NewYorkUniversity
LawReview

Essays

2023

Time off Work for Menstruation: A Good Idea?: A Review of Menstruation Matters

Deborah A. Widiss

In February 2023, Spain became the first European country to guarantee “menstrual leave” for workers, joining several countries, mostly in East Asia, that have long done so. It has also become increasingly common for companies to offer paid time off to menstruators as a discretionary benefit. Reports on these developments are almost always accompanied by criticism from self-identified feminists voicing concern that the policies will spur discrimination against women or reinforce stereotypes about menstruators as incapable workers. This echoes earlier arguments over maternity leave.

In their groundbreaking book, Menstruation Matters, Bridget Crawford and Emily Waldman expose myriad ways in which workplaces can be inhospitable to menstruators, and they offer an extremely helpful introduction to the debate over menstrual leave. This Essay builds on their analysis to take a deeper dive into the issue. It argues that there are alternatives to leave that could address many of these problems without triggering the same concerns of backlash. These include effective enforcement of existing laws and regulations relating to restroom access, break time, and workplace accommodations for various health needs. Additionally, employers can provide free menstrual products in workplace restrooms to allows workers to handle periods with dignity—even when they start unexpectedly—and help destigmatize menstruation.  

Even if these practices become routine, some menstruators might need to miss work when experiencing severe menstrual symptoms. The Essay suggests that rather than seeking menstrual-specific leave, advocates might join forces with the burgeoning campaign to guarantee adequate paid sick days for all workers. Menstruation is not an illness, but most such laws are written broadly enough to meet menstruators’ needs. This universal approach, designed to support a broader swath of workers, would probably be easier to pass politically, and it would be far less likely to result in workplace discrimination against menstruators.

Schools, Safety, and Semantics: A Review of Menstruation Matters

Claudia Polsky

It is possible to menstruate for forty-six years without ever considering menstrual politics as a compelling intersectional sphere that embraces gender, race, class, health, and environmental concerns. It is not possible, however, to read Menstruation Matters: Challenging the Law’s Silence on Periods and fail to grasp the scope of the policy problems and opportunities that menstruation presents.

This Review presents one lawyer-activist-reader’s perspective on three distinct themes in the book: menstruation and education, the health and environmental aspects of menstruation, and menstrual politics as a site of intense semantic contestation. This grab sample of Menstruation Matters reflects my own areas of experience and expertise. It also demonstrates the book authors’ impressive range as they explore well beyond their core disciplines of tax and constitutional law to present a lucid and comprehensive picture of the diverse issues that periods implicate.

I share with the authors a hope that the ever-growing movement for menstrual equity provides proof of concept for an expansive vision of human dignity and flourishing that benefits all of its constituent movements.

Menstrual Justice in Theoretical Context: A Review of Menstruation Matters

Vivian Eulalia Hamilton

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In addition to exploring the theoretical lenses employed by the authors, this Essay suggests that other critical perspectives, including critical and global critical race feminism, might further elucidate the nature of the menstrual injustices the authors expose. This Essay posits that Menstruation Matters convincingly illustrates that feminist legal theory—comprising a whole variety of perspectives and approaches—is as relevant as ever.

Crawford & Waldman emphasize that menstrual equity is necessary to facilitate menstruators’ full participation in public life. The Essay suggests that this instrumental conception of menstrual equity may insufficiently recognize the inherent dignity of menstruators, irrespective of whether and how that equity enables their societal contributions. It suggests instead that menstrual equity is necessary and justified, not principally for any instrumental purpose, but simply because it affords menstruators the dignity to which they are entitled as full and equal members of society.

Critical Race Theory Explained by One of the Original Participants

Kevin Brown

President Donald Trump issued an executive order in September of 2020 seeking to exclude diversity and inclusion training from federal contracts if those trainings contained so-called “divisive concepts” like stereotyping and scapegoating based on race and sex. In the wake of the executive order, attacks on Critical Race Theory (CRT) skyrocketed.  However, many of these discussions have mischaracterized CRT. In this Essay, one of the participants of the original CRT workshop held in Madison, Wisconsin in the summer of 1989 provides a historical account of what CRT is and what it sought to accomplish. 

More than anything, those early CRT meetings were driven by a concern about the racial disparities in the existing socioeconomic conditions of society, despite the legal victories of the civil rights era of the 1960s. This concern was heightened by the Supreme Court. The Court’s Equal Protection jurisprudence had frozen the racial disparities in place because it increasingly adopted an approach for resolving racial discrimination along the dictates of colorblindness. Thus, not only were we critiquing racial jurisprudence based on colorblindness, but also arguing that the Equal Protection Clause jurisprudence should recognize a distinction between policies and programs directed towards attenuating racial disparities and those aimed at strengthening them. Such an approach played on the dual applications of race consciousness. The racial consciousness of slavery and segregation and articulated by the Supreme Court in Brown v. Board of Education was based on the belief that there was something wrong with Black people. We embraced a different form of race consciousness—one that was consciously aware that the racial disparities of our time were not the result of deficiencies in Black people, but the continuing manifestations of our history of racial oppression and subordination. As a result, American society and American jurisprudence needed a race consciousness dedicated to dismantling the policies, programs, and institutional practices that were recreating racial disparities.

Asylum, Religion, and the Tests for Our Compassion

Aaditya P. Tolappa

Under pressure to turn away noncitizens who fabricate religious affiliation to improve their chances of gaining asylum, immigration judges are known to ask asylum seekers doctrinal questions about their purported religions to assess their overall credibility. Immigration judges administer these “religious tests” with broad statutory authority to make credibility determinations and without meaningful review by the Board of Immigration Appeals or the federal Courts of Appeals. Although “religious tests” are currently allowed in immigration court, they are strictly forbidden in federal court because of an Establishment Clause principle called the “religious question doctrine,” which forbids government tribunals from weighing in on intrafaith doctrinal disputes or holding claimants’ beliefs and practices to judicial standards of orthodoxy. This Note highlights the difference in how religious tests are treated in these two adjudicative contexts and argues that for both constitutional and institutional reasons—that is, because of the Establishment Clause’s mandates and the government’s incompetence in adjudicating intimate issues of personal identity—appellate courts should forbid religious testing in asylum proceedings just as they do in federal courtrooms. To the extent that the government has a legitimate interest in preventing so-called “religious imposters” from gaining asylum, immigration judges can further that interest by gauging the sincerity and not the orthodoxy of applicants’ beliefs, just as federal judges do.

Policing Pregnancy “Crimes”

Valena E. Beety, Jennifer D. Oliva

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom.

The Coming Copyright Judge Crisis

Saurabh Vishnubhakat, Dave Fagundes

Commentary about the Supreme Court’s 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision’s seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board (“CRB”) unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB’s composition did not offend the Appointments Clause as long as Copyright Royalty Judges (“CRJs”) were removable at-will. But when the Court invalidated the selection process for administrative patent judges on a similar theory in Arthrex, it also rejected the D.C. Circuit’s remedy of requiring at-will removal, making the CRB unconstitutional—again. This problem is not insoluble, however, and the best available option would be to make CRJs subject to presidential appointment with Senate approval. This Essay highlights this novel insight regarding Arthrex, proposes legislative and judicial solutions to the problem of constitutionality, and reflects on the broader implications of these claims for copyright’s administrative law and Appointments Clause jurisprudence.

2022

Regulating the Pedestrian Safety Crisis

Gregory H. Shill

In the 2010s, the United States entered a pedestrian safety crisis that is unique among wealthy nations. Deaths of people on foot surged more than 46% that decade, outpacing the increase in all other traffic deaths by nine to one. The early 2020s have seen an intensification of this trend. These fatalities magnify racial disparities, placing Black pedestrians at a two-thirds higher risk of being killed than their white counterparts. While the pedestrian safety crisis has many causes, there is growing evidence that the enlargement of the American vehicle has played a key role. Auto companies earn higher profit margins on large vehicles, and consumers prefer their greater creature comforts. But the size, height, and weight necessary for those comforts has been shown to make these vehicles far deadlier for those who have the misfortune of being struck by them. Carmakers do not disclose these risks to the car-buying public—but even if they did, individual consumers lack appropriate incentives to internalize the social costs of the vehicles they buy. Like pollution, this negative externality presents a classic case for regulation. Yet America’s vehicle safety regulator (the National Highway Transportation Safety Administration, or NHTSA), conceived in the wake of the Ralph Nader consumer revolution of the 1960s, considers the safety of pedestrians—who are third parties rather than consumers—almost completely alien to its mission.                    

This Essay presents a different model, based on NHTSA’s own statutory mandate to protect “the public” as a whole from risks posed by motor vehicles. It argues that pedestrians are, quintessentially, a group whose well-being vehicle safety regulators should prioritize—even though when acting as pedestrians they are not consumers of the regulated product. Pedestrians are maximally exposed to dangerous vehicles, and by definition they benefit from neither vehicle comforts nor most occupant-focused safety features. They may even be endangered by some of them. NHTSA should expressly incorporate the welfare of pedestrians and other non-occupants into its mission. To that end, this Essay develops four policy actions NHTSA should undertake as part of a policy update it launched in 2022: include pedestrian safety in its marquee safety evaluation program; regulate the design of vehicles to protect people outside of them; use technology to protect pedestrians; and update its safety tests so they are more representative of common fatal pedestrian crash victims and scenarios.

Disarming the Finality Trap

Bryan Lammon

The federal courts of appeals have created—and acknowledged that they’ve created—a finality trap for would-be appellants. Litigants risk falling into the trap when they voluntarily dismiss some of their claims without prejudice and then try to appeal the district court’s resolution of other claims. Most courts of appeals see this as an attempted end run around the general rule that appeals must wait until all claims are resolved. After all, the without-prejudice dismissal means that the voluntarily dismissed claims might resurface at some future point. Most courts of appeals accordingly hold that the voluntary, without-prejudice dismissal does not result in a final, appealable decision. The trap springs when those courts then don’t provide a straightforward means for fixing the finality problem. Litigants are then left in litigation limbo. Their case is over and unchangeable in the district court. But the case is not final—and never will become final—for purposes of appeal.

The finality trap is asinine. And there’s an easy fix: Give would-be appellants the choice of either disclaiming the right to refile the voluntarily dismissed claims or returning to the district court to continue the action. This choice obviates any refiling concerns and ensures that the right to appeal is not lost due to a small procedural misstep.

Recent struggles with the finality trap also hint at an alternative approach to finality. When determining whether a district court has issued a final, appealable decision, courts normally look to the substance of the district court’s decision. That is, they ask whether the district court has actually resolved all of the claims. An alternative approach might ask only whether the district court is finished with an action. At that point—regardless of what the district court has done—the district court has entered a final decision. This shift in focus from what a district court has done to whether the district court is done might bring some much-needed clarity and simplicity to this area of the law.

Data Types, Data Doubts & Data Trusts

João Marinotti

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property—demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.