Gender-Based Violence as Judicial Anomaly: Between “The Truly National and the Truly Local”

In United States v. Morrison, the Supreme Court struck down the federal civil rights remedy for gender-based violence in the Violence Against Women Act. Notwithstanding evidence considered by Congress documenting the economic impact of domestic violence, and despite the inability of state and local systems to address gender-based violence claims, the Court determined that Congress lacked the necessary authority. The author argues that Morrison is remarkable in what it reveals about the legal status of women as mediated in multiple levels of judicial transactions. She contends that the decision reflects attitudes ingrained in the nation’s judicial culture. Specifically, the doctrines used by the Court to oppose adjudicating cases of violence against women are themselves derived from, and analogous to, the arguments used by state courts to avoid hearing such claims. The Article explores the day-to-day practices by which state courts adjudicate domestic violence cases and outlines the need for new legal strategies to address gender-based violence.