Recent uclalaw_wlj items

The Changing Landscape of Women's Rights Activism in China: The Continued Legacy of the Beijing Conference

Mon, 27 Jun 2022 00:00:00 +0000

The Beijing Conference was a watershed moment in the history of the global women’s movement and had an unprecedented impact in the Global North and South on lawmaking, institution building, and movement building. This Article details the development of women’s activism in China since the Beijing Conference and how a changing legal landscape impacts this activism. While its progress is emblematic of the inconsistencies in the progression of women’s rights activism since the Beijing Conference, China’s efforts have been significant and varied and represent a model for other countries seeking to reform women’s rights legislation. This Article identifies important lines of inquiry that merit further investigation in China and offers insights for conducting similar investigations elsewhere. This Article also outlines a framework for the shifting nature of women’s legal activism from 1995 to 2020 and the ways that the international community can capitalize on these changes and continue...

Front Matter

Thu, 23 Dec 2021 00:00:00 +0000

Front Matter

The Body as Borderland: The Abortion (Non)Rights of Unaccompanied Teens in Federal Immigration Custody in the Trump-Pence Era

Thu, 23 Dec 2021 00:00:00 +0000

In 2017, Scott Lloyd, the newly appointed director of the Office of Refugee Resettlement (ORR) declared that henceforth pregnant teens in federal immigration custody could not obtain an abortion without his express consent. This quickly proved to be an impossibility on account of Lloyd’s deeply held and religiously saturated antiabortion beliefs. In justifying his denial of consent to all who sought it, Lloyd insisted that ORR had a statutory obligation to provide refuge to the unborn as well as to protect unaccompanied minors in the care and custody of the agency from the trauma of abortion regret.

This article focuses on the origins and implementation of Lloyd’s abortion-consent policy within the broader context of the Trump administration’s “pro-life” and anti-immigrant agendas, and its contestation in the much-publicized Garza v. Hargan class-action lawsuit brought by the ACLU Reproductive Freedom Project. As argued, by mapping these twinned commitments onto the transgressive...

Redrafting the Selective Service Act: Women and the Military Draft

Thu, 23 Dec 2021 00:00:00 +0000

Since its enactment in 1948, the Military Selective Service Act (MSSA) has required men, but not women, to register for a potential military draft. The MSSA previously withstood constitutional review when, in 1981, the U.S. Supreme Court upheld the statute’s sex-based classification under the rationale that the purpose of the MSSA was to raise combat troops in the event of a military crisis. Because women were not allowed to participate in combat, the Court held that the statute did not need to extend the registration requirement to women.

In 2013, however, the Department of Defense eliminated all combat restrictions on women. With that policy change, the rationale for the Supreme Court’s earlier decision collapsed. Since the change allowing women to participate in combat, the MSSA has come under renewed scrutiny, with a 2019 federal district court decision holding that the statute violates the Fifth Amendment’s Due Process Clause. That decision was subsequently reversed...

The Hidden Cost of Incarceration: Women of Color Pay the Price of Legislation That Allows For Exploitive Private Profits

Thu, 23 Dec 2021 00:00:00 +0000

This Article discusses the hidden costs of incarceration that most legislators, scholars, journalists, and taxpayers overlook. A recent study shows that 45 percent of Americans have or have had an immediate family member incarcerated, demonstrating that many Americans are affected by mass incarceration. The costs of incarceration of their family member’s imprisonment fall on these members specifically and their communities generally. These expenses are typically unknown by people without first-hand experience with incarceration, whether they have been or are incarcerated, or have a family member who has been or is incarcerated. I will use my first-hand experience to explore the costs—what they are, why they exist, and who pays them.

Further, this Article draws a link between the War on Drugs—which was designed to impact and did impact mostly people ofcolor—to the identity of the people who pay the costs. The Article also connects further links the War on Drugs, mandatory...

Vanguards of Democracy: Juries as Forerunners of Representative Government

Thu, 23 Dec 2021 00:00:00 +0000

Juries are the most diverse institution of government. Due to the random selection of members, ease of access, and procedural rights to challenge the exclusion of protected classes, juries reflect the diversity of America far better than legislatures, courts, the bar, and virtually every other civic institution. This Article aims to do two things. First, document how juries have become more diverse along the lines of income, gender, and race; and how each of these groups had to surmount the powers that be to take their place in American jury boxes. Second, demonstrate how juries allowed marginalized groups in each of these categories to exercise political power sooner and more solidly than other institutions of government. As a result, current declines in the use of jury trials mean less-representative decision-makers will have a larger role in our jurisprudence.

Reexamining Reasonableness: Modernizing the "Ellerth/Faragher" Defense

Thu, 23 Dec 2021 00:00:00 +0000

Named after the two 1998 U.S. Supreme Court decisions that established it, the Ellerth/Faragher defense is an affirmative defense generally available to employers who would otherwise be held liable for Title VII claims of supervisor harassment. If the supervisor’s behavior does not involve an adverse employment action, the employer may avoid liability if it can demonstrate that: (1) the employer exercised reasonable care to prevent and promptly correct unlawful harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. As employers sought to implement measures that demonstrated reasonable care, sexual harassment training and anonymous phone hotlines emerged as common strategies to assert this affirmative defense. In the contemporary workplace, where digital communication reigns and remote working becomes the new norm, such mechanisms are both...

Thu, 23 Dec 2021 00:00:00 +0000

Table of Contents

The Constitutive In/visibility of the Trans Legal Subject: A Case Study

Thu, 23 Dec 2021 00:00:00 +0000

Although the notion of a trans legal subject is an abstract one emanating from juridical texts, it impacts the lived experiences of trans people by influencing the social imaginary and informing state action. In this paper, I analyze the conception of the trans legal subject found in Québec law to draw out two historical conceptual phases—the medical and minoritizing phases—set against the same background "ius commune."

Women as an Identity and Its Intersection with the Law: "Gender Justice and the Law" and Theoretical Practices of Intersectional Identity

Thu, 23 Dec 2021 00:00:00 +0000

When students enter law school, they are introduced to a formulaic world where success depends on the individual’s ability to apply law to facts. The law is the full story, unconcerned with background, circumstance, or situation—that is, the law is objective. This premise is imposed on first-year law students in their prescriptive bar courses because the main object of legal education is to pass the bar, and the bar does not care about the external, subjective factors implicated in making and applying law. But the law is not objective; it is necessarily created by humans with beliefs and prejudices that inform whom the law benefits. Beginning from this premise, Gender Justice and the Law: Theoretical Practices of Intersectional Identity (hereinafter Gender Justice and the Law)1 attempts to highlight and deconstruct the gendered prejudices inherent in certain laws. The book contains twelve essays that examine legal issues affecting women, particularly women of color, and members...

Stalking by Way of The Courts: Tennessee's Abusive Civil Action Law and Why All States Should Adopt a Similar Approach to Abusive Litigation in the Family Law Context

Thu, 23 Dec 2021 00:00:00 +0000

Domestic violence is a serious issue in the United States. In abusive relationships, an abuser seeks to control the victim through a variety of means, including physical, psychological, sexual, and financial abuse. Even after a domestic violence survivor escapes an abusive relationship, abusers utilize the court system to maintain control of and access to the survivor long after their relationship has ended. Abusers instigate court proceedings with the real purpose of harassing, intimidating, and maintaining control over the survivor, a practice known as “abusive litigation.” These often-meritless proceedings force survivors to continually face their abusers in court and spend thousands of dollars in court fees, ultimately leading to further financial and emotional burdens on survivors. Although courts have existing means of addressing abusive litigation, these remedies do not specifically address issues unique to abusive litigation where there has been a history of domestic violence....

You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence

Mon, 20 Dec 2021 00:00:00 +0000

This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return.

While the Hague Convention permits the trial judge to refuse to return a child when the taking parent is a domestic violence victim,and while more people than ever before recognize the appropriateness of nonreturn in this context, the law limits the nonreturn option. In fact, many judges complain that the law is too confining; they lament having to return the child but feel as though the law gives them no choice. Legislators have refused to make...

Fri, 8 Jan 2021 00:00:00 +0000

Table of Contents

Bet You Didn’t Know She Could Get Paid For That: Using Sports Betting and the Right of Publicity To Address the Gender Wage Gap in Professional Sports

Fri, 8 Jan 2021 00:00:00 +0000

May 14, 2018 is among the most significant days in modern American sports history. No one earned a gold medal or played a championship game. There was no World Cup or National Series title on the line. Instead, with just a keystroke, the U.S. Supreme Court held the Professional and Amateur Sports Protection Act (PASPA) unconstitutional, thereby legalizing sports betting across the country. In the two years following the decision, dozens of states have established sports betting operations. For professional sports athletes and their agents, this new era brings with it questions of how state laws regarding the right of publicity will interact with laws governing sports betting operations. Complicating this question is well-established precedent governing fantasy sports and the online platforms that profit off of the name, image, and likeness of professional athletes. Against this backdrop, female professional athletes continue to earn significantly lower salaries than...

Birth Certificate Gender Corrections: The Recurring Animus of Compulsory Sterilization Targeting Transgender Individuals

Fri, 8 Jan 2021 00:00:00 +0000

Nearly a century ago, the Supreme Court sanctioned compulsory sterilization in Buck v. Bell, echoing eugenicists and reasoning that “[i]t is better for all the world . . . [if] society can prevent those who are manifestly unfit from continuing their kind.” In addition to this eugenics-based rationale, compulsory sterilization in the early twentieth century also sought to punish and stigmatize LGBTQ persons, who were called “sexual deviants.” Today, at least fourteen states and one territory continue to—in effect—involuntarily sterilize transgender individuals. In these states, transgender individuals must undergo sex-reassignment surgery before they can correct the gender on their birth certificates. This Article argues that like many of America’s early sterilization laws targeting LGBTQ individuals, today’s surgical requirement laws seek to advance three forms of animus that are separate from eugenics. First, these laws seek to deny transgenderism. Second, these...

Defunding the Police

Fri, 8 Jan 2021 00:00:00 +0000

Defunding the Police

Front Matter

Fri, 8 Jan 2021 00:00:00 +0000

Front Matter

To Each Their Own: Using Nonbinary Pronouns to Break Silence in the Legal Field

Fri, 8 Jan 2021 00:00:00 +0000

The last decade has been monumental in the fight for transgender rights, including a growing recognition of transgender identity. This shift has also created space for those with nuanced gender identities—such as those who are nonbinary—to join the conversation. Individuals who identify as nonbinary do not identify as “male” or “female,” but rather as both, neither, or something altogether separate. Nonbinary people use often use alternative pronouns, such as “they/them/theirs,” to refer to themselves. While these pronouns are increasingly being accepted into the lexicon of American English, the legal field is far behind in its acceptance and use of nonbinary pronouns.

Although the law has made great strides in recognizing nonbinary identity within the last five years, the legal field cannot support the progress of transgender rights until regularly utilizes nonbinary pronouns, such as “they/them/theirs,” in law school classrooms, legal academic writing, and legal...

Marriage and Money Entangled: Commodification, Agency, and Economic Analysis in Chinese Marriage Payment Lawsuits

Fri, 8 Jan 2021 00:00:00 +0000

Lawsuits about groom-to-bride marriage payments are arriving in Chinese courts, challenging traditional ideas about marriage formation. Through the lens of case files, I examine the dissolution of marriages (or quasimarital relationships) formed by marriage payment agreements and analyze the anticommodification views expressed by feminists and legal scholars. In these cases, judges wrestle with two competing considerations: their own antimarriage payment and pro-groom views on one hand and the litigants’ economic conception of marriage on the other. The former urges judges to rule for the grooms, and the latter for the brides. In balancing these two considerations, judges generally order a partial or full repayment of the payment when the relationship dissolves. I also examine feminist concerns of voluntariness and fairness in the commodification of sexuality. The current theoretical and judicial frameworks do not account for the divergent power dynamics in individual cases;...

Beyond Big Law: Toward a More Inclusive Study of Gender in the Legal Profession

Fri, 8 Jan 2021 00:00:00 +0000

This Article reviews research and theory in the field of gender in the legal profession using a framework developed by feminist theorist Barbara Risman. Risman asserts that gender is a social structure, “an entity in and of itself,” which operates on the individual, interactional, and institutional levels. Using Risman’s tripartite framework, I explore two prominent questions in the gender and legal professions literature: (1) Why do men and women advance differently in their careers? and (2) Are women more or less satisfied with their legal careers than men? In doing so, I demonstrate that the vast majority of theories of gender inequality in the legal profession, and the research methods undertaken to test them, focus on individual and institutional analysis to the exclusion of interactional analysis.

I further highlight a lack of research focusing on the ways in which gender is embedded in interactions between female lawyers and those who shape their career choices:...

Front Matter

Fri, 24 Apr 2020 00:00:00 +0000

Front Matter

Painting the Capitol Pink: The Breast Cancer Research Stamp and the Dangers of Congressional Cause Marketing

Fri, 24 Apr 2020 00:00:00 +0000

Breast cancer awareness campaigns—widespread, largescale efforts focusing on general “awareness” of the breast cancer, rather than the dissemination of information on detection and treatment—are common sights in the American public and private spheres. From NFL players donning pink socks to crafters selling “I love boobies!” t-shirts online, breast cancer-branded events and products have become an essential marketing tool to reach women, signal corporate virtue in a palatable, nonaggressive manner. Even the federal government is party to the trend: in 1998, the U.S. Congress authorized the sale of the Breast Cancer Research Stamp (BCRS) by the U.S. Postal Service to raise awareness and research funds for breast cancer. The BCRS has been available ever since.

This Article posits that the BCRS is more an attempt by the federal government to capitalize on the goodwill and consumer engagement generated by breast cancer awareness marketing in the private sector, and less...

Fri, 24 Apr 2020 00:00:00 +0000

Table of Contents

Women’s Afternoon: What the Congressional Record Can—and Cannot—Tell us about the Meaning of “Sex” Under Title VII

Fri, 24 Apr 2020 00:00:00 +0000

Editors’ Note

This essay reviews the Congressional debate surrounding the addition of the term “sex” to Title VII of the Civil Rights Act of 1964. We included this essay because it serves as a reminder that the narratives we construct regarding legal and legislative history are often at risk of oversimplification. As the Justices of the Supreme Court deliberate and consider recent oral arguments regarding whether the term “sex” extends legal protections to persons on the basis of sexual orientation or gender identity, the Congressional Record from February 8, 1964 suggests one lesson: There are limits to relying on historical dialogues that exclude or mock marginalized voices. That is, if many of the proclaimed supporters of an amendment advancing women’s equality supported it solely to undermine the passage of civil rights legislation, how instructive can it be to speculate about what they intended by the term “sex”? While this essay does not answer this question,...

The Story of Homa

Fri, 24 Apr 2020 00:00:00 +0000

The following short story is in dedication to all the women who have been denied an education because of their gender.

Obergefell and the Dignitary Harm of Identity-Based Military Service Exclusion

Fri, 24 Apr 2020 00:00:00 +0000

In Obergefell v. Hodges, the Supreme Court recognized the right of same-sex couples to be married.[1] In doing so, the Court remedied the demeaning exclusion of a historically disadvantaged minority group from a nationally cherished institution, noting the stigma and injury the exclusion caused. The sweeping language of the majority opinion in Obergefell and its focus on exclusionary harm suggested a new era of inclusion for lesbian, gay, bisexual, and transgender Americans.[2] This Article argues that the exclusion of transgender persons from military service constitutes the type of harm Obergefell and the Equal Protection Clause prohibit.

This Article first provides background on the pre-Obergefell landscape for constitutional challenges to military service exclusion. Second, the Article assesses Obergefell’s jurisprudential expansions of substantive due process and equal protection doctrines through...

Sex: Sexual Orientation, Sex Stereotyping, and Title VII

Fri, 24 Apr 2020 00:00:00 +0000

The United States Supreme Court recently heard oral arguments in Altitude Express v. Zarda, a case that addresses whether Title VII’s prohibition of discrimination “on the basis of sex” prohibits sexual orientation discrimination. Relying on three related lines of reasoning, the United States Court of Appeals for the Second Circuit had held that it did. First, sexual orientation discrimination would not have occurred “but for” the employee’s sex; second, sexual orientation discrimination relies on the sex-stereotype that individuals should be attracted to individuals of the opposite sex; and third, sexual orientation discrimination is a form of prohibited associational discrimination. This Article opines that the strongest and most compelling of these three arguments is sex stereotyping since gays and lesbians fail to conform to the ultimate stereotype that real men are sexually attracted to women and real women are sexually attracted to men. This stereotype...

#UsToo: The Disparate Impact of and Ineffective Response to Sexual Harassment of Low-Wage Workers

Tue, 22 Oct 2019 00:00:00 +0000

“A guest placed a tip on the counter, then stated he wanted to ‘put the tip on my ass.’ I refused and he took the tip back. I was going to tell management, but I didn’t because if he was going to be able to come back, what would stop him from aggressive acts in the future? He looked like he didn’t care about life.” This casino cocktail server’s disturbing account is one of many that UNITE HERE Local 1 collected in its groundbreaking study on sexual harassment and Chicago-area casino and hotel workers’ experiences in the workplace. A hotel housekeeper recalled her experience, saying, “[The guest] was completely naked, standing between the bed and the desk. He asked me for shampoo. I had to jump over the beds in order to get to the door and leave the room.”

On October 5, 2017, the New York Times broke the pivotal story that Hollywood producer Harvey Weinstein had covered up nearly three decades of accusations of sexual harassment and unwanted physical contact. Following...

Letter From an Immigrant Woman to Her Rapist

Tue, 22 Oct 2019 00:00:00 +0000

Letter From an Immigrant Woman to Her Rapist

Tue, 22 Oct 2019 00:00:00 +0000

Table of Contents

Letter From a Woman Janitor Working the Night Shift

Tue, 22 Oct 2019 00:00:00 +0000

Letter From a Woman Janitor Working the Night Shift

Editors' Note

Tue, 22 Oct 2019 00:00:00 +0000

Editors' Note

"I Did Not Know": A Letter From a Woman Janitor to Her Sexual Harasser

Tue, 22 Oct 2019 00:00:00 +0000

"I Did Not Know": A Letter From a Woman Janitor to Her Sexual Harasser

Marginalization and Divestment: The Effects of Relocating the Los Angeles Women's Jail

Tue, 22 Oct 2019 00:00:00 +0000

Marginalization and Divestment: The Effects of Relocating the Los Angeles Women's Jail

Front Matter

Tue, 22 Oct 2019 00:00:00 +0000

Front Matter

We Still Have Not Learned From Anita Hill's Testimony