Author Archives: Colin Miller

The Loss of Sexual Innocence: Supreme Court of Guam Finds Trial Court Erred in Limiting Cross-Examination of Child Rape Victim

A defendant is on trial for criminal sexual conduct based upon acts that he allegedly committed against a 10 year-old victim. Previously, a forensic examination of the alleged victim revealed scar tissue on her hymen. Before trial, the defendant failed … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

Taking Exception: Is Evidence of Prior Oral Sex by 15 Year-Old Victim Admissible in Prosecution of 38 Year-Old?

A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary | Comments Off

The Vermont Frat Questionnaire & The Foreseeability of Stranger Rape Based Upon Increased Acquaintance Rape at a College

If I could rape someone, who would it be? This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let’s say that the university took no … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

The Only Exception: Arkansas Case Reveals Danger Of State’s Undifferentiated Rape Shield Exception

Like many state counterparts, Federal Rule of Evidence 412(a), the Federal Rape Shield Rule, precludes the admission of evidence of an alleged victim’s prior sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

Touching a Nerve?: 8th Circuit Finds ALJ’s Comment About Touching A Feminist’s Nerve Didn’t Constitute Reversible Bias

[A]fter Perkins testified that her daily routine includes watching the Lifetime channel, the ALJ asked, “And what is the subject matter of that? That’s the girl channel.”…Perkins responded, “Women’s channel.”…The ALJ then stated, “All right. I’m glad our [vocational expert] … Continue reading

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Posted in Courts and the Judiciary, Women's Health | Comments Off

A Picture Is Worth A Thousand Words: Court Of Appeals of Iowa Fails to Resolve Whether Facebook Photos Trigger Rape Shield Rule Analysis

Similar to its federal counterpart, Iowa Rule of Evidence 5.412a, Iowa’s rape shield rule, Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

The Oh in Ohio: Court of Appeals of Ohio Shockingly Concludes Rape Shield Rule Doesn’t Cover Nonconsensual Sexual Activity

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, “our paramount concern is the legislative … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

Topeka Misdemeanor Domestic Battery Cases to be Prosecuted by Law Student Interns

In my last post about the Topeka imbroglio, I wondered how vigorously the County DA would prosecute misdemeanor domestic battery cases after the city of Topeka dicriminalized misdemeanor domestic battery and forced the County DA’s hand (by his own admission). … Continue reading

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Posted in Acts of Violence, Courts and the Judiciary | 1 Comment

Topeka Officially Decriminalizes Misdemeanor Domestic Battery

Earlier today, the Topeka City Council, by a vote of 7-3, repealed the local law that makes misdemeanor domestic battery a crime. The move, the councilors were told, would force District Attorney Chad Taylor to prosecute the cases because they would remain … Continue reading

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Placing Topeka’s Possible Decriminalization of Misdemeanor Domestic Battery in Historical Context

After my previous post on the possibility of Topeka decriminalizing misdemeanor domestic battery, I decided to do some research to see if there is any historical precedent for such an action. It turns out that there is (sort of). In … Continue reading

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Posted in Acts of Violence, Courts and the Judiciary | Comments Off

Topeka City Council to Vote on Measure to Decriminalize Misdemeanor Domestic Battery

Here are some excerpts from the article, Suspected domestic abusers go free as Topeka city, council officials bicker over funds: A bitter argument over money in Topeka, Kan., means that city and county authorities have neglected to prosecute or charge … Continue reading

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Posted in Acts of Violence, Courts and the Judiciary | Comments Off

Does an Aggravating Factor Based on “a Difference in the Sexes of the Victim and the Defendant” Violate Equal Protection?

Following up on my previous post, here is another interesting case in a similar vein: State v. Wright, 563 S.E.2d 311 (S.C. 2002). In Wright, Todd Wright was convicted of criminal domestic violence of a high and aggravated nature. One of … Continue reading

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Posted in Acts of Violence, Courts and the Judiciary | 1 Comment

Does a Law Punishing More Severely a Male’s Assault of a Female Violate Equal Protection?

Eugene Volokh has an interesting post up over at The Volokh Conspiracy. The post discusses G.S. § 14-33(c)(2), which provides that Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, … Continue reading

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Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used as Place Of Prostitution Inadmissible Under Rape Shield Rule

Like all states, Wisconsin has a rape shield rule. Under Wisconsin’s rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes, any evidence concerning the complaining witness’s prior sexual conduct or opinions of the witness’s prior … Continue reading

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Breaking Bad: District of Vermont Deems Detention of Pregnant Passenger in Need of Bathroom Break Reasonable So Female Officer (Who Never Took Her to the Bathroom) Could Arrive

Authorities believe that a a vehicle contains narcotics. They detain a passenger and call for a narcotics dog. The dog arrives 45 minutes later. Another 20-30 minutes pass, and the authorities still haven’t conducted the canine sniff. The passenger confesses. … Continue reading

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Posted in Courts and the Judiciary | 1 Comment

Can You Hear Me?: Court of Appeals of Texas Finds Failure to Hold In Camera Rape Shield Hearing Isn’t Reversible Error

Similar to its federal counterpart, Texas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule, the defendant must inform the court out of the hearing of … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary | Comments Off

A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule

Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim’s sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | 1 Comment

Everything But The Girl: Northern District Of Indiana Opinion Sharpens Split Over Nature Of Affirmative Defense In Single-Instance Harassment Cases

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | Comments Off

Gettin’ (Un)Lucky in Kentucky: Court of Appeals of Kentucky Finds Trial Court Erred in Excluding Evidence That Alleged Victim Was a “Crack Whore”

Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant’s defense is, essentially, that the alleged victim is a “crack whore.” Should the defendant be able to present evidence of the alleged victim’s … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | 2 Comments

When Innocence Is Pink: Why There Is A Gender Gap In Exonerations of the Wrongfully Convicted and Efforts That Might Shrink It

There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, “There have been 271 post-conviction DNA exonerations in United States history.” The Innocence Project has profiles of each of the exonerees … Continue reading

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Posted in Courts and the Judiciary, Feminism and Law, Feminism and Science | Comments Off

As Judge Nancy Gertner Retires, We Lose One of Our Greatest Judges But Gain One of Her Greatest Opinions

Judge Nancy Gertner kicks ass. I remember writing a motion in limine regarding the admissibility of virtual reality evidence for the annual mock technology trial when I was a student at William and Mary. Judge Gertner served as the judge … Continue reading

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Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | Comments Off

Exception(al) Opinion: Supreme Court of Montana Opinion Might Mean Montana Has Broadest Abuse Exception to Court-Ordered Mediation

Mediation in child custody determinations is popular, partly due to the mediation principle of neutrality, which theoretically gives both parents an equal chance at a fair allocation of parenting time. However, not all divorce cases are appropriate for mediation. In severe cases of intimate partner violence there are … Continue reading

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Posted in Acts of Violence, Courts and the Judiciary | 1 Comment

Article of Interest: Kerri L. Stone’s Clarifying Stereotype

Federal Rule of Evidence 801(d)(2)(E) provides that “[a] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E) is based … Continue reading

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Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminist Legal Scholarship | Comments Off

(Non)Consenting Adults: Illinois Opinion Finds Adultery Is Serious Provocation, Sexual Assault Is Not

I’m currently teaching 2nd degree murder in my Criminal Law class and was looking for a good Illinois case on the subject. In Illinois, a defendant who could otherwise be convicted of 1st degree murder can be convicted of 2nd … Continue reading

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Should Courts Award Child-Rearing Damages for “Wrongful Birth” in Cases of the Rape of a Minor?

The issue of whether there should be a right to abortion in cases of rape has arisen again in response to comments by teen sensation Justin Bieber. The 16 year-old pop star was asked about abortion in rape cases, and … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary, Reproductive Rights | 1 Comment

There’s No Sex in Your Violence: Opinion Reveals Minnesota Only Allows Hostile Work Environment Claims Based On Sexual Harassment, Not Gender Discrimination

A female employee brings an action against a school district under the Minnesota Human Rights Act (MHRA), alleging hostile work environment based upon gender discrimination. The gravaman of her complaint is that her male supervisor made sexist statements about the … Continue reading

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Posted in Acts of Violence, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace, Sexual Harassment | Comments Off

The “Inevitable Firing” Approach: How The Inevitable Discovery Doctrine Should Inform Subordinate Discrimination Cases

A company fires an employee. The employee files an action against the company, alleging that the firing was discriminatory. The company moves for summary judgement dismissing the complaint. The fired employee has no direct evidence that the supervisor who fired … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | Comments Off

What Kind Of Right?: Court of Appeals of Michigan Finds Rape Shield Rule Vests Rights In Victims

MCL 750.520j, Michigan’s rape shield statute, provides that: (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted … unless and only … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary | 1 Comment

Article of Interest: Josephine Ross’ Blaming the Victim: ‘Consent’ Within the Fourth Amendment and Rape Law

It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements:   First, courts interpreted the element of force to require that the man overpower the woman or … Continue reading

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Posted in Academia, Feminist Legal Scholarship | 1 Comment

As Seen on TV?: SDNY Finds Social Framework Testimony Wouldn’t Help Jurors Because Gender Stereotypes are Exposed on Sitcoms & News Reports

Moreover, the Court agrees with the Minnesota Court of Appeals’ reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida’s testimony because the … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | 2 Comments

The Wonder State: Eastern District of Arkansas Finds Serious Flaw With Arkansas’ Rape Shield Rule

This Court views the case as illustrating a serious flaw in Arkansas’s criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary | Comments Off

Northern District of California Permits Defendants to Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15

A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school.  Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

Demonstrably Durable: Indiana Case Reveals Indiana Courts Still Recognize Demonstrably False Accusation Exception To Rape Shield Rule

"Under common law, evidence of prior false allegations of sexual misconduct is admissible if the allegation was demonstrably false and similar to that with which the defendant was charged, or if the complaining witness has admitted that the prior accusation … Continue reading

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Invasion of Privacy: Court of Appeals of Texas Finds Trial Court Properly Excluded Evidence of Alleged Victim’s Prior Nonconsensual Sexual Acts Under Rape Shield Rule

Texas Rule of Evidence 412(a) provides that In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim … Continue reading

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Legally Blind Grading: Do Class Participation Docks and Boosts Unfairly Disadvantage Female and Minority Students?

I’ve been doing a series of guest posts (here,  here,  here, and  here) over on  PrawfsBlawg concerning what I refer to as “legally blind grading” in law school, i.e., the grading process under which law professors are deprived of information … Continue reading

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Posted in Law Teaching | 2 Comments

The Rape Sieve Rule?: According to Dissent, Opinion Abrogates Every Rape Shield Statute in the Sixth Circuit

Some 35 years ago, the Michigan state legislature determined that a criminal defendant accused of rape may not introduce evidence about the victim’s past sexual behavior, because the victim’s past willingness is not relevant to the question of present consent. … Continue reading

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Residual Value: Nevada Case Reveals Potential Usefulness of Residual Hearsay Exception to Gender and Race Discrimination Plaintiffs

Federal Rule of Evidence 807 provides an exception to the rule against hearsay for A statement not specifically covered by Rule 803 or  804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | Comments Off

You’re Speaking My Language: United States Court of Appeals for the Armed Forces Finds “mmmm-mmmm-mmmm” Constitutes “Indecent Language” in Court-Martial Appeal

You are a military judge. According to a female Marine, one day she was working in an ammunition magazine with a United States Marine Corps Corporal when she began to “freak out” upon discovering that she had a bug on … Continue reading

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Posted in Cat lady post, Feminism and the Arts, Sexism in the Media | 2 Comments

The Sexual Innocence Inference Theory: Fact or Fiction? A Spotlight on the Special Concurrence In the Court of Appeals of Idaho’s Recent Opinion in State v. Molen

You are a juror in the prosecution of a step-grandfather for lewd conduct with a minor, the minor being his eight or nine year old step-granddaughter, with whom he allegedly had genital-to-genital contact. The step-granddaughter has just testified to sexual … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary | 3 Comments

Article of Interest: Diversity and Discrimination: A Look at Complex Bias by Minna Kotkin

Back in September, I posted an entry about the Seventh Circuit’s failure to recognize a “sex plus” or “gender plus” theory of discrimination in its recent opinion in Coffman v. Indianapolis Fire Dept., 2009 WL 2525762 (7th Cir. 2009), a … Continue reading

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Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace, Feminist Legal Scholarship | Comments Off

Article of Interest — A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions by Professors Hart and Secunda

Over the past half-century it has become commonplace for courts and commentators to distinguish two uses of social science in law. Social science is said either to prove ‘legislative facts’ that concern general questions of law and policy, or to … Continue reading

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Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | 2 Comments

The Wrong Stuff: Middle District of Florida Seemingly Revives Narrow, Pre-Burlington Reading of Title VII’s Antiretaliation Provision in Action Against NASA

You are an employee at NASA at the Kennedy Space Center (KSC). In 2004, you file an informal complaint with the EEOC for discrimination and harassment, alleging that your superior sent e-mails to you and others in your department containing … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | 1 Comment

But It Was Only A Fantasy: North Carolina Opinion Reveals Troubling Exception to the State’s Rape Shield Rule

Rape shield rules prevent the defendant from presenting evidence regarding the alleged victim’s other sexual behavior and sexual predisposition to prove that she consented to the sexual act at issue. Typically, these rules contain three exceptions. First, a defendant can … Continue reading

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Posted in Coerced Sex, Courts and the Judiciary | Comments Off

You’ve Got Mail: Eastern District of Pennsylvania Finds Plaintiff’s E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule

A woman sues her employer, claiming, inter alia, sexual harassment based on an arguably hostile work environment. Specifically, she claims that her superior stared at her breasts on two separate occasions and made the following comment to her, with regard … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | 5 Comments

The Wal-Mart Effect: Supreme Judicial Court of Massachusetts Reinstates Punitive Damages Award in Gender Discrimination Action Against Wal-Mart

A plaintiff brings an action against her former employer for discrimination. That action seeks punitive as well as compensatory damages. The plaintiff does not have evidence that the employer acted with knowledge that its conduct violated the terms of the … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | 2 Comments

The Devil is in the Dictum: Second Circuit Makes Troubling Statements in Dictum in Rape Shield Ruling

A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, … Continue reading

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Posted in Courts and the Judiciary, Feminism and the Workplace, Sexual Harassment | 1 Comment

Rape Shield Redux: Supreme Court of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn’t

Back in July, I posted an entry about an opinion by the Supreme Court of Alabama permitting discovery regarding a civil plaintiff’s sexual history because Alabama’s rape shield rule only applies to criminal cases. In that post, I argued that, … Continue reading

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Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary | Comments Off

No “Sex Plus” in the Seventh Circuit: Court Fails to Recognize “Sex Plus” Theory of Discrimination in Title VII Action Against Fire Department

A female firefighter has direct or circumstantial evidence that she was intentionally discriminated against based upon he gender. Undoubtedly, if she brings a Title VII action against the fire department, her action will survive a motion for summary judgment. But … Continue reading

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Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace | Comments Off

What Not to Wear, Religious Edition, Take 2: Supreme Court of Michigan Finalizes Attire Rule of Evidence, With Lawsuit to Follow

Back in June, I posted  an entry about the Supreme Court of Michigan’s adoption of an amendment to Michigan Rule of Evidence 611  which provides as follows: (b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over … Continue reading

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Posted in Courts and the Judiciary, Feminism and Religion | Comments Off

There’s Something About Marriage: New York Trial Court Uses Differences Between a Marriage and a Civil Union to Refuse to Dissolve the Latter

“Civil union” means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses. -Vermont Stat. Ann., Title 15, Section 1201(2) (a) Parties to … Continue reading

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Posted in Courts and the Judiciary, Feminism and Families, LGBT Rights | 5 Comments