Law and Inequality最新文献

{"title":"Buck v. Bell, American Eugenics, and the Bad Man Test: Putting Limits on Newgenics in the 21st Century","authors":"Alessandra Suuberg","doi":"10.2139/SSRN.3279543","DOIUrl":"https://doi.org/10.2139/SSRN.3279543","url":null,"abstract":"With its 1927 decision in Buck v. Bell, the Supreme Court embraced the American eugenics program, which was then at its peak. An association with fascism and a discredited pseudoscience was one reason why the Buck case would later became infamous. Another reason was that, rather than resolving a true conflict, the case was seen as contrived: designed strategically to validate a particular Virginia law and ensure the success of the eugenics movement. \u0000 \u0000Because the strategists were a close-knit group of elites and eugenics proponents, and the guinea pig at the center was poor and disadvantaged, the case provided a striking example of the way that a legal system intended to protect the most vulnerable members of society can instead be manipulated and used against them in the name of reform. \u0000 \u0000Today, it is important to remember Buck and its legacy in order to avoid repeating the mistakes of the past.","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123222622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why the Religious Right Can't Have Its (Straight Wedding) Cake and Eat It Too: Breaking the Preservation-Through-Transformation Dynamic in Masterpiece Cakeshop V. Colorado Civil Rights Commission","authors":"Kyle C. Velte","doi":"10.2139/SSRN.3041377","DOIUrl":"https://doi.org/10.2139/SSRN.3041377","url":null,"abstract":"This term, the U.S. Supreme Court will consider the most significant LGBT-rights case since it recognized marriage equality: Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the case is framed as a First Amendment case—whether antidiscrimination law, as applied to secular, for-profit business with Christian owners who oppose same-sex marriage on religious grounds, violates the owners’ Free Exercise and Free Speech rights—there is a secondary and subordinate argument lurking just below the surface, one that presents a risk of great harm to LGBT Americans if it is not exposed and rejected by the Court. \u0000This essay exposes that argument as one that is nothing more than a modernized version of the “status-conduct” argument—an argument used three decades ago to justify the Court’s decision in Bowers v. Hardwick and to deny LGBT Americans the protection of the law in all realms of life. The Religious Right has modernized the status-conduct argument in the seemingly neutral garb of the exalted American values of free speech and religious freedom: Christian business owners are not discriminating based on the status of the gay or lesbian customers when refusing same-sex wedding goods and services, but rather are refusing to participate in conduct—the act of marriage. \u0000We should not be fooled: In using this old trope in new garb, the Religious Right is attempting to achieve what Professor Reva Siegel calls “transformation-through-preservation”—a dynamic through which a group that opposes civil rights reform modernizes its rhetoric after a civil rights victory in an effort to maintain unequal status regimes. The Religious Right’s modernized status-conduct argument attempts to hide its real goal—ushering in an era of Gay Jim Crow. \u0000The essay urges the Court to expose and reject the Religious Right’s attempt at preservation-through-transformation. Failure to do so will preserve anti-equality status regimes by denying formal equality to LGBT Americans and will undermine the legitimacy of the Court’s prior LGBT-rights cases and thus the legitimacy of the Court itself.","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128592788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Feminist Agenda for Gay Men (Or: Catharine MacKinnon and the Invention of a Sex-Based Hope)","authors":"Shannon Gilreath","doi":"10.2139/SSRN.2997593","DOIUrl":"https://doi.org/10.2139/SSRN.2997593","url":null,"abstract":"In this Article, I concentrate on two main themes: (1) I use the work of Professor MacKinnon and her colleague Andrea Dworkin to critique the destructive role of pornography in gay men’s lives, and (2) I use this theory to expose the dangerousness of the poststructuralist theoretical project generally named “queer theory” when it is offered as an explanation of our lives and as a tool for “liberation.” I aim to show just exactly what its engagement with reality on a contingency basis only (making it an antithesis of feminism) costs. Of course, queer theory and queer legal theory are not monoliths. Not all work identifying with queer theory or as queer aligns itself with heterosexual male supremacy in the ways I critique in this essay. However, much of, if not most of, queer theory and queer legal theory shares the characteristics I critique below. \u0000Engaging both pornography and queer theory simultaneously as I do here makes sense, since queer theory emerged, as Professor Janet Halley has said, principally as a line of defense against Professor MacKinnon’s recognition of pornography as a violation of civil and human rights.4 Professor Halley’s supposition about the nexus of queer theory and pornography in legal theory echoes, as do many of her primary points, the work of Judith Butler. Butler claimed, as Halley would go on to do, that feminist critique of pornography is itself an act of sex discrimination — a practice of sexual subordination — problematically entrenching gender norms. In this upside-down postmodern thinking, pornography is a/the solution to the problem of gender, not a primary engine of the gender binarism that enslaves us. The gay liberation alternative to queer theory’s madness is Professor MacKinnon’s feminism — which is to say: sex equality feminism: FEMINISM UNMODIFIED. It is, in my view, essential that the gay agenda be a feminist agenda. Professor MacKinnon’s feminism made it possible for survivors of pornography to be heard. Her work made it possible for pornography’s potent male supremacy to be challenged, even by gay men. It made it possible for me to say what it is necessary to say in this context as a gay man for gay men.","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129477885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Squaring Faith and Sexuality: Religious Institutions and the Unique Challenge of Sports","authors":"R. Wilson","doi":"10.2139/SSRN.2912911","DOIUrl":"https://doi.org/10.2139/SSRN.2912911","url":null,"abstract":"The solicitude traditionally afforded to religious institutions to function within the tenets of their faith has recently come under increasing scrutiny, especially in the context of higher education. Distinctions based on sexual orientation or gender identity in particular are seen as illegitimate, especially when they operate to exclude LGBT students and faculty. Nowhere is the challenge of allowing religious universities the ability to develop central faith commitments without excluding LGBT people more evident and difficult than in the context of students-athletes, who are seen as the “face” of an institution. This Article examines the latitude religious universities have under existing law to infuse faith into their operations, and explores how these universities can foster faith communities that uphold their religious beliefs without excluding LGBT people. This Article argues that universities can treat LGBT student-athletes with dignity through common sense approaches that “reasonably accommodate” all student-athletes without endorsing conduct with which it disagrees. This Article begins by outlining the important — if incomplete — safeguards that insulate LGBT students and faculty from discrimination in higher education, including Title IX, Title VII, recent guidance extending those protections to LGBT individuals, parallel state laws. This Part examines the solicitude with which the federal law treats faith institutions but cautions that this autonomy, over time, may be called into question given the significant financial benefits enjoyed by religious universities.It then takes a walk across a university, starting at its gates (admission), through its chapel, to student housing, its student commons, the faculty lounge, and ending with the stadium and locker room facilities. Part II argues that universities have almost unlimited autonomy over quintessentially religious questions (as in its chapel), have considerable latitude over housing and facilities, but that this autonomy recedes when employment relationships are implicated. This Article contends that universities can foster a common ethos through conduct codes for students and faculty. Such codes are important for maintaining deliberate communities of believers and norming conduct around things like drinking alcohol and reserving sex for marriage. This Article argues universities can and should rely on “equal opportunity” proscriptions that all students, gay or straight, must follow. It recognizes, however, that even “facially neutral” proscriptions can operate to exclude LGBT students and faculty. For example, because some universities define “marriage” according to their faith traditions (i.e., recognizing heterosexual marriages only), civilly married same-sex couples would never meet a neutral religious tenet against sex outside of (a religiously recognized) marriage — having the effect of barring them from working at or attending the university. One overarching goal of higher edu","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127212442","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Equal Protection and the Idea of Equality","authors":"R. George Wright","doi":"10.2139/SSRN.2648608","DOIUrl":"https://doi.org/10.2139/SSRN.2648608","url":null,"abstract":"This Article notes the existence of an immense body of historical and contemporary reflection on the idea of equality, a concept explicitly embodied in the constitutional provision for equal protection of the laws. Yet equal protection case law rarely incorporates, even implicitly, any such reflection, in any consistent, general way. This Article ultimately concludes that this surprising and unfortunate state of affairs reflects the overwhelming proliferation of complex and conflicting basic theoretical approaches to the idea of equality. These unfortunate circumstances might be partially remedied through concepts such as community, solidarity, and broad fraternity, but these concepts, in turn, lack the American constitutional stature, weight, and pedigree necessary for such a task.","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"299 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123394991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Feminism, Democracy, and the 'War on Women'","authors":"M. Gilman","doi":"10.2139/SSRN.2238115","DOIUrl":"https://doi.org/10.2139/SSRN.2238115","url":null,"abstract":"This article analyzes the social conservative attacks on women preceding the 2012 election cycle, known as the War on Women, and the ensuing feminist response. Combat was waged on many fronts, including abortion restrictions, access to contraception, funding for Planned Parenthood, welfare programs, and workplace fairness. The article discusses what this \"war\" means for the complex relationship between feminism and democracy. American democracy has had both liberating and oppressive effects for women, while feminism has sometimes struggled internally to appropriate the values of democracy and externally to harness its potential. Accordingly, the article explains the major political theories regarding feminism and democracy and reflects on how the War on Women and its after effects impact those theories. The Article concludes that the War on Women reconfigured the relationship between feminism and democracy by reinvigorating the feminist political movement, redefining the scope of women's issues, realigning women voters across interest groups, and spurring a surge of women into office. Still, the War on Women kept feminism on the defensive, thereby draining the movement of the ability to fashion a feminist offensive. Thus, the feminism movement needs to generate an agenda that will wage a war for women.","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120845427","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'The People' and 'The People': Disaggregating Citizen Lawmaking from Popular Constitutionalism","authors":"Raphael Rajendra","doi":"10.2139/ssrn.965343","DOIUrl":"https://doi.org/10.2139/ssrn.965343","url":null,"abstract":"This essay examines the relationship between popular constitutionalism and ballot initiatives like the anti-Affirmative Action Michigan Civil Rights Initiative (MCRI). I argue that dominant theories of popular constitutionalism today can be understood - and the borders they share with the wider corpus of studies on constitutional change can be demarcated - by thinking of constitutions that either live among people or that are entombed in glass cases. This analysis distinguishes between popular constitutionalism and a ballot initiative-oriented notion of constitutional change that I call initiative constitutionalism. This Essay argues that under an among people definition of popular constitutionalism, however else the MCRI might be understood, it should not be understood as an expression of popular constitutionalism. Popular constitutionalism and initiative constitutionalism advance substantially different models for tempering democracy and other fundamental values. To conflate these models is to eliminate our chance to debate the merits of each, and instead to assume that each of their products has balanced democracy and other fundamental values in the same (and proper) way. This assumption is worth questioning. In bypassing the affirmative action debate, then, I seek not to avoid it, but to clarify the context in which we place it. Such a project is especially important today, because popular constitutionalism is the legal academy's theory du jour.","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124439600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Employment Discrimination Based on Sexual Orientation: The American, Canadian and U.K. Responses","authors":"Ronnie Cohen, S. O'byrne, Pat Maxwell","doi":"10.7939/R39P2WN12","DOIUrl":"https://doi.org/10.7939/R39P2WN12","url":null,"abstract":"","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116250968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Book Review: Human Rights in the World Community: Issues and Action","authors":"B. Frey","doi":"10.5860/choice.27-4113","DOIUrl":"https://doi.org/10.5860/choice.27-4113","url":null,"abstract":"","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127000151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What's Wrong with Rights?","authors":"Amy Bartholomew, A. Hunt","doi":"10.2307/j.ctt1zk0mmx.7","DOIUrl":"https://doi.org/10.2307/j.ctt1zk0mmx.7","url":null,"abstract":"ion for someone who has never had their abstractions taken away from them.\" 20 The emphasis that the \"minority critiques\" place upon CLS's \"composite biography\" is problematic. The claim that this \"composite biography\" goes some way toward explaining the failings of the CLS \"critique of rights\" is overly determinist. The \"minority critique\" implies that social origins determine political positions. This argument is weak because it does not lend itself to evaluation. Furthermore, this line of argument has the negative consequence of implying that, because CLS \"founding fathers\" are white and privileged, they hold the views they do. Reliance on this type of argument avoids the need to address the substance of the CLS \"critique of rights.\" As we have also argued, CLS has paid inadequate attention to the positive face of rights and rights struggles, but we contend that this is not primarily for reasons having to do with \"position\" and \"experience.\" Rather, we have been concerned to suggest what we believe is the stronger explanation; that the deficiencies in the CLS \"critique of rights\" result from theoretical, not biographical, failings. The lack of attention in the \"minority critiques\" to the theoretical failings of the CLS critique of rights leaves those problems substantially unaddressed and hinders their ability to move significantly beyond simply stating that rights and rights discourses have been useful and may be in the future. In addition, it is significant that the \"minority critiques\" are constructed in relation to or, perhaps more accurately, as a reaction against, the CLS \"critique of rights.\" Thus, the \"minority critiques\" tend to constitute simply a reaction against the CLS position. This raises considerable problems for the \"minority critiques\" and for the future of their project. The consequence is that, while the \"minority critiques\" raise crucial points of contention, they do not adequately ground the political project they seek to advance. We draw attention to this because we support what we take to be the core of the \"minority critiques\" project: to recuperate the crucial history of minorities' struggles for rights and to think strategically about the potentialities for utilizing rights discourses. Their failure, however, to take up the theoretical problems leaves them either appropriating notions central to the CLS \"critique of rights\" or simply turning them on their head without transforming them. The failure to directly challenge the theoretical underpinnings of the CLS \"critique of rights\" in a sustained manner weakens the \"minority critiques'\" ability to deal with significant issues regarding rights issues they correctly identify, but are unable to 120. Robert Williams, Jr., supra note 88, at 125. [Vol. 9:1 ]WHAT'S WRONG WITH RIGHTS? overcome. Therefore, while they are extremely important for opening up the space in which to debate the potentiality of rights, the \"minority critiques\" fail to challenge the theoretical underpi","PeriodicalId":102688,"journal":{"name":"Law and Inequality","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116834659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}