Similar Journals
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William & Mary Journal of Women and the Law
Number of Followers: 2  Open Access journalISSN (Print) 1081-549X - ISSN (Online) 1942-6763 Published by College of William and Mary  [5 journals]
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- Accessing the ARTs: The Use of Reproductive Justice in the Fight for LGBT+
Rights
Authors: Leila Y. Vicinelli
Abstract: Procreation has long been an integral component within the family structure. While the ability to produce offspring was once a privilege reserved for fertile, heterosexual pairings, modern advancements in Assisted Reproduction Technology (ART) have made same-sex procreation possible. Although ART makes it possible for same-sex couples to biologically produce offspring , accessibility to treatment is often hindered by financial, legal, and social impediments. This Note will explore the current limitations on LGBT+ accessibility to ART treatments and provide much needed solutions for these challenges. In a post-Obergefell world, the prominence of and rights owed to same-sex households can no longer be disregarded.
PubDate: Mon, 05 Aug 2024 12:52:54 PDT
- What We Pretend To Be: Codifying a Right to a Religious Advisor in the
Execution Chamber
Authors: Claire R. Jenkins
Abstract: Over the last fifty years, the Supreme Court has moved the pendulum both toward religious accommodation and away from it. After a decade of oscillating Court decisions, multiple attempts at corrective action by Congress, and widespread social activism, the Religious Land Use and Institutionalized Person’s Act, or RLUIPA, was passed in 2000. RLUIPA was designed to fortify the rights of incarcerated persons and provide clarification to the Religious Freedom Restoration Act. As of 2024, the Supreme Court has granted certiorari in only a few RLUIPA cases—and has decided even less about the application of the law to death row inmates. The swinging pendulum of accommodation rights has been detrimental to the religious rights of people on death row who seek final spiritual comfort during their execution and death. In 2022, the Supreme Court addressed the issue most notably in Ramirez v. Collier, although the decision was surrounded by a litany of other cases, many of which were on the “shadow docket.” These decisions precipitated a variety of ill effects which left lower courts confused. State legislatures were also pulled into the ambit of chaos—they were left to their own devices to strike a proper balance between an inmate’s rights under RLUIPA and their interest in maintaining prison safety during executions. Since then, people throughout the United States are left to wonder whether the American culture of spirituality and religious pluralism extends to the isolation of the execution chamber. Most importantly, people on death row seeking spiritual guidance and comfort during their execution are left at the secular mercy of prison administrators rather than the sacred and holy principles and deities that are central to their faith. In this Note, I argue that the exclusion of spiritual advisors from the execution chamber is wholly inconsistent with the First Amendment value of religious freedom, and that any proffered state interests are not compelling enough to circumvent this right or have already been satisfied through alternative mechanisms. Finally, I will argue RLUIPA should be amended to explicitly apply to death row inmates, thus providing a specific protection against government interference with final religious advisements.
PubDate: Mon, 05 Aug 2024 12:52:50 PDT
- Cherry-Picking History: Witchcraft, the Common Law, and the Weaponization
of Substantive Due Process
Authors: Sarah E. Bradley
Abstract: In 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law jurisprudence as its chosen “history and tradition” to strike down Roe v. Wade. In doing so, the Court demonstrated its ability to weaponize substantive due process with originalist theory, threatening to utilize the very doctrine that many civil liberties are based in to strike those down.This Note uses a combination of historical analysis and social science to criticize this approach to substantive due process, using one of the common law authorities the Dobbs majority cited— scholar and witch-hunter Sir Matthew Hale—as an example of the type of history the Court has the potential to recreate. It argues that the Court’s decision to treat Hale as a legal authority enshrines the culture of oppression through witch-hunting that contributed to the Salem Witch Trials, paving the way for a legally enforceable codified morality. It ultimately concludes with a criticism of the overutilization of common law and an assertion of alternate means to argue abortion rights, combined with a prediction of the potential downfall of substantive due process.
PubDate: Mon, 05 Aug 2024 12:52:46 PDT
- Missing Coercive Control in Family Court Proceedings
Authors: Carrie Leonetti
Abstract: In New Zealand, like in the United States, coercive control generally remains outside the purview of the criminal law. It is therefore crucially important that court personnel identify and respond appropriately to coercive control in family law proceedings. Their continued focus on discrete incidents of physical violence between adults conceals the patterned and gendered nature of most [interpersonal violence] in which women are victimized and the patriarchal context of male privilege that continues to dominate heterosexual relationships. The failure to identify coercive control contributes to victims’ entrapment and increases the risk of violence continuing post-separation.Cases involving coercive control generally require substantial protections for victims and their children to be safe after separation. Research demonstrates that the most effective way to protect [family violence] victims from additional violence is a systemic response that prioritizes their safety and holds perpetrators accountable. If judges, lawyers, and psychologists who work in the [New Zealand] Family Court are not able to understand coercive control, they cannot protect victims and may expose them to further harm. Court professionals who fail to recognize and understand the harms that stem from coercive control inadvertently enable and collude with perpetrators.This abstract has been adapted from the author's conclusion.
PubDate: Mon, 05 Aug 2024 12:52:43 PDT
- Mother vs. Father: The Right to the Naming of Children in the United
States and Australia
Authors: Deborah Anthony
Abstract: In England, surname use was at one time quite variable and individualized. This was particularly true for women, who historically held individualized surnames reflecting their specific traits, occupations, statuses, or family relations. Women sometimes retained their birth names at marriage and passed those names on to their husbands and children. But these diverse surname practices eventually disappeared from practice and from collective social memory in England. The new restrictive inherited practice then became highly entrenched in both Australia and the United States, with the latter seeing not only social but legal forces arising to enforce it. Legal battles eventually arose concerning the scope of women’s right to surname autonomy, particularly in the United States. These conflicts extended to the naming of children in the latter half of the twentieth century.Women in both Australia and the United States now have a recognized right to retain their birth names after marriage. However, when it comes to the naming of children in the event of disagreement between the parents, analysis of statutes and court cases involving child surname disputes reveals that women’s rights are still legally secondary to those of men in the United States, often in effect and sometimes even directly by law. The same is much less true of Australia, where women regularly prevail in such cases.While each nation ostensibly applied the same English common law in the application of surname requirements, both judicial interpretation of the legal requirements and empirical results of those interpretations are strikingly at odds with each other. This reveals the volatility and subjectivity of what is ostensibly a consistent and reasonably objective common law system.
PubDate: Mon, 05 Aug 2024 12:52:39 PDT
- Table of Contents (v. 30, no. 3)
PubDate: Mon, 05 Aug 2024 12:52:35 PDT
- The Color of Money: How Our Broken Campaign Finance System Fuels Racial
Inequality
Authors: Blair T. Page
Abstract: The laws upholding our campaign finance system are inadequate and under-enforced. These problems are felt disproportionately by African American voters. Election law experts agree that the structure and enforcement authority of the Federal Election Commission (FEC) severely limits the ability of the agency to achieve its goals. Several Supreme Court decisions have also limited the ability of Congress to control campaign contributions and expenditures. Tracking expenditures from corporations, groups, and individuals (to the extent possible), will show the link between favorable outcomes for these groups and their detrimental effects on African Americans. While closing racial disparities in wealth allows for African Americans to participate equally in the arms race of political contributions and expenditures, this too is harmful for our democracy. A limit on independent expenditures and public financing in federal elections would be a more feasible and equitable approach, as it would not drown out the voices of those with less resources. By setting these limits on campaign spending, African American voters will see a more responsive political class and a reduction in harm from monied interests.
PubDate: Tue, 25 Jun 2024 13:00:23 PDT
- Growing Pains: An Arkansas Case Study on Adolescent Autonomy and Access to
Puberty Blockers for Gender-Affirming Care
Authors: Katherine T. Litaker
Abstract: Arkansas Act 626 outlaws any gender-affirming medical treatment for persons under eighteen years of age. This Note focuses on the evolving litigation surrounding Arkansas Act 626, the potential repercussions of the issues facing transgender adolescents, and the legal protections that may be implemented whether or not Arkansas Act 626 is upheld as a constitutional piece of legislation. It begins by examining the standard bases for administering puberty blocker treatments and addressing many of the misconceptions in medical treatment that have influenced the shaping of legislation on transgender healthcare. The Note discusses the current legal barricades for adolescents trying to access puberty blockers and then proceeds to suggest alternative routes to puberty blocker access should Arkansas Act 626 be upheld or even denied. Overall, the Note chooses to highlight how the personhood and dignity of transgender minors is on the line, and how decision-making autonomy should be afforded to minors in making decisions regarding the trajectory of the bodies they must inhabit.
PubDate: Tue, 25 Jun 2024 13:00:19 PDT
- If Black Lives Really Matter, We Must End Traffic Stops!
Authors: Kenneth Williams
Abstract: This Article will argue that African Americans will continue to be fatally shot and killed by police disproportionately and in many cases unjustifiably as long as police are allowed to stop motorists for minor non-violent traffic infractions. These stops do little to combat crime and are not worth the lives they upend and the continued unconstitutional racial discrimination that motivates many of these stops. Although the standards for police use of force need to be reformed and police culture has to be changed, the other reform that is imperative in order to significantly reduce the disproportionate fatal police shootings of African Americans is to minimize interaction between police and African Americans and the best way to accomplish this is by eliminating non-violent traffic stops. Police should only be able to stop civilians for violations that truly pose a danger to public safety. However, this Article is not advocating that traffic infractions be ignored. Rather, this Article will argue that there are safer and more efficient means of enforcing traffic rules without police-initiated traffic stops.This abstract has been adapted from the author's introduction.
PubDate: Tue, 25 Jun 2024 13:00:15 PDT
- The Imperative of Rejecting "Gender-Critical" Feminism in the
Law
Authors: Henry F. Fradella
Abstract: Roughly a half-century ago at the height of the second-wave feminist movement, some feminist scholars and activists found themselves arguing with transgender people about who is a woman. While much of contemporary feminist thought has moved past biological essentialism’s outdated embrace of a sex binary to embrace trans-equality, a relatively small but vocal group of self-proclaimed “gender-critical feminists” (who are sometimes called trans-exclusionary radical feminists, or “TERFs” for short) eschew transgender legal rights that they perceive as potentially threatening to the rights of cisgender women. Most gender-critical arguments in that regard are fallacious; they are based on myths and false narratives that misconstrue or ignore empirical data from both the natural and social sciences. Worse yet, the gender-critical position not only threatens to undermine equality under law, but also fosters narratives that contribute to the criminal victimization of transgender persons. In an attempt to minimize the potential for such harmful outcomes, this Article seeks to dismantle some of the more common arguments that gender-critical feminists routinely offer so that judges and lawyers have a source of legal literature that corrects the misinformation gender-critical authors are spreading in this emerging field, thereby providing them with the evidence needed to craft accurate legal arguments and rulings.
PubDate: Tue, 25 Jun 2024 13:00:12 PDT
- Critical Race Theory Bans and the Changing Canon: Cultural Appropriation
in Narrative
Authors: Susan Ayres
Abstract: Thirty-five states have enacted critical race theory (CRT) bans at the level of elementary and secondary public education, and eleven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of anti-racism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo to the United States to be exhibited at the 1904 St. Louis World’s Fair as a pygmy, and in 1906 at the Bronx Zoo. In addition to discussing Benga’s physical appropriation for the purpose of demonstrating scientific views about the racial superiority of whites, this Article considers literature about Benga and the literary canon in general, in order to explore the complicated question of when does cultural appropriation harm the insider or marginalized community, such that the work should be deemed a failure or whether it can be recuperated. Literary works that succeed in depicting another culture are important and effective tools for a pedagogy of anti-racism because they offer empathic portrayals and social critiques of racism.
PubDate: Tue, 25 Jun 2024 13:00:08 PDT
- Table of Contents (v. 30, no. 2)
PubDate: Tue, 25 Jun 2024 13:00:04 PDT
- Terrorism Should Not Be a Crime: How Political Labels Are Dangerous to
American Democracy
Authors: Abigail S. Grand
Abstract: This Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III courts are the most adept forum to prosecute crimes relating to terrorism. However, the way they do so should be depoliticized and focus on substantive crimes, rather than offenses political in nature. Lastly, it addresses how nationwide hysteria surrounding “terrorism” gives rise to increased Islamophobia and intolerance, thus becoming a de facto campaign against Muslim Americans.
PubDate: Thu, 16 May 2024 05:42:33 PDT
- The Demise of Housing First Policy: The New Missouri Policy That
Criminalizes Homelessness
Authors: Kaitlyn Frerking
Abstract: This Note examines the potential negative complications of Missouri H.B. 1606. The Note also explores possible avenues for relief through litigation or policy reform. H.B. 1606 is a Missouri state bill that altered the State’s policy towards decreasing the rate of homelessness in the State of Missouri. Prior to H.B. 1606, Missouri’s homelessness policy resembled a “Housing First” approach where emphasis was placed on providing affordable permanent housing to those without homes. With the passage of H.B. 1606, the policy turned towards supporting short-term housing initiatives and abandoned the “Housing First” approach. H.B. 1606 also contains a provision that makes it a crime for homeless individuals to sleep on public land. This Note discusses why the provisions of H.B. 1606 are problematic for the homeless population and the organizations that support them, how the language of H.B. 1606 may jeopardize the State of Missouri’s receipt of federal funding, the merits of “Housing First” Policy, and the remedies that exist for defending against H.B. 1606 or rectifying it through legislation.
PubDate: Thu, 16 May 2024 05:42:29 PDT
- The Co-Optation of Restorative Justice and Its Consequences for an
Abolitionist Future
Authors: Alicia Virani
Abstract: This Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities of the criminal punishment system. Part II describes how RJ has been co-opted by law enforcement, prosecutors, courts, and state law. I provide examples of how co-optation occurs via these state actors and how this cooptation results in a distortion and often a complete obfuscation of RJ’s fundamental principles. Finally, Part III discusses how the cooptation of RJ lends legitimacy to the criminal punishment system and expands the web of punitive actors in a way that detracts from abolitionist goals. It also contemplates whether all hope is lost with RJ or whether it can be utilized as an incremental step towards abolition.This abstract has been taken from the author's introduction.
PubDate: Thu, 16 May 2024 05:42:25 PDT
- Human Rights, Human Duties: Making a Rights-Based Case for Community-Based
Restorative Justice
Authors: Aparna Polavarapu
Abstract: Restorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. First, it takes a step towards filling the relative absence of robust analysis exploring modern day-to-day restorative justice—as opposed to the transitional justice or purely indigenous justice mechanisms—from the perspective of human rights law. Second, it engages with the relatively neglected discourse on non-state individual and community duties to promote human rights and joins the voices arguing for the recognition of such duties. Third, this Article theorizes the content of the dignity claim held by parties who have been harmed or committed harm. It then develops the corresponding duty to promote human dignity after an interpersonal harm has been committed. This Article concludes by arguing that this duty is at least partially fulfilled by community-based restorative justice practices. When engaging in these practices, duties are mainly borne by individuals and nonstate communities, with the state bearing duties to permit and support such practices, to the extent those practices meet their ethical obligations, as well as to meet certain needs.
PubDate: Thu, 16 May 2024 05:42:21 PDT
- The Uncertain Future of Restorative Justice: Anti-Woke Legislation,
Retrenchment and Politics of the Right
Authors: Thalia González et al.
Abstract: As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the future of school-based restorative justice within the expanding politics of the right and resurgence of carceral logics in public education' In posing this inquiry, this Article is guided by two core purposes. First, to amplify the increasing precariousness of educational equity and access for students who have long existed at the margins of public schools under anti-Black regimes. Second, to sound an alarm as to the expanding reality that school-based restorative justice is not only at risk, but under threat. From these vantage points, this Article joins with scholars, activists, and communities organizing for democracy and liberation in the face of a renewed ecosystem of punishment and exclusion promulgated in the name of school safety, choice, and parental rights.
PubDate: Thu, 16 May 2024 05:42:18 PDT
- Table of Contents (v. 30, no. 1)
PubDate: Thu, 16 May 2024 05:42:13 PDT
- Beating Justice: Corporal Punishment in American Schools and the Evolving
Moral Constitution
Authors: Timothy D. Intelisano
Abstract: This Note will discuss the Supreme Court’s holding in Ingraham v. Wright, and the subsequent developments in public school corporal punishment practices. Rather than focus exclusively on the case law, this Note will dive into the statistical data outlining which students are most often subjected to corporal punishment. Often, it is Black students and Autistic students who are subject to the harshest treatment.This Note will outline the different avenues that courts could and should take to overrule Ingraham. Because a circuit split exists—on the issue of how to resolve these claims—overturning Ingraham and declaring corporal punishment per se unconstitutional would provide much needed relief to public school students across the country. There are viable Eighth, Fourteenth, and Fourth Amendment challenges. Each will be discussed in turn. In a time where public education is dealing with residual issues related to the coronavirus pandemic, teacher shortages, and severe underfunding, corporal punishment needs to be removed from the disciplinary toolkits of teachers and administrators. Fundamental fairness demands that Ingraham be seen as what it is—a sign of times long past. Our evolving standards of decency demand a rejection of public-school corporal punishment.
PubDate: Tue, 20 Jun 2023 10:52:56 PDT
- Friends With Benefits: Expanding Virginia's Domestic Violence and
Mutual Protection Order Statutes to Include Reciprocal Beneficiaries
Authors: Faith A. Parker
Abstract: On June 26, 2015, the Obergefell decision recognized same-sex marriage. While same-sex couples celebrated their new rights to marriage equality, they still face legal battles in the realm of domestic violence. Both married and unmarried same-sex couples face discrimination when reporting incidents of domestic violence. While most domestic violence statutes are gender-neutral on their face, their implementations disparately impact same-sex couples. Furthermore, domestic violence statutes that include same-sex couples punish same-sex couples more harshly than opposite-sex couples. This Note will examine the domestic violence law in Virginia, arguing that the laws are too vague to properly protect same-sex couples and that mutual restraining orders are an undue burden on same-sex couples seeking protection in domestic violence cases.
PubDate: Tue, 20 Jun 2023 10:52:52 PDT
