Who Is Protected?

Many employers have excluded women whose infertility is not medically documented from allegedly hazardous work claiming they feared if the women became pregnant, their fetuses would be harmed. In United Auto Workers v. Johnson Controls, the Supreme Court held in 1991 that so-called "fetal protection policies" are unlawful sex discrimination. After examining four cases challenging exclusionary policies in Britain and the United States, this article unmasks and argues against the assumptions underlying such policies. By returning to well-established sex discrimination doctrine, moving away from a male norm, and reaffirming women's right to both work and have children, the Supreme Court's decision in UAW V. Johnson Controls is an important victory. The decision should help to break down job segregation, prompt the EEOC to act, and clear the way for addressing questions of health and safety rather than equality and difference.     

When Should Differences Make a Difference:

This study criticizes the Supreme Court's current approach to constitutional gender equality and suggests a new type of review for gender-based classifications under the equal protection clause. The debate over acceptable gender classification hsa forced the Court to decide whether distinctions on the basis of gender-specific physical characteristics discriminate on the bsais of gender, whether legislation on the basis of generalized physical characteristics is discriminatory when applied to individuals who deviate from the average, whether states reinforce sex role stereotypes when legislating on the basis of gender-specific physical characteristics, and whether legislation that purports to benefit women actually serves to further inequality. In wrestling with this issues, especially the last, the Court has also been forced to explain both logically and legally why racial classifications are different from gender classifications The purpose of this study is twofold: the first objective is to argue that the Supreme Court should adopt an approach to legally sanctioned gender differentiation that would review gender classifications with the same hostility as racial classifications; related to this is the second objective, which is to show that a strict-scrutiny equal protection analysis is compatible with a special treatment approach for pregnancy benefits legislation. The two tasks will be undertaken by presenting critiques of the Court's current approach to gender equity and by suggesting an alternative direction for gender-based equal protection doctrine, one that will accomodate positive pregnancy legislation.     

Webster and the Rights to Life

The Supreme Court's refusal to recognize the existence of a basic affirmative right to health care may entail that women must retain a legal right to expel legal fetuses, even if Roe v. Wade is reversed and states are permitted to give fetuses legal standing as persons. Further, recognition of a basic affirmative right to health care would not entail that a woman in obliged to carry her fetus, even if a failure to do so would result in fetus' death. Duties correlative to basic affirmative rights are distributed among the members of society, not solely vested in single individuals.     

Juvenile life without the possibility of parole: Constitutional but complicated

The Supreme Court's recent decision in Miller v. Alabama found that juvenile life without the possibility of parole sentences for homicide crimes was unconstitutional if mandated by state law. Thus, allowing this sentence only after an individualized decision determines the sanction proportional given the circumstances of the offense and mitigating factors. This decision, for a number of reasons, does not go far enough in protecting those youthful offenders afflicted with maltreatment victimizations, mental health problems, and/or learning disabilities — all potential links for some adolescents to serious offending and potentially homicide. While the Supreme Court has not protected these youthful offenders from a potential life sentence, there are early interventions and preventative programming that can help decrease serious adolescent offending behaviors. So while many states will, post Miller, allow this life imprisonment sentence, it is only just, in light of the extensive difficulties for many of these adolescents, that their future allows at least the possibility of a parole hearing.     

The Failed Patient Self-Determination Act and Policy Alternatives for the Right to Die

ABSTRACT

The empirical evidence regarding the implementation and impact of the federal Patient Self-Determination Act is examined in this article. The Act was designed to increase the use of advance medical directives in light of the U.S. Supreme Court's Cruzan decision. Research shows that the law has had little effect and that the use of advance directives has scant relation to medical treatment and care. Various policy alternatives for the right to die are also examined. The authors conclude with an analysis of the likely impact of medical costs, fruitless treatment, and rationed health care on limiting life-prolonging treatment.     

Abortion: rights or technicalities? A comparison of Roe v. Wade with the abortion decision of the German Federal Constitutional Court

A comparison of the difference in approach, philosophy, and percepti on of social implications of abortion in the United States and Germany is examined by contrasting the Roe v. Wade decision of the U.S. Supreme Court with the abortion decision of the German Federal Constitutional Court. Roe v. Wade effectively established abortion on demand prior to "viability" (approximately 6 months) and makes it difficult to prevent it for any reason at any time prior to live birth. When the West German Federal Diet passed the Fifth Law for the Reform of the Penal Code which allowed abortion on request up to 12 weeks of conception and for reasons of maternal health up to 22 weeks, the Constitutional Court declared it null and void 8 months later. The 2 courts reached their decisions for quite different reasons. In the U.S. "Jane Roe" was a real, though anonymous, woman. Other real persons had been trying to overturn abortion statutues in various states. The German court acted on a petition brought by 193 members of the Federal Diet and 4 of the states. It was thus, under the German system, obligated to decide the constitutionality of the revisions in abortion legislation and the decision returned the question to the legislative body. The fundamental difference between the German and the American approach is the "right to life." In America the conflict is between the mother's "right to privacy" and the compelling interest of the state to protect the right to life. At no point does the U.S. Supreme Court consider whether the unborn has rights but only whether they constitute a value the protection of which is a legitimate state interest. In Germany, by contrast, the Federal Constitution explicitly establishes the right to life as a subjective human right; the state not only has no right to take life but acknowledges that this right belongs to the human being himself. The U.S. court reasoned that the unborn have been protected "only" for the last century while the German court stated the right has "already" been recognized for a century. The U.S. Court made no mention of the wider social implications of the decision except for a few brief references; the German court's major consideration was the social implication of the law. An appendix with 6 refs. give a translation of the German court's decision.     

Pay No Attention to the Man Behind the Curtain!

Abstract

This paper considers issues of violence against women through the conceptual lens of public/private ideology, exploring numerous ways that the public/private dichotomy is reinforced in the law and public policy of rape, domestic violence, and sexual harassment. We argue that the power of this ideology continues into the contemporary law of gendered violence, as evidenced most recently by the Supreme Court's decision in United States v. Morrison (2000). We find that public/private ideology offers men a “violence shield”: freedom from scrutiny that enables gendered violence to thrive. Although gendered violence is now on the public agenda, these crimes remain shielded from scrutiny because they are associated with the private sphere. We suggest that feminist activists concentrate on undermining these ideological roots when crafting strategies to combat violence against women.     

A Christian identity for the liberal state?

It seems to be impossible for the liberal state to embrace a Christian identity, because ‘liberalism’ is exactly a device for separating state and religion. Discussing the implications of a recent decision of the European Court of Human Rights, Lautsi v. Italy (2011), I argue that this is not necessarily so. If paired with a liberal commitment to pluralism, a Christian identity might even be more inclusive of minority religions than a narrowly ‘liberal’ state identity, which has been the dominant response in Western Europe to the challenge of immigrant diversity, especially that of Muslim origins.     

Sexual Orientation Discrimination and Its Challenges for Nonprofit Managers

In the wake of the recent New Jersey Supreme Court decision, Dale v. Boy Scouts of America and Monmouth Council Boy Scouts (1999), this article examines the issue of sexual orientation discrimination and the challenges it presents nonprofit managers. Because of regional shifts in public opinion, the enactment of nondiscrimination laws at the state and local level, and now a state Supreme Court interpreting state law to include the Boy Scouts of America (BSA) as a “public accommodation,” nonprofit managers may face a more complex legal and moral environment. It is hoped that this article will challenge nonprofit managers to carefully reexamine their membership and personnel policies with respect to lesbians and gay men and begin preparing their organizations for this cultural change.     

Re-Examining Evelyn Hooker: Setting the Record Straight with Comments on Schumm's (2012) Reanalysis

Evelyn Hooker's research comparing the mental health of 30 male homosexuals to 30 male heterosexuals may be the most influential study in the history of social science. The American Psychological Association (APA) claims her work was the major reason it began advocating for acceptance of homosexuality. It led the American Psychiatric Association in 1973 to eliminate homosexuality from the Diagnostic and Statistical Manual of Mental Disorders. And it impacted the U.S. Supreme Court's 2003 legalization of sodomy in Lawrence v Texas.

Hooker reportedly believed experts would be unable to distinguish homosexuals from heterosexuals on psychological tests. Re-examination of her work indicates that Hooker's study was neither rigorous nor reliable. Among other problems, homosexual subjects were easily identified on test protocols; her reports of how she obtained her samples were incomplete and contradictory; and her study generated results supportive of obsession/compulsivity in homosexuals.

Thus Hooker's study was seriously flawed. Moreover, because it was marketed by the APA as central in transforming homosexual activity from an illness/crime into acceptable behavior—yet Hooker did not correct those who mischaracterized her work—APA misrepresentations of Hooker over the past 40 years appear to be more in line with ideology than science.     

Open adoption records,the human rights of adopted people,and discrimination: the case of Odièvre v France 2003

The recent judgement by the European Court of Human Rights in the Odièvre v France case has denied some adopted people the right to access identifying information about their family of origin. Yet, in the UK, adopted people have enjoyed the right to access identifying information for many years. The evidence from practice and research has demonstrated the positive benefits adopted people and their birth and adoptive relatives have gained from an open record policy. In this paper, the authors argue that denying some adopted people access to information that could enhance their personal identity creates an act of discrimination.     

Whose rights are they anyway?: The supreme court and the rights of Juveniles

This article examines selected United States Supreme Court decisions from 1923 through the 1984 term of the Court. The selection, which includes Wisconsin v. Yoder, In re Gault, In re Winship, and Schall v. Martin, traces and illustrates the triangle of interest among parent, child, and state as parens patriae, when the issue raised is the interest of children. The focal question is: Have children been recognized as having their own individual Constitutional rights, or have their rights been merged with those of their parents and/or the state standing in the place of the parents?     

Towards an affirmative public domain

Two competing and yet complementary philosophical concepts form the foundation for the legal protection of intellectual property – ‘competing’ in that created works protected by copyright are unavailable for unrestricted use by others as a result of the economic monopoly given to the works’ owners, and ‘complementary’ in that the presumption is that works no longer protected by copyright serve as the basis for the creation of new copyrightable works. These unprotected works comprise the ‘public domain,’ which has never been affirmatively defined. In Golan v. Holder (2012), the US Supreme Court concluded that such a realm is constitutionally unimportant. This research contends, however, that the Court's decision is incorrect, that Golan, federal legislation, and international treaties threaten to bring larger and larger portions of cultural and intellectual content under the control of a property regime that does not understand the contradiction inherent in the notion of absolute property rights in intangible goods. The result is that the public domain is under tremendous pressure from those entities which have the most to gain from expanded authorial rights and from a weakened and less inclusive public domain. Citizens thus will have fewer rights to access and freely use their culture as they choose. The eventual significance of this evolution will be that further creativity and innovation will be stifled, the opposite of the intention of intellectual property law. In this article, we develop an affirmative definition of the public domain, which we believe will correct the imbalance in current intellectual property law.     

Three Recent United States Supreme Court Decisions for Professionals Who Testify in Child Sexual Abuse Cases

This article provides a basic review of the most recent United States Supreme Court decisions that directly relate to child sexual abuse. These cases are Maryland v. Craig, Idaho v. Wright, and White v. Illinois. More specifically, the article illustrates how the legal principles of these cases practically affect professionals who treat and counsel sexual abuse victims when and if they are called to testify in court proceedings. After a brief introduction, a background section succinctly explains the basic legal principles of confrontation and hearsay which underpin the recent Supreme Court decisions. The rest of the article then analyzes each of the three recent cases and focuses on citing examples of testimony that was or was not admissible. This article is not intended to be an exhaustive legal analysis nor a commentary on the appropriateness of the case holdings, but rather a practical review with specific examples of what the United States Supreme Court has held to be acceptable as of this writing.     

HOW DOES ADVERTISING AFFECT MARKET PERFORMANCE? A NOTE ON GENERIC ADVERTISING

We propose a novel approach to estimating the effect of advertising on market performance that relies on the preferences of firms participating in generic advertising programs. Generic advertising campaigns provide a unique window to observe advertising effects on market performance, because rotations in market demand systematically redistribute advertising rents among firms according to observable characteristics on producer size. We examine producer attitudes towards generic advertising in the “Beef. It's What's for Dinner!” campaign of the U.S. Beef Checkoff program, the subject of the recent and controversial Supreme Court ruling on generic advertising as a form of government speech. We find the likelihood producers favor an expansion of the advertising program increases in their operating scale. This finding is consistent with an advertising campaign that has led to a counterclockwise rotation of market demand and a commensurate increase in market performance in the U.S. beef market. (JEL L1, M37, Q13)     

When [professional] worlds collide: implications of Kasky v. Nike for corporate reputation management

A report aired on the CBS news magazine 48 Hours in October, 1996 that accused Nike of exploiting lax labor laws in developing countries and engaging in business practices that would be at least questionable (if not actually illegal) if followed in the United States.This article discusses the controversy caused by the efforts of Nike, Inc. to defend its good name that culminated in the California Supreme Court's decision in Kasky v. Nike. The authors then examine the changed landscape of protection this case creates for public relations speech and expressive conduct, especially in situations dealing with reputation management by for-profit corporations.     

The Co-Evolution of Marriage and Parental Rights of Gays and Lesbians

ABSTRACT

Historically, federal and state legislation placed different conditions on same- and opposite-sex couples' ability to marry, adopt, or exercise their parental rights. Given the historical intertwining of marriage and parenting, legal issues remain hinged on differing conceptions of marriage and what constitutes a legal family in the United States, especially for same-sex partners compared to their different-sexed couple counterparts. This article provides a historical review of decisions that serve as the foundation for queer parenting rights in the United States. A key focus is on the impact of the U.S. Supreme Court Obergefell v. Hodges (2015) marriage decision on queer parenting and its relevance to researchers and practitioners whose work involves queer families. State discrepancies continue to exist for the treatment of parental rights in spite of the legalization of same-sex marriage. Finally, suggestions are provided for future directions for the field.     

Situational political socialization: a normative approach to young people's adoption and acquisition of political preferences and skills

Research on young people's political socialization has had an adult-centered top–down bias in which young people are considered incomplete and in need of the right upbringing. The article attempts to balance this bias. The aim is to introduce and argue for another normative approach – situational political socialization. Four theoretical elements constitute its basis: (1) the political, (2) contingency (the principle of the public sphere), (3) space and place, and (4) situation. In the contingent western digital media society marked by cultural dissemination, individualism, and the erosion of traditional institutions, situational political socialization represents a normative basis for a research approach which is open, action-oriented and contextualized, viewing young people as political actors in their own right.     

Abortion,Partial-Birth Abortion,and Adolescent Access to Abortion: An Overview for Social Workers

Although the U.S Supreme Court Roe v. Wade decision legalized abortion in 1973, intense controversy over access, legality, and morality has persisted ever since that landmark decision. National opinion data collected from 1975 to 2007 show that a majority of Americans support a woman's right to an abortion, but this right is increasingly under attack, and recent proposed changes to abortion access are not in line with how most Americans feel. This paper considers public opinion trends in the sharply divided arenas of abortion, partial-birth abortion, and adolescents' rights to access abortion with a critical eye to social work practice. We explore several opportunities for social workers to advocate for clients, including legislative advocacy, reform through litigation, social action, and social policy analysis.     

A Model for Policy Analysis Applied to the Goodridge Case

Judicial decisions, especially Supreme Court decisions, are becoming, more than ever, major contributors to social policy creation. The political implications of such decisions have far reaching implications for policy analysts, advocates, systems, and individuals. In the case of Goodridge vs. Department of Public Health(2003), the state asked the court to limit the civil rights of a certain group of people because of their sexual orientation. Despite the impact court decisions have on policy, there are few models designed to be used to connect the impact of court decisions to the societal and personal values that underlie them. This paper describes a new model designed by the author to analyze judicial decisions, one that includes a value critical approach, and shows its application to the Goodridge(2003) ruling granting same sex couples the right to legally marry in Massachusetts.