JLG Online

What Not To Do When Your Roommate Is Murdered In Italy: Amanda Knox, Her “Strange” Behavior, and the Italian Legal System

By: Martha Grace Duncan Abstract       One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released.  Retried in absentia, she was convicted again, […]

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Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For ‘Don’t Ask, Don’t Tell’

Witt-less: A History and Analysis of the U.S. Military’s Failure to Comply With The Ninth Circuit’s Due Process Standard for ‘Don’t Ask, Don’t Tell’

Ari Freilich[1]

Please click here for a PDF version of the article.

I. Introduction

In its May 2008 ruling in Witt v. Dep’t of the Air Force,[2] the Ninth Circuit Court of Appeals became the first court in the nation to subject Don’t Ask, Don’t Tell (“DADT”) to a standard of “heightened scrutiny” and, more generally, to explicitly require more than deferential rational basis justification for “government attempts to intrude upon the personal and private lives of homosexuals[.]”[3] But Witt did more than simply articulate an abstract due process standard for subsequent gay rights cases. Surprisingly scant attention has been paid to the fact that, in applying heightened scrutiny to DADT, Witt mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The Witt Court invalidated DADT’s blanket, mandatory discharge policy in favor of a fact-specific standard requiring actual, individualized proof of military necessity in order to substantiate a servicemember’s discharge under DADT. That decision, and the “Witt Standard” borne of it, should have been a watershed moment for gay rights in America because the Ninth Circuit Court afforded significantly expanded substantive due process protections to gay men and women within its jurisdiction.[4] The decision should also have had an immediate impact on gay servicemembers’ right to serve openly in the U.S. Armed Forces. Although the military’s highest ranking officials acknowledged the Witt Standard as binding and approvingly cited it in federal court cases, the military simply, absolutely, and unconstitutionally ignored the decision in practice. Continue reading “Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For ‘Don’t Ask, Don’t Tell’”

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The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand A More Concrete Legal Analysis By Courts

The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand a More Concrete Legal Analysis by Courts

Rebecca Bucchieri 

George Mason University School of Law, J.D. Candidate, May 2015; American University, B.A. Law and Society, Magna Cum Laude, 2012. I would like to thank my family and friends for their invaluable feedback and loving support. 

Please click here for a PDF version of the article.

Introduction

The doctor tells Ms. Jones, “Here I see a well-developed diaphragm and here I see four healthy chambers of the heart.”[1] Words that should sound uplifting instead feel like punishment. The doctor continues to describe the size and shape of the fetus as he shows Ms. Jones the image on the ultrasound machine. Ms. Jones is not at a prenatal care appointment. She is at an abortion clinic undergoing a mandatory pre-abortion ultrasound. Ms. Jones is not listening to each of the doctor’s words in joyful anticipation of the next. She is clenching her eyes shut and wishing she could shut off the machine resonating the fetus’s heartbeat. Continue reading “The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand A More Concrete Legal Analysis By Courts”

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Panel: On The Front Lines of Law Reform

On The Front Lines of Law Reform

Editor’s Note: The following panel was held during Harvard Law School’s “Celebration 60,” which honored the 60th anniversary of the first women graduates at HLS. 

Please click here for a PDF version of the article.

Continue reading “Panel: On The Front Lines of Law Reform”

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Windsor, Federalism, and the Future of Marriage Litigation

Windsor, Federalism, and the Future of Marriage Litigation

Mark Strasser*


In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality. Continue reading “Windsor, Federalism, and the Future of Marriage Litigation”

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Transforming Campus Culture to Prevent Rape: the Possibility and Promise of Restorative Justice as a Response to Campus Sexual Violence

Transforming Campus Culture to Prevent Rape: the Possibility and Promise of Restorative Justice as a Response to Campus Sexual Violence

Alletta Brenner[1]


Though feminists have long argued that rape is linked to sex discrimination,[2] legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence.[3] One exception, however, exists in the context of federal anti-discrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond.[4] An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability.[5] Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to take affirmative steps to transform campus culture to prevent rape.[6]

Continue reading “Transforming Campus Culture to Prevent Rape: the Possibility and Promise of Restorative Justice as a Response to Campus Sexual Violence”

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Unsex Mothering: Online Colloquium

 For those who missed our conference on February 13th, please see the live blog and a video of the conference.

On Monday, February 13, 2012, the Harvard Journal of Law & Gender hosted a conference at Harvard Law School featuring Darren Rosenblum’s article Unsex Mothering: Toward a New Culture of Parenting, published in the journal’s Winter 2012 edition. The author discussed his piece, with responses from Professor Duncan Kennedy (HLS), Professor Mary Anne Case (U. Chicago), Professor Elizabeth Emens (Columbia), Professor Suzanne Kim (Rutgers), and Katherine Kraschel (HLS ’12).

The journal also solicited written responses from twenty scholars in the field for an online colloquium. These responses are linked below. To read Unsex Mothering, please click here.

Continue reading “Unsex Mothering: Online Colloquium”

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