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Author: Solangel Maldonado

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Is Your Love Worth $9 Million?

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.

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The U.S. Census and Latinos’ Conceptions of Race

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 More

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Introducing Guest Blogger Angela Onwuachi-Willing

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)

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Call for Papers — March 12, 2010 Deadline

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.

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Law School Diversity and U.S. News

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.

Read More

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Introducing Kristin Johnson

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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.

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Not to be Missed Panels at AALS

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

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Regulating Surrogacy–But Only In Certain Cases

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.

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Introducing Guest Blogger Rachel Godsil

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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.

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Unmarried Couple Ban Symposium

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.