Categorical Federalism: Jurisdiction, Gender, and the Globe
Footnotes
1. United States v. Morrison, 529 U.S. 598, 617-18 (2000) (holding unconstitutional the civil rights remedy of the Violence Against Women Act, 42 U.S.C. § 13981 (1994).
Back To Text2. See, e.g., JAMES ROGER SHARP, AMERICAN POLITICS IN THE EARLY REPUBLIC(1993) (arguing the basic instability of the country at its inception); DAVID WALDSTREICHER, IN THE MIDST OF PERPETUAL FETES: THE MAKING OF AMERICAN NATIONALISM, 1776-1820 (1997) (examining efforts at inventing civic rituals to form a national identity).
Back To Text3. Linda B. Smith & Larissa K. Samuelson, Perceiving and Remembering: Category Stability, Variability and Development, in KNOWLEDGE, CONCEPTS AND CATEGORIES 161, 170 (Koen Lamberts & David Shanks eds., 1997) (reporting that "people appear able to create categories on the spot").
Back To Text4. RICHARD NISBETT & LEE ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGEMENT 33, 167-92 (1980) (discussing theory maintenance and change and how categories are maintained despite data that ought to undermine their deployment).
Back To Text5. Thomas L. Spalding & Gregory L. Murphy, What Is Learned in Knowledge-Related Categories? Evidence from Typicality and Feature Frequency Judgments, 27 MEMORY & COGNITION 856, 856 (1999).
Back To Text6. Other federations sometimes speak of the problem of parallel and shared "competence." For discussions of current European responses, see generally THE GENERAL LAW OF EXTERNAL RELATIONS (Alan Dashwood & Christophe Hillion eds., 2000); and GRÁINNE DE BÚRCA, SETTING CONSTITUTIONAL LIMITS TO EU COMPETENCE? (European Univ. Inst., Robert Schuman Centre Forum Paper, 2001).
Back To Text7. As currently practiced, in contrast, preemption rulings have sometimes prompted divisions along familiar lines about whether state laws have been displaced by congressional statutes. See, e.g., Lorillard Tobacco Co. v. Reilly, 121 S. Ct. 2404, 2419 (2001) (holding that Congress had, through the Federal Cigarette Labeling and Advertising Act, preempted Massachusetts's regulations relating to outdoor and point-of-sale cigarette advertising). Four dissenters "strongly disagreed." Id. at 2440 (Stevens, J., dissenting, joined by Ginsburg, Breyer, and Souter, JJ.); see also Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (holding that the Federal Motor Vehicle Safety Standard, promulgated under the National Traffic and Motor Vehicle Safety Act, preempts a state common-law tort action about when the obligation to provide air bags in cars arose). Justice Breyer issued the Court's decision. Id. at 861-86. The four dissenters, joining an opinion by Justice Stevens, included Justices Souter, Thomas, and Ginsburg. Id. at 886 (Stevens, J., dissenting). In contrast, as discussed infra text accompanying notes 229-239, all nine Justices agreed that a provision of Massachusetts law barring state entities from purchasing goods or services doing business with Burma was preempted by federal law. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000).
Back To Text8. Current categorical federalism also has an internal analytic tension. National powers are assumed to be narrowly specified; ignored is the possibility of interaction - for example, that Congress might have extra leeway in regulating interstate commerce on equality grounds. In contrast, states' prerogatives are seen as emanating from several sources, some textual, some structural, some implicit. See Vicki C. Jackson, Holistic Interpretation: Fitzpatrick v. Bitzer and Our Bifurcated Constitution, 53 STAN. L. REV. 1259, 1274-75 (2001) (explaining this disjunctive approach and arguing that congressional powers under the Commerce Clause ought to be read to have been altered, as the Eleventh Amendment has been, by the enactment of the Fourteenth Amendment).
Back To Text9. Similarly, if one views international human rights as securely within national powers, perceives the federal government as receptive to and able to incorporate positive international norms, and fears that sharing such powers with states would limit or erode such norms, multi-faceted federalism has little appeal. E.g., Harold Hongju Koh, Bringing International Law Home, 35 HOUS. L. REV. 623, 625-26 (1998) [hereinafter Koh, Bringing International Law Home] (providing a theory of the importation of international law through "interaction, interpretation, and internalization" by means of "vertical domestication" through federal law); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997) (focusing on national participation in transnational processes).
Back To Text10. See, e.g., ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997).
Back To Text11. See LINDA K. KERBER, NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998); Catharine A. MacKinnon, Disputing Male Sovereignty: On United States v. Morrison, 114 HARV. L. REV. 135 (2000); Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682 (1991); Reva B. Siegel, She, the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. (forthcoming 2002); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996).
Back To Text12. See 18 U.S.C. §§ 2262, 2265 (1994); 42 U.S.C. §§ 3796gg, 10416 (1994).
Back To Text13. 42 U.S.C. § 13981 ("[I]t is the purpose of this part to protect the civil rights of victims of gender motivated violence ... .").
Back To Text14. See, e.g., Violence Against Women: Victims of the System: Hearing on S. 15 Before the S. Comm. on the Judiciary, 102d Cong. 103 (1991) (statement of Prof. Cass R. Sunstein) (discussing Commerce Clause powers); id. at 87-88 (statement of Prof. Burt Neuborne) (addressing Equal Protection Clause powers).
Back To Text15. See, e.g., Violence Against Women: Fighting the Fear, Examining the Rise of Violence Against Women in the State of Maine and in Other Rural Areas: Hearing Before the S. Comm. on the Judiciary, 103d Cong. 13-17 (1993) (statement of Lisa (full name not provided)); Violence Against Women: Victims of the System: Hearing on S. 15 Before the S. Comm. on the Judiciary, 102d Cong. 239-41 (1991) (statement of Elizabeth Athanasakos, National President, National Federation of Business and Professional Women, Inc.); S. REP. NO. 103-138, at 54 n.70 (1993).
Back To Text16. See, e.g., H.R. CONG. REP. NO. 103-711, at 385-86 (1994); S. REP. NO. 103-138, at 41-55 (1993); S. REP. NO. 102-197, at 33-35, 41, 43-47 (1991); see also United States v. Morrison, 529 U.S. 598, 631 n.7 (2000) (Souter, J., dissenting) (listing the reports).
Back To Text17. 514 U.S. 549 (1995).
Back To Text18. Id. at 561-63.
Back To Text19. See, e.g., Charles Fried, The Supreme Court, 1994 Term - Foreword: Revolutions?, 109 HARV. L. REV. 13, 37-42 (1995) (describing "the modesty of the Court's work" in Lopez).
Back To Text20. 514 U.S. at 564.
Back To Text21. See Brief for the United States at 5-8, 23-27, Morrison (Nos. 99-5, 99-29), 1999 WL 1037259; Brief of Law Professors as Amici Curiae in Support of Petitioners at 5-12, Morrison (Nos. 99-5, 99-29), 1999 WL 1032805 [hereinafter Law Professors' Amici Brief]. I was one of several who wrote the latter brief, filed on behalf of some one hundred law professors.
Back To Text22. See Katzenbach v. McClung, 379 U.S. 294, 302-03 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241, 252-62 (1964).
Back To Text23. See Letter from Robert Abrams, Attorney General of New York on Behalf of His Colleagues to Congressman Jack Brooks, Chair of the House Judiciary Committee (July 22, 1993), in Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. 34 (1993). The thirty-nine state attorneys general were joined by the attorneys general of the District of Columbia and Guam. Id.
Back To Text24. See Brief of the States of Arizona et al. in Support of Petitioners, Brief on the Merits, Morrison (Nos. 99-5, 99-29), 1999 WL 1032809 (arguing VAWA's constitutionality on Commerce Clause grounds). Only one state - Alabama - filed in support of its invalidation. See Brief for the State of Alabama as Amicus Curiae in Support of Respondents, Morrison (Nos. 99-5, 99-29), 1999 WL 1191432.
Back To Text25. Morrison, 529 U.S. at 617; see also id. at 613 ("Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity."). A second ground for decision was that, because the statute authorized damage actions against nonstate defendants, Congress could not rely on its Fourteenth Amendment powers. Id. at 619-27. See Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441, 473-509 (2000) (criticizing this aspect of the opinion).
Back To Text26. Morrison, 529 U.S. at 615-16.
Back To Text27. See Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820, 842-43, 896 (4th Cir. 1999) (en banc).
Back To Text28. Christy Brzonkala, a student at Virginia Polytechnic Institute, alleged that she had been raped by two athletes, one of whom later claimed, "I like to get girls drunk and fuck the shit out of them." See Brzonkala v. Va. Polytechnic Inst., 935 F. Supp. 779, 784 (W.D. Va. 1996). The university initially imposed a sanction of an immediate two-semester suspension on one of the assailants but later reduced it to a deferred suspension (after graduation) and a required one-hour educational program. Brzonkala v. Va. Polytechnic Inst., 132 F.3d 949, 955 (1996) (Motz, J., dissenting).
Back To Text29. Id. at 785; Brzonkala, 169 F.3d at 830.
Back To Text30. See Law Professors' Amici Brief, supra note 21, at 3-15.
Back To Text31. 42 U.S.C. §13981(e)(4) (1994) (altering the effects of 28 U.S.C. 1367).
Back To Text32. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999); City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997). For critical analyses of the Court's approach, see generally Evan H. Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN L. REV. 1127 (2001); and Post & Siegel, supra note 25.
Back To Text33. United States v. Morrison, 529 U.S. 598, 613 (2000).
Back To Text34. Id.
Back To Text35. The phrase appeared in a few Supreme Court decisions before Morrison. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576 (1996) (equating "economic in nature" with the dollar value of damage to a car); Fullilove v. Klutznick, 448 U.S. 448, 511-12 n.11 (1980) (Powell, J., concurring) (quoting congressional reports describing the problems faced by minority businesses as "economic in nature"). In one deployment, Justice Brennan described economic injury as a facet of the burdens flowing from discrimination. United States v. Kozminski, 487 U.S. 931, 958 n.5 (1988) (Brennan, J., joined by Marshall, J., concurring) (arguing that criminal statutes enacted to enforce the Thirteenth Amendment ought to protect against injuries from involuntary servitude that are "psychological, social, and economic in nature" and disagreeing with the majority requirement of a showing of "physical or legal coercion").
Back To Text36. See Tanina Rostain, Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement, 34 LAW & SOC'Y REV. 973 (2000) (criticizing the broad ambitions and the narrow lens of behavioral economics).
Back To Text37. See, e.g., GARY S. BECKER, A TREATISE ON THE FAMILY(2d ed. 1991).
Back To Text38. See Sarah Stage, Home Economics: What's in a Name?, in RETHINKING HOME ECONOMICS: WOMEN AND THE HISTORY OF A PROFESSION 1, 5-6 (Sarah Stage & Virginia B. Vincenti eds., 1997) [hereinafter RETHINKING HOME ECONOMICS] (discussing the consideration of other terms - "household arts," "domestic economy," and "domestic science" - at conferences that resulted in the creation of the American Home Economic Association in 1909). Federal grant programs for agricultural studies also linked the words home and economic. See, e.g., First Morrill Act of 1862, 7 U.S.C. §301-308 (1994) (funding the teaching of mechanical and agricultural arts); Smith-Lever Act of 1914, 7 U.S.C. §341-342 (promoting "the development of practical applications of research knowledge ... in agriculture, home economics, and rural energy").
Back To Text39. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV L. REV 1497 (1983).
Back To Text40. Projects were promoted through the Department of Agriculture, which in 1923 established the Bureau of Home Economics. That Bureau detailed its activities yearly. The Reports of the Chief of the Bureau of Home Economics were published annually from 1924 to 1942 in the Annual Reports of the Department of Agriculture.
Back To Text41. See MARY RITTER BEARD, WOMAN'S WORK IN MUNICIPALTIES (1915) (invoking the home both as a template for the municipality and as a haven from it); NANCY TOMES, THE GOSPEL OF GERMS: MEN, WOMEN, AND THE MICROBE IN AMERICAN LIFE 183-233 (1998) (detailing the link between the home economics movement and the public health movement).
Back To Text42. See, e.g., Ronald R. Kline, Agents of Modernity: Home Economists and Rural Electrification, 1925-1950, in RETHINKING HOME ECONOMICS, supra note 38, at 237, 239 (discussing the "large number of home economists who worked in a vast network of manufacturers, utility companies, state colleges, government agencies, and farm cooperatives to electrify rural America").
Back To Text43. E.g., NANCY FOLBRE, THE INVISIBLE HEART: ECONOMICS AND FAMILY VALUES(2001); JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT(2000); Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994).
Back To Text44. See KERBER, supra note 11, at 11-29 (discussing the American incorporation of English laws of the family, including the practice of coverture, in which women, upon marriage, lost control over their property and had no civic identity); Gayle Rubin, The Traffic in Women: Notes on the "Political Economy" of Sex, in TOWARD AN ANTHRPOLOGY OF WOMEN 157 (Rayna R. Reiter ed., 1975) (relying on anthropological data to demonstrate the "gifts" of women and the ways in which they performed intersocietal commercial and political functions).
Back To Text45. Caminetti v. United States, 242 U.S. 470 (1917).
Back To Text46. Petition for a Writ of Certiorari at 8, Caminetti (No. 139) (arguing that while the statute could lawfully be applied to commercialized sex, it should not be applied to conduct "objectionable only for its immorality").
Back To Text47. Caminetti, 242 U.S. at 491-93. Further, the Court recognized that Congress had intended to regulate interstate transportation of women not only for economic gain but also if incidental to an "immoral purpose," construed to include inducing a woman to become a prostitute or "a concubine or mistress." Id. at 485-89.
Back To Text48. In 1986, the Mann Act was amended to make its terms gender neutral and to limit its application to interstate transportation for prostitution or "any sexual activity for which any person can be charged with a criminal offense," thereby linking its provisions to state laws governing sexual behavior. See Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628, 100 Stat. 3511-12 (codified at 18 U.S.C. 2421-2423 (1994)) (addressing coercion and minors); H.R. Rep. No. 99-910 (1986).
Back To Text49. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified at 22 U.S.C.A. 7101-7110 (West Supp. 2000)); Ratna Kapur, The Tragedy of Victimisation Rhetoric: Resurrecting the "Native" Subject in International/Post-Colonial Feminist Legal Politics (2001) (unpublished manuscript, on file with author) (arguing that interest in regulation of sexuality and a focus on violence against women reinforce the image of women as victims and may inhibit their emancipation).
Back To Text50. See Saskia Sassen, Women's Burden: Counter-Geographies of Globalization: The Feminization of Survival, 53 J. INT'L AFF. 503 (2000) (discussing how the migration of money and people reflects the relationships among debt levels, tourist trades, and transactions in humans); see also Marjan Wijers, European Union Policies on Trafficking in Women, in GENDER POLICIES IN THE EUROPEAN UNION 209 (Mariagrazia Rossilli ed., 2000) (providing an overview of differing approaches member states take with regard to sex workers and whether such workers should have the option of that form of work, in part to enable migration).
Back To Text51. See, e.g., James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order, 1921-1957, 102 COLUM L. REV (forthcoming Jan. 2002) (arguing that, had New Deal labor legislation been supported through elaboration of the Thirteenth Amendment rather than based on Congress's power over commerce, a broader understanding would have developed, forestalling the contemporary retrenchment).
Back To Text52. See, e.g., Akhil Reed Amar, The Supreme Court, 1999 Term - Foreword: The Document and the Doctrine, 114 HARV L. REV 26, 103 ("Candid supporters of VAWA can concede that the issue of violence against women is not mainly an economic one, or chiefly an interstate one.").
Back To Text53. VIRGINIA WOOLF, A ROOM OF ONE'S OWN 37 (Harcourt, Brace & World, Inc. 1957) (1929). She gained that income at about the same time, 1919, that women gained the right to vote in England. Id. at 37, 116.
Back To Text54. Id. at 110.
Back To Text55. See MARGARET T. GORDON & STEPHANIE RIGER, THE FAMALE FEAR, (1989); Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 HARV L. REV 517 (1993). Aggregate data from 1994 indicate that women are more likely to be victimized in private homes by people known to them, while men are more likely to be victimized in public places by strangers. See DIANE CRAVEN, SEX DIFFERENCES IN VIOLENT VICTIMIZATION, 1994, at 1, 4, 6 (Bureau of Justice Statistics, Special Report NCJ-164508, 1997), http://www.ojp.gov/bjs/ pub/pdf/sdvv.pdf. Women's fear of public spaces may be exaggerated or their fear of private places may be too low. Alternatively, women's fear of public spaces may prompt them to be careful, thereby lowering their rate of injury.
Back To Text56. See Rosa Ehrenreich, Dignity and Discrimination: Toward a Pluralist Understanding of Workplace Harassment, 88 Geo. L.J. 1 (1999); Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683 (1998). For a discussion of economic coercion, see BARBARA A. GUTEK, SEX AND THE WORKPLACE(1985).
Back To Text57. Recall the Court's view in 1895 that "[t]he fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce." United States v. E.C. Knight Co., 156 U.S. 1, 9 (1895). That ruling was a part of a series of cases rejecting congressional regulations based on the Commerce Clause over a range of activities, including manufacturing monopolies, E.C. Knight Co., 156 U.S. 1, insurance, N.Y. Life Ins. Co. v. Deer Lodge County, 231 U.S. 495 (1913), and labor relations at mines, Carter v. Carter Coal Co., 298 U.S. 238 (1936). As the E.C. Knight Co. Court explained, to do otherwise would be to permit Congress to regulate "every branch of human industry," resulting in regulation of "interests which in their nature are and must be local in all the details of their successful management." E.C. Knight Co., 156 U.S. at 14-15. Similarly, the Court in New York Life Insurance Co. invoked the image of "contracts purely domestic in their nature." 231 U.S. at 506 (citations omitted).
While subsequent revisions came through holdings that manufacturing, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and agriculture, Wickard v. Filburn, 317 U.S. 111 (1942), were parts of interstate commerce, the predicates for the earlier decisions parallel those invoked today. The majority, then and now, assumes that congressional power must be contained, that the means to do so is to categorize some form of activity as local "in nature," and, as a consequence, that the implausibility of the constitutionality of congressional regulation becomes plain on its face.
Back To Text58. Others make a different claim, that the ambiguity and breadth of the category of the "commercial" in Morrison permits Congress to reach all crimes "fundamentally financial in nature, such as fraud or theft" as well as certain forms of violence. See Jesse H. Choper & John C. Yoo, The Scope of the Commerce Clause After Morrison, 25 OKLA. CITY U. L. REV. 843, 866 (2000) (arguing that if "domestic violence" involved a "commercial transaction - such as purchasing a weapon, renting a car or hotel room," it might also be subject to congressional prohibition). In a similar vein, Representative John Conyers introduced a bill creating a civil cause of action for a crime "motivated by gender" if "the defendant or the victim travels in interstate or foreign commerce" or uses "a facility or instrumentality" of interstate or foreign commerce or a weapon that had traveled in interstate or foreign commerce, or if the "offense interferes with commercial or other economic activity in which the victim is engaged at the time of conduct." See Violence Against Women Civil Rights Restoration Act of 2000, H.R. 5021, 106th Cong. (2000) (proposing also that the Attorney General have the discretion to bring actions against states, subdivisions, or their officials for patterns of discrimination "on the basis of gender in the investigation or prosecution of gender-based crimes").
Back To Text59. 18 U.S.C.§ 228 (1994), amended by Deadbeat Parents Punishment Act of 1998, Pub. L. No. 105-187, 112 Stat. 618.
Back To Text60. 18 U.S.C. §228(a)(1) (1994 & Supp. V 1999) (criminalizing the failure of a parent in one state to pay child support for a period of more than a year or of an amount "greater than $ 5,000" if done so "willfully ... with respect to a child who resides in another State"). Further, any person who "travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $ 5,000" may also be subjected to felony punishments. 18 U.S.C.§ 228(a)(2). The 1998 amendments increased penalties against those who "attempt to escape state-issued child support orders by fleeing across state lines." See 144 CONG. REC. H3044 (daily ed. May 12, 1998) (statement of Rep. Steny H. Hoyer).
Back To Text61. See, e.g., United States v. Black, 125 F.3d 454 (7th Cir. 1997), cert. denied, 523 U.S. 1033 (1998); United States v. Johnson, 114 F.3d 476 (4th Cir. 1997); United States v. Sage, 92 F.3d 101 (2d Cir. 1996).
Back To Text62. Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. Rev. 893, 948 (2000).
Back To Text63. See G. Marcus Cole, The Federalist Cost of Bankruptcy Exemption Reform, 74 AM. BANKR L.J. 227, 229 (2000) (discussing "the market for deadbeats" by considering how variations in laws can facilitate exit strategies for certain kinds of debtors).
Back To Text64. See United States v. Faasse, 227 F.3d 660, 664 (6th Cir. 2000) (holding the 1992 statute unconstitutional because it imposed liability not for "recovery of child support payments avoided by interstate flight ... [but only based on] obligations owed by one family member to another, using diversity of residence as a jurisdictional "hook'"). That decision was subsequently vacated pending reargument en banc, 234 F.3d 312 (6th Cir. 2000), and then reversed in United States v. Faasse, No. 98-2337, 2001 WL 1058237 (6th Cir. Sept. 14, 2001). Four judges dissented, reiterating the claim of an absence of "reciprocity," id. at *15 (Batchelder, J., dissenting, joined by Boggs, Norris, and Suhreheinrich, JJ.), and protesting the majority decision as licensing "virtually limitless federal police power" in violation of current Supreme Court law, id. at *14.
Back To Text65. Faasse, 227 F.3d at 670. Faasse also concluded that the CSRA interfered with Michigan's family law policies by criminalizing acts that the state did not, id. at 664-65, and that Congress had no power to regulate debts "merely because the obligor and obligee reside in different states," id. at 668.
Back To Text66. A contemporary doctrine - the "domestic relations exception" to diversity jurisdiction - is a legacy of that regime. Although the congressional grant of diversity does not mention such an exclusion, the Supreme Court has construed the diversity statute to require that federal courts decline to adjudicate cases between citizens of different states involving the requisite dollar amount if the litigants dispute issues related to marriage, alimony, divorce, or child custody. In contrast, tort disputes between family or former family members were not held to be outside federal diversity jurisdiction. See Ankenbandt v. Richards, 504 U.S. 689 (1992).
Back To Text67. 42 U.S.C.§ 602(a)(26) (1994). The pressures to comply are substantial. See ANNE CASE, I-FEN LIN &SARA MCLANAHAN, UNDERSTANDING CHILDSUPPORT TRENDS: ECONOMIC, DEMOGRAPHIC, AND POLITICAL CONTRIBUTIONS (Nat'l Bureau of Econ. Research, Working Paper No. 8056, 2000) (discussing the centrality of child support payments as sources of income for single mothers).
Back To Text68. CHRISTIAN DUSTMANN & CHRISTOPH M. SCHMIDT, THE WAGE PERFORMANCE OF IMMIGRANT WOMEN: FULL-TIME JOBS, PART -TIME JOBS, AND THE ROLE OF SELECTION (Ctr. for Econ. Policy Research, Discussion Paper Series No. 2702, 2001) (providing a case study detailing how husbands and children affect women's participation in wage-work).
Back To Text69. This language comes from a decision upholding the Freedom of Access to Clinic Entrances Act (FACE), which distinguished the CSRA decisions on the ground that, unlike state-imposed child support orders, clinics rely on "mutual promises and bargains by suppliers, doctors, patients, and other employees." Norton v. Reno, No. 4:00-CV-141, 2000 WL 1769580, at *6 (W.D. Mich. Nov. 24, 2000).
Back To Text70. See Faasse, 2001 WL 1058237, at *24 n.1 (Batchelder, J., dissenting).
Back To Text71. Id. at *23 (stating that the "Act emasculates the states' ability to assign social and other costs to the disobedience of child support orders").
Back To Text72. United States v. King, No. 53 00 Cr. 653, 2001 WL 111278, at *6 (S.D.N.Y. Feb. 8, 2001); see also United States v. Benton, No. 00-4864, 2001 WL 876901 (4th Cir. Aug. 3, 2001) (concluding, in an unpublished disposition, that the Fourth Circuit's prior view of the constitutionality of the CSRA was unaltered by Morrison). But see United States v. MacWeeney, No. 00 Cr. 0223, 2000 WL 1634400 (S.D.N.Y. Oct. 31, 2000) (distinguishing Morrison in a decision holding constitutional the 1998 version of the CSRA, discussed supra note 59).
Back To Text73. See, e.g., United States v. Kallestad, 236 F.3d 225, 228 (5th Cir. 2000).
Back To Text74. 18 U.S.C. §2252(a)(4)(B) (1994 & Supp. V 1999). This provision was amended in 1998 to make the possession of one or more (as contrasted with three or more) sexually explicit depictions of a minor an offense. See Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, 203(a)(1), 112 Stat. 2977, 2978 (codified at 18 U.S.C.§ 2252(a)(4)(B)).
Back To Text75. 317 U.S. 111 (1942).
Back To Text76. Kallestad, 236 F.3d at 230 (distinguishing the "rape at issue in Morrison"). A dissenter protested that:
[T]his simple local possession of self-generated pornographic material, where no commercial activity was involved, no interstate transportation took place, and no congressional findings support the necessity of such regulation in the framework of a broader regulatory scheme, is beyond the reach of any reasonable interpretation of Congress' Commerce Clause power.
Id. at 233 (Jolly, J., dissenting); see also United States v. Buculei, 262 F.3d 322 (4th Cir. 2001) (distinguishing Morrison and Lopez); United States v. Rodia, 194 F.3d 465 (3d Cir. 1999), cert. denied, 529 U.S. 1131 (2000) (relying also on a market stimulation theory, as well as an analogy to addiction); United States v. Angle, 234 F.3d 326 (7th Cir. 2000) (agreeing with the Third Circuit). For other courts, the interstate nexus (photographs taken with film or by a camera made in a state other than that of the defendant) suffices. See United States v. Robinson, 137 F.3d 652 (1st Cir. 1998); United States v. Bausch, 140 F.3d 739 (8th Cir. 1998), cert. denied, 525 U.S. 1072 (1999).
Back To Text77. Kallestad, 236 F.3d at 229. That court relied on the commercial nature of the activity because, in its view, a "jurisdictional hook" - interstate transactions - was insufficient alone to support the statute's constitutionality. Id.
Back To Text78. Gibbs v. Babbitt, 214 F.3d 483, 487 (4th Cir. 2000), cert. denied sub nom. Gibbs v. Norton, 121 S. Ct. 1081 (2001).
Back To Text79. 16 U.S.C. §1532(19) (1994); 50 C.F.R. §17.84(c) (2001) (making some exceptions when red wolves harm pets or livestock).
Back To Text80. Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999) (en banc).
Back To Text81. Gibbs, 214 F.3d at 491 (quoting Justice Kennedy's concurrence in United States v. Lopez, 514 U.S. 549, 574 (1995)). The judge who had authored the en banc VAWA decision dissented. See id. at 506 (Luttig, J., dissenting). As Judge Luttig explained, "The number of inferences (not even to mention the amount of speculation) necessary to discern in this activity a substantial effect on interstate commerce is exponentially greater than the number necessary in ... Morrison to show a substantial effect on interstate commerce from domestic assault." Id. at 507.
Back To Text82. Id. at 493 (majority opinion).
Back To Text83. Id. at 494.
Back To Text84. Id. at 497. Moreover, the regulation was a part of a larger picture, the Endangered Species Act, which is "a comprehensive and far-reaching piece of legislation that aims to conserve the health of our national environment." Id.
Back To Text85. Id. at 500.
Back To Text86. Other limitations may soon be imposed on Commerce Clause powers. See Solid Waste Agency v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) (avoiding the question of constitutionality by finding a regulation beyond statutory authority). Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, relying on Gibbs in part and distinguishing Morrison. Id. at 192-95 (Stevens, J., dissenting). On the other hand, given the attack on New York in the fall of 2001, the desire for national security will likely damp down interest in constraints on some aspects of federal power.
Back To Text87. Justice Thomas has advocated returning to this conception. See United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring).
Back To Text88. Hoke v. United States, 227 U.S. 308, 322 (1912).
Back To Text89. Caminetti v. United States, 242 U.S. 470, 492 (1916) (quoting Hoke, 227 U.S. at 323).
Back To Text90. See, e.g., DAVID J. LANGUM, CROSSING OVER THE LINE: LEGISLATING MORALITY AND THE MANN ACT 139-97 (1994).
Back To Text91. Caminetti, 242 U.S. at 487 (quoting Murphy v. Ramsey, 114 U.S. 15, 45 (1885)). Murphy upheld a federal act providing that Utah voters could only be registered if legally qualified and that "no polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described ... shall be entitled to vote." Murphy, 114 U.S. at 28-29.
Back To Text92. State and federal judges urged Congress not to enact the provision, relying in part on a "judicial impact statement" provided to the Judicial Conference of the United States that had warned of "as many as 53,800 civil tort cases annually," of which "13,450 ... are anticipated to reach the Federal Courts." Violence Against Women: Victims of the System: Hearing on S. 15 Before the S. Comm. on the Judiciary, 102d Cong. 10, 15-16 (1991) (reprinting Violence Against Women Act of 1991, a judicial impact statement on S. 15 prepared by the Administrative Office of the U.S. Courts); see also Judith Resnik, The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 S. CAL L. REV 269, 270-77 (2000) (detailing the initial opposition and then the subsequent decision by the Judicial Conference not to oppose the passage of the civil rights remedy).
The judicial impact statement's prediction proved wildly inaccurate. In the years between enactment and the Morrison decision, only about fifty cases were reported. Law Professors' Amici Brief, supra note 21, at 14 (providing the data); see Jenny Rivera, A Promise Waiting To Be Fulfilled: The Violence Against Women Act of 1994 and the Construction of Multiple Consciousness in the Civil Rights and Feminist Movements, 4 J.L. & POL'Y 463, 488 (1996) (criticizing VAWA's civil rights provisions as unlikely to be used by many of those eligible to do so because of a lack of the resources needed to pursue federal litigation).
Back To Text93. See Transcript of Oral Argument, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29), 2000 U.S. Trans. LEXIS 22, at 16.
Back To Text94. 29 U.S.C.§ 1055 (1994) (mandating a qualified joint and survivor annuity for surviving spouses); id. §1056(d)(3)(D) (permitting court orders that transfer pension benefits from a plan participant to a former spouse upon divorce).
Back To Text95. Id.§ 2611. The courts reason that, because the Act is gender-neutral and provides for leaves beyond those to care for children, Congress did not provide means congruent and proportional to an identifiable constitutional injury of gender discrimination and, therefore, that individuals cannot obtain monetary relief from state employers under the Act. See, e.g., Chittister v. Dep't of Cmty. Econ. Dev., 226 F.3d 223 (3d Cir. 2000); Sims v. Univ. of Cincinnati, 219 F.3d 559 (6th Cir. 2000).
Back To Text96. ALEXANDER M. BICKEL& BENNO C. SCHMIDT, JR., THE JUDICIARY AND RESPONSIBLE GOVERNMENT, 1910-1921, at 229 (1984).
Back To Text97. 42 U.S.C. §§3796gg, 10409(a), 10416 (1994); Violence Against Women Act of 1999, Stalking Prevention and Victim Protection Act of 1999: Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 106th Cong. 22-37 (1999) [hereinafter 1999 VAWA Hearings] (statement of Bonnie Campbell, Director of the Department of Justice's Violence Against Women Office).
Back To Text98. The Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1491 (codified in scattered sections of 42 U.S.C.); 2000 Legislative Summary: Anti-Crime Package, 58 CQ Wkly. 2914 (2000) (describing the authorizations of almost $ 3.3 billion for grants, including $ 185 million a year for five years for state programs to coordinate victim advocates, police, and prosecutors, $ 175 million a year for five years for shelters for battered women and children, $ 40 million for a new program providing legal assistance to battered women, and $ 25 million for a new program to assist women in obtaining transitional housing).
Back To Text99. 18 U.S.C.§ 2265 (1994).
Back To Text100. Id. §2262 (prohibiting the crossing of a state line with the intent to engage in or actual engagement in conduct that violates a protective order). This provision was upheld in United States v. Wright, 128 F.3d 1274 (8th Cir. 1997), and United States v. Casciano, 124 F.3d 106 (2d Cir. 1997). Also authorized is prosecution if a defendant crosses a state line with the intent to commit or in the act of committing a crime of domestic violence. 18 U.S.C. §2261. This provision was upheld in United States v. Gluzman, 154 F.3d 49 (2d Cir. 1998), cert. denied, 526 U.S. 1020 (1999). As of 1999, more than 170 prosecutions had been pursued. 1999 VAWA Hearings, supra note 97, at 32-33 (statement of Bonnie Campbell, Director of the Department of Justice's Violence Against Women Office). In 2000, more than 230 criminal cases were filed under the various criminal provisions of VAWA. Executive Office for U.S. Attorneys, U.S. Dep't of Justice, Criminal Caseload Statistics, Violence Against Women (2001) (on file with author).
Back To Text101. E.g., NEW YORK CITY, N.Y. ADMIN. CODE tit. 8, §§8-901 to -905 (2001) (providing a civil cause of action for any person committing a "crime of violence motivated by gender" and authorizing compensatory and punitive damages, injunctions, and fees). The Act addresses "crime[s] of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender" but not "random acts of violence unrelated to gender or ... acts that cannot be demonstrated, by preponderance of the evidence, to be motivated by gender." Id. Parallel provisions have been proposed in other municipalities, as well as in the states of Arkansas, Arizona, Illinois, and New York. E.g., S.B. 1550, 45th Leg., 1st Reg. Sess. (Ariz. 2001) (providing damage actions when acts of violence are "motivated by gender," as established by a "preponderance of the evidence," but not if "random"); The Arkansas Violence Against Women Act of 2001, H.B. 1691, 83d Gen. Assem., Reg. Sess. (Ark. 2001) (providing for protection of the "civil rights of victims of gender motivated violence and ... promoting the public safety, health, and activities by establishing a state civil rights cause of action"); Gender Violence Act, H.B. 3279, 92d Gen. Assem. (Ill. 2001) (providing that because "existing State and federal laws do not adequately prevent and remedy gender-related violence, such as domestic violence, which is disproportionately visited upon women by men; sexual abuse, which harms many women and children without being reported or prosecuted; and violence against men and women for actual or attributed sexual or gender nonconformity," persons subjected to such sex discrimination have civil causes of action for monetary and equitable relief); The Gender Violence Act, H.B. 4407, 91st Gen. Assem., Reg. Sess. (Ill. 2000); An Act To Amend the Civil Rights Law, in Relation to Providing a Civil Remedy for Victims of Bias-Related Violence or Intimidation, S.B. 2776, 224th Leg., Reg. Sess. (N.Y. 2001) (providing remedies for injuries based on gender and sexual orientation and authorizing civil suits to be brought by both the attorney general and individuals).
Back To Text102. See NANCY COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION -9-23, 115-31 (2000); PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES(1997); Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 Yale J.L. & HUMAN. 251 (1999); Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297 (1998); Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. CHI. L. REV. 671 (1989).
Back To Text103. An increasingly rich literature analyzes the effects of social policy on gender and gender's role in shaping policy. Several scholars address the period of interest here. E.g., ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN AND THE QUEST FOR ECONOMIC CITZENSHIP IN THE 20TH CENTURY AMERICA(2001); ALISA KLAUS, EVERY CHILD A LION: THE ORGINS OF MATERNAL AND INFANT HEALTH POLICY IN THE UNITED STATES AND FRANCE, 1890-1920 (1993); SUZANNE METTLER, DIVIDING CITZENS: GENDER AND FEDERALISM IN NEW DEAL PUBLIC POLICY(1998); THEDA SKOCPOL, PROTECTING SOLIDERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES: The Political Origins of Social Policy in the United States 7-55 (1992); Katharine T. Bartlett, Feminism and Family Law, 33 FAM. L.Q. 473 (1999).
Back To Text104. See Ann Laquer Estin, Shared Governance: Family Law in Congress and the States (Jan. 3, 2001) (unpublished manuscript, on file with author) (detailing the constitutional bases Congress has relied on since 1974 to enact legislation aimed at family life, specifically spending powers for many federal programs and regulations relating to child support, welfare, adoption, foster care, and medical care; commerce powers for VAWA, child-support recovery legislation, abortion clinic access statutes, parental kidnapping provisions, and prohibitions on discrimination based on pregnancy; full faith and credit for child custody, support, and marriage legislation; and the Fourteenth Amendment, also for VAWA, for transracial adoption legislation, and for proposed but not enacted legislation on parental rights and freedoms).
Back To Text105. See, e.g., 26 U.S.C. §2(b) (1994) (defining "head of a household" for tax purposes); id. §7701(a)(17) (defining husband and wife). Boris Bittker is one of the first within the legal academy to have understood the role of tax law in family life. See Boris Bittker, Federal Income Taxation and the Family, 27 STAN L. REV 1389 (1975). Today, an extensive literature addresses the effects of gender on the tax code and the tax code's effects on gender. See, e.g., EDWARD J. MCCAFFREY, TAXING WOMEN (1997); NADA EISSA & HILLARY WILLIAMSON HOYNES, THE EARNED INCOME TAX CREDIT AND THE LABOR SUPPLY OF MARRIED COUPLES,(Nat'l Bureau of Econ. Research, Working Paper No. 6856, 1998).
Back To Text106. See Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet's Constitutional Law, 89 COLUM. L. REV. 264 (1989).
Back To Text107. TERESA A.SULLIVAN, ELIZABETH WARREN & JAY LAWRENCE WESTBROOK, THE FRAGILE MIDDLE CLASS 75 (2000) [hereinafter SULLIVAN et al., THE FRAGILE MIDDLE CLASS]; see also TERESA A.SULLIVAN, ELIZABETH WARREN & JAY LAWRENCE WESTBROOK, AS WE FORGIVE OUR DEBTORS: BAKRUPTCY AND CONSUMER CREDIT IN AMERICA 149-59 (1989) (examining federal bankruptcy law's effect on women filing singly). How bankruptcy should treat child support debt is the subject of intense debate. Compare 11 U.S.C. §523(a)(5) (1994) (not excusing debtors from child support and alimony debt), with Bankruptcy Abuse Prevention and Consumer Protection Act of 2001, H.R. 333, 107th Cong.§§ 211-220 (2001) (proposing a change).
Back To Text108. Nguyen v. INS, 121 S. Ct. 2053 (2001) (upholding the constitutionality of a statute that drew a distinction in terms of citizenship opportunities between the children of unwed fathers and the children of unwed mothers); see also Asylum and Withholding Definitions, 65 Fed. Reg. 76,588 (proposed Dec. 7, 2000) (to be codified at 8 C.F.R. pt. 208) (addressing domestic abuse and political asylum).
Back To Text109. Defense of Marriage Act of 1996, Pub. L. No. 104-199, §3(a), 110 Stat. 2419, 2419 (codified at 1 U.S.C. §7 (Supp. V 1999)) (defining "marriage" as between one "man" and one "woman" for "determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States"); id. §2(a) (codified at 28 U.S.C. §1738C) (eliminating from the full faith and credit requirement the recognition of same-sex relationships, entered into under the laws of one state, by other states). Many commentators have addressed the legislation. See, e.g., Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives To Recognize Same-Sex Marriage, 68 S. CAL L. REV 745 (1995); Andrew Koppelman, Same-Sex Marriage, Choice of Law, and Public Policy, 76 TEX L. REV921 (1998).
Back To Text110. 29 U.S.C. 1055 (1994); id. 1056(d)(3)(D); Boggs v. Boggs, 520 U.S. 833 (1997) (holding that these provisions preempt conflicting state community property rules).
Back To Text111. See, e.g., WOMEN, THE FAMILY AND POLICY (Esther Ngan-ling Chow & Catherine White Berheide eds., 1994).
Back To Text112. SKOCPOL, supra note 103, at 525-39. Linda Gordon agrees, but then asks why such programs "designed by feminists [were] so bad for women and children." LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 289-93 (1994) (discussing the "family-wage system," then supported by welfare reformists, which limited possibilities for alterations in social ordering that would have been more generative for women of all classes and races).
Back To Text113. SKOCPOL, supra note 103, at 304, 374, 480-81.
Back To Text114. 43 CONG. REC. 2897 (1909) (statement of Rep. Herbert Parsons); see also id. at 2905 (explaining the federal role as "an aid" to states, not a "supplanter" of them).
Back To Text115. SKOCPOL, supra note 103, at 481. See generally KLAUS, supra note 103, at 208-43 (describing the Children's Bureau during that time). When that statute was attacked as beyond federal authority, the Supreme Court declined to address that claim on the ground that Massachusetts lacked standing to bring it. Massachusetts v. Mellon, 262 U.S. 447 (1923); see also Richard A. Epstein, Standing and Spending - The Role of Legal and Equitable Principles, 4 CHAP L. REV. 1 (2001) (urging revisiting of both issues).
Back To Text116. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, §103(a)(1), 110 Stat. 2105, 2129 (codified at 42 U.S.C.§ 607(e)(2), (g) (Supp. V 1999)) ("It is the sense of the Congress that ... each State ... assign the highest priority to requiring adults in 2-parent families and adults in single-parent families that include older preschool or school-age children to be engaged in work activities.").
Back To Text117. See generally David L. Chambers, Fathers, the Welfare System, and the Virtues and Perils of Child-Support Enforcement, 81 VA. L. REV. 2575, 2583-88 (1995) (discussing the enforcement of child support).
Back To Text118. GORDON, supra note 112, at 18 (stating that 9% of children lived with one parent in 1900 and 9.1% did so in 1960).
Back To Text119. Id. at 19.
Back To Text120. Id. at 20.
Back To Text121. For example, in some states, mothers - who, if married, had no rights to property - did not have support obligations. See HARRY D. KRAUSE, CHILD SUPPORT IN AMERICA 4 n.9 (1981) (quoting a 1979 Illinois case noting the "untraditional idea that the mother, as well as the father - even where she is a noncustodial parent - may be obliged to contribute to the support of the minor children"). States also had diverse rules on the obligations of step-parents and other relatives toward children and on adult children's obligations toward parents. Id. at 38-44.
Back To Text122. See id. at ix (noting that the 1934 American Law Institute's Restatement of Conflict of Laws described child support as "of no special interest to other states" because such obligations were not enforceable elsewhere).
Back To Text123. New York State developed a prototype. See Uniform Support of Dependents Law, ch. 807, 1949 N.Y. Laws 1801 (repealed 1997). See generally WILLIAM J. BROCKELBANK, INTERSTATE ENFORCEMENT OF FAMILY SUPPORT (THE RUNAWAY PAPPY ACT) (1960) (discussing the Uniform Reciprocal Enforcement of Support Act). The statute was replaced by the Uniform Interstate Family Support Act, N.Y. JUD. CT. ACTS§§ 580-101 to -901 (McKinney 1999). This revision was prompted in turn by the 1996 welfare reforms, discussed infra note 131.
Back To Text124. One issue was the ability to obtain personal jurisdiction over the alleged offender; federal law did not recognize jurisdiction without physical contact (real or constructive) until International Shoe Co. v. Washington, 326 U.S. 310 (1945). Writing after International Shoe and after California's enactment of the Uniform Reciprocal Enforcement of Support Act in 1951, Albert Ehrenzweig explored yet other problems, including which state law applied, what enforcement mechanisms such as contempt could be applied to enforce obligations, and how to treat support orders subject to modification. See Albert A. Ehrenzweig, Interstate Recognition of Support Duties: The Reciprocal Enforcement Act in California, 42 CAL L. REV. 382 (1954).
Back To Text125. See Sistare v. Sistare, 218 U.S. 1 (1910) (holding that past-due alimony payments were entitled to full faith and credit only if not subject, under the issuing state's law, to retroactive modification); see also Barber v. Barber, 323 U.S. 77, 86-87 (1944) (Jackson, J., concurring) (challenging the relevance of finality to enforcement through full faith and credit). Justice Jackson also wrote an essay arguing that national legislation should integrate legal systems, as it was doing for the economy and social welfare. Robert H. Jackson, Full Faith and Credit - The Lawyers' Clause of the Constitution, 45 COLUM L. REV 1 (1945). Enforcement remained difficult in the subsequent decades. See Duncan J. Stewart, Note, Domestic Relations: Interstate Enforcement of Support Orders: Necessity and Feasibility of Federal Legislation, 48 CORNELL L.Q. 541 (1963).
Back To Text126. Contemporary federal interest in child support enforcement remains linked to welfare support. See 144 CONG REC. S5734 (daily ed. June 5, 1998) (statement of Sen. Herbert Kohl) (supporting the 1998 amendments to the Child Support Recovery Act by noting that "[i]t has been estimated that if delinquent parents fully paid up their child support, approximately 800,000 women and children could be taken off the welfare rolls").
Back To Text127. COTT, supra note 102, at 173 (discussing section 213 of the Economy Act of 1932, repealed some five years later); see also ALICE KESSLER-HARRIS, A WOMANS WAGE: HISTORICAL MEANINGS AND SOCIAL CONSEQUENCE 57-80 (1990) (exploring the gendered meanings of family "providers").
Back To Text128. Chambers, supra note 117, at 2583-84.
Back To Text129. KRAUSE, supra note 121, at 307-11 (discussing the creation in 1975 of the Office of Child Support Enforcement (OCSE) in the Department of Health, Education, and Welfare); Ann Laquer Estin, Federalism and Child Support, 5 VA. J. SOC POL'Y & L. 541, 545 (1998).
Back To Text130. Legislation enacted in 1965 and 1967 authorized agencies of the federal government (such as the Internal Revenue Service) to provide states with addresses of absent parents. Social Security Amendments of 1965, Pub. L. No. 89-97, §340, 79 Stat. 286, 411 (codified as amended at 42 U.S.C. §1306 (1994)); Social Security Amendments of 1967, Pub. L. No. 90-248, §211, 81 Stat. 821, 896-97 (1968) (codified as amended at 42 U.S.C.§ 622). Subsequent amendments expanded the obligations of states and the oversight role of the federal government. Family Support Act, Title IV-D of the Social Security Act of 1974, Pub. L. No. 93-647, 88 Stat. 2351 (1975) (codified at 42 U.S.C.§ 651-660); Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1306 (codified at 42 U.S.C. §§666-667); Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2408 (codified at 42 U.S.C. §§617, 668-669, 681-687, 1396r-6). Revisions of those provisions came through the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections of 42 U.S.C. (1994 & Supp. V 1999)), which requires participating states to establish paternity and to enforce child support obligations by deducting payments when a custodial parent refuses cooperation. For discussion of the evolution of laws and practices, see generally CHILD SUPPORT: THE NEXT FRONTIER (J. Thomas Oldham & Marygold S. Melli eds., 2000); and Estin, supra note 129.
Back To Text131. Specifically, 42 U.S.C. §666 conditions the receipt of federal funds on state efforts to locate absent parents and details the procedures that need to be in force. Simons, supra note 62, at 940-41 n.211 (describing the effects of the federal legislation on state lawmaking).
Back To Text132. Gwendolyn Mink, Violating Women: Rights Abuses in the Welfare Police State, 577 ANNALS AM. ACAD. POL & SOC. SCI. 79, 80 (2001); see also SULLIVAN ET AL., THE FRAGILE MIDDLE CLASS, supra note 107, at 174 (discussing how marriage permits coinsurance by partners and how "the trilogy of marriage, divorce, and no remarriage ... correlates with financial ruin").
Back To Text133. H.R. 1538, 81st Cong. (1949). Senator Arthur Capper of Kansas first proposed such a bill in 1941 and twice thereafter. See S. 1265, 77th Cong. (1941); S. 761, 78th Cong. (1943); S. 453, 79th Cong. (1945).
Back To Text134. See, e.g., S. 1265§ 2(a). The bill proposed that: Any person being subject to a judgment or decree of a court of any State for the support of his or her minor children, any part or installment of which is due or unpaid, who shall, without first reporting to the court entering such judgment or decree ... , transfer or remove his or her residence from such State with the intent to avoid payment of such judgment, shall be guilty of a crime against the United States.
Back To Text135. See, e.g., Making Abandonment of Dependents a Federal Crime: Hearings Before Subcomm. No. 2 of the House Comm. on the Judiciary, 81st Cong. (1949-1950) [hereinafter 1949-1950 Abandonment Hearings].
Back To Text136. Little in the legislative hearings addressed the issue. The Chair of the House Subcommittee, Sam Hobbs, directed a witness by commenting, "What we are interested in is not so much the question of the jurisdiction of the Federal Government. We recognized that in the Lindbergh Act, in the Mann Act, and in the more recent developments along that line." Id. at 37. The Department of Justice also advised that the "instant measure is probably constitutional by virtue of" the Commerce Clause. Id. at 117 (reproducing Letter from the Office of the Assistant to the Attorney General, Department of Justice to Emanuel Celler, Chairman, House Committee on the Judiciary (July 1, 1949)).
Back To Text137. For example, the Council of State Government and the State of Indiana endorsed the 1949 bill proposed by Representatives Ford and Jacobs. See id. at 9 (statement of Rep. Andrew Jacobs). State attorneys general remained supportive of federal action, as commentary in the 1980s from Connecticut's then-Attorney General indicated. See JOSEPH I LIEBERMAN, CHILD SUPPORT IN AMERICA 91 (1986) (praising the effectiveness of federal child support legislation).
Back To Text138. 18 U.S.C.§ 228 (1994). This Act was amended by the Deadbeat Parents Punishment Act of 1998, Pub. L. No. 105-187, 112 Stat. 618; see supra note 60 for its provisions and notes 64-65 and 70-72 for litigation about its constitutionality. Earlier versions included H.R. 1, 92d Cong. (1972), which would have amended the Social Security Act to make a federal crime of the failure by any parent "under a legal duty to provide for the support" not to pay if the "child ... receive[s] assistance payments ... funded ... in part ... by the Federal Government." S. REP.NO 92-1230, at 859 (1972).
Back To Text139. See Mary Jo White, Collecting Child Support Is a Federal Matter, N.Y. TIMES, Aug. 14, 1995, at A15 (discussing, in her capacity as United States Attorney for the Southern District of New York, the arrest of a "deadbeat dad" in Vermont on charges of owing in excess of $ 500,000 in child support). In 2000, some 450 cases were filed nationwide. Executive Office for U.S. Attorneys, U.S. Dep't of Justice, Criminal Caseload Statistics, All Child Support Recovery Act (2001) (on file with author).
Back To Text140. See, e.g., Chambers, supra note 117, at 2584, 2588-605; id. at 2588 (noting that "more fathers pay more money than ever before, but half of all children with an absent parent still receive no support"). Chambers argued that these obligations might prompt the poorest fathers to avoid relationships with their children, and that some children would be better served if they had no relationship with fathers who were abusive to either the custodial parent or the child. Id. at 2602-05; see also Susan Notar & Vicki Turetsky, Models for Safe Child Support Enforcement, 8 J. GENDER & SOC.POL'Y& L. 657 (2000) (exploring how child support enforcement policies reduce the safety of both women and children); GORDON, supra note 112 (criticizing the focus on privatization of support for reinforcing hierarchies based on gender, race, and class and thus reiterating political stratification and supporting state-provided minimums or universal programs); ROBERT I LERMAN & ELAINE SORENSEN, CHILD SUPPORT: INTERACTIONS BETWEEN PRIVATE AND PUBLIC TRANSFERS 12 (Nat'l Bureau of Econ. Research, Working Paper No. 8199, 2001) (arguing that legal child support obligations are more efficient when custodial parents live together since when parents are apart, the noncustodial parent has less control, prompting a decline in investments).
Back To Text141. The Department of Justice, on behalf of the FBI, also raised objections about the deployment of federal resources for this problem. See, e.g., 1949-1950 Abandonment Hearings, supra note 135, at 36 (statement of Rep. John A. Carroll) (addressing the need to convince the FBI of the propriety of such federal legislation).
Back To Text142. See 1957 ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 37; 1959 ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 35, 316-17; 1963 REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 73; 1965 REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES17, 63; 1967 REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES21, 68-69; 1971 REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES; 1977 REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES53; 1992 REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES57. Similarly, the Judicial Conference initially objected to enactment of the civil rights remedy in VAWA. See Resnik, supra note 92, at 271-72.
Back To Text143. For examples, see Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV L. REV 924, 961-67 (2000).
Back To Text144. Blessing v. Freestone, 520 U.S. 329 (1996); Suter v. Artist, 503 U.S. 347 (1992); Thompson v. Thompson, 484 U.S. 174 (1988). See generally Anne B. Goldstein, The Tragedy of the Interstate Child: A Critical Reexamination of the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act, 25 U.C. DAVIS L. REV (1992) (discussing the intractability in a federated system of the problem generated by conflicting laws on child custody, and criticizing statutory and judicial responses).
Back To Text145. See, e.g., Ankenbrandt v. Richards, 504 U.S. 689 (1992) (holding that the federal courts do have jurisdiction for alleged abuses of children by a father and his female companion but reading the diversity jurisdiction statute, 28 U.S.C. §1332 (1994), as incorporating a "domestic relations exception" for cases involving divorce, child custody, and alimony); Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502 (1982) (holding that the habeas statutes, 28 U.S.C.§§ 2241-2254, cannot be used to challenge a state law under which parents lost custody); Moore v. Sims, 442 U.S. 415 (1979) (requiring abstention when pending state proceedings were underway); Martin Guggenheim, State Intervention in the Family: Making a Federal Case Out of It, 45 OHIO ST. L.J. 399 (1984) (detailing the use of procedural doctrine to bar "access to federal courts on issues of child protection"). When an issue is about "family" and when a constitutional question dominates is itself an interesting example of shifting forms of categorization. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (stating that had the issue been only one of "zoning," local law might have had precedence but because the question also implicated claimed discrimination against family clusters, federal constitutional norms applied).
Back To Text146. This jurisprudence protects the dockets of federal courts but is often justified as protecting states from federal "intervention." Unless, as some advocate, the constriction of Commerce Clause powers is followed by a parallel retreat on Spending Clause authority, Congress retains power to frame programs that could be seen as more "intrusive" on states than are commerce-based federal causes of action such as that struck in Morrison. See Estin, supra note 104.
Back To Text147. Elsewhere, I have explored the legitimacy of the federal judiciary having any such collective view at the nonconstitutional level and its effects on constitutional interpretation. Resnik, supra note 92, at 276-80. Other commentators question the wisdom of the particular federal policies crafted. See, e.g., Naomi R. Cahn, Children's Interests in a Familial Context: Poverty, Foster Care, and Adoption, 60 OHIO ST. L.J. 1189 (1999); Sylvia Law, Families and Federalism, 4 WASH. U. J.L. & POL'Y 175 (2000); sources cited supra note 140.
Back To Text148. U.S. CONST. art. I, §9, cl. 8; id. art. III,§ 3, cl. 2. States are also barred from conferring titles of nobility. Id. art. I, §10, cl. 1; see Kris Collins, Framers and the Family Revisited (n.d.) (unpublished manuscript, on file with author) (arguing that federal constitutional law at its inception embodied national norms of inheritance).
Back To Text149. 530 U.S. 57 (2000).
Back To Text150. Troxel (No. 99-138), 1999 U.S. Briefs LEXIS 138. Sixteen amici briefs were filed; the organizations included the ACLU, the Center for the Original Intent of the Constitution, the Lambda Legal Defense and Education Fund, the AARP, and the National Conference of State Legislatures.
Back To Text151. Troxel, 530 U.S. at 92 (Scalia, J., dissenting) ("I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) an unenumerated right.").
Back To Text152. Exactly what rule emerged from the decision is unclear. Both the plurality opinion by Justice O'Connor and Justice Souter's concurrence stressed the parental right to direct a child's upbringing without oversight from judges. Id. at 65-66 (plurality opinion); id. at 77-78 (Souter, J., concurring). Justice Thomas's concurrence argued that any legislation limiting parental rights should be subjected to strict scrutiny. Id. at 80 (Thomas, J., concurring). Justice Stevens's dissent, id. at 86 (Stevens, J., dissenting), focused on the child's best interests, whereas Justice Kennedy's dissent argued for judicial authority and restraint, with attention paid to the particulars of individual situations, id. at 100-01 (Kennedy, J., dissenting).
Back To Text153. See Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the "fundamental liberty interest of natural parents in the care, custody, and management of their child"), cited in Troxel, 530 U.S. at 66 (plurality opinion).
Back To Text154. See, e.g., Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 401 (1923).
Back To Text155. See Loving v. Virginia, 388 U.S. 1 (1967) (overturning a ban on racial intermarriage, which sixteen states then prohibited and punished); Cleveland v. United States, 329 U.S. 14 (1946) (upholding federal prosecutions based on polygamy); Reynolds v. United States, 98 U.S. 145 (1878) (sustaining a federal conviction for bigamy); Eisenstadt v. Baird, 405 U.S. 438 (1972) (invalidating a ban on the sale of contraception).
Back To Text156. Palmore v. Sidoti, 466 U.S. 429 (1984) (prohibiting reliance on a parent's interracial marriage as grounds for assigning custody to the other parent).
Back To Text157. N.J. Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973); Levy v. Louisiana, 391 U.S. 68 (1968).
Back To Text158. See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (holding constitutional a presumption that a man married to a woman is the father of the child); Little v. Streater, 452 U.S. 1 (1981) (requiring state funding for required paternity tests if the alleged father is too poor to pay); Caban v. Mohammed, 441 U.S. 380 (1979) (finding New York law violative of the Equal Protection Clause because unwed mothers but not fathers could withhold consent to adoption); Quilloin v. Walcott, 434 U.S. 246 (1978) (concluding that a state's differential treatment of the rights of divorced biological mothers from biological fathers vis-a-vis adoption of a child did not violate equal protection); Stanley v. Illinois, 405 U.S. 645 (1972) (holding that states must give unwed fathers hearings on their fitness before removing children from their custody).
Back To Text159. See, e.g., Barbara Ann Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 HASTINGS L.J. 571 (1984); Naomi R. Cahn, Family Law, Federalism, and the Federal Courts, 79 IOWA L. REV. 1073 (1994).
Back To Text160. LERMEN & SORENSEN, supra note 140, at 45.
Back To Text161. Linda Henry Elrod, Epilogue: Of Families, Federalization, and a Quest for Policy, 33 FAM. L.Q. 843, 851-52 (2000); Merle Weiner, Navigating the Road Between Uniformity and Progress: Driving the Hague Convention on the Civil Aspects of International Child Abduction Forward with Purposive Analyses, 33 COLUM. HUM. RTS. L. REV. (forthcoming 2002).
Back To Text162. United States v. Morrison, 529 U.S. 598, 612-13, 617 (2000); Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820, 838-42 (4th Cir. 1999) (en banc).
Back To Text163. A range of federal criminal statutes interact with comparable state provisions; local and federal law enforcement officers often work together, sometimes through cross-deputization. See Rory K. Little, Myths and Principles of Federalization, 46 HASTINGS L.J. 1029, 1061-70 (1995); John C. Jeffries, Jr. & John Gleeson, The Federalization of Organized Crime: Advantages of Federal Prosecution, 46 HASTINGS L.J. 1095 (1995); Daniel C. Richman, The Changing Boundaries Between Federal and Local Law Enforcement, 2 CRIM. JUST. 81 (2000).
Back To Text164. See TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, ABA CRIMINAL JUSTICE SECTION, THE FEDERALIZATION OF CRIMINAL LAW (James A. Strazella rptr., 1998); Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement?, 80 B.U. L. Rev. 1227 (2000).
Back To Text165. ADMIN. OFFICE OF THE U.S COURTS, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY 25 tbl.C-1 (2000); Nat'l Ctr. for State Courts, Court Statistics Project, Examining the Work of the State Courts, 1999-2000, at http://www.ncsc.dni.us/divisions/research/csp/csp-stat01.html (last visited Aug. 25, 2001) (reporting more than fifteen million civil, fourteen million criminal, and five million "domestic" filings). The evaluation shifts somewhat if, on the federal side, the many bankruptcy and welfare benefit disputes related to "domestic relations" law are included. For example, about 1.2 million nonbusiness bankruptcy petitions were filed in 2000, ADMIN. OFFICE OF THE U.S. COURTS, supra, at 94 tbl.F-2, and the Social Security Administration decided more than 500,000 cases annually, Soc. Sec. Admin., About SSA's Office of Hearings and Appeals, at http://www.ssa.gov/oha/overview.htm (last modifed Mar. 9, 2000).
Back To Text166. G.A. Res. 217A, U.N. Doc. A/810 (1948); see MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THEUNIVERSAL DECLARATION OF HUMAN RIGHTS(2001).
Back To Text167. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 (entered info force Sept. 3, 1981); see infra notes 186-190, 223-238 and accompanying text.
Back To Text168. Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Agenda Item 111, U.N. Doc. A/Res/48/104 (1994).
Back To Text169. See, e.g., Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, June 9, 1994, art. 5, 33 I.L.M. 1534, 1536 ("Every woman is entitled to the free and full exercise of her civil, political, economic, social and cultural rights ... [and signatories] recognize that violence against women prevents and nullifies the exercise of these rights."). See generally Claudio Grossman, Domestic Violence in International Law and the Inter-American System, in U.N. DEPT OF ECON. & SOC. AFFAIRS, DIV. FOR THE ADVANCEMENT OF WOMEN, BRINGING INTERNATIONAL HUMAN RIGHTS LAW HOME 50, U.N. Sales No. E.00.IV.3 (2000) (providing an overview of international agreements addressing such violence).
Back To Text170. International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, S. EXEC. DOC.E. 95-2, at 23 (1978), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).
Back To Text171. Brief of Amici Curiae on Behalf of the International Law Scholars and Human Rights Experts in Support of Petitioners at 3-15, 22-30, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29), 1999 WL 1037253.
Back To Text172. See LOUIS HENKIN, THE AGE OF RIGHTS 76-77 (1990) (discussing the United States's "deep isolationism" and fear of importing human rights).
Back To Text173. UNICEF, DOMESTIC VIOLENCE AGAINST WOMEN AND GIRLS (United Nations Children's Fund Innocenti Research Ctr., Innocenti Digest No. 6, 2000), http://www.unicef-icdc.org/publications/pdf/digest6e.pdf.
Back To Text174. Id. at 2.
Back To Text175. Id.
Back To Text176. Id. at 3. While violence against women crosses cultural lines, the grounds and sources of injury reflect cultural patterns. See Lama Abu-Odeh, Comparatively Speaking: The "Honor" of the "East" and the "Passion" of the "West," 1997 UTAH L. REV 287.
Back To Text177. See UNICEF, supra note 173, at 1 (commenting, in an opening editorial by Mehr Khan, the Director of the UNICEF Innocenti Research Centre, "Women and children have a right to State protection even within the confines of the family home").
Back To Text178. Id. at 8.
Back To Text179. U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 1999, at 22, U.N. Sales No. 99.III.B.43 (1999) ("Between 1990 and 1997 women's economic activity rate rose from 34% to nearly 40%... . A quarter to a half of all women have suffered physical abuse by an intimate partner."). Assessments of human security link economic and personal safety. Id. at 36.
Back To Text180. Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International Human Rights Dialogue, 21 CARDOZO L. Rev. 253, 257 (1999); see also U.N. DEV. PROGRAMME, supra note 179, at 132, 138-41, 160-62, 229-41 (providing a "gender-related development index" that includes measures of life expectancy, literary, and income); id. at 140 (reporting that, for example, in India, 39.4% of women are literate, as contrasted to 66.7% of men). See generally AMARTYA SEN, DEVELOPMENT OF FREEDOM 191-203, 217-18, 225 (1999) (elaborating the relationship among women's educational levels, fertility rates, and women's economic, social, and political opportunities).
Back To Text181. Ginsburg & Merritt, supra note 180, at 257.
Back To Text
182. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 1 (2000).
Back To Text183. See LEILA J. RUPP, WORLDS OF WOMEN: THE MAKING OF THE INTERNATIONAL MOVEMENT (1997) (providing a history beginning with the 1878 Congres international de droit des femmes, the first international women's congress, followed a decade later by a conference called by the U.S. National Woman Suffrage Association, from which the International Council of Women emerged).
Back To Text184. See Nitza Berkovitch, The Emergence and Transformation of the International Women's Movement, in CONTRUCTING WORLD CULTURE: INTERNATIONAL NONGOVERNMENTAL ORGANIZTIONS SINCE 1875 at 1875, at 100 (John Boli & George M. Thomas eds., 1999); Elisabeth Friedman, Women's Human Rights: The Emergence of a Movement, in WOMEN'S RIGHTS, HUMAN RIGHTS 18 (Julie Peters & Andrea Wolper eds., 1995); Annelise Riles, The Virtual Sociality of Rights: The Case of "Women's Rights Are Human Rights," in TRANSNATIONAL LEGAL PROCESS: GLOBALISATION AND POWER DISPARTIES (Michael Likosky ed., forthcoming 2001).
Back To Text185. Ginsburg & Merritt, supra note 180, at 273-81.
Back To Text186. Convention on the Elimination of All Forms of Discrimination Against Women, supra note 167; see Arvonne S. Fraser, The Convention on the Elimination of All Forms of Discrimination Against Women (the Women's Convention), in WOMEN, POLITICS AND THE UNITED NATIONS77 (Anne Winslow ed., 1995). "CEDAW," technically the name of the committee empowered with oversight of its deployment, is sometimes used as shorthand as is the term "The Women's Convention." I prefer CEDAW because the term "The Women's Convention" could be read to imply that other conventions, addressing political and civil rights, economic rights, torture, and the like, are not also central to women.
Back To Text187. See Comms. on Int'l Human Rights & Int'l Law, Recommendations on the Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, 53 REC. ASS'N BAR CITY N.Y. 511 (1998).
Back To Text188. Convention on the Elimination of All Forms of Discrimination Against Women, supra note 167, art. 3, 1249 U.N.T.S. at 16. Article 5(a) addresses the need "[t]o modify social and cultural patterns of conduct of men and women" to eliminate stereotypes; Article 6 calls on state parties to reduce trafficking in women; Article 7 seeks women's equal participation in formulation of government policy and for equal employment possibilities; and Article 16 seeks the elimination of discrimination against women in all matters relating to marriage and family relations. Id. arts. 5, 6, 7, 16, 1249 U.N.T.S. at 17, 20.
Back To Text189. Id. arts. 2(e), 2(f), 4(1), 1249 U.N.T.S. at 16. When equality is achieved, these Articles are to be discontinued. Id.
Back To Text190. General Recommendation 19: Violence Against Women, Committee on the Elimination of Discrimination Against Women, 11th Sess., at 5, U.N. Doc. A/47/38 (1992).
Back To Text191. Declaration on the Elimination of Violence Against Women, supra note 168; Radhika Coomaraswamy & Lisa M. Kois, Violence Against Women, in 1 WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW 177, 182-84 (Kelly D. Askin & Doreen M. Koenig eds., 1998) (discussing the history and content of the Declaration on the Elimination of Violence Against Women); Elissavet Stamatopoulou, Women's Rights and the United Nations, in WOMEN'S RIGHTS, HUMAN RIGHTS, supra note 184, at 36 (providing an overview of the UN mechanisms for advancing women's equal treatment).
Back To Text192. Mariagrazia Rossilli, Introduction: European Union's Gender Policies, in GENDER POLICIES IN THE EUROPEAN UNION 1, 18 (Mariagrazi Rossilli ed., 2000).
Back To Text193. Noelle Lenoir, The Representation of Women in Politics: From Quotas to Parity in Elections, 50 INT'L & COMP. L.Q. 217, 242-43 (2001); Suzanne Daley, Parity: Thy Name Is Woman, N.Y. TIMES, Feb. 11, 2001, §4, at 3. See generally SYLVIANE AGACINSKI, PARITY OF THE SEXES (Lisa Walsh trans., Columbia Univ. Press 2001) (1998) (analyzing the political and philosophical complexities of the concept and practice of parity).
Back To Text194. Eliane Vogel-Polsky, Parity Democracy - Law and Europe, in GENDER POLICIES IN THE EUROPEAN UNION, supra note 192, at 61; see, e.g., Alice Brown, Deepening Democracy: Women and the Scottish Parliament, in REMAKING THE UNION 103 (Howard Elcock & Michael Keating eds., 1998); Pippa Norris, Equality Strategies and Political Representation, in SEX EQUALITY POLICY IN WESTERN EUROPE 46 (Frances Gardiner ed., 1997).
Back To Text195. See BETTER FOR WOMEN, BETTER FOR ALL: FOURTH REPORT OF THE UNITED KINGDOM OF GREAT BRITIAN AND NORTHERN IRELAND 2 (1999) (providing, as part of the filing required under CEDAW, an overview of the Women's Unit in the cabinet created to ensure that the "whole of Government takes into account women's needs and aspirations").
Back To Text196. See MAKING WOMEN COUNT: INTEGRATING GENDER INTO LAW AND POLICY -MAKING (Fiona Beveridge, Sue Nott & Kylie Stephen eds., 2000) (analyzing efforts at integrating gender into policymaking in five EU countries). See generally Catherine Barnard, Gender Equality in the EU: A Balance Sheet, in THE EU AND HUMAN RIGHTS 215, 220-21 (Philip Alston ed., 1999) (providing an overview of case law and legislation); Christopher McCrudden, Mainstreaming Equality in the Governance of Northern Ireland, 22 FORDHAM INT'L L.J. 1696, 1699-1701 (1999) (examining efforts at enhancing equality).
Back To Text197. Arnlaug Leira, Caring as Social Right: Cash for Child Care and Daddy Leave, 5 SOC. POL. 362, 375 (1998). See generally PARENTAL LEAVE at x-xi (Peter Moss & Fred Deven eds., 1999) (stating that, despite efforts to achieve gender neutrality, "women remain the overwhelmingly dominant group among those taking leaves").
Back To Text198. French Parliament Approves 35-Hour Working Week, AGENCE FRANCE PRESSE, Dec. 16, 1999, LEXIS, Nexis Library, Agence France Presse File (stating that the law applies to all companies with more than twenty employees and, as of 2002, to all companies); see also Jeanne Fagnani, Parental Leave in France, in PARENTAL LEAVE, supra note 197, at 69 (discussing how leave policies may reinforce gender discrimination in labor markets).
Back To Text199. See Deborah M. Figart & Ellen Mutari, Degendering Work Time in Comparative Perspective: Alternative Policy Frameworks, 56 REV. SOC. ECON460, 462 (1998) (describing Swedish feminists as among the first to propose "reductions in paid working time as a means of redistributing domestic labor"). In the United States, women disproportionately bear the burden of household work. See ARLIE HOCHSCHILD, THE SECOND SHIFT: WORKING PARENTS AND THE REVOULTION AT HOME (1989).
Back To Text200. Payment structures in countries vary, with some having "flat-rate allowances" and "parental wages," and others replacing earnings at the same levels as unemployment or illness. In terms of "take-up rates" (i.e. usage), the variables include the amount of economic benefit provided, the existence of child-care providers, and the level of professionalism of women workers. In Sweden, 450 days are paid from birth until a child is eight; 360 are paid at full salary, and 180 extra days are provided per additional child. See Suzan Lewis, Janel Smithson & Julia Brannen, Young Europeans' Orientations to Families and Work, 562 ANNALS AM. ACAD. POL. & SOC. SCI. 83, 85 (1999); MINISTRY OF CHILDREN & FAMILY AFFAIRS, THE RIGHTS OF PARENTS OF SMALL CHILDREN IN NORWAY(2000); see also Francoise Core & Vassiliki Koutsogeorgopoulou, Parental Leave: What and Where?, OECD OBSERVER, Aug. 1995, at 15 (describing Belgium's "career breaks," available for up to five years and for needs unrelated to children, and noting that the three-month leave associated with the United States is too short to qualify as parental leave by some countries' standards).
Back To Text201. In Norway, participation rates by fathers rose rapidly when the "use it or lose it" provisions came into play. See Arnlaug Leira, Cash-for-Child Care and Daddy Leave, in PARENTAL LEAVE, supra note 197, at 267, 275 (describing how, since the introduction of the "daddy quotas," about seventy percent of eligible fathers in Norway have taken the leave); see also U.N. Dev. PROGRAMME, supra note 179, at 82 ("Fathers must use at least 4 weeks of the parental leave" time of forty-two weeks at full pay or fifty-two weeks at eighty percent pay or that period is lost.).
Back To Text202. E-mail from Arnlaug Leira, Professor of Sociology, University of Oslo, to author (Feb. 9, 2001) (on file with author). Whether this strategy is successful is unclear. As Leira comments, one small study of the use of "father's leave" indicated that while, in some families, it facilitated a woman's return to the workforce, in others, fathers spent time at home but functioned as "mothers' helpers." Leira, supra note 197, at 373-74.
Back To Text203. Figart & Mutari, supra note 199, at 465 (discussing whether part-time employment reinforces occupational segregation by gender and the debate among feminists about whether the shorter work week promotes women's equality).
Back To Text204. See Rhonda Copelon, Gendered War Crimes: Reconceptualizing Rape in Time of War, in WOMEN'S RIGHTS, HUMAN RIGHTS, supra note 184, at 197, 200-01 (explaining that, while rape has been long prohibited, it was conceptualized as a dignitary rather than a violent injury and was not listed under the Geneva Convention as one of the "grave breaches," a predicate to universal jurisdiction); Dorean M. Koenig & Kelly D. Askin, International Criminal Law and the International Criminal Court Statute: Crimes Against Women, in 2 WOMEN AND INTERNATIONALHUMAN RIGHTS LAW, supra note 191, at 3 (2000); Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, in MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA 183 (Alexandra Stiglmayer ed., 1994); Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 Am. J. INT'L L. 424 (1993).
Back To Text205. See Prosecutor v. Kunarac, Case Nos. IT-96-23-T, IT-96-23/1-T (Int'l Crim. Trib. for Former Yugoslavia Feb. 22, 2001), http://www.un.org/icty/ind-e.htm; Marlise Simons, Bosnian War Trial Focuses on Sex Crimes, N.Y. TIMES, Feb. 18, 2001, at A4. For structural overviews of legal efforts to redress gender-based violence in war, see generally Judith Gardam & Michelle Jarvis, Women and Armed Conflict: The International Response to the Beijing Platform for Action, 32 COLUM. HUM. RTS. L. REV. 1 (2000); and Patricia M. Wald, Judging War Crimes, 1 CHI. J. INT'L L. 189 (2000).
Back To Text206. Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, http://untreaty.un.org/English/notpubl/rome-en-c.htm. As of November 1, 2001, 139 nations had signed and 43 had ratified the Treaty. Coalition for an Int'l Criminal Court, The CICC International Criminal Court Home Page, http://www.igc.org/icc/ (last visited Nov. 1, 2001). The United States became a signatory at the end of President Clinton's term, but many within the Senate have opposed ratification. See, e.g., 147 CONG. REC E13 (daily ed. Jan. 3, 2001) (reprinting an article, No to a World Court, submitted by Rep. Doug Bereuter of Nebraska). The Bush Administration has announced its opposition. Steven Mufson & Alan Sipress, U.N. Funds in Crossfire over Court; Exemption Sought for U.S. Troops, WASH. POST. Aug. 16, 2001, at A1.
Back To Text207. Cate Steains, Gender Issues, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROMAN STATUTE 357, 357 (Roy S. Lee ed., 1999) (footnote omitted). Women are written into the law of the court in three respects: as victims, as witnesses in need of specific services and rules, and as judges and prosecutors. In terms of women as victims, see Rome Statute of the International Criminal Court, supra note 206, arts. 8(2)(b)(xxii), 8(2)(e)(vi), 7(1)(g), 2(f), which defines war crimes and crimes against humanity to include "[c]ommitting rape, sexual slavery, enforced prostitution, [and] forced pregnancy." Specific reference is made to trafficking in "women and children." Id. art. 7(2)(c). Targeted persecutions are defined to include those based on "political, racial, national, ethnic, cultural, religious, and gender" grounds. Id. art. 7(1)(h). In terms of women as witnesses, see id. art. 54(1)(b), which provides that prosecution staff must "respect the interests and personal circumstances of victims and witnesses," including age and gender; and id. art. 68, which states that the court must "protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses." In terms of women as judges and prosecutors, see id. art. 36(8)(a)(iii), which calls for state parties to take into account the need for "fair representation of female and male judges"; id. art. 36(8)(b), which requires that state selection processes "take into account the need to include judges with legal expertise on ... violence against women or children"; and id. art. 42(9), which requires the Prosecutor to have advisors with legal expertise in "gender violence and violence against children."
Back To Text208. See STEERING COMM. FOR EQUALITY BETWEEN WOMEN & MEN COUNCIL OF EUR. STRATEGIES, ROLE, & FUNCTIONS OF NGOS WORKING FOR THE PROMOTION OF EQUALITY BETWEEN WOMEN AND MEN, PROCEEDINGS(1996); Shelly Inglis, Re/Constructing Right(s): The Dayton Peace Agreement, International Civil Society Development, and Gender in Postwar Bosnia-Herzegovina, 30 COLUM. HUM. RTS. L. REV. 65, 97-105 (1998); Afra Afsharipour, Note, Empowering Ourselves: The Role of Women's NGOs in the Enforcement of the Women's Convention, 99 COLUM. L. REV. 129 (1999).
Back To Text209. Proponents of the shift debate the degree to which it alters French law. See, e.g., Lenoir, supra note 193, at 245, 247 (discussing those who see parity as making a fundamental change and arguing that parity does not alter the universalism of citizenship but is a "tool," an "operational mechanism ... to ensure ... equal access to political responsibility," yet also noting that it is "a sign [that France] is more open to the pluralism that it must itself incorporate").
Back To Text210. United States v. Morrison, 529 U.S. 598, 617-18 (2000).
Back To Text211. Spalding & Murphy, supra note 5, at 864 (discussing experiments attempting to locate the role that background knowledge plays in influencing category representation).
Back To Text212. See, e.g., John C. Yoo, Globalism and the Constitution: Treaties, Non-Self Execution, and the Original Understanding, 99 COLUM L. REV 1955 (1999) (arguing against participation in a range of transnational agreements and against federal courts' application of those laws as part of international customary law). But see Peter J. Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, FOREIGN AFF., Nov.-Dec. 2000, at 9 (criticizing such views).
Back To Text213. S.J. Res. 130, 82d Cong., 98 CONG. REC 908 (1952) ("No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution ... ."), reprinted in DUANE TANANBAUM, THE BRICKER AMENDMENT CONTROVERSY 222 (1988). An alternative version read: "A provision of a treaty which conflicts with this Constitution shall not be of any force and effect... . A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty." TANABAUM, supra, at 91.
Back To Text214. Id. at 31. Bricker had support from leaders of the American Bar Association, id. at 2-31, and from a "coalition of Republicans and conservative, mostly southern, Democrats" who had worked together against other legislative proposals, id. at 43. Proponents also included some businessmen, who created the Foundation for Study of Treaty Law, some doctors opposed to "socialized medicine," and Vigilant Women for the Bricker Amendment, fearful of the UN and International Labour Organization's effects on the United States. Id. at 115-18. However, disagreements about exact texts ensued, and President Eisenhower viewed the amendment as unduly restrictive. Id. at 79.
Back To Text215. See Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT'L L. 341 (1995); see also TANABAUM, supra note 213, at 199-203 (detailing how the Eisenhower Administration undermined support through practical avoidance); Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI. KENT L. REV. 515 (1991) (examining the general question of treaties' domestic application).
Back To Text216. Malvina Halberstam, United States Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, 31 GEO. WASH. J. INT'L L. & ECON. 49, 55 (1997).
Back To Text217. Convention on the Elimination of All Forms of Discrimination Against Women: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 13 (1994) (statement of Jamison S. Borek, Deputy Legal Advisor, Department of State) [hereinafter CEDAW Hearings]. In contrast, in 1909, when the Mann Act was pending, the participation by the United States in an "international agreement for the suppression of the white slave traffic" was proffered as a reason to change federal law by enacting those criminal provisions. See WHITE SLAVE TRAFFIC, H.R. REP. NO. 61-47, at 3 (1909).
Back To Text218. See S. EXEC. REP NO. 103-38 (1994). The report states that:
[T]he United States understands that the Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the State and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall, as necessary take appropriate measures to ensure the fulfillment of this Convention.
Id. at 51. Discussion at the hearings indicated that, while the Convention could not be a vehicle for federal legislation, joining the Convention meant conformance not only in arenas currently subject to federal law. See CEDAW HEARING, supra note 217, at 11 (statement of Jamison S. Borek, Deputy Legal Advisor, Department of State); Ann Elizabeth Mayer, Reflections on the Proposed United States Reservations to CEDAW: Should the Constitution Be an Obstacle to Human Rights?, 23 HASTINGS CONST. L.Q. 727 (1996). The Convention requires party states, when filing reports, to discuss the status of such reservations. See Guidelines for Preparation of Reports by States Parties, Committee on the Elimination of Discrimination Against Women, 16th Sess., U.N. Doc. CEDAW/C/7/Rev.3 (1996); U.N. DEP'T OF ECON. & SOC. AFFAIRS, ASSESSING THE STATUS OF WOMEN: A GUIDE TO REPORTING UNDER THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (2000) [hereinafter ASSESSING THE STATUS OF WOMEN].
Back To Text219. Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, S. EXEC. DOC. C, 95-2 (1978), 660 U.N.T.S. 195. The United States ratified this convention in 1994. 140 CONG. REC S7634 (daily ed. June 24, 1994) (listing caveats); see also S. EXEC. REP. NO. 103-29, at 24 (1994) (noting that the treaty does not "federalize the entire range of anti-discrimination actions").
Back To Text220. See 138 CONG. REC. 8071 (1992) ("[T]o the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.").
Back To Text221. Peter J. Spiro, The States and International Human Rights, 66 FORDHAM L. REV. 567, 574-75 (1997).
Back To Text222. See TANABAUM, supra note 213, at 85 (citing testimony from a member of the Chamber of Commerce opposed to the International Labour Organization's proposals for provisions for mothers: "Had the founding fathers of the United States been thinking of compacts regarding layettes and mothers' milk when they had written that treaties would be a part of the supreme law of the land?"); see also supra note 214 (discussing the Vigilant Women for the Bricker Amendment).
Back To Text223. PATRICK F. FAGAN, HOW U.N. CONVENTIONS ON WOMEN'S AND CHILDREN'S RIGHT UNDERMINE FAMILY, RELIGION, AND SOVEREIGNTY (Heritage Found., The Heritage Foundation Backgrounder No. 1407, 2001), http://www.heritage.org/library/backgrounder/bg1407.html.
Back To Text224. Id. at 2.
Back To Text225. Id. at 21.
Back To Text226. S.F., CAL., ADMIN CODE. Code ch. 12K.1 (2001), http://www.amlegal.com/sanfran/.
Back To Text227. See S.F. COMM'N ON THE STATUS OF WOMEN AND CEDAW TASK FORCE, A GENDER ANAYLSIS: IMPLEMENTING THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN(1999); S.F. CEDAW TASK FORCE, FOURTH PROGRESS REPORT (2001), http://www.ci.sf.ca.us/cosw/cedaw/_around_us.html.
Back To Text228. Women's Inst. for Leadership Dev. for Human Rights, CEDAW Around the U.S., at http://www.wildforhumanrights.org/cedaw_around_us.html (last visited Nov. 1, 2001) (reporting on activity as of August 2000). The texts of these resolutions vary; some seek national ratification while others also require local implementation. In addition, the Working Group on the Ratification of CEDAW, co-chaired by the National Spiritual Assembly of the Bahai's of the United States and the National Federation of Women's Clubs, is promoting national adoption of CEDAW. See Tracey Parr, CEDAW at a "Local" Level 2-5 (Apr. 5, 2001) (unpublished memorandum, on file with author).
Back To Text229. 530 U.S. 363 (2000).
Back To Text230. Brief for Petitioner at 19-20, Crosby (No. 99-474), 2000 WL 35850.
Back To Text231. Crosby, 530 U.S. at 380-81. Justice Souter filed the majority opinion. Justice Scalia, writing on behalf of himself and Justice Thomas, concurred to protest the majority's mode of interpretation through reliance on materials outside the statute's text. Id. at 388-91 (Scalia, J., concurring).
Back To Text232. Crosby has already proved to be a wellspring of scholarly debate. See, e.g., Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 SUP. CT. REV. 175, 177-78, 216-22 (reading Crosby as exemplary of a minimalist approach to statutory foreign affairs preemption); Edward T. Swaine, Crosby as Foreign Relations Law, 41 VA. J. INT'L L. 481, 483, 494-501 (2001) (arguing that Crosby illustrates the Court's appreciation for the importance of executive authority in foreign affairs). Both Mark Tushnet and Ernest Young read Crosby as evidencing a presumption in favor of preemption in foreign affairs. See Mark Tushnet, Globalization and Federalism in a Post-Printz World, 36 TULSA L.J. 11, 22 (2000); Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 179 (2001). Young argues that such a presumption is unworkable in today's world of overlapping boundaries, as was the earlier effort, described as "dual federalism," which was aimed decades ago at making sharp delineations between state and federal powers. Id. at 177-78. Other discussion about the desirability of federal control to enable "one voice" in foreign policy can be found in Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 SUP. CT. REV. 295; and Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223 (1999).
Back To Text233. See Org. for Int'l Inv., State and Municipal Sanctions Survey (Apr. 27, 2001) (unpublished memorandum, on file with author) (reporting on a survey to learn of the effects of Crosby and determining that a majority of responding localities had halted enforcement or rescinded regulations as a consequence).
Back To Text234. C. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (discussing the benefits of local governance). The classic argument is that a smaller unit permits more participation and enhances the ability of individuals to have impact, a proposition in need of revisiting given the role of extra-local organizations in making local policy. See Spiro, supra note 221, at 585-87 (discussing the role Mexican commercial interests played after California enacted an anti-immigrant proposition).
Back To Text235. Koh, Bringing International Law Home, supra note 9, at 649; see also BRIAN HOCKING, LOCALIZING FOREIGN POLICY: NON-CENTRAL GOVERNMENTS AND MULTILAYERED DIPLOMACY (1993) (analyzing such activities in Australia, Canada, and the United States and describing the development as "multilayered diplomacy").
Back To Text236. SKOPCOL, supra note 103, at 464-65 (detailing "deliberate, organized, state-by-state efforts of associations of (mostly) married women" such as the National Congress of Mothers and the General Federation of Women's Clubs).
Back To Text237. See JANICE LOVE, THE U.S. ANTI-APARTHEID MOVEMENT: LOCAL ACTIVISM IN GLOBAL POLITICS (1985); Peter J. Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 VA. L. REV. 813 (1986). In the nineteenth century, localities also coordinated to lobby for shifts in national policy. See Kathryn Kish Sklar, "Women Who Speak for an Entire Nation": American and British Women in the World Anti-Slavery Convention, London, 1840, in THE ABOLITIONIST SISTERHOOD: WOMEN'S POLITICAL CULTURE IN ANTEBELLUM AMERICA 301 (Jean Fagan Yellin & John C. Van Horne eds., 1994); Joshua Civin, Civic Experiments: Community-Building in Baltimore and Liverpool, 1785-1835 (unpublished D. Phil. dissertation, Oxford University, draft 2001) (on file with author).
Back To Text238. Koh, Bringing International Law Home, supra note 9, at 655-63 (detailing the process by which "norm entrepreneurs" met, formed coalitions, and campaigned against land mines).
Back To Text239. See William G. Kelly, Selection of Judges, ABA JUD. DIV. REC., Winter 2000, at 3 (discussing the role of the Chamber of Commerce in elections of judges in different states); Anthony Champagne, Interest Groups and Judicial Elections 8 (2000) (unpublished paper prepared for the Summit on Improving Judicial Selection, on file with author) (also discussing efforts to influence state judicial elections).
Back To Text240. Compare Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994) (arguing that federalism's proponents cannot demonstrate its utility and that the only purpose served by states is decentralization), with Daniel B. Rodriguez, State Constitutionalism and the Domain of Normative Theory, 37 SAN DIEGO L. REV. 523 (2000) (addressing the vitality of state institutions and analyzing the function and role of state constitutionalism).
Back To Text241. See, e.g., Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013 (1994) (requiring inventorying of tribal materials and their return). In the 1870s, federal policies allotted land to individual members of tribes in an explicit effort to diminish tribal identity. Resnik, supra note 102, at 703. In the 1950s, the federal government again enacted policies diminishing tribal identity. Id. at 727-28.
Back To Text242. Theda Skocpol, The Tocqueville Problem: Civic Engagement in American Democracy, 21 SOC. SCI. HIST. 455, 472 (1997).
Back To Text243. VINCENT V. THURSBY, INTERSTATE COOPERATION: A STUDY OF THE INTERSTATE COMPACT (1953); FREDERICK L. ZIMMERMAN & MITCHELL WENDELL, THE INTERSTATE COMPACT SINCE 1925 (1951); Kevin J. Heron, The Interstate Compact in Transition: From Cooperative State Action to Congressionally Coerced Agreements, 60 ST. JOHN'S L. REV. 1, 8-9 (1985). Well over a hundred formal compacts (involving anywhere from two to fifty states, as well as the District of Columbia and Puerto Rico) exist. See COUNCIL OF STATE GOV'TS, INTERSTATE COMPACTS & AGENCIES (1995).
Back To Text244. E.g., Bear River Compact, Pub. L. No. 85-348, 72 Stat. 38 (1958); IDAHO CODE § 42-3402 (Michie 1990); UTAH CODE ANN. § 73-16 (Supp. 2001); WYO. STAT. ANN. § 41-12-101 to -102 (Michie 2001) (allocating water rights among Idaho, Utah, and Wyoming); see Jeffrey Uhlman Beaverstock, Learning To Get Along: Alabama, Georgia, Florida and the Chattahoochee River Compact, 49 ALA. L. REV. 993 (1998) (detailing the differing needs of Alabama and Florida for clean water and of Georgia as a producer of pollution).
Back To Text245. E.g., Port Authority of New York and New Jersey, N.J. STAT. ANN. § 32:1-1 (West 1990 & Supp. 2001); N.Y. UNCONSOL. LAW §§ 6401-6423 (McKinney 2000).
Back To Text246. See, e.g., Interstate Insurance Receivership Compact, 45 ILL. COMP. STAT. 160 (2000); MICH. COMP. LAWS ANN. § 550.11 (West 2001); NEB. REV. STAT. § 44-6501 (1998); WIS. STAT. ANN. § 601.59 (West 2000) (involving Illinois, Michigan, Nebraska, and Wisconsin, and addressing issues of insolvency of insurance companies).
Back To Text247. See, e.g., Spiro, supra note 221, at 590-95 (discussing the possibility of states entering into compacts or other agreements to adhere to international human rights provisions).
Back To Text248. See Interstate Agreement on Detainers Act, 18 U.S.C. app. §§ 1-9 (1994).
Back To Text249. See William W Schwarzer, Nancy E. Weiss & Alan Hirsch, Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts, 78 VA. L. REV. 1689 (1992); JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FEDERAL COURTS (1995), reprinted in 166 F.R.D. 53, 81-99 (1995) (including a chapter entitled "Judicial Federalism"). In addition, a newsletter entitled The State-Federal Judicial Observer, published from 1993 to 1998 by the Federal Judicial Center and the National Center for State Courts, discussed these and other efforts. See The State-Federal Judicial Observer, http://www.fjc.gov/newweb/jnetweb.nsf/ pages/178 (last visited Nov. 27, 2001).
Back To Text250. See, e.g., U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 459-71 (1978) (discussing both the history and the Court's interpretation of the respective roles of the states and that of the Congress in compacts); id. at 479-83 (White, J., dissenting) (same); Christi Davis & Douglas M. Branson, Interstate Compacts in Commerce and Industry: A Proposal for "Common Markets Among States," 23 VT. L. REV. 133 (1998) (proposing three regions of the country in which states should develop regulations of securities and corporations to reduce trade barriers); Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 YALE L.J. 685 (1925) (calling for expanded attention to compacts and discussing the development of their use in relation to regional hydraulic energy supply).
Back To Text251. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 34-38 (1994) (denying Eleventh Amendment immunity to the Port Authority Trans-Hudson Corporation (PATH), a bistate body operating transportation systems in New York and New Jersey).
Back To Text252. See, e.g., Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problems of Permanency, 49 FLA. L. REV. 1, 8, 24-26 (1997) (identifying a "democratic tension" in compacts because, once they are approved by Congress, state governments are constrained in making changes and arguing that compact agencies are "remarkably unconcerned about popular needs and desires, even compared to state and federal agencies"). See generally JAMESON W. DOIG, EMPIRE ON THE HUDSON: ENTREPRENEURIAL VISIONS& POLITICAL POWER AT THE PORT AUTHORITY (2001) (providing history and analysis of the development of that interstate system).
Back To Text253. Whether state and federal power exists to incorporate international norms has spawned a good deal of debate. Compare Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2350-71 (1991) (tracing the historical roots of federal common-law authority, the retrenchment in the name of comity, and the resurgence of a judicial role in enforcing international norms in domestic courts), with Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997) (disagreeing with Koh's view). Implicit in my approach is that federal courts have common-law-making powers, which could be exercised with deference to state courts. While the federal judiciary should not see itself as specially disabled to engage in law application, state courts can also serve as points of contact between international norms and domestic law. See generally Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. PA. L. REV. (forthcoming 2001) (exploring the legality of multiple venues for the domestic application of international human rights law).
Back To Text254. See, e.g., Lorillard Tobacco Co. v. Reilly, 121 S. Ct. 2404, 2445 n.8 (2001) (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part) (complaining that the majority's construction of the statute preempting state tobacco regulation was in tension with the same majority's concern in Lopez for deference to state lawmaking); Egelhoff v. Egelhoff, 121 S. Ct. 1322 (2001) (holding that ERISA preempts a state law providing revocation upon divorce of a designation of a spouse as a beneficiary of nonprobate assets); id. at 1326 (Breyer, J., joined by Stevens, J., dissenting) (arguing that state and federal laws related to insurance and pension benefits could coexist).
Back To Text255. See David Halberstam, Comparative Federalism and the Issue of Commandeering, in THE FEDERAL VISION: LEGITAMCY AND LEVELS OF GOVERNANCE IN THE U.S. AND THE E.U. (Kalypso Nicolaidis & Robert Howse eds., forthcoming 2001) (detailing "commandeering" practices of Germany and the European Union and contrasting them with an anticommandeering precept emerging in United States law, and arguing that overlap as well as distinctions exist); Grainne de Burca, Reappraising Subsidiarity's Significance After Amsterdam (unpublished manuscript, on file with author). See generally David O'Keeffe, Exclusive, Concurrent, and Shared Competence, in THE GENERAL LAW OF E.C. External Relations, supra note 6, at 179 (examining the doctrine and texts delineating the competency of member states and the EU).
Back To Text256. See, e.g., William R. Pace & Mark Thieroff, Participation of Non-Governmental Organizations, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE, supra note 207, at 391 (describing the coordinated work of the 236 accredited NGOs in the negotiations for that court).
Back To Text257. General Review of Arrangements for Consultations with Non-Governmental Organizations: Report of the Secretary General, U.N. ESCOR, Open-Ended Working Group on the Review of Arrangements for Consultations with Non-Governmental Orgs., 1st Sess., Agenda Item 3, U.N. Doc. E/AC.70/1994/5 (1994); see also TWENTY-FIFTH UNITED NATIONAL ISSUES CONFERENCE, THE UNITED NATIONS SYSTEM AND NGOs: NEW RELATIONSHIPS FOR A NEW ERA (1994).
Back To Text258. See John Boli, World Authority Structures and Legitimatization, in CONSTRUCTING WORLD CULTURE: INTERNATIONAL NONGOVERNMENTAL ORGANIZATIONS SINCE 1995, supra note 184, at 267 (analyzing the relationships between international NGOs and nations, ranging from those working autonomously to those that work collaterally to those that "penetrate" and alter state power). See generally Dinah Shelton, The Participation of NGOs in International Judicial Proceedings, 88 Am. J. Int'l L. 611 (1994) (focusing on NGOs taking on the role of amici curiae in four permanent international courts).
Back To Text259. The litigation of New York v. United States, 505 U.S. 144 (1992), provides an example. The statute at issue, on disposal of nuclear waste, had been enacted at the behest of the national organization of state governors, who had drafted and lobbied for its passage. Subsequent political problems within New York made difficult compliance with rules on locating disposal sites for low-level nuclear waste and entering into compacts with other states to do so. See id. at 154. One state's complaint was thus able to enlist the Supreme Court in undoing a bargained-for legal regime, as discussed in Justice Stevens's dissent. Id. at 213 (Stevens, J., dissenting). Missed there, as it was in Morrison, was the opportunity to develop doctrine on whether federal courts ought to be more reluctant to act in the name of federalism when congressional action is based on demands from specific kinds of state actors representing a majority of states.
Back To Text260. See, e.g., Brief for the United States at 23, United States v. Morrison, 523 U.S. 598 (2000) (Nos. 95-5, 99-29), 1999 WL 1037259.
Back To Text261. A parallel critique challenges the assumption that the "national" will be receptive to international human rights norms. See, e.g., Thomas M. Franck, Dr. Pangloss Meets the Grinch: A Pessimistic Comment on Harold Koh's Optimism, 35 HOUS. L. REV. 683 (1998).
Back To Text262. See Spiro, supra note 221, at 571-72 (arguing that states are frequent violators of human rights, with examples of police brutality, prison conditions, and the death penalty). See generally Breard v. Greene, 523 U.S. 371 (1998) (declining to stop a state execution challenged on grounds of violation of international law because of procedural default on the claim).
Back To Text263. C. Saskia Sassen, Toward a Feminist Analytics of the Global Economy, 4 IND. J. GLOBAL LEGAL STUD. 7, 27-28 (1996) (arguing that transnational migrations may be a means by which women gain authority, both within households and beyond, and hence that some global trends have empowered certain groups of women). See generally CHRISTA WICHTERICH, THE GLOBALIZED WOMAN 1-33 (Patrick Camiller trans., Zed Books 2d ed. 2000) (1998) (arguing the economic injuries that flow from globalization). The complexity of globalization for women is also examined in Carla Freeman, Is Local:Global as Feminine:Masculine? Rethinking the Gender of Globalization, 26 SIGNS 1007 (2001).
Back To Text264. See Helen Durham, Women and Civil Society: NGOs and International Criminal Law, in 3 WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW, supra note 191, at 819 (2001).
Back To Text265. See, e.g., Bob Reinalda, Dea Ex Machina or the Interplay Between National and International Policymaking: A Critical Analysis of Women in the European Union, in SEX EQUALITY POLICY IN WESTERN EUROPE, supra note 194, at 197 (analyzing the inability to move beyond formal gender equality models).
Back To Text266. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991); Rivera, supra note 92, at 491-509.
Back To Text267. For example, what gender meant was a point of contention in the framing of provisions of the International Criminal Court. According to Steains, the text leaves open the possibility of inclusion of sexual orientation as a form of impermissible persecution but does not so specify because some states would not agree to that express prohibition. Steains, supra note 207, at 370-74.
Back To Text268. See, e.g., John Valery White & Christopher L. Blakesley, Women or Rights: How Should Women's Rights Be Conceived and Implemented?, in 2 WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW, supra note 191, at 51 (2000) (registering disappointment at enforcement of women's rights and advocating better standards for implementation of CEDAW); see also NUSSBAUM, supra note 182, at 24-31 (discussing India's "very woman-friendly" constitution but a "reality" of great inequality, citing examples including rape, child marriage, child labor, and violence).
Back To Text269. Press Briefing on Optional Protocol to Convention on Elimination of All Forms of Discrimination Against Women (Dec. 10, 1999) (on file with author); see also Hilary Charlesworth, Christine Chinkin & Shelly Wright, Feminist Approaches to International Law, 85 AM. J. INT'L L. 613, 631-33 (1991) (discussing the significance of those reservations); William A. Schabas, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, 3 WM. & MARY J. WOMEN & L. 79 (1997) (detailing the reservations to both treaties and the problems that such reservations entail).
Back To Text270. One mechanism is a state-to-state complaint, brought to the International Court of Justice. Another is a system of reports, in which member states take on the obligation to study and report on their own implementation efforts. A committee, comprised of twenty-three members, receives the reports and then engages in an exchange with the reporting state about the achievements and problems. Convention on the Elimination of All Forms of Discrimination Against Women, supra note 167, arts. 17, 18, 1249 U.N.T.S. 21, 22; see also Assessing the Status of Women, supra note 218. The Committee's limited staff and significant workload is detailed by member Dame Silvia Cartwright in The Committee on the Elimination of Discrimination Against Women, in 2 WOMEN AND INTERNATIONAL HUMAN RIGHTS, supra note 191, at 165-81 (2000). Some states that have signed CEDAW had not, as of 1998, filed reports; others have provided stale information. Valerie A. Dormady, Status of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1998, 33 INT'L LAW. 637 (1999).
A third implementation mechanism is of more recent vintage and as of this writing has yet to be used. By December 2000, a sufficient number of countries had ratified an "optional protocol" to bring into effect the provision that, after exhausting available internal remedies, women may bring complaints directly to the CEDAW committee. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, U.N. GAOR, 54th Sess., Agenda Item 109, U.N. Doc. A/RES/54/4 (1999). See also Women's Charges To Be Heard Now in U.N., N.Y. TIMES, Dec. 22, 2000, at A13; U.N. DEP'T OF ECOM. & SOC. AFFAIRS, THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN: THE OPTIONAL PROTOCOL: TEXT AND MATERIALS 1-2, 6-7, 110-18, U.N. Sales No. E.00.IV.2 (2000) (detailing the process and also stating in Article 17 that any member state signing this protocol may not impose reservations).
Back To Text271. Testing the effects of CEDAW requires a metric; for example, some argue that CEDAW has empowered NGOs concerned with women's rights in their work both transnationally and within countries. See Afsharipour, supra note 208, at 146-70 (discussing noncompliance while maintaining optimism about the progress made through pressure from women's NGOs).
Back To Text272. See Inglis, supra note 208, at 114-18 (describing the "extreme gender imbalance in positions of power" in the United Nations); Charlesworth et al., supra note 269, at 622-30 (detailing such problems in United Nations-based activities, as well as the normative structures of international law that make equality work difficult).
Back To Text273. See Sabine Lang, The NGOization of Feminism: Institutionalization and Institution Building Within the German Women's Movements, in TRANSITIONS, ENVIRONMENTS, AND TRANSLATIONS: FEMINISMS IN INTERNATIONAL POLITICS 101, 116 (Joan W. Scott, Cora Kaplan & Debra Keates eds., 1997) (describing the use of NGOs to channel women into "local contexts, the tertiary sector, and the feminist social service and job market," putting them at the margins of political decisionmaking); Deborah Mindry, Nongovernmental Organizations, "Grassroots," and the Politics of Virtue, 26 SIGNS 1187 (2001) (examining NGO work in South Africa and finding both transformation of traditional gender and racial politics as well as enduring residues of colonialism). See generally FEMINISTS DOING DEVELOPMENT (Marilyn Porter & Ellen Judd eds., 1999) (providing case studies of efforts to enhance women's economic wherewithal); BISHWAPRIYA SANYAL, COOPERATIVE AUTONOMY: THE DIALECTIC OF STATE-NGOs RELATIONSHIP IN DEVELOPING COUNTRIES (Int'l Inst. for Labour Studies, Research Series No. 100, 1994) (analyzing the multiple relationships between NGOs and states and the structural attributes of effective NGOs).
Back To Text274. This is an approach suggested by Harold Koh. See Koh, Bringing International Law Home, supra note 9.
Back To Text275. See DE BÚRCA, supra note 6 (addressing this issue in the context of the European Union); de Búrca, supra note 255 (arguing that the legal formulation of exclusive competence in the EU system is not helpful because it addresses only two levels of authority - the European Community and the Member State - and because it relies on efficiency over other criteria for determining the proper level of decisionmaking).
Back To Text276. JEAN-MARIE GUEHENNO, THE END OF THE NATION-STATE. (Victoria Elliott trans., Univ. of Minn. Press 1995) (1993).
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