken extreme measures to remedy his or her lack of treatment. This arguably establishes a pattern whereby attempted suicide and self-surgery become metrics for evaluating the severity of gender dysphoria, and implies that gender dysphoria is not deserving of treatment until it has reached these catastrophic levels. Part IV will address the tension between using medical rhetoric to secure necessary rights for prisoners and avoiding the pathologization of the transgender community that is inherent in the Eighth Amendment argument. Part V will conclude by providing alternative legal arguments as well as broader policy suggestions that may be used alongside the traditional Eighth Amendment argument to secure medical care for transgender inmates.

Closing the Gap of Justice: Providing Protection for Native American Women Through the Special Domestic Violence Criminal Jurisdiction Provision of VAWA

Published Aug 18, 2014

Soon after Native American Diane Millich and her non-Indian husband got married, they moved into her home, located on the Southern Ute Indian reservation where she grew up. Millich’s husband began routinely abusing her, and within a year she suffered “more than 100 incidents of being slapped, kicked, punched and living in terror[.]” Millich made numerous attempts to call her local tribal and county police for help during these episodes of violence. In fact after one instance of beating his wife, Millich’s husband himself called the sheriff to report what he had done. Because he knew that there was nothing the sheriff could do. That no help would come. That he would never be prosecuted for what he did. Why? Because Millich was a Native American, Millich’s husband was not, and he was abusing her on tribal land. And because of these circumstances, as Millich later observed, “The law couldn’t touch him.” Unfortunately Millich’s circumstance is not an isolated oversight of the law. Many Indian women have not been able to seek help or justice because they happened to be trapped in this scenario: an Indian victim of a non-Indian abuser on tribal land. A recent amendment to the Violence Against Women Act (VAWA), however, was passed to change all this.

Contraceptive Sabotage

Published Aug 18, 2014

This Article responds to the alarm recently sounded by the American College of Obstetricians and Gynecologists over “birth control sabotage”—the “active interference [by one partner] with [the other] partner’s contraceptive methods in an attempt to promote pregnancy.” Currently, sabotage is not a crime, and existing categories of criminal offenses fail to capture the essence of the injury it does to victims. This Article argues that sabotage should be a separate crime—but only when perpetrated against those partners who can and do get pregnant as a result of having sabotaged sex. Using the principle of self-possession—understood as a person’s basic right to self-ownership—this Article argues that women have a self-possessory interest in maintaining their reproductive capacity in its non-pregnant state during and after having sex to the extent they seek to establish with the use or planned use of contraception. Sabotage by sexual partners—typically male—violates this interest and merits criminal punishment. This Article proposes statutory language to criminalize sabotage that should be added to the revision of the Model Penal Code currently underway. Not only would this addition likely survive any Equal Protection challenge, it would arguably serve to strengthen the existing constitutional right to non-procreative sex by setting meaningful limits on one partner’s ability to interfere unilaterally with the other partner’s contraceptive decisions.

Restoring Balance to Abuse Cases: Expanding the One-Sided Approach to Teaching Domestic Violence Practice

Published Aug 18, 2014

“Balance” is an elusive concept in the domestic violence field. Equilibrium can always be threatened by tension between attorney and client, between the parties and the legal system, and, of course, between the parties themselves. Abusive relationships are inherently unbalanced; the abusive partner maintains power and control by systematically overcoming the will of the other partner, often using violence and coercion. When an abuse case enters the legal system, therefore, the playing field is anything but level.

An “I Do” I Choose: How the Fight for Marriage Access Supports a Per Se Finding of Persecution for Asylum Cases Based on Forced Marriage

Published Aug 18, 2014

In the summer of 2013, the country waited anxiously for the Supreme Court to issue rulings in two landmark gay marriage cases that had the potential to fundamentally alter the institution of marriage in the United States. Advocates and opponents of same-sex unions fiercely debated the issue, but although the two sides’ positions were widely divergent, each emphasized the unique role of marriage in the social, personal, and legal fabric of life. Edie Windsor, the named plaintiff in the lawsuit seeking to strike down § 3 of the Defense of Marriage Act (DOMA), agreed. Ms Windsor had been in a committed relationship with her partner for forty years prior to their marriage in 2007. Yet she stated that the transformation after entering into the legal union “was profound” and that she has “asked everybody since who gets married after long-term relationships, ‘Did it feel different the next day?’ and the answer is always ‘Yes, absolutely.’”

Deconstructing Rape by Fraud

Published Aug 18, 2014

In this Article, I critically examine the role of normative masculinity in determining the shape and scope of the criminal law doctrine of rape by fraud, which purports to criminalize sexual intercourse procured through certain material deceptions. In application, the rape by fraud doctrine is exceedingly narrow—deceptively induced sexual intercourse is rarely criminalized as rape, despite deception’s profound impact on the voluntariness of sexual consent. As the Article explains, the rape by fraud doctrine is thus in tension with the prevailing view that rape law principally protects a thick norm of individual sexual autonomy. Despite this tension, the narrowness of the rape by fraud doctrine is frequently defended, often by those who are most committed to individual autonomy elsewhere in rape law.

Through an analysis of court decisions and academic commentary, I demonstrate that those defenses largely rest on appeals to a romanticized ideal of the practice of seduction. I illuminate the link between seduction and a prevailing ideology of normative masculinity that allocates social status for men on the basis of demonstrations of sexual conquest. That ideology perpetuates narratives in which women, through their capacity to grant or withhold consent, hold power over men when pursued as objects for sex. Indeed, within this account, the transgression of women’s power is what makes sexual conquest worthy of masculine status. Deceptions used to procure sex are criminalized only in exceptional cases where the narratives of interpersonal power break down. Thus, the rape by fraud doctrine can be seen as codifying existing limits on masculine status transfer. Ultimately, I argue that understanding the rape by fraud doctrine in terms of normative masculinity exposes an important continuity between contemporary rape law and rape law historically, in which rape was a crime against men’s property interest in women.

Realizing the Right to Reparations for Girl Soldiers: A Child-Sensitive and Gendered Approach

Published May 18, 2014

The 2012 guilty verdict issued by the International Criminal Court (ICC) in the Thomas 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.

The Story of Jewish Polygamy

Published May 18, 2014

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

Published May 18, 2014

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

Published May 18, 2014

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.

An Offer You Can’t Refuse: Coercing Consent to Surgery through the Medicalization of Gender Identity

Published May 18, 2014

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.