America has long prided itself on being a nation of mobility. A nation where if you just work hard enough, you can and will get ahead.1 Indeed, many Americans hold this Horatio Algeresque self-image dear,2 and public policy is often formed based on the idea that work is the ticket to upward economic mobility.3 How mothers, and particularly poor single mothers, fit into this legend has evolved over time. For many years, there was an exception to the emphasis on work for woman who were raising young children. Indeed, when the first cash welfare program was created in 1935 (as Aid to Dependent Children (ADC)), it was sold as a federal solution to allow poor single mothers to take care of their children full-time, rather than feel pressured to work.4 Before this federal program, charities and then states ran Mothers’ Pension programs that were designed to help these mothers so that they could raise their children.5 Over time, however, a confluence of factors involving race, class, and a changing economy meant that support for ADC (later renamed Aid to Dependent
id=3290590. Lamp thanks Professor Jennifer Hillman for making this point to him, and I similarly want to her highlight her contribution.
Twenty-five years ago, it was my privilege to inaugurate the Duke Journal of Gender Law & Policy with an Essay that outlined the major theoretical frameworks within which gender law scholarship was evolving.1 These frameworks draw content from numerous traditional subject matter fields—family law, employment discrimination law, criminal law, and constitutional law, to name a few. But they also transcend those traditional fields, comprising a distinct field of study focused on the different ways gender does, or should, matter to law.2 Two of the frameworks use equality as the central goal and organizing principle, but make different assumptions and draw different conclusions about how to achieve it. Formal equality, for its part, assumes that men and women are the same, for all relevant purposes, and thus that laws and practices should not make distinctions between them. Substantive equality, on the other hand, focuses on factors that negatively affect women, such as past discrimination and biological differences from men, and supports accommodations and remedial measures to eliminate these negative effects. Two other frameworks also have concerns for equality, but offer critiques or proposals that do not focus exclusively on whether men and women should be treated the same, or differently. Nonsubordination theory makes the imbalance in power between men and women the central feature of its analysis, and explains how ostensibly freely-chosen sex roles and seemingly neutral legal principles (such as personal autonomy and freedom of speech) operate to subordinate women to men. Difference theory, like substantive equality, draws attention to women’s differences, but sees those differences not simply as impediments to women’s success, but also, in some cases, as a superior model for societal improvement. In 1994, I also described a collection of critical perspectives that I referred to as postmodern feminism. These perspectives
Title IX expresses society’s commitment to sex equality in educational settings. The structure of the statute’s regulatory scheme makes clear that the goal is sex equality, not sex neutrality. Notwithstanding the general preference for sex neutral measures, the sports exception to Title IX’s general nondiscrimination rule has long been one of the statute’s most popular features. The challenge in the beginning of the Title IX era was to get educational institutions to conceive of and equally to support females as athletes. We continue to fight for equal support, but as Title IX concludes its first semi-centennial, we no longer struggle as we did in the beginning with the basic concept of females as athletes, or of female sport as a high value social good. The challenge as we move into Title IX’s second semi-centennial is to get institutions to address the remaining disparities in their treatment of female athletes and female sport at the same time as we enter a new era in which we are being asked to imagine that “female” includes individuals of both sexes so long as they identify as women and girls. This ask reflects the intellectual choice to conceive of sex as a social construct rather than as a fact of biology tied to reproduction, and also the strategic choice of trans rights advocates to work toward law reform that would disallow any distinctions on the basis of sex. The problem is that female sport is by design and for good reasons a reproductive sex classification. These reasons have nothing to do with transphobia and everything to do with the performance gap that emerges from the onset of male puberty. Whether one is trans or not, if one is in sport and cares about sex equality, this physical phenomenon is undeniably relevant. Changing how we define “female” so that it includes individuals of both sexes, and then disallowing any distinctions among them on the basis of sex, is by definition and in effect a rejection of Title IX’s equality goals. Those who push for these changes are committed to sex neutrality, not sex equality. The goals of this paper are to provide the legal, factual, and normative background necessary to evaluate the merits of this challenge to the sports exception to Title IX’s general nondiscrimination rule, and then to present the case for re-affirming the exception in a form that is appropriate for this next period of its history. It proceeds in three parts: Part I describes the legal history of Title IX’s sports exception, its goals, and the current state of the legal doctrine. Part II explains its scientific basis and rationale. Part III sets out the best case for and against affirming the commitment to sex equality in education-based sport, and then presents our argument for resolving the collision of interests at issue. The paper concludes that the original Title IX commitment to sex equality continues to do important work and should not to be abandoned, including in the sports space where equality requires not only recognizing but also celebrating physical sex differences. Including trans people within this design is difficult by definition, but policymakers should accept the challenge.
Does the Constitution mandate forcing women to serve in the combat roles against their will? Does it require drafting women for that role even if Congress determines that the main purpose is to furnish troops for ground combat, and data shows that relatively few women are physically suited for that particular task? Does the Constitution require the government—in the midst of a national emergency requiring the mass mobilization of combat troops—to draft women despite evidence showing the necessary combat arms force can much more rapidly and efficiently be obtained through a male-only draft? These are the questions with which this brief Essay will grapple. Importantly, this Essay does not question whether or not women who can qualify for ground combat should be entitled to volunteer; that is, self-select into such positions. Rather, it only addresses whether a conscription process must be aimed at producing equal numbers of men and women in combat units that specifically require a level of physicality that only a small percentage of women possess. That said, this Essay also argues that if it is necessary to draft persons for positions for which the data does not demonstrate that women as a group face a particular physical impediment, then the draft must be conducted on a genderneutral basis. It also contends that it would be wiser policy for Congress to extend draft registration to both genders in order to be prepared to fill the many other positions beyond ground combat that future warfare will likely require.
Intercountry adoption (ICA) involves tens of thousands of children moving from family to family among more than 100 countries annually. But what is its history? And how is this history relevant – if at all – to the way we in the West conceptualize ICA today? Is ICA primarily a humanitarian endeavor, an altruistic response to political turmoil, civil wars, and natural disasters in other parts of the world? Or alternatively, is it just the commodification of vulnerable children in Global South countries to meet the needs of wealthy families in the Global North? What are the legal, moral, and ethical dimensions involved in the removal of children from their birth cultures? Ultimately, is ICA rooted in compassion and love for vulnerable children and children in need, or is it just the latest form of colonialism and cultural oppression? What is the right story to tell here? When we think of ICA, we often think of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. But this is a recent chapter in a very long history that finds its roots in the immediate aftermath of World War II. What is the history of the legal regulation of intercountry adoption and the story behind this legal regulation? Why is this so underexplored and undertheorized? And, furthermore, how, if at all, is it related to our regulation of immigration in, say, the United States? Are these two bodies of law related and part of the same story? And why is this a question that seems odd, as if there is no connection when both bodies of law were born of the same social, economic, and historical context? In this Article, I tell the story of intercountry adoption. Our starting point is the beginning of the adoption process, with so-called “sending countries,” in which I explore the reasons that countries enter their children into the intercountry adoption market. We begin in the aftermath of World War II and continue until the present day. The story starts in Europe (specifically, in Germany, Greece, and Italy) and Japan. It then continues throughout the Korean War and the communist regime of Nicolae Ceauseacu, until present-day Russia and China. Next, I tell the story of receiving countries; I discuss the social, political, and economic conditions over recent decades that have caused countries to become receiving countries of international adoptees. In the third section of this Article, I explore why intercountry adoption policy and immigration policy should not be thought of as discrete and separate issues, but, instead, as different sides of the same coin, the development of which has and continues to stress the welfare of the nation and society as a whole. And, finally, I turn to the Hague Convention and explore where we are today in the context of the complicated and nuanced history of intercountry adoption.
Six months after his inauguration as President of the United States, in a July 2017 tweet, U.S. President Donald J. Trump announced his administration’s plan to ban openly transgender individuals from serving in the United States’ Armed Forces (hereinafter the “transgender service ban”).1 This decision reverses a 2016 Obama administration decision permitting openly transgender persons to serve in the U.S. military.2 Later, Trump formalized his order, issuing a Presidential Memorandum on August 25, 2017.3 “First, the Memorandum indefinitely extends a prohibition against transgender individuals entering the military, a process formally referred to as “accession” . . . . Second, the Memorandum requires the military to authorize, by no later than March 23, 2018, the discharge of transgender service members.”4 The memorandum singles out the costs of providing healthcare to transgender service members as a primary catalyst of the order, with a specific focus on care related to sexual transition.5 This memorandum
In the midst of a turbulent presidential election and at a time when the concepts of bias and prejudice garnered media attention across our country, the American Bar Association (ABA) House of Delegates approved Resolution 109, which proposed an amendment to Model Rule 8.4 to incorporate an anti-harassment and anti-discrimination provision into the black letter rules governing the professional conduct of lawyers. By adding a new paragraph (g) to Model Rule 8.4, Resolution 109 sought to strengthen ethics protections for protected classes and advance the ABA’s goal of eliminating bias, harassment and discrimination in the legal profession. Though adoption of Model Rule 8.4(g) is a necessary step toward forestalling bias and discrimination in the judicial system, this article argues that it will not sufficiently do so without the implementation of additional safeguards and a cultural shift within the legal profession. This article first provides an understanding of the history of Model Rule 8.4 and the concepts of bias and discrimination in the legal profession. Next, this article argues that it should no longer be acceptable for lawyers to turn a blind eye and insulate themselves and the legal profession from the obligation to make cultural competency a core aspect of legal education and practice. This article then urges states to adopt Model Rule 8.4(g) and hold lawyers and judges accountable for violating the rule. Finally, this article proposes three specific reforms – the revision of law school accreditation standards, the implementation of continuing legal education requirements and the inclusion of mandatory cultural competency training for the judiciary – all of which, if implemented, will remove, as much as practical, bias, prejudice, discrimination and harassment from our legal profession and judicial system.
Over the last century, women have fought for the right to serve their nation in the exact same way men have: in uniform. Women have indeed made enormous strides toward serving in equal measure to their male counterparts. But women are still too often perceived and treated as second-class citizens, inhibiting a genuine realization of their equality in the armed forces. This is exhibited, if not reinforced, by the prevalence of women’s sexual assault while serving their country and the insufficient prosecution thereof. By diagnosing and remedying the insufficiencies in the military justice system’s legal regime governing the prosecution of military sexual assault as well as victim’s insufficient means of redress in civilian courts, we may be able to secure more prosecutions of attackers. This article looks to address this problem. It begins with a background on women’s growing participation in the military, both in how far women have come and what is left to achieve. Section II examines the specific problem of military sexual assault, including its prevalence, impact on the military at large, and the inadequate prosecution process. Section III looks at strategies, both enacted and untaken, to eradicate these underlying causes. Section IV discusses how to change the system to allow victims a realistic shot at pursuing and attaining justice. Section V details a recent case that may open the floodgates for female victims to assert their rights in federal courts, Doe v. Hagenbeck. The article concludes with a recap of the substantive points made as well as a few final thoughts.
In the midst of a turbulent presidential election and at a time when the concepts of bias and prejudice garnered media attention across our country, the American Bar Association (ABA) House of Delegates approved Resolution 109, which proposed an amendment to Model Rule 8.4 to incorporate an anti-harassment and anti-discrimination provision into the black letter rules governing the professional conduct of lawyers. By adding a new paragraph (g) to Model Rule 8.4, Resolution 109 sought to strengthen ethics protections for protected classes and advance the ABA’s goal of eliminating bias, harassment and discrimination in the legal profession. Though adoption of Model Rule 8.4(g) is a necessary step toward forestalling bias and discrimination in the judicial system, this article argues that it will not sufficiently do so without the implementation of additional safeguards and a cultural shift within the legal profession. This article first provides an understanding of the history of Model Rule 8.4 and the concepts of bias and discrimination in the legal profession. Next, this article argues that it should no longer be acceptable for lawyers to turn a blind eye and insulate themselves and the legal profession from the obligation to make cultural competency a core aspect of legal education and practice. This article then urges states to adopt Model Rule 8.4(g) and hold lawyers and judges accountable for violating the rule. Finally, this article proposes three specific reforms – the revision of law school accreditation standards, the implementation of continuing legal education requirements and the inclusion of mandatory cultural competency training for the judiciary – all of which, if implemented, will remove, as much as practical, bias, prejudice, discrimination and harassment from our legal profession and judicial system.
INTRODUCTION Recently, North Carolina, Kentucky, Florida, and Texas have either adopted, are considering adopting, or have failed to adopt statutes requiring all persons within the state to only use the public bathroom or locker room associated with their at birth. (1) These efforts have given rise to cries of discrimination and persecution by transgender people. (2) The U.S. Departments of Justice and Education have responded with lawsuits challenging the validity of these laws under both Title VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972. (3) However, these states are claiming that notwithstanding the Obama Administration's interpretation of the language of these federal statues, individual privacy and security justify segregated bathrooms and locker rooms. (4) This article will explore how persuasive these latter justifications really are after first presenting exactly what laws have been enacted or proposed, a brief history of transgender people in the United States, and the federal government's grounds for believing bathroom and locker room sex-segregation laws to be a form of discrimination. Part I will identify relevant provisions of the current North Carolina statute requiring sex-segregated bathroom and locker room use, as well as provisions of the proposed statutes in Kentucky, Florida (which, for the time being, is no longer in play), and Texas. Part II will provide a brief history of who transgender people in the United States are and why laws such as these may be devastating to their well-being. Part III will address the Title VII and Title IX claims likely to be raised by the Departments of Justice and Education in upcoming court cases against states having adopted sex-segregation laws. Part IV will review the merits of the alleged justifications of privacy and security that these states will rely on to attempt to defend their adoption of sex-segregated bathroom/locker room laws. A brief conclusion follows. I. SINGLE-SEX MULTIPLE OCCUPANCY BATHROOM AND CHANGING FACILITIES LAWS North Carolina's Public Facilities Privacy & Security Act was adopted by its legislature and signed by Governor Pat McCrory for the purpose of protecting the individual privacy and security of those using multiple occupancy bathrooms and changing facilities. (5) Under the provisions of this law, people in North Carolina are required to use in schools and public buildings the bathroom or locker room that corresponds to their sex as stated on a person's birth certificate. (6) The law also forbids North Carolina counties and cities from requiring or mandating, by way of regulations or controls, a private contractor's employment practices or provision of goods, services, or accommodations to any member of the public, as a condition for bidding on a contract or a qualification-based selection, except as otherwise required by State law. (7) In effect, this last provision ensures that no North Carolina city or county may refuse to contract with a private company that mandates its employees or the public at large to use, at any of its facilities, only the bathroom or changing room that corresponds to their sex. This law forces transgender people in North Carolina, whose biological does not conform to their gender identity or who have a diagnosis of gender dysphoria, to use in public buildings the bathroom and locker room facilities of the gender they do not identify with, or to use a private single-use facility if available. Arguably, being forced to use a bathroom/locker room inconsistent with one's gender identity or to use a single-use facility, when others do not have to, can have devastating effects on the physical and psychological well-being of transgender people, who struggle for most of their lives with others telling them to conform to a gender identity with which they were not comfortable. …
INTRODUCTION In Obergefell v. Hodges, the United States Supreme Court struck down same-sex marriage bans as a violation of federal constitutional guarantees. (1) This decision was very important for same-sex couples and their families, and may well be the springboard for the recognition of additional rights for sexual minorities and other marginalized groups. (2) Yet, Obergefell surprising in both form and focus, which complicates not only predicting the decision's effects but even inferring what the opinion trying to do beyond striking down the bans. Part I of this article examines Obergefell's discussion of due process guarantees, noting some of the ways in which the opinion less persuasive than it might have been and offering some possible explanations of why the opinion was crafted this way. Part II discusses the equal protection analysis, explaining some of the ways in which the opinion complicates the jurisprudence. The article concludes by discussing some of the respects in which Obergefell so open-ended that it could provide the basis for restricting or expanding equal protection and due process guarantees. I. THE RIGHT TO MARRY Many commentators expected the Obergefell Court to strike down same-sex marriage bans, (3) at least in part because several circuit courts had struck down such bans and the Supreme Court had denied certiorari when those cases were appealed. (4) Yet, the circuit courts were far from unanimous when explaining why those bans violated constitutional guarantees, (5) and the Court finally granting certiorari provided reason to hope that the Court would add some clarity to the implicated issues. (6) While the Obergefell opinion did resolve some issues, it raised many more questions than it answered and more likely to undermine rather than promote consensus among the circuits about the proper way to approach due process issues. A. Which Relationships Have Constitutional Significance? The Obergefell opinion focused on the of marriage, describing it as having transcendent importance (7) and as an institution that always has promised nobility and dignity to all persons, without regard to their station in life. (8) Marriage not only sacred to those who live by their religions... [but] offers unique fulfillment to those who find meaning in the secular realm. (9) Marriage is essential to our most profound hopes and aspirations, (10) central[] ... to the human condition, (11) and provides a variety of benefits, because through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality... [which] true for all persons, whatever their sexual orientation. (12) Further, [t]here dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. (13) Some of the Obergefell Court's discussion of marriage reminiscent of the Court's discussion of the same topic in Griswold v. Connecticut: Marriage a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it an association for as noble a purpose as any involved in our prior decisions. (14) Yet, Griswold's discussion of marriage occurred prior to the Court's recognition in Loving v. Virginia that marriage was protected by the Due Process Clause of the Fourteenth Amendment. (15) Post-Loving, one might have expected the Court to simply explain that the right to marry protected by substantive due process guarantees and, possibly, that the right to marry includes the right to marry someone of the same sex. It not as if the Obergefell Court failed to make these points. On the contrary, in addition to waxing eloquent about the of marriage, the Court also noted that the right to marry a fundamental right (16) and that same-sex couples may exercise that right. …
the absence of water, people drink sand. And that is sad. There's such an interest in things being equal and such a weary acceptance that it's not. - Shonda Rhimes, October 2015 (1) INTRODUCTION California is the American mecca for creativity and invention. As the home of Jackie Robinson, (2) Chief Justice Earl Warren, (3) and the Free Speech Movement, (4) the Golden State has been a driving force for progressive thought in American culture. (5) Its politics are decidedly leftist: Both of the state's U.S. senators and 64% of congressional representatives are Democrats, and Democrats have strong majorities in both state legislative houses and hold all eight elected statewide offices. (6) President Obama won 61% of the statewide vote in 2008, (7) and won California again in 2012. (8) In part because of its leftist politics, California has aggressive anti-discrimination statutes (9) and broad reproductive choice laws aimed at promoting, among other things, women's full participation in the state's economy. (10) Even the official state slogan demands that visitors Dream Big. (11) Nowhere better represents this uniquely Californian attitude of creative invention than Hollywood and Silicon Valley. The world leaders in both entertainment and entrepreneurship--Los Angeles (12) and the Bay Area (13)--bookend the state. Beyond the geographical coincidence of sharing California, both Hollywood and Silicon Valley rely on talent, fierce competition, and reputational capital, a point highlighted by the fact that many powerful players in the entertainment industry have recently migrated into the entrepreneurship space. (14) More specifically, both the entertainment industry and entrepreneurial space require that a lot of money changes hands before a successful product is made. Just as an entrepreneur cannot effectively grow an emerging company towards viability without successfully raising capital from Venture Capitalists (VC), (15) financial support from studios or producers is key to creating a successful film. (16) The entertainment industry and entrepreneurial space also share a more problematic characteristic: Both are disproportionately dominated by men. In California's two most famous regions, California's promise of self-advancement and equal opportunity seems to be more difficult for women to achieve. This note looks to examine why women are less likely to have their films or companies funded and correspondingly, how the law might address that gender disparity. For the purposes of this note, Hollywood represents the entertainment industry and specifically, the film industry. Similarly, Silicon Valley refers to the entrepreneurial hotbed of the Bay Area. Part I of this note describes the lack of women in positions of power in both Hollywood and Silicon Valley. Part II examines the structural similarities between Hollywood and Silicon Valley, and how those structural characteristics contribute to the gender disparity in both areas. In particular, this note looks at those structural similarities as they impact women directors and women entrepreneurs, and in turn shape the movies that get produced and companies that succeed. Part III discusses the ongoing Equal Employment Opportunity Commission (EEOC) investigation into Hollywood, outlines a potential EEOC suit against Hollywood studios, and predicts how that investigation might shape Hollywood's hiring practices to ultimately increase gender equality in the film industry. Finally, this note proposes how the same legal arguments that address the gender disparity in Hollywood might be applied to address Silicon Valley's gender disparity. PART I: GENDER DISPARITY IN HOLLYWOOD AND SILICON VALLEY A. Hollywood's Representational Ghetto for Women Their refusal to hire more female directors is immoral, maybe illegal, and has helped create and sustain a representational ghetto for women. …
INTRODUCTION In the last few years in the United States, the community has become more visible in the public arena. In 2015 alone, seven characters premiered on television shows, (1) a man was named a semi-finalist in the Ultimate Men's Health Guy Competition, (2) and President Obama hired the first White House official. (3) In the continuously evolving public discussion of people, attention is frequently focused on the lives of celebrities, such as the Orange is the New Black actress, Laverne Cox, (4) and former Olympic athlete and reality television star, Caitlyn Jenner. (5) The star-studded, glamorous experiences of these celebrities, however, do not accurately reflect the socioeconomic realities of most individuals. In 2011, the National Center for Transgender Equality and the National Gay and Lesbian Task Force surveyed 6,456 people who identified as and gender non-conforming. (6) The study revealed that individuals are likely to live in extreme poverty. (7) Study participants were nearly four times more likely to have a household income of less than $10,000 per year than the general population. (8) They also experienced unemployment at twice the rate of the general population. (9) The study further revealed that in the workplace, discrimination based on and non-conforming gender identities was a near universal experience for the study's participants. (10) Further, forty-seven percent of the survey respondents reported that they had experienced an adverse action--defined as losing a job, being discriminated against in hiring, and/or being denied a promotion--because of their or nonconforming gender identities. (11) Discrimination against employees may implicate Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employers in the United States from fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment based on the employee's race, color, religion, sex, or national origin. (12) If current trends in discrimination law continue, Title VII's prohibition on sex discrimination also will prohibit employers from discriminating based on an employee's identity. The United States Article III courts have not yet interpreted Title VII to prohibit discrimination based on identity alone. But the Equal Employment opportunity Commission (EEoC), the agency charged with implementing the statute, has interpreted Title VII's prohibition on sex discrimination as prohibiting discrimination based on a person's identity. (13) The agency has taken action to ensure employers' compliance with this interpretation of Title VII. (14) Although lacking the force of law (15) and Chevron deference in court, (16) the EEOC's interpretation of Title VII likely has helped to develop a new, and thriving, area of discrimination law. Additionally, the EEOC's interpretation of Title VII may create an impetus for recognition of rights by the federal courts. I. TRANSGENDER PEOPLE: BACKGROUND INFORMATION In October 2009, President Obama became the first United States president to mention the word transgender in a public statement. (17) In January of 2015, President Obama made history once again, becoming the first president to reference people in the State of the Union Address. (18) Although the office of the President has officially recognized people only in recent years, people are not a new phenomena: people have been documented in Eastern, Western, and indigenous cultures since antiquity. (19) For example, India's hijras, male-to-female individuals, (20) are mentioned in Hindu mythology. …
Is Marriage for White People? How the African-American Marriage Decline Affects Everyone1 by Stanford Law School Professor Ralph Richard Banks tackles the controversial subject of the decline, in recent decades, of marriage rates among African-Americans. The book provides a detailed, comprehensive analysis of the reasons fewer African-Americans have been getting married in recent years. The book then offers a recommendation to address this state of affairs—one Banks considers a significant problem not only for AfricanAmericans but also for the entire nation. The book focuses on the middle class, especially professional and middle class African-American women. While substantial public attention is often focused on African-American women who are struggling with poverty, drugs, public assistance, domestic violence, HIV status, and the child welfare system, rarely is attention paid to the experiences and emotional lives of AfricanAmerican women who are educated, professional, and middle or upper-middle class.2 This book is a rare and welcomed attempt to explore an aspect of the lives of a group of women who have made substantial progress in the workplace in recent decades but whose prospects for forming successful intimate relationships is often seemingly complicated by their success. Is Marriage for White People? is anchored in demographic data focusing on the fact that there is a dearth of African-American men who have similar levels of education, income, and professional status. The result, according to Banks, is that the women face formidable challenges in finding compatible marriage partners among African-American men.3 Often these women do not marry at all. Those
INTRODUCTION Imagine that Jane Doe suffered years of physical, emotional, and verbal abuse at the hands of her husband, John Doe. Jane and John have three kids, and Jane wishes to divorce her abusive husband. The one time she mentioned divorcing John and moving out with the kids, Jane suffered severe physical abuse at John's hands. Since then, she has not mentioned divorce and relocation. Every day when she comes home from work, she is verbally and emotionally abused. She fears that John will physically hurt her at any moment if she does or says the wrong thing since he has done so before, so she just keeps quiet. One day after work, John comes home and strikes Jane and their children. At that moment, Jane knows she has to take her children and leave John in order to keep herself and her children safe from harm. Depending on the state she is in, she may or may not be able to leave this situation without informing John of where exactly she is going if she wants to get custody of the children. She may be able to excuse this notice requirement, but if she cannot, she may be charged with child kidnapping. Jane's fate rests in the hands of her state's law on relocation and domestic violence. While the above fact pattern is not based on a true story, it is a typical situation for many domestic violence survivors, 85% of whom are women. (1) Depending on marital status, prior custody determinations, and applicable state law, survivors may have difficulty fleeing violence with their children without risking their own or their children's safety. Domestic violence survivors may employ the justice system as a tool to help interrupt abusers' cycle of violence and pattern of abuse. (2) When children are involved, however, the justice system may not be a friendly forum for survivors who wish to escape the violence. Many state courts do not allow survivors to simply flee the state with any children without significant legal barriers. (3) In such a situation, the fact that a survivor's assailant often knows her destination frustrates the very purpose of relocating. (4) For those survivors, the court may be a forum for further abuse rather than a safe haven and a source of control and freedom. (5) Different states have dealt with domestic violence survivors and the laws surrounding their relocation in various ways, with no state implementing a perfect system. (6) The greatest challenges facing survivors wanting to relocate with their children are: (1) whether domestic violence is a factor courts consider when determining custody, and (2) the presence of a mandatory notification provision. This note focuses precisely on these challenges. I will first explore the relationship between domestic violence survivors and the courts, then discuss the relocation laws of Massachusetts, California, Alabama, and Idaho, and finally argue that an amalgamation of the laws of those states is superior to any single state's approach to relocation law as it relates to domestic violence survivors. Other important issues surrounding domestic violence and state relocation laws--for example, the rights of the father or the rights of the potentially falsely accused--are outside the scope of this note. I. SURVIVORS OF DOMESTIC VIOLENCE AND THE COURTS The American Bar Association reports that approximately 1.3 million women and 835,000 men are physically assaulted by an intimate partner every year in the United States. (7) Survivors of domestic violence often do not leave their abusers initially, and the reasons they stay in the relationship vary drastically. (8) Some of the most common reasons that survivors remain are lack of resources and information about escape, continuing love and hope that their abusers will change, community pressure, mental health problems, fear of both non-violent and violent retribution, and lack of financial resources resulting in dependence on the abuser. (9) A frequently cited reason that survivors stay in an abusive relationship is economic dependency, (10) and some have argued that if survivors "receive assistance in achieving economic independence, more victims will be able to gain safety. …
