The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) has provoked criticism from free-speech advocates, people involved in the commercial sex trade, everyday internet users, and scholars who deem the Act dangerous and ineffective. This Note helps to explain how such a controversial law came to be. Indeed, FOSTA is part of a legacy of failed attempts at reforming laws to comport with feminist goals—in this case, ending online sex trafficking and providing relief for sex-trafficking survivors, a group that consists largely of women and other marginalized people. But FOSTA, like its predecessors, fails to provide real relief to its intended beneficiaries. Instead, it falls into the trap of punitiveness by prioritizing punishing offenders over providing meaningful relief for sex- trafficking survivors. By shifting the focus away from punitiveness and toward actual aid, this Note proposes a solution that helps sex-trafficking survivors without endangering free internet speech, consensual sex workers, or others currently affected by FOSTA’s speech restrictions. This solution accords with both First Amendment doctrine and much of the feminist consensus on improving the lives of women, girls, and other marginalized communities.
In domestic sex trafficking, the trafficker often promotes a victim to the coveted position of “lead prostitute,” or “bottom.” Once in this position, the victim engages in acts for which she can be prosecuted under federal sex trafficking statutes that carry ten- and fifteen-year mandatory minimum sentences. To recognize bottoms’ victimization and resulting lack of genuine agency, this Note proposes a Sentencing Guideline safety valve provision. Creating a safety valve would provide sentencing judges with necessary discretion to impose sentences below statutory floors in appropriate cases.
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses— laws that give families additional parental leave when fathers stay at home with their newborns—have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.
I. India Thusi, Girls, Assaulted, 116 Nw. U. L. Rev. 911 (2022).
Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual abuse many incarcerated girls experienced at home to the nonconsensual touching of their bodies they all experience when they enter detention facilities. Mandating invasive searches is a particularly gendered form of traumatization that is especially troubling given Black and Indigenous girls’ disproportionate representation in juvenile detention facilities. So, like their ancestors, their bodies have become sites for conquest, dominion, and discipline. This Article examines the severity and normality of state violence and provides a constitutional basis for eliminating blanket and routine searches by arguing that these invasive searches violate the Fourth Amendment, Thirteenth Amendment, and Eighth Amendment rights of incarcerated girls. Despite a purported concern for these girls’ rehabilitation, incarcerated girls must endure humiliating searches that require that they expose their bodies to the parental state. The routine touching that marks the everyday lives of incarcerated girls illustrates the ordinariness of the violence of incarceration in the United States.
Jorene Ooi, Bleeding Women Dry: Tampon Taxes and Menstrual Inequity, 113 Nw. U. L. Rev. 109 (2018).
In recent years, the problem of menstrual inequity has attracted increased attention. Most states impose a sales tax on menstrual hygiene products—a “tampon tax.” A burgeoning social movement has sought to end the tampon tax, and lawmakers have taken notice by introducing, and in some cases successfully passing, measures to repeal the tax by exempting menstrual hygiene products from the sales tax. This Note evaluates, from a tax policy standpoint, the pros and cons of repealing the tampon tax. It argues that although repeal is usually undesirable as a matter of tax design, the tax should nevertheless be repealed both because menstrual hygiene products are necessities and because the tax is discriminatory. Building on this conclusion, this Note further argues for a women’s menstrual health credit, provided to all women of menstruating age, on the basis that a tax credit would better bridge the financial disparity gap between women who must pay for menstrual hygiene products and men who do not. Along the way, this Note also compares the proposed credit to other proposals to combat menstrual inequity, such as a free-tampons program and expanding welfare benefits to include tampons, concluding that the tax credit would create fewer administrative complexities, would reach more women overall, and is less stigmatizing.
I. India Thusi, On Beauty and Policing, 114 Nw. U. L. Rev. 1335 (2020).
“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and serve us all.
This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal fictions about women and their supposed lack of intellectual and social capacities. Law trapped women to the destinies courts and legislatures aspired for them and continues to do so. This Essay turns to the less engaged international sphere and the copious Congressional Record to unpack how the Helms Amendment and later, the Mexico City Policy (or Global Gag Rule), emerged from this type of lawmaking. This Essay shows how these harmful dictates on women’s lives and bodies in developing nations result in a deadly rise of illegal abortions, criminal punishments, stigmatization, and sadly, deaths.
Honoring negative liberty makes lives better for all persons, but especially for those who are subordinated. Its force and strength against group-based oppression might be obscured by the priorities that stem from material disadvantage. Negative liberty belongs to us all, not just those who talk a lot about it. Persons at multiple axes of oppression and those at only one are united in the freedom it gives us.
Student-athlete compensation has been a consistent topic of controversy over the past few years, as critics question the legitimacy of the NCAA’s notion of amateurism and proponents favor the status quo. The Supreme Court decision in NCAA v. Alston has only served to intensify the debate, opening the door to alternative compensation structures. Despite a unanimous ruling in favor of the athletes, the limited holding of the case has only produced further questions. In his scathing concurrence, Justice Kavanaugh raises one such question: how does a student-athlete compensation structure comply with Title IX? This Comment seeks to address that question by analyzing two possible compensation regimes and their compatibility with Title IX.