Digital Commons @ UM Law

Fish, Lauren

English

An Injured Market: How Federal Commerce Clause Powers and Securities-Style Disclosure Requirements Can Address the Strains of State-Regulated Sports Betting

Powell, Catherine

How AI Reinforces Caste: Creating and Amplifying Systematic Inequality

University of Maryland Law Journal of Race, Religion, Gender and 
Class 
Volume 24 Issue 2 Article 1 
VOL 24.2 Intro Pages 
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Recommended Citation 
VOL 24.2 Intro Pages, 24 U. Md. L.J. Race Relig. Gender & Class (). 
Available at: https://digitalcommons.law.umaryland.edu/rrgc/vol24/iss2/1 
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UNIVERSITY OF MARYLAND 
LAW JOURNAL OF 
RACE, RELIGION, GENDER & CLASS 
 
VOLUME 24    FALL 2024    NUMBER 2 
 
ARTICLES 
 
LGBTQ+ Banks and Banking 
 Heidi Mandanis Schooner         73 
 
 
Addressing the Gender Wage Gap for Native American Women 
 Daniella DiGrazia & Ann Juliano         118 
 
 
COMMENTS 
 
Balancing Rights in the Classroom: 
The Constitutional Imperative for LGBTQ-Inclusive Curricula Amidst the Weaponization  
of Parental “Hybrid’Rights” Claims 
 Lauren Byrne  164 
 
 
Let Them Eat Cake: 
Eroding Article III to Perpetuate the Student Loan Crisis in Biden v. Nebraska 
 Anthony R. Gonzalez 187 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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VOL 24.2 Intro Pages

Maril, Robin

Originalism and Democratic Decline

This essay was originally published in Balkinization as part of an online symposium and it is reprinted with permission. The essay engages with Julie Suk\u27s book, After Misogyny: How the Law Fails Women and What to Do About It. It suggests that feminist legal scholars have been considering their intellectual options in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In After Misogyny, Professor Suk offers a conceptual path forward in a post-Dobbs world. Suk’s trenchant analysis of the failure of law to render substantive gender equality and her proposals to remedy that failure are sound. Yet, the essay asks whether the United States has the constitutional conditions under which those proposals could actually come to fruition

Monopoli, Paula A

University of Maryland Francis King Carey School of Law 
DigitalCommons@UM Carey Law 
Faculty Scholarship Francis King Carey School of Law Faculty 
2025 
Pushing Boundaries 
Paula A. Monopoli 
Follow this and additional works at: https://digitalcommons.law.umaryland.edu/fac_pubs 
 Part of the Constitutional Law Commons, and the Law and Gender Commons 
25 
Pushing Boundaries
PAULA MONOPOLI*  
ulie Suk is one of the most interesting feminist constitutional scholars 
writing today. It’s a pleasure to engage with her new book, After 
Misogyny: How the Law Fails Women and What to Do About It. Feminist 
legal scholars have been considering their intellectual options in the 
wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s 
Health Organization.1 In After Misogyny, Professor Suk offers us a 
conceptual path forward in a post-Dobbs world. I agree with Suk’s trenchant 
analysis of the failure of law to render substantive gender equality and her 
proposals to remedy that failure. My question is whether we have the 
constitutional conditions under which those proposals could come to 
fruition.   
After Misogyny is framed in two parts. Part I, How the Law Fails Women, 
Misogyny Beyond Misogynists, reminds us about the limits of constitutional 
gender equality as it has developed in the United States. Chapter 1 reviews 
the jurisprudential expansion of the Equal Protection clause to embrace sex-
based differential treatment by the state, and the U.S. Supreme Court’s 
eventual adoption of intermediate scrutiny. It highlights the narrow 
nondiscrimination norm that emerged from that jurisprudence. That kind of 
formal equality fell far short of eliminating what Suk conceptualizes in 
Chapter 2 as the residual overentitlement and overempowerment of men. 
Those two concepts distinguish Suk’s more capacious definition of 
misogyny in the book, differentiating it from the traditional definition which 
requires animus toward women. It was sometimes challenging to see the 
conceptual boundary between the two  since they can overlap. Suk links this 
theory of overentitlement and overempowerment to two doctrinal bases—
unjust enrichment and abuse of right. While Suk’s description of 
* Sol & Carlyn Hubert Professor of Law, University of Maryland Carey School of Law. This
essay was originally published in Balkinization as part of an online symposium on Julie Suk’s 
After Misogyny and it is reprinted with permission. 
1 Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022). 
J 
26 New England Law Review [Vol. 59 | 1 
 
overentitlement as grounded in unjust enrichment resonates, her description 
of overempowerment as grounded in abuse of right—a doctrine she notes is 
less well-known in American law—is more opaque.2 
In Chapter 3, Suk sheds light on alternative constitutional regimes 
around abortion. She describes German and Irish judicial decisions which 
give weight to the rights of the fetus and impose restrictions on the rights of 
the pregnant person. Suk argues that despite what might appear to be 
regressive views about women as mothers, there is value to be had in judicial 
language suggesting the state owes social and economic duties to women 
and families. That kind of maternalism recognizes as a legal matter that 
women suffer undue burdens as a result of pregnancy, burdens which confer 
significant benefit on society. Suk notes that “these ideas are not alien to the 
United States,” but that women’s sacrifices in biological and social 
reproduction are only lightly referenced in U.S. Supreme Court decisions 
around abortion.3 She argues that recognition of those sacrifices “which have 
tangible collective benefits for the nation” is an essential step in building a 
state-sponsored infrastructure of care in the United States.4 While I agree 
with Suk, there is also a real risk that such maternalism reifies an essentialist 
view of women and poses potential pitfalls for equality. Because much of 
Suk’s theory is grounded in this embrace of maternalism by other liberal 
democracies, it would have been helpful to address this risk more directly. 
Part II, What to Do About It, Remaking Constitutions and Democracy, begins 
with Suk’s framing of Prohibition as a constitutional movement by women 
to reset and rebalance male entitlements and empowerment. In Chapter 4, 
she reminds us that the ratification of a federal constitutional amendment 
prohibiting the manufacture and sale of liquor grew out of the nineteenth-
century women’s temperance movement. But rather than the conventional 
characterization of that social movement as the product of a group of 
abstinent church ladies, Suk tells a different story. She describes women 
lawyers using law and constitutional theory to protect women from 
domestic violence in the private sphere, and to dismantle the legal regime of 
coverture underpinning the legal, social, and physical subordination of 
women. In a post-Dobbs world, where “history and tradition” is the 
jurisprudential touchstone for finding an unenumerated right in the U.S. 
 
2 JULIE C. SUK, AFTER MISOGYNY: HOW THE LAW FAILS WOMEN AND WHAT TO DO ABOUT IT 75 
(2023). 
3 Id. at 118. 
4 Id. 
2025] Pushing Boundaries 27 
 
Constitution, this recovery of feminist constitutional history provides 
significant support for Suk’s theory.  
In Chapter 5, Suk turns to her deep expertise in comparative 
constitutionalism to teach us about three countries that have made explicit 
constitutional moves toward gender parity. She uses France, Germany, and 
Iceland as case studies in how women’s disempowerment and lack of 
entitlement can be the impetus for the development of legal rules which 
address such disadvantage as a constitutional and legislative matter. Suk 
describes moves by constitutional courts and parliaments to use theories of 
interpretation, gender quotas, and popular constitutionalist methods, like 
citizens’ assemblies, to develop those rules. And in Chapter 6, Suk offers a 
blueprint for an infrastructure of care built around such rules. She makes the 
case to “value care as a constitutional project,” and she argues that building 
a “constitutionalism of care” requires us to develop “infrastructures that are 
responsive and inclusive” to women’s lived experiences, and that assign 
value to the full range of their contributions as citizens.5 This chapter again 
uses comparable liberal democracies—especially Ireland—as models for a 
post-Dobbs path in the United States.   
In her Conclusion, Suk anticipates the argument that the United States 
doesn’t have a constitutional culture that would allow these paths to take 
hold here. She asks whether, “the global innovations of feminist lawmaking 
[can] direct the law to realize and value the contributions of women in the 
United States?”6 Suk draws on comparative scholars who suggest that 
“creative translation” and “constitutional engagement” rather than 
wholesale “transplantation” are the preferred ways to implement 
comparative legal analysis.7 From that perspective, Suk offers the possibility 
that her comparative proposals could gain traction in the United States.  
While I find Suk’s underlying theory persuasive, I do question whether 
the proposals she sets out can take root in our shallow constitutional soil. 
Suk’s invocation of Prohibition is instructive. It is not a coincidence that the 
only time an amendment to the U.S. Constitution was repealed, it was an 
amendment originally enacted as the result of a movement led by women. 
And if we had been paying attention to that feminist constitutional history—
instead of what Reva Siegel describes as “constitutional memory”8—we 
 
5 Id. at 181. 
6 Id. at 211. 
7 Id. at 214. 
8 Reva B. Siegel, The Politics of Constitutional Memory, 20 GEO. J.L. & PUB. POL’Y 19 (2022). 
28 New England Law Review [Vol. 59 | 1 
 
would not have been so surprised that the first time the U.S. Supreme Court 
reversed a previously recognized constitutional right, it was the right to 
abortion. Suk is right on target when she argues that the explanation for 
these constitutional moves is misogyny, as she broadly defines it. Achieving 
equality means ending the extraction of unpaid labor from women that has 
been the hallmark of societies from time immemorial. But in a constitutional 
culture where rights are conceived of as negative, any suggestion of 
socialism is assiduously avoided by all but the most progressive politicians, 
and gender quotas used to rebalance legislative power face a hostile legal 
landscape, can we really build a constitutionalism of care?   
Our constitutional culture remains stubbornly masculine. In 1873, 
Justice Bradley suffered no apparent cognitive dissonance in arguing 
vehemently in his dissent in the Slaughter-House Cases9 that the right of male 
butchers to engage in their profession was a privilege of national citizenship.  
But on the very same day, in his concurrence in Bradwell v. Illinois, Bradley 
had no problem dismissing out-of-hand Myra Bradwell’s argument that her 
right to practice the profession of law was similarly protected.10 He 
presumably rationalized these inconsistent positions purely on the basis of 
sex. Women were members of a separate class of citizens. Their rights could 
be differently defined under such a separate spheres view of the world. And 
today, in a post-Dobbs world, our constitutional culture displays a similar 
comfort with differential norms around equal citizenship. The freedom to be 
left alone by the state and the concomitant right to bodily autonomy means 
one thing for men and another for women.  
Masculine norms are deeply embedded in our constitutional design.11 
And that design is virtually unamendable, given the nature of Article V and 
our polarized politics.12 Suk describes how the maternity clauses in several 
twentieth-century European constitutions have been linked to their equality 
clauses in ways that support recognition of a constitutional basis for 
women’s unique contribution to biological and social reproduction.13 Yet we 
have not been able to get a sex equality amendment into our constitution for 
the past one-hundred years. And the only amendment we do have that 
 
9 The Slaughter-House Cases, 83 U.S. 36, 113–114 (1873).  
10 Bradwell v. State, 83 U.S. 130, 139–42 (1873). 
11 See Paula A. Monopoli, Gender and Constitutional Design, 115 YALE L.J. 2643 (2006). 
12 SUK, supra note 2, at 222. 
13 SUK, supra note 2, at 183. 
2025] Pushing Boundaries 29 
 
comes close—the Nineteenth Amendment—has been narrowly construed.14 
So, constitutionalizing the right of women as mothers to the support of the 
community seems far out of reach. In fact, the U.S. Supreme Court’s recent 
expansion of free exercise and its erosion of establishment clause 
jurisprudence may actually amplify the patriarchal norms embedded in 
organized religion. In essence, personal religious beliefs that should remain 
in the private sphere will increasingly be ushered into the public sphere and 
law itself through the back door. 
Because our constitution is virtually unamendable, building a 
constitutionalism of care in this country would require a legislative strategy. 
Such a strategy requires a foundational shift in who exercises institutional 
power—a shift most efficiently achieved by embracing electoral quotas.15 
Suk acknowledges that American law has generally rejected quotas, despite 
some recent signs otherwise.16 So, such a shift in the gender balance of power 
in Congress and state legislatures seems unlikely. She suggests the 
pandemic’s disparate impact on women could trigger a groundswell of 
support for such a strategy.17 But the child tax credit enacted by Congress 
was allowed to lapse, the President has declared the emergency at an official 
end, and the nation just wants to move on. 
Still, Dobbs leaves us no choice but to seek new paths. So, we shouldn’t 
let existing conditions deter us from carefully considering Suk’s compelling 
theory and proposals. As her title After Misogyny signals, Suk is writing as 
much for the future as she is for today. Our immediate task is to restore a 
constitutional right to reproductive self-determination, the cornerstone of 
women’s full citizenship and substantive equality under any theory. After 
Misogyny offers us a thick conceptual basis to ground that right. And it also 
offers us a foundation upon which to build—for the first time—an anti-
subordination constitutionalism of care. It is a theory that feminist legal 
scholars should clearly consider—one that illuminates a potential path 
forward in these otherwise dark times. 
  
 
14 See generally Paula A. Monopoli, CONSTITUTIONAL ORPHAN: GENDER EQUALITY AND THE 
NINETEENTH AMENDMENT (2020). 
15 SUK, supra note 2, at 222. 
16 SUK, supra note 2, at 167, 223, 290 n.45. 
17 SUK, supra note 2, at 180. 
30 New England Law Review [Vol. 59 | 1 
* * * * 


Pushing Boundaries

Sabharwal, Kennedy

Hutler, Brian

Eifler, M

Gross, Marielle

Decentralized Biobanking for Transparency, Accountability, and Engagement in Biospecimen Donation

Journal of Business & Technology Law 
Volume 20 Issue 2 Article 1 
Table of Contents 
Follow this and additional works at: https://digitalcommons.law.umaryland.edu/jbtl 
Recommended Citation 
Table of Contents, 20 J. Bus. & Tech. L. (2025) 
Available at: https://digitalcommons.law.umaryland.edu/jbtl/vol20/iss2/1 
This Front Matter is brought to you for free and open access by the Academic Journals at DigitalCommons@UM 
Carey Law. It has been accepted for inclusion in Journal of Business & Technology Law by an authorized editor of 
DigitalCommons@UM Carey Law. For more information, please contact smccarty@law.umaryland.edu. 
Vol. 20, No. 2 2025 
UNIV E R SITY OF MA R YLA ND FR A NC IS  K IN G CA R E Y SC HOOL OF LA W  
ESTA B LISHE D 1816  
 
Journal of Business & 
Technology Law 
 
 
Articles 
Artificial Intelligence, Special Education, and the Law:  
Risks, Rewards, and Opportunities for Leadership 
Thomas A. Mayes ............................................................... 115 
 
Robocops to the Rescue? Addressing Police Misconduct 
Clovia Hamilton & Scott J. Shackelford ......................... 131 
 
 
Notes & Comments 
An Injured Market: How Federal Commerce Clause Powers and 
Securities-Style Disclosure Requirements Can Address the 
Strains of State-Regulated Sports Betting 
Lauren Fish ........................................................................ 213 
 
A Rebooted Debate: How the Paramount Decrees Repeal Could 
Spell a New Era of Modern Antitrust Law 
Mitchell Schuster ............................................................... 243 
 
Name, Image, & Likeness Regulations in College Sports: 
Allowing Athletes to Profit from their Personal Brand and the 
Consequences of Doing So 
Clare H. Reynolds .............................................................. 269 
 
 
 
 
 


Schuster, Mitchell

A Rebooted Debate: How the Paramount Decrees Repeal Could Spell a New Era of Modern Antitrust Law

University of Maryland, Baltimore

Not a member yet

An Injured Market: How Federal Commerce Clause Powers and Securities-Style Disclosure Requirements Can Address the Strains of State-Regulated Sports Betting

Table of Contents