The American University Journal of Gender, Social Policy & the Law

Articles

Vol. 22, No. 2, 2014

Symposium Opening Remarks as Prepared for Delivery
Thank you Professor Ahranjani, thank you to the Symposium and the American University Washington College of Law. And thank you all for being here today.My name is Stephanie Schriock and I'm the president of EMILY's List. For twenty-eight years, EMILY's...
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The Return of the Welfare Queen
INTRODUCTIONAfter welfare reform was passed in 1996, there was every reason to hope that the welfare queen was dead. The "welfare queen" was shorthand for a lazy woman of color, with numerous children she cannot support, who is cheating taxpayers by...
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Restoring Rights for Reproductive Justice
INTRODUCTIONEver since women gained the right to vote in the United States nearly 100 years ago, women have exercised that right. In fact, women's voting rates now outstrip those of men's,1 and the number of women of color2 voting has increased steadily...
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Contraception and the Birth of Corporate Conscience
"Conscience" was an election year catchphrase. Secular and religious businesses came forward with objections of conscience to the Affordable Care Act's requirement that employee health insurance plans cover contraception. Going into the election season,...
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Contraceptive Coverage under the Affordable Care Act: Dueling Narratives and Their Policy Implications
I think there is in this country a war on religion . . . . They gave it a lot of thought and they decided to say that in this country that a church-in this case, the Catholic Church-would be required to violate its principles and its conscience and be...
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Cultural Collisions and the Limits of the Affordable Care Act
INTRODUCTIONNational Federation of Independent Business v. Sebelius ("NFIB") settled the central constitutional questions impeding the rollout of the Patient Protection and Affordable Care Act ("Affordable Care Act" or "ACA"): whether the federal government's...
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Getting It Straight: A First Amendment Analysis of California's Ban on Sexual Orientation Change Efforts and Its Potential Effects on Abortion Regulations
I. INTRODUCTIONI had AIDS. I was the only gay person left in the world [be]cause the government found all the other gays and killed them as children and if they found me, they would kill me. It's the perfect way to keep a child or a teen from coming...
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Have We Reached Grutter's "Logical End Point?" the Fight over State Law Bans on Preferential Treatment Programs and the Future of Affirmative Action in the United States
I. INTRODUCTIONPerhaps Chief Justice Roberts was correct when he remarked that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."1 The use of race in admissions decisions to undergraduate and graduate...
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Vol. 22, No. 1, 2013

The Sky Didn't Fall: The Meaning and Legal Effects of the North Carolina Marriage Amendment
I. The Amendment Debate 4....................II. The Meaning of North Carolina's Marriage Amendment ....................10A. The First Sentence: "Domestic Legal Union" and "Valid or Recognized" ....................12B. The Second Sentence: Contracts...
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Reframing the Work-Family Conflict Debate by Rejecting the Ideal Parent Norm
Introduction 48I. Work-Family Conflict: Why Current Solutions Are Not Working 49II. Mythologizing the Ideal Parent: A History of Childrearing in theUnited States 54A. 1800-1900: Pre-Industrial Parenting 54B. Industrialization's Impact on Parenting 57C....
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Kent Make-Up Their Minds: Juveniles, Mental Illness, and the Need for Continued Implementation of Therapeutic Justice within the Juvenile Justice and Criminal Justice Systems
I. Introduction............................................................................................149II. Juvenile Due Process............................................................................150A. Competency...............................................................................151B....
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Revisiting the Married Women's Property Acts: Recapturing Protection in the Face of Equality
I. Introduction 92II. The Tenancy by the Entirety and the Married Women's Property Acts: The Early Development of a Legal Doctrine 96A. The Married Women's Property Acts: Removing Wives' Legal Disabilities Under the Common Law 99B. The Married Women's...
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The Importance of an Expansive Deference to Miller V. Alabama
I. Introduction .................... 168II. Background .................... 170A. Overview of Recent Developments in Juvenile Sentencing .......... 170B. Miller v. Alabama .................... 173C. The Aftermath of Miller .................... 1761....
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The Questionable Constitutionality of Mechanical Restraints in the Classroom: A Critique of the Tenth Circuit's Decision in Ebonie S. V. Pueblo School District No. 60
I. Introduction ....................................194II. Background ....................................196A. The Individuals With Disabilities Education Act ....................................196B. A Free Appropriate Public Education ....................................198C....
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It's Not Easy Being G-Free: Why Celiac Disease Should Be a Disability Covered under the Ada
I. Introduction ..........220II. Background .............222A. Overview of Celiac Disease ...............222B. Federal Disability Law Statutes............. 2241. The Rehabilitation Act of 1973 ..........2242. The ADA and the AD AAA ..............225C....
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Vol. 21, No. 4, 2013

Transgressions of Inequality: The Struggle Finding Legal Protections against Wrongful Employment Termination on the Basis of the Transgender Identity
I. INTRODUCTIONWhat defines a man or a woman? What are the differences between the two? Stereotypically, a man is seen as handsome, strong, instinctive, and assertive. In contrast, a woman is often described as beautiful, soft, patient, and understanding....
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The "Federal Law of Marriage": Deference, Deviation, and Doma
I. INTRODUCTIONOn June 26, 2013, the Supreme Court held in United States v. Windsor, that the federal Defense of Marriage Act ("DOMA") is unconstitutional.1 DOMA defined marriage as solely between one man and one woman for every purpose under federal...
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The Forgotten Remedy: A Legal and Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs
INTRODUCTIONAlthough Caucasian males constitute a minority of the total and, likewise, college-educated workforce, they dominate the upper echelons of virtually every job sector. Males comprise 85.7% of executive officership positions and 82% of directorship...
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Situating Staley: Investigating the Constitutionality of Forcibly Medicating a Texas Death Row Inmate to Render Him Competent for Execution
I. INTRODUCTIONPhilosopher Michel Foucault stated that the State's power to punish involves a power to discipline, which "regards individuals both as objects and as instruments of its exercise . . . . It is not a triumphant power . . . it is a modest,...
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Using Reverse Payment Agreements as an Effective Way to Maintain a Patent Monopoly in the Pharmaceutical Industry
I. INTRODUCTIONCongress passed the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act) to help lower the cost of drugs for the public and to encourage investment in research and development of new drugs.1 The Hatch-Waxman...
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"To a Hammer Everything Looks like a Nail": The Supreme Court's Misapplication of the Vindication of Rights Doctrine
I. INTRODUCTIONItalian Colors Restaurant, a small merchant in California, decided to contract with American Express to accommodate wealthy consumers and corporate clients who use the American Express personal and corporate charge cards.1 Under the provisions...
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Vol. 21, No. 3, 2013

Grassroots Gay Rights: Legal Advocacy at the Local Level
I. Introduction...........................................................................................508II. Local Legal Authority..........................................................................509A. Hunter v. Pittsburgh................................................................509B....
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Surrogate Mothers: An Exploration of the Empirical and the Normative
Introduction 555I. Harm to Surrogate Mothers: Evaluating the Empirical Objection 558A. Overview of the Empirical Objection 558B. Empirical Evidence on Surrogate Mothers in the UnitedStates 5591. Demographic & Psychological Profile 5602. Entering...
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Queering International Human Rights: Lgbt Access to Domestic Violence Remedies
Introduction: Domestic Violence in Same-Sex Relationships 585I. Domestic Violence and International Law 589II. Sexual Orientation, Gender Identity, and International Law 594III. The Invisibility of Same-Sex Domestic Violence 599IV. A Model for International...
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Comission on Lawyer Assistance Programs Panel on Best Practices Engaging Law Schools
The transcript that follows is taken from Common Practices, Best Practices and Other Ideas from the Student Frontlines, a panel presented during the American Bar Association (ABA) Commission on Lawyer Assistance Programs (CoLAP) 25th Annual National...
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Colap Transcript Appendix: Law School Lap Survey Results
INTRODUCTION*Over the last two decades, a number of books, articles, and published research papers have demonstrated a high incidence of depression and alcohol and drug abuse among law students.* 1 Law students have even been shown to suffer in significantly...
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Surviving Implicit Bias: Why the Appellate Court's Interpretation of the 2012 Amendment to the Racial Justice Act Will Be a Life or Death Decision for North Carolina Death Row Prisoners
I. Introduction............................................................................................649II. Background...........................................................................................650A. The Supreme Court's Racial Bias...
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Losing Sight of the Forest for the Trees: The Supreme Court's Misapplication of Sixth Amendment Strickland Analysis in Missouri V. Frye and Lafler V. Cooper
I. Introduction 682II. Background 683A. The Sixth Amendment and the Right to Effective Counsel 683B. The Right to Effective Counsel and the Strickland Test 684C. Ineffective Assistance Under Strickland 685D. The Right to Effective Counsel During Plea...
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Vol. 21, No. 2, 2013

Jessica Lenahan (Gonzales) V. United States & Collective Entity Responsibility for Gender-Based Violence
Introduction .............231I. State Responsibility ..............237II. School Responsibility ..............250III. Similarities Between the "State Responsibility" and "School Responsibility" Theories ...............266A. Inaction .....................266B....
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Introduction: Jessica Lenahan (Gonzales) V. United States: Implementation, Litigation, and Mobilization Strategies
Introduction .........207I. Town of Castle Rock v. Gonzales: Factual Background and the U.S. Federal Courts ..........208II. The Inter-American Commission on Human Rights: An Alternate Legal Avenue ..........215III. Jessica Lenahan (Gonzales) v. United...
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Domesticating Due Diligence: Municipal Tort Litigation's Potential to Address Failed Enforcement of Orders of Protection
Introduction...............................................................................................290I. Theoretical Assumptions Regarding Compliance and NormativeIncentives........................................................................................294A....
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Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality
I. Introduction............................................................................................334A. Background..............................................................................334B. Domestic Violence in India.....................................................336II....
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Piercing the Confucian Veil: Lenahan's Implications for East Asia and Human Rights
Introduction...............................................................................................379I. Confucianism, Human Rights, and Domestic Violence.........................383A. Confucianism and the Family Unit..........................................386B....
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Judicial Developments in the Application of International Law to Domestic Violence
Introduction...............................................................................................413I. Domestic Violence Under International Law.........................................415II. The Due Diligence Standard.................................................................423III....
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The Duty to Ensure Human Rights and Its Evolution in the Inter-American System: Comparing Maria Da Penha V. Brazil with Jessica Lenahan (Gonzales) V. United States
Introduction...............................................................................................437I. The Two Cases.......................................................................................439II. Procedural Obligations..........................................................................442III....
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Answer Me or Go to Jail: Why Court Ordered Polygraph Testing to Treat Probationers Violates the Fifth Amendment
I. Introduction............................................................................................456II. Background...........................................................................................457A. Constitutional Rights of Probationers......................................457B....
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Public Health vs. Privacy: Rebalancing the Government Interest in Involuntary Partner-Notification Following Advancements in HIV Treatment
I. Introduction..........482II. Background.........484A. History of the HIV Epidemic................4841. Discovering and Understanding Transmission..................4842. The Evolution of Treatment.............485B. Development of Partner-Notification...
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Vol. 21, No. 1, 2012

No Laughing Matter: The Intersection of Legal Malpractice and Professionalism
"Legal rules ensure fidelity to legal duties."1I. PREFACE: THE "LAUGHING GUY" STATEMENTOn October 14, 2008, a Florida grand jury indicted Casey Marie Anthony for the death of her minor child, Caylee Marie Anthony.2 In a seven count indictment, the grand...
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Life Begins at Ejaculation: Legislating Sperm as the Potential to Create Life and the Effects on Contracts for Artificial Insemination
I. INTRODUCTIONIn numerous legal cases dealing with artificial insemination through sperm donation, courts have elevated sperm, a substance that alone cannot result in a child, to the status of a potential life.1 Unlike rulings on the control or sale...
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My Aging Minority Rural Grandparents: Disparities in the Health and Health Care of the Rural Elderly Minority Population and the Need for Culturally Competent Health Care Providers
I. INTRODUCTIONThis is a story about my rural elderly grandparents and how the lack of culturally competent health care providers affects their health and health care. As I write this article, they are ages ninety-two and ninety-six, and they are aging...
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Public Interest 101: Using the Law School Curriculum to Quell Public Interest Drift and Expand Students' Public Interest Commitment
INTRODUCTIONIn recent years, the legal community has called on law schools to bolster their commitment to serving their communities and to engaging law students in public interest and pro bono work.1 Despite this directive, research on the employment...
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Voiding Motherhood: North Carolina's Shortsighted Treatment of Subject Matter Jurisdiction in Boseman V. Jarrell
I. INTRODUCTIONMichelle and Sarah are social workers in North Carolina who fell in love in 2004 and have been a committed couple ever since.1 In 2007, they decided to have a baby.2 Michelle became pregnant via artificial insemination and their son Thomas...
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California Notwithstanding: Why the Ninth Circuit Erred in Following the California Supreme Court's Grant of Standing to the Proponents of Proposition 8
I. INTRODUCTIONThe California Constitution expressly states that all political power is inherent in the people.1 In order to enforce this political power, California has a unique initiative system in which the electors propose statutes and amendments...
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Informed Consent: A Right without a Remedy Examined through the Lens of Maternity Care
I. INTRODUCTIONThe right to be secure in one's own person is a natural, fundamental right.1 Many natural rights have been legally recognized, and legal mechanisms safeguard these rights by providing legal remedies to ensure that rights exist in a practical...
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A Circuit Supreme: How the D.C. Circuit Court Is Using a Presumption of Regularity in Latif V. Obama to Make New Law and Ensure No Detainees Are Released from Guantanamo Bay
I. INTRODUCTIONEnter Adnan Farhan Abdul Latif,** a detainee currently held at Guantanamo Bay and ordered released by the United States District Court, District of Columbia (District Court).1 The Government charges "that Latif was a member of al Qaeda...
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Vol. 20, No. 4, 2012

Symposium: Theory and Praxis in Reducing Women's Poverty
The statistics alone substantiate the urgent need for a reduction in women's poverty. In 2010, 46.2 million Americans were living below the official poverty line, the highest number in the fifty-two years in which the Census Bureau has gathered figures.1...
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Reclaiming Demographics: Women, Poverty, and the Common Interest in Particular Struggles
Advocates and scholars who work on poverty law issues confront the tension between general and targeted programs constantly. Institutional design choices are often driven by the political feasibility of broadening the base or alternatively reaching only...
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Don't Forget Dad: Addressing Women's Poverty by Rethinking Forced and Outdated Child Support Policies
INTRODUCTIONIn the dialogues regarding practice and theory in reducing poverty among women, especially mothers, the inextricably linked issues surrounding low-income men must be simultaneously considered. When the mothers are poor, the fathers are also...
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Damned If You Do, Damned If You Don't: Why Multi-Court-Involved Battered Mothers Just Can't Win
INTRODUCTIONBeing a good mother is difficult. Being a good mother and a victim1 of domestic violence2 is even harder. The different and often competing expectations placed on battered mothers in the juvenile (child welfare),3 civil/trial,4 criminal,...
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Addressing Intersectionality in the Lives of Women in Poverty: Incorporating Core Components of a Social Work Program into Legal Education
INTRODUCTIONAlthough many lawyers dedicate their careers to serving those in poverty, the traditional model of legal education-legal analysis developed through a discussion of cases using the Socratic method-does not prioritize preparing law students...
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Rethinking the Neighborhood Watch: How Lessons from the Nigerian Village Can Creatively Empower the Community to Assist Poor, Single Mothers in America1
INTRODUCTIONOn April 12, 2011, LaShanda Armstrong,2 a twenty-five-year-old black, single mother, strapped her four children into her minivan and took a fatal plunge into the Hudson River.3 Her ten-year-old son was the sole survivor.4 Two issues become...
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Failing to Address Sexual and Domestic Violence at Work: The Case of Migrant Farmworker Women
INTRODUCTIONThe concept of work life as family life and the blurring of the lines of the two are not new.1 Legal scholars have argued that our family and work lives are not as separate as laws lead us to believe.2 Legal regulation of the workplace does...
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Chamber of Commerce of the United States V. Whiting: Giving the Green Light to States' Broad Use of Immigration-Related Employer Sanctions
I. INTRODUCTIONWith the Legal Arizona Workers Act (LAWA) and S.B. 1070, Arizona has a growing reputation for laying the foundation for state crackdowns on illegal immigration.1 In the days following the Supreme Court's decision in Chamber of Commerce...
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Litigant Consent: The Missing Link for Permissible Jurisdiction for Final Judgment in Non-Article III Courts after Stern V. Marshall
I. INTRODUCTIONArticle III Section 1 of the United States Constitution grants Article III judges life tenure and protection from salary diminution.1 These constitutional safeguards are intended to free the courts of undue influence from the other branches...
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Trojan Horse or Much Ado about Nothing? Analyzing the Religious Exemptions in New York's Marriage Equality Act
"Mr. President, . . . [h]ave you ever been present at a meeting of the New York legislature? They speak very fast and very loud and nobody listens to anybody else, with the result that nothing ever gets done." Robert Morris1I. INTRODUCTIONOn June 24,...
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Borrowers May Not Benefit from the Mortgage Settlement Agreement of 2012 without a True Private Right of Action
I. INTRODUCTIONThe United States government, along with forty-nine states, announced on February 8, 2012 that they had reached a settlement (Settlement Agreement) with five of the largest mortgage servicers in the country for $25 billion, marking the...
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Vol. 20, No. 3, 2012

Illegitimacy and Sex, Old and New
INTRODUCTIONThe invitation to explore "the new 'illegitimacy'" necessarily evokes reflections about the "old" status or institution that supplies the point of departure. "Illegitimacy"1 holds particular fascination for me because my encounter with this...
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What's So New about the New Illegitimacy?
INTRODUCTIONEight months pregnant with my first child, I was recounting to a friend, another African American woman, the flurry of preparations leading up to the blessed event. She interrupted my catalogue of necessary baby-related purchases to ask a...
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The New Illegitimacy: Children of Cohabiting Couples and Stepchildren
INTRODUCTIONHistorically, illegitimate children were punished because their parents were unmarried. The children of opposite-sex cohabiting couples are disadvantaged in similar ways today,1 and, to a lesser extent, so are stepchildren. In another article,...
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Voluntary Acknowledgments of Parentage for Same-Sex Couples
INTRODUCTIONThe law in all states presumes that a husband is the father of his wife's children and gives him the status of the children's legal father.1 In sixteen states, same-sex couples can marry or enter civil unions or domestic partnerships that...
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Intentional Parenthood's Influence: Rethinking Procreative Autonomy and Federal Paternity Establishment Policy
INTRODUCTIONWhile biology, birth, and the marital presumption are still the traditional bases on which legal parentage is established, intent is playing an everincreasing role in parentage determinations. Most significantly, intent has been used as a...
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Counting from One: Replacing the Marital Presumption with a Presumption of Sole Parentage
INTRODUCTIONNow that DNA testing allows certainty about genetic linkages, that the marital family is no longer the dominant setting in which children are raised,1 and that significant numbers of children are created using assisted reproductive technology...
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The Widening Concept of "Parent" in Canada: Step-Parents, Same-Sex Partners, & Parents by Art
INTRODUCTION-THE EVOLVING CONCEPT OF THE "FAMILY" IN CANADAThe social and legal concepts of "the family" in Canada have changed dramatically over the past half century. While opposite-sex married couples with children remain the most common family form,...
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"The Phantom Children of the Republic"1: International Surrogacy and the New Illegitimacy
INTRODUCTIONA powerful legal, social, and religious construct grounded in the disapproval of sexual intercourse outside of marriage, illegitimacy2 of birth has been a source of abiding concern and fascination throughout history. Essentially a badge separating...
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Beyond "Eros": Relative Caregiving, "Agape" Parentage, and the Best Interests of Children
INTRODUCTIONIn family law, as in many areas of law, the relationship between the rules devised to govern an individual's behavior and the actual lived experiences of these same individuals is rarely, if ever, simple or straightforward. This symposium...
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Rendering Children Illegitimate in Former Partner Parenting Cases: Hiding Behind the Façade of Certainty
INTRODUCTIONOver the last two decades, individuals who lack biological or adoptive links to children whom they have helped raise have repeatedly asked courts for the opportunity to establish that it would be in the children's best interests for them...
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The New Illegitimacy: Tying Parentage to Marital Status for Lesbian Co-Parents
INTRODUCTIONShould a child be allowed two legal parents only if born into a marriage? For children of heterosexual parents, the answer, today, is definitively "no." Constitutional protection for parental rights does not permit the ties between an unwed...
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Unsportsmanlike Conduct: Curbing the Trend of Domestic Violence in the National Football League and Major League Baseball
INTRODUCTION"I just beat the hell out of my wife and kick the dog,"1 once said Dallas Green, then manager of the New York Mets, about his method of coping with losing baseball games.2 Domestic violence is a "significant problem" in American society.3...
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The New "Illegitimacy": Winning Backward in the Protection of the Children of Lesbian Couples
INTRODUCTION"New York Court Expands Rights of Nonbirth Parents in Same-Sex Relationships."1 So read the May 2010 New York Times headline reporting the outcome of Debra H. v. Janice R.,2 a case brought by a nonbiological mother seeking joint custody of...
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Vol. 20, No. 2, 2012

Reed V. Reed at 40: Equal Protection and Women's Rights
BEGIN TRANSCRIPT*NINA TOTENBERG: I'm Nina Totenberg, and I'm delighted to be here at this wonderful event celebrating the fortieth anniversary of Reed v. Reed.1 If any of you are in the corridor, please come in. Don't be afraid to sit in the front; that's...
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