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Jeffrey Lubbers
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Maya Manian
This chapter of FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Linda Berger, Bridget Crawford & Kathryn Stanchi, eds. 2016) provides commentary on Lucinda Finley’s rewritten majority opinion in Geduldig v. Aiello, 417 U.S. 484 (1974). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for what the law of sex equality could have been. In Geduldig, the United States Supreme Court infamously held that pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Geduldig decision upheld a California state disability insurance program that denied benefits for pregnancy-related disability, while granting benefits for virtually every other disabling event ranging from prostatectomies to cosmetic surgery. Despite sustained criticism, the Geduldig decision has never been explicitly overruled and continues to constrain women’s access to substantive equality and reproductive liberty. Lucinda Finley’s feminist judgment responds to the faulty formalist logic of the original opinion in several important, distinctively feminist ways. Finley’s feminist judgment reaches beyond the formal appearance of justice and seeks substantive fairness for women in the public sphere. The landscape of sex equality law would look dramatically different if the Court had adopted Lucinda Finley’s feminist judgment — a tantalizing possibility since the intellectual foundations for this feminist judgment existed at the time.
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Nancy D. Polikoff
Summary
INTRODUCTION
Joan Stanley died of cancer in 1968, leaving behind her unmarried partner of eighteen years, Peter Stanley, and their two young children, Kimberly, one and a half years old, and Peter Jr., two and a half years old. In Illinois, a legal “parent” included both married and unmarried mothers but only married fathers. Therefore, the State of Illinois instituted a court proceeding to make the children wards of the state because they lacked parents.
The hearing that followed was brief. The evidence showed that Peter and Joan Stanley were not married, that Peter Stanley was the father of the children and had lived with and supported them, and that at some point after Joan Stanley's death, Peter Stanley had arranged for the toddlers to live with his friends, the Nesses. The state's attorney did not allege that Peter Stanley had neglected the children. The judge concluded that the children lacked parents as a matter of law, made them wards of the state, and appointed the Nesses as guardians.
Stanley appealed to the Illinois Supreme Court, where he again lost. He then obtained review in the U.S. Supreme Court, where he argued that declaring his children to be wards of the state without a showing of his parental unfitness violated his right to due process under the Fourteenth Amendment. He prevailed. The Court determined that Stanley had a substantial interest in “the children he had sired and raised.” The Court had never before made such a statement about a nonmarital father. It ruled that as a matter of due process, all parents, including Peter Stanley, were constitutionally entitled to a hearing on fitness before the state could assume custody of their children. The Court rejected the state's argument that unmarried fathers were so seldom fit that it was administratively inefficient to provide them all hearings. It reasoned that “the Constitution recognizes higher values than speed and efficiency.”
LARGER CONTEXT
For hundreds of years, a set of laws had punished sex outside of marriage, imposed catastrophic consequences for bearing children outside of marriage, assumed and fostered “separate spheres” for men and women, and imposed gendered requirements within marriage. By the end of the 1970s, those laws had changed, with the U.S. Supreme Court playing a major role in the legal transformation.
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Macarena Saez
Summary
In 1980, after the divorce of Randy and Melody DeShaney, a court granted Randy DeShaney custody of his one-year-old son, Joshua.1 In 1982, Winnebago County Department of Social Services (DSS) received the first report that Joshua may have been subject to abuse by Randy. DSS, however, took no action until 1983, when hospital authorities notified DSS that Joshua had been admitted with injuries consistent with child abuse. DSS ordered Joshua’s temporary removal from the parental home and formed an ad hoc team to review Joshua’s situation. The team decided that there was no conclusive evidence of abuse and returned Joshua to Randy, issuing several recommendations agreed to by Randy, including that he obtain counseling services, enroll Joshua in a preschool program, and that his girlfriend move out of the home (on suspicion that she may be abusing Joshua).
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Brenda Smith, Maria L. Ontiveros, Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford
What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? Feminist Judgments brings together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant US Supreme Court cases on gender from the 1800s to the present day. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions reveal that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice. Feminist Judgments opens a path for a long overdue discussion of the real impact of judicial diversity on the law as well as the influence of perspective on judging.
- Contains contributions from more than 50 feminist scholars and lawyers, so readers will learn about feminist reasoning from experienced writers and thinkers
- People interested in the Supreme Court, politics, feminism and women's studies will gain from varied and informed perspectives through a feminist lens
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David Snyder
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David Snyder
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Lindsay Wiley, Manel Kappagoda, and Anne Pearson
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Richard Wilson
No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of prisoners, both accused and convicted, between countries. Finally, the chapter will conclude with an analysis of the impacts on the capital sentencing of foreign nationals in the U.S. courts, particularly as a result of the U.S. executive branch and courts’ efforts at compliance with the judgment of the International Court of Justice in the Avena case, involving 51 Mexican nationals on death row in the U.S.
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Christine Farley
Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. In this chapter, I review the policy goals and challenges in barring the registration of offensive marks and conclude that trademark law can play an important, albeit limited role in fostering diversity. U.S. trademark law only seeks to regulate the registration and not the use of offensive trademarks. Nevertheless, the symbolic gesture of the federal government cancelling the registration of a mark on the basis that it disparages people is significant and may affect the way society views the mark. Thus the government can perform important signaling for civility without abridging the freedom of speech.
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Christine Haight Farley
Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. In this chapter, I review the policy goals and challenges in barring the registration of offensive marks and conclude that trademark law can play an important, albeit limited role in fostering diversity. U.S. trademark law only seeks to regulate the registration and not the use of offensive trademarks. Nevertheless, the symbolic gesture of the federal government cancelling the registration of a mark on the basis that it disparages people is significant and may affect the way society views the mark. Thus the government can perform important signaling for civility without abridging the freedom of speech.
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Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, and Anne van Aaken
ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.
The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral institutions to a survey on this topic. Articles focussing on precision address burdens, standards and procedures in respect of proof; interim measures and document production; witnesses and experts; and standards governing investor misconduct in investment arbitration.
The volume opens with a spirited Keynote Address in defence of bilateral investment treaties and also reports the results of a theme-related empirical survey of Congress Participants on demographics, precision and justice in international arbitration, carried out during the Opening Plenary Session of the Congress.
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Lewis Grossman
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Diane Orentlicher
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Diane Orentlicher
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Macarena Sáez
This book explores the tension between same-sex marriage and traditional structures of family law. It moves from countries that have recognized same-sex marriage and are now adjusting to a new family law structure, to countries where same-sex marriage is viewed as a foreign institution, only possible as an academic theoretical conversation,. The book covers analyses of countries as diverse as Turkey, Israel, Jamaica, Colombia, Mexico, Spain, and the United States. It is divided in chapters that look at each country’s individual experience in recognizing same-sex couples in general, and same-sex marriage in particular. From systems that still deny the existence of same-sex emotional relations, to systems that have reinforced marriage through the recognition of same-sex marriage, we see countries in transition, dealing with a tension between rigid concepts of family and flexible family structures that allow for protection of families outside the realm of the heterosexual married family. There are some common elements among countries that have recognized same-sex marriage or that are in the process of recognition. At the same time, countries that deny the legal existence of same-sex couples and their families also share common elements.
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Macarena Sáez
This Chapter gives a brief analysis of the status of same-sex marriage in the United States prior to the US Supreme Court decisions of 2013 and the current status of litigation and political reforms triggered, in part by the court decisions. It shows that marriage is a central institution in the country’s rationale of family law in ways that separate it from other Western countries that have allowed same-sex marriage.
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Robert Tsai
This contribution explores the development of legal language in nineteenth-century America as a species of political discourse. In particular, I sketch the broad, competing trends in legal language. On the one hand, legal rhetoric became more popular and fragmented, as the sources of law multiplied. On the other hand, the law also became increasingly sophisticated and specialized with the rise of institutions. These features on the surface of legal rhetoric hinted at deeper changes in the imperatives of political development and efforts at cultural resistance.
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Padideh Ala'i and Matthew D'Orsi
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