ESSAY: Categorical Federalism: Jurisdiction, Gender, and the Globe
United States v. Morrison, 529 U.S. 598, 617-18 (2000) (holding unconstitutional the civil rights remedy of the Violence Against
42 U.S.C. 13981 (1994)).
n2. 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).
n3. Linda B. Smith
& Larissa K. Samuelson, Perceiving and Remembering: Category Stability,
Variability and Development, in Knowledge, Concepts and Categories 161, 170
& David Shanks eds., 1997) (reporting that
"people appear able to create categories on the spot").
n4. Richard Nisbett
& Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment 33,
167-92 (1980) (discussing theory maintenance and change and how categories are
maintained despite data that ought to undermine their deployment).
n5. 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).
n6. Other federations sometimes speak of the problem of parallel and shared
"competence." For discussions of current European responses, see generally The General Law
of E.C. External Relations (Alan Dashwood
& Christophe Hillion eds., 2000); and Grainne de Burca, Setting Constitutional
Limits to EU Competence? (European Univ. Inst., Robert Schuman Centre Forum
n7. 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
Id. at 2440 (Stevens, J., dissenting, joined by Ginsburg, Breyer, and Souter, JJ.); see
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).
n8. 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).
n9. 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
106 Yale L.J. 2599 (1997) (focusing on national participation in transnational processes).
n10. See, e.g., Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship
in U.S. History (1997).
n11. 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.
"The Rule of Love": Wife Beating as Prerogative and Privacy,
105 Yale L.J. 2117 (1996).
18 U.S.C. 2262, 2265 (1994);
42 U.S.C. 3796gg, 10416 (1994).
42 U.S.C. 13981 ("It is the purpose of this part to protect the civil rights of victims of gender
motivated violence ... .").
n14. 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).
n15. 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).
n16. See, e.g., H.R. Conf. 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).
514 U.S. 549 (1995).
Id. at 561-63.
n19. See, e.g., Charles Fried, The Supreme Court, 1994 Term - Foreword:
109 Harv. L. Rev. 13, 37-42 (1995) (describing
"the modesty of the Court's work" in Lopez).
514 U.S. at 564.
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.
Katzenbach v. McClung, 379 U.S. 294, 302-03 (1964);
Heart of Atlanta Motel v. United States, 379 U.S. 241, 252-62 (1964).
n23. 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.
n24. 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.
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
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).
Morrison, 529 U.S. at 615-16.
Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820, 842-43, 896 (4th Cir. 1999) (en banc).
n28. 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).
n29. Id. at 785;
Brzonkala, 169 F.3d at 830.
n30. See Law Professors' Amici Brief, supra note 21, at 3-15.
42 U.S.C. 13981(e)(4) (1994) (altering the effects of
28 U.S.C. 1367).
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,
Means-Ends Constraints on Section 5 Powers, 53 Stan. L. Rev. 1127 (2001); and Post
& Siegel, supra note 25.
United States v. Morrison, 529 U.S. 598, 613 (2000).
n35. The phrase appeared in a few Supreme Court decisions before Morrison. See,
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").
n36. 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).
n37. See, e.g., Gary S. Becker, A Treatise on the Family (2d ed. 1991).
n38. 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 -
"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").
n39. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal
96 Harv. L. Rev. 1497 (1983).
n40. 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
n41. See Mary Ritter Beard, Woman's Work in Municipalities (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
n42. 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").
n43. 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).
n44. 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 Anthropology 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
Caminetti v. United States, 242 U.S. 470 (1917).
n46. 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").
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.
n48. 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).
n49. 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:
"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).
n50. 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
n51. 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
n52. 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.").
n53. 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.
Id. at 110.
n55. See Margaret T. Gordon
& Stephanie Riger, The Female 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.
n56. 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
n57. Recall the Court's view in 1895 that
"the 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
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.
n58. Others make a different claim, that the ambiguity and breadth of the category
"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
18 U.S.C. 228 (1994), amended by Deadbeat Parents Punishment Act of 1998, Pub. L. No.
105-187, 112 Stat. 618.
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.
n61. 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).
n62. Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case
Study in Controlling Federalization,
75 N.Y.U. L. Rev. 893, 948 (2000).
n63. 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).
United States v. Faasse, 227 F.3d 660, 664 (6th Cir. 2000) (holding the 1992 statute unconstitutional because it imposed liability not
"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
"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.
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.
n66. 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).
42 U.S.C. 602(a)(26) (1994). The pressures to comply are substantial. See Anne Case, I-Fen
& Sara McLanahan, Understanding Child Support 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).
n68. 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).
n69. 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).
Faasse, 2001 WL 1058237, at 24 n.1 (Batchelder, J., dissenting).
n71. Id. at 23 (stating that the
"Act emasculates the states' ability to assign social and other costs to the
disobedience of child support orders").
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).
n73. See, e.g.,
United States v. Kallestad, 236 F.3d 225, 228 (5th Cir. 2000).
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)).
317 U.S. 111 (1942).
Kallestad, 236 F.3d at 230 (distinguishing the
"rape at issue in Morrison"). A dissenter protested that:
This 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
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).
Kallestad, 236 F.3d at 229. That court relied on the commercial nature of the activity because, in its
"jurisdictional hook" - interstate transactions - was insufficient alone to support the statute's
Gibbs v. Babbitt, 214 F.3d 483, 487 (4th Cir. 2000), cert. denied sub nom.
Gibbs v. Norton, 121 S. Ct. 1081 (2001).
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).
Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999) (en banc).
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.
n82. Id. at 493 (majority opinion).
n83. Id. at 494.
n84. 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.
n85. Id. at 500.
n86. 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.
n87. Justice Thomas has advocated returning to this conception. See
United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring).
Hoke v. United States, 227 U.S. 308, 322 (1912).
Caminetti v. United States, 242 U.S. 470, 492 (1916) (quoting
Hoke, 227 U.S. at 323).
n90. See, e.g., David J. Langum, Crossing over the Line: Legislating Morality and
the Mann Act 139-97 (1994).
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
Murphy, 114 U.S. at 28-29.
n92. 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
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.
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).
n95. 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).
n96. Alexander M. Bickel
& Benno C. Schmidt, Jr., The Judiciary and Responsible Government, 1910-1921, at
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).
n98. 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
18 U.S.C. 2265 (1994).
n100. 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).
n101. 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
"crimes 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
"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
"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).
n102. 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
56 U. Chi. L. Rev. 671 (1989).
n103. 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 Citizenship in 20th-Century America (2001); Alisa
Klaus, Every Child a Lion: The Origins of Maternal and Infant Health Policy in
the United States and France, 1890-1920 (1993); Suzanne Mettler, Dividing
Citizens: Gender and Federalism in New Deal Public Policy (1998); Theda
Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social
Policy in the United States 7-55 (1992); Katharine T. Bartlett, Feminism and
33 Fam. L.Q. 473 (1999).
n104. 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).
n105. 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. McCaffery, Taxing
Women (1997); Nada Eissa
& Hilary 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).
n106. 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).
n107. Teresa A. Sullivan, Elizabeth Warren
& Jay Lawrence Westbrook, The Fragile Middle Class 175 (2000) [hereinafter
Sullivan et al., The Fragile Middle Class]; see also Teresa A. Sullivan,
& Jay Lawrence Westbrook, As We Forgive Our Debtors: Bankruptcy 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).
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).
n109. 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
"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. Rev. 921 (1998).
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
n111. See, e.g., Women, the Family, and Policy (Esther Ngan-ling Chow
& Catherine White Berheide eds., 1994).
n112. Skocpol, supra note 103, at 525-39. Linda Gordon agrees, but then asks why
"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).
n113. Skocpol, supra note 103, at 304, 374, 480-81.
n114. 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).
n115. 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
4 Chap. L. Rev. 1 (2001) (urging revisiting of both issues).
n116. 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
n117. 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).
n118. Gordon, supra note 112, at 18 (stating that 9% of children lived with one
parent in 1900 and 9.1% did so in 1960).
n119. Id. at 19.
n120. Id. at 20.
n121. 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.
n122. 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).
n123. 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.
n124. 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).
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).
n126. 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
"it has been estimated that if delinquent parents fully paid up their child
support, approximately 800,000 women and children could be taken off the
n127. 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 Woman's
Wage: Historical Meanings and Social Consequences 57-80 (1990) (exploring the
gendered meanings of family
n128. Chambers, supra note 117, at 2583-84.
n129. 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).
n130. 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
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.
& 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.
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
n132. 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
"the trilogy of marriage, divorce, and no remarriage ... correlates with
n133. 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).
n134. 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.
n135. 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].
n136. 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)).
n137. 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).
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 ... receives assistance payments ... funded ... in part ... by the
Federal Government." S. Rep. No. 92-1230, at 859 (1972).
n139. 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).
n140. See, e.g., Chambers, supra note 117, at 2584, 2588-605; id. at 2588 (noting
"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.
& 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).
n141. 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
n142. 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 States 17, 63; 1967
Reports of the Proceedings of the Judicial Conference of the United States 21,
68-69; 1971 Reports of the Proceedings of the Judicial Conference of the United
States 80; 1977 Reports of the Proceedings of the Judicial Conference of the
United States 53; 1992 Reports of the Proceedings of the Judicial Conference of
the United States 57. Similarly, the Judicial Conference initially objected to
enactment of the civil rights remedy in VAWA. See Resnik, supra note 92, at
n143. 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).
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. 845 (1992) (discussing the intractability in a federated system of the problem generated
by conflicting laws on child custody, and criticizing statutory and judicial
n145. 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
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
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
n146. 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.
n147. 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.
n148. 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).
530 U.S. 57 (2000).
n150. 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.
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.").
n152. 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).
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).
n154. 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).
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).
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).
N.J. Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973);
Levy v. Louisiana, 391 U.S. 68 (1968).
n158. 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).
n159. 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).
& Sorensen, supra note 140, at 45.
n161. Linda Henry Elrod, Epilogue: Of Families, Federalization, and a Quest for
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).
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).
n163. 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
46 Hastings L.J. 1029, 1061-70 (1995); John C. Jeffries, Jr.
& John Gleeson, The Federalization of Organized Crime: Advantages of Federal
46 Hastings L.J. 1095 (1995); Daniel C. Richman, The Changing Boundaries Between Federal and Local Law
2 Crim. Just. 81 (2000).
n164. 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).
n165. 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).
n166. G.A. Res. 217A, U.N. Doc. A/810 (1948); see Mary Ann Glendon, A World Made
New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001).
n167. 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.
n168. 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).
n169. 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. Dep't 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).
n170. 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.
n171. 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.
n172. See Louis Henkin, The Age of Rights 76-77 (1990) (discussing the United
"deep isolationism" and fear of importing human rights).
n173. UNICEF, Domestic Violence Against Women and Girls (United Nations Children's
Fund Innocenti Research Ctr., Innocenti Digest No. 6, 2000),
n174. Id. at 2.
n176. Id. at 3. While violence against women crosses cultural lines, the grounds and
sources of injury reflect cultural patterns. See Lama Abu-Odeh, Comparatively
"Honor" of the
"East" and the
"Passion" of the
1997 Utah L. Rev. 287.
n177. 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").
n178. Id. at 8.
n179. 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.
n180. Ruth Bader Ginsburg
& Deborah Jones Merritt, Affirmative Action: An International Human Rights
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 as Freedom
191-203, 217-18, 225 (1999) (elaborating the relationship among women's
educational levels, fertility rates, and women's economic, social, and
& Merritt, supra note 180, at 257.
n182. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 1
n183. See Leila J. Rupp, Worlds of Women: The Making of the International Women's
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).
n184. See Nitza Berkovitch, The Emergence and Transformation of the International
Women's Movement, in Constructing World Culture: International Nongovernmental
Organizations Since 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 Disparities (Michael
Likosky ed., forthcoming 2001).
& Merritt, supra note 180, at 273-81.
n186. 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 Nations 77 (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.
n187. 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).
n188. 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
"to 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.
n189. 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.
n190. General Recommendation 19: Violence Against Women, Committee on the
Elimination of Discrimination Against Women, 11th Sess., at 5, U.N. Doc.
n191. Declaration on the Elimination of Violence Against Women, supra note 168;
& 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).
n192. Mariagrazia Rossilli, Introduction: European Union's Gender Policies, in
Gender Policies in the European Union 1, 18 (Mariagrazi Rossilli ed., 2000).
n193. No<um e>lle Lenoir, The Representation of Women in Politics: From Quotas to Parity in
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).
n194. 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
& Michael Keating eds., 1998); Pippa Norris, Equality Strategies and Political
Representation, in Sex Equality Policy in Western Europe 46 (Frances Gardiner
n195. See Better for Women, Better for All: Fourth Report of the United Kingdom of
Great Britain 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").
n196. 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
22 Fordham Int'l L.J. 1696, 1699-1701 (1999) (examining efforts at enhancing equality).
n197. 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
"women remain the overwhelmingly dominant group among those taking leaves").
n198. 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).
n199. See Deborah M. Figart
& Ellen Mutari, Degendering Work Time in Comparative Perspective: Alternative
Policy Frameworks, 56 Rev. Soc. Econ. 460, 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
Revolution at Home (1989).
n200. 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).
n201. 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
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.).
n202. 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.
& 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).
n204. See Rhonda Copelon, Gendered War Crimes: Reconceptualizing Rape in Time of
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 International Human 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).
n205. 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).
n206. 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.
n207. Cate Steains, Gender Issues, in The International Criminal Court: The Making
of the Rome 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
"committing 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
"gender violence and violence against children."
n208. See Steering Comm. for Equality Between Women
& Men, Council of Eur., The 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
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).
n209. 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
"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
United States v. Morrison, 529 U.S. 598, 617-18 (2000).
& Murphy, supra note 5, at 864 (discussing experiments attempting to locate the
role that background knowledge plays in influencing category representation).
n212. 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).
n213. 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." Tananbaum, supra, at 91.
n214. 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.
n215. See Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of
89 Am. J. Int'l L. 341 (1995); see also Tananbaum, 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
67 Chi.-Kent L. Rev. 515 (1991) (examining the general question of treaties' domestic application).
n216. 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).
n217. 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).
n218. See S. Exec. Rep. No. 103-38 (1994). The report states that:
The 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 Hearings, 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].
n219. 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").
n220. See 138 Cong. Rec. 8071 (1992) ("To 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.").
n221. Peter J. Spiro, The States and International Human Rights,
66 Fordham L. Rev. 567, 574-75 (1997).
n222. See Tananbaum, 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
n223. Patrick F. Fagan, How U.N. Conventions on Women's and Children's Rights
Undermine Family, Religion, and Sovereignty (Heritage Found., The Heritage
Foundation Backgrounder No. 1407, 2001),
n224. Id. at 2.
n225. Id. at 21.
n226. S.F., Cal., Admin. Code ch. 12K.1 (2001), http://www.amlegal.com/sanfran/.
n227. See S.F. Comm'n on the Status of Women and CEDAW Task Force, A Gender
Analysis: 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/cedaw<uscore>5.htm.
n228. Women's Inst. for Leadership Dev. for Human Rights, CEDAW Around the U.S., at
http://www.wildforhumanrights.org/cedaw<uscore>around<uscore>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).
530 U.S. 363 (2000).
Brief for Petitioner at 19-20, Crosby (No. 99-474), 2000 WL 35850.
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).
n232. 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
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
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).
n233. 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).
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).
n235. 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
n236. Skocpol, 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
n237. 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).
n238. 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).
n239. 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
n240. 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).
n241. 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.
n242. Theda Skocpol, The Tocqueville Problem: Civic Engagement in American
Democracy, 21 Soc. Sci. Hist. 455, 472 (1997).
n243. Vincent V. Thursby, Interstate Cooperation: A Study of the Interstate Compact
(1953); Frederick L. Zimmermann
& 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).
n244. 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).
n245. E.g., Port Authority of New York and New Jersey, N.J. Stat. Ann. 32:1-1 (West
& Supp. 2001); N.Y. Unconsol. Law 6401-6423 (McKinney 2000).
n246. 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
n247. 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).
n248. See Interstate Agreement on Detainers Act,
18 U.S.C. app. 1-9 (1994).
n249. 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).
n250. 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
"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
& James M. Landis, The Compact Clause of the Constitution - A Study in
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).
n251. 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).
n252. 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).
n253. Whether state and federal power exists to incorporate international norms has
spawned a good deal of debate. Compare Harold Hongju Koh, Transnational Public
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).
n254. 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).
n255. See David Halberstam, Comparative Federalism and the Issue of Commandeering,
in The Federal Vision: Legitimacy 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).
n256. 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).
n257. 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).
n258. 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
n259. 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.
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
n260. 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.
n261. 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
35 Hous. L. Rev. 683 (1998).
n262. 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).
n263. Cf. 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
n264. 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).
n265. 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).
n266. Kimberle 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.
n267. 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.
n268. 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).
n269. 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
& Mary J. Women
& L. 79 (1997) (detailing the reservations to both treaties and the problems
that such reservations entail).
n270. 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 Econ.
& 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).
n271. 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).
n272. 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).
n273. 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,
"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).
n274. This is an approach suggested by Harold Koh. See Koh, Bringing International
Law Home, supra note 9.
n275. See de Burca, supra note 6 (addressing this issue in the context of the
European Union); de Burca, 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).
n276. Jean-Marie Guehenno, The End of the Nation-State (Victoria Elliott trans.,
Univ. of Minn. Press 1995) (1993).