Person:

Gersen, Jeannie

This article examines the theory posited in the article Strategic Segregation in the Modern Prison regarding the problem of prison sexual violence and what can be done to correct it. The previous article describes the use of the K6G program by the Los Angeles County Jail to protect vulnerable inmates, gay men and transgendered women, from sexual victimization in all-male correctional institutions. This author explores the issue of gender and masculinity in exclusively male environments, and the use of sexual subordination as a form of gender performance and notes that the K6G program appears to be designed to redistribute prison rape from sexual minorities to some undefined set of heterosexual men. The author speculates on why sexual victimization does not occur in the K6G program and explores the role played by sexual desire in prison environments.

This essay is about the representation of privacy. Focusing on several of the Supreme Court's Fourth Amendment cases regarding the police and the home, I explore judicial articulations of the meaning of private space. Several striking figures of women appear in the Justices' opinions in Kyllo v. United States, and Georgia v. Randolph, for example, and represent different conceptions of privacy that are in dialogue and conflict. To theorize privacy in the home is to imagine a woman, and the way she is imagined is bound up with the idea of the home and stakes of privacy articulated. From the lady of the house in the bath, to the lady at home receiving callers, to the battered woman, distinctive figures of women reveal peculiar fault lines in the modern meaning of privacy in an era of judicial commitment to gender equality. Even long after the gradual demise of the particular marital privacy associated with the common law of coverture, the idea of protecting women from men remains central and appears today in new and different guises that evince both change and continuity in the legal meaning of the home.

Self-defense is undergoing an epochal transformation. In the last few years, dozens of states have passed or proposed new Castle Doctrine legislation intended to expand the right to use deadly force in self-defense. These bills derive their informal name from the traditional common law castle doctrine, which grants a person attacked in his own home the right to use deadly force without trying to retreat to safety. But the new Castle Doctrine statutes, conceived and advocated by the National Rifle Association, extend beyond the home to self-defense more broadly. This Article sets out to explicate, contextualize, and theorize this remarkable development in self-defense law. To do so, the Article investigates the ideas that shape these new Castle Doctrine laws. It offers an interpretive genealogy focused on three crucial turning points in the development of self-defense, and argues that each has left a defining ideological trace on the new laws. The central claim is that in each phase, self-defense law drew importantly but differently on the idea of the home; and, in each, the operative idea of the home was constituted specifically by gender roles therein. The Article shows that modern self-defense law exemplified by the new Castle Doctrine powerfully embeds these distinctive meanings of gender, home, and crime.

Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misdemeanor domestic violence enforcement that are transforming the role of criminal law in the home beyond the criminal punishment of violence. An important legal tool in this transformation is the protection order, which bans a person from the home on pain of arrest and enables treatment of presence at home as a proxy for violence. Through prosecutors' routine deployment of protection orders in the criminal process at arraignment, plea bargaining, and sentencing, the home is becoming a space in which criminal law deliberately reorders and controls private rights and relationships in property and marriage - not as an incident of prosecution but as its goal. The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners (often when substantial jail time is not imposed) is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction. This displacement of the choice to live like intimate partners exemplifies the changing legal meaning of the home, wherein the archetype of private space becomes a site of intense public investment suitable for criminal law control.

Earlier this year, in an important copyright ruling, the Supreme Court dropped a puzzling clue about copyright for designs that merits examination. In an opinion authored by Justice Breyer, the Court's foremost copyright scholar, the Court posited a "design copyright" for a "dress" made in China and then sold in the United States. The statement is striking because courts have traditionally denied the copyrightability of fashion designs, including dress designs. A proposed bill to add fashion designs to copyrightable subject matter has not yet been passed by Congress. In this article, we explain the Court's unexpected comment and why it matters.

The decision, Kirtsaeng v. John Wiley & Sons, addresses the "first sale" doctrine, which permits an owner of an authorized copy to "sell or otherwise dispose of" that copy without seeking permission of the copyright holder. This common-sense limitation on the copyright holder's right to distribute his work embodies a principle of exhaustion, promoting the free alienability of goods and reducing transaction costs.

The question in Kirtsaeng was whether this doctrine applies not only to copies made in the United States, but also to copies made abroad and imported into the United States. The question was in doubt because a separate provision of the Copyright Act prohibits importation without permission. An earlier case held that the first sale doctrine trumped if the work had done a "round trip"-produced in the United States, exported overseas, and then returned to the United States for resale. Kirtsaeng accorded the same treatment to the closely related situation in which the copy was instead produced overseas and sold in the United States.

Fashion is one of the world's most important creative industries. As the most immediate visible marker of self-presentation, fashion creates vocabularies for self-expression that relate individuals to society. Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.

This essay juxtaposes two Supreme Court cases, Kelo v. City of New London, and Town of Castle Rock v. Gonzales. Both reflect on the meanings of home as simultaneously the source of security against the focal point of anxieties about crossing between the categories of the private and the public. This essay traces the specter of doubleness that haunts the home in the law: the uncanny ways in which the home emerges as the exemplary private institution and the exemplary public concern in our society.

Four feminist law professors at Harvard Law School have called on the U.S. Department of Education to revise the previous Administration’s policies on sexual harassment and sexual assault on campus. In a memo submitted to the Education Department yesterday, they set out an agenda of fairness for all students, accusers and accused. In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers. Janet Halley and Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner are professors at Harvard Law School who have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were four of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.” Janet Halley said “The college process needs legitimacy to fully address campus sexual assault. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.” The professors submitted to the Education Department a memorandum entitled “Fairness for All Students under Title IX.”