JournalTOCs

William & Mary Journal of Women and the Law
Number of Followers: 1

This is an Open Access Journal

Open Access journal
ISSN (Print) 1081-549X - ISSN (Online) 1942-6763
Published by College of William and Mary

[5 journals]

As Muddy as the Mississippi River: An Examination of Louisiana Jury Venire
Creation Procedures
- Authors: Kristen M. Vicknair
  Abstract: Americans expect their constitutional rights to be respected by the federal, state, and local governments, but a lack of transparency on a government’s behalf prevents Americans from being able to trust their governments fully. This Note demonstrates the astounding lack of transparency in Louisiana parishes’ jury venire creation procedures, which prevent Louisianans from trusting that their communities are represented by a fair cross-section on jury venires. The same lack of transparency restricts any constitutional challenges of the representation on appeal, as the major test for the fair cross-section, the Duren test, requires a showing of systematic exclusion on the government’s behalf. Without access to these venire creation processes, defendants’ challenges fail on appeal, potentially increasing Louisiana’s mass incarceration problem and allowing parish governments to continue avoiding accountability. This Note examines the venire creation procedures of three Louisiana parishes, comparing their transparency to that of the federal court system. Additionally, this Note offers solutions for the Louisiana State Legislature to reform these processes, especially in light of the clear under-representation of minorities in Jefferson Parish jury venires. Louisiana is no stranger to constitutional problems, but the current generation of Louisianans no longer blindly accepts the state’s failures, such as local governments’ lack of transparency and the criminal justice system’s blatant denial of constitutional rights.
  PubDate: Fri, 25 Feb 2022 10:23:50 PST
Working on the Other Side of the Fence: Relief for Incarcerated
Individuals After Employment Discrimination
- Authors: Hannah C. Merrill
  Abstract: One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” job opportunity. This Note will demonstrate that the distinction between forced and optional labor made by the circuit split is untenable today. Further, regardless of what test determines “employee” status, this Note proposes courts should find incarcerated workers to be employees and thus covered under employment discrimination statutes. All workers deserve to be, and should be, protected by the courts from discrimination in the workplace regardless of their incarceration status. To recognize the employee status of incarcerated workers would be to fulfill the purpose of the statutes by protecting vulnerable workers and creating a safer work environment.
  PubDate: Fri, 25 Feb 2022 10:23:47 PST
Making the Impractical, Practical: A Modest and Overdue Approach to
Reforming Fourth Amendment Consent Search Doctrine
- Authors: Augustine P. Manga
  Abstract: At some point in your life, you may have a personal encounter with a police officer. During that moment, you may feel utterly powerless, especially if you do not know your rights. One important right that police are not required to inform people of is their right to deny an officer’s request to search their property. Forty-eight years ago, the Supreme Court made its position clear in Schneckloth v. Bustamonte that requiring law enforcement to provide citizens with this warning would be “thoroughly impractical.” Since then, the relationship between law enforcement and society—especially communities of color—has gradually deteriorated, and states have slowly turned away from Schneckloth’s rationale. As such, this Note revisits Schneckloth and takes a closer look at the inconsistencies within the Court’s current consent search doctrine. This Note also explores the Court’s problematic and unrealistic “totality of the circumstances” approach and the realities of consenting as a person of color. Ultimately, this Note proposes that all states adopt a modest approach to consent searches by requiring all police officers to provide warnings before requesting consent.
  PubDate: Fri, 25 Feb 2022 10:23:44 PST
#BlackLivesMatter: From Protest to Policy
- Authors: Jamillah Bowman Williams et al.
  Abstract: We find that the protests of 2020 did indeed begin a paradigm shift in the social awareness of racialized police violence, and this important and significant social change has in turn already inspired political change and some degree of legal and policy change. However, the movement remains in a precarious position and it is uncertain how enduring these changes will be. While many state legislators and local officials have responded to the protests with policy reforms, policy action at the federal level is mostly stalled. In addition, it is unclear whether the state and local policy changes will lead to the deeper and lasting structural changes sought by the movement. We are also observing substantial backlash policy that threatens to not only derail current racial justice efforts, but also exacerbate the underlying inequalities that the movement opposes.
  PubDate: Fri, 25 Feb 2022 10:23:40 PST
Reform, Retrench, Repeat: The Campaign Against Critical Race Theory,
Through the Lens of Critical Race Theory
- Authors: Vivian E. Hamilton
  Abstract: The protest movement ignited by the 2020 murder of George Floyd was of a scale unprecedented in U.S. history. The movement raised the nation’s consciousness of racial injustices and spurred promises—and the beginnings—of justice-oriented reform. Reform and racial progress, however, have rarely been linear over the course of U.S. history. Instead, they typically engender resistance and retrenchment. The response to the current justice movement is no exception. One manifestation of the retrenchment has been a rush by states to enact legislation curtailing race-related education in government workplaces and in public schools, colleges, and universities.These legislative measures purport to prevent the teaching of “divisive” tenets of Critical Race Theory (CRT), an intellectual discipline that originated in the legal academy in the 1980s. The proposed bills and enacted statutes, however, will instead prevent educators, for fear of incurring threatened penalties, from teaching about the role of racism in U.S. history and engaging students in meaningful discussions about race. If they remain in place, the laws increase the chances that the next generation of students will remain uninformed of the racial history of the United States and its legacy and will thus come of age unmotivated—and unequipped—to improve upon it.This Article describes first the racial justice movement that surged after Floyd’s murder, then the resistance and retrenchment that rapidly followed. Next, it draws on CRT to place these events in historical and theoretical context. It describes the intellectual predecessors of CRT, the emergence of CRT as an intellectual and political movement, and its core insights. It explains how the insights of CRT, despite being caricatured by conservative opponents of race reform, instead explain the retrenchment and backlash to the racial justice movement—including the evolution of the ideologies that anchor it, and the use of institutions, including the law, to entrench the status quo and the racial hierarchies it comprises.
  PubDate: Fri, 25 Feb 2022 10:23:38 PST
Breathing Room for the Right of Assembly
- Authors: Tabatha Abu El-Haj
  Abstract: This Article explores the legal and political fault lines that the wave of protests highlighting police violence and systemic racism in the summer of 2020 reveal. It focuses in depth on Detroit, Michigan, as a window into the ways that the First Amendment, as currently construed, under-protects those seeking political change and racial reckoning by demonstrating in the streets.
  PubDate: Fri, 25 Feb 2022 10:23:35 PST
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got to Go!": The Expressive
Fourth Amendment Argument
- Authors: Karen J. Pita Loor
  Abstract: The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment protections, as conceived by its Framers. The first part of this Essay provides an account of mass arrests during the George Floyd protests in Los Angeles, the city with the largest number of reported arrests in the initial demonstrations. The second part of this Essay begins by briefly reviewing the Expressive Fourth Amendment, a doctrine the author previously introduced, which posits that the Framers designed the Fourth Amendment to protect freedom of expression, in addition to the prevailing understanding of its safeguard of bodily integrity. The Expressive Fourth Amendment shields from government overreach individuals engaged in political expressive conduct. Here, this Essay expands upon this doctrine by querying how this protection should apply to mass arrests during protests and ultimately concludes that courts should demand both that a police officer establish probable cause for each protester swept up in a mass arrest and that judges positively weigh an individual’s expressive conduct when determining whether an arrest was reasonable in the totality of the circumstances.
  PubDate: Fri, 25 Feb 2022 10:23:32 PST
Foreword
- Authors: A. Benjamin Spencer
  PubDate: Fri, 25 Feb 2022 10:23:29 PST
Table of Contents and Masthead (v. 28, no. 1)
- PubDate: Fri, 25 Feb 2022 10:23:26 PST
Mommy, Baby and Rapist Makes Three' Amid Abortion Bans, the Pressing
Need for a Nationwide Lower Standard to Strip Parental Rights, Regardless
of a Rape Conviction
- Authors: Melanie Dostis
  Abstract: Among the fundamental rights recognized in the Constitution are the rights of parents to raise their children. While never interpreted as an absolute legal privilege, courts have exercised wide discretion in preserving this right and historically ignored the reality that not all parents are deserving of this right. Even though the family law system has protections in place to terminate parental rights for atrocities like abuse, it largely neglects an uncomfortable area of parental origin: parental rights regarding children conceived by rape. This is not only to the detriment of children, but, as this Note argues, at the peril of some mothers.This Note will argue that the renewed attempts to restrict abortion access—amidst the ongoing reliance on targeted restrictions on abortion providers (TRAP) laws—is an impetus for all states to finally adopt a clear and convincing standard in stripping the parental rights of a parent who conceives a child through sexual assault, regardless of a conviction.
  PubDate: Fri, 25 Jun 2021 05:47:15 PDT
Taking the Lead: A Strategic Analysis of Stealthing and the Best Route for
Potential Civil Plaintiffs to Recover
- Authors: McKenney Cornett
  Abstract: A pervasive trend invading the sexual interactions between men and women, and homosexual men, is “stealthing” or “nonconsensual condom removal.” Stealthing garnered national and legal attention following Alexandra Brodsky’s article and study concerning the practice published in 2017. A typical stealthing case involves an initial, consensual sexual relationship between two parties predicated on the use of contraception. During the act, the partner removes the condom without the knowledge or consent of their sexual partner.Despite its widespread impact, there has yet to be a criminal or civil case concerning nonconsensual condom removal brought in the United States, and the legislature has not proactively criminalized the conduct. The motives of the perpetrator as well as the harm suffered by the victims provide a compelling basis for a legal remedy, but it is difficult to predict how courts will respond when confronted with a stealthing case.The primary goal for advocates of stealthing victims should be to obtain a legal remedy for their client with a secondary, long-term goal of gaining widespread recognition of the violation as being deserving of a specific cause of action. This Note will suggest that the best way to insure both the short-term and long-term goals is not through the creation of a new tort to address stealthing, but by using the existing precedent of battery as the legal basis for stealthing claims.
  PubDate: Fri, 25 Jun 2021 05:47:12 PDT
Stifling Nascent Concerted Activity: The NLRB and the Alstate Decision
- Authors: Melanie R. Allen
  Abstract: The National Labor Relations Board (NLRB) made a number of significant changes to the interpretation and enforcement of the National Labor Relations Act (NLRA or the Act) under the Trump administration. The collective impact of these changes may make it more difficult for workers to bring successful unfair labor practice charges against their employers. Although NLRB case decisions and rulemaking affect a large proportion of American workers, the significance of these policy changes is often not widely recognized. This Note will examine one such change—the Board’s 2019 Alstate Maintenance decision that overturned its 2011 decision in WorldMark by Wyndham.
  PubDate: Fri, 25 Jun 2021 05:47:10 PDT
Weighing Pain: How the Harm of Immigration Detention Must Be Factored in
Custody Decisions
- Authors: Linus Chan
  Abstract: The United States is currently in the midst of a “third wave of potential pretrial detention reform.” And while certain reforms are gaining traction in an effort to reduce pretrial criminal detention, efforts to do the same for immigration detention have lagged. Reformers and abolitionists make the case that immigration detention needs to be either restricted or eliminated entirely. Nonetheless, the number of people held in detention for immigration purposes rises year after year. Not only do the numbers of people in immigration detention grow, but the systems in place have grown less concerned with the harsh consequences of detention to the most vulnerable.By turning a blind eye to detention harms, the immigration custodial system categorically subordinates the fundamental liberty interest against confinement to the government’s ambiguous interest in crime prevention.
  PubDate: Fri, 25 Jun 2021 05:47:07 PDT
Increasing Accountability for Rape in Liberia: The Need for a Forensic
System to Increase the Success Rates of Prosecution
- Authors: Pela Boker Wilson
  Abstract: The need for a fully functioning forensic system has been identified by the Liberian government and international partners, but it has not been addressed. This Article argues that despite a robust framework put in place to create accountability for rape, Liberia needs a system of collecting and processing forensic evidence to increase the success rate of prosecutions that currently fail due to the inadequacy of non-forensic evidence.
  PubDate: Fri, 25 Jun 2021 05:47:04 PDT
Fulfilling Porter's Promise
- Authors: Danielle Allyn
  Abstract: Despite the Porter court’s reference to a “long tradition of according leniency to veterans,” in the criminal legal system, veterans are overrepresented on death rows across America, including Georgia’s. Most of these veterans come to death row with experiences of marginalization due to other aspects of their identity, such as race or mental disability.This Article examines the cases of six men executed in Georgia, each with a history of military service, and each with experiences of disenfranchisement based on race and/or mental disability. At trial, each confronted legal risks that disproportionately place Black people and people with mental disabilities in danger of execution. In no case did a trial attorney present meaningful evidence of military service to a jury. The State of Georgia executed all six men between 1994 and 2016.The Court clarified in Porter that military service carries mitigating weight even and perhaps especially when the veteran on trial falls outside the popular image of the “American hero.” Through case studies of the six Georgia veterans sentenced to death, this Article demonstrates that: (i) many veterans share experiences of disenfranchisement based on race and/or mental disability, and (ii) when charged capitally, these veterans face heightened risk of execution, as the death penalty system targets people with these experiences. The Article concludes with a call to defense counsel to adopt mitigation strategies responsive to the heightened risk of execution that Black veterans and veterans with mental disabilities face. Only through such strategies may counsel effectuate Porter’s promise to protect veterans from the death penalty.
  PubDate: Fri, 25 Jun 2021 05:47:01 PDT
Gender-Based Violence in International Human Rights Law: Evolution Towards
a Binding Post-Binary Framework
- Authors: Tatsiana Ziniakova
  Abstract: The present Article seeks to analyze the notion of gender-based violence, in light of the evolving gender discourse, and identify the problems associated with effectively addressing it in international human rights law. It analyzes the definitions of gender, enshrined in various human rights documents, and suggests using performative theory of gender to form a comprehensive view on gender-based violence. It also critically addresses three aspects of regulating gender-based violence: inclusivity, patriarchy, and normativity. It concludes that, in the long term, the commitment to eradicate gender-based violence should be strengthened by framing it as a binding treaty obligation on the universal human rights level, while in the short term it can continue to be strengthened through a developing body of jurisprudence and authoritative interpretations of standing instruments.
  PubDate: Fri, 25 Jun 2021 05:46:58 PDT
Shelter from the Storm: Human Rights Protections for Single-Mother
Families in the Time of COVID-19
- Authors: Theresa Glennon et al.
  Abstract: COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed to support white two-parent marital homes, with a working father and a stay-at-home mother as the ideal norm. Much of the federal government’s support for families is designed to aid this idealized family form. In contrast, single mothers, who deviate from this norm, have historically been subject to vilification. Their pervasive hardships have been justified by sexist stereotypes of single mothers—painting them as immoral, lazy and opportunistic—and policies reflect this deep suspicion.Other nations have applied human rights norms to reshape economic and social policies to benefit all families. The United States should not be left behind. U.S. government officials and the public should become knowledgeable about these human rights and accept these obligations as well. Educating ourselves about human rights norms and obligations, advocating for ratification of key human rights treaties, and learning from their implementation in other countries are crucial first steps to ensuring justice and protection for all families.
  PubDate: Fri, 25 Jun 2021 05:46:56 PDT
Confronting Eugenics Means Finally Confronting Its Ableist Roots
- Authors: Robyn M. Powell
  Abstract: In September 2020, a whistleblower complaint was filed alleging that hysterectomies are being performed on women at an immigration detention center in alarmingly high rates. Regrettably, forced sterilizations are part of the nation’s long-standing history of weaponizing reproduction to subjugate socially marginalized communities. While public outrage in response to the whistleblower complaint was swift and relentless, it largely failed to acknowledge how eugenic ideologies and practices, including compulsory sterilizations, are ongoing and deeply entrenched in ableism. Indeed, a conversation that recognizes the ways in which eugenics continues to target people with disabilities is long overdue.This Article contextualizes how eugenics has targeted people with disabilities over time, the ways in which these ideologies and practices persist, and why analysis and advocacy concerning eugenics—including the current abuses at immigration detention centers—that do not center the experiences of people with disabilities, especially people with disabilities who are also members of other socially marginalized communities, are inadequate. First, the Article explores the evolution of eugenics and its harmful effects on people with disabilities in the United States, including contemporary examples of eugenic policies and practices. Next, it describes ableism and its relation to eugenics, highlighting how eugenics is deeply rooted in ableism. Finally, the Article concludes by suggesting a path forward that addresses the role of ableism in eugenics, specifically discussing normative legal and policy implications. It also considers opportunities for collaboration across communities.
  PubDate: Fri, 25 Jun 2021 05:46:53 PDT
Table of Contents (v. 27, no. 3)
- PubDate: Fri, 25 Jun 2021 05:46:50 PDT
Marriage Mandates: Compelled Disclosures of Race, Sex, and Gender Data in
Marriage Licensing Schemes
- Authors: Mikaela A. Phillips
  Abstract: This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are not facts which ought to be compelled by the government, particularly within the sphere of marriage, which falls within the penumbra of privacy under the Bill of Rights. These statutes should be struck down as unconstitutional. At a minimum, states should follow Hawaii’s lead to make these disclosures optional. Even better, similar to California, states can eventually explicitly forbid the government from collecting this information on marriage license applications at all.
  PubDate: Wed, 12 May 2021 13:21:20 PDT