Author Archive for solangel-maldonado
Introducing Guest Blogger Glenn Cohen
posted by Solangel Maldonado
I am delighted to welcome Glenn Cohen who will be blogging with us this month. Glenn is an assistant professor at Harvard Law School where he teaches bioethics, health law, and civil procedure. He is also co-director of the law school’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. His scholarship focuses on legal and ethical issues relating to reproductive technologies (and reproduction more generally), medical tourism (the travel of patients from one country to another country for the primary purpose of receiving health care), and other issues at the intersection of law, medicine and ethics. Prior to joining the faculty, Glenn served as a clerk to Chief Judge Michael Boudin, U.S. Court of Appeals for the First Circuit. He also served as an appellate attorney for the U.S. Department of Justice, Civil Division, Appellate staff, where he acted as lead counsel in over 12 Circuit Court cases, counsel in numerous others, and represented the United States in the U.S. Supreme Court in conjunction with the Solicitor General’s office. Immediately before joining the faculty he was a fellow at the Petrie-Flom Center.
His publications include:
The Constitution and the Rights Not to Procreate, 60 STANFORD L. REV. 1135 (2008)
The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. 1115 (2008)
Intentional Diminishment, The Non-Identity Problem, and Legal Liability, 60 HASTINGS L. J. 347 (2008) (symposium)
Protecting Patients with Passports: Medical Tourism, Medical Tourism and the Patient-Protective Argument, 95 IOWA L. REV. __ (being published this month)
Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter? 95 MINN. L. REV. ___ (forthcoming, December 2010) (co-authored with Daniel Chen)
Medical Tourism: The View from 10,000 Feet, 40 HASTINGS CTR. REP, March- April, 11 (2010)
He is currently working on set of papers relating to the reliance on what he calls “Best Interests of the Resulting Child (BIRC)” reasoning to justify the regulation of reproduction (in areas as diverse as the criminalization of incest, prohibitions on sperm donor anonymity prohibitions, restrictions on access to reproduction to those over age 50, etc) and the problems attached to that justification as well as to its possible substitutes.
August 2, 2010 at 7:24 am
Posted in: Administrative Announcements
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Introducing Guest Mark Alexander
posted by Solangel Maldonado
I am delighted to welcome Professor Mark C. Alexander as a guest blogger for the month of July. Mark is a Professor of Law at Seton Hall Law where he teaches Constitutional Law, Law & Politics, Criminal Procedure, and The First Amendment. His scholarship focuses on the intersection of law, politics and government, and on free speech issues. Mark served as Senior Advisor to then Senator Barack Obama during the presidential campaign and on the Presidential Transition Team, reviewing the Federal Election Commission, as part of the Justice and Civil Rights Team. He also served as General Counsel to Cory Booker and the Booker Team in the 2006 Newark Municipal elections and then for Newark in Transition, as Mayor Booker moved to assume the office. Mark has significant international experience, including a year in Spain on a Fulbright Scholarship, where he taught American Law and Politics. He has also taught in Italy and is a fellow of the U.S.-Japan Leadership Program.
Mark clerked for Chief Judge Thelton Henderson of the United States District Court for the Northern District of California and was a litigator with Gibson, Dunn & Crutcher before joining the Seton Hall Law faculty in 1996. He received his B.A. and J.D. from Yale University. His publications include:
Let Them Do Their Jobs: The Compelling Government Interest in Protecting the Time of Candidates and Elected Officials, 37 Loy. U.-Chic. L.J. (2006)
Money in Political Campaigns and Modern Vote Dilution, 23 U. Minn. J.L. & Inequality 239 (2005)
Campaign Finance Reform: Central Meaning and a New Approach, 60 Wash. & Lee L. Rev. (June 2003)
He is currently working on a book, The Great Political Pivot, which examines the consequences going forward of the new wave of empowerment—manifested in the tea party, individual activists, and individual candidates across the country, on the left and right—that Obama for America unleashed when it challenged the political establishment.
July 3, 2010 at 11:04 am
Posted in: Administrative Announcements
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Introducing Guest Blogger Tamara Relis
posted by Solangel Maldonado
I am delighted to welcome Professor Tamara Relis as a guest blogger for the month of May. Tamara is an Assistant Professor of Law at Touro Law School where she teaches Criminal Law, Evidence, International Human Rights Law and Global Conflict Resolution. She is the author of Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (Cambridge University Press, New York, 2009) and is currently working on her second book based on a large-scale four-year empirical study of formal courts and quasi-legal justice processing of international human rights violation cases of violence against women in India. She holds a Ph.D. in law and an LL.M. degree with Merit from the London School of Economics (specializing in procedural law) where she taught two LL.B courses. She also holds an LL.B. degree from the University of London. She was the recipient of the Economic and Social Research Council’s Postdoctoral Fellowship Award for 2005/06, the British Academy’s Postdoctoral Fellowship Award for 2006/09, and a Columbia University (Provost’s Office) & London School of Economics Seed Fund Publishing Award.
Tamara’s other publications include:
International Human Rights and Southern Realities, ___ Human Rights Quarterly (forthcoming 2010)
Consequences of Power, 12 Harv. Negotiation L. Rev. 445 (2007)
It’s Not About the Money!: A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 Pittsburgh L. Rev. 701 (2007)
May 2, 2010 at 11:08 am
Posted in: Administrative Announcements
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Wrongful Adoption or Adopting Blindly?
posted by Solangel Maldonado
I have been following the news stories about the Tennessee mother that put her adopted child on a plane (alone) back to Russia because she could no longer cope with his significant health and behavioral problems. Although saddened by this case, I see a silver lining. Maybe, Americans will finally see that international adoptions are not necessarily any less risky than domestic adoptions. In an article published several years ago, I examined the reasons why many Americans prefer to adopt internationally as opposed to domestically. I am not opposed to international adoptions and in fact, believe that the law should encourage more families to adopt, both domestically and internationally, so long as the adoption is in the particular child’s best interest. However, I was puzzled that many families chose to adopt internationally despite the high financial costs ($20,000-$35,000), extensive delays, and bureaucracies in both the U.S. and the sending country. One common response was that domestic adoptions were too risky—specifically, that foreign-born children had fewer health risks than the children available for adoption in the U.S., international adoptions were less likely than domestic adoptions to be disrupted, prospective parents would have a child in their home sooner, and the process was less expensive. In the article, I summarized the literature debunking these myths. Here, however, I would like to focus on only one—the belief that foreign-born children have fewer health risks than those available for adoption in the U.S.
April 29, 2010 at 11:06 pm
Posted in: Family Law, International & Comparative Law
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Will Latinos Check Black on the Census?
posted by Solangel Maldonado
Last week, I noted that conceptions of race in Latin American are different from those commonly held in the U.S. Since then, I have received many comments both on Concurring Opinions and offline and have listened to several programs and panels on the U.S. Census and Latinos. In this post, I want to explore why Latinos, even those who were raised in the U.S. or have lived here most of their adult lives continue to reject U.S. conceptions of race. After all, immigrants often adopt the norms of their new country after a relatively short period of time (a generation?) so why not adopt U.S. definitions of race?
Undoubtedly, one reason why Latinos reject U.S. definitions of race is prejudice against Blacks. Some Latinos deny their African ancestry because they hold negative views about African-Americans. This is illustrated in a public service video that seeks to encourage Latinos of African descent to identify as both Hispanic and Black on the 2010 Census. In this video, a Latina grandmother rejects her grandson’s friends because she erroneously assumes that they are African-American when, actually, they are Latinos of African ancestry.
March 31, 2010 at 12:27 pm
Posted in: Race
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Is Your Love Worth $9 Million?
posted by Solangel Maldonado
About a year ago, I blogged about the dying tort of alienation of affections. I say “dying” because all but seven states have abolished the cause of action. However, in at least one of those states, approximately 200 cuckolded spouses each year sue their spouse’s paramour. Just last week, a North Carolina jury awarded a spurned wife $9 million ($5 million in compensatory and $4 million in punitive damages) against the woman she claims wrecked her marriage of 33 years. Although the defendant paramour does not have $9 million, the wife does not regret suing her husband’s lover. She admits that the point of the lawsuit, at least in part, was to send a message. This brings me back to the concerns I raised over a year ago. These suits are not about compensation for one’s injuries or deterring adultery, but rather seek to humiliate the paramour and assert one’s own moral superiority. In fact, these suits can be harmful to the plaintiff herself. In this case, the wife owes tens of thousands of dollars in legal bills and she will probably never receive much (if any) of the $9 million awarded to her. But, as she conceded, this case is about something much greater than money; she wanted people about to enter into a relationship with a married person “to understand, before they do it, how much it hurts.”
The defendant paramour plans to appeal. This might be an opportunity for North Carolina to follow the majority of states that have abolished the cause of action for alienation of affections on the ground that a spouse’s affections cannot be stolen and that one person is never the sole cause of marital breakdown. However, the court might do the opposite and use this opportunity to remind us that “[w]hen a third person is at fault for the breakdown of a marriage, the law ought to provide a remedy.” Norton v. Macfarlane (Utah 1991). Stay tuned.
March 28, 2010 at 11:09 am
Posted in: Family Law
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The U.S. Census and Latinos’ Conceptions of Race
posted by Solangel Maldonado
My parents were filling out the U.S. Census a few nights ago when they reached a question that stumped them both—the race question. The Census requires that individuals “answer BOTH Question 8 about Hispanic origin and Question 9 about race” and states that for purposes of the 2010 Census, “Hispanic origins are not races.”
Question 8 asks:
Is Person 1 of Hispanic, Latino, or Spanish origin?
–No, not of Hispanic, Latino, or Spanish origin
–Yes, Mexican, Mexican Am., Chicano
–Yes, Puerto Rican
–Yes, Cuban
–Yes, another Hispanic, Latino, or Spanish origin –Print origin, for example, Argentinean, Colombian, Dominican, Nicaraguan, Salvadorian, Spaniard, and so on.
Question 9 asks:
What is Person 1’s race?
–White
–Black, African Am., or Negro
–American Indian or Alaska Native –Print name of enrolled or principal tribe.
–Asian Indian
–Chinese
–Filipino
–Other Asian
–Japanese
–Korean
–Vietnamese
–Native Hawaiian
–Guamanian or Chamorro
–Samoan
–Other Pacific Islander
–Some other race – Print race.
My parents had no difficulty answering Question 8. They are both from the Dominican Republic so they checked “Yes, another Hispanic, Latino, or Spanish origin” and printed “Dominican” in the box provided. They did not know how to respond to Question 9, however. My father, whose phenotype is that of a light-skinned Black man, wanted to select “White” because he equates Black with African-American. My mother wanted to select “Black” because, in her view, “White” refers to Caucasian and, although her grandfather was a Spaniard, her grandmother was of African descent. Confused, my parents asked their four adult daughters, all of whom were born and raised in the U.S., how we self-identified in the Census. Three of us checked “Black” and one checked both “Black” and “White.” My father finally agreed to check “Black,” not because he identifies as such, but because there were no other “adequate choices.” When I asked him what race he would have selected had it been listed, he responded “Latino.” For him, and many other Latinos, his race is not White, Black, or American Indian, but Latino—the result of a mixing of European (mostly Spaniard), African (brought as slaves to the Americas), and the indigenous people of the Americas (for example, Taino, Aztec, Mayan, etc.) Read the rest of this post »
March 26, 2010 at 9:01 am
Posted in: Culture, Race
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Introducing Guest Blogger Angela Onwuachi-Willing
posted by Solangel Maldonado
I am delighted to welcome Professor Angela Onwuachi-Willig as a guest blogger for the month of March. Angela is Professor of Law and the Charles M. and Marion J. Kierscht Scholar at University of Iowa College of Law where she researches and writes in the areas of employment discrimination, family law, critical race theory, and feminist legal theory. Her articles have appeared or will appear in the California Law Review (Berkeley), Michigan Law Review, Vanderbilt Law Review, Harvard Civil Rights-Civil Liberties Law Review, Wisconsin Law Review, Minnesota Law Review, Washington University Law Review, and Yale Journal of Law and Feminism, among others. She has published opinion-editorials in the Chicago Tribune, Sacramento Bee, Des Moines Register, and Iowa City Press Citizen on numerous occasions.
Professor Onwuachi-Willig is Chair of the AALS Section on Law and Humanities. In 2006, she was honored for her service by the Minority Groups Section of the AALS with the Derrick A. Bell Award, which is given to a junior faculty member who has made an extraordinary contribution to legal education, the legal system, or social justice.
Angela’s publications include:
Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. (forthcoming 2010)
Complimentary and Complementary Discrimination in Faculty Hiring, 87 Wash. U. L. Rev. (forthcoming 2010)
The Declining Significance of Presidential Races?, 72 Law & Contemp. Probs. (forthcoming 2010)
A House Divided: The Invisibility of the Multiracial Family, 44 Harv. C.R.-C.L. L. Rev. 231 (2009) (co-authored with Jacob Willig-Onwuachi of Grinnell College)
Cracking the Egg: Which Came First—Stigma or Affirmative Action?, 96 Calif. L. Rev. 1299 (2008) (co-authored with Emily Houh of the University of Cincinnati College of Law and Mary Campbell of University of Iowa Sociology)
A Beautiful Lie: Exploring Rhinelander v. Rhinelander as a Formative Lesson on Race, Identity, Marriage, and Family, 95 Calif. L. Rev. 2393 (2007).
The Admission of Legacy Blacks, 60 Vand. L. Rev. 1141 (2007)
February 28, 2010 at 5:46 pm
Posted in: Administrative Announcements
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Call for Papers — March 12, 2010 Deadline
posted by Solangel Maldonado
Seton Hall Law School will host the Third National People of Color Legal Scholarship Conference, September 9-12, 2010. This conference will address critical national and global issues through the lens of legal scholarship that explicitly and implicitly examines contemporary racial context. It will feature panels on the “war on terror,” urban revitalization, criminal law, health care, education, immigration, human trafficking, voting rights, international and comparative law, judicial nominations, environmental justice, and corporate responsibility, among others. It will also include a Junior Faculty and Development Workshop.
The conference planning committee is seeking proposals for panels and workshops that fit within its broad theme, Our Country, Our World in a “Post-Racial” Era. It is also accepting drafts for work-in-progress sessions and shorter “thoughts-in-progress” sessions to informally discuss future research and writing ideas.
Please e-mail a one page abstract of your submission to Professor Kamille Wolff, Co-Chair of the Program Committee, at kwolff@tmslaw.tsu.edu by March 12, 2010. For more information about the conference, go to law.shu.edu/thirdnationalpoc.
February 13, 2010 at 9:22 pm
Posted in: Conferences, Uncategorized
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Law School Diversity and U.S. News
posted by Solangel Maldonado
Some of you may have seen the recent study finding that the percentage of African-American and Mexican-American students in law school has decreased in the last fifteen years. The study found that although there are 3,000 more first-year seats available today than in 1993 (the number of law schools has increased from 176 to 200), few of those seats are being filled by African-American or Mexican-American students. As a result, African-American and Mexican-American students comprise a smaller percentage of the entering law school class than they did in 1993. According to the ABA, the same trend is true of Puerto Rican law students, but that is not the case with all minority law students. In fact, both the number and percentage of law students who self-identify as “Other Hispanic,” Asian, or Pacific Islander increased significantly from 1993 to 2008.
January 19, 2010 at 12:23 pm
Posted in: Law School (Rankings)
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Introducing Kristin Johnson
posted by Solangel Maldonado
I’m so pleased to welcome Kristin Johnson as a guest blogger for the month of January. Kristin is an Associate Professor of Law at Seton Hall Law School and specializes in corporations law and teaches Business Associations and Securities Regulation. Prior to joining Seton Hall Law, she was Assistant General Counsel and Vice President at JPMorgan. Before that, she was a corporate associate at Simpson, Thatcher and Bartlett LLP in New York, where she represented issuers and underwriters in domestic and international debt and equity offerings, lenders and borrowers in banking and credit matters and private equity firms and publicly traded companies in mergers and acquisitions. Prior to law school, she was an analyst at Goldman Sachs & Co.
Kristin received her B.A., cum laude, from Georgetown University, and her J.D., from the University of Michigan Law School, where she served as Notes Editor of the Michigan Law Review. Following graduation, she served as a Bates International Research Fellow and clerked for the Honorable Joseph A. Greenaway, Jr., United States District Court for the District of New Jersey.
Welcome Kristin.
January 3, 2010 at 6:45 pm
Posted in: Uncategorized
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Not to be Missed Panels at AALS
posted by Solangel Maldonado
There are many reasons to go to the AALS Annual Meeting next week but here are two more. The Section on Women in Legal Education has organized two stellar panels that are sure to be informative and engaging. Concurring Opinions blogger, Danielle Citron, is one of the panelists on the First Amendment Meets Cyber-Stalking Meets Character and Fitness panel. See below for details on both panels.
Saturday, Jan. 9, 8:30–10:15 a.m.: The First Amendment Meets Cyber-Stalking Meets Character and Fitness
Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender- or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all posters impact the calculus?
Panelists:
Deborah L. Rhode, Stanford Law School
Jack M. Balkin, Yale Law School
Brad Wendel, Cornell University School of Law
Danielle Citron, University of Maryland School of Law
Moderator: Elizabeth Nowicki, Boston Univ. School of Law & Chair, AALS Section on Women in Legal Education
Sunday, Jan. 10, 9-10:45 a.m.: Succeeding in Legal Education
According to a 2007-2008 AALS report, women comprised 61.3% of all law school lecturers and 53.9% of law school assistant professors, yet only 29.3% of all full professors and 19.8% of all law school deans. To that end, this panel will focus on practical strategies for succeeding in legal education. Topics will include becoming a dean, excelling at scholarship, creating a meaningful media presence, achieving leadership positions in legal organizations, and making a lateral move.
Panelists:
Phoebe A. Haddon, Dean, University of Maryland, School of Law
Okianer Christian Dark, Associate Dean and Professor of Law, Howard University, School of Law
Dorothy A. Brown, Professor of Law, Emory Law School
Nancy B. Rapoport, Gordon Silver Professor of Law, Univ. of Nevada, Las Vegas, School of Law
Moderator: Elizabeth Nowicki, Boston Univ. School of Law & Chair, AALS Section on Women in Legal Education
December 30, 2009 at 2:03 pm
Posted in: Uncategorized
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Regulating Surrogacy–But Only In Certain Cases
posted by Solangel Maldonado
A few days ago, the New York Times ran an article on the legal regulation of gestational surrogacy, or rather, the lack thereof. A gestational surrogate carries an embryo created from either (1) the intended parents’ eggs and sperm, (2) donated eggs or sperm, (3) or donated eggs and sperm. Although some people object to all types of surrogacy, it is this third type that is most controversial because the intended parents—the persons who contracted with the gestational surrogate—have no genetic link to the child they contracted to create.
Gestational surrogacy raises many questions—for example, what happens when the gestational surrogate refuses to relinquish the child at birth—but I want to focus on one issue I find particularly disturbing. In an effort to provide uniformity and predictability, the American Bar Association has drafted a model act for states to adopt. The act would require individuals seeking to create a child using a gestational surrogate to obtain court preapproval and undergo a home study similar to that required of adoptive parents. At first glance, preapproval seems like a good idea as it would ensure that the parties know their rights and that the intended parents are fit to raise a child. My problem with the proposed act is that the home study and preapproval process is only required where neither of the intended parents has a genetic tie to the child.
On one level, the ABA’s proposal makes sense. Some the concerns raised by gestational surrogacy—the commercialization of procreation and commodification of children—might not be present when at least one of the intended parents is also a biological parent. Arguably, it might be more difficult to justify regulation of surrogacy agreements when parents are raising their own biological children and relying on technology to merely facilitate the creation of those children, as opposed to creating and raising children unrelated to them.
I am troubled, however, by the message the law would send if it required court preapproval of gestational agreements involving intended parents who are unable or unwilling to provide their own gametes while imposing no such burden on those who provide their own gametes. It may signal that parents who lack genetic ties to their children are somehow not “real parents” in the same way as those with biological ties. I wonder whether this message would further fuel the desire of individuals currently using all kinds of technology to create their own biological children, sometimes at great physical, emotional, and financial cost to them and their families. I also wonder whether such a law would signal to adoptive parents and children that their families are somehow different (and less desirable) than those who share biological ties.
December 17, 2009 at 11:56 am
Posted in: Family Law
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Introducing Guest Blogger Rachel Godsil
posted by Solangel Maldonado
I’m very pleased to announce that Professor Rachel Godsil is back for another guest visit. Rachel is the Eleanor Bontecou Professor of Law at Seton Hall University School of Law where she teaches Property, Family Law, Equality Under American Law, and Zoning and Land Use Policy. She has also taught at the University of Pennsylvania Law School. While on sabbatical, she served as convener of the Urban and Metropolitan Policy Group, advisor to the HUD transition team, and co-directed a report to HUD entitled “Retooling HUD for a Catalytic Federal Government.”
Rachel graduated from the University of Michigan Law School, where she served as executive articles editor of the law review, was awarded the Henry M. Bates Memorial Award, and was elected to the Order of the Coif. Prior to joining the Seton Hall faculty, she clerked for the Honorable John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, was an Assistant United States Attorney for the Southern District of New York, and Associate Counsel at the NAACP Legal Defense and Educational Fund. She was also an associate with Berle, Kass & Case and with Arnold & Porter in New York City.
Rachel has written extensively on the convergence of race, poverty, and the environment. Her recent publications include:
* Protecting Status: The Mortgage Crisis, Eminent Domain, and the Ethic of Homeownership, 77 Fordham L. Rev. 949 (2008)
* Contaminants in the Air and Soil in New Orleans after the Flood: Opportunities and Limitations for Community Empowerment (co-authored with Al Huang and Gina Solomon), in KATRINA AFTER THE FLOOD (Robert Bullard, ed. 2008).
* Building Upon Sax’s Edifice: The Evolution of Environmental Justice and the Challenges of the Engaged Scholarship (Gerald Torres, ed. 2007)
* Just Compensation in an Ownership Society (co-authored with David Simunovich), in PRIVATE PROPERTY, COMMUNITY DEVELOPMENT, AND EMINENT DOMAIN (Robin Paul Malloy, ed. 2007)
* Race Nuisance: The Politics of Law in the Jim Crow Era, 105 Mich. L. Rev. 505 (2006)
* AWAKENING FROM THE DREAM: CIVIL RIGHTS UNDER SIEGE AND THE NEW STRUGGLE FOR EQUAL JUSTICE (co-edited with Denise Morgan) (Carolina Academic Press 2005)
Rachel’s law review note, Remedying Environmental Racism, 90 Mich. L. Rev. 394 (1991) is one of the most cited law school notes of all time.
November 1, 2009 at 8:12 am
Posted in: Administrative Announcements
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Unmarried Couple Ban Symposium
posted by Solangel Maldonado
This symposium announcement just crossed my desk:
The Arkansas Law Review will host a symposium on the Unmarried Couple Adoption Ban on November 5, 2009, at the University of Arkansas School of Law in Fayetteville, Arkansas. The symposium will address the legal and political issues surrounding what was Arkansas’s Initiated Act 1, banning the adoption of children by unmarried couples in the state, as well as the national context in which it was passed. It will represent a balanced presentation of the various viewpoints on this widely debated issue.
Primary speakers will be Professor Mark Strasser of Capital University School of Law and Professor Lynn Wardle of Brigham Young University Law School. Representatives from Arkansas Advocates for Children & Families and the Family Council Action Committee will also participate.
October 14, 2009 at 1:31 pm
Posted in: Conferences, Family Law
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Assimilation: What Will It Mean for Affirmative Action?
posted by Solangel Maldonado
Orlando Patterson, the well-respected Harvard sociologist, wrote an article in the New York Times this week in which he argued that immigrants from Latin America and Asia will assimilate into mainstream American culture (whatever that might be) in the same way as European immigrants from the late 19th and early 20th century had. Maybe he’s right. Although social scientists have argued that Latino and Asian immigrants will not be able to assimilate as rapidly as Irish, Italian, and Jewish immigrants because the former are not white, there is some evidence suggesting that the children of Latino and Asian immigrants are assimilating quite well. They tend to be English-dominant (many do not speak or understand their parents’ native language), they have high intermarriage rates (with whites primarily but also with other groups), and many reside in integrated or predominantly white neighborhoods—all indicators of assimilation. Many Latinos (approximately 50% according to Patterson) also self-identify as white, suggesting that their experiences might not be that different from those of European immigrants.
These facts notwithstanding, many Latino and Asian-American scholars would disagree with Professor Patterson’s assertion. They would point to continuing discrimination and evidence of implicit biases against Latinos and Asian-Americans and the widespread perception that these groups are not “really American,” as illustrated by the question “no, where are you really from?” when a person who does not look Black or White says that he is from Texas, California, or Kansas.
August 21, 2009 at 12:55 pm
Posted in: Race
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Is Divorce Too Easy? Helping Marriages Survive Infidelity
posted by Solangel Maldonado
Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce. I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it. Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships. Despite this knowledge, approximately one million children each year experience their parents’ divorce. Although there are many reasons why couples divorce, adultery is often at the top of the list. While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery. Adultery is seen as a marital offense that no one should have to endure. Indeed, until the late 1960s, adultery was the only ground for divorce in New York. It turns out, however, that most marriages survive adultery. In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not. Marriages often last for years after the infidelity is discovered.
Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short. Have an affair“, marriages might actually be stronger and more resilient today than they were 20 or 30 years ago. The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s. In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s. Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members. The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.” Zablocki v. Redhail, 434 U.S. 364, 384 (1978).
Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation. The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile. I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.
Studies have found that at least two-thirds of people who discovered a spouse’s affair were still married and living with the cheating spouse years later. These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately. Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit. But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult? Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year. As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired. What if the law could give them a push in that direction? Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might. If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure. As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish. Therein lies the challenge when law tries to regulate intimate relationships. How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?
July 9, 2009 at 11:52 pm
Posted in: Family Law
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Criminalizing Matchmaking: Mail Order Marriage Laws
posted by Solangel Maldonado
During his recent appearance on the Late Show with David Letterman, actor Alec Baldwin, who has been involved in a bitter custody dispute with his ex-wife for years, offended many people when he said that he would love to have more children and was “thinking about getting a Filipino mail-order bride.” Mr. Baldwin has since apologized for the insensitive comment and admitted that “such anger and frustration about the issue of sex trafficking is understandable.” Admittedly, some mail order marriages are the result of sex trafficking, but does this mean that countries should criminalize the mail order marriage industry as the Philippines has done?
The Philippines has two statutes addressing mail order marriages. Republic Act No. 6955, enacted in 1990, makes it a crime for any person to ”carry on a business which has its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction.” The penalty for violation of the Act is a minimum six years imprisonment. In addition, if the offender is a foreigner, he will be deported (after serving his sentence) and permanently banned from Philippines.
In 2003, the Philippines enacted the Anti-Trafficking in Persons Act,which, among other things, makes it illegal “To introduce or match for money, profit, or material, economic or other consideration . . . any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.” The penalty for violation of the Anti-Trafficking Act is 20 years imprisonment and a minimum fine of one million pesos.
Despite these laws, the mail order bride industry continues to flourish. Experts estimate that one-third to one-half of all foreign fiancees who enter the United States each year met their American husbands-to-be through an international marriage broker. A large majority of the women come from Southeast Asian countries, including the Philippines, and the law has had little effect on international marriage brokers who do a lot of their advertising and matching online. Although the United States also has laws regulating the mail order bride industry, some commentators argue that these marriages exacerbate gender, race, and class inequalities and thus, the United States should follow the Philippines’ approach. Thoughts?
June 10, 2009 at 8:35 am
Posted in: Family Law, International & Comparative Law
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Forgiving the Ex, Part III
posted by Solangel Maldonado
In my last post, I proposed that states require or recommend that angry, divorced parents participate in forgiveness interventions. While many people are probably skeptical of the law’s ability to cultivate forgiveness between divorced parents, lawmakers have already attempted to facilitate forgiveness in other contexts, for example, victim offender mediation (“VOM”) in criminal cases.
During a VOM, the victim has the opportunity to tell the offender how his crime has impacted his or her life. The offender is then given the opportunity to express his feelings and reasons he committed the criminal act. Many crime victims who participated in VOM have been able to forgive their offenders for acts ranging from petty thefts and vandalism to horrendous crimes such as rape and murder of a loved one.
Some of the factors that have made VOM successful as far as enabling crime victims to start healing might apply in the context of divorce. First, just like crime victims, divorcing spouses often feel that an injustice has been done to them. Second, similar to crime victims who have benefitted from telling their attackers how their crimes have negatively impacted their lives, divorcing spouses want their spouses to know just how deeply they have hurt them. Third, in VOM, the opportunity to listen to the attackers’ reasons for their behavior has helped victims forgive. Listening to a former spouse express his feelings and reasons for his hurtful behavior might similarly enable a hurt spouse to feel compassion and empathy, necessary elements of forgiveness.
May 5, 2009 at 8:46 pm
Posted in: Family Law
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Forgiving the Ex, Part II
posted by Solangel Maldonado
In a post last week, I discussed the negative effects of persistent anger against a former spouse, including the harm to their children. I suggested that maybe lawmakers need to encourage divorced parents to forgive each other. As I write this sentence, I realize how naïve and simplistic that sounds. How are lawmakers supposed to help people forgive a former spouse who abused, betrayed, or neglected them? Doesn’t encouraging people to forgive suggest that their anger is unwarranted? Doesn’t it suggest that the injurer’s actions were justified or that one is condoning or excusing her wrongful and unjust behavior? Well, no. Forgiveness does not mean that the forgiver does not have a right to be angry. To the contrary, the person who forgives chooses to “abandon [her] right to resentment . . . toward one who unjustly injured [her] while fostering the undeserved qualities of compassion, generosity and even love toward [the injurer].” Enright et al. (1999).
When asked if they have considered forgiving someone who has hurt them deeply, people often reply that the other person “doesn’t deserve forgiveness.” That may be so, but one does not forgive for the injurer’s benefit, but for one’s own benefit and possibly, for the benefits to one’s children. As I discussed in my earlier post, forgiveness may reduce anger and its negative effects on one’s physical and psychological health and parenting abilities. It might also reduce some of the destructive behaviors some parents engage in after divorce such as interfering with the other parent’s access to the children or disparaging him or her in front of the children. It might also enable some former spouses to cooperate as co-parents in their children’s upbringing. The question is not why divorced parents should forgive, but rather how can they be encouraged to do so?
May 2, 2009 at 10:16 pm
Posted in: Family Law, Law and Humanities
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