I.Introduction"In the end, we will conserve only what we love. We will love only what we understand." - Baba DioumNowhere in the legal world do these words ring more true than in the area of copyright. Providing ownership rights in the cultural creations of society helps to ensure their preservation and survival for generations to come. However, when the very basis for those rights is predicated on antiquated values that exclude certain groups and types of cultural creation, then we run the risk of creating a narrowed view of what culture is and how it is reflected in the things we produce. Copyright was not-and is not- explicitly concerned with who could produce cultural creations and who could not, though the implications of copyright protection affect the opportunities of different groups for cultural production. A legal regime that confines protection to the particular creative endeavors of a particular group of people excludes the valuable contributions of those on the outside. Though these exclusions may be unintentional, they are just as harmful as if they had been expressly written into the law.This article takes a critical look at modern copyright law in light of the values and conceptions highlighted in its early development. From its initial emergence as a means of protecting rights in the written word to the rise of the author as a vital hero to the creation of cultural works, copyright continues to espouse certain assumptions and value judgments about cultural creation. By examining these assumptions and values through a critical lens, with the aid of critical race, feminist, and queer theory in particular, I aim to expose the ways in which these assumptions continue to work to the exclusion of the creative works of already marginalized groups of people. As one critical legal scholar has already noted, "[Intellectual property law contributes to determining and maintaining a pervasive set of power relationships in society."1 It is essential that we critique those relationships and deconstruct the ways in which they imbue this area of the law.II.Birth of Copyright and the Importance of the AuthorFrom its very inception into the canon of legal thought, copyright has dealt primarily with the protection of the cultural creations of literate, white, heterosexual males, and this focus continues to color copyright law today. From the first copyright legislation arising out of the early 18th century to the succeeding rise of the Romantic author, the value principles behind providing ownership rights in cultural work have been rooted in the protection of a certain clearly defined cultural creator and his creation.A. Cultural Control and the Statute of AnneThe British Statute of Anne of 1710 emerged in the midst of political, social, and religious upheaval as the very first formal existence of copyright legislation and served a key function in providing control of the majority over cultural output.2 The statute was created to provide protection
最后，我们只会保存我们所爱的东西。我们只会爱我们所理解的。”- Baba dioum在法律世界中，这句话在版权领域最为真实。为社会文化创造提供所有权，有助于确保它们的保存和子孙后代的生存。然而，当这些权利的基础建立在排除某些群体和文化创作类型的过时价值观上时，我们就有可能对文化是什么以及文化如何反映在我们生产的东西上产生狭隘的看法。尽管版权保护的含义影响着不同群体进行文化生产的机会，但版权过去和现在都没有明确地涉及谁能生产文化创作，谁不能生产文化创作。一种将保护局限于特定人群的特定创造性努力的法律制度，排除了外部人群的宝贵贡献。尽管这些排除可能是无意的，但它们就像明文写入法律一样有害。本文从早期著作权法发展的价值观念出发，对现代著作权法进行了批判性的审视。从最初作为保护文字权利的一种手段出现，到作者作为文化作品创作的重要英雄崛起，版权一直支持着对文化创作的某些假设和价值判断。通过批判性的视角审视这些假设和价值观，特别是在批判性种族、女权主义和酷儿理论的帮助下，我的目标是揭示这些假设继续发挥作用的方式，从而排除已经被边缘化的人群的创造性作品。正如一位批判性的法律学者已经指出的那样，“知识产权法有助于确定和维持社会中普遍存在的一套权力关系。”我们有必要对这些关系进行批判，并解构它们对法律这一领域的影响。2 .版权的诞生和作者的重要性从一开始进入法律思想的标准，版权主要涉及保护有文化的、白人的、异性恋男性的文化创作，这一重点在今天的版权法中继续发挥着重要作用。从18世纪初出现的第一个版权立法到后来浪漫主义作家的兴起，提供文化作品所有权背后的价值原则一直植根于对某个明确界定的文化创作者及其创作的保护。英国1710年的《安妮法令》出现在政治、社会和宗教动荡之中，作为第一个正式存在的版权立法，它在控制大多数人对文化产出的控制方面发挥了关键作用制定该法规是为了保护那些发现自己的作品被非法印刷和复制的现象日益增多的作者印刷文字早已不再是神职人员和宗教领袖的专属领域，普通人也更容易接触到，印刷厂和书商也从对印刷材料日益增长的需求中获利。因此，《安妮雕像》规定了已出版的书面材料的所有权，允许作者控制其作品的传播和发行:鉴于印刷商、书商和其他人近来经常擅自印刷、重印和出版或使人印刷、重印和出版书籍和其他作品，而未经这些书籍和作品的作者或所有者的同意……(可能是颁布)任何书或书籍的作者已经印刷谁不转移到其他书的复制或拷贝或书股票或股票或书商或书商打印机或打印机或其它人谁购买或获得的副本或复制任何书或书籍来打印或重印相同的唯一有权和自由等印刷书和书。…
{"title":"Confining Cultural Expression: How the Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion","authors":"April M. Hathcock","doi":"10.31229/osf.io/ayxe7","DOIUrl":"https://doi.org/10.31229/osf.io/ayxe7","url":null,"abstract":"I.Introduction\"In the end, we will conserve only what we love. We will love only what we understand.\" - Baba DioumNowhere in the legal world do these words ring more true than in the area of copyright. Providing ownership rights in the cultural creations of society helps to ensure their preservation and survival for generations to come. However, when the very basis for those rights is predicated on antiquated values that exclude certain groups and types of cultural creation, then we run the risk of creating a narrowed view of what culture is and how it is reflected in the things we produce. Copyright was not-and is not- explicitly concerned with who could produce cultural creations and who could not, though the implications of copyright protection affect the opportunities of different groups for cultural production. A legal regime that confines protection to the particular creative endeavors of a particular group of people excludes the valuable contributions of those on the outside. Though these exclusions may be unintentional, they are just as harmful as if they had been expressly written into the law.This article takes a critical look at modern copyright law in light of the values and conceptions highlighted in its early development. From its initial emergence as a means of protecting rights in the written word to the rise of the author as a vital hero to the creation of cultural works, copyright continues to espouse certain assumptions and value judgments about cultural creation. By examining these assumptions and values through a critical lens, with the aid of critical race, feminist, and queer theory in particular, I aim to expose the ways in which these assumptions continue to work to the exclusion of the creative works of already marginalized groups of people. As one critical legal scholar has already noted, \"[Intellectual property law contributes to determining and maintaining a pervasive set of power relationships in society.\"1 It is essential that we critique those relationships and deconstruct the ways in which they imbue this area of the law.II.Birth of Copyright and the Importance of the AuthorFrom its very inception into the canon of legal thought, copyright has dealt primarily with the protection of the cultural creations of literate, white, heterosexual males, and this focus continues to color copyright law today. From the first copyright legislation arising out of the early 18th century to the succeeding rise of the Romantic author, the value principles behind providing ownership rights in cultural work have been rooted in the protection of a certain clearly defined cultural creator and his creation.A. Cultural Control and the Statute of AnneThe British Statute of Anne of 1710 emerged in the midst of political, social, and religious upheaval as the very first formal existence of copyright legislation and served a key function in providing control of the majority over cultural output.2 The statute was created to provide protection","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73248187","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}
The narrative of African Americans’ quest for racial equality and social justice in the Twentieth Century is typically construed in the context of main-line civil rights organizations — e.g., NAACP, SCLC, SNCC, and the like. However, for decades, black fraternal networks had been helping to lay the groundwork for the major civil rights campaigns that culminated in the Civil Rights Act of 1964. In 1938 Alpha Kappa Alpha Sorority, Incorporated created the National Non-Partisan Lobby on Civil and Democratic Rights (“NPC”), later renamed the National Non-Partisan Council on Public Affairs. It was the first full-time congressional lobby for minority group civil rights. Throughout the organization’s life, the NPC worked with a range of other organizations that sought similar ends. The NPC was dissolved in 1948. In place of the NPC, Alpha Kappa Alpha established the American Council on Human Rights (“ACHR”) with the help of Delta Sigma Theta, Zeta Phi Beta, and Sigma Gamma Rho sororities as well as Alpha Phi Alpha, Phi Beta Sigma, and Kappa Alpha Psi fraternities. From 1948 to 1963 the ACHR employed the collective resources of its organizations to make recommendations to the United States government concerning civil rights legislation. This piece draws from primary ACHR documents to analyze the organization’s history and works as it lead to the passage of the Civil Rights Act of 1964.
{"title":"'Lifting as We Climb': The American Council on Human Rights and the Quest for Civil Rights","authors":"G. Parks","doi":"10.2139/SSRN.3004661","DOIUrl":"https://doi.org/10.2139/SSRN.3004661","url":null,"abstract":"The narrative of African Americans’ quest for racial equality and social justice in the Twentieth Century is typically construed in the context of main-line civil rights organizations — e.g., NAACP, SCLC, SNCC, and the like. However, for decades, black fraternal networks had been helping to lay the groundwork for the major civil rights campaigns that culminated in the Civil Rights Act of 1964. In 1938 Alpha Kappa Alpha Sorority, Incorporated created the National Non-Partisan Lobby on Civil and Democratic Rights (“NPC”), later renamed the National Non-Partisan Council on Public Affairs. It was the first full-time congressional lobby for minority group civil rights. Throughout the organization’s life, the NPC worked with a range of other organizations that sought similar ends. The NPC was dissolved in 1948. In place of the NPC, Alpha Kappa Alpha established the American Council on Human Rights (“ACHR”) with the help of Delta Sigma Theta, Zeta Phi Beta, and Sigma Gamma Rho sororities as well as Alpha Phi Alpha, Phi Beta Sigma, and Kappa Alpha Psi fraternities. From 1948 to 1963 the ACHR employed the collective resources of its organizations to make recommendations to the United States government concerning civil rights legislation. This piece draws from primary ACHR documents to analyze the organization’s history and works as it lead to the passage of the Civil Rights Act of 1964.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89127708","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}
There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will be found to have violated Title VII’s prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees. The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.
最近，根据1964年《民权法案》第七章，雇主如何在工作场所对待孕妇的问题引起了很多关注。平等就业机会委员会发布了关于怀孕问题的订正指导，包括第七章关于照顾怀孕或刚刚分娩的妇女所经历的残疾情况的要求。美国最高法院最近裁决了一个案件，Young诉联合包裹服务公司(Young v. United Parcel Service, Inc.)，该案件涉及在何种情况下，雇主因拒绝为怀孕妇女提供与雇主为其他一些类别的雇员提供的相同便利而被认定违反了第七章禁止故意歧视的规定。Young案和平等就业机会委员会的指导方针所关注的差别待遇理论，对于受到怀孕和分娩影响的女性来说，无疑是一个重要的资源，可以帮助她们寻求与其他员工类似的待遇。但无论是扬案还是新的平等就业机会委员会指南，都没有把重点放在第七章的规定上，因为第七章最有可能授权雇主为因怀孕而暂时无法履行部分或全部工作职能的女性提供便利。在最高法院的判决中根本没有提到这一条款，平等就业机会委员会的指导方针也没有提到这一条款，即禁止雇主维持甚至与怀孕无关的政策和做法，这些政策和做法会因怀孕而对女性造成不成比例的不利，而且不能以商业需要为理由。在《教育法第七章》对怀孕的要求中，最有可能找到的是差别影响理论，而不是差别待遇理论。
{"title":"Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement","authors":"L. Hébert","doi":"10.2139/SSRN.2641727","DOIUrl":"https://doi.org/10.2139/SSRN.2641727","url":null,"abstract":"There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will be found to have violated Title VII’s prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees. The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74256730","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}
Mothers are expected to do and be all for their children, and those who fall short are criticized. Elizabeth Schneider makes this unassailable assertion in her book "Battered Women and Feminist Lawmaking." In the chapter entitled Motherhood and Battering, Schneider argues that society reserves its greatest opprobrium for mothers who harm their children or who are perceived to stand idly by while other harm their children. As Schneider demonstrates, women who fail to protect their children, even if they attempt to do so, can be legally liable and soundly condemned. This ill-conceived accountability is most likely to occur when the mother is herself a victim of violence. Thus the dangerous confluence of two powerful archetypes -- being a mother and being battered -- inflicts double injury on women who wear both mantles. They not only bear the scars of their abuser, but they also shoulder the blame for the harms others cause to their children.
{"title":"The 'Pitiless Double Abuse' of Battered Mothers","authors":"J. A. Dunlap","doi":"10.2139/SSRN.2455806","DOIUrl":"https://doi.org/10.2139/SSRN.2455806","url":null,"abstract":"Mothers are expected to do and be all for their children, and those who fall short are criticized. Elizabeth Schneider makes this unassailable assertion in her book \"Battered Women and Feminist Lawmaking.\" In the chapter entitled Motherhood and Battering, Schneider argues that society reserves its greatest opprobrium for mothers who harm their children or who are perceived to stand idly by while other harm their children. As Schneider demonstrates, women who fail to protect their children, even if they attempt to do so, can be legally liable and soundly condemned. This ill-conceived accountability is most likely to occur when the mother is herself a victim of violence. Thus the dangerous confluence of two powerful archetypes -- being a mother and being battered -- inflicts double injury on women who wear both mantles. They not only bear the scars of their abuser, but they also shoulder the blame for the harms others cause to their children.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81689957","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}
In May 2012 North Carolina became the thirty-first state to define marriage as involving only opposite-sex couples when it amended its constitution to provide that "[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State." There was much disagreement prior to the vote about the meaning and potential legal effects of this provision. Led by law professors from every law school in North Carolina, opponents of the Amendment claimed that it not only would ban same-sex marriage, civil unions, and domestic partnerships, but also would threaten a wide range of legal benefits and protections given to all unmarried couples, whether heterosexual or homosexual, including existing domestic violence and child custody, adoption, and visitation laws. They also claimed that the Amendment's passage would lead to a flood of litigation over its meaning. A year has passed and none of these predictions have come true. This article addresses the political controversy over the Amendment and how courts likely will rule on its scope and legal effects. It explains why opponents’ claims about the Amendment’s far-ranging "unintended consequences" were never likely to occur in North Carolina. It also provides a guide for resolving Amendment-related legal issues should they arise in litigation in North Carolina or other states with (or considering) similar amendments.
{"title":"The Sky Didn't Fall: The Meaning and Legal Effects of the North Carolina Marriage Amendment","authors":"E. Wallace","doi":"10.2139/SSRN.2259702","DOIUrl":"https://doi.org/10.2139/SSRN.2259702","url":null,"abstract":"In May 2012 North Carolina became the thirty-first state to define marriage as involving only opposite-sex couples when it amended its constitution to provide that \"[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.\" There was much disagreement prior to the vote about the meaning and potential legal effects of this provision. Led by law professors from every law school in North Carolina, opponents of the Amendment claimed that it not only would ban same-sex marriage, civil unions, and domestic partnerships, but also would threaten a wide range of legal benefits and protections given to all unmarried couples, whether heterosexual or homosexual, including existing domestic violence and child custody, adoption, and visitation laws. They also claimed that the Amendment's passage would lead to a flood of litigation over its meaning. A year has passed and none of these predictions have come true. This article addresses the political controversy over the Amendment and how courts likely will rule on its scope and legal effects. It explains why opponents’ claims about the Amendment’s far-ranging \"unintended consequences\" were never likely to occur in North Carolina. It also provides a guide for resolving Amendment-related legal issues should they arise in litigation in North Carolina or other states with (or considering) similar amendments.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74406060","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}
Several assisted reproductive technologies exist for lesbians and lesbian couples to create life. While many of these techniques, such as artificial insemination or surrogacy, are effective for embryo creation, they often lead to legally unpredictable and unstable parental rights for mothers. New and not yet widely used forms of assisted reproductive technologies allow two women to create an embryo that utilizes the genetic material of each, rather than relying on genetic material of a sperm donor. These procedures, not available in any major fertility clinic and not yet officially named, are referred to in this article as Tri-Gametic In Vitro Fertilization (TGIVF).This article submits that the use of TGIVF will allow lesbian couples to create families in a way that is more legally secure and predictable. Three situations illustrate how current statutory law and case law fall short with traditional methods of assisted reproductive technologies, and how TGIVF can strengthen parental rights for lesbian couples. First, under state statutes and case law, when a sperm donor in an insemination case tries to assert parental rights after donation, he has traditionally been able to rely on his genetic connection to claim such rights. With TGIVF, the court should see his role differently, in that he only donates the sperm casing and no genetic information. Second, a TGIVF donor may attempt to liken his role in donation of sperm casing to that of a gestational surrogate, arguing that each plays a crucial role in reproduction. Even if a TGIVF donor can overcome the hurdles that a surrogate must overcome to gain parental rights, a court will likely not view the processes of donating sperm and giving birth to a baby as comparable. Finally, when a lesbian couple with a child dissolves their relationship, the non-biological mother has limited legal protections. TGIVF guarantees both mothers the right to visitation and/or custody upon the dissolution of the relationship because both are the biological and genetic parents to the child.The article recommends that the law recognize TGIVF created families of two legal parents -- the two mothers -- and the children. Three-parent TGIVF created families should also be recognized and legally protected if the two genetic mothers intend to create such a family and the sperm donor agrees and intends such a family. The article concludes by insisting that TGIVF not be viewed as the only method by which lesbians and lesbian couples can form legally recognized families. TGIVF should not limit the options by which lesbians couples can form families, but instead is a stepping-stone into the future of legally recognized, non-traditional families.
{"title":"Egging on Lesbian Maternity: The Legal Implications of Tri-Gametic in Vitro Fertilization","authors":"Kyle C. Velte","doi":"10.2139/SSRN.2244528","DOIUrl":"https://doi.org/10.2139/SSRN.2244528","url":null,"abstract":"Several assisted reproductive technologies exist for lesbians and lesbian couples to create life. While many of these techniques, such as artificial insemination or surrogacy, are effective for embryo creation, they often lead to legally unpredictable and unstable parental rights for mothers. New and not yet widely used forms of assisted reproductive technologies allow two women to create an embryo that utilizes the genetic material of each, rather than relying on genetic material of a sperm donor. These procedures, not available in any major fertility clinic and not yet officially named, are referred to in this article as Tri-Gametic In Vitro Fertilization (TGIVF).This article submits that the use of TGIVF will allow lesbian couples to create families in a way that is more legally secure and predictable. Three situations illustrate how current statutory law and case law fall short with traditional methods of assisted reproductive technologies, and how TGIVF can strengthen parental rights for lesbian couples. First, under state statutes and case law, when a sperm donor in an insemination case tries to assert parental rights after donation, he has traditionally been able to rely on his genetic connection to claim such rights. With TGIVF, the court should see his role differently, in that he only donates the sperm casing and no genetic information. Second, a TGIVF donor may attempt to liken his role in donation of sperm casing to that of a gestational surrogate, arguing that each plays a crucial role in reproduction. Even if a TGIVF donor can overcome the hurdles that a surrogate must overcome to gain parental rights, a court will likely not view the processes of donating sperm and giving birth to a baby as comparable. Finally, when a lesbian couple with a child dissolves their relationship, the non-biological mother has limited legal protections. TGIVF guarantees both mothers the right to visitation and/or custody upon the dissolution of the relationship because both are the biological and genetic parents to the child.The article recommends that the law recognize TGIVF created families of two legal parents -- the two mothers -- and the children. Three-parent TGIVF created families should also be recognized and legally protected if the two genetic mothers intend to create such a family and the sperm donor agrees and intends such a family. The article concludes by insisting that TGIVF not be viewed as the only method by which lesbians and lesbian couples can form legally recognized families. TGIVF should not limit the options by which lesbians couples can form families, but instead is a stepping-stone into the future of legally recognized, non-traditional families.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77108777","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}
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, I have discussed the impact that the current state of family law, with respect to custody, visitation, and child support, has on impact upon these children.2 Significant problems with respect to each of these issues afflict stepchildren and children who live with a cohabiting couple, especially those who are the biological children of only one partner. In this Article, I direct my attention to the effect upon these children of current American law regarding inheritance, government benefits, and standing to bring a number of tort claims.As of the 2010 census, about 4,560,000 children lived in households headed by opposite-sex cohabiting couples, almost six percent of all children in the United States.3 About fifty-five percent of these children are the biological offspring of both cohabitants, and about forty-five percent are children of only one of the cohabitants-typically seventy-eight percent of the woman.4 The overall statistics differ dramatically by race and ethnic group.5 These families are also disproportionately found among lower-income households.6 Tellingly, many of the cases challenging laws classifying children on the basis of illegitimacy, including both Levy v. Louisiana7 and Labine v. Vincent,8 were brought by African American plaintiffs.9The situation of biological children of only one of two cohabitants is functionally identical to that of stepchildren, except that the unmarried stepparent is not legally obligated to support the child's parent. Many scholars believe that the distinction between stepchildren whose parents are married and those whose parents are unmarried makes little real difference and should be disregarded.10 Social scientific studies of stepchildren and cohabitants' children support this conclusion. Married or unmarried, stepparents are a varied group-male and female, having their own children from previous unions or not, more and less close to their stepchildren.11 The quality of a stepparent-stepchild relationship varies with the age of the child at the time of the remarriage or beginning of cohabitation and the length of time the two have lived together.12 Some stepparents become very involved in the lives of their stepchildren, virtually replacing the noncustodial biological parent,13 while others remain distanced from their partner's child; the second scenario is especially common if the child was an adolescent when the stepparent moved in.14 The relationships between children and stepparents differ in a variety of ways from the relationships children have with biological parents with whom they have lived since birth, but studies have shown that stepchildren share these differences with children of cohabitants.15In my previous article, I focused on poten
{"title":"The New Illegitimacy: Children of Cohabiting Couples and Stepchildren","authors":"C. Bowman","doi":"10.31228/osf.io/r3udz","DOIUrl":"https://doi.org/10.31228/osf.io/r3udz","url":null,"abstract":"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, I have discussed the impact that the current state of family law, with respect to custody, visitation, and child support, has on impact upon these children.2 Significant problems with respect to each of these issues afflict stepchildren and children who live with a cohabiting couple, especially those who are the biological children of only one partner. In this Article, I direct my attention to the effect upon these children of current American law regarding inheritance, government benefits, and standing to bring a number of tort claims.As of the 2010 census, about 4,560,000 children lived in households headed by opposite-sex cohabiting couples, almost six percent of all children in the United States.3 About fifty-five percent of these children are the biological offspring of both cohabitants, and about forty-five percent are children of only one of the cohabitants-typically seventy-eight percent of the woman.4 The overall statistics differ dramatically by race and ethnic group.5 These families are also disproportionately found among lower-income households.6 Tellingly, many of the cases challenging laws classifying children on the basis of illegitimacy, including both Levy v. Louisiana7 and Labine v. Vincent,8 were brought by African American plaintiffs.9The situation of biological children of only one of two cohabitants is functionally identical to that of stepchildren, except that the unmarried stepparent is not legally obligated to support the child's parent. Many scholars believe that the distinction between stepchildren whose parents are married and those whose parents are unmarried makes little real difference and should be disregarded.10 Social scientific studies of stepchildren and cohabitants' children support this conclusion. Married or unmarried, stepparents are a varied group-male and female, having their own children from previous unions or not, more and less close to their stepchildren.11 The quality of a stepparent-stepchild relationship varies with the age of the child at the time of the remarriage or beginning of cohabitation and the length of time the two have lived together.12 Some stepparents become very involved in the lives of their stepchildren, virtually replacing the noncustodial biological parent,13 while others remain distanced from their partner's child; the second scenario is especially common if the child was an adolescent when the stepparent moved in.14 The relationships between children and stepparents differ in a variety of ways from the relationships children have with biological parents with whom they have lived since birth, but studies have shown that stepchildren share these differences with children of cohabitants.15In my previous article, I focused on poten","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85516293","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}
Pub Date : 2011-10-14DOI: 10.18574/nyu/9780814708101.003.0013
R. Colker
This article explores the widespread inconsistency among the fifty states in defining "learning disability" under the Individuals with Disabilities Education Act. The article also traces the development of this term historically. The author recommends that educational institutions give less weight to the importance of this classification and, instead, develop educational policies that would not disadvantage students with learning disabilities.
{"title":"The Learning Disability Mess","authors":"R. Colker","doi":"10.18574/nyu/9780814708101.003.0013","DOIUrl":"https://doi.org/10.18574/nyu/9780814708101.003.0013","url":null,"abstract":"This article explores the widespread inconsistency among the fifty states in defining \"learning disability\" under the Individuals with Disabilities Education Act. The article also traces the development of this term historically. The author recommends that educational institutions give less weight to the importance of this classification and, instead, develop educational policies that would not disadvantage students with learning disabilities.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81802130","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}
Over the past few decades, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during the late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony. While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters/worlds created by other people. These practices potentially create problems in light of existing intellectual property law. In this paper, we explore those issues and whether a filker's gender influences his or her attitude towards intellectual property law. After setting out a basic explanation of filk and the intellectual property issues, the article details the various statistical results generated from the databases we built (one objective and one subjective) and draws some conclusions about gender and filk.
{"title":"Does Gender Influence Attitudes toward Copyright in the Filk Community","authors":"Melissa L. Tatum, R. Spoo, Benjamin T. Pope","doi":"10.2139/SSRN.1393611","DOIUrl":"https://doi.org/10.2139/SSRN.1393611","url":null,"abstract":"Over the past few decades, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during the late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony. While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters/worlds created by other people. These practices potentially create problems in light of existing intellectual property law. In this paper, we explore those issues and whether a filker's gender influences his or her attitude towards intellectual property law. After setting out a basic explanation of filk and the intellectual property issues, the article details the various statistical results generated from the databases we built (one objective and one subjective) and draws some conclusions about gender and filk.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85463537","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}
Courts today are deeply involved in matters involving lesbian, gay, bisexual and transgendered persons. Same-sex marriage, custody disputes, conflict with religious claims and other, more routine family law cases all bring sexual orientation minorities into the judicial system as parties, witnesses, lawyers, or jurors. Like sexuality, gender and gender roles have traditionally and significantly influenced these issues. Nevertheless, judges and the legal system often have little factual information about the lesbians and gay men who appear in their courtrooms, instead relying on stereotypes of gay persons. Such reliance fails to see the real people currently present in family courts and likely to appear in the future. The paradigmatic image of the lesbian mother or the adopted child, both radically different from their heterosexual counterparts captures only a slice of lesbian and gay male families. This paper examines recent demographic studies on same-sex couples to explore how sexuality and gender statistics may be used to guide family law doctrine and case outcomes in the 21st century. Since sexual orientation is not uniformly apparent, but varies with individuals and over time and location, the article specifically explores how visibility of minority sexual orientation may affect the demographic data. For example, the movement of lesbians and gay men away from traditional urban enclaves into areas not usually envisioned as gay-friendly may provoke a shift in both population and domestic relations jurisprudence. By examining gender and sexuality empirical studies, family law courts and judges can better see the people and issues present before them - and family law may more accurately reflect the diversity of family structures in modern life.
{"title":"It's Not Just Shopping, Urban Lofts, and the Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts","authors":"T. Brower","doi":"10.2139/SSRN.1213270","DOIUrl":"https://doi.org/10.2139/SSRN.1213270","url":null,"abstract":"Courts today are deeply involved in matters involving lesbian, gay, bisexual and transgendered persons. Same-sex marriage, custody disputes, conflict with religious claims and other, more routine family law cases all bring sexual orientation minorities into the judicial system as parties, witnesses, lawyers, or jurors. Like sexuality, gender and gender roles have traditionally and significantly influenced these issues. Nevertheless, judges and the legal system often have little factual information about the lesbians and gay men who appear in their courtrooms, instead relying on stereotypes of gay persons. Such reliance fails to see the real people currently present in family courts and likely to appear in the future. The paradigmatic image of the lesbian mother or the adopted child, both radically different from their heterosexual counterparts captures only a slice of lesbian and gay male families. This paper examines recent demographic studies on same-sex couples to explore how sexuality and gender statistics may be used to guide family law doctrine and case outcomes in the 21st century. Since sexual orientation is not uniformly apparent, but varies with individuals and over time and location, the article specifically explores how visibility of minority sexual orientation may affect the demographic data. For example, the movement of lesbians and gay men away from traditional urban enclaves into areas not usually envisioned as gay-friendly may provoke a shift in both population and domestic relations jurisprudence. By examining gender and sexuality empirical studies, family law courts and judges can better see the people and issues present before them - and family law may more accurately reflect the diversity of family structures in modern life.","PeriodicalId":87421,"journal":{"name":"The American University journal of gender, social policy & the law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79497505","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}
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