• Journal Staff

      Duke University School of Law, 1994-01-01
    • Gender Law

      Bartlett, Katharine T. (Duke University School of Law, 1994-01-01)
      The inauguration of the DUKE JOURNAL OF GENDER LAW & POLICY represents an exciting step in the institutionalization of a subject area in academic law formerly found only at the fringe of legal scholarship and law school curriculums. Often shunned as a political activity inappropriate to institutions committed to academic rigor, objectivity, and neutrality, gender law has begun to lay down roots as a disciplined set of inquiries that enhance the rigor of conventional legal study and offer tools for improving the objectivity and neutrality of law, even as it challenges the conventional meanings of those concepts. There are two principal ways scholars have organized the field of gender law. The first is to draw together legal doctrines and analyses from conventional legal fields that seem to have special relevance to women such as employment law, family law, criminal law, and constitutional law. This approach is typical in law school "sex-based discrimination" and "women and the law" courses. The second is to identify theoretical perspectives that cross-cut conventional legal boundaries and model alternative relationships between gender and law. This more theoretical approach is common in feminist jurisprudence or feminist legal theory courses. I find a combination of these two approaches desirable but, as my own textbook in this field demonstrates, 1 I believe that the alternative theoretical perspectives are what makes gender a subject in its own right, as opposed to a set of derivations from other, more well-established areas of study. The purpose of this Essay is to ...
    • From Betrayal to Power

      Malave, Idelisse; Debold, Elizabeth; Wilson, Marie (Duke University School of Law, 1994-01-01)
      Resistance is the secret of joy! --Alice Walker Possessing the Secret of Joy What does it mean to love a daughter in a culture that is hostile to her integrity? In a culture where power equals dominance and superiority, men's control of public life--the world of political and economic power that shapes the desires of private life--places mothers in a double bind as their daughters approach womanhood. The common ways that mothers have of guiding daughters--what we call "the paths of least resistance" in chapter two 1 --ask girls to make deep psychological sacrifices to straddle the cultural division of work, in the "male" public world of politics and business, and love, in the "female" private world of home and family. As girls find that they cannot enter patriarchy fully and powerfully as themselves, they feel betrayed by their mothers. But mothers did not create the separate spheres of public and private life. It is this cultural betrayal of human integrity, which divides our wholeness into these separate spheres, that makes loving and raising a daughter political work. The romance-into-mothering myth created in the mid-1800s told women that their true nature is best expressed in the home, in private life. 2 When market-driven factory life in the Industrial Revolution consumed women's traditional work of producing food, clothing, medicine, and crafts, women were suddenly stripped of their expertise and authority. Rather than adopting a "rationalist" solution of admitting "women into modern society ...
    • The Criminal Justice System: Towards the 21st Century

      Reno, Janet (Duke University School of Law, 1994-01-01)
      On January 22, 1994, Duke University was honored to have United States Attorney General Janet Reno visit our campus to deliver the Keynote Address for the Fifth Annual Frontiers of Legal Thought Conference. Every year, Duke Law School students organize and conduct this conference, addressing current legal and societal issues of interest to our students. This year's conference addressed "The Criminal Justice System: Towards the 21st Century." Attorney General Reno's speech stressed the need for interdisciplinary solutions to the criminal and social problems facing our country today. The Duke Journal of Gender Law & Policy hopes to foster the sort of dialogue through which such solutions may be found. Below is a brief description of this year's conference by its co-chairs, followed by a Comment by the Attorney General based on the text of her speech. When we began planning this year's Frontiers of Legal Thought Conference, we set for ourselves one very simple goal: to focus the attention of the Duke University community on criminal justice issues. We selected that topic for several reasons. Both of us intend to pursue careers in criminal justice; that personal interest clearly played a role in our decision. But we also felt that any proper discussion of criminal justice would necessarily involve broader social questions of race, class, and gender. We feel strongly about those issues as well and we were confident that a conference focusing on criminal justice would provide an excellent forum for a discussion of those social concerns. ...
    • A New Approach for Gay and Lesbian Domestic Partners: Legal Acceptance Through Relational Property Theory

      Jacobs, Hara (Duke University School of Law, 1994-01-01)
      In the past twenty years, the number of couples living together on a long-term basis without marrying has dramatically increased. 1 With the increase in domestic partnerships 2 has come new litigation in which one scorned domestic partner sues the other, claiming a right to property procured during the relationship. Often, one partner brought more present or future financial resources to the relationship than the other. The wealthier partner may have placed some or all of the property acquired during the relationship in her name only for a variety of seemingly innocuous reasons (e.g., business expertise, tax benefits, facilitation of financial management); nonetheless, the result is that one partner has title to the assets while the other partner has nothing. In fact, such a situation is similar to marriage, where one spouse typically enters the union with more assets, business expertise, or earning potential than the other. As this Note argues, the key difference between spouses and domestic partners, however, is that marital dissolution statutes protect spouses. Domestic partners must rely on scattered judicial decisions which often do not agree on the proper theory a domestic partner should advance in order to state a claim. The problems a domestic partner faces are compounded when the plaintiff making the property claim is gay or lesbian. Homosexuals are not a protected class, which means that they can be discriminated against as long as there is a rational basis for the statutory distinction and a legitimate government interest. 3
    • Race and Gender Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment

      Rierson, Sandra L. (Duke University School of Law, 1994-01-01)
      It was we, the people, not we, the white male citizens, nor yet we, the male citizens, but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people--women as well as men. --Susan B. Anthony 1 Under the common law of both England and the United States, a married woman enjoyed a legal status only slightly better than that of a slave. Until the mid-nineteenth century, in no state could a married American woman own property, make a will, inherit, sue or be sued, enter into a contract, or exercise any other of her most basic civil rights. Even single and widowed women, many of whom owned large amounts of property, were deprived of political rights: they could not vote, hold office, or sit on a jury. The gradual dissolution of women's inferior legal status began with the passage of married women's property laws, beginning before the Civil War and continuing throughout the twentieth century. In an even more brutal fashion, the institution of slavery stripped Black Americans of all their human, civil, political, and social rights. 2 In Dred Scott v. Sanford the Supreme Court determined that, even if Blacks were "free," they were not "citizens" of the United States. 3 This Supreme Court ruling was superseded by the passage of the Thirteenth and the Fourteenth ...
    • Are Women Worth as Much as Men?: Employment Inequities, Gender Roles, and Public Policy

      Branch, Kathryn (Duke University School of Law, 1994-01-01)
      Gender inequities in employment are apparent in many different contexts and have numerous components. The most quantifiable measure is a comparison between the relative earnings of men and women. A related measure is the distribution by gender across occupational lines and the average relative salaries of jobs that tend to be predominantly occupied by workers of one gender. All available statistics show that men earn significantly more than women. 1 This remains true no matter what year the figures are from, or whether they are weighted according to age, labor force status, or educational attainment. 2 If financial compensation for work is any indicator, women are worth significantly less than men in the United States. Women are not worth as much as men in the labor market because notions of traditional gender roles continue to result in the prescriptive assignment of responsibility for children and home to women. Although it may be true that more women than men would prefer to care for home and family, even in the absence of cultural pressure, not all women desire such a role. It is equally true that not all men would eschew primary caretaking roles. In a fundamentally fair society, the talents and desires of each individual, instead of the biological accident of gender, will decide their appropriate role. Although it is currently possible for an individual to rise above cultural pressures and claim a role different from that encouraged for their gender, the mere fact that a hurdle ...
    • Pay Equity and Women’s Wage Increases: Success in the States, a Model for the Nation

      Aaronson, Stephanie; Hartmann, Heidi I. (Duke University School of Law, 1994-01-01)
      By 1989, twenty states had implemented programs to raise the wages of workers in female-dominated job classes in their state civil services. A study of these pay equity programs, conducted by the Institute for Women's Policy Research and the Urban Institute, found that all twenty states were successful in closing the female/male wage gap without substantial negative side effects such as increased unemployment. The extent to which the states succeeded depended on many factors including how much money was spent, the proportion of women affected, and the standard to which female wages were raised. As women's responsibilities for their families' wellbeing increase, it is important to explore policies to raise women's wages to levels that are free from discrimination or cultural devaluation. An American woman working full-time year-round in 1992 earned only 71 percent as much as her male counterpart. 1 This represents a substantial increase since 1982 when the wage ratio of female to male earnings was 62 percent. Approximately half of this increase is due to an increase in women's real wages, 2 while the other half is due to a decrease in men's real wages. 3 Despite this considerable advance, the wage gap remains; women still earn less than men even in the same occupations. 4 When different jobs of comparable worth--those requiring similar levels of skill, effort, responsibility, or knowledge--are compared it is even more common to find pay inequities. 5 The persistence of the wage gap compels attention for two ...
    • Foreword

      Duke University School of Law, 1995-01-01
    • Second Parent Adoption: A Personal Perspective

      Lashman, Deborah (Duke University School of Law, 1995-01-01)
    • A Child’s Right to Protection from Transfer Trauma in a Contested Adoption Case

      Scarnecchia, Suellyn (Duke University School of Law, 1995-01-01)
    • Journal Staff

      Duke University School of Law, 1995-01-01
    • Beyond Biology: The Politics of Adoption & Reproduction

      Bartholet, Elizabeth (Duke University School of Law, 1995-01-01)
      It is exciting simply to be having this conference focused on adoption law and policy. I remember some nine years ago starting to plan a course dealing with adoption issues and wondering whether I would be able to justify its place in the Harvard Law School curriculum. It is also exciting to look around the room at the wonderfully diverse and knowledgeable group of people the Duke Journal of Gender Law & Policy gathered here to participate in these discussions of important issues involving adoption and the meaning of family. My topic today has to do with adoption and, more particularly, adoption in relation to reproduction. By reproduction I mean three different things: (1) traditional reproduction, or the production of a child through normal intercourse between one man and one woman; (2) infertility treatment, or the use of medical technology to assist a man and a woman to produce a child using his sperm and her egg and womb; and (3) a variety of child producing and parenting arrangements that I have collectively termed "technologic adoption." By the latter, I mean arrangements that result in the social equivalent of either step-parent adoptions or full adoptions, where the child is produced in order to be raised by one or more parents who will not be genetically or biologically related. I am referring to such practices as donor insemination, surrogacy, both in its "traditional" and gestational form, egg donation or sale, and embryo donation or sale. One thing I ...
    • Reclaiming Self-Determination: A Call for Intraracial Adoption

      Townsend, Jacinda T. (Duke University School of Law, 1995-01-01)
      The wholesale marketing of Black children to suit the economic interests of others was one of the cruelest aspects of slavery. Sons and daughters who were traded away from their parents would later struggle in vain to remember their families, their customs, and their countries of origin. Even the extended families which evolved in the transient slave communities were continually fragmented as children and their caretakers were merchanted to different plantations according to the whims of White slavemasters. 1 Although due to quite different circumstances, today the Black community continues to lose its children. At present, government sponsored entities, 2 overlooking the potentially harmful consequences of transracial adoption, 3 remove Black children from their communities through transracial adoption with Whites who are unable to secure children of their own race. 4 Part I of this Note provides an overview of transracial adoption legislation leading up to the Multiethnic Placement Act (MPA) of 1994 and critiques the Act. Part II considers the effects of the transracial placement of Black children. This section focuses on the survival skills Black transracial adoptees would or would not acquire in a White home and the effect such an adoption may have on their racial identities and sense of community. Part III examines the current state of the law regarding the transracial adoption of Native American children. This section concludes that Black children should be accorded similar treatment, and moreover, that Black parents should be encouraged to adopt thereby diminishing the lengthy wait faced by adoptees ...
    • Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research

      Elovitz, Marc E. (Duke University School of Law, 1995-01-01)
      In the past twenty years, openly lesbian and gay people have joined in the evolving national dialogue, within the law and elsewhere, about adoption. This Article considers the adoption dialogue, addressing in particular the facts and beliefs that sometimes form (both by informing and misinforming) the dialogue. Part I of this Article describes the ways in which lesbian and gay people confront adoption's legal structures. Part II discusses the findings of social science research on parenting by lesbian and gay people. Part III reviews and analyzes some of the responses to this research. The Conclusion considers the nature of the discussions regarding the research and suggests a mode of reconstruction. I. The Legal Structures of Adoption The legal process of adoption intersects with the lives of lesbian and gay people in a variety of ways. The most common are (1) second parent adoptions in which a lesbian or gay person adopts the child of a partner, and (2) traditional adoptions, in which a lesbian or gay person adopts a foster child or a child whom the adoptive parent has previously not cared for. 1 The traditional form of adoption extinguishes the parental rights and obligations of the biological or legal parent so that the adoptive parent becomes the sole parent. Second parent adoption, however, leaves the parental rights of one legally recognized parent intact and creates a second legally recognized parent for the child. These adoptions have become fairly routine among children of heterosexual step-parents, though typically pursuant to ...
    • Adoption of Minor Children by Lesbian and Gay Adults: A Social Science Perspective

      Patterson, Charlotte J. (Duke University School of Law, 1995-01-01)
      Does adoption of minor children by openly lesbian or gay adults serve the best interests of children? Although forbidden in some jurisdictions, 1 such adoptions have taken place in other parts of the country. Considerable public controversy continues to surround adoptions by lesbian and gay parents. 2 In this article, I begin with a description of two actual adoptions which illustrate the difference between stranger adoptions, in which the biological parent's rights are terminated, and second parent or co-parent adoptions, in which a second person becomes a legal parent without terminating the legal or biological parent's rights. In this way, I hope to point out some of the needs that these adoptions satisfy. I then provide a brief outline of the legal status of lesbian and gay adoption in different jurisdictions and give an overview of evidence from social science research about the development of children with lesbian and gay parents. I conclude that there is no factual basis for claims that the adoption of children by lesbian and gay parents is harmful to children. On the contrary, there is every reason to believe, based on research findings, that children of lesbian and gay parents develop as successfully as do children of heterosexual parents. For this reason, and in view of the needs of children who are involved, I argue that for purposes of adoption proceedings, sexual orientation of prospective parents should be considered irrelevant. I. Adoption By Lesbian and Gay Parents: Two Personal Stories A. To Be Someone's Child ...
    • Adoption and Aspiration: The Uniform Adoption Act, the Deboer-Schmidt Case, and the American Quest for the Ideal Family

      Hollinger, Joan Heifetz (Duke University School of Law, 1995-01-01)
      When the state must designate a child's legal parentage, should the goal be to protect the biological parents' "opportunity interests" to raise "their" child or to protect the child's established relationships with the individuals who have actually functioned as her parents? What characteristics render an adult an appropriate parent? These questions, long in the background of disputes over adoption, have been raised with new intensity in the early 1990s in two distinctive settings. The first is the debate about these questions waged in the courts and the media. The second is the effort of the National Conference of Commissioners on Uniform State Laws (NCCUSL) to create a Uniform Adoption Act. The fate of the child called Jessica by her would-be adopters in Michigan and Anna by her birth parents in Iowa was a matter of agitated public debate before, during, and after it was decided by a legal system slow to resolve the conflicting claims of the adoptive and birth parents and even slower to recognize the young child's interest in a quick decision. 1 Similarly, the law's inability to resolve the competing claims of entitlement with respect to other young children--Richard Doe in Illinois, Emily W. in Florida, Michael S. in California--generates yet more media attention to the questions of "where do children belong?" and "to whom do children belong?" 2 As American culture's internal conflicts over the ideal family are projected onto the various individuals, relationships, and households involved in each case, images of the conflicting ...
    • S. 1224—In Support of the Multiethnic Placement Act of 1993

      Metzenbaum, Howard M. (Duke University School of Law, 1995-01-01)
      Anyone who knows me, friend or foe, will tell you that one of my great passions in life is children. They represent the best in all of us and our best hope for the future. All my life I have pursued policies to ensure that all children, no matter what the circumstances of their birth, are treasured and nurtured. Whether it is a baby born with AIDS and addicted to crack, or my own wonderful grandchildren, I want to do everything in my power to make sure that every child grows up in a loving, caring, stable, and safe environment. Today, sadly, children in America are in more danger than ever. Poverty, crime, and substance abuse are tearing families apart. The number of children in the foster care system has exploded from 276,000 in 1986 to 450,000 in 1992. Children are entering foster care at a younger age in record numbers, and are staying in the system for longer periods of time. The government's goal for most children in foster care should be reunification with their families. We must also increase the funding for programs that prevent the breakup of families in the first place and help them to stay together once they are reunited. However, family reunification is not always possible or appropriate. As a result, thousands of children of all races and colors are presently waiting to be adopted in America. The vast majority are living in foster care homes, some of which are good, some ...
    • Race Separatism in the Family: More on the Transracial Adoption Debate

      Bartholet, Elizabeth (Duke University School of Law, 1995-01-01)
      Some twenty-five years ago a trial court in Virginia upheld the state ban on interracial marriage, reasoning that God created different races and, accordingly, that it was natural to maintain racial purity, and unnatural to engage in racial mixing. 1 At that time, many other state laws banned both interracial marriage and transracial adoption. In Loving v. Virginia, 2 the United States Supreme Court struck down the Virginia antimiscegenation law, reversing the trial court's decision and holding that it was unconstitutional for states to mandate racial separatism in the family. Later, in Palmore v. Sidoti, 3 the Court ruled that it was unconstitutional to transfer custody of a white child from mother to father solely because the mother was living with a black man. While the Court acknowledged that it might not be in the child's best interests to live in a transracial family, it held that the equal protection doctrine prevented consideration of the race of a potential parent in making custody decisions. In the 1960s and 1970s, the courts in this country outlawed formal state bans on transracial adoption, finding them similarly inconsistent with the equal protection doctrine. There has been a similar development in South Africa today, where the ban on transracial adoption has just recently been lifted as part of the move to abolish apartheid. But in the United States a strange thing happened in 1972. The National Black Social Workers Association (NABSW) issued a statement calling for a new ban on transracial adoption. Actually, ...