Respecting Working Mothers with Infant Children: The Need for Increased Federal Intervention to Develop, Protect, and Support a Breastfeeding Culture in the United States

The author argues that the benefits of breastfeeding are overwhelming and that more needs to be done to ensure that all women have a viable option to continue breastfeeding upon returning to work, particularly the working poor and minorities. Those least likely to breastfeed are more likely to be part of an at risk population in terms of health. Most significantly, the lack of a cohesive policy in the workplace has had a disparate impact on the most vulnerable populations of breastfeeding mothers and their children. The lack of federal protection and a patchwork of protection in the states have contributed to our failure to achieve breastfeeding goals set in the 1990\u27s. Federal laws and decisions are reviewed. The author has undertaken a comprehensive review of the state statutes to demonstrate the disparities in protection. The review also serves as a guide for potential federal legislation. Federal legislation must provide a floor beneath which no mother may fall. The author proposes what components are crucial in enacting such legislation and examines a bill recently introduced in the House of Representatives

The Intended Parent: The Power and Problems Inherent in Designating and Determining Intent in the Context of Parental Rights

This Article seeks to consider and discuss the intent to parent and, particularly, the use of the words intent and intentional in the context of assigning legal parental rights. Problems and preferences have arisen from the use of this paradigm and the notion that intent can be fixed at any one point in time. This Article discusses how this historical use of intent and intentional parenthood may impact the evolving field of parental form, considering whether we will carry forward some of the same problems and preferences into newer forms of the assignment of legal parental rights. The Article first frames the concept of who is a parent, and how that decision is made from a legal standpoint under a traditional analysis. Next, the Article discusses some of the problems that have arisen both in the traditional assignment of parental rights, by and among heterosexual married and unmarried parents, assisted reproductive technology, and open adoption. The Article then moves into an assessment of more modem issues of assignment of legal parental rights by examining four distinct cases involving known donors in assisted reproductive technology. After highlighting some of the pitfalls of the application of the intended/intentional parent paradigm in more modern conceptions of both childbirth and marital status, the Article considers how new legislation seeks to address these problems by highlighting a new family law enacted in British Columbia and a new statute in California. The Article also points out how newer known donor assignments of rights already have a predecessor in the form of open adoption. Finally, the Article argues that if we do not pause and consider the impact of how we have assigned legal parenthood in the past through intent, we may be destined to repeat many of the same mistakes, and we risk carrying forward prejudices and preferences that are inappropriate given the realities of both modem reproductive technology and modern family status

The Intended Parent: The Power and Problems Inherent in Designating and Determining Intent in the Context of Parental Rights

This Article seeks to consider and discuss the intent to parent and, particularly, the use of the words intent and intentional in the context of assigning legal parental rights. Problems and preferences have arisen from the use of this paradigm and the notion that intent can be fixed at any one point in time. This Article discusses how this historical use of intent and intentional parenthood may impact the evolving field of parental form, considering whether we will carry forward some of the same problems and preferences into newer forms of the assignment of legal parental rights. The Article first frames the concept of who is a parent, and how that decision is made from a legal standpoint under a traditional analysis. Next, the Article discusses some of the problems that have arisen both in the traditional assignment of parental rights, by and among heterosexual married and unmarried parents, assisted reproductive technology, and open adoption. The Article then moves into an assessment of more modem issues of assignment of legal parental rights by examining four distinct cases involving known donors in assisted reproductive technology. After highlighting some of the pitfalls of the application of the intended/intentional parent paradigm in more modern conceptions of both childbirth and marital status, the Article considers how new legislation seeks to address these problems by highlighting a new family law enacted in British Columbia and a new statute in California. The Article also points out how newer known donor assignments of rights already have a predecessor in the form of open adoption. Finally, the Article argues that if we do not pause and consider the impact of how we have assigned legal parenthood in the past through intent, we may be destined to repeat many of the same mistakes, and we risk carrying forward prejudices and preferences that are inappropriate given the realities of both modem reproductive technology and modern family status

The Ties That Bind: Reevaluating The Role Of Legal Presumptions Of Paternity

As Justice Brennan observed in Michael H. v. Gerald D. so many years ago, we must “identify the point at which a tradition becomes firm enough to be relevant to our definition of liberty and the moment at which it becomes too obsolete to be relevant any longer.” This Article addresses one such tradition, the legal presumption of paternity, and examines it through the lens of equal protection, the changing roles of fatherhood, and the evolution of marriage. The concept of who is a parent must change to both satisfy equal protection as well as modern scientific and societal realties. This Article argues that, historically, the constitutionally protected right to parent has been improperly conferred on a marriage rather than on an individual, particularly with respect to unwed natural fathers. This Article focuses on the need for a change in recognition of relationships between natural fathers and their children, particularly natural fathers of children born to intact marriages. Through that lens, this Article traces the genesis of the legal presumption of paternity in the United States. It then undertakes an in-depth review and analysis of the United States Supreme Court’s “unwed father” cases from Stanley v. Illinois to Michael H. from an equal protection perspective. After considering the equal protection concerns raised by the United States Supreme Court’s precedent, the Article proposes that, based on evolving notions of what fathers and marriages are today, the legal presumption should be relegated to an administrative convenience that is fully rebuttable and not limited by time. The Article then proposes that in order to accomplish this shift and fully recognize all biological parents’ rights, as well as the parental rights of others, another commonly held view must be challenged—that a child may only have two legal parents. The Article suggests that in such circumstances courts should recognize more than two parents in order to fully protect parental rights and the need for new parental forms is discussed. Finally, the Article proposes how such changes might be effected to better protect individual parental rights

The Shibboleth of Discretion: The Discretion, Identity, and Persecution Paradigm in American and Australian LGBT Asylum Claims

While the High Court in Australia has made it clear that discretion is not to be considered when determining if an applicant may avoid persecution upon returning home, there are concerns that discretion persists in the decision-making process with respect to discrediting identity claims. In addition, the Supreme Court of the United Kingdom handed down a retooled formulation of discretion, which once again created subcategories of applicants and suggested discretion is an appropriate consideration so long as it is not exercised out of a fear of persecution. This discussion will focus on a comparison of the evolution of LGBT asylum claims in Australia and the United States. In addition, at least one recent decision from the Supreme Court of the United Kingdom will be included as a high-level judgment from a similarly-situated common law receiving country, which is crucial for a deeper understanding of the nuances of discretion, particularly as applied in Australia. Part II of this paper will examine and compare how the LGBT asylum process has evolved—specifically vis-à-vis identity and discretion—in the United States and Australia, which can help highlight some of the issues driven by improper application of Western essentialist LGBT definitions on asylum claims. Part II will also analyze the concepts of refugee and asylum law internationally, as well as the concerns of the gay international community with respect to asylum law globally. Parts III and IV will review the asylum process for LGBT asylum applicants in the United States and Australia, respectively— with a focus on identity, discretion, and persecution. Part V discusses the intersection of discretion and identity and what can be done to more appropriately address asylum claims based on sexual identity or orientation against a backdrop of prevalent anti-immigration sentiments in both countries. Finally, Parts V and VI will make suggestions for moving forward in making the asylum process in both countries more equitable for LGBT asylum applicants

Taking Away an Employer\u27s Free Pass: Making the Case for a More Sophisticated Sex-Plus Analysis in Employment Discrimination Cases

In this article the author advocates for a broader interpretation of sex-plus theory to encompass the concept of mother as a gender identified category

Just Because you can Doesn\u27t Mean you Should: Reconciling Attorney Conduct in the Context of Defamation with the New Professionalism

The Florida Bar has recently proposed enforceable professionalism standards. While many states have professionalism codes they remain aspirational and unenforceable. Florida’s move toward enforceable professionalism standards is laudable, but raises concerns about how moving a “step above” the floor of the rules of professional conduct will affect advocacy and practice. This paper examines how a shift to enforceable professionalism standards may impact absolute immunity. The paper suggests that as other states consider similar standards or simply how to better policy professionalism, perhaps it is time to also consider how discipline is imposed with respect to defamatory statements that are otherwise protected by absolute immunity and whether some qualification of the immunity is appropriate in disciplinary proceedings when considered in the context of an attorney’s conduct